Agreement reached over “privilege log” creation in Sacramento mayor e-mail case

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Peter L. Haviland (right) addresses the court alongside Thomas Burke (left), an attorney representing the Sacramento News & Review newspaper, during a hearing on July 2, 2015. (Photo: Renée C. Byer / The Sacramento Bee / Pool)

Peter L. Haviland (right) addresses the court alongside Thomas Burke (left), an attorney representing the Sacramento News & Review newspaper, during a hearing on July 2, 2015. (Photo: Renée C. Byer / The Sacramento Bee / Pool)

The three sides currently involved in a legal dispute over hundreds of Sacramento Mayor Kevin Johnson’s confidential e-mails have reached an agreement over the creation of a so-called “privilege log.”

Two weeks ago, a Sacramento County Superior Court judge ordered attorneys representing Johnson, the City of Sacramento and the Sacramento News & Review newspaper to come to an agreement over the creation of the log, which will make public certain information related t0 475 e-mail records in question.

Those records were flagged by the city as being potentially protected under California’s open records law, which protects attorney-client privileged material from disclosure. The city identified the records during an inspection of government servers pursuant to a records request filed months ago by Cosmo Garvin, a political reporter with the News & Review.

Attorneys from Ballard Spahr, a private law firmed hired to represent Johnson on a personal business matter, requested Garvin and a reporter from the Sacramento Bee amend their records requests to exclude the e-mail messages in question. When Garvin refused, Johnson’s attorneys filed a legal challenge in county court asserting their attorney-client privilege with Johnson and asking a judge to order the city not to release the e-mails.

Although California’s open records law exempts attorney-client communications from disclosure, the matter has been made complicated by Johnson’s use of a commercial Google Mail account and his forwarding of the e-mail messages to the city government accounts of some of his staffers.

At a hearing on July 2, a judge ordered the three sides to come to an agreement over the creation of a privilege log, which will list the e-mail records in question as well as identify who created the messages, who received them and a brief synopsis of the message.

Sacramento County Superior Court Judge Christopher Krueger signed off on the stipulation Tuesday. Under the agreement, the city will forward 475 records in question to Ballard Spahr by Thursday. Two weeks after the e-mails are received, Ballard Spahr will provide the completed privilege log to both the city attorney’s office and the News & Review.

If the News & Review does not agree to the findings of Ballard Spahr, the stipulation says all three sides will first meet to try to resolve issues out of court. If an agreement can’t be reached, the News & Review will file a motion asking the judge in the case to review each disputed e-mail as part of a closed-door session.

Although some of the e-mails may never see the light of day, the privilege log outlining the messages will become a public record itself once it is submitted to the court.