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Bergano v. City of Virginia Beach

Supreme Court of Virginia

December 6, 2018

ALLAN L. BERGANO
v.
CITY OF VIRGINIA BEACH

          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge

          OPINION

          STEPHEN R. McCULLOUGH JUSTICE,

         Dr. Allan L. Bergano is embroiled in litigation in federal court with the City of Virginia Beach. He submitted a request under the Virginia Freedom of Information Act ("VFOIA"), asking for records of "all legal fees and expert invoices relating to all of the [City's] expenses" in litigating against Bergano in federal court. The City responded by providing extensively redacted records. Bergano then filed a petition for a writ of mandamus in the Circuit Court of the City of Virginia Beach asking the court to compel the City to limit the scope of the redaction. The circuit court denied the petition, holding that two VFOIA exceptions, the attorney-client exception and the work-product exception, justified the City's redactions. Bergano appeals from this decision. We conclude that the circuit court's application of the attorney-client and work-product exceptions was excessively broad and, consequently, we will reverse the judgment below.

         BACKGROUND

         Dr. Bergano made a request under VFOIA for the City to disclose "[a]ll invoices, bills or statements including, but not limited to, all legal fees and expert invoices relating to all of the [City's] expenses related to the litigation of Dr. Allan L. Bergano, D.D.S. and Dr. Allan L. Bergano, D.D.S., P.C. v. City of Virginia Beach . . . known as Case No.: 2:15cv520." In response, the City provided approximately 63 pages of invoices and payment documentation from its outside counsel and approximately 16 pages of invoices and payment documentation for its expert witnesses. The City redacted most of the details, leaving only the date, name of the attorney, time billed, and the attorneys' hourly rates, as shown in the illustration below.

         (Image Omitted)

         To justify these substantial redactions, the City invoked the exceptions to disclosure under Code §§ 2.2-3705.1(2) and -3705.1(3), which shield from disclosure records that fall under the attorney-client privilege and the work-product doctrine.

         Dr. Bergano then filed a petition for a writ of mandamus seeking to compel the City to disclose its records. The City again invoked the attorney-client privilege and the work-product doctrine. At oral argument before the circuit court, an attorney for the City explained that, with litigation pending, the City was concerned about waiving attorney-client privilege or the protections of the work-product doctrine and felt compelled for that reason to err on the side of limiting disclosure. After reviewing the documents in camera, the court concluded that the records were exempt from disclosure under VFOIA. This appeal followed.

         ANALYSIS

         The issue before us is a matter of statutory interpretation. Consequently, we review the circuit court's decision de novo. Fitzgerald v. Loudoun Cnty. Sheriff's Office, 289 Va. 499, 504 (2015).

         Under VFOIA, "[e]xcept as otherwise specifically provided by law, all public records shall be open to citizens of the Commonwealth . . . during the regular office hours of the custodian of such records." Code § 2.2-3704(A). As a bookend to this broad mandate of disclosure, VFOIA further provides that "no record shall be withheld . . . unless specifically made exempt pursuant to this chapter or other specific provision of law." Code § 2.2-3700(B).

         VFOIA provides exceptions for documents protected by the attorney-client privilege and for attorney work-product. Code § 2.2-3705.1(2) exempts from disclosure under VFOIA any "[w]ritten advice of legal counsel to state, regional or local public bodies or the officers or employees of such public bodies, and any other information protected by the attorney-client privilege." Code § 2.2-3705.1(3) also exempts "[l]egal memoranda and other work product compiled specifically for use in litigation." In construing the scope of these exceptions, VFOIA provides that "[a]ny exemption from public access to records . . . shall be narrowly construed." Code § 2.2-3700(B).

         "As a general rule, confidential communications between an attorney and his or her client made in the course of that relationship and concerning the subject matter of the attorney's representation are privileged from disclosure." Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113, 122 (2010). "The objective of the attorney-client privilege is to encourage clients to communicate with attorneys freely, without fearing disclosure of those communications made in the course of representation, thereby enabling attorneys to provide informed and thorough legal advice." Id. Under the Virginia Rules of Evidence, the attorney-client privilege is "governed by the principles of common law as interpreted by the courts of the Commonwealth in the light of reason and experience." Va. R. Evid. 2:502.

         With respect to attorney work-product, this Court's Rule 4:1(b)(3) generally shields from disclosure all otherwise discoverable documents and tangible things prepared in anticipation of litigation or for trial absent a showing of substantial need and the absence of access to other equivalent sources of information without undue hardship, and expressly protects from discovery "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." "[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that [the attorney] assemble information, sift what [counsel] considers to be the relevant from the irrelevant facts, prepare . . . legal theories and plan . . . strategy without undue and needless interference." Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). Work-product is typically material "prepared in anticipation of litigation or ...


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