## Facts

- A deputy public defender represented a murder defendant and delivered to the court an envelope containing estate-related documents associated with the alleged victim.
- The prosecution sought discovery about how defense counsel obtained the items, including who delivered them and the time, place, and manner of delivery.
- Defense counsel refused to answer, asserting attorney-client privilege and claiming the items were delivered through unidentified “agent or agents” of the client.
- The trial court offered to receive information in camera to support the claimed agency relationship, but counsel declined to provide concrete supporting evidence.
- The trial court rejected the privilege claim and held counsel in direct, continuing contempt for refusing to answer the discovery questions.
- Counsel sought writ relief to prohibit enforcement of the order and overturn the contempt adjudication.

## Issues

1. Whether counsel’s unsupported assertion that physical evidence was delivered through a client’s “agents” establishes a prima facie basis for attorney-client privilege covering the circumstances of delivery and counsel’s related observations.
2. Whether the trial court lawfully held counsel in direct, continuing contempt after ordering her to answer discovery questions once the privilege claim was rejected.

## Decision

- The court denied writ relief and upheld the contempt adjudication.
- The court held that a bare claim of agency, without evidentiary support, did not establish the foundational facts necessary to invoke the attorney-client privilege.
- Because the privilege was not shown to apply, the trial court’s discovery order was lawful; refusal to comply supported direct, continuing contempt.

## Legal Principles

- The party asserting attorney-client privilege bears the burden of proving the preliminary facts necessary to establish the privilege’s application.
- Privilege protects confidential attorney-client communications and, in limited circumstances, counsel’s observations that are consequences of protected communications, but not underlying facts or information available from independent witnesses.
- When privilege is claimed based on communications through an agent, an agency relationship must be supported by evidence; conclusory assertions do not suffice.
- A lawful discovery order compelling answers after a failed privilege showing may be enforced through contempt sanctions when the witness persistently refuses to comply.

## Conclusion

The court ruled that attorney-client privilege could not be used to block discovery into the circumstances by which defense counsel received physical evidence when counsel offered no evidence establishing that the deliverers were authorized client agents, and it affirmed the resulting contempt order for noncompliance with a lawful discovery directive.


Zimmerman v. Superior Court, 220 Cal. App. 4th 389 (Ct. App. 2013)