California Governor Jerry Brown has signed a Proposition 65 reform bill that amends the statute to make the contents of a private plaintiff’s basis for its Certificate of Merit discoverable to the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.
The amendment also requires the Attorney General to send a letter to the private enforcer and the recipients of the 60-day notice when the Attorney General has reviewed the certificate of merit and determined that there is no merit to an action.
The amendment to the statute under AB 1583 will take effect on January 1, 2018.
The amendment address ambiguity in the current statute, which provides that the factual basis of a certificate of merit is not discoverable unless it is relevant to the subject matter and otherwise discoverable.
This language has resulted in most private plaintiffs taking the position that the basis for the certificate is never discoverable. The amendment brings clarity to language that was murky at best. Going forward defendants will have a prima facie right to seek discovery of the factual basis of the certificate. The citizen enforcer would carry the burden of justifying any privilege or attorney work product objections, as is the case when privilege is asserted in other situations.
While the Attorney General has seldom published opinions on the question of whether a Certificate of merit, is not meritorious, and the criteria used by the Office of the Attorney General is unclear, it remains to be seen what impact this provision may have.
Assemblyman Chau’s bill was widely accepted by the regulated community and faced no organized opposition.