Insurance: Party Claiming Brandt Fees As Damages Impliedly Waives Attorney-Client Privileges As To Some Fee Information

However, Appellate Court Indicated Some Redactions Were In Order And No Bifurcation Was Required As To Liability Versus Reasonableness Of Fees.

               Byers v. Superior Court, Case No. A169321 (1^st Dist., Div. 5 May 7, 2024) (published) posed this issue and answered it:  Does a party seeking attorney’s fees as damages under Brandt v. Superior Court, 37 Cal.3d 813, 819 impliedly waive the attorney-client privilege with respect to producing fee agreements, invoices, billings, and payment information where the fees are claimed as damages?  Answer:  generally, yes.

               However, the opinion needs to be read carefully on this issue, given it is also circumspect in some nuances of the subject matter under consideration.  It decided that there is no automatic right of bifurcation of a right of liability versus reasonableness of fees on Brandt issues.  Just as important, the appellate court did not disagree that redactions could be made when producing privileged information to the extent non-Brandt fees were at issue.