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A unanimous California Supreme Court declined to expand attorney-client privilege Monday, ruling that the right to protect documents related to Bing Crosby’s recording contracts died with the influential actor-singer in 1977. The ruling overturns an unpublished opinion by the 2nd District Court of Appeal, but affirms a Los Angeles County Superior Court judge. The case involved litigation between HLC Properties Ltd., which manages Crosby’s entertainment empire, and five recording companies, including MCA Records Inc. and Universal Studios Inc. HLC, successor to the loosely organized Bing Crosby Enterprises, had sued the companies, alleging they owed at least $16 million in underpaid royalties on recording contracts dating back to about 1943. When the companies responded by subpoenaing 59 documents, HLC claimed they were protected by attorney-client privilege. The companies countered that confidentiality ceases when an estate is closed and the decedent’s personal representative is discharged. Monday’s ruling, authored by Justice Marvin Baxter, hinged on a close reading of the California Evidence Code, which discusses the mechanics of attorney-client privilege. Because the code is straightforward on privilege ceasing when someone dies, the justices focused their inquiry on who actually held the privilege — Crosby or the loosely organized “Bing Crosby Enterprises.” The justices ruled that there wasn’t enough evidence at the trial court to claim Enterprises held the privilege. They also determined that the privilege transferred to the executor of Crosby’s estate, not HLC. “Were we to adopt HLC’s position, the attorney-client privilege of natural persons would survive distribution of their estates and would extend to persons and entities beyond their personal representatives,” Baxter wrote. Doing that, the justices agreed, would nullify the Evidence Code section that provides a “specific limitation on who may hold the privilege ‘if the client is dead,’” according to the opinion. The case, HLC Properties v. Superior Court [MCA Records], 05 C.D.O.S. 1324, was argued last month by Irell & Manella partner Steven Marenberg, who represented MCA, and Los Angeles solo Mark Brodka and Girardi and Keese partner Howard Miller, who represented HLC.

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