A defense attorney's unauthorized reading and dissemination of a crime victim's mental health records violated her constitutional right to privacy. A California court declined to allow the attorney to assert the litigation privilege as a shield for liability.

Attorney Philip Israels represented a defendant charged with sexual battery. He subpoenaed the victim's mental health records, and the clinic mistakenly sent the records directly to the attorney instead of the court. Attorney Israels read the records and transmitted them to the defense psychiatrist, who used them in cross-examining the victim. The woman alleged she suffered extreme emotional distress and sought damages on theories of abuse of process, infliction of emotional distress and invasion of privacy.

The trial court dismissed her complaint and she appealed, arguing that the California Constitution protected her right to privacy, and she had a legally protected interest in her mental health records. The victim protested that she did not lose her right to privacy because she charged the defendant with sexual battery.

Attorney Israels argued that the woman did not have a reasonable expectation of privacy because her records would have been discovered during litigation. He reasoned that a "mere reading" of the records did not constitute a serious invasion of privacy. Furthermore, he argued, his purpose in reading the records was for the purpose of gathering evidence to be used in litigation. Therefore, the litigation privilege protected his actions.

The Court upheld the woman's right to sue the attorney, noting that the victim did not place her mental health in issue during the sexual battery trial, and there is nothing inevitable about the discovery of her records. In addition, the Court noted that the attorney engaged in more than a "mere reading" of the records. He passed them on to his expert, a total stranger to the woman. Furthermore, the litigation privilege did not extend to bar suit for personal injuries arising from noncommunicative conduct that occurred during a judicial proceeding.