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Jun 30 2014

Evidence Code Actions Regarding Privilege Apply to Workers Compensation Proceedings

Evidence Code § 915 expressly prohibits a tribunal from ordering a party to produce documents for review as a means of determining the validity of a claimed privilege, they also conclude the WCAB erred in this case by ordering that documents which petitioners contend are privileged, must be produced to a special master.

Regents of the University of California v. WCAB (Lappi) (Published) (____CCC____):

A dispute arose over a request by applicant for inspection of documents for which defendant objected based on a claim of attorney-client privilege.

The University prepared a privilege log, in which it identified 205 documents it claimed were privileged, identifying attorney-client privilege, confidential communications, and work product as the applicable privileges. Applicant then objected to the University’s designation of 49 of those listed documents, claiming they do not represent communications between there office and there client and, therefore, cannot be protected by attorney-client privilege. The objection made no reference to attorney work product.

As the parties were unable to resolve this discovery dispute, the case went to trial before a WCJ on that issue. The idea is that I’m not supposed to have any guess anymore The WCJ concluded that only 11 of the 49 disputed items, which were identified as communications with counsel, were protected from disclosure.

The University filed a petition for reconsideration of the WCJ’s order before the WCAB. Applicant opposed the petition, and the WCJ recommended the petition be denied.

The WCAB issued orders dismissing the petition for reconsideration and granting removal of the issue to itself on its own motion. On the merits of the dispute, the WCAB noted that if the disputed documents do not refer to an attorney’s communications, they may not be protected by the attorney-client privilege. Moreover, if a note with an action plan does not refer to an attorney’s impressions, it is difficult to see how the action plan would fall within the work product doctrine.” However, the WCAB explained that it is not clear from the testimony at trial or from the petition whether the notes sought actually summarize or refer to attorney communications.” Given this dearth of concrete information, the WCAB concluded the WCJ’s decision requiring production must be rescinded and that the best course is to return the matter to the WCJ so that she may appoint a special master who would conduct an in camera review of the disputed documents and to provide that report to the parties and to the WCJ. After the special master’s report was presented to the WCJ and the parties, and any further issues addressed, the WCJ was directed to issue a new decision.

Defendants filed a writ with the Court of appeal. The Court of Appeal granted the defendants writ and concluded that the Evidence Code statutes governing privilege are applicable in workers’ compensation proceedings.

Because Evidence Code section 915 (section 915) expressly prohibits a tribunal from ordering a party to produce documents for review as a means of determining the validity of a claimed privilege, they also conclude the WCAB erred in this case by ordering that documents which petitioners, The Regents of the University of California (the University) and its claims agent Sedgwick Claims Management Services, Inc. (Sedgwick), contend are privileged, must be produced to a special master.

They returned the case to the WCAB with directions to resolve the privilege dispute without any requirement the documents be subject to a preliminary review.

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