Discovery of Documents and Attorney-Client Privelege Log


City of Fresno v. WCAB (Tristan) (W/D) (80 CCC 178):


Applicant filed 14 separate applications alleging she had suffered various industrial injuries to various body parts and systems while employed by defendant.


Applicant also filed a petition pursuant to Labor Code 132 and an EEOC complaint, which resulted in a right-to-sue letter. Applicant had not filed a discrimination-based suit against defendant.


Applicant issued a subpoena and defendant produced 673 pages of discovery records. Applicant declared that the “attorney-client privilege documents had been withheld. Defendant submitted no privilege log regarding the documents that had been withheld.”


The matter proceeded to hearing on the discovery issue. The WCJ indicated the discovery issue primarily involved stress, psyche and internal.


The WCJ issued a two-page discovery order that, among other things, directed a Human Resource Analyst employed by defendant to appear for a deposition on a stated date and on other dates that could be coordinated between the parties.


Subsequently the WCJ ordered a second deposition (of the same person) to be conducted in the WCAB’s presence. WCJ also ordered the production of certain witness statements. The Human Resource Analyst had obtained the related statements for applicants EEOC complaint.


According to the WCJ, the EEOC complaint asserted that the applicant had been treated differently because of applicant’s disability and that applicant had been subjected to harassment and different treatment by supervisory personnel and reassigned to a different position.


Defendant filed a petition for reconsideration from the second discovery order.


The WCJ recommended defendant’s petition for removal should be denied because defendants had not sought removal from the first discovery order. The WCJ noted that the events related to applicant’s EEOC complaint occurred in the same. As the applicant’s workers compensation claim of injury had occurred.


The WCJ added that the deposition had been scheduled and begun although it was without any benefit to the applicant. This is because defendant had maintained that most of the subject matter was protected by either the attorney-client privilege or the attorney work product doctrine.


The WCJ also indicated the defendant had not been forthcoming in response to applicant’s efforts through correspondence and subpoena to produce reasonably identified documents needed for discovery.


As to the claim that the witness statements were attorney-client work product or entitled to the attorney-client privilege, the WCJ indicated that the witness statements were requested by the Human Resource analyst and thus there was no evidence of attorney involvement in the production of the statements. Therefore the statements would not fall under the categories of either attorney work product or attorney-client privilege. In addition, the WCJ indicated that obtaining the statements in anticipation of litigation would not qualify them for the privilege.


The WCJ also indicated that the defendant had waived any objection by not filing a petition for removal from the first discovery order and that the second discovery order covered essentially the same subject matter. T herefore the waiver would apply.


The WCJ acknowledged that defendant had produced 673 documents in response to a subpoena, but also noted that the custodian of records indicated the sum of the documents were withheld, yet no privilege log was prepared or produced, even though privilege had been claimed. The WCJ indicated those documents had been improperly withheld and should be produced immediately since no privilege log was produced.


The WCJ further indicated that applicant was entitled to discovery of documents that are reasonably calculated to lead to admissible evidence and that the administration of the workers compensation case should accomplish substantial justice without encumbrance of any character. The WCJ concluded that defendant’s actions of not providing discovery and not following reasonable and appropriate judicial orders was a serious encumbrance to the applicant.


The WCAB denied removal and adopted the WCJ’s report without further comment on the issues.


Defendant filed a writ of mandate contending that applicant was not entitled the statements taken by defendant in preparation for the defense of applicant’s potential EEOC claim against defendant. Defendant also contended that the statements and documents were prepared pursuant to the request of the defendant city attorney’s office and therefore the work done by the analyst was protected by the work product doctrine since the work was created in anticipation of litigation. Defendant also contended that the analyst was defendant’s agent and the defense attorney had directed the preparation of the report statements and other materials related to the EEOC complaint and that her work was therefore protected by the attorney-client work product privilege.


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