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By Peter Yoon

The field of workers’ compensation is its own unique animal in the legal world. Many of the procedures and evidentiary rules that dictate civil lawsuits do not apply in workers' compensation. Generally, open discovery is encouraged in workers’ compensation to facilitate agreements. However, the statutory privileges, such as, attorney client privilege (Evidence Code 954) and attorney work-product privilege (CCP 2018.030) do apply.

The attorney-client privilege confers a privilege on a client to refuse to disclose and to prevent another from disclosing confidential communications between client and lawyer. (California Evidence Code section 954). The attorney-client privilege attaches to a confidential communication between the attorney and client and bars discovery of the communication irrespective of whether it includes unprivileged material. Attorney-client privilege is the most robust privilege in California Evidence law. The only circumstances in which the privilege does not apply is when the client is seeking legal assistance in carrying out crime or fraud, or if the attorney believes that the disclosure of the confidential communication is necessary to prevent death or substantial bodily harm. These two ethical concerns are the only exceptions to the attorney-client privilege.

The attorney work-product privilege is set forth in California Code of Civil Procedure 2018.010 et seq. Its purpose is to allow attorneys to "prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases" (CCP 2018.020(a)) and to "[p]revent attorneys from taking undue advantage of their adversary's industry and efforts" (CCP 2018.020(b)). An absolute privilege is given to writings that reflect "an attorney's impressions, conclusions, opinions, or legal research or theories" (CCP 2018.030(a)). Such writing is not discoverable under any circumstances. There is qualified protection for all other work product. The material "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice" (CCP 2018.030(b)).

The issue of privilege has been litigated throughout the years in workers' compensation. Many attorneys have argued over whether the applicant or employer/claims adjuster is entitled to claim notes, investigation reports, witness statements, and/or other documents. In general, the WCAB and California Supreme Court have found most of these types of documents were discoverable.

In Winchell's Donut House v. W.C.A.B., the Board upheld a judge's order compelling the defendant to produce records. (62 Cal.Comp.Cases 1185). The Board found the defendant's claims adjuster's notes were not within the attorney-client privilege, although they may have been used in attorney consultations. The Board held the notes were subject to discovery by an applicant even though they were prepared for the purposes of defending against the claim and contained statements made by the policyholder to the insurer, as well as the personal observations of the claims adjuster.

Furthermore, information gathered by an investigator or by a claims adjuster before counsel was retained is not protected by the attorney work-product doctrine. The attorney work-product privilege would not apply as the information was not gathered by an attorney to prepare for litigation.

However, in Coito v. The Superior Court of Stanislaus County, the California Supreme Court held witness statements obtained as a result of interviews conducted by an attorney constituted work product protected by CCP 2018.030. (54 Cal. 4th 480). The Court did curtail this privilege by ruling witness statements procured by an attorney were not automatically entitled as a matter of law to absolute work product protection. The Court ruled such statements, as a matter of law, were entitled to at least qualified work product protection. Id. at 486.

A key distinction to remember is, although a communication between attorney and client is provided absolute protection, the actual subject matter may not be and could be discoverable through other means. Speaking about a subject with an attorney does not make the subject itself non-discoverable.

If the applicant makes a request for the claim notes or other documentation, the documents should be forwarded to the attorney for review. If there is any particular document or information you believe to be sensitive, these should be noted in order for the attorney to determine whether a privilege protects that information from disclosure. Any privilege information should be redacted, and a privilege log should be prepared with enough information to determine what information was redacted and what the claimed privilege is. Working closely with the attorney will help prevent disclosure of privileged information while participating in the open discovery necessitated in the workers' compensation system.


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