Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Evidence or Privilege?

In a writ proceeding, the Fourth Appellate District of the Court of Appeal was presented with two issues.  First, do the attorney-client privilege, the absolute work product doctrine, and California Evidence Code section 915 (section 915) governing privilege apply to workers’ compensation administrative proceedings?  Second, did the Workers’ Compensation Appeals Board (WCAB) act improperly by ordering a party to produce documents claimed to be privileged to be submitted to a special master for assessment of the privilege claim merits?

The Court of Appeal concluded section 915 applies to workers’ compensation proceedings.  Since section 915 prohibits tribunals from ordering a party to submit claimed privilege documents for review as to whether or not the documents are indeed privileged, the WCAB was in error in ordering such documents to be submitted to a special master for in camera review.  The Court also clarified a waiver of privilege claim, and resolved an apparent conflict between California Labor Code section 5708 (section 5708) and section 915 regarding evidence and privilege. (The Regents of the University of California et al. v. Workers’ Compensation Appeals Board and Shirley Lappi (2014) 226 Cal. App. 4th 1530, 2014 Cal. App. Lexis 530.)

A discovery dispute arose in this workers’ compensation case when the defendant Regents and its claims agent refused to produce certain documents in the claims file they determined were privileged under section 915 after the date they retained counsel in the matter.  The matter went before a workers’ compensation judge (WCJ). The WCJ ordered the defendant to produce the disputed documents for an in camera review to determine if the documents were actually privileged.  The defendant apparently did not formally object, and the documents were turned over to the judge. (Id. at 1532-33.)  The WCJ returned the documents and ordered any unprivileged material be turned over to plaintiff’s counsel, and for the defendant to prepare a privilege log with dates for any withheld documents.  The parties again could not agree on which documents were privileged, and again a request was made for in camera review; the defendant this time objected to the review.  The WCJ ultimately ruled several documents were not privileged and the defendant then appealed to the WCAB.  The WCAB returned the matter to the WCJ to appoint a special master to conduct an in camera review and report findings to the parties and the WCJ, whereupon the WCJ would issue a new decision.  A petition for writ of review was then filed with the Court of Appeal by the defendant. (Id. at 1533-35.)

Section 915(a) provides that a presiding officer may not require disclosure of information claimed to be privileged, or claimed to be attorney work product under subdivision (a) of section 2018.030 of the Code of Civil Procedure in order for the officer to rule on the claim.  Had the case been an ordinary civil case, an in camera review would not be permitted. (Id. at 1536, citing Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 736-740.)  In addition, the California Supreme Court concluded an in camera order issued by the Public Utilities Commission was in conflict with section 915. (Id., citing Southern Gas Co. v. Public Utilities Com. (1990) 50 Cal.3d 31, 45, fn 19.)

Not surprisingly, the plaintiff claimed the defendant had waived any privilege by producing documents in response to the first in camera review order. Defendant pointed out that waiver must be voluntary and without coercion, according to Evidence Code § 912(a).  The Court agreed, and ruled compliance with the WCJ’s order did not amount to a voluntary waiver of privilege. (Id., citing Regents of University of California v. Superior Court (2008) 165 Cal. App. 4th 672, 675.)

Plaintiff also cited Labor Code section 5708, which gives the WCAB authority to review testimony and records to determine substantial rights of the parties, plus authority to adopt its own rules of practice and procedure in hearings.  Furthermore, according to section 5708, the WCAB is not bound by common law or statutory rules of evidence and procedure.  The plaintiff argued this statute authorizes the WCAB to disregard Evidence Code section 915. (Id. at 1536.)

Not so fast, said the Court of Appeal, when it comes to the treatment of privileged information.  Division 8 of the Evidence Code specifically applies to “any action, hearing, investigation, inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body or any other person authorized by law) in which . . . testimony can be compelled . . .  .“ (Id. at 1537, citing Evid. Code § 901.)  In addition, Evidence Code section 910 overrides any other statute which could be viewed as limiting the rules of evidence generally by stating ‘“the provisions of any statute making rules of evidence inapplicable in particular proceedings, do not make this division inapplicable to such proceedings.”’ (Id., citing Evid. Code § 910, italics added.)  The Court went on to state that it is well settled ‘”a more specific statute controls over a more general one . . .  .”’ (Id., citing Lake v. Reed (1997) 16 Cal.4th 448, 464.)

The Court concluded the WCAB is free to adopt rules of practice and procedure which may ignore the “rules of evidence” but is bound by statutory requirements regarding privilege found in Evidence Code division 8, including section 915. (Id. at 1537.)  The discovery dispute was remanded back to the WCAB to resolve the discovery dispute without any requirement the documents be submitted for in camera review.

– Peggy S. Onstott 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**