My five years of work on the defense side opened my eyes to a few things:  first and foremost, I learned I am a plaintiff’s attorney; but during my time on the “other side,” I also learned a great deal about how things are generally done in defense firms.  One particular thing I came to know is exactly how liberally many defense attorneys apply privilege when it comes to reports and other correspondence generated by their clients subsequent to an injury. 

Whether under the guise of attorney-client privilege or under the scope of the attorney work product doctrine, defense attorneys regularly assert privilege over their client’s post-incident reports and internal communications by explaining that they were “prepared in anticipation of or in response to litigation.” These documents usually contain a wealth of information concerning the details of an incident and, more often than not, they contain key admissions or assignments of blame that would prove invaluable to an injured party in the prosecution of a case against the company.

Unfortunately, these documents are often withheld during initial rounds of discovery due to assertions of privilege. This article will outline what reports and communications actually qualify as privileged and will also provide some suggestions on how to learn what reports are actually out there in your cases.

Definition of Privilege

Before examining the rules used to determine whether a party should be entitled to claim privilege over specific reports and documents, it is helpful to have a working definition of attorney-client privilege and the attorney work product doctrine.

The attorney-client privilege applies to communications (a) between a client and his or her lawyer, (b) in the course of that relationship and (c) in confidence, that is communications  not disclosed to third persons other than those who further the interest of the client in the consultation. Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1521-1522; see, also, Evidence Code §§950-962 for specific definitions relating to the attorney-client privilege.

Code of Civil Procedure §2018.030 defines attorney work product as “a writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories” and establishes that such work product “is not discoverable under any circumstances.” California courts have extended work product to include “material of a derivative character, such as diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial.”  Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.

Extension of Privilege to Incident Reports and Internal Communications

The California Supreme Court established eleven principles to be applied in determining whether the attorney-client privilege exists in a corporate setting in D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 736-738.  The Court observed that when a corporate employer requires that its employees make a report, the privilege of that report is determined by the employer's purpose in requiring the report.  If the primary purpose is to gather information to be used by attorneys to assist in the evaluation of potential future litigation, the information should be protected by privilege.  When the corporate employer has more than one purpose in requiring the report, the dominant purpose will control. Id.

A lawsuit does not need to be filed in order for communications to be privileged.  Rather, privilege applies even if litigation is only “a threat on the horizon.” Soltani-Rastergar v. Superior Court (1989) 208 Cal.App.3d 424, 428.

Applying Chadbourne, the court in Sierra Vista Hospital v. Superior Court (1967) 248 Cal.App.2d 359 found that privilege extended to reports when an insurance company instructed a hospital administrator to use a form to report all incidents that might result in litigation against the hospital and to send the reports to the insurance company for use by the attorney representing the hospital in the event of litigation.

In Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, the court extended the Sierra Vista Hospital ruling to protect documents generated by a self-insured hospital as part of an internal risk management program. The court found that by virtue of the hospital’s self-insured status, the hospital’s risk managers were “de facto insurance claims handlers” and that their reports were protected from discovery.

It is important to note that the Scripps Health court also discussed the requirement that the communications remain confidential and that the failure to do so voids the protections of privilege. Id. at 536. Consequently, if an otherwise confidential report is forwarded to other employees for purposes other than the potential defense of a suit, the privilege may be waived.

Courts have also ordered reports produced when the primary purpose is not clearly defined. In Doe 2 v. Superior Court (2005) 132 Cal.App.4th 1504, the court took issue with the fact that a pastor sent a letter to her superior with the “expectation” that it would get forwarded to the attorney.  Citing the rule that the party asserting privilege bears “the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege,” the court found that the church failed to meet its burden and affirmed the trial court order to produce the letter.

Gathering Information That May Lead to Production

A request for production might seem like the best way to get reports, but if the response is nothing more than an objection, you haven’t gained much.  Instead, consider drafting interrogatories specific to the reports you believe were likely generated. Yes, Form Interrogatories 12.1, 12.3 and 12.6 do ask for this information, but they are a bit broad and usually generate the same privilege objections we’re trying to avoid. 

In order to at least learn what information is out there, get specific details about the documents you believe were generated without actually asking for privileged information.  Privilege does not protect “independent facts related to a communication: that a communication took place, and the time, date and participants in the communication.”State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640. So, in addition to asking for the documents themselves in a request for production, ask questions like:

1. “Please identify each report or form employees are required to prepare after witnessing or being involved in an incident.” Here, you are not asking for the actual reports generated in response to the incident, so there should be no ability to assert privilege over this general information.
   
   
2. “Please state the purpose you have for requiring employees to prepare each report.” An unwitting defense attorney’s casual response to this question may open the door to discovery of otherwise privileged reports if the answer fails to establish the primary purpose as a communication to attorneys for evaluation of potential liability.
   
   
3. “Please identify each employee who actually did prepare any form of incident report or witness report in response to the subject incident.” Again, the identity of reporting employees and witnesses shouldn’t be subject to objection.
   
   
4. “Please identify each report actually prepared by any employee as a result of the subject incident by listing the author, the recipient(s), the date and general description of the subject matter of the report, and the length of the report.” This request is essentially requesting the preparation of a privilege log, which is required by C.C.P. §2031.240(b), but the requirement is frequently overlooked by attorneys responding to written discovery.  Ask for the log during your first round of discovery and you won’t need to ask for one later.
   
   
5. “With respect to each report actually prepared, please identify each person that reviewed the report and the purpose for that review.” Based on Scripps Health, if the report was forwarded to a person outside of risk management or the legal department for a purpose other than analysis of potential litigation, confidentiality is waived and the document should be produced.

These same questions can be modified for manufacturers’ internal reporting guidelines after being put on notice that a product has caused an injury.

Perhaps more important than asking these questions is actually reading the responses in detail and in time to preserve your ability to compel further responses.  If a motion to compel is necessary, you may not have enough information to overcome the defense’s efforts to assert privilege over specific documents, but you are most certainly entitled to learn the details about the reporting procedures and the documents that actually were created. 

Once you actually receive information responsive to these inquiries, you should be in a much better position to draft specific requests for production and to depose witnesses involved in the reporting process that may not have otherwise been identified in response to generic discovery requests.  Good hunting!