California Evidence Code Privilege Statutes Apply In Workers’ Compensation Proceedings.

At some point in a workers’ compensation proceeding, the injured worker noticed the deposition of the claims adjuster and requested unprivileged documents. The employer produced a privilege log, identifying certain documents contained in the claims file as exempt from disclosure under “one or more privileges recognized by California Evidence Code.” At the claims adjuster’s deposition, no documents dated after the employer initially retained counsel were produced. The workers’ compensation judge [WCJ] got involved, and thereafter, the employer prepared a more complete privilege log, specifically identifying which privilege was claimed. Still, matters did not resolve as to 47 documents, and the case went to trial, and the WCJ concluded that only 11 of the documents were protected from disclosure. The Workers’ Compensation Appeals Board [WCAB] rescinded the WCJ’s order, concluding a special master should conduct an in camera review of the documents, after which the WCAB ordered the WCJ to “issue a new decision.” The employer petitioned for extraordinary relief, and the Court of Appeal concluded the California Evidence Code statutes governing privilege are applicable in workers’ compensation proceedings, and “Evidence Code 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.” The WCAB’s decision was annulled. (The Regents of the University of California v. Workers’ Compensation Appeals Board (Cal. App. Fourth Dist., Div. 3; June 17, 2014)226 Cal.App.4th 1530, [173 Cal.Rptr.3d 80].)