4-3-25 24SMCV02930 Cohen MTC Further Production of Defendants Recorded Statement

Plaintiff Jonathan Cohen's Motion to Compel the Production of the Defendant’s Recorded Statement is GRANTED. Defendant’s objections to the production of the recorded statement are overruled. Plaintiff’s request for sanctions is denied. 

Plaintiff moves to compel the production of Defendant's recorded statement apparently taking by defendant’s insurance adjuster.  Defendant objects to the production of her recorded statement on the grounds that recorded statement is protected from disclosure under the attorney client privilege and work product doctrine.  The Court agrees statements made by an insured to an adjuster for its insurer for the sole purpose of defending against claims can be protected by the attorney-client privilege from discovery even though litigation “was only a threat on the horizon” and attorneys had not yet been selected to try to avert or meet that threat. Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424. However, “[t]he party claiming privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.” (D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729; See also Coitto v. Superior Court (2012) 54 Cal.4th 480, 499-500 (Party asserting privilege “must make a preliminarily or foundational showing in support of the claim.”).)  Here, Defendant acknowledges the existence of the recorded statement and argues the statement is privileged. However, Defendant does not offer any evidence regarding how that statement was obtained, the purpose for obtaining the statement, or any other  foundation establishing any privilege applies to that recorded statement. Moreover, Plaintiff argues any such privilege was waived by the Defendants voluntarily disclosure of the contents of that statement in a arbitration proceeding with a third party. (Cohen Dec. §11, Ex 4.)  In its opposition,  Defendant does not deny the statement was disclosed in the third party arbitration or otherwise address why the privilege applicable to that recorded statement, if any, was not waived.  The Court finds Defendant has failed to meet its burden to show the recorded statement is protected by the attorney client privilege or work product doctrine.  Further the Court agrees Defendants’ apparent voluntary disclosure of that statement in the third party arbitration waived any privilege applicable to that statement.  ( See e.g. Coitto v. Superior Court (2012) 54 Cal.4th 480, 500 (“We do not disturb the trial court’s conclusion that the state waived the work product privilege as the the recording used to examine a witness during the January 27, 2009 deposition.”)