Department 30, Spring Street Courthouse

July 28, 2022

21STCV12122

Plaintiff’s Motion to Compel Further Deposition of Defendant’s Employee Dulce Martinez and Further Production of Documents not Produced at Deposition

The motion is granted with respect to the photographs and a further deposition regarding those photographs.

The motion is denied without prejudice with respect to the other items.

Moving party is ordered to provide notice.   

This case concerns an alleged slip and fall at a grocery store on September 28, 2020.

At issue here are an incident report, a video observation report, witness statements and five pictures taken following the incident.  These items were all created by Defendant’s employee, Dulce Martinez (“Martinez”). Defendant did not produce these items at deposition because Defendant asserts attorney-client privilege with respect to all three items.

In its opposition to the motion being considered here, Defendant continues to assert that these items are protected from discovery by the attorney-client privilege.

 

Defendant contends that five photos taken by Martinez on the day of the accident, including a photo Martinez took of Plaintiff’s driver’s license are covered by the attorney-client privilege because these photographs were incorporated into the incident report and transmitted in confidence by Martinez to Defendant’s Risk Management Department. From there, the report went on to Defendant’s insurer and then on to counsel hired by the insurer to represent Defendant in this matter.      

These photographs are not covered by the attorney-client privilege. (Suezaki v. Superior Court (1962) 58Cal.2d 166, 176-77.)

Statements of corporate employees to the corporation’s attorney are not privileged if the employee speaks as an independent witness, even if the employer requires the employee to make the statement. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 737.)

Analysis of privilege involves determination of the “dominant purpose” underlying the corporate entity’s requirement that a report be made or statement be given after the occurrence of an incident. (Ibid.) To make a communication privileged, the dominant purpose must be for transmittal to an attorney “in the course of professional employment.” (City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235.) Where it appears a statement is required of a corporate defendant’s employee for two or more purposes, one of which would bring it within the attorney-client privilege, such statement will be protected as privileged if that is determined to be the dominant purpose of making the statement in the first instance. (D.I. Chadbourne, Inc., supra, 60 Cal.2d at 733.)

Where the employer directs the employee at the request of its insurance carrier to make post-incident statement, it is the “dominant purpose” of the employer that controls. If the employer’s dominant purpose for requiring the report or statement is for transmission to the employer’s attorney, it is likely to be privileged. However, if reports and statements are prepared after all incidents/accidents and used to improve safety, for training, and/or future accident avoidance, the statement or report is probably not privileged. (Id. at 737.)

In Sierra Vista Hospital v. Superior Court (1967) 248 Cal.App.2d 359, 364, an incident report was prepared by defendant hospital after an alleged injury. (Id. at 363.) The report was typed on a form with the words “CONFIDENTIAL REPORT OF INCIDENT (NOT PART OF MEDICAL RECORD)”. The insurance company for the hospital instructed the administrator to use the form to report all incidents that might result in litigation against the hospital and send the reports to the insurance company for use by the attorney. (Id. at 365.)

The report was deemed privileged because these factors indicated that the hospital intended it to be a confidential communication to its attorney through its insurance company. (Id. at 368; see also Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529 [attorney client privilege protects reports “primarily created for the purpose of attorney review whether or not litigation is actually threatened at the time a report is made”].) The fact that the reports may contain “observational information” rather than “opinion information” does not alter the analysis. (See Mitchell v. Superior Court (1984) 37 Cal.3d 591, 601.)

Based on the information provided here, Plaintiff has not produced sufficient information to overcome the asserted privilege. Plaintiff will need to conduct further discovery regarding the facts that are determinative of the application of the privilege. 

The Court urges Defendant to consider the application of Evidence Code Section 771 before engaging in further, costly discovery.   

Evidence Code section 771 states: “(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of the adverse party and, unless the writing is so produced, the testimony of the witness concerning the matter shall be stricken…” Since ultimately, Defendant likely will want these witnesses to testify at trial or provide declarations with respect to a motion for summary judgment, as a practical matter, these items will have to be produced.