Judge: Mark H. Epstein, Case: 23SMCV02091, Date: 2023-11-03 Tentative Ruling

Case Number: 23SMCV02091    Hearing Date: November 3, 2023    Dept: I

This is a motion to compel further.  Plaintiff seeks two documents: one is a video of the accident and the other is an incident report.  As to the former, defendant has agreed to provide it but only subject to a confidentiality agreement.  The court is not sure how such a document is confidential and defendant has not so established.  The court therefore GRANTS the motion as to the video. 

As to the incident report, defendant contends that the report is protected by the attorney/client privilege or attorney work product doctrine, citing Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529 and Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424.  The court agrees that an interview of the insured done at the direction of counsel or for counsel’s use primarily is generally privileged.  The court also agrees that a report done by the carrier for counsel’s use is generally privileged and generally need not be produced.  The court disagrees that this is actually just a witness statement.  Where the “witness” is the insured who will be represented by the attorney for who’s use the interview was held, it is a statement by the client to counsel, albeit indirectly.  Nor is the court in agreement that the lawyer must conduct the interview or even have been retained.  The carrier was aware of the litigation or potential litigation.  The fact that its employee conducted the interview for the primary purpose of providing it to counsel does not put it outside the privilege.  Two things, though.  First, defendant must at least log the document and provide sufficient information to allow plaintiff to determine whether to challenge the assertion.  The statement is not unquestionably privileged; it depends on the specific facts here, and the log will need to set them out.  The court does not know that such a log has been produced.  The court also warns defendant that the log must be sufficiently detailed to establish the prima facie privilege or protection.  Defendant will not be able to supplement the log in opposition to a motion to compel to the extent a prima facie showing has not been made.  Second, there is at least an argument to be made that when the person verifying the responses chose to rely on the incident report to set forth the information in the response, any privilege or protection might have been waived.  The court is not so holding—more information would be needed.  But what would be a problem is for someone knowing nothing to verify responses based solely on a privileged document and then attempt to maintain the privilege.  That is a subject for another day, but the parties ought to keep that in mind.

For now, though, the motion as to the incident report is DENIED so long as the log is produced within 10 court days.  The 45-day clock will re-start once the log is produced, during which time plaintiff may seek to compel production of the incident report on the basis that the prima facie showing is insufficient to establish either the attorney/client privilege or some form of work product protection.  If no log is produced within the amount of time set forth, then the incident report must be turned over as the privilege will be deemed waived.