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Wellpoint Health Networks v. Superior Court

Court of Appeal of California, Second Appellate District, Division Four

November 13, 1997, Decided

No. B110436.


 [*114]  BARON, J. 

In this case we are asked to resolve [**2]  two issues: (1) whether a law firm's prelitigation investigation into the circumstances surrounding the claims of an employee who may have suffered discriminatory treatment is protected by the attorney-client privilege and/or the attorney work product doctrine, and (2) if so, whether the employer waives these protections when it raises the investigation as a defense to the employee's ensuing discrimination lawsuit. The trial court ruled that a prelitigation investigation of an employee's discrimination claims did not result in attorney-client communications or attorney work product and so did not reach the second issue. After review of the record, we conclude that no substantial evidence supports the trial court's ruling concerning the inapplicability of the privilege and the work product doctrine. We further hold that resolution of the waiver issue is dependent on the claims asserted in the complaint and the defenses raised thereto. As there was neither a complaint nor an answer on file when the trial court made its ruling, the order compelling discovery was premature. We, therefore, instruct the trial court to vacate its order requiring production of the investigative files prepared [**3]  on behalf of petitioners. We do this without prejudice to the employee's ability to bring a motion to compel production of the subject documents at a later stage in the proceedings.


The Complaint and Initial Discovery 

Real party in interest Barry McCombs brought a complaint against defendants Wellpoint Health Networks, Inc., Blue Cross of California, and Craig  [*115]  Plassmeyer. He alleged that he was employed by Blue Cross since 1987. He reportedly received several merit increases, outstanding performance reviews, and a promotion, but was denied a further promotion in May of 1994 despite the recommendation of his immediate supervisor. According to the complaint, when McCombs tried to find out why, he was given no satisfactory answer and came to the conclusion that it was due to racial discrimination. Defendant Plassmeyer was an independent contractor brought in to supervise McCombs's department around this time. McCombs believed Plassmeyer was responsible for the failure to obtain the promotion.

In a separate incident in 1994, McCombs complained about inadequate disclosures to potential investors when Wellpoint spun off from Blue Cross. At the same time,  [**4]  he continued to bring up his suspicions about racial discrimination and went to the human resources department with his concerns. Ultimately, he filed a formal charge with the Department of Fair Employment and Housing (DFEH). Thereafter, according to the complaint, McCombs began to receive negative performance reviews and was "singled out, harassed and maligned." He "became a marked man" and ". . . Plassmeyer became verbally abusive with McCombs and sought to undermine McCombs' credibility with his peers and with management."

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59 Cal. App. 4th 110 *; 1997 Cal. App. LEXIS 921 **; 68 Cal. Rptr. 2d 844; 75 Fair Empl. Prac. Cas. (BNA) 706; 97 Cal. Daily Op. Service 8639; 97 Daily Journal DAR 13991


Prior History:  [**1]  Superior Court of Los Angeles County. Super. Ct. No. BC138067. Mary Ann Murphy, Judge.

Disposition: The alternative writ is discharged and the stay is dissolved. Let a peremptory writ of mandate issue directing the respondent trial court to vacate its order of March 5, 1997, to the extent that it requires petitioners to produce all documents pertaining to the Lafayette law firm's prelitigation investigation of McCombs's complaint of discrimination, and to enter an order requiring petitioners to prepare a privilege log pursuant to section 2031, subdivision (f)(3) of the Code of Civil Procedure. Should defendants waive the attorney-client privilege or the protections of the work product doctrine in their answer or otherwise, the motion to compel may be renewed and resolved in accordance with the views expressed in this opinion. Costs to petitioners.


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Evidence, Privileges, Attorney-Client Privilege, General Overview, Legal Ethics, Client Relations, Duties to Client, Duty of Confidentiality, Civil Procedure, Privileged Communications, Work Product Doctrine, Discovery, Methods of Discovery, Inspection & Production Requests, Scope, Attorneys, Criminal Law & Procedure, Counsel, Right to Counsel, Waiver of Protections, Waiver, Pleading & Practice, Motion Practice, Supporting Memoranda, Business & Corporate Compliance, Employee Privacy, Disclosure of Employee Information, Personnel Files, Labor & Employment Law, Exceptions, Harassment, Sexual Harassment, Correction & Prevention, Government Privileges, Wrongful Termination, Defenses, Discrimination, Title VII Discrimination