California: Limitation on Use of In Camera Review

I. Intent of the Discovery Process

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The discovery process is intended to be liberally construed in favor of the person seeking information. Of course, that information must be “relevant to the subject matter involved” or appear to be “reasonably calculated to lead to the discovery of admissible evidence.” (See Code of Civil Procedure § 2017.010.)

However, there are limitations. The process may not be used as a fishing expedition or to harass the opposing party. In addition, it may not be used to illegally invade a parties’ right of privacy or to violate a privileged communication. It is this latter category that has recently caused a flurry of activity in the workers’ compensation forum.

II. The Privilege Doctrine Applies in Workers’ Compensation Court

In workers’ compensation cases, judges are not bound by the statutory rules of evidence (Labor Code § 5708). This has led many practitioners to mistakenly argue that due to the informal nature of these proceedings, the WCAB is not required to protect a party’s right to refuse to produce documents subject to one of the statutory privileges. This position is contrary to statute (Evidence Code § 910) and prevailing case law.

Division 8 of the Evidence Code codifies all types of privileged relationships, such as the lawyer-client privilege (Evidence Code § 952); the spousal privilege (Evidence Code § 980) and the doctor-patient privilege (Evidence Code § 994). In judicial forums where the statutory rules of evidence are not mandatory (such as workers’ compensation court), Evidence Code § 910 provides that the privileged communications referred to in Division 8 are, in fact, applicable to the workers’ compensation court. Evidence Code § 910 specifically states: “… the provisions of this division [Division 8] apply in all proceedings. …any statute making rules of evidence inapplicable in particular proceedings… do not make this division inapplicable to such proceedings.” (Emphasis added.)

The attorney work-product privilege (Code of Civil Procedure § 2018.030) is not covered under the inclusion statute of Evidence Code § 910 cited above. However, in addition to those privileges cited in the Evidence Code, courts have deemed the attorney work-product privilege to be applicable in workers’ compensation cases. See Stephens v. WCAB (1999) 64 Cal. Comp. Cases 287 (2nd DCA, writ denied.)

A strong public policy reason exists for favoring strict adherence to privileged communications in all judicial forums, including workers’ compensation court, as noted in the holding of Hardesty v. McCord & Holdren, Inc. (1976) 41 Cal. Comp. Cases 111. As a basis for this holding, the WCAB referred to the Law Revision Commission comments which state:

"Most rules of evidence are designed for use in courts. Generally, their purpose is to keep unreliable or prejudicial evidence from being presented to the trier of fact.

Privileges, however, are granted for reasons of policy unrelated to the reliability of the information involved. A privilege is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issues in a pending proceeding.”

Once a party objects to producing information based on a claim of privilege, a judge must then decide whether that information is subject to discovery.

III. Use of In Camera Review for Determination of Validity of Claimed Privilege

Traditionally, if there were questions as to whether certain communications were privileged, the WCJ or a special master would review said communications privately, “in camera”, and then issue a decision.

For example, in the writ denied case of Stephens v. WCAB (1999) 64 Cal. Comp. Cases 287, defendant sought discovery of the applicant attorney’s recording of an exam by the evaluating physician of the injured worker. The applicant attorney objected, claiming the attorney work product privilege, since he was the one who taped the conversation between his client and the doctor. The WCAB affirmed the judge’s decision to allow the defendant access to the audio tape and suggested that any claims of privilege could be protected by allowing the applicant attorney to submit the tape to the judge in camera. The judge could then determine which sections of the tape were subject to the privilege and have those portions deleted before producing the tape to defendant.

Another example is the noteworthy panel decision of Borrayo v. Tobar Industries, The Hartford Insurance, 2012 Cal. Wrk. Comp. P.D. LEXIS 10. In that case, the court dealt with the issue of how to determine whether a document is privileged. Essentially, the court stated that a judge or a special master should view the alleged privileged documents in camera to determine whether or not they were privileged.

IV. Limitations on In Camera Review

In the past, in camera review has been the most common tool used to determine validity of a claim of privilege. However, now that the 6th DCA issued their recent decision in Regents of the University of California v. WCAB (Lappi) (2014) 226 Cal.App.4th 1530, 79 Cal Comp Cases 509, in camera review of alleged privileged communication is no longer allowed, except for very limited circumstances.

In Lappi, supra, the DCA overturned the ruling of the WCAB, which ordered an in camera review of documents in a claims file purported to be subject to the attorney-client communication privilege. The DCA reminded the parties of the bar of in camera review under Evidence Code § 915 and returned the matter to the trial level to “reconsider the discovery dispute without requiring any preliminary review of the documents.” (Emphasis added.)

Evidence Code § 915(a) prohibits “in camera” review of claimed privilege information in order to make a determination as to whether that information is privileged as follows:

“…the presiding officer may not require disclosure of information claimed to be privileged… in order to rule on the claim of privilege.”

This bar of in camera review was emphasized by the Supreme Court in the case of Costco Wholesale Corp v. Superior Court of LA County (Randall) (2009) 47 Cal.4th 725, wherein the California Supreme Court reversed a lower court discovery order to review “in camera” a letter claimed to be subject to the attorney-client communication privilege.

The law is clear on this point. If the claim of privilege is attorney-client communication or work-product privilege, the WCJ may not mandate an “in camera” review of the communication.

However, there is an exception to this general rule. If the claim of privilege is work product of an attorney, defined by Code of Civil Procedure § 2018.030(b), then Evidence Code § 915(b) provides that a judge may require an “in camera” review of claimed privileged information if the following two requirements are met:

1. Per Code of Civil Procedure § 2018.030(b), the attorney work product must be something “other than a writing,” and

2. The court is unable to rule on the issue of privilege without viewing the information claimed to be privileged.

The court in Costco, supra, stated, “No comparable provision permits in camera disclosure of information alleged to be protected by the attorney-client privilege.”

In the Stephens case (the first example discussed above), the information claimed to be subject to the work-product privilege was an audiotape. This would seem to fit within the definition of Code of Civil Procedure § 2018.030(b) as “the work product of an attorney, other than a writing…” However, prior to an in camera review, the court would have to meet the second requirement and find that it is not able to determine the issue of privilege without an in camera review. In doing so, the court would have to explain how and why listening to the audiotape is the only way the court could decide whether the audiotape constituted the work product of the attorney. That would seem to be a rather difficult task.

Additionally, other decisions such as the Borrayo case (the second example discussed above), may not hold up under this evidentiary standard. In cases similar to Borrayo, supra, in the future, the judge most likely would not be able to hold an in camera review in order to make a determination on the validity of the claimed privilege.

V. Determination of Validity of Claim of Privilege

Given the above-discussed limitations on in camera review, how does the judge or special master verify that information is subject to non-disclosure, based on the claim of privilege?

Perhaps some hints can be found in Evidence Code §§ 914(a), 400, 402, 403 & 917(a), which treat the claim of privilege as a rebuttable presumption.

For instance Evidence Code § 917(a) provides, “If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client…relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”

There is also a discussion of this issue in the Costco case. In Costco, supra, the Supreme Court reminded the community that there was a “critical distinction between holding a hearing to determine the validity of a claim of privilege and requiring disclosure at the hearing of the very communication claimed to be privileged.”

The Court further explained that, at the hearing, the judge could review “the facts asserted as the basis for the privilege to determine, for example, whether the attorney-client relationship existed at the time the communication was made, whether the client intended the communication to be confidential, or whether the communication emanated from the client.”

However, the judge would not be able to require a party to disclose claimed privileged information (even in private) in order for that judge to make a determination as to whether the claim of privilege is valid.

VI. Conclusion

In the future, judges and special masters will be limited as to their use of in camera review to verify a claim of privilege. It's unclear how this issue will be resolved in the future workers’ compensation proceedings. However, the takeaways are as follows:

1. Parties have a right to assert all aspects of the privilege doctrines, even in the informal workers’ compensation setting.

2. Under certain, very limited, circumstances, a judge may use in camera review to determine claims of work product privilege as defined in Code of Civil Procedure § 2018.030(b).

3. In order to determine the validity of a claim of privilege, a judge is permitted to hold a hearing to determine whether there are relevant facts that support such a claim.

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