Your Witness Statements May Not Be Protected

In anticipation of litigation, or during the delay and denial period, the defense on a Workers’ Compensation case may obtain witness statements from the employer. Attorneys for the defense have typically maintained these statements are privileged as attorney work product or under the attorney-client privilege. A new appellate court case has indicated that those privileges may not apply to the statements.

The facts in the Martin case are convoluted as to how the case got to the appellate level and will not be discussed here. The major contention was that the applicant had filed a stress workers’ compensation claim against his employer. The employer denied the claim based on a doctor’s report and an investigation performed by an investigative service for the claims administrator on behalf of the employer. The applicant sought discovery of those statements. The appellate court decided the issues under the privilege of attorney -client privilege as opposed to attorney work product.

The court relied on D.J. Chadbourne, Inc v. Superior Court in making its determination in this case. The court applied the principles enunciated in Chadbourne to the workers’ compensation setting. This court referred to 11 basic principles in Chadbourne for its decision. In order to now assert the attorney-client privilege in a workers’ compensation case as to witness statements you have to review these principles very carefully.

“As can be seen from a reading of Chadbourne, there are many factors to be considered in determination of whether a particular employee statement is privileged….Not all employee statements are protected by the attorney-client privilege….Mere witness statements from corporate employees, however, are not privileged.”

The case went on to define whether the witness was making an independent or making a statement that is required “in the ordinary course of the corporation’s business”, which is the way it can be protected.

“We conclude that when an employee’s only connection is an independent witness, not as a co-defendant or as the natural person to speak for the employer, such statements do not become privileged just because they are given for transmittal to the employer’s attorney in preparation for litigation. When an employee is no more than a witness to an accident, his or her statement is not privileged even if it was taken in preparation for litigation as an employer should not be allowed to silence witnesses…” “(E)ven in a stress claim, the facts known to the employee are not privileged”.

The safest course of action in the future for a defendant is to have your attorney interview the witnesses and make no written reports.

Case: Martin V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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