The Fourth District Court of Appeal recently issued its published decision in Regents of the University of California v. WCAB (Lappi). This case involved a very common dispute over discovery and outlined the WCAB’s role in deciding whether items sought are protected or subject to disclosure.

The case involved a request for documents by the applicant. Specifically, the request was for “all non-privileged portions of the claims file.” In response to the applicant’s request, the employer produced a privilege log identifying several documents and asserting them as protected from disclosure under “one or more privileges recognized by the California Evidence Code.”

After some court involvement, the defendant was ordered to present copies of the withheld items to the WCJ for a private in camera inspection and determination on the privileged nature of the items. The employer complied with that order. It is not clear that the WCJ reviewed the items for that determination but returned them back to the employer with a further order to produce all unprivileged email notations on applicant’s attorney and to produce a privilege log re: any withheld information. The defendant generated a second privilege log asserting attorney-client communication, confidential communications and work product as the basis for withholding the designated items.

The issue returned to the WCAB for hearing on whether the items were protected as attorney work product or attorney-client communications. At trial, the applicant requested the WCJ perform an in camera inspect the withheld items. The employer objected to that request. Ultimately, and without review of the specific documents at issue, the WCJ ruled that communications between the employer/claims administrator were privileged. On the other hand, the notes regarding provision of benefits, claims activities, and adjustment plans, and supervisory review of claims administration are not protected just because the adjuster had consulted with counsel during pendency of the claim. The WCJ directed the defendant to review and produce all non-privileged items. The employer sought reconsideration of the trial decision.

On reconsideration, the WCAB commissioners held that if the disputed documents “do not refer to an attorney’s communication, they may not be protected by attorney -client privilege. Moreover, if a note with an action plan does not refer to an attorney’s impression, it is difficult to see how the action plan would fall within the work-product doctrine.” To no surprise, the commissioners found it impossible to determine the protected status of the individual items from only review the trial testimony and the petition. Accordingly, the WCAB commissioners rescinded the trial judge’s decision. The case was returned to the trial judge to appoint a special master to review the items in camera. The special master was to produce a report to the parties and WCJ. The WCJ would review the report and recommendations of the special master report and rule on the discovery dispute.

The employer appealed the WCAB decision to the Court of Appeals asserting the California Evidence Code section 915 prohibits a court from requiring disclosure of information claimed to be privileged as attorney-client communication or attorney work product in order to rule on the claim of privilege.

The Applicant answered that Evidence Code section 915 does not apply to WCAB proceedings. She argued that the WCAB has general statutory authority to “make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division.” (Lab. Code, §5708.) Further, Labor Code section 5708 sets forth a general rule authorizing the WCAB to adopt its own “rules of practice and procedures” and specifies that in the conduct of hearings and investigations, the WCAB “shall not be bound by the common law or statutory rules of evidence and procedure.”

The issue for decision was framed by the Court of Appeal as follows:

  1. Do the attorney-client privilege, the absolute work product doctrine and Evidence Code §915 operate within workers’ compensation proceedings in the same fashion as in judicial proceedings;
  2. Can the WCAB order an in camera review of documents in order to determine whether attorney-client privilege or the absolute work product doctrine apply despite Evidence Code section 915?”

The answer is: Yes they do and no, the WCAB cannot.

The Appellate Court pointed out that Division 8 of the Evidence Code trumps the Labor Code since it expressly applies to “any action, hearing, investigation, inquest or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which . . . testimony can be compelled . . . .”

The Court of Appeals found the WCAB’s direction to assign a special master to in camera review the documents and items inappropriate. The case would also prohibit a WCJ from such an in camera review.


A Workers’ Compensation Judge has no authority to order an inspection of withheld documents and items claimed in good faith to be protected as attorney -client communication or attorney work product. As such, the WCAB means of review of the disputed items is severely limited.

When asserting an absolute privilege such as attorney-client communication or attorney work product in the midst of a discovery dispute, the asserting party should take care to properly and adequately identify the document or item by date, author and assert the appropriate protection. Case notes and claims documents withheld as privileged should reference the extent to which the attorney communicated with the note author or contributed to the information/plan of action.

“Attorney-client communication” is defined as a communication between client and attorney in the course of an attorney-client relationship which was intended to remain confidential.

“Attorney work product” is defined as any writing that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories.

A party may inadvertently waive the absolute protections by failure to assert the privilege, by tendering certain issues, by conduct inconsistent with claiming the privilege, and by a voluntary disclosure or consent to disclosure to a person other than the attorney or client who has no interest in maintaining the confidentiality of the information.