Every adjuster has been there. You’re sitting at your claims desk (or, in the era of Corona, on your couch wearing your bunny slippers) when you receive a subpoena for your file. Must you respond? How should you respond? What types of documents must you release? What can you keep without divulging?
You can object to a subpoena by arguing that the:
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- subpoena has not been issued correctly according to the law (technical grounds)
- subpoena is an abuse of process or oppressive (general objections), and/or
- requested documents cannot be disclosed because of special rules that apply to the evidence (privilege)
While each of these arguments can only be fully described in a treatise (law school usually includes an entire semester dedicated to evidence!), we’ll focus on the attorney-client privilege today.
First, before even considering potential privileges, read the subpoena carefully. Does it “specifically describ[e] each individual item or […]reasonably particulariz[e] each category of item …” Code of Civil Procedure § 2020.410(a)? If it requests the “claims file”, this may be sufficiently specific (though make sure to review the file carefully for protected material; see below). Less specific demands such as those requesting “all records which support your position in this action” or “all records relating to the injured worker” will likely be deemed insufficiently specific. What, afterall, “support[s] your position” as opposed to undercutting it? This is a subjective determination and not one that the subpoenaing party may foist on you.
There are many other “technical grounds” for objecting. Potential issues regarding deadlines, personal service, et cetera are multiple. Be certain to discuss these with your attorney before responding.
Once technical concerns have been addressed, look for other objections. Although there are many more applicable objections, the ones that most often arise include:
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- attorney-client privilege
- attorney work product doctrine
- “unreasonable or oppressive” demand
- requesting documents irrelevant to the issues
- not calculated to lead to the discovery of admissible evidence
The attorney-client privilege is easily the most important privilege in the vast majority of cases. It is an absolute privilege (meaning that the subpoenaing party cannot successfully show “good cause” and receive attorney-client privilege work) that protects communications between the attorney, adjuster and/or employer. It includes documents memorializing those written or verbal communications.
Why is the attorney-client privilege considered so sacrosanct? This question is best answered with a question (something my teachers taught me never to do), which is: how could an attorney and the client properly prepare a case if the work they did privately was available to the prying eyes of another party? Attorneys would be ill advised to not investigate the case if this privilege did not exist.
What types of materials are typically covered by the attorney-client privilege? Although this is only a partial list, the privilege tends to focus on such things as:
- strategy
- recommendations
- advice
- evaluation of workers’ compensation and civil claims
Interestingly, the attorney-privilege is not limited to communications between the attorney and the client, such as the adjuster. It extends to the attorney’s staff members and the adjuster’s working group. It includes ALL communications with defense attorney, such as:
- letters
- emails
- texts
- phone messages
- fax cover sheets
- letters transmitting other documents
Before responding to a subpoena that demands materials that may be covered by the attorney-client privilege—or any privilege for that matter—any/all communications with the defense attorney should be removed or, where not possible, redacted.
Some parting thoughts… Subpoenas have stringent timelines. Missed a deadline? You very well may have waived your objections to producing the requested information. Additionally, the attorney-client privilege is just one of many. A partial list includes:
- Accountant–client privilege
- Admissible evidence
- Deliberative process privilege
- Priest–penitent privilege
- Privilege log
- Physician-patient privilege
- Psychotherapist–patient privilege
- Public-interest immunity
- Reporters’ privilege
- Right to silence
- Shield law
- Spousal
- State secrets privilege
Many attorneys do not know every privilege and, occasionally, will need to do some legal research. Given this plethora of privileges and potential stumbling blocks, adjusters and employers are well-advised to seek competent legal counsel before responding to a subpoena. If you release information that might otherwise have been withheld, you may have lost your case. On the other hand, if you inappropriately withhold information to which the other party is entitled—even if you have the best of intentions—-you may subject yourself to costs and sanctions.
Bradford & Barthel, LLP daily assists clients to respond properly to subpoenas thereby avoiding releasing too much information while sidestepping financial punishment. If we are handling your case, we will do the same for you. If, however, we are not handling your case, we still stand ready to assist. With that in mind, we have developed a plan of action for handling such scenarios on your behalf. An agreement we have successfully for this purpose is below. Should you have any questions regarding this article or be interested in developing a plan for Bradford & Barthel, LLP to represent your interests when responding to those nasty subpoenas, do not hesitate to contact me.
The purpose of this memorandum is to clarify the steps that should be taken upon the receipt of a Subpoena as it relates to Workers’ Compensation cases.
Subpoenas received by you, from the employer (or any of its subsidiaries), shall be signed by the “custodian of record” and then submitted to Bradford & Barthel (B&B) in the following manner:
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- Subpoena is received by employer
- Subpoena is immediately sent to you by the employer
- You respond to the employer immediately with instructions on what they need to provide (See the examples below), a due date to comply and directions on where to send it:
- All wage statements
- All disciplinary notices (Include: performance reviews)
- Hiring information (employment application)
- Personnel handbook
- The original signed custodian of records document
- Determine if other litigated matters are pending with the employer. If so, B&B will be notified.
- Concurrently alert B&B that the subpoena has been received and forward a copy to B&B, so they can respond with a Motion to Quash (special appearance).
- B&B prepares standard Motion to Quash.
- Employer responds to B&B, by providing each of the above referenced sets of documents to the extent possible Documents can be sent electronically or by overnight delivery to: Electronically to e-docs@bradfordbarthel.com with a cc to the examiner.
(Overnight Delivery) B&B 3270 Inland Empire Blvd, Suite 200, Ontario CA, 91764 Attn: Jennifer Nino - B&B will redact the documents; return both the employer and claims documents. Employer will return all to the subpoena service, along with the signed custodian of records documents (Employer and TPA) and the Motion to Quash.
- If B&B needs to clarify any issues with the employer, the examiner will be contacted.
Donald R. Barthel is a Founding Partner of Bradford & Barthel, LLP as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these and many other topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a question? Interested in having a webinar or training at your offices? Feel free to contact Don at (916) 996-1263 or email him at dbarthel@bradfordbarthel.com.
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