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A California Court of Appeals held earlier this month that incident reports are protected by the attorney-client privilege when certain criteria are met.  Scripps Health v. Superior Court (Reynolds), 2003 D.A.R. 6059 (filed June 6, 2003)   This case is particularly instructive to companies, such as property owners and managers, which regularly confront mold claims and have established protocols requiring the completion of report forms when water intrusion complaints are received.  This case sets forth criteria for maintaining the privileged nature of this material.

In this wrongful death case against a hospital, plaintiffs filed a motion compelling production of internal incident reports.  In opposition to the motion to compel, the hospital submitted evidence that (1) the reports were marked confidential, (2) the reports were used by the hospital’s attorneys to assess internal risks and create a claims profile and (3) access to the reports was limited to risk managers, in-house or outside counsel and third party claims administrators. To the extent that information from the reports was needed by other departments at the hospital, it was extracted from the documents and then circulated in another format.

The trial court granted plaintiffs’ motion to compel, but the Court of Appeals reversed, holding that the reports were protected by the attorney-client privilege.  The court reasoned that the existence of the privilege depends more upon the intended and actual use of the document than its contents.  The court emphasized the significance of forwarding the reports to the Legal Department, risk managers or outside counsel. If copies are kept only by the initiating department, there is a stronger argument that the primary purpose of the reports is not communication with attorneys, but customer service or other administrative purposes.

Significantly, the court did not limit its holding to hospital settings, but rather on application of the attorney-client privilege to the corporate setting in general.  Accordingly, any company that creates confidential records involving incidents which may result in litigation may be able to classify the documents under attorney-client privilege if the above-listed criteria is followed.

About these Articles: This article was originally published by the law firm of Gordon & Rees L.L.P. in the July/August 2003 issue (Vol.3, No. 3) of their newsletter entitled, Mold… Matters!” The attorneys contributing to the articles include Mike Pietrykowski, Linda Moin, Traci Lagasse and Molly McKay.  The San Francisco office address is Gordon & Rees, 275 Battery St., Suite 2000, San Francisco, CA 94111; (415) 986-5900.  The firm also has offices in San Diego , Los Angeles , Sacramento , Orange County , Portland , OR , and Las Vegas , NV .  For more information on the article you may also contact the authors by e-mail at: mpietrykowski@gordonrees.com.  The firms website has additional information and articles.  See http://www.gordonrees.com.

ConstructionRisk.com Report, Vol. 5, No. 8 (Sep 2003)