Barthel: The Trials and Tribulations of Subpoenas

Thursday, August 20, 2020 | 0

Every adjuster has been there: You're sitting at your claims desk (or, in the era of coronavirus, on your couch wearing your bunny slippers) when you receive a subpoena for your file.

Donald R. Barthel

Must you respond? How should you respond? What types of documents must you release? What can you keep without divulging?

You can object by arguing that the:

• Subpoena has not been issued correctly according to the law (technical grounds).
• Subpoena is an abuse of process or oppressive (general objections).
• Requested documents cannot be disclosed because of special rules that apply to the evidence (privilege).

While each of these arguments can be fully described only in a treatise (law school usually includes an entire semester dedicated to evidence), we'll focus on the attorney-client privilege here.

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" in 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).

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, after all, "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, etc. 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:

• 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 the subpoenaing party cannot successfully show "good cause" and receive attorney-client privilege work) that protects communications among the attorney, adjuster and/or employer. It includes documents memorializing 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 the 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.

Donald R. Barthel is a founding partner of Bradford & Barthel LLP as well as B&B's Rating & File Consultation Services. This entry from Bradford & Barthel's blog appears with permission.