The Salvation Army v. Bennett (CA1 3/2/12)

A minor piece about corporate attorney-client privilege.

Bennett was injured at a Salvation Army day camp. The SA’s lawyers hired a private investigator to take statements from the witnesses – including SA employees and volunteers – a couple of weeks after the accident. Bennett sued. HIs lawyers took everybody’s deposition but also requested production of the statements; SA objected that the statements were privileged and work product. The trial court ordered the SA to “redact the work product” and produce them. (The Court of Appeals assumes, perhaps charitably, that he meant redact the mental impressions, etc. of counsel.) The SA took this special action. (You wouldn’t at first know that it was a special action since court names it using only the name of the real-party-in-interest. That’s an improvement over naming the judge, which we’ve complained about several times before, but why not just say “Superior Court,” as we used to before the rule was changed to require that the judge be identified in the caption on the pleadings, so that people can spot the posture of the case right away?)

The Court of Appeals starts by noting that work product and privilege are separate issues that apparently weren’t analyzed separately below. It discusses work product first.

Work product does not apply to privileged items. Work product is prepared in anticipation of litigation and is discoverable only on a showing of substantial need and an inability to obtain the information otherwise. Having told us that, the court tells us that its irrelevant, at least to the employee’s statements, because they’re privileged, an issue it only then proceeds to analyze. (In fairness to the court, the odd structure of the opinion might be its way to avoid having to say that the trial court didn’t understand the issue and used the wrong law. The court implies that the parties confused things but there was a day when trial judges knew the law of evidence; we mean no special blame to this particular guy, by the way, that’s just a sign of the times.)

The attorney-client privilege statute, 12-2234, includes a lawyer’s “paralegal, assistant, secretary, stenographer, or clerk” and protects communications with employees in order to provide legal advice to the corporate client. That covers the employee statements. (Bennett didn’t argue that a PI is not an “assistant.” That argument has apparently been generally given up, though the statute says “stenographer” because law offices used to be cautious enough to take statements themselves, going to the client’s office with court reporter in tow. As with many other things, that wise bit of lawyering was insufficiently “cost-effective” for the non-lawyers who nowadays control, on both sides, how cases are handled.)

As to the interviews of the SA volunteers, the statute applies to employees and “agents.” The court says that the record doesn’t show  whether the volunteers were agents so it remands.

(link to opinion)