Expand and Contract: Developments in Workers’ Compensation Exclusive Remedy

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By: Michael J. Nunez and Kelsey L. Maxwell

USLAW Magazine

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Broadly speaking, the workers compensation exclusive remedy provision holds that employers are immune from liability for injuries incurred by employees during the course of employment. This exclusive remedy provision is codified in a number of states in order “to give efficacy to the theoretical “compensation bargain” between the employer and employee.” Privette v. Superior Court, 5 Cal. 4th 689, 697. While this rule is routinely applied when the injured party is an employee of the employer, a question often arises as to whether the exclusion applies to an employer (or landowners) when the injured party is an employee of an independent contractor or subcontractor. States vary in how widely or narrowly this doctrine is applied when it comes to employees of independent contractors, subcontractors, or other hirees and in the last few years, various states have taken steps to either expand or contract the application of this doctrine.

Nevada

Most recently, Nevada has expanded this doctrine as it applies to employees of independent contractors and subcontractors. Dating back decades, Nevada has afforded independent contractors and subcontractors the same status as employers when it comes to “exclusive remedy” so long as the contractor is in the same trade, business, profession or occupation as the employer of the injured worker. Nevada refers to this analysis as the “normal work test.” The defining question of the “normal work test” is whether the work being performed is normally, in that business, carried on through employees rather than independent contractors.

In the recent unpublished decision of Sedano v. Houston, the court concluded that Sedano was bound by the exclusive remedy rule where the court determined that Houston was not performing a specialized repair. 2018 Nev. App. Unpub. LEXIS 280, *3-5. Sedano worked at a residential construction site when Houston’s employee, who was operating a crane to install roof trusses, lowered a truss onto Sedano. There, Sedano’s employer was not qualified to use cranes so it hired Houston to perform crane work on the project. The court determined Houston was hired to provide a service directly in furtherance of the overall project (i.e., building a residential structure).” Thus, the exclusive remedy defense applied. Sedano v. Houston is compared to D&D Tire, Inc. v. Ouellette.

In D & D Tire, Inc. v. Ouellette, an employee of Allied, hired to perform tire service work on mining equipment, was injured when an employee of a third-party, Purcell, who was repairing the Allied employee’s truck, backed the truck into the Allied employee. 131 Nev. Adv. Rep. 47, 352 P.3d 32, 34. The Supreme Court concluded that the Purcell employee was sent to the work site for the purpose of specialized repairs on the truck and therefore was not a statutory employee of Allied. Id. at, 352 P.3d at 37.

Washington

Similarly in Washington, the Court of Appeals recently decided a case (Am. Hotel & Lodging Ass’n v. City of Seattle, 2018 Wash. App. LEXIS 2890), challenging the validity of a ballot initiative in the state. Initiative 124 (I-124) established health, safety, and labor standards for hotel employees within Seattle. In part, the initiative conferred subject matter jurisdiction on a state court to resolve work-related injury claims. The Court of Appeals instructed the trial court to enter summary judgment in favor of the challenging parties in part, because the initiative conflicted with key provisions of Washington’s workers’ compensation system by creating a private cause of action that does not exist under Washington law. The Court explained that Washington’s Industrial Insurance Act represents a “grand compromise” between industry and labor to remove workplace injuries from the court system and to provide injured workers with a swift, no-fault compensation system for on-the-job injuries. Accordingly, the Court held that even if a city could lawfully enact worker safety provisions that are stricter than those imposed by the Washington State Department of Labor and Industries, the city cannot confer subject matter jurisdiction on a state court to resolve work-related injury claims when, by statute, the Washington legislature has abolished that very jurisdiction more than a century ago. This was a clear affirmation of the State’s exclusive remedy rule.

California

California on the other hand has gone in a different direction, narrowing the scope of the application of this doctrine to employees of independent contractors and subcontractors. The leading case in California regarding property owners’ liability to employees of independent contractors working on its land is Privette v. Superior Court, 5 Cal. 4th 689. In Privette, the California Supreme Court limited the breadth of the peculiar risk doctrine, concluding that it does not extend to hired contractor’s employees. The Court reasoned that because the Workers’ Compensation Act shields an independent contractor from tort liability to its employees, applying the peculiar risk doctrine to the independent contractor’s employees would illogically and unfairly subject the hiring person to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury. This principle however is subject to many exceptions and the scope of those exceptions is expanding.

For example, in 2018, California’s Second District Court of Appeals heard the case of Gonzalez v. Mathis, 20 Cal. App. 5th 257 which focused on the “hazardous conditions” exception. In reviewing a lower Court’s ruling on a Motion for Summary Judgment, the Court analyzed scope of this exception as it pertained to a concealed hazard. Generally when there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor the hirer delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor’s employee if the contractor fails to do so. See Kinsman v. Unocal Corp., 37 Cal.4th 659, 673-674 (2005). However, if the hazard is concealed from the contractor, but known to the landowner, liability may attach. The recent Gonzalez case took this exception further and held that while generally a hirer cannot be held liable for injuries resulting from open or known hazards the contractor could have remedied through the adoption of reasonable safety precautions, similarly the hirer can be held liable when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions. Thus the hazardous conditions exception seems to apply not only to concealed conditions, but obvious conditions if the contractor cannot remedy the condition. This holding widens the number of exceptions to Privette’s rule of “no liability” for landowners.

Oregon

Recent case law in Oregon has similarly limited the scope of this exclusion. In the case of Bundy v. NuStar GP, LLC, 362 Ore. 282, Oregon’s Supreme Court analyzed ORS 656.019 to determine whether the “claim” includes subsequent claims. ORS 656.019 states, “an injured worker may pursue a civil negligence action for a work-related injury that has been determined to be not compensable because the worker has failed to establish that a work-related incident was the major contributing cause of the worker’s injury only after an order determining that the claim is not compensable has become final.” The questions this Court considered was whether “the claim” refers to the initial claim for workers compensation only, or whether it includes subsequent claims. In Bundy the Plaintiff initially received workers compensation for injuries sustained while working, but later claims were denied workers compensation and thus Plaintiff sought recovery for these subsequent claims via civil litigation. The defense argued that as Plaintiff received workers compensation for his injuries initially, such compensation was his exclusive remedy. The Supreme Court disagreed and agreed with Plaintiff that a single work-place incident can give rise to multiple individual “claims.” Accordingly, the workers compensation exclusion has been limited in Oregon in that the same workplace injury can give rise to both workers compensation claims, and civil lawsuits.

In sum, while hirers are often categorically immune from liability for injuries to its employees or employees of its independent contractors when workers’ compensation insurance is available, various jurisdictions are expanding on, or limiting this application.

Empathy and Awareness Are Keys to Diversity and Inclusion

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By: Michael J. Nunez

Communiqué

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The inaugural luncheon of the Clark County Diversity & Inclusion Committee for Equity (“DICE”) occurred on Thursday, October 21 at the Golden Nugget. This was a live event, with streaming participants by Zoom, which made for a festive occasion with many participants able to reconnect with old friends.

A panel discussion was held during lunch to discuss current topics of diversity in the legal profession and questions from the audience were taken. The panelist included members of the bar and bench, as well as Lora Picini, Senior Vice President of Diversity Inclusion and Talent Management at Everi, a gaming equipment and financial technology provider, and Nedda Ghandi President Elect of the Clark County Bar Association.

In response to questioning of positive and negative experiences regarding diversity and inclusion, Las Vegas City Attorney Bryan Scott was able to share his positive experiences, of outreach to diverse youths and students interested in the profession of law. On the negative side, Mr. Scott received affirmative responses from members of the audience when asked if they ever personally experienced disaffirming conduct, actions, and speech from other attorneys, clients, and judges. To counter these experiences the panel discussed the need for empathy amongst the profession and an awareness of others around us. District Court Judge Tierra Jones commented that diversity is needed at all levels, not just with judges and attorneys. Failing to achieve this impacts the public’s access to justice and the court system’s ability to empathize with different individual’s interests and claims.

The panelists discussed accomplishments being made in the profession, with Mr. Scott indicating that when he commenced the City Attorney post, there were no attorneys of color in the office. This has changed. Ms. Picini added to this that studies have clearly shown that companies and businesses who have not recognized the importance of and who have not implemented diversity and inclusion programs have done so to their own economic disadvantage. Nonetheless, our own figures show that there is room for improvement. A 2021 demographic study of the 9,054 active members of the State Bar of Nevada solicited the following 6,908 responses of member racial identification:

Native American: 37 0.5%
Asian: 305 4.4%
Black / African American: 189 2.7%
Caucasian: 5,646 82%
Hispanic / Latino / Latina: 366 5.3%
Middle Eastern: 51 0.7%
Mixed Race: 167 2.4%
Pacific Islander: 26 0.4%
Other: 121 1.8%

Advice to law practices and companies seeking to implement diversity and inclusion initiatives and education included, avenues of information gathering, such as focus groups and anonymous surveys, to implementing programs for hiring, training, mentoring, and retention. As Judge Jones phrased it “It’s not a one time thing.”

In closing, all members of the bar and work place need to feel welcome and involved, including those new to these discussion. A too common problem is people getting in trouble or being chastised and not knowing why when insensitive actions or comments are made.

DICE was organized and implemented in 2021 with the help of the CCBA Past President (‘20) Mariteresa Rivera-Rogers who was instrumental in getting the committee up and running. Without her adding DICE onto the CCBA’s board agenda in September 2020, the committee would be nowhere close to what we have accomplished today. In addition to her efforts, several members of the bar from a broad spectrum of backgrounds and experiences have joined together to develop relevant content and activities for the CCBA. We are proud of our achievements to date. Please look for announcements about DICE events to be scheduled in 2022.

A Decedent’s Personal Representative or Successor In Interest Can Now Recover the Decedent’s Pain and Suffering in a Survival Action

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On October 1, 2021, Governor Gavin Newsom approved an amendment to § 377.34 of the Code of Civil Procedure, which authorizes a decedent’s personal representative or successor in interest to recover damages for a decedent’s pain, suffering, or disfigurement in an action or proceeding on the decedent’s cause of action.

Before this amendment, § 377.34 specifically excluded any damages for pain, suffering, or disfigurement as recoverable damages in a survival action. However, according to the amendment’s sponsors, the amendment removes the restriction on recovering pain, suffering, and disfigurement damages in a survival action and aligns it with a majority of the states in this country.

Therefore, now damages for pain, suffering, or disfigurement may be recovered if: (1) the action or proceeding was granted a trial preference pursuant to Code of Civil Procedure § 36 before January 1, 2022; or (2) was filed on or after January 1, 2022, and before January 1, 2026.

The following plaintiffs qualify for trial preference under Code of Civil Procedure § 36, i.e., having trial set not more than 120 days from the date the motion for trial preference is granted:

  1. A plaintiff, who is over the age of 70 and whose health is such that a preference is necessary.
  2. A plaintiff, who is under 14 years old.
  3. Any plaintiff, who suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months.

This means that any plaintiff, who has a survival action and was granted trial preference before January 1, 2022, can recover pain, suffering, or disfigurement damages.

Moreover, a plaintiff in any survival action filed on or after January 1, 2022 and before January 1, 2026 will be entitled to recover pain, suffering, or disfigurement damages.

Third-Party Indemnification Provisions Ruled Incompatible with California Code of Civil Procedure section 998 Fee-Shifting

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The California Court of Appeal decided Khosrovan v. Chevron ((7/6/21 2nd Dist., Div. 7 No. B307482) __ Cal.App.5th __, 2021 WL 2797742) on July 6, 2021, holding that the value of a provision requiring an offeree to indemnify an offeror against third party suits is too uncertain to be included as a term in a 998 offer.

After obtaining Summary Judgment, Chevron sought its costs from the Plaintiffs who had failed to accept a 998 offer that proposed a waiver of costs in exchange for (1) dismissal with prejudice of the Plaintiff’s lawsuit, (2) release of all future claims based on the allegations in the complaint, including, but not limited to, claims for wrongful death, and (3) indemnity in the event such claims are filed by non-parties to this case. The Trial Court shifted Chevron’s costs (including expert witness fees) to the Plaintiffs because of their failure to accept Chevron’s 998 offer.

A 998 offer, named for California Code of Civil Procedure section 998, is a settlement offer that provides a disincentive to an offeree who fails to ultimately achieve a better result (e.g., at trial or via dispositive motion) than that offeree could have achieved by accepting the settlement offer. Namely, such an offeree will be penalized by bearing some of the offeror’s costs (potentially including expensive expert witness costs). 998 offers must state the terms and conditions of the proposed judgment, award, or release, and all terms must be capable of valuation – i.e., reduction to a dollar amount. If the terms of the offer cannot be valued after all, then how could one determine whether any ultimate result is more or less favorable than the rejected 998 offer? Thus, a 998 offer whose terms are not capable of valuation cannot trigger the associated fee-shifting provisions.

Courts have found, for instance, that a confidentiality provision in a 998 offer is not capable of valuation, and thus its inclusion in such an offer will prevent fee-shifting.1 A “1542 Waiver” (required in association with general releases of claims, both known and unknown, in California), is likewise incapable of valuation, and inclusion of such a term in a 998 offer will preempt application of the fee-shifting provision.2 In Toste v. CalPortland Const., a 998 offer was conditioned on holding the offeror harmless against all third party claims; the Court there determined that such an indemnification provision was so broad as to defy valuation.3

In the present case, Chevron attempted to distinguish its offer from Toste by arguing that its term requiring indemnification for third-party claims was substantially narrower: as opposed to all third-party claims, the Chevron 998 offer sought indemnification with respect to only third-party claims based on the allegations in the Plaintiff’s complaint. The Court here did not believe that such a distinction should produce a different result, finding instead that “a term in a settlement offer requiring a plaintiff to indemnify a defendant against third party claims defies accurate valuation,” regardless of whether the indemnification required is with respect to all third-party claims or only those based on the allegations in the complaint. The Court reasoned that (1) whether and how many third-party claims exist is uncertain, and (2) the cost of defending against any such claims is uncertain. Thus, the Court found that a provision in a 998 offer requiring the indemnification of the offeror as against claims brought by third parties is incapable of valuation, and the failure to accept such an offer cannot trigger the section 998 fee-shifting.

Going forward, litigants should be aware that inclusion of terms and conditions in a 998 offer that require indemnification with respect third parties must be avoided. Although such indemnification provisions may effectively mitigate risk, to benefit from section 998’s fee-shifting provisions, an offeror may not make an offeree responsible for costs whose existence or amount the parties cannot predict. Defense and indemnification for claims and lawsuits by third parties are inherently unpredictable, and thus may not be addressed in a 998 offer.

1Barella v. Exchange Bank (2000) 84 CA4th 793, 801, 101.
2Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 88.
3Toste v. CalPortland Const. (2016) 245 CA4th 362.

Lisa Angelo’s Article Featured in PLDF Quarterly

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By: Lisa D. Angelo

PLDF Quarterly

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It was the end of October 2020. Courts had been shut down since March due to the nationwide COVID-19 pandemic. Los Angeles County was allowing some in-person hearings but only preference trials were being considered for a jury— if they had previously been demanded, and if enough jurors were available. Orange County was open for trials at the Presiding Judge’s discretion. My real estate fraud case, which had been pending for four years, was called on Friday, October 23, 2020. Naturally, we believed our case would be continued since there was no major rush to go to trial, particularly during a pandemic. While my case had been on the docket for four years, there were other cases that had been pending for longer, or that had other issues that could have taken precedence over our case. Nonetheless, because we answered “ready” on March 13, 2020—the Friday before California’s Governor shut down the State on Monday, May 16, 2020—we were next in line for a jury trial when one of the large courtrooms typically used for complex cases became available. Much to our surprise, the court ordered the parties in our case to appear the following Monday, October 26, 2020, for trial and jury selection. So long as a criminal case did not need the jurors on Monday, the panel that was summoned to appear for jury duty would be sent to our courtroom and we would start our selection. Needless to say, I did not get much sleep that weekend.

Voir Dire, Jury Selection & The Socially Distant Courtroom

In my career, I have tried cases in federal and state criminal and civil courts, on both coasts and in-between, and I have seen all types of jury selection processes. Every court and every judge has its or her own way of handling this process…don’t they? This time, however, was very different.

Due to the pandemic, it was anticipated that more than the usual number of jurors would claim a “hardship” to get out of jury duty. Thus, in an effort to streamline voir dire, prospective jurors were given a “hardship questionnaire,” so they could be pre-qualified for jury service before voir dire began. Unfortunately, and as an unintended consequence, instead of streamlining jury selection, the questionnaire afforded prospective jurors with the opportunity to opt-out of jury duty for nearly any reason. Unlike the days when jurors were grilled on the particulars of their inability to “perform their civic duty,” this time, if a juror had so much as a sniffle, day care concerns, work concerns, or simply an ‘I don’t feel comfortable being here’ concern, the juror was free to leave if he or she signed a hardship questionnaire. After the panel began rapidly depleting, even before the voir dire actually started, it was decided that counsel would conduct preliminary voir dire of jurors who claimed hardship on their questionnaire. We also called down for a second panel of forty jurors for the next day so we could repeat the entire process. Jury selection ended up being the lengthiest process I had ever gone through for a civil non-complex trial. Eventually, we had a “pre-qualified” non-hardship panel of fifty to sixty jurors and the real voir dire process finally began.

Due to “social distancing,” we could only voir dire eighteen jurors at a time. The court’s clerk placed red tape on every fifth seat in the jury box and throughout the gallery so jurors would know where to sit and would remain at least six feet apart from each other at all times. The department had four long counsel tables between the well and the gallery. In the middle of the second row of counsel tables was an Elmo for exhibits. Only one attorney could sit at each six-foot long table. Since there were two attorneys for both sides, our clients (Plaintiff and Defendant) were not permitted to sit at counsel tables. More shocking, neither Plaintiff nor Defendant could sit in the courtroom and observe jury selection and voir dire because (as our judge reminded us every day) only a certain number of people could be together in the courtroom at all times. In other words, the seats our clients would have normally occupied had to go to a prospective juror instead during voir dire in order to accommodate eighteen jurors in the room along with counsel, the judge and courtroom staff. As we also soon realized, when nearing the end of our jury selection process, we could only have one alternate juror if we wanted to reserve the other two seats for our clients (Plaintiff and Defendant). If we had two or three alternates, our clients would have to watch the trial from a computer on the court’s live stream.

In order to make the courtroom “open to the public,” which it most certainly was not, the daily court sessions were “live streamed” on the court’s website for free. Before courtroom proceedings began each day, our judge placed a preliminary order on the record that went something along the lines as this:

…FOR TODAY’S PROCEEDINGS THE COURT IS AGAIN GOING TO MAKE THE FINDING THAT THERE IS AN OVERRIDING INTEREST IN LIMITING PARTICIPATION OF THE MEMBERS OF THE PUBLIC DUE TO THE COVID-19 VIRUS. THIS OVERRIDING INTEREST REQUIRES THE COURT TO COMPLY WITH SOCIAL DISTANCING GUIDELINES. AS A RESULT OF COMPLYING WITH THE SOCIAL DISTANCING GUIDELINES, IT REQUIRES THE COURT TO LIMIT THE NUMBER OF PEOPLE WHO CAN PARTICIPATE IN THESE PROCEEDINGS FROM THE PUBLIC.

THE COURT HAS CONSIDERED OTHER ALTERNATIVES, SUCH AS, MAYBE MOVING TO ANOTHER COURTROOM TO ACCOMMODATE MEMBERS OF THE PUBLIC WHO MAY HAVE AN INTEREST IN THIS CASE. THAT AT THIS STAGE OF THE PROCEEDINGS THE COURT WILL NOT MOVE TO A LARGER COURTROOM BECAUSE THE COURT HAS NOT HAD ANY INDICATION THAT MEMBERS OF THE PUBLIC WISH TO OBSERVE THE PROCEEDINGS IN THIS CASE.

FURTHER, THE COURT IS LIVE STREAMING THESE PROCEEDINGS. SO AS A RESULT OF THE LIVE STREAMING, THE COURT IS PROVIDING PUBLIC ACCESS. SO THE COURT WILL FIND THAT THE OVERRIDING INTEREST OF PUBLIC SAFETY OUTWEIGHS OR REQUIRES THE COURT TO LIMIT THE NUMBER OF PARTICIPANTS IN THE COURTROOM, AND CURRENTLY THE COURT DOES NOT HAVE AVAILABLE SEATS OPEN TO THE PUBLIC.

I’LL ASK THE COURT CLERK TO LET STAFF KNOW THAT THE COURT DOES NOT HAVE SEATS AVAILABLE TO THE PUBLIC AND TO HAVE STAFF ADVISE THE COURT IF MEMBERS OF THE PUBLIC WISH TO VIEW THIS TRIAL IN PERSON. IF THE COURT GETS THAT INFORMATION, THE COURT WILL REVISIT THIS DECISION TODAY…

It was agreed that both sides would give “mini-openings” as opposed to the judge reading a “statement of the case” to the jurors. Because our courtroom was not our judge’s courtroom, and had been remodeled to accommodate for “social distancing,” we had to decide where to stand and how to present our arguments to the jury. Plaintiff’s counsel was tall, at least 6’1, so the jury was able to see him fairly well wherever he stood in the courtroom. Most of the time, he stood up at counsel’s table with his back to the judge. Since I was at least a foot shorter, my ability to see all the jurors and their ability to see me, was a little more challenging. I decided the best way to be seen and heard was to stand in the well, directly in front of the judge, but with my back to him. I asked for a podium, but alas, one could not be found until the second round of voir dire. For the first eighteen jurors, I spoke to them from two bankers boxes placed on top of counsel table. My notes were partially on the box and partially on a nearby table. In the past, I would have a jury consultant seated at counsel table during this process. Of course, with a limited number of people allowed in the courtroom, an in-person jury consultant was not possible.

We went through two packs of eighteen jurors before we used all our preemptory and cause challenges, so we had to repeat our mini-openings and voir-dire questions twice. Each time was great practice for our actual opening statement which would finally be able to go forward on the fourth day of trial and after three full days of jury selection.

Wearing Masks and Building a Relationship with the Jury

It did not take long before I learned that the best mask to wear during trial is a plain blue surgical mask. The material is thin, the sides are not too tight around the face and my voice could project better than if I wore a cloth mask. Two masks were certainly not an option if I wanted to be heard. I was grateful for my Lasik eye surgery, which still allowed me to not have to wear glasses so I did not have to worry about wearing my mask high up on my nose so that the eyeglasses did not fog up. While not very stylish, the blue surgical mask was also easier to breathe in and would not allow me to get hot throughout the course of the day. I never thought I would get used to wearing a mask all day, every day—but I did. I also learned very quickly that this trial was not going to be about style, comfort and charm. Rather, building a relationship with the jury I worked so hard to select, was going to be my biggest challenge. Incidentally, I did try to wear a face shield in lieu of a mask so the jury could see more of my face and expressions when I spoke. Unfortunately, my courthouse had a “no shield” and “mask only” policy.

As such, my goals each day were simply to be heard, be seen—in whole or in part—and get my client heard, seen and understood. With my client seated in the far back corner of the gallery, behind all the jurors, and my back to twothirds of the jury most of the time while I questioned witnesses each day, these goals were serious challenges. Even getting the testifying witness in the witness box seen and heard by jurors seated in the far corners of the courtroom was a challenge. After the first couple of witnesses testified, it was decided that a TV monitor would have to be set up for some of the jurors to get a closer look at the testifying witnesses. Indeed, “where to stand” was actually an ongoing issue throughout the course of the three-week trial. Being 5’1, I often wondered where my place in the courtroom should be in order to best be seen and heard and to not block the juror’s line of sight to the Judge or to the testifying witness in the witness box. Did I really want to stand by the Elmo with my back to two-thirds of the jury who were seated throughout the gallery as I questioned witnesses? For opening and closing arguments, was it better to stand in the well, with my back to the judge? If I stood there, at least everyone could see half my face behind my mask, I would not block the testifying witness and perhaps the jury could hear most of what I said…so long as spoke up, projected loud enough through my mask and kept it interesting. Of course, I was limited to where the microphones were stationed. One day I tried to ask questions of a witness while seated from counsel’s table, but I knew almost as soon as I started, that was the wrong thing to do. Alas, it was a little hit or miss the first few days.

The only jurors who consistently got to see the front-side of the trial attorneys were the three jurors who were lucky enough to get a seat inside the jury box. Everyone else, typically saw the back of my neck and whatever color jacket I wore each day. For these reasons, I wore neutral colors, nothing flashy, I had my hair pulled up, away from my face and attempted to appear the exact same way, every day, for all three weeks. The process was exhausting, but I did not want to distract the jury from anything other than the evidence and testimony that was being presented each day. If two-thirds of the jury could not see me, I did not think it was fair for the three jurors in the box who had the best view of everyone, to see something the others could not.

Incidentally, there was no such thing as a “sidebar,” or “may we approach” to discuss a particular objection or document outside earshot of the jury due to social distancing. If the judge had to talk to counsel outside the presence of the jury, the entire jury had to leave the courtroom and wait in the hallway. Needless to say, objections, legal argument over exhibits, questions were minimal as we did not want to annoy the jury.

Trying a Case in the Dark

When asked how it is to try a case in a mask to a jury that is also masked and scattered about a large courtroom, I analogize it to trying a case in the dark. In retrospect, I wonder if this is the better way to try a case to a jury?

Instead of focusing on whether a juror’s smile meant something, whether good or bad, all I could focus on was the evidence that I planned to get admitted each day, the testimony I planned to elicit and how I could possibly get my message across without knowing whether people liked it or not. Trying to guess what the jury was thinking, whether it liked my expert, whether it liked me or my client, was hopeless. One day, I was cross-examining a witness and I told (what I believed) was a pretty good off-the-cuff joke. All I heard in response to my effort was radio silence. Did the jury laugh? If it did, I could not hear the jurors. Did the jury not laugh at all because I lost the jurors and did not know it? Did the jurors smile, but I could not see their smile because they were behind me or because they were masked? And what about body language? I could not count on body language because everyone was, for the most part, uncomfortable. Indeed, wearing a mask all day is not comfortable. The seats in the courtroom were not comfortable. (One juror even brought in a seat cushion after the first week.) The temperature in the courtroom was not always comfortable either.

After the verdict was read and we went to talk to some of the jurors who waited for us in the hallway, I learned that in fact…they had laughed at my joke during the trial, I just did not hear them. I also learned that despite the fact that they could not see my client every day, they did like her…a lot. One juror became emotional as she talked to my client—the Defendant—who had wrongly stood accused of fraud for four years.

So, what can I offer about having tried a case during the middle of a nationwide pandemic? Not much more than I could offer when talking about any other case. Every trial has its punches that we have to roll with, doesn’t it? Whether it is a judge who has particular rules or styles we are not used to, a witness that turns on us, or we have to figure out how to fix a mess on the spot. Or a smiling juror who can be smiling because she hates us, or is smiling because she loves us. At the end of the day, each trial is like trying a case in the dark—we just may not realize it. But not being able to second guess yourself and remaining completely oblivious as to whether something we did each day worked or did not work— does that ha

The Wrong Lawsuit at the Wrong Time: The Limits of Wrongful Death Actions in California

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By: Todd G. Lezon

USLAW Magazine

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I. Introduction

No one ever wants to be a party to a lawsuit. When a lawsuit is filed, it means something went terribly wrong. But lawsuits are even more agonizing when they involve the death of a loved one.

When people die because of the wrongful act of another, the result is often a lawsuit for wrongful death. Whether a person dies suddenly in a car accident or from breathing in asbestos particles for decades, the relatives left behind can ask the judicial system to compensate them for their loss.

In many ways, these lawsuits are similar to any other civil action that did not involve a death. But in other ways they are strikingly different.

Wrongful death actions can involve several plaintiffs. These plaintiffs will invariably claim that the loss of their loved one was tragic and has left them in a state of bottomless grief. The emotional testimony of plaintiff after plaintiff describing the loss of a mother, father, son, or daughter will deeply affect a jury. For these reasons, wrongful death actions can be costly for defendants and their liability insurance carriers.

This article briefly explains two legal doctrines that can significantly limit a person’s right to sue for the death of a relative.

II. The Nature a Wrongful Death Lawsuit

The logical starting point is to define what a wrongful death lawsuit actually is. When someone dies because of the negligence or intentional misconduct of another, specified heirs may sue the alleged wrongdoer for the loss they have sustained because of the victim’s death. Such lawsuits are known as actions for wrongful death.

Not everyone who had a relationship with the victim is entitled to sue the alleged wrongdoer. Those who may sue are limited to the victim’s spouse, domestic partner, children, stepchildren, parents, and the victim’s minor dependents in certain circumstances.

A wrongful death action seeks to compensate the plaintiff for the gravity of his or her lost relationship with the victim. A plaintiff’s recoverable damages include loss of support that the plaintiff would have received from the victim; loss of advice or training the plaintiff reasonably expected from the victim; loss of love, companionship, affection, and moral support from the victim; and funeral and burial expenses. Thus, the value of the plaintiff’s wrongful death claim depends on the nature and extent of the plaintiff’s relationship with the victim. A plaintiff who had a strong bond with the victim can expect to recover more in damages than a plaintiff who only met the victim once.

In sum, a plaintiff in a wrongful death action may sue the alleged wrongdoer for negligently or intentionally killing the plaintiff’s family member. The plaintiff’s damages are intended to compensate for a lost relationship with the victim.

III. The One Action Rule

In every wrongful death action, all of the victim’s heirs must join as plaintiffs in a single lawsuit. Plaintiffs cannot file multiple lawsuits against the defendant. A person not already named as a plaintiff in an existing wrongful death lawsuit cannot later file a separate action against the same defendant. In California, this is known as the One Action Rule.

The easiest way to illustrate the effect of the One Action Rule is by an example. A man dies in a car accident. The man’s wife and daughter file a wrongful death lawsuit against the defendant driver involved in the accident. But these plaintiffs never inform the man’s son that they have filed the lawsuit. The lawsuit then settles and is dismissed under the terms of the settlement. Then, the son learns that his mother and sister filed and later settled a lawsuit. The son then files his own wrongful death lawsuit against the defendant. Because of the One Action Rule, the son’s lawsuit will be barred, and the defendant could successfully move to dismiss it on that ground. In this hypothetical situation, the son’s only remedy is to sue his mother and sister for omitting him as a named plaintiff in the wrongful death action. But, he cannot sue the defendant.

From the defendant’s perspective, not having the son in the lawsuit was highly advantageous. Otherwise, the defendant would have had to pay more to settle the case. Importantly, the defendant never had any duty to investigate whether any additional plaintiffs should have been joined to the lawsuit.

IV. The Relation Back Doctrine

The second important limitation on a plaintiff’s right to bring a wrongful death action is timing. Statutes of limitation impose strict deadlines on a plaintiff’s right to file a lawsuit after a plaintiff suffers compensable harm. Subject to narrow exceptions, no plaintiff is permitted to file a lawsuit after the statute of limitations on his or her claim expires.

In California, the statute of limitations for a lawsuit arising out of an injury or death is 2 years from the date of injury or death. So, if a motorist is injured in an auto accident on February 1, 2021, he has until February 1, 2023 to file a lawsuit for any injuries caused by the accident. If the lawsuit is filed even one day late, the defendant will ask the court to summarily dismiss the action or have a judgment taken in his favor.

But there are recognized exceptions to the rigid deadlines imposed by the statutes of limitation. One notable exception is the “Relation Back Doctrine.” Simply stated, the Relation Back Doctrine treats an act done at a later time as though it occurred at an earlier time. This means that if the plaintiff timely files a lawsuit, new parties may be added to the lawsuit even after the statute of limitations expires.

For example, Plaintiff Jones is involved in a motor vehicle accident with Defendant Smith on November 1, 2015. On October 31, 2017, Plaintiff Jones timely files a lawsuit against Defendant Smith for personal injuries. During the course of gathering evidence in discovery, Plaintiff Jones learns that, at the time of the accident, Defendant Smith was operating his vehicle within the course and scope of his employment with a corporation.

Subsequently, on January 10, 2018, Plaintiff Jones files an amended complaint that names the corporation as a defendant, under the theory that it is vicariously liable for Defendant Smith’s negligence. In this situation, Plaintiff Jones’ amended complaint “relates back” to the date of filing of the original complaint. Since Plaintiff Jones has sued the corporation for the same auto accident the original complaint was based upon, the corporation is legally considered to have been named as a defendant when Plaintiff Jones filed his original complaint on October 31, 2017.

But the Relation Back Doctrine does not apply to a wrongful death action. New plaintiffs cannot join an existing wrongful death lawsuit more than 2 years after the victim’s death. This can be disastrous for wrongful death plaintiffs who are seeking to maximize the value of their claims by adding as many plaintiffs to the lawsuit as possible.

I have personally seen just how Draconian and unforgiving this rule can be. A few years ago, I defended a wrongful death case where the victim fell off a ladder and died on August 31, 2015. The three plaintiffs—the victim’s wife and two daughters—filed a wrongful death lawsuit on August 31, 2017, the last possible day to do so. The plaintiffs’ attorney later discovered that the victim had 11 other children living in Guatemala. In November 2018, the plaintiffs’ attorney filed a motion to allow the plaintiffs to add the victim’s 11 additional children as plaintiffs. I opposed that motion by arguing that the statute of limitations expired on August 31, 2017, and the Relation Back Doctrine could not be used to salvage the prospective plaintiffs’ claims. The judge agreed. Shortly thereafter, the case settled. Had the plaintiffs’ attorney been able to add 11 new plaintiffs to the lawsuit, it would have inflated the case settlement value by several orders of magnitude.

V. Conclusion

Like any civil action, the number of plaintiffs suing the defendant in a wrongful death lawsuit matters. More plaintiffs means more relationships lost because of the victim’s death. But unlike other lawsuits, wrongful death actions are subject to unique procedural rules that can limit the defendant’s exposure to a large damages award. Defendants, their attorneys, and their insurance carriers must understand how to maximize the advantages presented by these rules.

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Supreme Court Limits Application of Prop. 51

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A new unanimous ruling by the California Supreme Court takes away any doubt as to Proposition 51’s applicability to intentional tortfeasors and increases concerns for multi-defendant litigation. While California’s Proposition 51 (Civil Code section 1431.2) states that all defendants are jointly liable for all economic damages, it further states that “each defendant shall be liable only for . . .non-economic damages . . . in direct proportion to that defendant’s percentage of fault.”

In B.B. v. County of Los Angeles, the Supreme Court unanimously ruled that section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.” The holding resolves a split among California appellate courts as to Proposition 51’s applicability to intentional tortfeasors.

B.B. v. County of Los Angeles involves the death of an African American man caused by excessive police force. Although involved officer, Deputy Aviles, was found to be liable for battery and only 20% responsible, the trial court held him liable for 100% of the economic and non-economic damages. In comparison, decedent was found to be 40% responsible and several deputies were found to be negligent and collectively 40% responsible. The Court of Appeal reversed this decision. However, the Supreme Court reversed the Court of Appeal, stating “California principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others.”

In noting the racial dimensions of this case, Justice Chin stated, “We are cognizant that the facts of this case bear similarities to well-publicized incidents in which African Americans have died during encounters with police. These incidents raise deeply troubling and difficult issues involving race and the use of police force. But the question plaintiffs raise in this case — whether and how section 1431.2 applies to intentional tortfeasors — does not turn upon either the decedent’s race or the fact that a law enforcement officer, rather than a civilian, committed the intentional tort.” As such, the Supreme Court made it clear that this holding applies with equal vigor to all multi-defendant litigation.

The unfortunate consequence of this ruling is the strong incentive for plaintiffs to now allege intentional torts in multi-defendant litigation, as the defendant found liable for the intentional tort will be responsible for all noneconomic damages rather than a portion thereof. In addition to the hurdle of facing large noneconomic damages verdicts, intentional acts are often excluded from liability insurance policies.

Nuances of Defending Cases Involving Transportation Network Companies

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By: Kelsey L. Maxwell

USLAW Magazine

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As ride shares become more prevalent, it follows that Transportation Network Companies (TNCs) will become an increasingly popular target for litigation. While liability issues may be clear-cut in a simple auto negligence matter, liability for TNCs becomes murky when drivers engage in separate misconduct such as driving under the influence or engaging in sexual assault. In most states, common defenses in these matters include (1) a lack of an employment relationship between the TNC and driver, (2) assertions that the driver’s conduct is outside the scope of employment, and (3) assertions that TNCs cannot be held liable for negligent hiring or supervision if they did not, and reasonably should not have known about prior misconduct.

Drivers Are Independent Contractors

In California, while a corporation may be held vicariously liable as a principal for the torts of its agents, the converse is true that if an individual is deemed to be an independent contractor and not an agent or employee, vicarious liability will not attach. Typically in cases involving TNCs, California courts have held that the tortfeasor’s employment status is a question of fact.

The factors a court uses to determine independent contractorship include (1) the right to control the work; (2) the alleged employee’s opportunity for profit or loss depending on his managerial skill; (3) the alleged employee’s investment in equipment or materials required for his task; (4) whether the service rendered requires a special skill; (5) the degree of permanence of the working relationship; and (6) whether the service rendered is an integral part of the alleged employer’s business. For TNCs, the important factors favoring an independent contractor designation include the fact that typically, drivers are paid per ride (as opposed to a salary), drivers provide their own vehicles and auto insurance, and drivers can choose their own hours and length of work. It is often highlighted as one of the perks to working for TNCs that drivers can be their own boss and make money on their own terms.

In a recent case involving a Grubhub driver who also worked for Lyft and Uber, the Ninth Circuit Court found that the factor of at will termination does not weigh in favor of an employment relationship because the right was mutual. In further support of a defense to the control argument, the Ninth Circuit held that a mutual termination provision with 30 days’ notice and a one-year term was consistent with an independent contractor relationship because “the designated impermanency of the relationship supports a finding of independent contractor status.” That being said, California cases have cited factors such as the company controlling rates and routes, and imposing rules regarding the cleanliness of vehicles as well as prohibited contact with customers as indicative of an employee relationship.

Alternatively, in states such as Nevada, drivers for TNCs are classified as independent contractors working commercially when they carry paying passengers. As such, TNCs have a benefit from the outset that there is no employer/employee relationship presumed.

As various jurisdictions differ on this issue, TNCs should monitor case law across the country and weigh the options of adjusting policies to further support the position that the drivers are independent contractors in the states where the issue is a question of fact.

Driver’s Conduct is Outside the Course and Scope of Employment Relationship

A second defense available to TNCs when a driver engages in misconduct, is the argument that the driver’s tortious actions were outside the course and scope of the employment relationship. In determining whether an individual’s actions were within the course and scope of his employment relationship, California courts have held that “respondeat superior liability does not attach simply because employment brought the employee and victim together at a certain time and place. The employee’s activities must be inherent in, typical of or created by the work so that it is a foreseeable risk of the particular employment.” Typically, whether the tort occurred within the scope of employment is a question of fact.

In cases of intoxicated drivers, factors to consider include whether the incident occurred during working hours and whether the alcohol consumption was done in a manner which benefited the employer. In the cases of sexual misconduct, factors to consider include whether the TNC app was in use at the time of the assault and whether the sexual assault is determined to be incidental to the operation of the business.

Transportation Network Companies Cannot Be Held Liable For Negligent Hiring Where a Driver Does Not Have a Known History of Misconduct

A third defense TNCs may rely on in cases of driver misconduct is the defense that the company should not be liable for negligent hiring where there is no known history of misconduct. For example, in California in the Doe v. Uber Techs., Inc. matter, the Court granted Uber’s motion to dismiss as to one driver when Plaintiffs did not allege that anything existed in the driver’s background that Uber knew or should have known and that should have prevented Uber’s approval of the driver. However, the motion to dismiss was denied as to the second driver where a 7-year background check revealed no misconduct, but the driver had a domestic violence conviction 12 years earlier.

In some jurisdictions, TNCs face additional requirements for operation including insurance coverage and fingerprint based background checks. Thus in order to decrease liability for negligent hiring and supervision claims, TNCs must comply with extensive background check requirements.

More states are now requiring TNCs to conduct background checks on each driver applicant and also requiring that they perform an additional check every so often. However, some of these same states allow for the sealing of certain criminal records statutory time limits. Thus, even by employing these additional measures to verify driver backgrounds, an added layer of uncertainty still exists. As such, TNCs should conduct comprehensive background checks on potential drivers to ensure that any potential past misconduct is known prior to permitting the individual to become a driver.

Additional Considerations Regarding Punitive Damages

In certain circumstances, an employer may be liable for punitive damages based upon an employee’s wrongful actions such as when the employer had advance knowledge that the employee was unfit, the employer expressly authorized or ratified the conduct or the employer is personally guilty of oppression, fraud or malice.

A common defense to suits that allege driver misconduct is that the Plaintiff’s claims arise solely from the misconduct of the driver. Thus, employers should take prompt steps to stop the behavior to avoid the perception of inadequate investigation. By ride share companies promptly responding to allegations of driver misconduct , they can avoid exposure to liability.

Conclusion

As Uber, Lyft, and other TNCs continue to increase in popularity, so does the litigation surrounding their use. One would be amiss to simply consider this ever-developing type of litigation to be no different than any other traditional case. Defense counsel must be aware of the fact-sensitive liability defenses, and the companies should take proactive steps to limit liability based on the emerging case law.

Bad Faith Personal Liability of Claims Adjusters Arising Out of Claims – Handling Conduct

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IADC Committee Newsletter

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A recent decision from the Court of Appeals in the State of Washington, Keodalah v. Allstate Ins. Co., 413 P.3d 1059 (Wash. 2018)(“Keodalah”)has sent “shock waves within the claim industry” by holding that individual insurance adjusters can be held liable for “bad faith” with respect to their conduct in handling a claim, in addition to possible liability under the state’s consumer protection statute. While Keodalah has been accepted for review by the Washington Supreme Court, it is nevertheless an important decision that insurance practitioners should follow. This article will address that decision, as well as decisions in other jurisdictions addressing this issue.

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IS THE ATTORNEY CLIENT PRIVILEGE UNDER ATTACK?

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By: Gina E. Och

USLAW Magazine

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In light of the recent issues under the Trump administration, in addition to evolving legal developments, the question is being asked—is the attorney-client privilege under attack? This article will examine the measures that have been seemingly taken to degrade the attorney-client privilege in order to reach corporate wrongdoing, including their implications for in-house counsel, corporate clients and individuals.

Watering down the attorney-client privilege and work product doctrine to attack corporate wrongdoers

The U.S. Supreme Court has long upheld the importance of attorney-client privilege, because the privilege “encourage[s] full and frank communication between attorneys and their clients.” Upjohn Co. v. United States, 449 U.S. 383 (1981). Both “the giving of professional advice to those who can act on it” and “the giving of information to the lawyer to enable him to give sound and informed advice” are protected. Id. at 390. The privilege applies both to individual and to corporate clients. Nonetheless, claims of privilege in the modern corporate context have faced challenges. For example, because counsel, especially in-house counsel, have become widely involved in business operations, “render[ing] decisions about business, technical, scientific, public relations, and advertising issues, as well as purely legal issues,” not all communications are presumptively privileged. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 797 (E.D. La. 2007) (organizations “usually cannot claim that the primary purpose” of emails directly addressed to both attorneys and non-attorneys is for legal advice or assistance); see Anaya v. CBS Broad., Inc., 251 F.R.D. 645 (D.N.M. 2007) (the mere fact that an attorney is involved in a communication does not make that communication privileged).

The modern work-product doctrine traces back to the U.S. Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495 (1947), in which the Court sought to foreclose unwarranted inquiries into attorneys’ files and mental impressions in the guise of liberal discovery. In Hickman, the Supreme Court held that an attorney must “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel” and be free to “assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” Id. at 510-11.

Though the two principles of attorney client privilege and work product doctrine are related, there are distinct differences between them. Generally, in contrast to the attorney-client privilege, which may be asserted only by the client, either the attorney or the client may invoke the work-product doctrine.

Moreover, the attorney-client privilege protects confidential communications (including documents) between attorneys and their clients; in order to enjoy the privilege, the exchange of information can only take place between the client and her attorney (and staff). In contrast, the work product doctrine extends to the work product of the attorney and her agents (such as investigators and insurers) acting at her instruction, along with documents commemorating communications with third-party witnesses; of course such documents must be prepared in anticipation of litigation to be afforded protection.

Similarly, the attorney-client privilege, though narrow, is an unqualified privilege, which will be upheld if an attorney-client relationship exists and the proper steps are taken to maintain confidentiality. The work product doctrine protects only the actual product of the attorney, such as documents, without protecting the subject matter of the documents, and can itself be pierced by a showing of “substantial need” and “undue hardship” so long as the attorneys’ and their representatives’ “mental impressions’ and “legal theories” are not compelled.

It is against this backdrop that government actors have begun to test the limits of these protections.

The “Yates Memo”

In 2015, while still deputy attorney general, Sally Yates issued a memorandum to all Justice Department attorneys titled “Individual Accountability for Corporate Wrongdoing.” This memo instructs all government attorneys to go beyond simply investigating corporations for criminal wrongdoing, and encouraged them to investigate individual corporate employees as well. Given the methodology laid out in this memorandum, and the stated objective of assessing criminal penalties against individuals, the effect of this memorandum has been to complicate the preservation of the attorney-client privilege.

Further, though this memorandum was presumably created in response to public outcry about the failure to prosecute individual decision makers, who bore responsibility for the banking and financial sectors crises, the memorandum is applicable to the corporate world at large and can in practice lead to the disclosure of confidential and protected information.

The Yates memorandum lays out “six key steps” for ferreting out corporate wrongdoing. The first is the most relevant to this discussion–to be eligible for any cooperation credit, corporations must provide all relevant facts about the individuals involved in the alleged corporate misconduct.

Although the DOJ has traditionally emphasized the importance of identifying culpable individuals, prior to the memorandum, companies were often allowed to disclose improper corporate practices without identifying the specific individuals involved and still avoid indictment. This practice is now specifically disallowed, pitting the corporation against the individuals who comprise it.

Further, the treatment of privileged information is now uncertain. Under the DOJ Principles of Federal Prosecution of Business Organizations, corporations need not disclose, and prosecutors may not request, attorney work product as a condition of receiving cooperation credit. However, it is becoming apparent that attorney interviews of witnesses and potentially culpable employees – the primary mechanism used by a corporation to gather information about misconduct – will not necessarily remain protected work product. Recently, a federal magistrate ordered production to third parties of witness interview memoranda from an internal investigation in related civil litigation, finding that attorneys had waived attorney work product protection when they orally disclosed the substance of the memoranda to the government, reasoning that the disclosure amounted to an “oral download, and went beyond offering only detailfree conclusions or general impressions.” SEC v. Herrera, Case No. 17-CV-20301 (S.D. Fl. Dec. 5, 2017). Since this common practice of sharing information with the government following an internal investigation is virtually mandated by the DOJ in order to gain cooperation credit, it places corporations in a nearly impossible position if they hope to cooperate with the government and still maintain legal protection over internal investigation materials (which can then be used in subsequent civil litigation by DOJ or third parties).

Even more, in November 2017, the DOJ released its Corporate Enforcement Policy related to the Foreign Corrupt Practices Act (FCPA), the objective of which is to incentivize companies to cooperate with DOJ by offering presumptions of declination for voluntary self-disclosures of violations. But to receive credit under the new guidelines, companies must give “full cooperation” to DOJ, including proactive disclosure of “all relevant facts gathered during the company’s independent investigation” and “attribution of facts to specific sources where such attribution does not violate the attorney-client privilege, rather than a general narrative of facts.”

Thus, in light of these competing interests, corporations and their counsel must be particularly mindful of the level of detail being provided to the government to prevent waiver, while attempting to maximize the cooperation credit available.

The Cohen Documents

There are limited exceptions to the attorney-client privilege. Thus, it is well-settled that the attorney-client privilege does not protect communications between an attorney and a client in furtherance of illegal conduct or which is predicated upon covering up a crime, regardless of whether the parties intended the communications to remain “confidential.” Relying on this exception, on April 9, 2018, the U.S. Attorney’s Office for the Southern District of New York executed a series of search warrants to seize materials from the office, home, and hotel room of President Donald Trump’s personal attorney Michael Cohen, after receiving a referral from Special Counsel Robert Mueller.

To obtain the search warrant, prosecutors convinced a federal judge that there was probable cause that investigators would find evidence of criminal activity, and reason to believe that the attorney might destroy the evidence, thus justifying a warrant rather than a subpoena. The affidavits supporting the warrant application would have made a prima facie case that the attorney-client communications were not privileged because Cohen was involved in committing or planning some type of fraud. Once the documents were seized, instead of employing the traditional and separate “taint team” to review the documents for privileged material before turning it over to investigators, a “Special Master” was appointed to determine which documents could be turned over to federal prosecutors.

Thus, though President Trump famously tweeted after the raid that the “Attorney Client privilege is now a thing of the past,” and that the privilege was “dead,” there is probably less to fear for the average corporate actor and attorneys from this particular set of sensational facts than there is from the uncertainty surrounding the incremental erosion of the attorney-client privilege and work-product doctrine by the DOJ’s current stated policy of punishing individuals for corporate malfeasance. In any event, these recent examples show just how far the boundaries of these privileges are being pushed, and are a reminder to corporations, corporate representatives, and their attorneys to remain vigilant about safeguarding these protections.

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