<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by blackbutterfly:
I am handling my own P.I. case In Pro Per. I am suing my landlord and the property manager is a witness to the incident. The landlord's insurance co. took manager's statement while it was on an administrative level and before their attorney got involved. Now we are in the litigation stage and conducting discovery. I found out about the manager's recorded statement through their response to the interrogatories I served on them, but they objected to producing the statement stating it is work product privilege and attorney-client privilege. My question is 2-part. (1)Am I entitled to that statement since it was taken by the ins. co. while it was an ins. claim not a lawsuit and before the attorney was involved and (2) If so, should I serve a subpoena on the ins. co to get it or should I go on a motion to compel the attorney to turn it over. Also, can you direct me to any Calif. case law that would support my motion.
I will be researching this, but any input would be greatly appreciated. Thank you
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My response:
Prelawsuit communications: Although one of the requirements is that the publication be made "in" a judicial proceeding, several cases have extended the privilege to statements made before suit is filed. It is sufficient that the communications have "some relation" to an anticipated lawsuit. [Rubin v. Green (1993) 4 Cal.4th 1187, 1194, 17 Cal.Rptr.2d 828, 832--resident of mobilehome park (an attorney) warned owner of intent to sue for enumerated defects and "solicited" other residents as clients in the anticipated litigation]
Rationale: An attorney's representation includes negotiations before suit as well as court proceedings. [Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 577, 131 Cal.Rptr. 592, 594--demand letter sent before suit filed]
Nature of prelawsuit communication: As long as the purposes of the litigation privilege are served thereby, the privilege extends to such prelawsuit communication as:
-- demand letters from an attorney to a potential adversary;
-- statements made during investigative interviews with private individuals prior to a hearing; or
-- correspondence to persons with potential claims seeking support for filing a lawsuit. [Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 781-782, 54 Cal.Rptr.2d 830, 833]
Requirements for privilege: The statements must have "some relation to a proceeding contemplated in good faith and under serious consideration" by a possible party to the proceeding. [Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 262, 68 Cal.Rptr.2d 305, 310; see also Laffer v. Levinson, Miller, Jacobs & Phillips (1995) 34 Cal.App.4th 117, 123-124, 40 Cal.Rptr.2d 233, 237-238, and cases cited therein]
"Good faith" and "serious consideration of litigation" are addressed to the Silberg requirement that the statement have some "connection or logical relation to the action". [Aronson v. Kinsella, supra, 58 Cal.App.4th at 263, 68 Cal.Rptr.2d at 312]
Does not affect absolute nature of privilege: One case states these requirements render the litigation privilege for prelawsuit statements "qualified" rather than absolute. [Laffer v. Levinson, Miller, Jacobs & Phillips, supra, 34 Cal.App.4th at 124, 40 Cal.Rptr.2d at 238]
But that is inaccurate because qualified privileges can be defeated by proof of malice. If "good faith" and "serious consideration" are shown, defendant's motives are immaterial; the privilege is absolute. [Aronson v. Kinsella, supra, 58 Cal.App.4th at 265, 68 Cal.Rptr.2d at 312]
Separate "imminency" requirement? Some cases state as a separate requirement that the contemplated litigation be "imminent" and impending when the statement is made, rather than merely a possibility. [See Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35, 61 Cal.Rptr.2d 518, 521]
But other cases reject this as a separate requirement; i.e., it is enough that litigation was under "serious consideration." [See Aronson v. Kinsella, supra, 58 Cal.App.4th at 268, 68 Cal.Rptr.2d at 314]
Factors considered: In determining whether a prelawsuit statement was made in "good faith" and in "serious consideration of litigation," or merely a negotiating tactic, courts consider such factors as:
· the strength or weakness of the claim asserted;
· the claimant's subsequent failure to file the threatened action (Laffer v. Levinson, Miller, Jacobs & Phillips, supra, 34 Cal.App.4th at 124, 40 Cal.Rptr.2d at 238; but see Aronson v. Kinsella, supra, 58 Cal.App.4th at 268, 68 Cal.Rptr.2d at 314--privilege upheld where lawsuit never filed);
· whether the statement was made to resolve a bona fide dispute rather than merely a means of obtaining a settlement (see Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35, 61 Cal.Rptr.2d 518, 521);
· the proximity in time between the statement and the litigation (see Edwards v. Centex Real Estate Corp., supra, 53 Cal.App.4th at 35, 61 Cal.Rptr.2d at 521--statements made many years before litigation commenced held not privileged).
But there is no requirement that a complaint be drafted or in the process of being drafted for the privilege to apply. [See Aronson v. Kinsella, supra, 58 Cal.App.4th at 268, 68 Cal.Rptr.2d at 314--rejecting any separate "imminency" requirement]
Good luck.
IAAL
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