A recent appellate decision in Wood v. Superior Court (Jamacha), made clear that those who file complaints with the California Department of Fair Employment and Housing (DFEH) do not have an attorney-client relationship with counsel for DFEH and thus communications with DFEH’s counsel are not protected by the attorney-client privilege.
In Wood, Plaintiff contacted DFEH to report alleged gender discrimination by her fitness club, Crunch. After an investigation, DFEH filed a lawsuit against Crunch for unlawful discrimination on the basis of gender identity or expression and Wood intervened as a plaintiff in the lawsuit. During discovery, Crunch requested that Wood produce all communications with DFEH related to Crunch. Wood declined to produce a prelitigation email from herself to DFEH attorneys on the grounds of attorney-client privilege. Crunch moved to compel production.
The appellate court held that DFEH lawyers have an attorney-client relationship with DFEH, an agency of the State of California, not with a complaining party. Thus, the attorney-client privilege did not apply to communications between a complaining party and DFEH lawyers and such communications were and are discoverable.
This recent case illustrates how important it is to critically evaluate an adverse party’s invocation of the attorney-client privilege in discovery proceedings. Contact Hart Kienle Pentecost for any questions regarding defense DFEH matters. Experience Matters. We can help.
By: Kristen Erney, Associate / [email protected]