10 Things You Need to Know About Car Accident Discovery Disclosure

What are discoverable for Car Accident Lawsuit? As a general rule, discovery may be obtained as to any nonprivileged information “that is relevant to the subject matter involved.” Under CCP § 2017.010, “Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.  Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.”

Medical history/medical records

Under California Evidence Code section 996, ” There is no privilege under this article as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by:

(a) The patient;

(b) Any party claiming through or under the patient;

(c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party;  or

(d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.

Where plaintiff sues for personal injuries, the physician-patient and psychotherapist-patient privileges are waived for conditions “tendered” in the action (Evidence Code §§ 996, 1016 or related to the issue of proximate causation (Evidence Code § 999)

Privacy rights subordinate only to directly relevant medical information.

Filing a personal injury lawsuit does not does not open up plaintiff’s “lifetime” medical history. “An implicit waiver of a party’s constitutional privacy rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit.” (Vinson v. Super.Ct. (Peralta Comm. College Dist.) (1987) 43 Cal.3d 833.) In Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th 345, 354, plaintiff’s HIV-positive status bore no relation to injuries sustained in “garden variety” rear-end auto accident (invasion of privacy suit based on disclosure of information improperly obtained through discovery.

Thus, notwithstanding alleged “tender of issue” waiver of a physician- patient/psychotherapist-patient privilege, plaintiffs can still assert the right of privacy to prevent disclosure of confidential medical information not directly relevant to the lawsuit. The burden then shifts to the party seeking the information to establish direct relevance.

Mental health records in “garden variety” injury suit seeking “pain and suffering” damages

California courts has held that, “Plaintiff, by filing a garden-variety personal injury action, had not tendered an issue as to her present mental and emotional condition, even though she was entitled to pursue noneconomic damages such as pain and suffering, mental suffering, and emotional distress arising from her alleged injuries. Plaintiff’s counsel, in a declaration in support of the motion to quash, expressly stated that plaintiff was making no claim for mental and emotional distress apart from pain and suffering associated with the injuries she sustained in the accident, and that the women’s center had provided no treatment in connection with those injuries. The court further held that plaintiff met her burden of establishing that the particular records sought were within a constitutionally protected zone of privacy.” Davis v. Superior Court, 7 Cal. App. 4th 1008

By limiting a claim for emotional distress to pain and suffering associated with specified physical injuries, and by explaining that a mental health professional (whose records defendant is seeking) provided no treatment in connection with the injuries for which compensation is sought, plaintiff establishes it is not reasonably probable the records are directly relevant to the condition placed in issue. Here, plaintiff’s privacy rights prevail unless defendant counters with an explicit showing of direct relevance. (Davis v. Super.Ct. (Williams), supra, 7 Cal.App.4th at 1014-1018, routine auto accident case claiming pain and suffering damages did not open up discovery to plaintiff’s post accident mental health records where P established those records did not concern treatment for injuries for which she was claiming damages.

In Urbaniak v. Newton (1991) 226 Cal.App.3d 112, the court held that privacy protection for patient’s HIV positive status disclosure during defense medical exam where disclosure irrelevant to underlying workers’ comp case.

Parties’ Insurance coverage

Defendant’s Pre-lawsuit Disclosure:

By statute, absent the insured’s express authorization, third party claimants have no right to obtain disclosure from insurers of their insureds’ “policy limits” (or other coverage information) before a lawsuit is filed. (Ca Ins § 791.13; Griffith v. State Farm Ins. Cos. (1991) 230 Cal.App.3d 59.)

The Discovery Act expressly makes discoverable the existence and contents of a defendant’s liability insurance coverage, as well as the carrier’s identity, the nature of coverage and the policy limits. In fact, the entire policy must be produced upon request (although defendant may move for a protective order against unwarranted disclosure of particular portions of the policy). (Ca Civ Pro § 2017(b); Irvington-Moore, Inc. v. Super.Ct. (Jordan) (1993) 14 Cal.App.4th 733, 739- 740.)

Plaintiff’s physical/mental health.

By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable (“tender of issue” exception to physician-patient/psychotherapist- patient privileges, see ¶6:71 ff.). (Evidence Code §§ 996, 1016; Britt v. Super.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844.

Records of “unrelated” conditions discoverable re cause of accident

Normally, information about medical conditions entirely different from the injury sued upon are beyond the scope of discovery (not “relevant to the subject matter”). However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. (Evidence Code § 999) In Slagle v. Super.Ct. (Maryon) (1989) 211 Cal.App.3d 1309, plaintiff’s history of eye treatment discoverable since relevant to cause of auto accident (“good cause” shown by info plaintiff was blind 6 months before accident))

Even so, plaintiff may request a court-conducted in camera inspection of the medical records ordered produced pursuant to Evidence Code § 999 to ensure that information extraneous to the lawsuit (bearing neither on proximate cause nor on the injury sued upon) is not revealed. (Evidence Code § 915 only prohibits the court from requiring such an inspection in ruling on the claim of privilege.) (Slagle v. Super.Ct. (Maryon), supra (dictum))

Settlement offers, terms and conditions

Discovery is generally not permitted into prior settlement offers and negotiations between the parties. This evidence is expressly inadmissible at trial to prove liability for the loss or damage to which the negotiations relate or to prove the invalidity of the claim in whole or in part (Evidence Code §§ 1152, 1154). Even if arguably relevant as an admission of liability, the opposite may also be true–i.e., defendants often settle even frivolous lawsuits simply to “buy peace.” (See Covell v. Super.Ct. (1984) 159 Cal.App.3d 39. In Norton v. Super.Ct. (Ein) (1994) 24 Cal.App.4th 1750, 1758-1759, evidence concerning amount of clients’ insurance settlement not discoverable in their legal malpractice action on issue of damages because inadmissible to reduce recoverable damages).

Medi-Cal and Medi-Care Confidential

“Confidentiality” of Medi-Cal records: Official records and information pertaining to a patient’s eligibility or noneligibility for Medi- Cal benefits are “confidential” and “not . . . open to examination other than for purposes directly connected with the administration of the Medi-Cal program” absent the patient’s informed consent. (Ca Wel & Inst § 14100.2(a); and see Ca Wel & Inst § 14100.2(b) (identifying protected information) & (c) (defining “purposes directly connected with the administration of the Medi- Cal Program”); and 42 CFR § 431.300 et seq.)

This confidentiality requirement is strictly applied, rendering protected records and information “off limits” even to health care providers. In  Department of Health Services v. Super.Ct. (Torrance Mem. Hosp.) (1991) 232 Cal.App.3d 776, the hospital seeking professional services reimbursement could not compel production of patient’s Medi-Cal records because not “directly connected” with administration of Medi-Cal program)

Liable Party’s Insurance Coverage.

“The language of Code Civ. Proc., § 2017.210, allows for discovery of the existence and contents of liability insurance policies that may be available to satisfy a judgment, not the assets of the insurance companies providing the insurance. Reinsurance is an asset of a liability insurer, just as capital reserves are, and nothing in prior case law, legislative history, or the statutory language suggests that either the common law right to discover insurance information or § 2017.210 authorize broad discovery of the financial health of the liability insurer or its ability to meet its contractual obligations under its policies. There may be limited circumstances under which a liability insurer’s reinsurance agreements will be directly on the risk to satisfy a judgment in an underlying tort action in the same way as the defendant’s liability insurance coverage itself. One example is when a liability insurer is fronting for a reinsurer who is the de facto primary insurer.” (Catholic Mutual Relief Society v. Superior Court, 42 Cal. 4th 358.)

Identity of witnesses

“Unless otherwise limited by order of a court in accordance with the discovery statutes, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter.”  (Gonzalez v. Superior Court, 33 Cal. App. 4th 1539; Cal. Civ. Proc. Code § 2017(a))

Identity of Expert witnesses

“An expert witness may be a consulting expert, retained only to assist counsel in the preparation of the case. Alternatively, an expert may be a testifying expert, retained only to give a professional opinion at trial. In many cases, an expert is retained both to consult and to testify. If the expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel. The attorney-client privilege applies to communications to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, as provided in Evid. Code, § 952; this clearly includes communications to a consulting expert. Similarly, a consulting expert’s report, prepared at the attorney’s request and with the purpose of assisting the attorney in trial preparation, constitutes work product, entitled to conditional protection and barred from discovery in the absence of good cause. The situation is different, however, with a testifying expert. As a general rule, neither the attorney-client privilege nor the work product protection will prevent disclosure of statements to, or reports from, a testifying expert.” (DeLuca v. State Fish Co., Inc., 217 Cal. App. 4th 671.)

Other claimants and similar accidents

Information about similar claims against defendant and accidents may be discoverable. In Davies v. Superior Court the California Supreme Court considered the intersection between confidentiality safeguards and the liberal requirements of litigation-related discovery. Davies v. Superior Court, 36 Cal. 3d 291.  The petitioner in Davies sought traffic collision reports of accidents and certain collision diagrams prepared in conjunction with California Highway Patrol investigations of accidents occurring in the same location. Davies, 36 Cal. 3d at 295. The State refused to produce these documents on the grounds that accident reports of the California Highway Patrol [**23] are confidential under the relevant statute, 6Link to the text of the note and the diagrams requested encompassed information from those reports. The California Supreme Court emphasized that confidentiality concerns and extensive pretrial discovery must be accommodated so as to further both purposes to the extent possible. Id. at 299. “In construing a statute which accords confidentiality to information sought by discovery liberality in allowing discovery is the rule unless statutory or public policy considerations clearly prohibit it.” Id. at 300. Courts must balance the purposes of liberal discovery rules, which include expedition of litigation and efficacious fact-finding, against the purpose of confidentiality protections, which is to encourage persons involved to give a full and accurate account.

The court in Davies ultimately found that the statute did not provide that data generated from accident reports should be kept confidential, because important public policy concerns supported revelation of information which might reveal a defective condition of public property. Id. at 300. The court observed that: [*428] “this data easily can be made available without indication of the identity of the reporting person or persons and can be disclosed without compromising the confidentiality of identifying information in the reports themselves.” Id.

Prior Traffic Accidents

Traffic accidents report may be discoverable. “While Veh. Code, § 20012 provided for the confidentiality of traffic accident reports, the purpose therefor was to encourage parties and witnesses to report accidents completely and truthfully, but not to protect the state from its duty to acknowledge the fact of prior accidents. Accordingly, the court held plaintiffs were entitled to discovery as to the fact of the prior accidents and to their number, but not to the identity of the persons involved in the accidents, the witnesses, the investigating officers or the details contained in the report. The court also held the state made an adequate foundational showing for the privilege claim in the trial court. The court rejected the state’s contention that discoverable material was limited to prior accidents.”( State of California ex rel. Department of Transportation v. Superior Court, 102 Cal. App. 3d 25.)

Discovery Privileges and Discovery Protective Order

“The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. A trial court must balance the various interests in deciding whether dissemination of the documents should be restricted. Further, even where a motion for a protective order is denied in whole or part, the trial court may still impose terms and conditions that are just.” (Nativi v. Deutsche Bank National Trust Co., 223 Cal. App. 4th 261.) Code Civ. Proc., § 2025.420, subd. (g); Code Civ. Proc., § 2031.060, subd. (g).

In determining when a protective order is appropriate in order to protect confidential information, “the issue entails conflicting interests. On the one hand, parties seeking discovery are entitled to all information ‘reasonably calculated to lead to the discovery of admissible evidence,’ … an intentionally broad mandate. On the other hand, responding parties are entitled to protection from ‘undue burden’ in discovery, including protection from misuse of trade secrets by competitors. These conflicting interests suggest that a balancing test will best resolve protective order disputes such as the one here.

As a result, in order to resolve the respective motions for protective order, the Court must balance the interest in discovering information against the interest of protecting sensitive information held by the party moving for a protective order. An important reality to note in determining the appropriateness of a protective order is the realization that “it is very difficult for the human mind to compartmentalize and selectively suppress information once learned, no matter how well-intentioned the effort may be to do so.

Attorney-client privilege.

(Evidence Code §§ 950-962)

Agents: The “professional relationship” also extends to agents and investigators working on the attorney’s or client’s behalf for purposes of transmitting information between attorney and client (e.g., expert hired to examine client and report back to attorney, City and County of San Francisco v. Super.Ct. (1951) 37 Cal.2d 227. An agent includes the officers of a corporate party reporting relevant facts to corporate party’s attorney, Mills Land & Water Co. v. Golden West Refining Co. (1986) 186 Cal.App.3d 116.)

Corporate employees

The privilege is broad enough to protect counsel’s communications with a corporate client’s employees. (Bobele v. Super.Ct. (Valley Hilton Hotel) (1988) 199 Cal.App.3d 708)

The “test” for employee protection does not literally turn on whether the employees in question are members of the corporation’s “control group.” “Middle-level–and indeed lower- level–employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.” (Bobele v. Super.Ct. (Valley Hilton Hotel), supra, 199 Cal.App.3d at 712)

The more appropriate inquiry is whether employee communications to the corporation’s lawyer involve a subject matter that is part of the employee’s job responsibilities (below). (Upjohn Co. v. United States, supra, 449 U.S. at 394-395, 101 S.Ct. at 685)

Employee witnesses

An employee who witnessed a matter requiring communication to corporate counsel and who had no connection with that matter other than as a witness is treated simply as an independent witness. The fact the employer requires the employee to communicate the information to counsel does not itself bring the communication within the attorney-client privilege. (Martin v. WCAB (1997) 59 Cal.App.4th 333, 346.

On the other hand, if the employee’s connection with the subject matter arose out of his or her employment and the employer directed the employee to make a statement or report for confidential transmittal to corporate counsel, the employee is no longer an independent witness; his or her communication is deemed that of the employer. (D.I. Chadbourne, Inc. v. Super.Ct. (Smith), supra, 60 Cal.2d at 737.) In Sierra Vista Hosp. v. Super.Ct. (Shaffer) (1967) 248 Cal.App.2d 359, an attorney-client privilege protected hospital employees’ routine and confidential reports to counsel of incidents that might result in lawsuits)

Former employees

If an employee’s “communication” is protected by the attorney-client privilege, it remains protected even after the employment terminates. Opposing counsel has no right (over proper privilege objection) to delve into such privileged communications; and a protective order may issue, if necessary, to preserve the confidentiality of those communications. This is especially true for communications involving former employees who were (or still are, e.g., in a now-corporate director capacity) members of the corporation’s “control group.” (Cf. Bobele v. Super.Ct. (Valley Hilton Hotel), supra, 199 Cal.App.3d at 714.)


Counsel’s disclosure of confidential client communications to an expert consultant or potential expert witness on behalf of the client are likewise protected by the attorney/client privilege when disclosure is reasonably necessary to further the attorney’s representation of the client’s interests. The attorney’s consultations with the expert are protected even if the expert is not thereafter retained, so long as there was a reasonable expectation of confidentiality. (Shadow Traffic Network v. Super.Ct. (Metro Traffic Control, Inc.) (1994) 24 Cal.App.4th 1067, 1079, 1080.)


Spousal privileges

(Evidence Code §§ 970-987)

Physician-patient/psychotherapist-patient privileges

These two privileges parallel each other: Confidential communications between doctor and patient or psychotherapist and patient during the professional relationship are privileged. (Evidence Code §§ 990 et seq.)


Physician-patient privilege.

(Evidence Code §§ 990-1007)

Psychotherapist-patient privilege. (Evidence Code §§ 1010-1028; e.g., San Diego Trolley, Inc. v. Super.Ct. (Kinder) (2001) 87 Cal.App.4th 1083, 1090-1092.)


Educational psychologist-patient privilege.

(Evidence Code § 1010.5)

“Professional relationship” prerequisite: The privilege does not attach to personal medical information per se. Rather, it applies only to confidential communications (below) made in the course of a physician-patient (or psychotherapist-patient) relationship. Such a relationship arises where a “patient” consults a physician (or psychotherapist) to secure preventive, palliative or curative treatment of a physical or mental ailment. (See Evidence Code §§ 991, 992, 1011, 1012)

“Nonpatient” medical information not privileged: Thus, personal medical information disclosed outside of a physician-patient (or psychotherapist-patient) relationship is not protected by the privilege. This is so even where the disclosure was made to medical personnel and was intended to be private or confidential. In Johnson v. Super.Ct. (California Cryobank, Inc.) (2000) 80 Cal.App.4th 1050, 1062-1063, the physician-patient privilege inapplicable to sperm donor’s medical history disclosed to sperm bank)

Clergyman-penitent privilege.

(Evidence Code §§ 1030-1034)


Sexual assault victim-counselor privilege.

(Evidence Code §§ 1035- 1036.2)

Official information privilege.

(Evidence Code §§ 1040-1047; e.g., City of Azusa v. Super.Ct. (Madrigal) (1987) 191 Cal.App.3d 693.

Self-incrimination privilege. (Evidence Code 940) In Fuller v. Super.Ct. (IPC Int’l Corp.) (2001) 87 Cal.App.4th 299, 308, defendant cannot refuse to be deposed by invoking blanket privilege against self-incrimination but must submit to deposition and invoke privilege as to specific questions. In Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 174, the filing of a lawsuit may waive plaintiff’s privilege on material crucial to claim. In Blackburn v. Super.Ct. (Kelso) (1993) 21 Cal.App.4th 414, a civil lawsuit defendant cannot invoke privilege without showing actual possibility of criminal prosecution)

However, the Fifth Amendment does not protect corporations. Consequently, a corporation’s custodian of records cannot resist a subpoena for the entity’s records on the ground of self-incrimination. See Braswell v. United States (1988) 487 U.S. 99, 108 S.Ct. 2284. However, in In re Grand Jury Subpoena Dated April 9, 1996 (11th Cir. 1996) 87 F.3d 1198, 1201, the self-incrimination privilege protects custodian from being compelled to divulge records’ location.

Trade secrets privilege

(Evidence Code §§ 1060-1063; e.g., Stadish v. Super.Ct. (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1144-1146.

Taxpayer privilege for tax returns

Various statutes making it a misdemeanor for taxing authorities to disclose confidential tax return information (see Ca Rev & Tax §§ 19542, 7056) impliedly create a taxpayer’s “tax return privilege.” (Sav-On Drugs, Inc. v. Super.Ct. (1975) 15 Cal.3d 1.)

“Confidentiality” of information obtained by investigators, security guards and insurance adjusters: Private investigators, security guards, and insurance adjusters are forbidden from divulging information they “acquire” except (a) at the direction of the employer or client for whom the information was obtained, (b) to any law enforcement officer or district attorney with respect to a criminal offense, or (c) as required by law. (Ca Bus & Prof § 7539(a); Ca Ins § 14038(a). In Flynn v. Super.Ct. (Bolling) (1997) 57 Cal.App.4th 990, 995-996, identity of investigator’s client not protected by Ca Bus & Prof § 7539(a) and hence discoverable)

Attorney Work Product Limitation on Discovery

Information qualifying as “attorney work product” is also protected from discovery (Ca Civ Pro § 2018). The purpose is to preserve counsel’s rights to prepare their cases for trial “with that degree of privacy” necessary to encourage thorough preparation and investigation of all sides (pro and con); and to prevent them from taking unfair advantage of their adversary’s industry and efforts. (Ca Civ Pro § 2018(a))


Limited to work product obtained at attorney’s behest

CA Civ Pro § 2018(a) protection extends to work product generated by an attorney’s investigators, researchers and other employees and agents. (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626.)

Absolute protection for attorney written opinions, etc.: ” Any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” is absolutely protected from discovery. (Ca Civ Pro § 2018(c)

What constitutes “work product”: The main issue on a work product claim is whether the information sought is in fact “work product.” There is no statutory definition and, hence, the matter is left to case law.

“Derivative” vs. “nonderivative” material standard

Case law approaches the issue by questioning first whether the information sought is “derivative” or “nonderivative” material. Only derivative material is protected “work product”–meaning that material which is created by or derived from an attorney’s (or attorney’s agent’s) work on behalf of a client that reflects the attorney’s evaluation or interpretation of the law or the facts involved. Material that is simply evidentiary in nature is deemed “nonderivative”–not protected work product. (See Mack v. Super.Ct. (1968) 259 Cal.App.2d 7)

Percipient witness statements

Written statements given independently by perci nt witnesses are deemed “evidentiary” and thus not work product. (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647.)

Identities and opinions of consulting experts

The identities and opinions of experts retained solely as consultants (i.e., to evaluate and help prepare case for trial), and not as trial witnesses (see below), are entitled to qualified work product protection; so too are the consulting experts’ “derivative” materials developed to explain or interpret their findings (diagrams, charts, reports to attorney, etc.). (Williamson v. Super.Ct. (1978) 21 Cal.3d 829, 834)

Brad Nakase, Attorney

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