Amended in Assembly May 6, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 729

Introduced by Assembly Member Roger Hernández

February 21, 2013

An act to amend Sections 912 and 917 of, and to add Article 9.5 (commencing with Section 1048) to Chapter 4 of Division 8 of, the Evidence Code, relating to evidentiary privileges.

LEGISLATIVE COUNSEL’S DIGEST

AB 729, as amended, Roger Hernández. Evidentiary privileges: union agent-represented worker privilege.

Existing law governs the admissibility of evidence in court proceedings and generally provides a privilege as to communications made in the course of certain relations, including the attorney-client, physician-patient, and psychotherapist-patient relationship, as specified. Under existing law, the right of any person to claim those evidentiary privileges is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to a disclosure made by anyone.

This bill would provide that a union agent, as defined, begin delete has end delete begin insert and a represented employee or represented former employee have end insert a privilege to refuse to disclose any confidential begin delete information he or she may have acquired, whether or not the information was revealed in a communication between the union agent and a represented employee, in attending to his or her professional duties or while end delete begin insert communication between the employee or former employee and the union agent while the union agent was end insert acting in his or her representative capacity, except as specified. begin insert The bill would provide that a represented employee or represented former employee also has a privilege to prevent another person from disclosing a privileged communication, except as specified. end insert The bill would further provide that this privilege may be waived in accordance with existing law.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 912 of the Evidence Code is amended to
read:

912.  

(a) Except as otherwise provided in this section, the right
of any person to claim a privilege provided by Section 954
(lawyer-client privilege), 980 (privilege for confidential marital
communications), 994 (physician-patient privilege), 1014
(psychotherapist-patient privilege), 1033 (privilege of penitent),
1034 (privilege of clergyperson), 1035.8 (sexual assault
counselor-victim privilege), 1037.5 (domestic violence
counselor-victim privilege), or 1048 (union agent-represented
worker privilege) is waived with respect to a communication
protected by the privilege if any holder of the privilege, without
coercion, has disclosed a significant part of the communication or
has consented to disclosure made by anyone. Consent to disclosure
is manifested by any statement or other conduct of the holder of
the privilege indicating consent to the disclosure, including failure
to claim the privilege in any proceeding in which the holder has
the legal standing and opportunity to claim the privilege.

(b) Where two or more persons are joint holders of a privilege
provided by Section 954 (lawyer-client privilege), 994
(physician-patient privilege), 1014 (psychotherapist-patient
privilege), 1035.8 (sexual assault counselor-victim privilege),
1037.5 (domestic violence counselor-victim privilege), or 1048
(union agent-represented worker privilege) a waiver of the right
of a particular joint holder of the privilege to claim the privilege
does not affect the right of another joint holder to claim the
privilege. In the case of the privilege provided by Section 980
(privilege for confidential marital communications), a waiver of
the right of one spouse to claim the privilege does not affect the
right of the other spouse to claim the privilege.

(c) A disclosure that is itself privileged is not a waiver of any
privilege.

(d) A disclosure in confidence of a communication that is
protected by a privilege provided by Section 954 (lawyer-client
privilege), 994 (physician-patient privilege), 1014
(psychotherapist-patient privilege), 1035.8 (sexual assault
counselor-victim privilege), 1037.5 (domestic violence
counselor-victim privilege), or 1048 (union agent-represented
worker privilege), when disclosure is reasonably necessary for the
accomplishment of the purpose for which the lawyer, physician,
psychotherapist, sexual assault counselor, begin delete or end delete domestic violence
counselor begin insert , or union agent end insert was consulted, is not a waiver of the
privilege.

SEC. 2.  

Section 917 of the Evidence Code is amended to read:

917.  

(a) If a privilege is claimed on the ground that the matter
sought to be disclosed is a communication made in confidence in
the course of the lawyer-client, physician-patient,
psychotherapist-patient, clergy-penitent, husband-wife, sexual
assault counselor-victim, domestic violence counselor-victim, or
union agent-represented worker relationship, the communication
is presumed to have been made in confidence and the opponent of
the claim of privilege has the burden of proof to establish that the
communication was not confidential.

(b) A communication between persons in a relationship listed
in subdivision (a) does not lose its privileged character for the sole
reason that it is communicated by electronic means or because
persons involved in the delivery, facilitation, or storage of
electronic communication may have access to the content of the
communication.

(c) For purposes of this section, “electronic” has the same
meaning provided in Section 1633.2 of the Civil Code.

SEC. 3.  

Article 9.5 (commencing with Section 1048) is added
to Chapter 4 of Division 8 of the Evidence Code, to read:

 

Article 9.5.  Union Agent-Represented Worker Privilege

 

1048.  

(a) Except as required by subdivision (b), begin insert and subject
to Section 912, end insert a union agent begin delete has end delete begin insert and a represented employee or
represented former employee have end insert a privilege to refuse to disclose,
in any court or to any administrative board or agency, or in any
arbitration or other proceeding, whether civil or criminal, any
confidential begin delete information he or she may have acquired in attending
to his or her professional duties or while end delete begin insert communication between
the employee or former employee and the union agent made while
the union agent was end insert acting in his or her representative capacity.
begin insert A represented employee or represented former employee also has
a privilege to prevent another from disclosing a confidential
communication between the employee and a union agent that is
privileged pursuant to this section. end insert

(b) A union agent may use or reveal begin delete information obtained during
the course of fulfilling end delete begin insert a confidential communication made to the
union agent while the union agent was acting in end insert his or her
begin delete professional end delete representative begin delete duties end delete begin insert capacity end insert in any of the following
circumstances:

(1) To the extent it appears necessary to prevent the commission
of a crime that is likely to result in a clear, imminent risk of serious
injury or death of another person.

(2) In actions, civil or criminal, against the union agent in his
or her personal or official representative capacity, or against the
local union or subordinate body thereof or international union of
affiliated or subordinate body thereof or any agent thereof in their
personal or official representative capacities.

(3) When required by court order.

(4) When, after full disclosure has been provided, the written
or oral consent of the bargaining unit member has been obtained
or, if the bargaining unit member is deceased or has been adjudged
incompetent by a court of competent jurisdiction, the written or
oral consent of the bargaining unit member’s estate or guardian
or conservator.

1048.1.  

For purposes of this article begin delete a union agent end delete begin insert , “union
agent end insert begin insert ” end insert means begin delete any end delete begin insert a end insert person employed begin delete by or elected end delete begin insert , elected, or
appointed end insert by a labor organization and whose duties include the
representation of employees in a bargaining unit in a grievance
procedure or in negotiations for a labor agreement and the labor
organization. begin insert An appointed employee steward is not an union agent
except to the extent a represented employee or represented former
employee communicates in confidence to the steward regarding
a grievance or potential grievance. end insert

begin delete

1048.2.  

For purposes of this article, the holders of the privilege
are the employee and the union agent in disciplinary matters; in
all other representative matters the labor organization is the sole
holder of the privilege.

end delete