BILL NUMBER: AB 729 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 6, 2013
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,
has and a represented employee or represented former
employee have a privilege to refuse to disclose any
confidential 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 communication
between the employee or former employee and the union agent while the
union agent was acting in his or her representative capacity,
except as specified. 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. 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, or
domestic violence counselor , or union agent 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), and subject
to Section 912, a union agent has and
a represented employee or represented former employee have 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
information he or she may have acquired in attending to his or her
professional duties or while communication between the
employee or former employee and the union agent made while the union
agent was acting in his or her representative capacity. 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.
(b) A union agent may use or reveal information obtained
during the course of fulfilling a confidential
communication made to the union agent while the union agent was
acting in his or her professional
representative duties capacity 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 a union agent
, "union agent " means any
a person employed by or elected
, elected, or appointed 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. 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.
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.