Amended in Assembly May 23, 2013

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, and a represented employee or represented former employee have a privilege to refuse to disclose any confidential 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, 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 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 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 a confidential
communication made to the union agent while the union agent was
acting in his or her representative capacity in begin delete any end delete begin insert either end insert of the
following circumstances:

begin delete

(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.

end delete begin delete

(2)

end delete

begin insert (1) end insert  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.

begin delete

(3) When required by court order.

end delete begin delete

(4)

end delete

begin insert (2) end insert  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.

begin insert

(c) A union agent shall use or reveal a confidential
communication made to the union agent while the union agent was
acting in his or her representative capacity if required to do so by
a court order.

end insert

1048.1.  

For purposes of this article, begin delete “union end delete begin insert the following terms
have the following meanings: end insert

begin insert

(a) “Confidential communication” means information
transmitted, by oral or written communication, between a
represented employee or represented former employee and a union
agent and in confidence by a means which, so far as the employee,
former employee, or union agent is aware, discloses the
information to no third persons other than those who are present
to further the interest of the employee, former employee, or union
agent or those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the
purpose for which the communication was made, and includes
advice given by a union agency in the course of a representational
relationship.

end insert

begin insert (b) end insert begin insert   end insert begin insert “Union end insert agent” means a person employed, 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.

begin insert

begin insert 1048.2. end insert   

There is no privilege under this article if the union
agent reasonably believes that disclosure of any confidential
communication is necessary to prevent a criminal act that the
union agent reasonably believes is likely to result in the death of,
or substantial bodily harm to, an individual.

end insert begin insert

begin insert 1048.3. end insert   

There is no privilege under this article with respect to
a confidential communication made to enable or aid a person in
committing, or planning to commit, a crime or fraud.

end insert