BILL NUMBER: AB 729 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 23, 2013
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, 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 any either
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)
(1) 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)
(2) 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.
(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.
1048.1. For purposes of this article, "union
the following terms have the following meanings:
(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.
(b) "Union 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.
1048.2. 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.
1048.3. 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.