Amended in Senate August 21, 2013

Amended in Senate July 9, 2013

Amended in Senate June 10, 2013

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 and does not apply in criminal proceedings.

This bill would incorporate additional changes to Section 912 of the Evidence Code made by this bill and AB 267, to take effect if both bills are chaptered and this bill is chaptered last.

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. 1.5.  

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), 966 (lawyer referral service-client
privilege), 980 (privilege for confidential marital communications),
994 (physician-patient privilege), 1014 (psychotherapist-patient
privilege), 1033 (privilege of penitent), 1034 (privilege of clergy
member), 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), 966 (lawyer
referral service-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), 966 (lawyer referral service-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, lawyer referral service, 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, 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 either of the following
circumstances:

(1) In actions 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.

(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, 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 begin delete agency end delete begin insert agent end insert 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 a 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 and the appointed employee
steward was a steward at the time the communication was made end insert .

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.

1048.4.  

The privilege established under this article does not
apply in criminal proceedings.

SEC. 4.  

Section 1.5 of this bill incorporates amendments to
Section 912 of the Evidence Code proposed by both this bill and
AB 267. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2014, (2) each bill
amends Section 912 of the Evidence Code, and (3) this bill is
enacted after begin delete SB end delete begin insert AB end insert 267, in which case Section 1 of this bill shall
not become operative.