Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5708
Liberal discovery allowed under Labor Code section 5708.
Supports broad discovery but balanced against privacy rights.
From the decision · page 7Section 5708 allows liberal, broad-reaching discovery. (IBM Corp. v. Workers'
Compensation Appeals Bd., (2001) 66 Cal.Comp.Cases 277, 278 (writ den.).) Generally, there is
a policy of favoring liberal pre-trial discovery that may reasonably lead to relevant and admissible
evidence in workers' compensation cases. (Allison v. Workers' Comp. Appeals Bd. (1999) 72
Cal.App.4th 654, 663 [64 Cal.Comp.Cases 624].) Section 5708 mandates that we are not "bound
by the common law or statutory rules of evidence and procedure, but may make inquiry in the
manner, through oral testimony and records, which is best calculated to ascertain the substantial
rights of the parties and carry out justly the spirit and provisions of this division." (Lab. Code, § 5708.)
Evidence Code section 1123
Settlement agreements prepared in mediation are discoverable under Evidence Code section 1123.
No evidence settlement documents were prepared in mediation, so this does not apply here.
From the decision · page 8Evidence Code section 1123 explicitly allows settlement agreements prepared in the course
of mediation to be exempt from the protections surrounding mediation and be both admissible and
discoverable. Yet, there is no evidence that the settlement documents were effectuated through
mediation or include other communications that might be protected. Pursuant to Evidence Code
1060, the holder of the privilege is the owner of a trade secret. Brayton has not presented evidence
to suggest that the decedent was the owner of relevant trade secrets, therefore this privilege cannot
apply either.
Attorney-client privilege
Attorney-client privilege survives death but requires evidence to apply.
Record incomplete to determine application of privilege to withheld documents.
From the decision · page 8We first note that even though decedent can no longer assert the attorney client privilege
on his own behalf, the privilege survives his death, and Brayton is still bound by it. Moreover,
upon his death, we presume that applicant's children became his heirs, and the privileges that
belonged to decedent regarding those documents that concerned him likely still apply. The record
here is incomplete, and we cannot reach the issue of the application of the attorney-client privilege
without more.
Labor Code section 3861
Credit for third party recovery requires a petition and relevance to compensation owed to decedent under Labor Code section 3861.
No petition for credit filed; settlement documents not relevant to death benefits claim.
From the decision · page 9In looking at valuation and the possibility of a third party credit, the basis is premature and
without support as SISF has not articulated a basis for credit or how decedent's settlements in the
civil case will affect valuation of this claim for death benefits by applicants. Section 3861 states: