Adjuster notes and Saldana case (California) (California)

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Adjuster notes and Saldana case (California) (California)

Postby compquest on Mon Dec 08, 2014 9:38 pm

Hi

AA subpoenas adjuster notes.

How is this disputed?

It seems the winchels v wcab (Saldana) (1997) 62 1185 case allows AA to get adjuster claim notes.
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Re: Adjuster notes and Saldana case (California) (California)

Postby suekarp on Thu Dec 18, 2014 7:30 am

Check with counsel on the best way to defend against the subpoena. Many times, I will do a Motion to Quash, or ask that my attorney do so. You have to be prepared to go to the WCAB with it, though.
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Re: Adjuster notes and Saldana case (California) (California)

Postby LawAdvocate on Thu Dec 18, 2014 9:52 am

This is where adjusters face the most exposure. Claims note are discoverable and the same rules of discovery apply as to anything else. Notes that are attorney client privilege need to be labeled as attorney conversation. If it is not discoverable in the claim file, it is not discoverable in the notes. So cut and paste from attorney letters, not discoverable, summary of an investigation ordered by your attorney, addressed to your attorney, not discoverable. You have to redact the notes and prepare a redaction log. Then be prepared to hit an en camera review at the WCAB. There is no getting around this. Claims examiners are always surprised when I mention the Winchells case. Carriers and TPAs need to be clear with their staff as to what goes in notes. I have seen defamatory statements come to light for this exact reason. There is no reason to put some of the notes in that go in the claims file. They should be communicated to your attorney verbally with a request to return an email confirming the contents of the conversation. You cannot stand a Motion to Quash if the applicant attorney can articulate good cause, which for the good applicant attorneys is mere child's play.
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Re: Adjuster notes and Saldana case (California) (California)

Postby vampireinthenight on Thu Dec 18, 2014 1:25 pm

LawAdvocate has some good suggestions. There is a lot of exposure there. I do not find Winchell's very persuasive and is pretty thin on analysis. What you want to do is file a motion to quash and allege that the notes are prepared privileged as prepared in anticipation of litigation. This can apply whether a CA has hired an attorney or not.

Of course, not all claim notes are drafted in anticipation of litigation and a CA may have to give those up. I would try to be reasonable at the hearing and offer to stipulate to turn over certain claim notes that are not related to litigation of the claim. Another factor that can be persuasive is whether or not an Application was filed before the claim notes were generated. Once an Application is filed, that is a very good indicator that there are litigated disputes.

You might want to check out the other thread we have going on production of investigator reports.
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