After making a formal demand for documents from the insurer, we received what we consider a "records dump" while doing our due process we discovered letters from the defense attorney to his client, the letters clearly show bad faith tactics being used - can we use the letters as part of our exhibits or are they protected? (Calif. Workers Comp) * Multiple good faith efforts have been made via phone, fax, e-mail & certified mail to inform the attorney that we received the documents, we have not received any response.
Answer
Letters from the defense attorney voluntarily delivered to you are a waiver of the attorney-client privilege, so the letters are not protected now.
So, yes, you may use the letters in your exhibits (so long as they are offered to prove something the judge can actually decide).
The holder of the attorney-client privilege is the 'client', in this case the Insurer. You can assert the insurer waived the privilege by giving you what you did not request, letters from the lawyer.
The lawyer has a 'work product' protection... he might attempt to assert the letters are his unique, protected impressions, his work product.
Just FYI: we laugh at certified mail. It's a rookie move. Calif. Code of Civil Procedure requires only service by US Mail with a Declaration of Proof of Service
Cease all the emails and faxes and only send documents and letters with a Proof of Service from today forward.
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