Court of Appeal: No Attorney Present at Plaintiff's Mental Examination

The court of appeal's opinion in Toyota v. Superior Court should be interesting to employment lawyers and maybe to their clients involved in employment litigation.
Steven Braun was a plaintiff in a discrimination and harassment case against Toyota. He claimed significant emotional distress as a result of the conduct. Toyota arranged for a mental examination. Braun's attorney sought to impose certain conditions, including that it be taped, and that the attorney could accompany Braun to the exam and wait in an adjoining room. The doctor balked at this condition, as did Toyota. The Superior Court, however, allowed it. So, Toyota sought a "writ" - a mid-litigation appeal - overturning the Superior Court's decision.

The Court of Appeal granted the writ, which almost never happens in discovery disputes. The court said that although an attorney is not always prohibited from attending an examination, he or she must make some evidentiary showing of need. Toyota, on the other hand, showed (1) that the examination's scope was limited by court order (2) that the doctors believed the attorney's presence could influence the examination. The court also noted that medical professionals conducting such examinations are entitled to a presumption they will act properly.

The case is Toyota v. Superior Court and the opinion is here.