Judge: Andrew E. Cooper, Case: 23CHCV03011, Date: 2024-11-12 Tentative Ruling

Case Number: 23CHCV03011    Hearing Date: November 12, 2024    Dept: F51

MOTION FOR PROTECTIVE ORDER

(Requests for Production of Documents, Set One)

Motion filed: 6/25/24

MOVING PARTY: Defendant Ford Motor Company (“Defendant”)

RESPONDING PARTY: Plaintiffs Michel Lopez; and Jorge Chavez (collectively, “Plaintiffs”)

NOTICE: ok

RELIEF REQUESTED: A protective order, as proposed, applicable to Defendant’s documents produced in response to Plaintiff’s Requests for Production of Documents (“RFPs”), Set One.

TENTATIVE RULING: The motion is granted in part. The Court enters the proposed protective order without Defendant’s modifications:

(1)   Requiring non-lawyer personnel to sign and execute Exhibit A to the protective order;

(2)   Removing Paragraph 7f. regarding mock jury participants from the protective order; and

(3)   All modifications to Paragraph 21 of the protective order.

BACKGROUND

On 7/8/20, Plaintiffs allegedly purchased a vehicle manufactured by Defendant, and now bring this action under the Song-Beverly Consumer Warranty Act (Civil Code § 1790 et seq.), alleging that defects and nonconformities manifested themselves during the warranty period. (Compl. ¶¶ 9–10.)

On 10/6/23, Plaintiffs filed their complaint, alleging against Defendants the following causes of action: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of Song-Beverly Act section 1793.2; (4) Fraudulent Inducement – Concealment; and (5) Negligent Repair. On 9/11/24, Plaintiffs dismissed their fourth cause of action from their complaint.

On 6/25/24, Defendant filed the instant motion for a protective order. On 10/29/24, Plaintiffs filed their opposition. On 11/4/24, Defendant filed its reply.

ANALYSIS

When document requests have been propounded, the responding party may promptly move for a protective order. (Code Civ. Proc. § 2031.060, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Id. at subd. (b).)

Here, Defendant “seeks the entry of a Protective Order to protect Ford’s confidential, proprietary and trade secret information and materials, which are the subject of certain discovery requests in this case. Plaintiffs … do not dispute the need for a protective order; they only disagree over the form of the protective order that should be entered for use in this case.” (Def.’s Mot. 4:3–7.)

A.    Meet and Confer 

A motion for protective order must be accompanied by a meet and confer declaration stating, “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2031.060, subd. (a); 2016.040.)

Here, Defendant’s counsel declares that on 1/10/22, the law firms for the parties began their meet and confer efforts regarding a proposed protective order. (Decl. of Jake Moawad ¶ 3.) The parties continued their discussions but were unable to come to a resolution. (Id. at ¶¶ 3–6.) Accordingly, the Court finds that counsel has satisfied the meet and confer requirements of Code of Civil Procedure section 2030.090.

B.     Timeliness

As a preliminary matter, Plaintiffs argue that Defendant’s motion should be denied because Defendant “failed to promptly move for a protective order.” (Pls.’ Opp. 3:8, citing Code Civ. Proc. § 2031.060, subd. (a).) Plaintiff argues that Defendant “unilaterally conditioned production of responsive documents on the entry of a protective order yet delayed in filing any motion.” (Id. at 3:11–12.)

In reply, Defendant observes that Code of Civil Procedure section 2031.060 “is not a mandate that a party ‘must’ or ‘shall’ move for protective order,” but that it may promptly do so. (Def.’s Reply 3:13–14.) The Court agrees. Defendant further notes that “‘the promptness of the request [for protective order] turns on the facts.’” (Id. at 3:15, quoting Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.) As Defendant observes, “here, Ford attempted to negotiate in good faith with Plaintiff’s counsel in an effort to reach agreement on a protective order.” (Id. at 3:17–18.) Based on the foregoing, the Court finds that the instant motion is not untimely.

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C.    Defendant’s Proposed Modifications

Defendant’s proposed protective order makes the following modifications to the Los Angeles Superior Court Model Protective Order:

·         “Paragraph 7: Ford’s revisions clarify sub-section (b), confirming that the term “affiliated attorneys” mean attorneys in the same firm. Ford’s revision also provides that Plaintiffs’ counsel’s office personnel who have access to Ford’s confidential documents must sign Exhibit A. Ford proposes a revision to sub-section (d) to include videographers and litigation support companies (along with court reporters), who may have access to Ford’s confidential documents by virtue of their retention in a case. Ford removed sub-section (f), which permitted mock jurors to access Ford’s confidential documents because Ford has no ability to identify such persons or ensure (or confirm) their compliance. Ford also revised sub-section (g) to include non-attorneys with experts, and to provide that Ford’s confidential documents may not be shown to competitors of Ford;

·         Paragraph 8: Ford’s revisions provide that the receiving party may not post Ford’s confidential documents to any website or advertise Ford’s documents for sale. These provisions are reasonable and necessary to protect Ford’s documents from improper dissemination; and

·         Paragraph 21: Ford’s revisions clarify the process for Plaintiffs’ counsel to return or destroy Ford’s confidential documents at the conclusion of the case and require that all of Ford’s confidential documents be returned or destroyed when the case is over.” (Def.’s Mot. 7:1–19 [emphasis in original].)

Plaintiffs argue that the instant motion is unnecessary because “previously, Ford proposed and agreed to the model protective order in another case that was litigated between Plaintiffs’ counsel and Ford.” (Pls.’ Opp. 4:3–4.) Plaintiffs argue that therefore, “Ford does not provide good cause showing that the lack of additional modifications would cause any harm or prejudice to Ford.” (Id. at 4:12–13.)

However, as Defendant observes, “Plaintiffs’ claim that Ford previously agreed to the model protective order ‘in another case,’ in November of 2021, is immaterial.” (Def.’s Reply 3:7–8.) The Court agrees with Defendant that “whether Ford entered into a protective order in another case is governed by the facts of that particular case,” and is therefore not relevant to the Court’s below analysis of the instant motion. (Id. at 3:10–11.)

1.      Paragraph 7

a.       Affiliated Attorneys

“Ford’s revisions clarify sub-section (b) [of Paragraph 7], confirming that the term ‘affiliated attorneys’ mean attorneys in the same firm.” (Def.’s Mot. 7:1–2.) Plaintiffs argue in opposition that “this limitation could conceivably prevent Plaintiff’s counsel from disclosing the documents to any other attorneys that serve as Plaintiff’s co-counsel” or outside trial counsel. (Pl.’s Opp. 5:3–5.) “Plaintiff’s co-counsel—whether in the same firm or not—should be permitted to use the documents subject to the terms of the LASC model protective order.” (Id. at 5:14–16.)

Defendant argues on reply that Plaintiffs’ concerns are moot because “any co-counsel is—by definition—counsel of record. If the attorneys are of record, then they are bound by the protective order as revised by Ford.” (Def.’s Reply 4:2–4.) Defendant further argues that the subject modification is necessary because “without further clarification, Ford’s documents could be shared with multiple attorneys who have no responsibility to protect Ford’s documents.” (Id. at 5:10–12.)

The Court agrees with Defendant and finds that the additional language does not prohibit the dissemination of the protected documents from Plaintiffs’ co-counsel or trial counsel, as they are considered “attorneys of record” within the scope of the protective order.

b.      Office Personnel

“Ford’s revision [to Paragraph 7] also provides that Plaintiff’s counsel’s office personnel who have access to Ford’s confidential documents must sign Exhibit A.” (Def.’s Mot. 7:2–4.) The form attached as Exhibit A to the proposed protective order appears to be an acknowledgment and confidentiality agreement. (Ex. F to Moawad Decl., Ex. A.)

Plaintiffs argue that “because the confidential documents would be stored within the individual case file and all litigation employees have access to cases [sic] files,” requiring each of the firm’s employees to sign the acknowledgment form would result in a burdensome “logistical nightmare.” (Pls.’ Opp. 5:24–6:1.) Plaintiff further argues that “the protective order already provides that Plaintiff’s counsel and the firm, as a whole, agree to be bound by the protective order. Ford gains no additional protection by then requiring all attorneys to sign the Exhibit A form.” (Id. at 6:11–13.)

The Court agrees with Plaintiffs and finds that the burden of requiring every employee at Plaintiffs’ counsel’s law firm to sign the acknowledgment form is overly burdensome, particularly where the protective order already applies to “paralegals, clerical and secretarial staff employed by such attorneys who are actively involved in the Proceedings and are not employees of any Party.” (Ex. F to Moawad Decl.) Accordingly, the Court strikes the following language from Paragraph 7b. of the proposed protective order: “and required to execute Exhibit A agreeing to be bound by the terms of this protective order prior to disclosure.” (Ibid.)

c.       Mock Jurors

Defendant “removed mock jury participants from this list because Ford has no ability to confirm the identity of such persons or to track or trace their access if Ford’s documents were to become public because of disclosure in this case.” (Def.’s Mot. 9:17–20.)

Plaintiffs argue in opposition that “the modifications would cause undue burden on Plaintiffs’ ability to prepare for trial if they wished to use mock jury participants.” (Pls.’ Opp. 7:14–16.) “The LASC model protective order requires that mock jury participants sign the Exhibit A attachment, which requires them to provide their address and telephone number. So it is unclear how Ford would be unable to identify these people if confidential materials were disclosed to them.” (Id. at 7:1–3.)

Defendant argues in reply that mock jurors should be prohibited from accessing the subject documents because “Ford has no way to confirm the accuracy of their contact information if a problem arises.” (Def.’s Reply 5:8–9.) The Court finds this argument immaterial and agrees with Plaintiffs that restricting mock jury participants from accessing the confidential documents would improperly burden Plaintiffs’ ability to prepare their case for trial. Accordingly, the Court reincorporates the following language Defendant removed from Paragraph 7 of the proposed protective order: “f. mock jury participants, provided, however, that prior to the Disclosure of Confidential Materials to any such mock jury participant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person is bound to follow the terms of such Order, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A.” (Ex. F to Moawad Decl.)

2.      Paragraph 8

Paragraph 8 of the original protective order states the following: “Confidential Materials shall be used by the persons receiving them only for the purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any business or other purpose whatsoever.” (Id. at ¶ 8 [emphasis added].) Defendant added language to this paragraph prohibiting the dissemination of the protected documents on any website, or by sale. (Ibid.)

Plaintiffs argue that the proposed language is unnecessary because “the LASC model protective order already provides that” the confidential materials shall not be used “for any business or other purpose whatsoever.” (Pls.’ Opp. 7:24–27, citing Ex. F to Moawad Decl., ¶ 8.) Defendant argues in reply that “Paragraph 8 does not address the posting of or sale of Ford confidential documents. This revision will protect Ford’s confidential documents from being sold or posted by Plaintiff and their counsel. This is a necessary and reasonable provision.” (Def.’s Reply 5:23–26.)

Based on the foregoing, the Court finds that Defendant’s added language does “not inhibit Plaintiffs’ ability to litigate this matter in any way because it continues to allow for disclosure to counsel for use in this case, and Ford’s proposals are necessary given Ford’s interest in protecting its confidential business and trade-secret information from unfettered disclosure.” (Def.’s Mot. 7:20–23.)

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3.      Paragraph 21

Defendant’s modifications to Paragraph 21 of the proposed protective order “require that all of Ford’s confidential documents be returned or destroyed when the case is over.” (Id. at 7:17–19.) Plaintiffs oppose this modification, arguing that “Plaintiff’s counsel should be entitled to a complete copy of the case file. Because these documents would still be subject to the protective order, Ford cannot articulate any benefit that it obtains through this modification.” (Pls.’ Opp. 8:8–10.) Defendant argues in reply that “without this provision, Plaintiffs’ counsel can keep Ford’s confidential documents in perpetuity, which affords Ford no ability to track their location and use over time.” (Def.’s Reply 6:6–7.)

The Court finds that the language in the original Model Protective Order sufficiently provides for a procedure to return or destroy the confidential materials following the conclusion of the litigation. Any remaining documents may, upon, written request, be returned or destroyed, with the exception “that counsel for each Party may maintain in its files, in continuing compliance with the terms of this Stipulation and Protective Order, all work product, and one copy of each pleading filed with the Court.” (Ex. F to Moawad Decl., ¶ 21.) Because any remaining work product or pleading is still subject to the terms of the protective order, the Court finds that Defendant’s interests in its confidential materials are sufficiently protected.

Based on the foregoing, the Court strikes Defendant’s proposed modifications to Paragraph 21 of the protective order.

CONCLUSION

The motion is granted in part. The Court enters the proposed protective order without Defendant’s modifications:

(1)   Requiring non-lawyer personnel to sign and execute Exhibit A to the protective order;

(2)   Removing Paragraph 7f. regarding mock jury participants from the protective order; and

(3)   All modifications to Paragraph 21 of the protective order.