Judge Armen Tamzarian, Case 21STCV42444 2023-03-02 Tentative Ruling

Judge: Armen Tamzarian, Case: 21STCV42444, Date: 2023-03-02 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 21STCV42444 Hearing Date: March 2, 2023 Dept: 52

Plaintiff Spitz Technologies Corporation’s Motion to Compel Further Production of Documents

Plaintiff Spitz Technologies Corporation moves to compel defendant Michelman & Robinson, LLP to produce further documents in response to requests for production. The motion concerns three categories of requests.

1. Documents About Attorneys Jan Weir and Katherine Brandt

Requests for production Nos. 8-11 and 28-34 seek documents about defendant’s process of hiring Weir and Brandt (Nos. 8-11) and defendant’s internal evaluations of Weir and Brandt, including documents about their “departure from the firm” or “termination” (Nos. 28-34). Defendant responded only with objections.

The documents plaintiff requests in Nos 8-11 are discoverable. Plaintiff’s first amended complaint alleges, among other things, that defendant affirmatively misrepresented the firm’s capabilities and expertise in patent litigation. It alleges defendant told plaintiff that “the firm had completed the addition of a group of attorneys (including attorney Jan Weir, who ultimately would be primarily responsible for the day-to-day handling of Spitz’s litigation with Nobel) who specialized in Intellectual Property, and therefore now had the necessary expertise and staffing capabilities to properly handle the representation. Mr. Michelman, on behalf of M&R, assured Spitz that the attorneys he had brought in to work with him on the matter were top specialists and experts in patent litigation who were knowledgeable, experienced, and extremely competent, and would provide competent, effective, and indeed excellent representation at the highest standard for attorneys’ handling specialized complex patent case.” (FAC, ¶ 19.) These document requests may lead to evidence about defendant’s knowledge of Weir’s and Brandt’s expertise. That evidence may support or negate the claim that defendant knew these representations were false.

Defendant argues a notice to consumer is required for requests for production (rather than a subpoena) about a person’s employment records under Code of Civil Procedure section 1985.6. Even assuming defendant is right, these requests do not seek covered “employment records.” That term means documents “pertaining to the employment of any employee maintained by the current or former employer of the employee.” (CCP § 1985.6(a)(3).) These requests ask for documents concerning how defendant decided to hire Weir and Brandt. Unlike the firm’s employee evaluations or the attorneys’ personnel files, these documents precede their employment.

Defendant’s objections to Nos. 8-11 are overruled.

Defendant asserts valid privacy objections to Nos. 28-34. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) If the objecting party shows all three elements, then the court must balance the need for disclosure against the right to privacy. (Ibid.)

Defendant shows all three elements. First, people have a right to privacy in their personnel files and other employment records. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530.) Second, it is objectively reasonable for a law firm’s employee to expect that his or her personnel file and evaluations will remain confidential, even when a client sues the firm. Third, the threatened intrusion is serious. These documents would contain highly confidential information about the details of Weir’s and Brandt’s employment with defendant.

Plaintiff’s need for disclosure does not outweigh Brandt’s and Weir’s privacy rights. The need for disclosure is minimal. The case revolves around two theories: that defendant failed to provide adequate legal representation to plaintiff and that defendant induced plaintiff to retain it by misrepresenting its ability to provide adequate legal representation. Defendant’s subjective evaluations of Brandt and Weir have at most minimal probative value in this action. What Michelman & Robinson, LLP later thought of Brandt’s and Weir’s performance does not answer the relevant questions. How well did the firm represent plaintiff? How accurate were the firm’s statements about its capabilities, which induced plaintiff to hire the firm?

Defendant’s objections to Nos. 28-34 are sustained.

2. Documents About Other Patent Cases

Requests for production Nos. 13-21 seek documents about defendant’s representation of clients in other patent cases since 2012 (Nos. 13-15) and defendant’s publications or internal educational materials about patent litigation (Nos. 16-21). Defendant responded only with objections.

Plaintiff does not show good cause for producing the documents, and the requests are not reasonably calculated to lead to admissible evidence. A party moving to compel production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1); see Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

These requests seek evidence about issues too far removed from this matter. Defendant’s representation of other clients is not related to whether it provided adequate legal representation to Spitz. For example, whether defendant generally hired expert witnesses in similar circumstances as the underlying case does not answer the question: should defendant have hired an expert when representing plaintiff? What defendant’s lawyers wrote about handling patent cases in MCLE presentations or other professional papers similarly does not answer any question about the quality of defendant’s representation of plaintiff in the underlying matter.

Defendant’s objections to Nos. 13-21 are sustained.

3. Documents About Malpractice Claims and Insurance Claims Against Defendant

Requests for production Nos. 23-26 seek documents about other claims made on insurance policies that might cover plaintiff’s claims (No. 23) and about other clients’ complaints regarding defendant’s representation in patent litigation (Nos. 24-26). Defendant responded only with objections.

Request No. 23 seeks documents outside the scope of discovery. A party may discover matter “that is relevant to the subject matter involved in the pending action… if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (CCP § 2017.010.)

Plaintiff argues “the existence of competing claims to the insurance policies that would cover any recovery by Spitz here is certainly relevant to Spitz’s preparation of the case for trial, including its valuation of the same.” (Motion, p. 14.) As a practical matter, it may be pertinent to valuing the case for settlement purposes—but it is not relevant to the subject matter of this lawsuit. “ ‘Relevant evidence’ means evidence… having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Defendant’s capability of paying a potential judgment has no tendency in reason to prove or disprove anything of consequence to determining this action itself.

Plaintiff cites Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579 for the proposition that “the extent of insurance coverage is always discoverable.” (Motion, p. 14.) The extent of insurance coverage is not always discoverable. It was only discoverable in that case due to peculiar circumstances. Hecht, Solberg was about malpractice in a malpractice case. First, the plaintiff retained Hecht, Solberg in a real estate matter. (Id. at pp. 584-585.) Then, the plaintiff retained a second set of attorneys—the Chapin firm and the Mazzarella firm, the present defendants—to sue Hecht, Solberg for malpractice in the initial case. (Id. at p. 585.) Finally, the plaintiff sued the Chapin and Mazzarrella firms for malpractice for allegedly “obtain[ing] too small a settlement with [Hecht, Solberg] in the underlying action” for malpractice. (Ibid.)

The dispute concerned discovery of insurance policies covering Hecht, Solberg—not insurance covering the current malpractice defendants. The information was discoverable because “collectibility of the hypothetical underlying judgment against the named defendant is a component of the plaintiff’s current case relating to damages, as caused by the current negligent attorney defendant.” (Id. at p. 591.) Here, the analogous circumstance would be if plaintiff settles this case against Michelman & Robinson, LLP, then sues its present counsel, Howarth & Smith for malpractice.

Defendant’s objections to No. 23 are sustained.

Nos. 24 to 26 are also not reasonably calculated to lead to the discovery of admissible evidence for the same reasons as Nos. 13-21. What other clients thought of Michelman & Robinson, LLP’s representation is not related to the objective quality of Michelman & Robinson’s representation in general nor to the quality of the services it provided plaintiff.

In its reply, plaintiff cites an Ohio case that stated “ ‘[e]vidence of prior acts of malpractice by the doctor may be relevant to a negligent-credentialing claim.’ ” (Reply, p. 11, fn. 12.) Negligent credentialing is materially different because it concerns whether a licensed professional was qualified in general. Malpractice, on the other hand, concerns whether the licensee met the standard of care in a particular instance.

Defendant’s objections to Nos. 24-26 are sustained.

Disposition

Plaintiff’s motion to compel production of documents is granted as to requests for production Nos. 8-11. The motion is denied as to requests for production Nos. 13-21, 23-26, and 28-34.

Defendant Michelman & Robinson, LLP is ordered to serve further verified responses without objections to Nos. 8-11 and to produce all responsive documents in its possession, custody, or control within 30 days.