Judge Audra Mori, Case 20STCV36565 2023-02-08 Tentative Ruling

Plaintiff Juan C. Escamilla Toledano (“Plaintiff”) filed this action against Defendant Ronit Youshei Haroonian (“Defendant”) for damages arising from a motor vehicle accident.

On November 10, 2022, the parties participated in an Informal Discovery Conference (“IDC”) concerning Plaintiff’s special interrogatories, set two, and requests for production of documents (“RPDs”), set two. The issues were not deemed resolved at the IDC, and on December 12, 2022, Plaintiff filed the instant motions to compel further response to special interrogatories, set two, and RPDs, set two, against Defendant. Defendant opposes each motion, and Plaintiff filed replies to the opposition.

Plaintiff asserts that the special interrogatories seek information concerning the dates and each location where Defendant conducted any sub rosa surveillance of Plaintiff and the identity of persons who conducted such sub rosa surveillance. Plaintiff’s RPDs ask Defendant to produce any and all surveillance taken of Plaintiff at any time. Plaintiff contends that Defendant failed to provide meaningful responses to any of the discovery requests and instead made only meritless objections. Plaintiff argues that surveillance taken of him is subject to discovery and not protected by the attorney-work product doctrine.

In opposition, Defendant asserts that sub rosa surveillance done on Plaintiff is gathered for the purposes of impeachment, and that allowing Plaintiff to have access to impeachment materials prior to the time of impeachment at trial would destroy their impeachment value. Defendant contends that the requested materials are protected from disclosure by the attorney-work product doctrine under CCP § 2018.020. Further, Defendant contends that the potential impeachment value of the sub rosa footage to Defendant outweighs Plaintiff’s inability to obtain an adequate substitute for the information since Plaintiff is available for examination to his counsel.

In reply, Plaintiff argues that Defendant fails to show that the requested information and materials fall under the attorney-work product doctrine, and Plaintiff asserts that Defendant has not produced a privilege log as required by CCP § 2031.240. Additionally, Plaintiff argues that Defendant’s cited authority is not relevant to pre-trial discovery, and that the authority does not render impeachment evidence non-discoverable. Plaintiff avers he will suffer unfair prejudice if Defendant is allowed to withhold sub rosa evidence until the middle of trial.

(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

(2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

As to responses to RPDs, CCP § 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

A motion to compel further responses to RPDs “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Id. at § 2031.310(b)(1).)

CCP § 2018.030(b) states “[t]he work product of an attorney … is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.”

The Court has reviewed the primary California case cited upon by the parties in disputing whether the sub rosa footage constitutes work product, Suezaki v. Superior Court (1962) 58 Cal.2d 166.[1] As the court has previously noted in the instant case, the Supreme Court, in Suezaki, was asked to determine whether the defendant’s surveillance footage of the plaintiff was privileged as a matter of law. The Court held that the footage was not privileged, but that it was subject to work product protection. The Court remanded the issue back to the trial court to determine whether the footage had to be produced in light of the work product doctrine.

Thus, this court must consider the work product doctrine. CCP § 2018.030 states:

(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

Furthermore, as the Rutter Guide on Civil Procedure Before Trial, §§8:243, et seq., explains on this issue:

Surprisingly, there is no recent authority dealing with claims of work product protection for photos, videos, etc. prepared under an attorney's direction. (Again, the Discovery Act is not helpful because it leaves the definition of “work product” to case law.)

• [8:243.1] Photographs of physical evidence taken by the attorney or attorney's agents (e.g., the damaged vehicle, the accident scene, the injuries, etc.) may be treated as “nonderivative” material; and thus discoverable as “mere evidence.”

• [8:243.2] But photos or films reflecting counsel's strategies and tactics in preparation for trial should be treated as “qualified work product” (e.g., a video or surveillance film impeaching plaintiff's claim of disabling injury). It would be basically unfair to allow the other side free access to such material. That party should have to show a special need for discovery and inability to obtain similar information, etc. [See Suezaki v. Sup.Ct. (Crawford) (1962) 58 C2d 166, 177–178, 23 CR 368, 374 (decided before attorney “work product” received statutory protection)]

• [8:243.3] Indeed, certain photos or films “reflecting” counsel's “impressions, conclusions (or) theories” may be “writings” entitled to absolute protection (e.g., photos taken from a particular angle or viewpoint, photographic enlargements, that show counsel's theory of liability).

The Suezaki Court did not specifically hold that surveillance footage is discoverable or not discoverable, but the opinion provided guidance for the trial court to make this determination. What is more, the burden on the party seeking production of qualified work product is higher now than it was when Suezaki was decided- that is, unfair prejudice now versus good cause then.

Moreover, it is not enough for a party to assert that something is protected as privileged, but rather the burden is on the party asserting the objection to prove the preliminary facts that show the attorney-client or work product protection applies. (Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 447; see also Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95 [It is the burden of the objecting party to support the applicability of a particular privilege].)

Plaintiff seeks to compel further responses to special interrogatories, set two, Nos. 32-34. These interrogatories request that Defendant state all dates that Defendant conducted any surveillance of Plaintiff, that Defendant identify all persons that conducted surveillance of Plaintiff, and that Defendant describe each location at which Defendant conducted surveillance of Plaintiff. Defendant objected to each request asserting that the requested information is protected by the attorney-work product doctrine because if surveillance has occurred, it would be solely for impeachment purposes.

As to Defendant’s argument that the requested information is impeachment evidence and not subject to discovery, Defendant cites Local Rule 3.52 in this regard. This Rule provides that the parties must, no later than 25 days before trial, serve on all other parties copies of any documentary evidence that the party intends to introduce at trial, except for documentary evidence to be used solely for impeachment or rebuttal. Defendant cites no authority, however, for his position that this Rule, or the Evidence Code sections referenced in Defendant’s oppositions, trumps the usual rules of civil discovery. If the evidence is discoverable, there is nothing in this Rule that renders it non-discoverable. The Court therefore rejects this argument.

As to Defendant’s argument that the special interrogatories implicate the work-product doctrine, the interrogatories are requesting information concerning whether any surveillance evidence of Plaintiff exists. The interrogatories are not requesting copies of any surveillance materials or reports. Rather, the interrogatories seek the type of information that might be found in a privilege log, and the possibility exists that the information requested might provide an adequate substitute for the actual sub rosa images. Defendant fails to meet its burden to show that providing information responsive to these interrogatories is protected work product. Accordingly, Defendant did not meet his burden to show the discovery implicates the attorney work product doctrine.

Based on the foregoing, Plaintiff’s motion to compel further responses to special interrogatories, set two, Nos. 32, 33, and 34 is granted. Defendant is ordered to serve a further response to the special interrogatories within twenty (20) days.

Plaintiff moves to compel a further response to RPDs, set two, No. 24, which requests that Defendant produce any and all surveillance of any kind taken of Plaintiff at any time. Defendant objected to the request contending it sought documents protected by the attorney work-product doctrine. Defendant asserts that the sub rosa at issue concerns pictures of Plaintiff taken by defense counsel’s private investigator that Defendant intends to use solely as impeachment evidence. Defendant avers that Plaintiff will not be prejudiced by not obtaining the requested materials because Plaintiff knows of his own conduct.

However, while Defendant objects to the requested discovery on the basis of the work product doctrine, Defendant does not dispute failing to produce a privilege log as described by CCP § 2031.240. Defendant has not identified with particularity any responsive item or electronically stored information. Defendant has deprived Plaintiff of sufficient factual information to evaluate the merits of Defendant’s objection and the ability to assess whether there is any responsive material that is subject to production.

Based on the foregoing, Plaintiff’s motion to compel further is granted as follows: Defendant is ordered to provide a privilege log in compliance with CCP § 2031.240(c)(1) within twenty (20) days. The deadline for any further motion to compel would be governed by CCP § 2031.310(c).

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiff in the moving papers cites to multiple federal and out of state cases, and Defendant in his oppositions cites to an unpublished case and a Federal District case from Oregon. These cases are not binding authority on this Court. Similarly, with his replies, Plaintiff lodged a ruing concerning a motion for a protective order made by a different Los Angeles Superior Court Judicial Officer. This ruling is not binding on this Court.