Judge: Barbara M. Scheper, Case: 19STCV04233, Date: 2023-04-14 Tentative Ruling
Case Number: 19STCV04233 Hearing Date: April 14, 2023 Dept: 30
Calendar No.
Kagtig, Inc, et.
al. vs. Cooper, et. al., Case
No. 19STCV04233
Tentative Ruling
re: Plaintiff’s Motion to Compel Further
Responses
Plaintiffs
move to compel further responsive documents to Requests Nos. 1-4, 6, 7, 9, and
10-16 in the Second Notice of Deposition of Sheryl Cooper; and further
responsive documents to Requests Nos. 2-4, 6, 7, 9, 11, and 14-16 in the Second
Notice of Deposition of Barry Shaich. At
the depositions, Cooper and Shaich refused to answer certain questions citing
the attorney-client privilege. The issue before the Court is whether the
privilege applies, and, if so, whether the privilege was waived.
The objecting
party has the burden to file evidence of the preliminary facts establishing a
privilege exists. (HLC Properties, Limited v. Superior
Court (2005) 35 Cal.4th 54, 59.) “[W]here
… the question calls for information which may or may not be privileged, the
party asserting the privilege must establish its application before the
interrogator is required to show more than basic discovery relevance.” (Gonzalez v. Superior Court (1995) 33
Cal.App.4th 1539, 1548-1549; cf. also Alpha Beta Co. v. Superior Court
(1984) 157 Cal.App.3d 818, 827 [“declaration established that the information
he possessed came…from … counsel …, and to the extent that the information came
from that source it was privileged. The declaration further establishes that
the answers were prepared by Attorney….
Therefore, in the context of this case and in the form stated, this
category of [deposition]
question necessarily calls, in part at least, for information based upon …
communications with a privileged source and would lead to the disclosure of
privileged information.”].)
After the
objecting party meets the burden to show preliminary facts in support of an
attorney-client privilege, “the burden shifts to the party opposing the
privilege to show either the claimed privilege does not apply, an exception
exists, or there has been an express or implied waiver.” (Venture Law Group
v. Superior Court (2004) 118 Cal.App.4th 96, 102.)
The attorney-client privilege is
contained in Evidence Code section 950 et seq., and in general allows the
client “to refuse to disclose, and to prevent another from disclosing, a
confidential communication between client and lawyer . . . .” ( Evid. Code, §
954.) The attorney-client privilege covers all forms of communication,
including the transmission of specific documents. (Mitchell v. Superior
Court (1984) 37 Cal.3d 591, 600.) At the same time, documents prepared
independently by a party, including witness statements, do not become
privileged communications or work product merely because they are turned over
to counsel. (See Nacht & Lewis Architects, Inc. v. Superior Court (1996)
47 Cal.App.4th 214.)
“[U]nder the Evidence Code, the
attorney-client privilege applies to confidential communications within the
scope of the attorney-client relationship even if the communication does not
relate to pending litigation; the privilege applies not only to
communications made in anticipation of litigation, but also to legal advice
when no litigation is threatened. [Citations.]” (Roberts v. City of Palmdale
(1993) 5 Cal.4th 363, 371.)
On August 1, 2019, Grayson noticed
the depositions (including document requests) of Cooper and Shaich. On August
14, 2019, both Cooper and Shaich served attorney-client privilege objections to
each of the document requests. (Thakor Decl., Exs. D, E.) On August 20, 2019,
Cooper sat for her deposition and produced responsive documents. However,
Cooper did not produce communications between Cooper and Shaich on the grounds
that the communications were privileged. Cooper claimed privilege specifically
on the grounds that Shaich was “reasonably necessary” to Wolf Rifkin’s
representation of Cooper.
On August 27, 2019, Shaich sat for
his deposition. During the deposition, Shaich was instructed on several
occasions not to answer questions disclosing communications and information
that were allegedly privileged.
Defendants have produced a
privilege log listing 295 entries of allegedly attorney-client communications.
The privilege log lists communications between Cooper and nine separate third
parties: (1) Barry Shaich; (2) Bruce Lang; (3) Sam Sokol; (4) Mark Davies; (5)
Cary Cooper; (6) Jeff Rake; (7) Paulette Rake; (8) Jeff Sinaiko; and (9) Emrah
Kovacoglu.
A party may waive the privilege by
voluntarily disclosing privileged information to a person who is not the lawyer,
and who is not furthering the interests of the client. (Regents of the Univ.
of Cal. v. Superior Court (2008) 165 Cal.App.4th 672, 678-679.) However, a client’s
confidential disclosures of an attorney-client communication to third parties
(e.g., attorneys, family members, business associates, or agents of the party
or of the attorneys) does not constitute a waiver of the privilege where it was
reasonably necessary for the representation. (OXY Resources California LLC
v. Superior Court (2004) 115 Cal.App.4th 874, 890.)
The “reasonably necessary” element
requires that the “involvement of the third party be nearly indispensable or
serve some specialized purpose in facilitating the attorney-client
communications.” (Behunin v. Superior Court (2017) 9 Cal.App.5th 833,
848.) “[T]he analysis under § 952 of whether information disclosed to a third
party is made ‘to further the interest of the client in the consultation’ and
the analysis under section 912, subdivision (d), of whether information
disclosed to a third party is ‘reasonably necessary for ... the accomplishment
of the purpose for which the lawyer is consulted’ is essentially the same.” (Id.
at p. 844.)
Therefore, Defendants have the
burden to prove that each of the nine third-parties that became privy to
allegedly privileged information were “reasonably necessary” to Wolf Rifkin’s
representation of Cooper.
The Communications between Defendants and Third Parties
Without Any Attorneys Present Must Be Produced
As an initial matter, Defendants
have withheld dozens of communications that do not include any Wolf Rifkin
attorneys. This includes communications between: (1) Cooper and Shaich, (2)
Cooper and Bruce Lang; (3) Cooper and Jeff Rake, (4) Cooper and Mark Davies,
(5) Cooper and Jeff Sinaiko, and (6) Shaich and Kovacoglu. The Court finds that
the communications between Cooper and these third-parties are not subject to
the attorney-client privilege because they were not made to Cooper’s lawyer in
furtherance of a representation. (City & Cty. of San Francisco v.
Superior Court In & For City & Cty. of San Francisco (1951) 37
Cal.2d 227, 235 [“only communications made to an attorney in the course of
professional employment are privileged.”].)
Defendants argue that the
communications were reasonably necessary to Wolf Rifkin’s representation of
Cooper. Defendants argue that most of the communications with these third
parties were done to help Cooper understand the emails of her lawyers. The only
evidence Defendants produce are the self-serving and conclusory declarations of
Shaich and Cooper. Thus, Defendants have not shown how the communications were reasonably
necessary. There is also no declaration, for example, from Wolf Rifkin
attorneys explaining why they needed these third-parties to explain their legal
advice. This is insufficient to show that the communications were reasonably
necessary and in furtherance of the Wolf Rifkin’s representation of Cooper.
Defendants
also argue that the communications with Sam Sokol, Patricia Rake, Marc Davies,
and Cary Cooper exceed the scope of the motion. Defendants argue that these
communications were the subject of Plaintiffs’ Request for Production of
Documents (Set One) (the RFPs), and therefore the motion exceeds the scope of
any meet and confer conducted by the parties. (Weiman Decl. ¶¶ 2-7; Exs. 1-5.)
The Court disagrees.
In the Revised Privilege Log,
Defendants identified dozens of previously undisclosed communications that, by
Defendants’ own admission in the privilege log, relate to the Singer
Litigations and settlements entered in that action, GHCP, and Grayson. These
documents should have been identified in August of 2019 when Cooper and Shaich
were deposed or should have been identified in the original privilege log
produced by Defendants in January 2019. Plaintiffs first learned of these
communications when Defendants produced a revised privilege log on October 9,
2020, specifically for this motion.
Communications Amongst Cooper, Wolf Rifkin, And Various
Third Parties Are Not Privileged
Plaintiffs argue that the
communications between Cooper and Wolf Rifkin, and Barry Shaich, Bruce Lang,
and Cary Cooper are not privileged because these third-parties were not
reasonably necessary to further the representation. The Court agrees.
Barry Shaich is not reasonably
necessary to Wolf Rifkin’s representation of Cooper. Both Cooper and Shaich
have agreed that Shaich was not involved in GHCP or the Singer Litigations.
Shaich even admitted that he “was not involved in [GHCP],” that he was an
“outsider looking in,” and the extent of his involvement in GHCP or the Singer
litigations was “purely to support [Cooper].” (Thakor Decl., Ex. G, Shaich
Depo., at p. 55:10.) According to Shaich, he would only “drive her to meetings,
drive her home, hold her hand,” and “nothing else.” (Thakor Decl., Ex. G, Shaich
Depo., at p. 67:7-14.)
Bruce Lang is the accountant for
GHCP and Cooper personally. Defendants do not explain what accounting advice
Lang provided, why attorneys at Wolf Rifkin needed this accounting advice, or
any other facts as to how Lang was reasonably necessary to Wolf Rifkin’s
representation of Cooper. Moreover, Defendants’ argument that Lang was simply transmitting
accounting information is contradicted by Defendants own privilege log. For
example, the descriptions of the withheld Lang communications in the privilege
log define communications with Lang as “Litigation Strategy” and “Settlement
Strategy,” not accounting questions. (Thakor Decl., Ex. A, Priv. Nos. 15-16.)
Cary Cooper is another third-party
who was included on communications between Sheryl Cooper and Wolf Rifkin.
Defendants are claiming privilege over four communications between Cary Cooper,
Sheryl Cooper, Barry Shaich and Wolf Rifkin dated September 7, 2017. (Thakor
Decl., Ex. A, Priv. Log Nos. 20-23.) Defendants claim that Cooper’s
father-in-law was “reasonably necessary” to Wolf Rifkin’s representation of her
because he provided “legal advice.” Cooper’s declaration fails to explain how
Cary Cooper added anything of value to Wolf Rifkin’s representation of Cooper,
or why Cary Cooper’s advice was “necessary.” Moreover, Cooper concedes in her
declaration that Cooper was not her lawyer. She states that her father-in-law
“provided me with legal advice independently and to further my interest in all
of these actions.” (Cooper Decl., ¶ 13.) Thus, it is clear that Cooper
understood that Cary was offering legal advice “independently,” and not as a
retained lawyer.
Thus, Defendants have improperly
withheld communications between Cooper, Wolf Rifkin, and Barry Shaich, Bruce
Lang, and Cary Cooper. These documents are not covered by the attorney-client
privilege because the presence of the third-parties on the communications
destroys any privilege.
Defendants
have not met their burden of showing how any of the communications with the
third-parties were reasonably necessary and in furtherance of Cooper’s
interest, and therefore the motion to compel further responses is granted. Defendants
are ordered to produce responsive documents within ten (10) days of today’s
date.