Judge: Barbara M. Scheper, Case: 22STCV18373, Date: 2022-12-14 Tentative Ruling
Case Number: 22STCV18373 Hearing Date: December 14, 2022 Dept: 30
Calendar No.
Southern California Gas Company, et. al. vs. Dura-Line Corporation,
et. al., Case No. 22STCV18373
Tentative Ruling
re: Plaintiffs’ Motion to Compel Further
Discovery Responses
Plaintiffs
Southern California Gas Co. and San Diego Gas & Electric Co. (collectively,
Plaintiffs) move for an order compelling Defendant
Dura-Line Corporation’s further responses to Request Nos. 5-7 and 17 in each
Plaintiff’s Requests for Production (Set One), and Interrogatory Nos.
6-7 in each Plaintiff’s Special Interrogatories (Set One). The motion is
granted as to Special Interrogatory Nos. 6 and 7. The motion is denied as to
Request for Production Nos. 5-7 and 17.
Defendant is ordered to provide supplemental answers to Interrogatories
6 and 7 within ten (10) days of today’s date.
A party may move for an order
compelling further response to a request for production of documents if the
demanding party deems that responses are incomplete, evasive, or contain
meritless objections. (Code Civ. Proc.,
§ 2031.310, subd. (a).) A motion to
compel further responses to requests for production “shall set forth specific
facts showing good cause justifying the discovery sought by the inspection
demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).)
A motion to compel further
responses to form or specially prepared interrogatories may be brought if
the responses contain: (1) answers that are evasive or incomplete; (2) an
unwarranted or insufficiently specific exercise of an option to produce
documents in lieu of a substantive response; or (3) unmerited or overly
generalized objections. (Code Civ. Proc., § 2030.300, subd. (a).) If
a timely motion to compel has been filed, the¿burden is on the responding
party¿to justify any objection or failure fully to answer.¿(Coy v. Superior
Court (1962) 58 Cal.2d 210, 220–221; see also¿Fairmont Ins. Co. v.
Superior Court¿(2000) 22 Cal.4th 245, 255.)
“For discovery purposes, information is
relevant if it ‘might reasonably assist a party in evaluating the case,
preparing for trial, or facilitating settlement.’
[Citation]. Admissibility is not the test and information, unless
privileged, is discoverable if it might reasonably lead to admissible evidence.
[Citation] These rules are applied liberally in favor of discovery.” (Gonzales
v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)
Plaintiffs propounded their
respective Requests for Production (Set One) and Special Interrogatories (Set
One) on Defendant on October 25, 2021. (Decamara Decl. ¶¶ 3-4.) Defendant served responses to each set of
discovery on March 24, 2022. (Decamara Decl. ¶¶
5-6.)
The subject of this action is an
alleged defect (the Thin-Wall Defect) in small-diameter polyethylene pipe
manufactured by Defendant and purchased by Plaintiffs for use in natural gas
distribution (NGD) systems. (SAC ¶¶ 1-2.) Plaintiffs
allege, in part, that Defendant retained Exponent, an outside engineering firm,
“to investigate the Thin-Wall Defect, including the cause, population, extent
of the inconsistencies, impact on performance . . . and whether to recall or
de-rate some of the Dura-Line small diameter NGD pipe). (SAC ¶ 28.)
Requests for Production
Request
No. 5 of Plaintiffs’ Requests for Production sought all documents relating to
“Exponent’s (and/or any other laboratory, organization, or consultant’s)”
investigation, analysis, and findings regarding the Thin-Wall Defect. Request
No. 6 sought all documents relating to Exponent’s recommendations based on its
investigation into the Thin-Wall Defect, and Request No. 7 sought all documents
reviewed or relied upon by Exponent during its investigation. Finally, Request
No. 17 sought all documents relating to Defendant’s “retention of Exponent . .
. to independently investigate” the Thin-Wall Defect.
Defendant asserted a number of
objections in response to each of the requests, including vagueness, ambiguity,
burden, relevance, attorney-client privilege, and work product. Defendant now
opposes the Requests insofar as they seek information from related to Exponent
that Defendant argues is protected by the attorney-client privilege and
work-product doctrine.
Attorney-client privilege; Work Product
The attorney-client privilege authorizes a client
to refuse to disclose, and to prevent others from disclosing, confidential
communications between attorney and client. (Mitchell v. Superior Court
(1984) 37 Cal. 3d 591, 599.) The term “confidential communication” is broadly
construed, and defined as either information transmitted between a client and
his lawyer or advice given by the lawyer. The privilege does not protect
independent facts related to a communication; the fact that a communication
took place; or the time, date, and participants in the communication. (State
Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625,
639-640 (State Farm).) “[T]he fact that an
attorney has retained one or more independent agents to aid the attorney in
connection with the litigation does not automatically qualify information
discovered by the agents for protection by the privilege.” (State Farm,
54 Cal.App.4th at 640.)
“A writing that reflects an attorney's
impressions, conclusions, opinions, or legal research or theories is not
discoverable under any circumstances.” (Code Civ. Proc., § 2018.030, subd.
(a).) “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.” (Code Civ. Proc., §
2018.030, subd. (b).) “An attorney's work product is the product of the
attorney's ‘effort, research, and thought in the preparation of his client's
case. It includes the results of his own work, and the work of those employed
by him or for him by his client, in investigating both the favorable and
unfavorable aspects of the case, the information thus assembled, and the legal
theories and plan of strategy developed by the attorney—all as reflected in
interviews, statements, memoranda, correspondence, briefs, and any other
writings reflecting the attorney's “impressions, conclusions, opinions, or
legal research or theories” and in countless other tangible and intangible
ways.’ [Citations.]” (Uber
Technologies, Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 969.)
“The party claiming the privilege has the
burden of establishing the preliminary facts necessary to support its exercise,
i.e., a communication made in the course of an attorney-client relationship.
[Citations.] Once that party establishes facts necessary to support a prima
facie claim of privilege, the communication is presumed to have been made in
confidence and the opponent of the claim of privilege has the burden of proof
to establish the communication was not confidential or that the privilege does
not for other reasons apply.” (Costco Wholesale Corp. v. Superior Court
(2009) 47 Cal.4th 725, 733.)
“The attorney client
privilege may also extend to third parties who have been engaged to assist the
attorney in providing legal advice.” (Uber Technologies, Inc. v. Google LLC
(2018) 27 Cal.App.5th 953, 966; see County of Los Angeles v. Superior Court
(1990) 222 Cal.App.3d 647, 654 [“It has long been recognized that the work of
an expert-consultant is protected by the attorney's work product privilege”].) “In
assessing whether a communication is confidential and thus privileged, the
initial focus of the inquiry is on the ‘dominant purpose of the relationship’
between attorney and client and not on the purpose served by the particular
communication. [Citation.] ‘If the trial court determines that communications
were made during the course of an attorney-client relationship, the
communications, including any reports of factual material, would be privileged,
even though the factual material might be discoverable by other means.’ ” (Uber
Technologies, 27 Cal.App.5th at 966.)
Defendant
argues that Exponent’s communications with Defendant and/or counsel are privileged,
and that Exponent’s work product is protected to the same extent as counsel’s
work product, on the grounds that Exponent was retained by Defendant’s outside
counsel to assist counsel in providing legal advice to Defendant. Defendant
presents the declaration of its counsel, who represents that the stated purpose
of her firm’s retention of Exponent was “to enable [the firm] to render legal
advice to its clients in anticipation of litigation, a regulatory inquiry, or
an internal investigation.” (Black Decl. ¶ 2.)
Counsel further states, “Exponent worked at the direction of my firm and was
not separately retained by or instructed by Dura-Line. The communications with
Exponent and Exponent’s work were intended to be confidential and have been
maintained as confidential.” (Black Decl. ¶ 3.) These
facts support a prima facie claim that Exponent’s investigation into the
Thin-Wall Defect was performed at the direction of counsel in preparation for
potential litigation, and so constitutes the work product of counsel. (County
of Los Angeles, 222 Cal.App.3d at 655.) Defendant
has also shown a prima facie claim of privilege applying to any of Exponent’s
communications with Defendant and/or counsel.
Consequently, Plaintiff “has the burden of proof to establish the
communication was not confidential or that the privilege does not for other
reasons apply.” (Costco Wholesale Corp., 47 Cal.4th at 733.)
Express Waiver
“The exclusive means
by which the attorney/client privilege may be waived are specified in section
912 of the Evidence Code. These are (1) when the holder of the privilege,
without coercion, and in a nonconfidential context, discloses a significant
part of the communication or consents to such disclosure by anyone, and (2)
when there is a failure to claim the privilege in any proceeding in which the
holder has the legal standing and opportunity to do so.” (Motown Record
Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 492.)
“What constitutes a significant part of the
communication is a matter of judicial interpretation; however, the scope of the
waiver should be determined primarily by reference to the purpose of the
privilege.” (Transamerica Title Ins. Co. v. Superior Court (1987) 188
Cal.App.3d 1047, 1052.) “Merely revealing that one has consulted an attorney is
not enough to waive the privilege. [Citation.] On the other hand, . . .
revealing a significant part of the communication constitutes a
waiver.” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50
Cal.3d 31, 46.) “[M]ere disclosure of the fact that a communication between
client and attorney had occurred does not amount to disclosure of the
specific content of that communication, and as such does not necessarily
constitute a waiver of the privilege.” (Mitchell v. Superior Court
(1984) 37 Cal.3d 591, 602.)
Plaintiffs argue that both express
and implied waiver apply here to preclude Defendant’s assertions of privilege
and work product, based on fifteen “Customer Updates” issued by Defendant to
Plaintiffs and other customers between April 2021 and November 2021. (Newton
Decl. ¶ 5.) In one early Customer Update,
Defendant stated that it “brought in an outside engineering consulting firm,
Exponent, and we are investigating (i) the cause of the wall thickness inconsistencies, (ii) the
population of affected pipe, (iii) the extent
of the inconsistencies and their impact on performance of the pipe over its expected useful life, and (iv) whether
to recall or de-rate some portion of our
previously-shipped small diameter pipe.” (Newton Decl., Ex. 2.) In
another update, Defendant stated, “[w]e are continuing to work with Exponent .
. . to investigate instances of below-specification wall thickness in some of
our small diameter NGD pipe. We currently expect it will be at least 2-3 more
weeks before we have better answers on key questions, including the cause, the
population of affected pipe, the impact on performance, and whether to recall
or de-rate previously shipped pipe.” (Newton Decl., Ex. 4.) In later Customer
Updates, Defendant presented findings and analysis of the Thin-Wall Defect
touching upon the aforementioned topics of Exponent’s investigation, for example,
the cause of the defect and the population of affected pipe. (Newton Decl., Ex.
8.)
Peter Hajdu, Defendant’s CEO from 2018 through
December 2021, states that the Customer Updates reflected the conclusions of an
Executive Leadership Task Force (ELT) convened by Defendant, and that “[t]he
ELT’s conclusions were informed by the Company’s own investigation; input,
presentations, and recommendations from employees; questions and input from
customers; privileged consultation with outside counsel and Exponent; and the
ELT’s own knowledge, experience, and judgment.” (Black Decl., Ex. B, ¶ 10.)
Plaintiffs argue that the Customer
Updates disclose specific technical information regarding Exponent’s analysis, which
could only have come from Exponent. However, the Customer Updates give no
indication of what information was based on Exponent’s analysis as opposed to some
other source. The statements of Defendant’s former CEO show only that the
Customer Updates were based in unspecified part on Defendant’s consultation
with Exponent; this is insufficient to satisfy Plaintiffs’ burden. “The
attorney-client privilege seeks to protect the conversations and communications
between the attorney and client, not merely the conclusions developed by those
conversations or the fact that such conversations occurred.” (Southern Cal.
Gas Co., 50 Cal.3d at 49.) Defendant’s disclosure that they were
working with Exponent to investigate the Thin-Wall Defect and Defendant’s
subsequent technical analysis of the Thin-Wall Defect, unattributed to
Exponent, do not show disclosure of a significant part of the content
of any communication between Defendant and Exponent (See Ibid. [“While
SoCalGas's opinion was based at least in part on its consultation with its
attorneys, SoCalGas's disclosure shows no more than the fact that SoCalGas
consulted counsel and drew its own conclusions from these consultations”];
compare Electro Scientific Industries, Inc. v. General Scanning, Inc.
(N.D. Cal. 1997) 175 F.R.D. 539, 542 [finding express waiver where patent
defendant’s news release stated, “it been advised by legal counsel that the
referenced patents are invalid…”].) Accordingly, the Court finds that
Defendant’s Customer Updates did not constitute express waiver of
attorney-client privilege.
Implied Waiver
“[T]he person or entity seeking to discover
privileged information can show waiver by demonstrating that the client has put
the otherwise privileged communication directly at issue and that disclosure is
essential for a fair adjudication of the action. (Southern Cal. Gas Co.,
50 Cal.3d at 40.) “Generally, implied waivers are limited to situations
where the client has placed into issue the decisions, conclusions, and mental
state of the attorney who will be called as a witness to prove such matters.
[Citation.] Generally, too, the deliberate injection of the advice of counsel into
a case waives the attorney-client privilege as to communications and documents
relating to the advice.” (Transamerica Title Ins. Co. v. Superior Court
(1987) 188 Cal.App.3d 1047, 1052.) There is no implied waiver “where the
substance of the protected communication is not itself tendered in issue, but
instead simply represents one of several forms of indirect evidence in the
matter.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 606.)
Plaintiffs argue that Defendant has placed
Exponent’s work at issue by relying on the Customer Updates, which in turn rely
upon Exponent’s investigation and analysis. As discussed above, the extent to
which the Customer Updates rely on Exponent’s investigation is unclear. In any
case, the Court agrees with Defendant that it “has done nothing in the present
proceedings to place in issue its privileged communications.” (Southern Cal.
Gas Co., 50 Cal.3d at 42.) While Plaintiffs cite Defendant’s
reference to the Customer Updates in its demurrer to Plaintiffs’ First Amended
Complaint, Plaintiffs’ FAC had alleged facts concerning the Customer Updates
and attached them as exhibits. Defendant’s reference to Plaintiffs’ factual
allegations does not show that Defendant has placed the Customer Updates or
Exponent’s work at issue in its defense. Furthermore, Defendant claims that it
will rely upon the opinions of other experts, not including Exponent’s
investigation, in defending this action. These facts do not show Defendant’s implied
waiver of privilege.
Qualified Work Product
Attorney work product that is not “a writing that reflects an an
attorney's impressions, conclusions, opinions, or legal research or theories”
is protected against discovery, “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.” (Code Civ. Proc., §
2018.030, subd. (b).)
Plaintiffs last argue that they
will be unfairly prejudiced by denial of discovery into Exponent’s work because
Plaintiffs lack the information and means to duplicate Exponent’s analysis.
Plaintiffs cite declaration testimony from Edward Newton, a Gas Engineering
Programs Manager for Plaintiff Southern California Gas Company, who states that
Exponent performed destructive testing on the pipe that necessarily cannot also
be performed by Plaintiffs. (Newton Decl. ¶ 23.)
A
similar argument was made in Armenta
v. Superior Court (2002) 101 Cal.App.4th
525, in which a number of municipal water systems alleged that the defendants
had sold them “water valves, fittings and other metal water distribution parts
that did not meet contract specifications,” insofar as they “contained
significantly higher levels of lead and zinc than called for in the
specifications.” (Id. at 529.)
Both the defendants and a plaintiff water system, LADWP, retained Richard
Preston Maas as a joint expert, who subsequently conducted tests on the pipe
and prepared reports on those tests for the system for LADWP. The defendants
argued that the qualified work product privilege shielding Maas’ tests should
be overcome based on unfair prejudice, because “the parts which form the basis
for the LADWP expert analysis and conclusions have been altered such that
defendants cannot duplicate those tests.” (Id. at 536.) The court
disagreed, stating, “the question is not whether real parties can duplicate the
tests that Maas performed but whether they have an equivalent opportunity to
generate comparable evidence.” (Ibid.) The court found that the defendants
had equivalent opportunity to generate comparable evidence, in part because “Maas
did not test every part real parties in interest sold to LADWP but only a
representative sampling of those parts,” and defendants “could obtain from LADWP
another representative sampling of the parts they sold to LADWP and perform
tests upon those parts.” (Ibid.)
The Armenta court’s reasoning
applies to the present circumstances, and the statements made in the Newton
declaration do not compel a different conclusion. Newton suggests that
Plaintiffs do not have the equivalent opportunity to generate comparable
evidence because they do not have access to the same populations of defective
and non-defective pipe as Exponent did. (Newton Decl. ¶ 13.)) Newton
further states that, even if provided access to the same populations of pipe,
Plaintiffs would lack equivalent opportunity to test the pipe because they do
not know how to identify defective pipe, and are unaware of the testing
methodology used by Exponent. (Newton Decl. ¶ 13.)
But “the question is not whether [Plaintiffs] can duplicate the tests . . .
performed but whether they have an equivalent opportunity to generate
comparable evidence.” (Armenta, 101 Cal.App.4th at 536.) Defendant states that it “would be willing to produce
historical records, data, tests and other factual information provided to
Exponent,” though not “data and test records or other work materials that were
generated by Exponent.” (Black Decl. ¶ 8)
Provision of the underlying data that Exponent used in its testing, as well as
a representative sampling of pipe, is sufficient to provide Plaintiffs “equivalent
opportunity to generate comparable evidence,” such that they will not be
unfairly prejudiced in preparation of their defense.
Special Interrogatories
Plaintiffs’
Special Interrogatory No. 6 asked Defendant to describe “all facts upon which
YOU base the conclusion that ‘significant coil whip events’ at YOUR Gainesville,
Texas facility ‘impacted less than 1%’ of [small-diameter NGD pipe] produced at
that facility, as discussed in CUSTOMER UPDATE #13.”
Special Interrogatory No. 7 asked Defendant to describe
“all facts upon which YOU base the conclusion that the ‘less significant coil
whip events’ at YOUR Gainesville, Texas facility were ‘sporadic,’ as discussed
in CUSTOMER UPDATE #13.”
Defendant’s above argument regarding work product does not show
valid grounds for objection to the interrogatories. (Code Civ. Proc. 2030.010,
subd. (b) [“An interrogatory is not objectionable because an answer to it
involves an opinion or contention that relates to fact or the application of
law to fact, or would be based on information obtained or legal theories
developed in anticipation of litigation or in preparation for trial.”].)
Defendant has not presented any other argument in support of its objections to
the interrogatories. The motion is thus granted as to Special Interrogatory
Nos. 6 and 7.