Judge: Deborah C. Servino, Case: 30-2022-01279637, Date: 2023-09-01 Tentative Ruling
Plaintiff Javier A. Lopez filed motions to compel further responses to special interrogatories, form interrogatories, and requests for production of documents, sets one, from Defendant BNSF Railway Company.
Plaintiff submitted evidence with the reply briefs. (Russo Decls. [ROA 81, 83, 85].) “The general rule of motion practice . . . is that new evidence is not permitted with reply papers . . . ‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ’ and if permitted, the other party should be given the opportunity to respond.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) Reply evidence should not address substantive issues in the first instance but only fill gaps in the evidence created by opposition. (Id. at p. 1538.) Here, the court exercises its discretion and declines to consider exhibits A, B, and D. The court exercises its discretion in considering exhibit G, only for the proposition that a recorded interview of Plaintiff was conducted by a claims manager with BNSF Railway on June 28, 2022. Defendant may address this reply evidence during the argument at the hearing. (Id. at p. 1538.)
Request for Leave to File Sur-Reply
On August 30, 2023 at 4:43 pm, Defendant filed a request for leave to file a sur-reply. (ROA 87.) The request is denied.
Separate Statements
Defendant argues that the motions should be denied because the separate statements do not comply with the California Rules of Court. The separate statements are not compliant with California Rules of Court, rule 3.1345(c). Nevertheless, all required information is contained in each separate statement. The court will rule the merits of the motions.
Meet and Confer
Defendant challenges the meet and confer effort as to all three motions. The court disagrees with Defendant’s assertion that the discovery is premature or must be delayed until the conclusion of Plaintiff’s deposition. The accident that forms the basis for this case took place in May of 2022. Defendant admits to compiling evidence after the accident. Moreover, on June 28, 2022, Defendant had a claims agent obtain a 67-page recorded interview with Plaintiff, in which the agent questioned Plaintiff at length about the incident and his injuries. (Russo Decl., Exh. G [ROA 81, 83, 85].) The discovery at issue was not propounded until October 10, 2022. Defendant has given no credible reason why discovery could not proceed. The court finds that the efforts were sufficient.
Moreover, Defendant agreed to provide further responses to many of the requests at issue in these motions. It has been almost a year since the discovery was initially propounded. This is true of the promised privilege log as well. These motions were filed on June 6, 2023. It does not appear that Defendant has not provided what was promised. Therefore, the court can only consider the initial responses.
Special Interrogatories
The court grants Plaintiff’s motion to compel further responses to special interrogatories nos. 6, 56-57, 62-65, 70, 75-77, and 82.
Legal Standard
A party may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure section 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)
With respect to interrogatories, the burden of showing good cause does not exist. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Williams v. Superior Court (2017) 3 Cal.5th 531, 541 [“While the party propounding interrogatories may have the burden of filing a motion to compel if it finds the answers it receives unsatisfactory, the burden of justifying any objection and failure to respond remains at all times with the party resisting an interrogatory.”].)
Merits
Defendant has not met its burden to justify any objections as to these specific interrogatories. Furthermore, the responses are not Code-compliant. Each answer in the response must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subds. (a) & (b).) Where the question is specific and explicit, an answer that supplies only a portion of the information sought is improper. It is also improper to provide “deftly worded conclusionary answers designed to evade a series of explicit questions.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)
Within 20 days of the notice of ruling, Defendant is ordered to provide verified Code-complaint further responses, without objections, to nos. 6, 56-57, 62-65, 70, 75-77, and 82.
Within 30 days of the notice of ruling, Defendant is ordered to pay $1,860 in sanctions to Hildebrand McLeod & Nelson LLP.
Form Interrogatories
The court grants Plaintiff’s motion to compel further responses to form interrogatories 12.2, 12.3, 12.4, 12.6, 13.1, 13.2, 15.1, 16.1, and 16.9.
As to nos. 12.2, 12.3, 12.4, 12.6, 13.1, and 13.2 (involving witnesses interviewed, reports from those interviews, videos and photos of the incident, surveillance of Plaintiff and reports of the same), Defendant objects based on work product protections. Although promised, Defendant failed to provide a privilege log at any point in time for the court’s review.
The Discovery Act protects information qualifying as attorney work product from discovery. (Code Civ. Proc., §§ 2018.010 et seq.; League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993.) The attorney work product protection extends to work product generated by an attorney's investigators, researchers, and other
employees and agents. (Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647–648; Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 815) However, it does not include information obtained independently of the attorney, for example, by a party or insurer before hiring an attorney. (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16.)
Generally speaking, work product protection only applies to “derivative” material, i.e., material created by or derived from an attorney's work on behalf of a client that reflects the attorney's evaluation or interpretation of the law or the facts involved. In contrast, “nonderivative” material, i.e., material which is only evidentiary in nature, is not protected even if a lot of attorney work may have gone into locating and identifying it. (Coito v. Superior Court (2012) 54 Cal.4th 480, 489.)
The attorney work product doctrine provides two levels of protection. Materials contain an “attorney's impressions,
conclusions, opinions, or legal research or theories” are entitled to absolute protection. Otherwise, general work product is entitled to conditional or qualified protection. (Code Civ. Proc., § 2018.030; League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993; City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1033.)
A court may order the disclosure of conditionally protected work product (1) to avoid unfair prejudice to the party seeking discovery in preparing its claim or defense, such as the potential impeachment value of the information and the opposing party's inability to obtain an adequate substitute for the information (Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 441) or (2) to avoid injustice (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 785).
The identity of witnesses from whom an attorney has obtained statements is not automatically entitled to absolute or qualified work product protection. Rather, to invoke the protection, a party must demonstrate that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case to establish absolute protection, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts to establish conditional protection. (Coito v. Superior Court, supra, 54 Cal.4th at pp. 501-502.)
Recorded witness statements that are obtained as a result of interviews conducted by an attorney or by an attorney's agent at the request of an attorney are entitled at least conditional work product protection, and may be entitled to absolute protection if it can be shown that disclosure would reveal its attorney's impressions, conclusions, opinions, legal research, or theories. (Id. at p. 495.) Witness statements that are not entitled to absolute work product protection may be subject to discovery if the opposing party can show that denial of discovery will unfairly prejudice this party in preparing its claim or defense or will result in an injustice. (Id. at p. 486.) The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
Here, Defendant as the objecting party, made no preliminary or foundational showing that answering the interrogatories would reveal defense counsel’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts. (See Cal. Judges Benchbook Civ. Proc. Discovery § 4:48.) Defendant has not met its preliminary burden to show that even a qualified work product protection should apply. Therefore, the motion is granted. Defendant is ordered to fully respond to each interrogatory, including all subparts.
As to no. 15.1 regarding affirmative defenses, Defendant has not met its burden to justify any objections and its responses are no Code-compliant. Defendant must respond fully as to each affirmative defense, including all subparts.
As to nos. 16.1 and 16.9 regarding the negligence of others and other claims made by Plaintiff, Defendant has not met its burden to justify any objections and its responses are no Code-complaint. Defendant must respond fully as to each interrogatory and all subparts.
Within 20 days of the notice of ruling, Defendant is ordered to provide verified Code-compliant further responses, without objections, to nos. 12.2, 12.3, 12.4, 12.6, 13.1, 13.2, 15.1, 16.1, and 16.9.
Within 30 days of the notice of ruling, Defendant is ordered to pay $1,860 in sanctions to Hildebrand McLeod & Nelson LLP.
Requests for Production of Documents
Plaintiff's motion to compel further responses as to his requests for production of documents is granted in part and denied in part. The court grants the motion as to nos. 15, 18, 22, 25, 44, 45, 104, 114, and 124. The motion is denied as to nos. 76, 84, and 86.
Legal Standard
Code of Civil Procedure section 2031.220 requires a party responding to an inspection demand to respond with (1) a statement that it will comply, (2) a representation that it does not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.220.) An agreement to comply must be rather specific as to what is agreed to. It must state that the production and inspection will be allowed (in whole
or in part); and that the documents or things in the demanded category that are in the responding party's possession, custody, or control will be produced. (Code Civ. Proc., § 2031.220.)
On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete or evasive; (3) an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth specific facts showing good cause justifying the discovery. (Code Civ. Proc., § 2031.310, subd. (b).) Absent a claim of privilege or attorney work product, the burden of showing good cause may be met simply by a fact-specific showing of relevance.
“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 8:1496, citing Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)
When asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1); Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 596-597.) A privilege log must provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document's date, and a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. (Wellpoint Health Net Inc. v. Superior Court (1997) 54 Cal.App.4th 110, 129-130; see Code Civ. Proc., § 2031.240, subd. (c)(1).)
In ruling on a motion to compel document production, the court may require the party who objected on the ground of privilege to prepare and serve a privilege log. The purpose is to make a record of the documents withheld and the privilege claim asserted as to each. (Wellpoint Health Networks, Inc., supra, 59 Cal.App.4th at p. 130; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189.)
Merits
The court denies the motion as to nos. 76, 84, and 86, sustaining Defendant’s overbreadth objection.
As to nos. 15, 18, 22, 25, 44, 45, 104, 114, and 124, the court finds that Plaintiff has shown good cause. Defendant’s responses are not Code-complaint as they do not indicate whether the production is being complied with in whole or in part. Rather, each response to these requests lists certain documents that will be produced. This is insufficient and non-responsive. Defendant has not provided the court with a privilege log prior to the adjudication of the merits of this motion. Furthermore, it is not clear that any derivative material is being withheld in response to these requests.
Within 20 days of the notice of ruling, Defendant is ordered to provide verified Code-complaint further responses, without objections, to nos. 15, 18, 22, 25, 44, 45, 104, 114, and 124 within 30 days of notice of this Order. Defendant is also ordered to produce all documents within the same timeframe.
Within 30 days of the notice of ruling, Defendant is ordered to pay $1,860 in sanctions to Hildebrand McLeod & Nelson LLP.
Plaintiff shall give notice of the ruling.