Judge: Douglas W. Stern, Case: 21STCV02017, Date: 2023-02-09 Tentative Ruling

Case Number: 21STCV02017    Hearing Date: February 9, 2023    Dept: 68

Marcus Hudson, et al. v. Browning-Ferris Industries of California Inc., et al., Case No. 21STCV02017

­­­­­­­­­BACKGROUND

            These two motions are essentially mirror images of each other.  Plaintiff wishes to depose the former in-house counsel of Defendant and Defendant seeks a protective order to preclude the deposition. 

Plaintiffs filed this case alleging that an employee of Defendant Browning-Ferris Industries of California Inc. (Defendant) sexually harassed them. Defendant’s former in-house counsel, Magdalena Osborn, assisted Defendant’s HR Department in the investigation of Plaintiffs’ sexual harassment claims. Plaintiffs now seek to depose Ms. Osborn because of her involvement in the investigation, but Defendant opposes Plaintiff’s motion to compel deposition based on the attorney-client privilege, and Defendant has filed a motion for protective order to prevent the deposition from taking place.

LEGAL STANDARD AND ANALYSIS

            “[T]he fundamental purpose of the attorney-client privilege is the preservation of the confidential relationship between attorney and client [Citation], and the primary harm in the discovery of privileged material is the disruption of that relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 740-741.) To effectuate this purpose, the attorney-client privilege “confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.’” (Id. at 732 [quoting Evid. Code § 954].) The attorney-client “privilege is absolute.” (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.) “[D]isclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.” (Id.)

            Attorney-client communications in the course of the professional relationship are among the categories of communications that are presumed confidential for privilege purposes; thus, the burden is on the party seeking disclosure to prove otherwise. (Evid. Code, § 917; Estate of Kime (1983) 144 Cal.App.3d 246, 256.) Neither the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any differentiation between “factual” and “legal” information. (Mitchell v. Superior Court (1984) 37 Cal.3d 591 [privilege barred inquiry into attorney’s toxic chemical warnings transmitted to client in course of investigating, preparing and prosecuting client's case against chemical company alleging contamination of air and ground water near client’s home]; Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at 734; Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535-536).

Once the party claiming a privilege establishes preliminary facts sufficient to support the claim, the party opposing the privilege bears the burden of showing that the claimed privilege does not apply. (Costco Wholesale Corp., supra, 47 Cal.4th at 733; Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 123-124 [party opposing privilege failed to establish that attorney was engaged in routine fact-finding rather than legal work]).

Further, the attorney work product privilege protects “an attorney’s impressions, conclusions, opinions, or legal research or theories” from discovery. (CCP §2018.030; Fireman’s Fund Ins. Co. v. Superior Court (2011) 196 Cal.App.4th 1263, 1281). Plaintiffs must show that this information is “crucial to the preparation for this case.” (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1496 citing Shelton v. American Motors Corp. (8th Cir. 1986) 805 F.2d 1323, 1327).

California appellate courts have addressed whether an employer which conducts an internal investigation into claimed employee misconduct, and which later produced its non-privileged investigation files in the course of litigation against it waives the protection of attorney-client privilege or the attorney work product doctrine as to confidential communications between the employer’s non-attorney investigator and the employer’s attorney during the investigation. (See e.g., Kaiser Found. Hosps. v. Superior Court (1998) 66 Cal.App.4th 1217, 1222-23.) Courts have found that it does not. The Kaiser court held that the adoption of such a position would “result in the destruction of the attorney-client privilege and the work product doctrine in every case of alleged employee discrimination or harassment in which an employer puts the adequacy of its prelitigation investigation at issue.” (Id. at 1226-27.)

As for protective orders, the Discovery Act provides that a court “shall restrict the frequency or extent of use of a discovery method” if one or more conditions are present, including that a discovery request is unduly burdensome in light of “the needs of the case” and “the importance of the issues at stake in the litigation.” (See CCP § 2019.030(a).) Moreover, “[t]he court shall limit the scope of discovery” where “the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (CCP § 2017.020(a).)

Specifically, regarding a party’s use of depositions as a mechanism for discovery, subdivision (b) of CCP section 2025.420 provides that, for good cause shown, a court “may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Such order of protection may include a direction “[t]hat the deposition not be taken at all” or “[t]hat the scope of the examination be limited to certain matters.” (CCP § 2030.090(b)(1), (10).) “Good cause” requires a showing of specific facts justifying the relief sought. (See Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.)

In this case, Ms. Osborn was the former in-house counsel for Defendant. She assisted Defendant’s HR Department in its investigation of Plaintiffs’ sexual harassment claims in her capacity as Defendant’s in-house counsel. Plaintiffs now seek to depose her on the chance that she might have further information that they did not obtain from their depositions of Defendant’s HR personnel. However, California courts are very protective of the attorney-client privilege. Plaintiffs would have to demonstrate that invading that privilege was crucial, which they have not done so. Their argument that Ms. Osborn was a “decisionmaker” for HR, and therefore the privilege does not apply to her, does not have merit. Ms. Osborn was still acting in her capacity as in-house counsel in assisting in the investigations by providing legal advice.  The evidence shows that at all times the duties performed by Ms. Osborn were in her role as in house counsel and are protected by the attorney-client privilege.

Based on the foregoing, a protective order is necessary to prevent the deposition from being taken.  Plaintiffs’ motion to compel the deposition of Ms. Osborn is DENIED, and Defendant’s motion for a protective order is GRANTED.  Plaintiff may not take the deposition of Ms. Osborn.