Judge Gregory Keosian, Case 21STCV33705 2022-10-24 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCV33705, Date: 2022-10-24 Tentative Ruling

Case Number: 21STCV33705 Hearing Date: October 24, 2022 Dept: 61

Defendant Prada USA Corp.’s Motion to Quash Deposition Subpoena for Personal Appearance and Production of Documents and Things to Nicky Jatana and Request for Sanctions in the Amount of $2,580 is GRANTED in part and DENIED in part. The Court grants Defendant’s request to quash the Plaintiff Lindsey Sterling’s deposition subpoena, but denies the request for sanctions.

A. Legal Standard

“A deposition subpoena may command any of the following: ¶ (a) Only the attendance and the testimony of the deponent …. ¶ (b) Only the production of business records for copying …. ¶ (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things ….” (Civ. Code Proc., § 2020.020.)

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things … at the taking of a deposition, the court, upon motion reasonably made by any person [including a party] … may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subd. (a).)

B. Discussion

Defendant moves for an order quashing the deposition subpoena Plaintiff served on its counsel, Nicky Jatana (“Jatana”).

Jatana attests to the following facts. On August 12, 2022, Plaintiff and her counsel appeared in-person for Plaintiff’s deposition as ordered by the Court. (Declaration of Nicky Jatana, filed on September 26, 2022 (“Jatana Decl.”), ¶ 4.) Before the deposition started, Plaintiff’s counsel handed Jatana a subpoena requesting her personal appearance at deposition and request for production of documents and things. (Jatana Decl., ¶ 4; Exhibit B – a copy of the subpoena.) The subpoena states that the matters upon which Jatana will be examined are: “Trainings, Prada’s policies and procedures re employment handbook, Plaintiff’s employment at Prada.” (Jatana Decl., ¶ 4; Exhibit B, p. 1, item 4.) It also asks Jatana to produce the following documents: “Any and all documents and papers that [Jatana] provided to Plaintiff for trainings.” (Jatana Decl., Exhibit B, p. 1, item 3.) The last time Jatana provided annual harassment training for Defendant in California was in 2015, and there were over twenty managers present for that training. (Jatana Decl., ¶ 6.) While Jatana understands that Plaintiff claims she spoke to Jatana about alleged harassment she witnessed at her employment prior to her employment with Defendant, Jatana has no recollection of the conversation. (Jatana Decl., ¶ 6.) In fact, she has no recollection of any conversations with Plaintiff (outside taking her deposition on August 12, 2022), and other than the knowledge she has gained while acting as Defendant’s current attorney of record in this action, she has no independent knowledge of Plaintiff’s employment with Defendant (or with her previous employer). (Jatana Decl., ¶ 6.) On September 8, 2022, defense counsel’s office prepared and set Plaintiff’s counsel a meet and confer letter, but the parties were unable to resolve their issues regarding the subpoena. (Jatana Decl., ¶ 7.)

“Depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause—a high standard.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562 (“Carehouse”).) “There are strong policy considerations against deposing an opposing counsel.” (Ibid.) “The practice runs counter to the adversarial process and to the state's public policy to ‘[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts.’” (Ibid., quoting Code Civ. Proc., § 2018.020, subd. (b).) “Attorney depositions are disruptive, and add to the length and expense of litigation. Rather than preparing the clients' case for trial, counsel must be prepared (often by retaining additional counsel) to place himself or herself in the witness box, being a responsive witness while remaining a partisan advocate.” (Ibid.) “Attorney depositions chill the attorney-client relationship, impede civility and easily lend themselves to gamesmanship and abuse.” (Id. at p. 1563.)

“To effectuate these policy concerns, California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege?” (Carehouse, supra, 143 Cal.App.4th at p. 1563.)

“[T]he proponent has the burden of proof to establish the predicate circumstances for the first two prongs [i.e., (1) whether the proponent has other practicable means to obtain the information and (2) whether that information is crucial to the preparation of the case].” (Carehouse, supra, 143 Cal.App.4th at p. 1563.) The party opposing the discovery has the “burden of establishing the applicability of the attorney-client privilege and the work product doctrine …” in the third prong. (Ibid.)

Here, Defendant argues that Plaintiff cannot satisfy the first two prongs for the following reasons. First, Plaintiff has other means of obtaining the information she seeks (e.g., Defendant Prada’s trainings, policies, procedures, and employment handbook) through written discovery and depositions of persons most knowledgeable on the topics. Therefore, Plaintiff cannot satisfy the first prong above. Second, Plaintiff cannot satisfy the second prong because Jatana has no information relevant to the crucial or relevant to the preparation of this case. As stated above, Jatana only provided “harassment training” in 2015, but Plaintiff has not asserted any harassment claims in this lawsuit. Jatana has no recollection of any conversations with Plaintiff her prior employment or her employment with the Defendant.

In addition, Defendant argues, to the extent Jatana has any information regarding Plaintiff’s employment, it was obtained in her capacity as Defendant’s attorney of record. Therefore, the subpoena seeks documents and information that are subject to the attorney-client privilege and (or) attorney work product doctrine without justification.

In opposition, Plaintiff argues the following. First, there are no other practical means to obtain the information sought other than to depose Jatana. During Plaintiff’s attempts to meet and confer with Defendant, Plaintiff requested Defendant to identify alternative means to obtain the information other than taking Jatana’s deposition. However, Defendant refused and continues to refuse to do so. Therefore, Jatana is the only one who could testify about Defendant’s policies and procedures for discrimination, harassment, and retaliation. Second, the information sought to be elicited from Jatana is crucial for the preparation of the case because Jatana was the person responsible for providing trainings about Defendant’s policies and procedures for discrimination, harassment, and retaliation. Therefore, the Plaintiff is entitled to conduct discovery regarding her discrimination and retaliation claims, as well as Defendant’s twenty-fourth affirmative defense, “Policies Against Discrimination and Retaliation.” Third and lastly, Defendant cannot meet its burden of showing that the information Plaintiff is seeking is privileged. Specifically, when Plaintiff discussed with Defendant about her former employment, there was no attorney-client relationship between Plaintiff and Jatana. There is also no evidence that the training Jatana provided was privileged. Absent any evidence, there is no merit to Defendant’s argument that the communications or trainings are privileged.

In reply, Defendant reiterates its arguments in its moving papers.

The Court finds that Plaintiff has simply failed to meet her burden of showing there is no practicable means of obtaining information regarding Defendant’s policies and procedures for discrimination, harassment, and retaliation. Plaintiff argues that it asked Defendant to identify those alternative means, but Defendant refused. However, the burden is not on the Defendant but on Plaintiff to show other alternative means. In addition, just because Defendant refuses does not mean that Plaintiff is without recourse. In the event that Plaintiff propounds discovery on Defendant requesting the production of those training manuals or inquiries through interrogatories for such information and Defendant refuses to answer or gives an evasive answer, Plaintiff can seek an order compelling compliance. Plaintiff has failed to show such means are unavailable.

Further, while Plaintiff has shown that Jatana’s testimony might be relevant to claims and defending Defendant’s affirmative defenses, she has failed to show that the testimony is crucial for the preparation of the case. The Court has reviewed Plaintiff’s deposition testimony in which she testified she spoke with Jatana regarding her experience at her former employer Louis Vuitton, and she had also attended Jatana’s training and learned issues that needed to be addressed. (Opp’n, declaration of Dominique Westmoreland, ¶ 4; Exhibit 3 – a copy of Plaintiff’s deposition transcript.) However, Plaintiff’s testimony does not show that Jatana was involved in the events alleged in her FAC or that she confided in Jatana about the experiences she was having at Defendant’s workplace. In other words, other than providing trainings, there is no other connection between Jatana and Plaintiff. However, as stated above, Plaintiff has failed to show she cannot obtain such information through other means.

For those reasons, the Court finds that Plaintiff has failed to satisfy the first two of the three-prong test of considering the propriety of Jatana’s deposition. There is no reason for the Court to consider the third prong because “[e]ach of [the three] prongs poses an independent hurdle to deposing an adversary’s counsel; any one of them may be sufficient to defeat the attempted attorney deposition.” (Carehouse, supra, 143 Cal.App.4th at p. 1563.)

Accordingly, the Court grants Defendant’s request to quash the subpoena.

However, the Court denies Defendant’s request to impose sanctions on Plaintiff. The Court does not find that Plaintiff’s decision to serve the subpoena was a misuse of the discovery process.