Judge: Gregory Keosian, Case: 21STCV34207, Date: 2023-02-21 Tentative Ruling
Case Number: 21STCV34207 Hearing Date: February 21, 2023 Dept: 61
Plaintiff
Newage Garden Grove, LLC’s Motion to Compel Further Responses to Special
Interrogatories, Set One, from Defendant Titanium Group (III), LLC, is GRANTED.
Code compliant responses to be served within 30 days. Sanctions are DENIED.
I.
MOTION TO
COMPEL FURTHER – INTERROGATORIES
“Any party may obtain discovery . . . by propounding to any other party to
the action written interrogatories to be answered under oath.” (Code Civ. Proc., § 2030.010(a).) If a
propounding party is not satisfied with the response served by a responding
party, the former may move the court to compel further interrogatory
responses. (Code Civ. Proc., § 2030.300;
Sinaiko Healthcare Consulting, Inc. v.
Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) The propounding party must demonstrate that
the responses were incomplete, inadequate or evasive, or that the responding
party asserted objections that are either without merit or too general. (Code Civ. Proc., § 2030.300(a)(1)–(3); Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at 403.)
This motion arises from the court’s prior order of June 13,
2022, granting Defendant Titanium Group (III) LLC’s (Defendant) motions to
compel further production of documents against Plaintiff Newage Garden Grove,
LLC (Plaintiff). Pursuant to this order, only July 11, 2022, an inspection of
documents was held on Plaintiff’s property, conducted by Defendant’s agents and
overseen by Plaintiff’s agents. (Miller Decl. ¶¶ 9–10.) Following this
inspection, Plaintiff promulgated the special interrogatories at issue here,
asking Defendant in various ways to identify the documents it scanned,
photographed, or otherwise reproduced during its July 11 2022 inspection.
(Separate Statement.) Defendant objected to these interrogatories, reasoning
that the documents it copied are protected by the work-product doctrine. (Ibid.)
An attorney’s selection of what
documents to copy from a given collection may fall within the ambit of the
work-product doctrine’s protections. The statute defining the work-product
doctrine gives absolute protection to writings that reflect “an attorney’s
impressions, conclusions, opinions, or legal research or theories,” and gives
qualified protection to other attorney “work product.” (Code Civ. Proc. §
2018.030.) In certain circumstances, “disclosing a list of witnesses
from whom an attorney has taken recorded statements may, in some instances,
reveal the attorney's impressions of the case.” (Coito v. Superior Court
(2012) 54 Cal.4th 480, 501.) Disclosure of documents reproduced from a given
collection may similarly reveal attorney impressions or theories, if the
circumstances of the case are such as to make the particular selection
suggestive of a given attorney opinion. Although Plaintiff argues that
Defendant’s counsel did not personally select the documents — they were instead
selected by Defendant’s own employees — the work-product doctrine preserves
from disclosure not simply the work-product of the attorney themselves, but
also the attorney’s agents or investigators. (Coito v. Superior Court
(2012) 54 Cal.4th 480, 495.)
However, the circumstances of document selection in
this case were peculiar, in that they were not conducted in confidence, as most
work product is, but rather in full view of Plaintiff’s agents. Defendant’s
interrogatory response stated, in its objections, that Plaintiff “had multiple people
in the room” during the inspection, “watching [Defendant] and every movement
then taken, i.e. watched every folder that was taken out of a box, every folder
that was opened, every page that was handled, and every page that was selected
for copying or not.” (Separate Statement at p. 4.) Defendant’s counsel confirms
in opposition that Plaintiff had someone in the inspection room at all times,
“watching every movement of our consultants always.” (Miller Decl. ¶ 10.) It is
doubtful that the work product doctrine would preserve an attorney’s selection
of documents in such a situation, as the doctrine is a rule against
discoverability and disclosure, which may be waived by an intentional
disclosure inconsistent with the privilege, particularly to one who “has no interest in maintaining the
confidentiality ... of a significant part of the work product.” (Laguna Beach County Water Dist. v. Superior Court
(2004) 124 Cal.App.4th 1453, 1459.) When the information to be protected by the
privilege was itself obtained in full view of the adverse party, that privilege
would have been waived if it ever applied at all.
Such is the appropriate determination here.
Defendant’s selection of documents, though arguably subject to work-product
protection if conducted in confidence, was here conducted in full view of
Plaintiff’s agents. As such, the doctrine does not apply.
The motion to compel further responses is therefore
GRANTED.
II.
SANCTIONS
Statute provides that the court shall impose sanctions upon
a party who unsuccessfully makes or opposes a motion to compel further response
to interrogatories or requests for production of documents, absent substantial
justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d).)
Plaintiff seeks sanctions in the amount of $2,951.65,
representing 6.8 hours of attorney work at $425 per hour, plus a $61.65 filing
fee. Sanctions are DENIED, as the motion was brought with substantial
justification