Judge: Gregory Keosian, Case: 21STCV34287, Date: 2023-03-08 Tentative Ruling

Case Number: 21STCV34287    Hearing Date: March 8, 2023    Dept: 61

Plaintiff Newage Garden Grove, LLC’s Motion to Compel Further Responses to Requests for Production from Defendant Titanium Group (III), LLC is GRANTED. Sanctions are Denied.

Plaintiff Newage Garden Grove LLC’s Motion for Protective Order is GRANTED.

Defendant Titanium Group (III) LLC’s Motion to Compel Compliance with Statements of Compliance is DENIED.

Plaintiff to give notice.

I.                   MOTION TO COMPEL FURTHER – DOCUMENTS

“A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

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 requests for production at issue here, asking Defendant to produce the documents it scanned, photographed, or otherwise reproduced during its July 11 2022 inspection. (Separate Statement.) Defendant objected to these requests, 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 responses stated, in their 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); 2031.310, subd. (h).)

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.

III.             MOTION FOR PROTECTIVE ORDER

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc §§ 2030.090, subd. (b); 2031.060, subd. (b).)

Plaintiff Newage Garden Grove, LLC (Plaintiff) moves for a protective order, to designate certain documents confidential. Plaintiff cites its licensing agreement with Sheraton Hotel, which includes a requirement that Plaintiff maintain the confidentiality of information related to the business. (Motion at pp. 2–3.) Plaintiff seeks a protective order modeled on the Los Angeles Superior Court Model Protective Order — Confidential Designation, with the modification that parties be permitted to designate any documents previously produced as confidential within 90 days of entry of the order. Plaintiff contends this modification is needed because Defendant Titanium Group (III) LLC (Defendant) was permitted to reproduce confidential documents from Plaintiff’s possession, and Plaintiff inadvertently allowed such documents to be produced without any protective order in place or confidential designation. (Motion at pp. 3–6.) Although the parties met and conferred regarding the proposed order, Plaintiff sought a 90-day period to make retroactive modifications, while Defendant offered only 45 days. (Parineh Decl. Exhs. A–C.) Plaintiff contends the extra time is necessary because it does not know what documents Defendant reproduced from the June 13, 2022 production. (Motion at p. 4.) Defendant in opposition argues that Plaintiff has already had sufficient time in which to review its production and designate it confidential. (Opposition at p. 1.)

Plaintiff has shown good cause for the motion. Although Defendant claims that Plaintiff has had sufficient time to designate its production confidential, Plaintiff persuasively argues that, given the circumstances of its June 2022 production, it is not in a position to know for certain what production has actually been made to Defendant, and thus cannot make any designations. (Motion at pp. 3–4.) Accordingly, the motion is appropriate, to allow Plaintiff to evaluate what production has occurred, and to designate what documents are confidential pursuant to its operating agreement with Sheraton.

The motion is GRANTED.

IV.             MOTION TO COMPEL COMPLIANCE

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc. § 2031.320, subd. (a).)

Defendant Titanium Group III, LLC (Defendant) moves to compel compliance with statements of compliance served by Plaintiff Newage Garden Grove LLC in response to requests for production, Set 6, Requests No. 34, 35, 37, 39, 41–44, 46, and 47. (Miller Decl. ¶ 2.) Despite granting an extension of time for Plaintiff to produce documents after substituting in new counsel, no such documents have been produced. (Miller Decl. ¶¶ 3–4.)

Plaintiff in opposition argues that Defendant’s motion does not target the correct requests, as the numbers and set identified do not correspond with any statements of compliance. (Opposition at p. 2.)

Defendant filed a notice of errata on February 27, 2023, indicating that the wrong discovery — requests and responses mislabeled “set 6” when it was actually set 7 — was attached as an exhibit, and including the correct discovery responses. (Miller Decl. Exh. B.)

The motion is defective. Defendant’s motion and accompanying delcaration are founded upon discovery that is evidently not at issue. Defendant did not rectify the issue until after Plaintiff had filed an opposition.

The motion is DENIED.