Department 30, Spring Street Courthouse

January 9, 2023

20STCV17168

Plaintiff’s Motion to Compel Further Discovery Responses

The motion is denied.

Moving party is to provide notice.

Plaintiff seeks production of two written reports made by Defendant’s employees in connection with Plaintiff’s slip and fall at Defendant’s store.

Specifically, Plaintiff seeks the written statements of Michael Hines and Miganoosh Orajian. Hines was a cashier on duty at the time of the slip and fall and Orajian was the store manager on duty at the time of the accident.

Defendant objected to the discovery requests on the basis of work product protection and attorney-client privilege.

Defendant as set forth in its opposition now only asserts attorney-client privilege protection over these materials.  

D.I. Chadbourne, Inc. remains the seminal case for determination of attorney-client privilege in the corporate setting. (Id.; See also Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725 [citing to D.I. Chadbourne]; Tucker Ellis LLP v. Superior Court (Nelson) (2017) 12 Cal. App. 5th 1233 [citing to D.I. Chadbourne for privilege regarding employee’s communication which arose from his employment].)  

  

D.I. Chadbourne, Inc. lays out the following factors, among others, to be considered in evaluating the existence of a privilege:   

  

4. Where the employee's connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation's business, the employee is no longer an independent witness, and his statement or report is that of the employer;  

  

5. If, in the case of the employee last mentioned, the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer's purpose in requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged;  and

  

6. When the corporate employer has more than one purpose in directing such an employee to make such report or statement, the dominant purpose will control, unless the secondary use is such that confidentiality has been waived.  

  

(Id. at 737.)   

Here, Hines and Orajian worked for Defendant and the reports at issue arose from their employment as these statements were required in the ordinary course of the Defendant’s business given that these reports are created after every customer-related accident. (Delgado Declaration  ¶¶ 4-5.)   

Based on this, the next step laid out by D.I Chadbourne is the employer’s purpose in requiring the report. To the extent that there is more than one purpose, it is the dominant purpose that controls. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 533.)

Defendant provides the following evidence in this regard.

The pre-printed Incident Report form utilized by Orajian in this case contains language at the top of the document which states: "The Customer Incident Report  is to be filled out by the Manager on Duty for any reported Customer Incident. This Report  is prepared with the intention of it being transmitted to counsel for 99 Cents Only Stores in the event that litigation ensues. It is intended to be used to assist 99 Cents Only Stores to defend actions brought.”  (Delgado Declaration  ¶12.)   

The pre-printed Employee Statement form utilized by 99 Cents Only Store employee, Michael Hines, in this case contains language at the top of the document which states: "The Employee Statement Report ("Report") is to be filled out by the 99 Cents Store Employee with knowledge of an incident in a store. This Report is prepared with the intention of it being transmitted to counsel for 99 Cents Only Stores in the event that litigation ensues. It is intended to be used to assist 99 Cents Only Stores to defend actions brought against it as a result of an incident. The report is prepared with the intention that it be transmitted to counsel for 99 cents Only Stores when an action is brought.” (Delgado Declaration ¶13.)

“When a "Customer Incident" occurs, the incident report and employee statements, if any, are transmitted to the 99 Cents Corporate offices in Commerce, California for receipt by a Claims 24 Specialist and/or the Customer Safety & Liability manager.” (Delgado Declaration ¶6.)

“When a liability claim is first received by the company, it is initially handled by a claims  representative or claims examiner on behalf of the 99 Cents Only Stores. Defense counsel is typically  retained to defend a liability claim, only when litigation is filed and served on the 99 Cents Only Stores.” (Delgado Declaration ¶8.)

“After transmission to the corporate office, store employees are not given access to their Employee statements made in relation to a Customer Incident to preserve confidentiality.” (Delgado Declaration ¶9.)

“After a customer incident is reported to the corporate office, the incident report is only transmitted to the claims handler and then to defense counsel if a claim becomes litigated. The Incident Report is not transmitted elsewhere to preserve confidentiality.” (Delgado Declaration  ¶10.)

Based on this evidence, Defendant contends that the primary purpose of these reports is to assist claim handlers with liability claims against Defendant and to assist defense counsel retained by Defendant in anticipation of and for defense of litigation.

“Once a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential. A party opposing the privilege has the burden of proof to show the communication is one not made in confidence. (Cal. Evid. Code, § 917.) However, the party claiming privilege has the burden to show that the communication sought to be suppressed falls within the terms of the statute.” (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)

Here, attorney-client privilege is claimed, Defendant has shown that the reports fall within the terms of the statute and is protected under D.I. Chadbourne, Inc..  

In the alternative, Plaintiff raises the argument that Defendant waived any privilege with respect to the statement of Hines because Hines testified about the same facts and events he observed on the day of the accident as were contained in the report.   

Plaintiff misses the mark. Hines did not testify about what he conveyed in the report (which he has not reviewed since he wrote it) but rather about his own independent recollection of what happened that day. Plaintiff provides no authority for the proposition that this constitutes a waiver of the privilege.