Judge Jill Feeney, Case 21STCV11152 2022-10-20 Tentative Ruling

Defendant argues that good cause exists for a protective order because it is unclear what other testimony Achar could provide as an individual witness that she did not already provide as Defendant’s PMK. Defendant alleges that a second deposition of Achar consisting of repetitive questions is unreasonable.

Plaintiff argues that Achar’s deposition as a natural person is necessary because Plaintiff has not provided any testimony as a percipient witness to the slip and fall incident. Plaintiff also argues that although Achar’s answers to certain question may be the same as when she was deposed as a PMK, that is not guaranteed, and Plaintiff has no way of knowing whether Achar will provide the same answers at deposition.

Under Code of Civil Procedure section 2017.020 courts “shall limit the scope of discovery if” the court “determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” A “court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.)

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order “that justice requires” to protect any party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) If “good cause” is shown, the court can exercise its discretionary power to limit discovery. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the judge. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 (overruled on other grounds pertaining to attorney work product privilege).) The concept of good cause requires a showing of specific facts demonstrating undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance, and justifying the relief sought. (See Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819.) Unlike other discovery orders, a protective order may be granted simply on the court’s determination that justice so requires. (Greyhound Corp., 56 Cal.2d at pp. 379-81.)

Plaintiff previously deposed Achar as a person most qualified for Defendant. (Arnall Decl., ¶2.) The deposition explored (1) Defendant’s event that led to the incident, (2) Defendant’s knowledge of the incident, (3) Defendant’s investigation of the incident, (4) Defendant’s policies and procedures in effect on the date of the incident, (5) Defendant’s safety policies and procedures for safe distribution of food during the event, and (6) Defendant’s policies and procedures for disposal of food containers during the event. (Id., ¶3.) Plaintiff also questioned Achar on her work background, prior food distribution events, the identity of potential witnesses, and the video of the incident. (Id., ¶4.) Plaintiff now seeks to depose Achar as a natural person. The parties do not dispute that a second deposition of the same individual is permitted where the individual is deposed as a PMK and again as a natural person. (Code Civ. Pro., section 2025.610, subd. (c).)

Defendant has not sufficiently shown good cause for a protective order limiting the scope of Achar’s deposition as a natural person. Defendant argues good cause exists to limit the scope of Achar’s deposition solely because questioning may be repetitive and Achar’s responses may be similar to those she already gave during her deposition as a PMK. Defendant does not provide any evidence that Achar’s second deposition would cause undue burden, unwarranted embarrassment, oppression, or unwarranted annoyance to Achar or Defendant. Defendant also accuses Plaintiff of abusing the discovery process by getting a second bite at the apple even though the rules provide for such a deposition in this instance. There is no evidence that Plaintiff’s deposition is an abuse of discovery.

Deposing the same individual as a natural person and again as a PMK is expressly allowed under Code Civ. Pro., section 2025.610, subd. (c). As Plaintiff noted in her opposition, Achar responded from the point of view of Defendant at her first deposition. (Opp., p. 4.) Because Achar is also a witness to the incident, Defendant has a legitimate discovery interest in deposing Achar as a natural person. Although it is possible some questions and answers may be the same as Achar’s first deposition, some repetitive questioning would not pose a significant burden on Achar or Defendant.