Judge: Joel R Wohlfeil, Case: 37-2022-00044342-CU-OE-CTL, Date: 2024-06-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 11, 2024

06/13/2024  01:30:00 PM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Other employment Discovery Hearing 37-2022-00044342-CU-OE-CTL MCNALLY MD VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 04/15/2024

The Motion (ROA # 35, 41) of Plaintiff COLLEEN McNALLY, M.D. ('Plaintiff') for an order compelling Defendant the Regents of the University of California ('Defendant' or 'Regents') to provide responsive documents to Requests for Production, Set Two, No. 18, and Requests for Production, Set Seven, No.

20, is GRANTED IN PART, DENIED IN PART and will be HEARD IN PART.

The Court has read and considered Plaintiff's First Amended Complaint ('FAC' – ROA # 21) in which Plaintiff alleges claims for 1) Violation of California Whistleblower Protection Act (Government Code 8547.10), 2) Retaliation in Violation of Labor Code 1102.5, and 3) Violation of Health and Safety Code 1278.5 against Defendant.

The Court has read and considered Defendant's Answer in which Defendant alleges twenty-nine (29) affirmative defenses.

Defendant's objections are, except as noted, OVERRULED. To the extent that the Court agrees with Plaintiff, Defendant is directed to produce the documents within twenty (20) days of the hearing of this Motion.

No. 18 In her declaration, Lydia Ikeda represents that the ten (10) communications identified on Defendant's privilege log occurred 'at the direction of legal counsel' (Veronica Marsich, as UC San Diego Health's Chief Counsel). ROA # 42.

In its separate statement (ROA # 44), Defendant appears to limit its privilege objection to the attorney work product doctrine.

The question, from the Court's perspective, is whether nature of the work product doctrine asserted by Defendant is absolute or qualified.

Since none of these communications were authored by Marsich, the Court questions whether these communications reflect her 'impressions, conclusions, opinions, or legal research or theories' and are therefore 'not discoverable under any circumstances.' CCP 2018.030(a).

On the other hand, even if these communications are protected by a qualified work product doctrine, the Court questions how, if at all, drafts of the communications are relevant or reasonably calculated to lead Calendar No.: Event ID:  TENTATIVE RULINGS

3140416 CASE NUMBER: CASE TITLE:  MCNALLY MD VS THE REGENTS OF THE UNIVERSITY OF CALIFORNIA  37-2022-00044342-CU-OE-CTL to the discovery of admissible evidence. Ultimately, the October 16, 2020 letter provided to Plaintiff frames, if not limits, the basis of Defendant's decision not to renew Plaintiff's contract.

No. 20 Defendant's assertion of the patient's privacy is, in part, well taken; however, Plaintiff's proposal that Defendant redact the 'patient-identifying information in the records' appears to satisfactorily address the privacy consideration.

Further, Plaintiff has made a showing that her need for the records exceeds Defendant's interest in withholding the records.

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3140416