Judge: Jon R. Takasugi, Case: BC707386, Date: 2023-02-27 Tentative Ruling

Case Number: BC707386    Hearing Date: February 27, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            WK’s motion to compel Patrick Ivie’s compliance with the deposition subpoena is GRANTED. Patrick Ivie’s motion to quash the deposition is DENIED.

On 5/23/2018, Plaintiff Aetna, Inc (Plaintiff) filed this action. On 5/23/2018, Plaintiff filed a first amended complaint (FAC) against Whatley Kallas, LLP, Whatley Kallas, LLC, and Consumer Watchdog, alleging: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

            On 3/1/2022, Whatley Kallas, LLP (WK) filed a Cross-Complaint (XC) for implied equitable indemnity and declaratory relief against KCC Class Action Services, LLC (KCC), Kurtzman Carson Consultants (KCC), Computershare Communication Services, Inc. (CCS), and Gibson Dunn & Crutcher, Inc (Gibson).

            Now, WK moves to compel Patrick Ivie’s compliance with deposition subpoena. Concurrently, Patrick Ivie moves to quash the deposition subpoena. Given that the substance of the motions overlap, the Court has consolidated its analysis into a single ruling.

Discussion

            WK argues it is entitled to depose Patrick Ivie as a key witness with respect to Aetna’s claims against WK.  Patrick Ivie argues that WK is seeking to depose Mr. Ivie on issues wholly duplicative of those already addressed during his deposition in the federal Aetna action.

            Notably, Ivie had been scheduled for deposition on 12/14/2022. However, on 12/12/2022, Ivie’s counsel emailed WK’s counsel and stated for the first time that Ivie needed to review the transcript of his deposition from the Aetna v. KCC case (where WK was not a party and did not have the opportunity to participate in the deposition). After overcoming a number of obstacles regarding review of the transcript, Ivie’s counsel offered the date of January 26, 2023 for Ivie’s deposition. Then after another round of back and forth, Ivie’s counsel indicated that they would be filing a motion to quash.

            The Court has repeatedly set out its reasons for allowing WK to conduct further discovery through noticed depositions in both its ruling on Cross-Defendants’ motion to stay and WK’s motion to compel compliance.  Here, “[Ivie] was at the center of communications between Aetna’s counsel, Heather Richardson, of Gibson Dunn and Crutcher (“Gibson”) and KCC, and he was responsible for coordinating the mailing of the change of practices notices (“the Notices”) which were ultimately mailed by the KCC Cross-Defendants in windowed envelopes that improperly disclosed the protected health information (“PHI”) of Aetna’s members. That mailing is the entire basis for Aetna’s claims against WK, and Ivie, who coordinated that mailing on behalf of KCC, is therefore a central witness in this case. Ivie also had discussions with Ms. Richardson after the mailing of the Notices concerning the disclosure of the PHI.” (Motion, 2: 22-3:5.)

Given Ivie’s central involvement with the KCC Cross-Defendants’ administration of the settlement agreement and the mailing of the Notices, the Court agrees with WK that Ivie likely has relevant information concerning several of the Tech-Bilt factors, including the proportionate share of liability.

 Ivie argues that “WK’s subpoena seeks to depose Ivie on issues wholly duplicative of those already addressed during Mr. Ivie’s prior deposition in the federal litigation between Aetna Inc. (“Aetna”) and KCC and Kurtzman Carson Consultants, LLC (see In re Aetna Litigation, Case No. 2:19-cv-04035-JFW-JEM (C.D. Cal.), the “Federal Litigation”), and seeks the production of documents already produced by KCC in the Federal Litigation and re-produced by Aetna here.” (Opp., 1: 10-15.) However, as repeatedly noted by this Court, WK did not participate in that deposition and WK should not be forced to rely on Aetna’s questioning of the witnesses, given that WK was not a party to the litigation, and Aetna and WK have fundamentally different motivations for examining the relevant witnesses.

            Based on the foregoing, WK’s motion to compel is granted. Ivie’s motion to quash is denied.

It is so ordered.

Dated:  February    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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