Judge Keri G. Katz, Case 37-2022-00003723-CU-WT-CTL 2024-02-16 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2022-00003723-CU-WT-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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EVENT DATE:

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Wrongful Termination Discovery Hearing 37-2022-00003723-CU-WT-CTL QUACH VS SHARECARE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Sharecare, Inc.'s motion to compel compliance with Plaintiff Connie Quach's statement of compliance in response to Sharecare's Request for Production of Documents is GRANTED IN PART AND DENIED IN PART.

Request for Production No. 51: All DOCUMENTS that support the claim that you were harassed by DEFENDANT.

Sharecare seeks production of notes Plaintiff Quach testified she prepared while still employed at Sharecare. Plaintiff Quach testified that she did not have counsel at the time she prepared the notes and that she prepared the notes for herself 'to remember.' Plaintiff Quach also testified that she believed the notes support her claim that she was being harassed by Sharecare.

In opposition Plaintiff Quach argues that 1) the notes are not responsive to Request for Production No.

51 and, 2) the notes are protected from disclosure by the attorney-client privilege. Addressing 1), based on the language of the request and based on Plaintiff Quach's testimony, the court finds the notes responsive to Request for Production No. 51. As to 2), although not raised by Plaintiff Quach, the court treats the 'PRIVILEGE LOG' contained within Plaintiff Quach's response to Sharecare's deposition request for production of documents [Declaration of John Y. Tremblatt, 'Exhibit #1'] as an attorney-client privilege objection. However, the court finds Plaintiff Quach fails to meet Plaintiff Quach's burden of establishing the applicability of the attorney-client privilege to the notes. See, Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1235 ['[t]he party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship']. Plaintiff Quach's testimony is that she prepared the notes for herself. There is no evidence from Plaintiff Quach that she intended the notes as a communication to her attorney. Plaintiff Quach's attorney, John Y. Tremblatt's declaration stating that Plaintiff Quach 'intended to provide the information in the notes to [counsel] in confidence' is inconsistent with Plaintiff's testimony and not determinative on the issue of whether the notes are protected from disclosure by the attorney-client privilege. Similarly, Tremblatt's declaration stating that Plaintiff Quach intended to provide the notes to Tremblatt is also not dispositive. See, Green & Shinee v. Superior Court (2001) 88 Cal.App.4th 532, 536 [the transmission of a nonprivileged document to one's attorney does not make the document privileged']. The court is not persuaded by the cases Plaintiff Quach relies on because there is no evidence that the notes were a communication to Plaintiff Quach's attorney. The court orders Plaintiff Quach to produce the notes described by Plaintiff Quach at Calendar No.: Event ID: TENTATIVE RULINGS

3077274 2 CASE NUMBER: CASE TITLE: QUACH VS SHARECARE INC [IMAGED] 37-2022-00003723-CU-WT-CTL deposition within 10 days of this ruling.

Sharecare also seeks two additional documents redacted as 'attorney client communications,' redacted copies of which are attached as Exhibit 8 to the Declaration of Ross M. Poole. The court finds the 'Privilege Log' contained within Plaintiff Quach's response to Sharecare's deposition request for production of documents insufficient as to these two documents. The court orders Plaintiff Quach to provide a privilege log as to these two documents, with the information required under CCP § 2031.240 and Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291 [identifying 'each document for which a privilege is claimed, with its author, date of preparation, all recipients, and the specific privilege claimed'], within 10 days of this ruling.

Request for Production No. 56: All COMMUNICATIONS between YOU and PAULA DYCAICO between January 1, 2020, and present.

Sharecare seeks 1) personal email communications between Plaintiff Quach and Plaintiff Paula Dycaico, 2) messages from Plaintiff Dycaico to 'connie 88' and, 3) text messages for the time period January 1, 2020, to March 13, 2023. In reply Sharecare states that the parties continued to meet and confer as to these documents after the filing of this motion and that Plaintiff Quach's counsel confirmed that additional responsive emails and text messages did exist, but that these communications cannot be produced because they were deleted and are no longer recoverable. The court orders Plaintiff Quach to provide a supplemental verified response with this information within 10 days of this ruling. No further production is required from Plaintiff Quach as to these communications. Sharecare's request for an order compelling Plaintiff Quach's cooperation in Sharecare's efforts to subpoena these communications from third-party cell phone and email providers is denied. Sharecare provides no authority to support such request.

Sharecare also contends that the text messages between Plaintiff Quach and Plaintiff Dycaico that were produced by Plaintiff Quach were inappropriately redacted as 'Attorney Client Communication.' Plaintiff Quach fails to provide any authority applying the attorney-client privilege to communications between co-plaintiffs outside of the presence of their attorney. Absent such authority, the court finds Plaintiff Quach fails to meet Plaintiff Quach's burden of establishing the applicability of the attorney-client privilege to these text messages. The court orders Plaintiff Quach to produce these text messages within 10 days of this ruling.

Request for Production No. 63: All DOCUMENTS that refer or relate to any other lawsuits, complaints, charges, grievances, or other legal claims filed by YOU or filed by others on YOUR behalf, against an employer other than SHARECARE.

Sharecare contends Plaintiff Quach has not produced any responsive documents. In opposition Plaintiff Quach raises the issue of a confidentiality provision in the parties' settlement agreement in the matter titled Connie Quach v. MindTouch, Inc., et al. San Diego Superior Court Case No.

37-2020-00037898-CU-WT-CTL. Plaintiff Quach argues that the confidential settlement agreement cannot be produced by Plaintiff Quach. The court finds attorney Tremblatt's declaration, under oath, sufficient to establish that the confidentiality provision in the settlement agreement prevents Plaintiff Quach from producing the settlement agreement itself. The court is not persuaded by the privacy authorities Sharecare relies on because none involve the issue of production of a settlement agreement with a confidentiality provision.

Sharecare also seeks responsive documents other than the settlement agreement. Plaintiff Quach raises no argument as to production of responsive documents other than the settlement agreement.

The court orders Plaintiff Quach to produce all responsive documents, other than the settlement Calendar No.: Event ID: TENTATIVE RULINGS

3077274 2 CASE NUMBER: CASE TITLE: QUACH VS SHARECARE INC [IMAGED] 37-2022-00003723-CU-WT-CTL agreement, within 10 days of this ruling. To the extent Plaintiff Quach withholds production of any documents based on the attorney-client privilege, Plaintiff Quach shall provide a privilege log at the time of production.

Sharecare's request for sanctions is DENIED.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Calendar No.: Event ID: TENTATIVE RULINGS

3077274 2