Judge Kerry Bensinger, Case Number: 21STCV25741, Date: 2024-05-07 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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On July 13, 2021, Plaintiff Nandini Mehta filed this employment action against Defendants, Netflix, Inc. (“Netflix”), and David B. McLean, arising from her alleged wrongful termination from employment with Netflix.

On October 21, 2023, in response to Plaintiff’s Request for Production of Documents, Set Two, Defendants made a supplemental production of documents which were redacted in part or in whole, on the basis of privilege. Pursuant to Plaintiff’s request, on December 8, 2023, Defendants served a privilege log. The privilege log identified 199 different documents. Plaintiff further requested Defendants to produce unredacted copies of the at-issue documents. Defendants refused as to 198 of the documents. Meet and confer efforts did not resolve the dispute.

On February 5, 2024, Plaintiff filed this Motion to Compel Pursuant to Code of Civil Procedure § 2031.285(d)(1). Plaintiff seeks an order compelling Defendants to produce unredacted copies of the 199 documents from Defendants’ supplemental production.

Plaintiff’s motion is a procedural anomaly. Plaintiff seeks a determination on Defendants’ claim of privilege as to 198 documents under Code of Civil Procedure section 2031.285. Section 2031.285 provides the procedure to “clawback” inadvertently produced electronically stored information (ESI). “If electronically stored information produced in discovery is subject to a claim of privilege or of protection as attorney work product, the party making the claim may notify any party that received the information of the claim and the basis for the claim.” (Code Civ. Proc., § 2031.285, subd. (a).) “If the receiving party contests the legitimacy of a claim of privilege or protection, he or she may seek a determination of the claim from the court by making a motion within 30 days of receiving the claim and presenting the information to the court conditionally under seal. (Code Civ. Proc., § 2031.285, subd. (a).)

Here, however, no documents have been inadvertently produced. Moreover, the producing party (Defendants), are not seeking the return of any of the documents for which they have asserted a privilege. Indeed, there are no (unredacted) documents that have been filed with the court conditionally under seal for which a claim of privilege has been asserted. Plaintiff does not point to any authority which supports Plaintiff’s use of Section 2031.285 in this matter.

At bottom, Plaintiff takes issue with Defendants’ claim of privilege. This sounds like a motion to compel further. Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents where an objection is without merit or too general.¿ (Code Civ. Proc., 2031.310, subd. (a)(1).) Plaintiff should have brought a motion to compel further.

Prior to a hearing for a motion to compel further response, litigants in Department 31 must participate in an Informal Discovery Conference (IDC). The parties have not satisfied the IDC requirement for this discovery dispute. The court further notes that Defendants have asserted a claim of privilege as to 199 documents. Should Plaintiff pursue a motion to compel further, the court, on its own motion, will appoint a discovery referee.

Code of Civil Procedure section 639 and California Rules of Court, rule 3.921 provide for the appointment of a referee on motion of a party or by the court. A referee can be appointed for discovery disputes. (Code Civ. Proc., § 639, subd. (a)(5) “[A referee may be appointed:] (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”].)¿¿¿Appointment requires a court finding of “exceptional circumstances.” (Id., § 639, subd. (d)(2).)

Here, the court expressly finds the volume of the instant discovery dispute presents exceptional circumstances to appoint a discovery referee for the limited purpose of determining Defendants’ claims of privilege. The court will specially set a hearing regarding the appointment of the referee. If the parties cannot agree on a referee, the parties are directed to each serve and file a list of three candidates with their resumes. The parties may concurrently file objections, if any, to the opposing party’s list of candidates.

Based on the foregoing, Plaintiff’s Motion to Compel Pursuant to Code of Civil Procedure § 2031.285(d)(1) is DENIED without prejudice.

If Plaintiff indicates the desire to pursue a motion to compel further, the court, on its own motion, will appoint a discovery referee for the limited purpose of determining the Defendants’ claim of privilege as to the 198 documents. The court will hear from counsel.

If the court were to appoint a discovery referee the court would set a Status Conference re: Discovery Referee for June 18, 2024 at 9:00 a.m. If the parties cannot agree on a referee, the parties are directed to each serve and file a list of three candidates with their resumes by May 22, 2024. The parties may concurrently file objections, if any, to the opposing party’s list of candidates by May 29, 2024.

Kerry Bensinger

Judge of the Superior Court