Judge Kerry Bensinger, Case Number: 23STCV28732, Date: 2025-04-03 Tentative Ruling

MOTION TO COMPEL DOCUMENTS PURSUANT TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

This is a FEHA action. On March 29, 2024, plaintiff Casetta Signater (“Plaintiff”) propounded Request for Production of Documents (“RPD”), among other discovery requests, on defendant Keppel Union District School (“Defendant”). After requesting and receiving several extensions, Defendant served responses on August 1, 2024. As pertinent here, Defendant served an objection-only response to RPD No. 41. Plaintiff took issue with the response. Meet and confer efforts did not resolve the issue.

On January 28, 2025, the parties participated in an informal discovery conference regarding this and other discovery disputes. The issues were not resolved.

On February 25, 2025, Plaintiff filed this motion to compel Defendant’s further response to Request for Production of Documents (“RPD”), Set One, No. 41. Plaintiff requests sanctions against Defendant and its counsel of record.

On March 21, 2025, Defendant filed an opposition. Defendant requests sanctions against Plaintiff and her counsel of record.

Under Code of Civil Procedure section 2031.310, parties may move for a further response to requests for production of documents¿where an answer to the requests are evasive or incomplete or where an objection is without merit or too general.¿ A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.”¿ (Code Civ. Proc., § 2031.310, subd. (b)(1).)¿¿¿¿¿

Notice of the motion must be given within 45 days of service of the verified response, otherwise, the propounding party waives any right to compel a further response.¿ (Code Civ. Proc., § 2031.310, subd. (c).)¿ The motion must also be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2031.310, subd. (b)(2).)¿¿¿¿¿

Finally, California Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses.¿ (Cal. R. Ct., rule 3.1345(a)(3).)¿¿

Sanctions against counsel:¿ The court in Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81 (Hennings) noted that discovery sanctions against an attorney are governed by a different standard than sanctions against a party:¿¿¿¿¿¿¿

By the terms of the statute, a trial court under section 2023.030(a) may not impose monetary sanctions against a party’s attorney unless the court finds that the attorney “advised” the party to engage in the conduct resulting in sanctions. (§ 2023.030(a); Ghanooni v. Super Shuttle (1993) 20 Cal.App.4th 256, 261, 24 Cal.Rptr.2d 501.)¿ “Unlike monetary sanctions against a party, which are based on the party's misuse of the discovery process, monetary sanctions against the party's attorney require a finding the ‘attorney advis[ed] that conduct.’ ” (Ibid.) “It is not enough that the attorney's actions were in some way improper.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 200, 226 Cal.Rptr. 247 (Corns).) Because an attorney's advice to a client is “peculiarly within [his or her] knowledge,” the attorney has the burden of showing that he or she did not counsel discovery abuse. (Ibid.) Accordingly, when a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Id. at pp. 200–201, 226 Cal.Rptr. 247; Ghanooni, at p. 262, 24 Cal.Rptr.2d 501.)¿¿

Plaintiff seeks an order compelling Defendant’s further response to RPD No. 41. The discovery request seeks the following:

Objection. Responding party objects on the ground that this request seeks or may seek information protected from disclosure by the attorney client privilege, the attorney work product doctrine, the right of privacy, Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, California Education Code, Section 49076, and Article 1, Section 1 of the California Constitution. Responding party further objects on the ground that this request is overbroad, unduly burdensome, seeks irrelevant information or information not calculated to lead to the discovery of admissible evidence.

Defendant appears to abandon its objections based on FERPA, the Education Code, and lack of relevancy. (See Defendant’s Separate Statement.) The court considers Defendant’s remaining objections in turn.

Defendant argues RPD No. 41 lacks sufficient particularity and “is left with the unduly burdensome task of guessing as to all documents of any kind whatsoever related to what may have been read, reviewed, considered or relied upon by the investigator.” The court disagrees. The request is sufficiently particularized. Further, it is not burdensome for Defendant to ask its own investigator what documents it read, reviewed, considered, or relied on.

Defendant’s privacy objection is intertwined with its overbreadth objection. Defendant argues RPD No. 41 is so overbroad that it may implicate third party privacy rights.

The right of privacy of individuals is protected by the California Constitution. (Cal. Const., Art. I, § 1.) In ruling on discovery motions, the court must balance the privacy claims of the responding party with the requesting party’s need for the information. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718-722.)¿¿In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35, the California Supreme Court fashioned a framework for evaluating potential invasions of privacy. The party asserting the right of privacy must establish (1) a “legally protected privacy interest”; (2) an “objectively reasonable expectation of privacy in the given circumstances”; and (3) a “threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (Williams).) If Plaintiff meets this standard, Defendant must then show that the requested documents are “directly relevant” to the litigation.

Here, Defendant fails to meet its burden. Defendant does not engage in the analysis set forth under Williams. Instead, Defendant relies on Harding Lawson Assocs. v. Superior Court (1992) 10 Cal.App.4th 7 to argue Plaintiff must show a compelling need for the discovery sought. However, the Supreme Court in Williams expressly disapproved of Harding. (See Williams, 3 Cal.5th at p. 557, fn. 8.) Moreover, Defendant makes no showing that the records of Defendant’s own employees, as it relates to Plaintiff’s claims, would be protected from discovery.

This is where the fight lies. Defendant’s counsel, Smith, hired investigator Reynolds, to collect information regarding the case. Plaintiff wants to get all documents “read, reviewed, considered, or relied on” by Reynolds. Citing Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110 (Wellpoint), a case involving claims for discrimination, Plaintiff argues a further response and disclosure of documents is warranted because Defendant has asserted the adequacy of its investigation into Plaintiff’s complaints of discrimination, thereby placing at issue the investigation itself. In other words, Defendant has waived the privileges.

Defendant does not dispute it asserted the adequacy of its investigation as a defense. Nevertheless, Defendant counters with Kaiser Found. Hosps. v. Superior Ct. (1998) 66 Cal.App.4th 1217 (Kaiser), also an employment discrimination case, to argue that the privileges are not waived in every case where an employer puts the adequacy of its prelitigation investigation at issue.

Both parties fail to apply Wellpoint to the relevant facts in this case. In Wellpoint, the Court of Appeal observed that in discrimination cases, as opposed to cases alleging hostile work environment, the defense of an adequate investigation does not apply because an adequate investigation is not an element of a discrimination cause of action. The Wellpoint Court stated, “In his third amended complaint, McCombs might have chosen to focus on claims of discrimination and retaliation through adverse employment actions rather than on hostile work environment. Employer knowledge and failure to take appropriate corrective action is not an element of an ordinary discrimination claim.” (Wellpoint, 59 Cal.App.4th at p. 129.) That is exactly what happened here. Plaintiff does not assert a claim for hostile work environment. Accordingly, under Wellpoint, Defendant cannot assert an adequate investigation defense to the discrimination charge and accordingly has not waived its privileges.

In Kaiser, the Court of Appeal recognized that even where employer has provided “full discovery of all aspects of that investigation with the exception of specified communications and documents protected by the attorney-client privilege and he work product doctrine, then no waiver of either the attorney-client privilege or the work product doctrine has been made unless a substantial part of any particular communication has already been disclosed to third parties.” (Kaiser, 66 Cal.App.4^th at 1228.) Here, Defendant properly argues that it has not waived the privilege by disclosure and is entitled to assert the work-product privilege with respect to certain documents. The Kaiser Court provided a helpful framework.

“The law attempts to find a balance between these competing interests in discovery and the assertion of privilege by requiring a party objecting to document production to “identify with particularity” any document as to which it makes an objection, and “set forth clearly the extent of, and the specific ground for, the objection,” in accordance with Code of Civil Procedure section 2031, subdivision (f)(3). Here, Kaiser has already produced a privilege log specifying the documents as to which it has withheld production on a claim of attorney-client privilege or work product doctrine protection. The trial court must review Kaiser's privilege log to determine whether the specified documents as to which Kaiser claims the protection of either the privilege or the work product doctrine are in fact so protected. For this purpose, the information in Kaiser's log must be sufficiently specific to permit the trial court to determine whether each withheld document is or is not privileged. Should the trial court find the information in the privilege log insufficiently specific to allow such a determination, it may order Kaiser to prepare a new privilege log containing more particularized information about the nature of each document as to which the attorney-client privilege is claimed.⁵ As to specific documents for which the protection of the work product doctrine is claimed, in camera inspection is the proper procedure to evaluate whether the work product doctrine applies, and if so, whether its protection should be absolute or qualified.”

Here, it is undisputed that Defendant has produced documents and privilege log as to documents which it contends are protected by the privilege or work product doctrine. (See Ordonez Decl., Ex. C.) Plaintiff fails to address the privilege log and instead asserts a blanket challenge to the assertion of the privilege. Neither counsel address relevant authority such as Coito v. Superior Court (2012) 54 Cal.4^th 480, 486, wherein the California Supreme Court held that “recorded witness statements are entitled as matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendants can show that disclosure would reveal its ‘attorney’s impressions, conclusions, opinions, or legal research or theories.’ ”

Based upon the foregoing Defendant is entitled to assert the privilege. Plaintiff fails to address the privilege log provided by Defendant. Having failed to do so, the motion is denied.

The parties each request imposition of sanctions against the other and their counsel. Given that both counsel spent a substantial amount of time on Wellpoint and both counsel misapplied Wellpoint to the facts of this case, the court finds sanctions are not warranted against counsel.

Kerry Bensinger

Judge of the Superior Court