Judge: Laura A. Seigle, Case: 22STCV36076, Date: 2023-08-03 Tentative Ruling

Case Number: 22STCV36076    Hearing Date: August 22, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SANCTIONS AND DISQUALIFICATION

            Attorneys should strive to have cordial and civil relationships with opposing counsel and minimize unnecessary conflict.  That has not happened in this case.  All sides are failing in that regard.  The result is a waste of attorney time, an inordinate use of court resources, and increased costs for clients.

            The latest example is this motion.  If the parties had kept communication lines open and acted professionally, this motion could have been avoided.  That starts with missed communications, or lack of communication, about testing the talc sample and the botched exchange of the talc sample.  On August 3, 2023, the court ruled on Defendant American International Industries’ motion for discovery sanctions, which sought an order precluding Plaintiffs from using any testes related to the sample.  The court denied that motion.

            A.        Motion for Discovery Sanctions

            Now Plaintiffs Robert and Debbie Bruna make the converse motion.  They seek discovery sanctions establishing that the sample contains asbestos and that any affirmative defenses relating to asbestos content of Defendant’s talc be stricken.  There are many problems with this motions.

            First, as the court noted in the August 3, 2023 minute order, “The statutes state that the court may impose an issue, evidence, or terminating sanction . . . only if a party fails to obey a court order compelling discovery.”  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423.)  “[I]f it is sufficiently egregious, misconduct committed in connection with the failure to produce evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior order compelling discovery, or its equivalent.  Furthermore, a prior order may not be necessary where it is reasonably clear that obtaining such an order would be futile.”  (Id. at p. 1426.)  At the time defense counsel went to Plaintiffs’ counsel’s office to retrieve the sample, there was no order stating Defendant had no right to obtain or test the sample.  Plaintiffs did not show any violation of any order.

            Next, Plaintiffs have not shown defense counsel acted egregiously.  The declarations presented by both sides establish that a person at Plaintiffs’ counsel’s office, who was employed by one of the firms representing Plaintiffs in this case, let defense counsel into the building, took her to Plaintiffs’ counsel’s office, allowed her to photo the packages as they sat on counsel’s desk, and then gave her the packages to take away.  Defense counsel could have inferred that the person guiding her through the building to the office was authorized to do so.  This is not a case where defense counsel sneaked into the office.  To the contrary, defense counsel sent an email to Plaintiff’s counsel stating she would be arriving at the office to pick up the sample.

            Also, the requested sanction is much too broad.  There is no legal basis for preventing Defendant from challenging Plaintiffs’ contention that Clubman talc contained asbestos.  If the sample contains asbestos, Plaintiffs’ expert can testify at trial to that.  If the sample does not contain asbestos, the court is not going to order that, contrary to the evidence, it in fact contains asbestos.

            The attorneys should have been able to exchange the sample in a professional manner.  They should have reached an agreement as to a time, date, and location for the exchange.  Then all of this could have been avoided.  This is a lesson in the importance of maintaining open and professional channels of communication during litigation.

            The motion for discovery sanctions is DENIED.

            B.        Motion for Disqualification

            Plaintiffs also seek the disqualification of Defendant American International Industries’ counsel based on photographs defense counsel took of Plaintiffs’ counsel’s desk when she was retrieving the sample from his office.  Plaintiffs contend the photos disclosed attorney-client privileged information.  Defendant contends defense counsel took the photos of the packages containing the samples to establish chain of custody.

            Again, this conflict could have been avoided.  Defense counsel should not have gone into Plaintiffs’ counsel’s office without him present and should not have taken photos of his desk.  But Plaintiffs do not establish that defense counsel received attorney-client privileged information.  Plaintiffs attach Exhibits 1 and 2 to show that attorney-client privileged information is visible in the photos.  Exhibits 1 and 2 are not helpful because they do not show the desktop as it existed with defense counsel took her photos.  Exhibit 3 contains the photos she took, which show that the packages largely obstructed the view of the documents on the desk and that the underlying documents are not legible.  Exhibits 1 and 2 make it appear as if the documents on the desk are readily legible in defense counsel’s photos, which is not the case.  Defense counsel states she did not read the documents under the envelopes on the desk, and has deleted the photographs she took from her phone.  Indeed, the employee who took defense counsel to Plaintiffs’ counsel’s office stated defense counsel was alone in the office for only “a few seconds,” which is hardly enough time to read and memorize the documents on the desk.  (Adams Decl., ¶ 11.)

            In sum, Plaintiffs did not establish that Defendant obtained Plaintiffs’ attorney-client privileged information.

            The motion for disqualification is DENIED.

            The moving party is to give notice.