Judge Lee S. Arian, Case Number: 21STCV00797, Date: 2024-06-17 Tentative Ruling

Judge: Lee S. Arian, Case: 21STCV00797, Date: 2024-06-17 Tentative Ruling

Case Number: 21STCV00797 Hearing Date: June 17, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO COMPEL FURTHER AND REQUESTS FOR SANCTIONS

Hearing Date: 6/17/24

CASE NO./NAME: 23STCV00797 ARLET TALAMANTES vs DAVID ALEXANDER MELENDEZ

Moving Party: Defendants David and Mauricio Melendez

Responding Party: Plaintiff

Notice: Sufficient

Ruling: MOTION TO COMPEL FURTHER AND REQUESTS FOR SANCTIONS ARE DENIED.

On June 12, 2024, the Court heard oral arguments relating to the timeliness of the present motion to compel further responses. The Court continued the motion to June 17, 2024, to further consider the timeliness arguments, as well as the substantive arguments raised by the motion. It now finds that under the plain language of the statute, the present motion was timely filed.

Plaintiff seeks to compel further responses to the following 2 requests:

REQUEST FOR PRODUCTION NO. 28: Please produce the raw Electronic Data Recorder information downloaded from the 2019 Fiat 500, bearing CA license plate number 8NDN707 on January 9, 2024.

REQUEST FOR PRODUCTION NO. 29: Please produce any and all photos taken of the 2019 Fiat 500, bearing CA license plate number 8NDN707 on January 9, 2024.

Defendant makes the following objections to Plaintiff’s requests:

Responding Party objects to this Request on the following grounds: (1) It is vague and ambiguous. (2) It is premature. (3) It seeks to violate the attorney-client privilege and attorney work product doctrine. (4) It calls for premature expert discovery. The time for expert discovery has not yet arrived. Experts are scheduled to be designated in this case on May 23, 2024.

Defendant's main argument is that, similar to witness statements obtained by opposing counsel, EDR data and photographs, although they are not mental impressions or case strategies (which enjoy absolute protection), are nonetheless protected by the qualified work product privilege. Defendant relies on the reasoning in Coito v. Superior Court (2012) 54 Cal.4th 480, 496-97:

First, when an attorney obtains through discovery a witness statement obtained by opposing counsel through his or her own initiative, such discovery undermines the Legislature's policy to ‘[p]revent attorneys from taking undue advantage of their adversary's industry and efforts.’” (§ 2018.020, subd. (b).) Even when an attorney exercises no selectivity in determining which witnesses to interview, and even when the attorney simply records each witness's answer to a single question (“What happened?”), the attorney has expended time and effort in identifying and locating each witness, securing the witness's willingness to talk, listening to what the witness said, and preserving the witness's statement for possible future use. An attorney who seeks to discover what a witness knows is not without recourse. The attorney is free to interview the witness for himself or herself to find out what information the witness has that is relevant to the litigation. …Absent a showing that a witness is no longer available or accessible, or some other showing of unfair prejudice or injustice (§ 2018.030, subd. (b)), the Legislature's declared policy is to prevent an attorney from free-riding on the industry and efforts of opposing counsel (§ 2018.020, subd. (b)). (

Second, a default rule authorizing discovery of witness statements procured by an attorney would impede the Legislature's intent ‘to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.’ (§ 2018.020, subd. (a).) If attorneys must worry about discovery whenever they take a statement from a witness, it is reasonably foreseeable that fewer witness statements will be recorded and that adverse information will not be memorialized. As Justice Kane observed below, without work product protection, ‘no meaningful privacy exists within which an attorney may have sufficient confidence to thoroughly investigate and record potentially unfavorable matters.’ This result would derogate not only from an attorney's duty and prerogative to investigate matters thoroughly, but also from the truth-seeking values that the rules of discovery are intended to promote. Accordingly, we hold that a witness statement obtained through an attorney-directed interview is, as a matter of law, entitled to at least qualified work product protection.

When there is qualified work product, the burden is on the party seeking discovery to establish adequate reasons to justify production, such as unavailability or inaccessibility of the witnesses.

Here, the EDR data and photographs, similar to witness statements, are factual in nature. Defendant expended significant efforts to acquire the EDR data and photographs: arranging for access to the vehicle, hiring an expert to download the EDR data, hiring a professional to take the photos, determining which parts of the car to photograph, and ensuring that these materials were preserved for potential future use. Thus, these items are entitled to qualified work product protection.

Plaintiff is not without recourse. The vehicle in question is Plaintiff’s car, and Plaintiff has unrestricted access to it. Plaintiff has the ability to download the EDR data and take photographs of the car. Plaintiff can directly obtain the same factual information without relying on Defendant’s efforts. Plaintiff has not demonstrated any unavailability or inaccessibility of the car, the EDR data, or the ability to take photographs, which are essential to justify production under the qualified work product doctrine.

Moreover, Plaintiff’s reply did not address Coito v. Superior Court or the qualified work product privilege as asserted by Defendant. Plaintiff argues that the EDR data and photographs are not mental impressions or case strategies; however, these arguments pertain to absolute work product privilege, which is not the basis of Defendant's argument.

Given the accessibility of the vehicle to Plaintiff, the lack of adequate reasons to justify the production, and the protection afforded by the qualified work product privilege, Defendant has raised meritorious objections and Plaintiff's motion to compel is DENIED. Sanctions are likewise DENIED.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.