Judge Lee S. Arian, Case Number: 21STCV08600, Date: 2024-01-17 Tentative Ruling

On December 27, 2023, plaintiff Gustavo A. Cordoba moved to quash deposition subpoena issued to Rockpoint Legal Funding.

A deposition subpoena may be quashed for the following:¿(1) defects in form or content of the subpoena (e.g., inadequate description of requested records); (2) defects in service of the subpoena (e.g., failure to satisfy the requirements of providing notice to consumer); (3) requesting¿production of records not within the permissible scope of discovery, i.e. privileged, privacy or attorney work product; or not “relevant to the subject matter”; (4) being unjustly burdensome or oppressive; (5) with regard to requested ESI discovery, objection to the specified form for producing the ESI (Code Civ. Pro. § 1985.8(c)) or objection to production on the ground that the ESI is from a source that is not reasonably accessible because of undue burden and expense (Code Civ. Pro. § 1985.8(e)); (6) “consumer’s” right of privacy in “personal records” (Code Civ. Pro. § 1985.3(e)); and (7) employee’s right of privacy in “employment records” (Code Civ. Pro. § 1985.6(e).)¿ (Weil & Brown,¿Civ. Proc. Before Trial, ¶¿8:598.) Further, a court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses, or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Pro., §1987.1.)

Plaintiff moves to quash the deposition subpoena because the request invades Plaintiff’s privacy, infringes upon attorney work-product protections, and is not relevant to any cause of action or defense.

Defendants S.W. School Supply, Inc. and Noe Rodriguez request, ““Records pertaining to Gustavo Adolfo Cordoba aka Gustavo A. Cordoba, including but not limited to, applications, forms, case review, agreements, contracts, records of contact, correspondence, correspondence with the client’s legal counsel, records of payments made to Gustavo Adolfo Cordoba, payment summaries, medical liens, if any, and records of payment to medical providers, if any. To include scanned documents, documents stored electronically, digitally, on flash drive, hard drive, or other storage device.” (Hanks Decl. ¶ 5, Exhibit “B.”)

All unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Pro. § 2017.010; Schnabel v. Super. Ct. (1993) 5 Cal.4th 704, 711.) For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) The burden is on the party seeking constitutionally protected information to establish direct relevance. (Harris v. Super. Ct. (1992) 3 Cal.App.4th 661, 665.)

Defendant asserts that the subpoena seeks information related to pre-settlement funding to Plaintiff, medical treatment or medical lien funding, case costs, and client funding to law firms. Defendant further asserts that such information could prove relevant to determine bias or financial incentives of potential witnesses as it relates to the reasonable and necessary expenses of Plaintiff’s medical treatments. Defendant also asserts that given Plaintiff’s extensive medical treatment because of the accident, such information could prove beneficial to reaching a settlement. In addition, Defendant asserts that if Plaintiff has taken a “loan” out on the case in the form of pre-settlement funding or advances, this can impede settlement of the case. Based on Defendant’s assertions, the Court finds that the information sought in the subpoena request is relevant.

Plaintiff asserts that Defendant’s request violates the attorney work product doctrine because a plaintiff’s communications regarding litigation funding falls under the attorney work protection. In addition, Plaintiff asserts that an attorney’s assessments of a case reflect the attorney’s mental impressions and strategic funding; thus, they also fall under the protection.

In opposition, Defendant argues that because Rockpoint Legal Funding is a non-party witness, communications with Rockpoint Legal Funding by Plaintiff or Plaintiff’s counsel are not protected under the work product doctrine.

The Court finds that Plaintiff does not identify which part or parts of Defendant’s request are about attorney assessment of the case and hence, which part of Defendant’s requests fall under the attorney work product protection. In addition, the Court finds that a plaintiff’s communications regarding litigation funding does not automatically qualify for attorney work product.

When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Super. Ct. (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.)

The party asserting a privacy interest must establish its extent and the seriousness of the prospective invasion, and against that showing the court must weigh the countervailing interests the opposing party identifies. (Williams v. Super. Ct. (2017) 3 Cal.5th 531, 557.) What suffices to justify an invasion will vary according to the context. (Id.) Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill v. Nat'l Collegiate Athletic Assn. (1994) 7 Cal.4th 1,34-35.)

Plaintiff asserts that he possesses a privacy interest in any information pertaining to litigation funding. Plaintiff further asserts that compliance with the subpoena could reveal sensitive details regarding Plaintiff’s finances, attorney-client communications, and privileged discourse regarding the case. Plaintiff also asserts that the funding agreement contains confidentiality provisions. In addition, Plaintiff asserts that the vague and overbroad subpoena threatens Plaintiff’s privacy.

The Court finds that Plaintiff has not established the extent and seriousness of the prospective invasion. As discussed above, there is a right to privacy to a person’s financial matters. Plaintiff asserts this point but does not state more. Further, Plaintiff does not state more about the extent of the prospective invasion. Without knowing more about the prospective invasion, the Court cannot determine its seriousness.

Further, Plaintiff has not stated which part of the request seeks information that violates Plaintiff’s right to privacy. In its opposition papers, Defendant has clarified what the request seeks.

Finally, the attorney-client communication privilege, other discovery privileges, and confidentiality provisions do not fall under the constitutional right to privacy.

The court may, in its discretion, order the losing party to pay the prevailing party's expenses, including reasonable attorney fees, incurred on the motion to quash, if it finds that the motion was “made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Pro., § 1987.2, subd. (a).)

While the Court has denied the motion, the Court finds that the motion was not made in bad faith or without substantial justification. Discovery related to litigation funding is not well-developed, so Plaintiff’s motion is reasonable. Here, the problem is that the moving party has failed to develop the arguments he makes, not that the arguments are necessarily inappropriate or unjustified. Accordingly, the Court declines to award sanctions.

The motion to quash is denied and the competing requests for sanctions are also denied.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court