Judge Lee S. Arian, Case Number: 23STCV25160, Date: 2024-11-12 Tentative Ruling

Judge: Lee S. Arian, Case: 23STCV25160, Date: 2024-11-12 Tentative Ruling

Case Number: 23STCV25160 Hearing Date: November 12, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION TO COMPEL DEPOSITION AND PRODUCITON OF DOCUMENTS

Hearing Date: 10/29/24

CASE NO./NAME: 23STCV25160 ADAM SCHADE vs KYLE BRADLEY

Moving Party: Plaintiff

Responding Party: Defendant Trevor Geraghty and Non-Party Stephanie Wallace

Notice: Sufficient

Ruling: MOTION TO COMPEL DEPOSITION AND PRODUCTION OF DOCUMENTS IS GRANTED IN PART AND DENIED IN PART; SANCTIONS REQUESTS ARE DENIED

Background

On October 16, 2023, Plaintiff William Schade filed the instant action against Defendants Kyle Bradley and Trevor Geraghty, arising from a motor vehicle accident on January 9, 2022. Plaintiff was a passenger in a vehicle driven by Geraghty, which was insured by State Farm Mutual Automobile Insurance Company (“State Farm”). Plaintiff is also insured by State Farm. Alongside this lawsuit, Plaintiff submitted a claim to State Farm under his own policy for Uninsured/Underinsured Motorist Benefits.

Stephanie Wallace, a Claims Specialist at State Farm, was the adjuster on Plaintiff’s Underinsured Motorist Claim. On January 3, 2024, Wallace sent an email to Plaintiff stating that Defendant Geraghty admitted fault and was intoxicated at the time of the accident. On August 20, 2024, Plaintiff subpoenaed Wallace for deposition, to which Defendants objected. Despite meeting and conferring, the parties could not reach an agreement. Plaintiff now moves the Court to compel Wallace’s deposition and the following requests for production:

REQUEST FOR PRODUCTION NO. 1: Any and all DOCUMENTS and/or WRITINGS which in any way relate to the incident giving rise to this litigation.

REQUEST FOR PRODUCTION NO. 2: Any and all communications and/or correspondence which in any way relate to the incident giving rise to this litigation.

REQUEST FOR PRODUCTION NO. 3: Any and all audio recordings between YOU and TREVOR GERAGHTY.

REQUEST FOR PRODUCTION NO.4: Any and all audio recordings which in any way discuss or relate to TREVOR GERAGHTY.

REQUEST FOR PRODUCTION NO.5: Any and all audio recordings which in any way discuss or relate to the car accident giving rise to this litigation

REQUEST FOR PRODUCTION NO. 6: YOUR full, complete, and entire file for claim number 22-29L4-83X.

REQUEST FOR PRODUCTION NO.7: All DOCUMENTS relating to TREVOR GERAGHTY being intoxicated during the car accident.

REQUEST FOR PRODUCTION NO. 8: Any and all reports created by STATE FARM INSURANCE COMPANY employees, agents, and/or representatives, which relates to the INCIDENT giving rise to this litigation.

REQUEST FOR PRODUCTION NO. 9: All DOCUMENTS which in any way reference, detail, and/or relate to the INCIDENT giving rise to this litigation.

REQUEST FOR PRODUCTION NO. 10: Any and all reports which relate to the INCIDENT giving rise to this litigation.

REQUEST FOR PRODUCTION NO. 11: All DOCUMENTS, E-MAILS, correspondence, and/or communications which in any way relate to TREVOR GERAGHTY being at fault for the car accident giving rise to this litigation.

Legal Standard

Non-Party Deposition

CCP § 2020.010 permits discovery of non-party witnesses through oral and written depositions. (See CCP § 2020.010(a)(1), (2); Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466, 476.) A deposition subpoena may command the attendance and testimony of the deponent, the production of business records, or both. (CCP § 2020.020.)

Attorney-Client Privilege

In Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, recognized the tripartite attorney-client relationship that exists between defense counsel, an insured and an insurer. The court found that the insurer’s retention of defense counsel to represent the insured is sufficient to establish a tripartite attorney-client relationship between the insurer, the insured and defense counsel, citing multiple cases for the proposition that counsel retained by an insurer to defend the insured has an attorney-client relationship with the insurer as well. Id. at 1090. Here, then, State Farm, Defendant, and the counsel State Farm has hired to represent Defendant are part of an attorney-client relationship.

The attorney-client privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client. (Mitchell v. Superior Court (1984) 37 Cal. 3d 591, 599.) The evidentiary privilege, while not constitutionally based, is the oldest recognized confidential communication privilege. (Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 71.) The privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened. (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371.) The term “confidential communication” is broadly construed and defined as either information transmitted between a client and his lawyer or advice given by the lawyer. The privilege does not protect independent facts related to a communication, that a communication took place, and the time, date and participants in the communication. Further, the privilege does not protect disclosure of underlying facts which may be referenced within a qualifying communication, and it does not extend to independent witnesses. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639-640.)

When a party asserts the attorney-client privilege, it is incumbent upon that party to prove the preliminary fact that a privilege exists. Once the foundational facts have been presented - i.e., that a communication has been made in confidence in the course of the lawyer-client relationship - the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential or that an exception exists. (Evid. Code §917; State Farm Fire & Casualty Co., supra, at 639.)

“An analysis of the attorney-client privilege in a particular case must begin with an identification of the attorney, the client, and the communication sought to be protected. (See Evid. Code, §§ 950–952.)” (Chubb & Son v. Superior Court (2014) 228 Cal.App.4th 1094, 1104.)

“Besides having to claim the attorney-client privilege on a client's behalf, an attorney must maintain the confidential information of present and former clients. (Bus. & Prof. Code, § 6068, subd. (e)(1) [“It is the duty of an attorney ... ¶ ... ¶ [t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client”]; Rules of Prof. Conduct, rule 3–100; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786; see City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 846 [duty of confidentiality survives termination of attorney's representation].) These confidences may or may not be subject to the attorney-client privilege, but must nonetheless be kept confidential by the attorney so as not to cause the client or former client embarrassment or harm. (See, e.g., Dixon v. State Bar (1982) 32 Cal.3d 728, 735 [attorney violated Bus. & Prof. Code, § 6068, subd. (e), by including in a declaration gratuitous and embarrassing information about his former client and her sister].)” (Chubb & Son v. Superior Court, supra, 228 Cal.App.4th at p. 1104.)

Where a report, such as an accident or incident report, has a dual purpose, it is privileged if its dominant purpose is transmittal to the attorney in the course of professional employment. (Holm v. Superior Court (1954) 42 Cal.2d 500.) Even though a report has been prepared in the regular course of business, because it was forwarded to an attorney for use in possible litigation, the attorney-client privilege applies. (Id.) In Holm, the court held that, where a report has a dual purpose, it is privileged if its dominant purpose is the transmittal to the attorney in the course of professional employment. The question is one of fact for the trial judge, but whose determination is subject to review for abuse of discretion.

Discussion

No real debate exists as to whether Plaintiff can depose Wallace. The issues raised by Plaintiff’s motion instead focus on the impact of the attorney client privilege on that deposition and the documents to be produced at it.

Plaintiff’s requests for production are broad, seeking an expansive range of documents, as evidenced by REQUEST FOR PRODUCTION NO. 1: "Any and all DOCUMENTS and/or WRITINGS which in any way relate to the incident giving rise to this litigation" and REQUEST FOR PRODUCTION NO. 2: "Any and all communications and/or correspondence which in any way relate to the incident giving rise to this litigation." Defendant asserts various privileges, including attorney-client, work product, privacy, and trade secret protections, yet has not provided a privilege log to specify which documents fall under each asserted privilege. Consequently, while some requested documents may indeed be privileged, others may not. Without a privilege log or clearer description of the types of documents in Defendant’s possession, the Court cannot meaningfully determine the applicability of these privileges, given the scope of Plaintiff's requests.

Defendant argues that communications with Wallace concerning his UIM claim are protected by attorney-client privilege, relying on a tripartite relationship and citing Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th 1076. In Bank of America, the tripartite relationship arose where the insurer, Fidelity, retained counsel to defend or prosecute on behalf of the insured. This type of relationship typically applies in liability cases where the insurer assumes a defense role as required by policy obligations, uniting the insurer, insured, and attorney in a shared "defense team" effort. Plaintiff contends the relationship at issue, however, is his relationship with Wallace because Wallace was the claims representative for his UIM claim with State Farm. For that claim, State Farm acted as the insurer assessing Plaintiff’s claim for UIM benefits, not as an entity defending him in litigation against a third party. Plaintiff thus contends the attorney-client privilege is not applicable here.

The Court is not persuaded by Plaintiff’s argument. The alleged communication in this instance between Defendant and his insurer, State Farm, is privileged. It does not lose its privileged character simply because a different State Farm employee revealed the communication. Wallace is not in a position to appropriately waive the privilege.

Although the specific communication Wallace made appears to be protected by the attorney client privilege (albeit, the Court is not informed how Wallace knew the information she provided), the Court is not persuaded that all of the documents and communication covered by Plaintiff’s request is covered by attorney client privilege. Defendant argues that some documents contain information protected by attorney work product, privacy, and proprietary information. The issue is the same: it is possible that some documents may reveal "impressions, conclusions, opinions, or legal research," while others only disclose factual information relevant to this case. Without a privilege log or a detailed description of the responsive documents, it is impossible to make that determination. Based on the information provided, work product doctrine does not apply to all requested documents, as Plaintiff’s request also includes communications that are unlikely to involve privileged or work product-protected content, such as correspondence directly related to the claims process or factual summaries. The same goes for trade secret and privacy claims, where Defendant argues that handling codes, reference numbers, or private information (e.g., Plaintiff’s personal identifiers or State Farm’s internal procedures) may warrant protection. While such information may merit protection, it only covers a small portion of documents and could be redacted accordingly.

Overall, the Court overlooks minor procedural deficiencies in the moving papers, as both Defendant Geraghty and non-party Wallace filed oppositions, and finds the deposition is subject to being compelled, but the apparent subject matter that counsel seeks to explore is likely subject to the attorney client privilege. The deposition, to the extent Defendant still wants to move forward with it after this ruling, is to occur within 20 days.

As to the requested documents, the request seeks relevant information, some of which is not protected by any applicable privilege. However, Defendant may withhold documents and decline to answer specific deposition questions based on the aforementioned privileges, provided it produces a privilege log for the withheld documents. Accordingly, Wallace is to produce non-privileged documents under her control responsive to the requests. To the extent Wallace does not have control over these documents and State Farm requires the documents to be produced by a custodian of records, Defendant may delay the deposition of Wallace until such time as the Custodian of Records has responded.

The Court denies the requests for sanctions, finding a legitimate dispute regarding the applicability of attorney-client privilege, work product, and other asserted protections. The disagreement over these issues does not constitute bad faith or an abuse of the discovery process, and, thus, sanctions are not warranted sanctions.

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.