Judge Lee S. Arian, Case Number: 23STCV25636, Date: 2025-05-14 Tentative Ruling

This motion concerns Plaintiff’s Request for Production No. 36. On April 7, 2025, the parties participated in an informal discovery conference but were unable to resolve their dispute.

REQUEST FOR PRODUCTION NO. 36:
Any and all photographs and/or video footage depicting PLAINTIFF.

DEFENDANT’ RESPONSE:
Defendant withheld documents and identified the following in a privilege log:

Plaintiff now moves to compel further responses and the production of the documents identified in the privilege log.

“The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise. In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)

Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].) “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion. However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq.

(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.

(See Code Civ. Proc., §§ 2018.020, 2018.030.) “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.’ ” (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted (hereafter, Coito).)

In Coito, the California Supreme Court decided “[w]hat work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements.” (Coito, supra, 54 Cal.4th at 485.) With respect to both items, the Coito court opined:

[W]e hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its attorney's impressions, conclusions, opinions, or legal research or theories. If not, then the items may be subject to discovery if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim or will result in an injustice.

As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).

(Id. at p. 486 [cleaned up].) Attorneys are the holders of the “work product privilege.” (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].) And the party that seeks the production of an attorney’s “work product,” other than a writing, “has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in injustice.” (Id. at p. 469.)

Here, Plaintiff seeks the production of all photographs and videos including sub rosa footage in the possession, custody and control of Defendant. Plaintiff contends that good cause exists for the production to protect against surprise. In opposition, Defendant contends that the sub rosa evidence is the work product of counsel for Defendant and consequently protected from disclosure under the attorney work product doctrine.

In short, the question before the Court is whether the attorney work product doctrine precludes the production of the sub rosa evidence. (With regard to the more general and broad discovery requests reflected by RFPs 6 and 7, the Court finds the objections to be well-taken.)

[I]n California the fact that the material sought to be discovered is the ‘work product’ of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted. It does not mean that, simply because the material involved is the ‘work product’ of the attorney, it can or should deny discovery. Something more must exist. The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable.

Against this backdrop, the Court finds Fisher v. National Railroad Passenger Corp. (S.D. Ind. 1993) 152 F.R.D. 145, 147 to be instructive. In that case, the defendant obtained through an investigator surveillance of the plaintiff’s activities inconsistent with his claimed injuries which would be used to impeach the plaintiff at trial. The defendant objected to the production of the surveillance evidence before the plaintiff’s deposition based in part on the attorney work product doctrine. Following the plaintiff’s deposition, the defendant produced a single surveillance video taken of the plaintiff that the defendant intended to use as evidence at trial. The plaintiff nevertheless sought the production of all of the surveillance video evidence. (Id. at 148.)

The issue before the Fisher court was “Whether surveillance tapes of a Plaintiff which Defendant does not intend to introduce at trial, but which it possesses, are discoverable by the Plaintiff prior to trial.” (Id. at 150.) In answering that question and finding that the plaintiff did not meet his burden to compel the production of the surveillance evidence, the Fisher court stated:

Deciding if a party has demonstrated the requisite “substantial need” to justify discovery of work product involves a balancing of the value of broad discovery as an accurate method of arriving at a full resolution of each dispute with the corresponding need to prevent undue intrusion into the attorney's preparation of her case. Striking this balance is, at best, a discretionary decision of the court in the factual context of the presented case. However, in exercising this discretion, relevant considerations include, among others, the importance of the protected materials to the party seeking discovery; the degree to which the protected material reflects the thoughts and mental impressions of an attorney but yet remains outside of that absolutely protected category of materials; the impeachment value of the material sought; and whether the party seeking discovery knows, or is merely surmising, that the materials sought contain impeaching material.

Concluding that Plaintiff failed to make the showing required to invade work product is not meant to refute the notion that surveillance tapes prepared by a defendant to impeach a plaintiff may contain substantive evidence, rather than merely impeachment evidence. To the contrary, the current weight of authority suggests that representations contained in videotapes are indeed substantive evidence, and retreats from the previously held belief that evidence used for impeachment is of a kind different and distinguishable from evidence used to prove a case. Nor is it questioned that the videotapes may be relevant to the issue of damages or harm suffered by plaintiff. However, . . . not all relevant, substantive evidence is discoverable, especially if that evidence is protected attorney work product. Once conceded that work product protection extends to the disputed materials, a different inquiry altogether is warranted, one which requires Plaintiff to demonstrate substantial need for the protected materials. Merely claiming that surveillance tapes prepared in anticipation of litigation might contain substantive evidence, especially when an alternative source for that evidence exists, does not provide “substantial need” to invade attorney work product.

The sub rosa evidence was developed at the behest of counsel for Defendant and such evidence exists because of the efforts of defense counsel. (See, e.g., Coito, supra, 54 Cal.4th at p. 495 [“witness statement is in part the product of the attorney’s work. The witness statement would not exist but for the attorney’s initiative, decision, and effort to obtain it”].)

As such, the Court finds that the sub rosa evidence is the work product of defense counsel which is entitled to qualified protection.

Plaintiff claims that the production of the sub rosa evidence will prevent unfair surprise whether pre-trial or at trial. That fear is material provided that the sub rosa evidence is utilized by Defendant pre-trial or at trial for any purpose including impeachment. But whether the sub rosa evidence has any probative value will depend on what Plaintiff discloses during the discovery process including her deposition. Specifically, if Plaintiff discloses information which is consistent with the sub rosa evidence, then such evidence loses its potential impeachment quality and may not be utilized by Defendant. At this juncture, Plaintiff is in the best position to determine whether any surveillance of her would be consistent with her alleged injuries, and to present evidence through her own testimony regarding the extent of her injuries which may or may not affect her life activities.

The Court grants, in part, Plaintiff’s motion to compel further responses to the Demand for Production per Code of Civil Procedure section 2031.310, and orders the production of the sub rosa evidence, after Plaintiff’s deposition, provided that Defendant intends to use such evidence, pre-trial or at trial. To that end, Defendant shall notify Plaintiff in writing if Defendant intends to use the sub rosa evidence during any stage of the action (including non-expert and expert discovery phases) and produce the sub rosa evidence within 5 days of that written notice.

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’s 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