Judge: Linda S. Marks, Case: 01176583, Date: 2022-08-01 Tentative Ruling

Defendant, Rock N’ Roll’s (RNR) Motion to Compel Further Production.

RNR seeks photographs taken by Shimano’s expert consultant. RNR claims the photographs constitute physical evidence of the bike at issue and should be treated as discoverable, nonderivative material. In its opposing papers, however, Shimano carries its burden in establishing that the photographs should be treated as work productive privilege–at least until the expert disclosures occur–and are therefore not subject to discovery at this time.

It appears that the photographs constitute expert writings that were developed as a result of the initiative of counsel in preparing for trial. Shimano’s counsel testified that in January 2020 he attended an inspection of the subject bicycle along with Shimano’s retained expert consultant at the offices of Plaintiff’s counsel, Sutton & Murphy. (ROA # 99, Declaration of Michael R. Mauge (“Mauge Decl.”), ¶ 2.) RNR representatives and Plaintiff’s counsel were also present. (Ibid.) The individuals present were given the opportunity “to take measurements, photographs and videos of the bicycle” but were not allowed to disassemble the bicycle at that time. (Ibid.)

In anticipation of the present litigation, Shimano’s retained expert “took photographs of the bicycle and component parts at different angles and magnifications.” (ROA # 99, Mauge Decl., ¶ 2.) Such photographs reflect Shimano’s counsel and expert’s impressions, strategies, conclusions, and theories and are protected under work product privilege. Permitting RNR to have access to these documents at this stage in the litigation would give RNR an undue advantage of Shimano’s industry and efforts.

Moreover, RNR has not carried its burden in establishing that it would be unduly prejudiced if these photos are not produced at this stage. RNR had the opportunity to have an expert and attorney present at the January 2020 inspection and chose not to take advantage of the inspection opportunity. It also appears that RNR will have an opportunity to inspect and photograph the bike at the September 21, 2022 inspection. Thus, it does not appear that RNR will suffer unfair prejudice or injustice if it does not receive the photos that Shimano’s expert took at the January 2020 inspection.

If Shimano chooses to use this expert consultant at trial, it appears Shimano may have to disclose the photographs during expert disclosures. “[W]hen an expert witness is expected to testify, the expert’s report, which was subject to the conditional work product protection, becomes discoverable, as the mere fact that the expert is expected to testify generally establishes good cause for its disclosure.” (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 689; see also Code Civ. Proc., § 2034.270.). Furthermore, it does not appear that a privilege log is necessary because RNR had sufficient information about the privileged documents withheld such that it was able to bring this motion expressly seeking Shimano’s expert photos.

Tentative Ruling: Defendant Rock N’ Road’s Motion to Compel Further Responses to Request for Production No. 1 is DENIED. The Court finds that the “photographs of the bicycle and component parts at different angles and magnifications” taken by Defendant Shimano North America Holding, Inc.’s retained expert constitute privileged work product at this stage in the litigation. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488-89.)

Defendant Shimano North America Holding, Inc. is ordered to provide a privilege log pursuant to Code of Civil Procedure section 2031.240 within 30 days of the notice of ruling.

Moving Party to provide notice