Judge: Marcella O. Mclaughlin, Case: 37-2022-00051015-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024  09:00:00 AM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2022-00051015-CU-PO-CTL MAUGHAN III VS FRIESLAND FISHING COMPANY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 03/22/2024

Plaintiff's motion to compel further responses to requests for production of documents is GRANTED in part and DENIED in part.

A. The motion is granted as to request 40. Defendant's response does not comply with Code of Civil Procedure section 2031.230. However, the court cannot order defendant to produce documents which are inaccessible to it. See Code Civ. Proc. § 2031.010(a); see also Thomas B. v. Superior Court (1985) 175 Cal.App.3d 255, 263-64.

B. The motion is granted in part and denied in part as to request 41.

The motion is granted as to the items 1-36 in the privilege log. 'The common interest doctrine does not create a new privilege or extend an existing one.' Meza H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4th 969, 981. 'Rather, the common interest doctrine is more appropriately characterized under California law as a nonwaiver doctrine, analyzed under standard waiver principles applicable to the attorney-client privilege and the work product doctrine.' OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 889. Thus, 'the party seeking to invoke the doctrine must first establish that the communicated information would otherwise be protected from disclosure by a claim of privilege.' Id. at 890. Here, none of the communications listed in items 1-36 involve an attorney. Moreover, defendant has not cited, nor has the court located, any case in which the doctrine has been applied in such a manner. See Dickerson v. Superior Court (1982) 135 Cal.App.3d 93, 99 ('The courts of this state...are not free to create new privileges as a matter of judicial policy and must apply only those which have been created by statute.').

The motion is denied as to items 37-43 in the privilege log. Plaintiff has failed to establish that defendants waived the attorney-client privilege. The two unpublished federal district court cases cited in the moving and reply papers are not binding on this court. See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 375. Nor are they particularly persuasive given that defendant has not asserted advice of counsel as a defense. See ROA 11.

The motion is granted as to items 44-48, 50-62 in the privilege log. If an expert is 'solely retained as a consulting expert,' the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel. DeLuca v. State Fish Co., Inc.

(2013) 217 Cal.App.4th 671, 688. However, 'neither the attorney-client privilege nor the work product protection will prevent disclosure of statements to, or reports from, a testifying expert.' Id. at 689. 'The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its Calendar No.: Event ID:  TENTATIVE RULINGS

3106786  14 CASE NUMBER: CASE TITLE:  MAUGHAN III VS FRIESLAND FISHING COMPANY LLC [IMAGED]  37-2022-00051015-CU-PO-CTL exercise, i.e., a communication made in the course of an attorney-client relationship.' Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733. In this case, defendant has not shown that defendants' 'medical expert' – Dr. Thomas Peatman – has been solely retained as a consulting expert.

Nor does the privilege log provide any guidance on this issue. Accordingly, defendant has not met its burden of establishing the preliminary facts to support application of the attorney-client privilege.

The motion is denied as to item 49 in the privilege log. 'A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.' Code Civ. Proc. § 2018.030(a).

C. Accordingly, consistent with the foregoing, defendant must serve further verified responses to requests 40 and 41 by June 28, 2024.

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