Judge: Mark H. Epstein, Case: 23SMCV02534, Date: 2023-08-21 Tentative Ruling

Case Number: 23SMCV02534    Hearing Date: March 6, 2024    Dept: I

The court has granted the stipulation to continue the motion to 3/22/24.  In the meantime, the parties might want to discuss resolving this issue.  The court agrees that Montano is entitled to know that no one—not even a third party—reviews privileged materials.  Similarly, there could be third party materials that ought not to be reviewed, such as real estate transactions having nothing to do with this case or the theories raised therein.  Handing over credentials gives the person access to a lot of material that is not responsive to the document request by any stretch of the imagination or is plainly privileged, and the court can understand why Montano would not be thrilled with just a promise that no one will peek.  At the same time, it would seem that some safeguards may be possible such that what the vendor receives is not the emails or documents themselves, but just some meta-data about them—such as recipient or the like.  It could also be that the parties agree to use particular search terms such that all documents between particular individuals—such as Montano, Vasek, and Giraudo—be produced and if attorneys are included such that the documents are privileged, that they be logged.  While that would require a new document request, it would be less intrusive and, especially if overseen by Montano’s counsel, one can presume it will be done honestly.

In other words, the court’s general view is that this is very intrusive and casts a very wide net that will capture many documents that ought not be produced.  The court is unlikely to give even a third party vendor free access to Montano’s email accounts with a third party employer.  There may be alternative ways, however, in which the documents that concern plaintiff can be provided, perhaps by making the request broader so that creative interpretations will not cabin the production.  Or, perhaps, plaintiff might elect to serve a new set of discovery that is more carefully worded so as to avoid ambiguity rather than pursue motion practice.