Judge: Mark H. Epstein, Case: 24SMCV01070, Date: 2024-08-09 Tentative Ruling

Case Number: 24SMCV01070    Hearing Date: August 9, 2024    Dept: I

This is a motion to compel further responses, although (as defendants point out) it is really separate motions that should have been brought separately under the rules.  The motion is GRANTED.  Sanctions against defendants, but not counsel, are GRANTED in the amount of $3180, payable within 30 days.  Sanctions against plaintiff and counsel are AWARDED and payable to the court in the amount of $120 to represent the filing fee that should have been paid to the court had the motions been filed properly, but recognizing that some of the motions are essentially duplicates and that there was a greater efficiency in combining the motions.

The underlying case is a personal injury case.  Plaintiffs served discovery on defendants.  At issue are form interrogatories 13.1 and 13.2, special interrogatory 12,  and RFP 17.  The form interrogatories seek sub rosa surveillance information.  Defendants objected to that on attorney client/attorney work product grounds.  Neither has merit.  First, there is no attorney client privilege.  This is not a communication between attorney and client.  As to work product, an argument might be made that the surveillance itself is qualified work product, but information surrounding it is not.  The interrogatory does not require that the surveillance be turned over; it requires only that information about the circumstances of it be provided.  Further, the court notes that there is no declaration from counsel concerning the information, so defendants have failed to establish even a prima facie case that this would be protected under the work product doctrine (it is not actually a privilege).  In fact, there may not be any surveillance at all.  The court believes that when the Judicial Council approved these interrogatories it was well aware of the work product doctrine, and the court does not believe it applies such that the interrogatory is objectionable—certainly on this record.  The motion is GRANTED.  When it comes time to turn over the documents, defendant should note that if it is successful in asserting a work product protection (which is not really likely) it will likely be precluded from introducing that evidence at trial, even for impeachment.

SI 12 asks Alkillani to identify cell phone information relating to devices he had at the time of the accident, and RFP 17 asks that those records be provided for the time of the crash.  Defendant claims privacy protection.  The identification of a cell phone is not going to be protected by the constitutional right of privacy here.  Contents of a cell phone device might well be strongly privileged, but the fact that one has a cell phone and identifying information about it is hardly a state secret, at least if identifying information is protected by a confidentiality agreement.  As to the records themselves, the court reads the request as pertaining only to the time of the incident.  As so limited, plaintiff has a strong interest in knowing if the device was in use at that time.  Defendant has not waived contributory negligence, and therefore it might well be for the jury to decide which side bears what proportion of fault.  If defendant was driving while using a cell phone, that is certainly pertinent.  And more than the fact of use is pertinent; what was going on in particular is pertinent.  Because the request as to content is limited to the time of the incident—not something broader like all communications that day—it is narrowly tailored.  The court has done the required Hill balancing test and plaintiff’s interest easily outweighs whatever rights the defense might have so long as any private information can be so designated and protected by a confidentiality agreement.  The motion is GRANTED as to SI 12 and RFP 17. 

The supplemental discovery as ordered above is to be provided within 5 court days in the form of verified supplemental responses without objection.  This includes both the verified supplemental responses and the document itself.

As to sanctions, the court does not believe that there was any substantial justification in defendants’ position other than the argument that this should have been more than one motion—which hardly justifies defendants’ conduct.  The court believes that the request is legitimate.  Because this goes primarily to objections, the court believes that counsel is at fault.  Therefore, sanctions are awarded against defendants and counsel jointly and severally in the amount of $3180, which, frankly, is quite low.  They are payable within 30 days.