Judge: Martha K. Gooding, Case: 2020-01154481, Date: 2022-10-31 Tentative Ruling

Motion to Compel Production

The Motion by Defendant Safe Harbor Treatment Center for Women, Inc. (“Defendant”) for an order compelling Plaintiff Chaz Mangan (“Plaintiff”) to provide further responses and production to Requests For Production, Set Three, nos. 17 and 18 is granted.  Plaintiff is ordered to provide further responses and production no later than 20 days after notice of this ruling.

No sanctions are awarded.

Where there has been a response to RFPs that the propounding party finds inadequate, the Code provides for a motion and order compelling production upon a showing of good cause, prior meeting and conferring, and the filing of a separate statement.  Code Civ. Proc. § 2031.310(b)(1) and (2); CRC 3.1345; TRG, Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1.

The Court finds Defendant’s meet and confer attempts were sufficient.

A motion to compel further responses to RFPs also must set forth specific facts showing good cause justifying the discovery sought by the discovery request.  Code Civ. Proc. § 2031.310(b)(1).  To meet the burden of showing good cause, the moving party must show: (1) relevance to the subject matter and (2) specific facts justifying discovery.  Weil & Brown, Cal. Civ. Proc. Before Trial, 8:1495.6 (The Rutter Group 2011).  Declarations are generally used to show good cause, and they must contain specific facts and not mere conclusions.  Id. at 8:1495.7.  If the moving party demonstrates good cause, then the opposing party must justify any objections.  Kirkland v Superior Court (2002) 95 Cal. App. 4^th 92, 98.

The Court finds Defendant has shown good cause.

If “good cause” is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure. Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.

In his opposition to the motion to compel, Plaintiff only attempts to support his work product protection objection.

First, however, Plaintiff argues that the motion is moot based on Defendant’s status conference report.  But, as Defendant notes in its reply, if there is going to be a trial – as Plaintiff has requested, if the Cross-Complaint is not dismissed – and Ms. Alejo is a potential or likely witness, then Defendant’s request for discovery going to her bias is not moot. 

At this point, it remains possible there will be a trial at which Ms. Alejo will be a witness.  The Court therefore finds that Defendant’s Motion is not moot.

As for the work product objection, Plaintiff supports this objection with the assertion in his brief that the communications between Ms. Alejo and Plaintiff’s counsel are subject to the qualified work product protection.  He also asserts that there were no written communications between Plaintiff and Ms. Alejo.  Plaintiff does not support either of these statements with a declaration. 

Attorney Work Product Protection

California's civil work product privilege is codified in section 2018.030.  Subdivision (a) provides absolute protection to any “writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).)  Such a writing “is not discoverable under any circumstances.” (Ibid.)  The term “writing” includes any form of recorded information, including audio recordings. (§ 2016.020, subd. (c) [adopting the definition set forth in Evidence Code section 250].)  Section 2018.030(b) provides qualified protection for all other work product.  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.” (§ 2018.030, subd. (b).)

Qualified privilege. Although witness statements obtained through an attorney-directed interview may or may not reveal the attorney's thought process, we believe such statements necessarily implicate two other interests that the Legislature sought to protect in enacting the work product privilege. Based on these interests, we conclude that witness statements procured by an attorney are entitled as a matter of law to at least qualified work product protection under section 2018.030, subdivision (b).

First, when an attorney obtains through discovery a witness statement obtained by opposing counsel through his or her own initiative, such discovery undermines the Legislature's policy to “[p]revent attorneys from taking undue advantage of their adversary's industry and efforts.” (§ 2018.020, subd. (b).)  Even when an attorney exercises no selectivity in determining which witnesses to interview, and even when the attorney simply records each witness's answer to a single question (“What happened?”), the attorney has expended time and effort in identifying and locating each witness, securing the witness's willingness to talk, listening to what the witness said, and preserving the witness's statement for possible future use. An attorney who seeks to discover what a witness knows is not without recourse. The attorney is free to interview the witness for himself or herself to find out what information the witness has that is relevant to the litigation.

Coito v. Superior Court (2012) 54 Cal.4th 480, 496.  To obtain production of documents falling within the qualified privilege, a party must show that withholding the documents would be unfairly prejudicial to him or inequitable.

“’But a common law trial is and always should be an adversary proceeding. Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.’ (Hickman, supra, 329 U.S. at p. 516, 67 S.Ct. 385 (conc. opn. of Jackson, J.).) Absent a showing that a witness is no longer available or accessible, or some other showing of unfair prejudice or injustice (§ 2018.030, subd. (b)), the Legislature's declared policy is to prevent an attorney from free riding on the industry and efforts of opposing counsel (§ 2018.020, subd. (b)).”

Id.

Here, Plaintiff argues the draft declaration is the equivalent of a witness statement and, on that basis, asserts the qualified work product protection.

As a preliminary matter, it should be noted that Plaintiff makes no similar claims about any other communications between him or his counsel and Ms. Alejo.  If there are no such documents responsive to RFP No. 17, then he can so state in a verified response.

As to the draft declaration, there is no evidence Ms. Alejo signed it or adopted it.  And while it could have been the result of counsel’s directed interview of her and thus arguably be the equivalent of a witness statement, it also could not be.  There is no evidence presented to the Court regarding how the draft declaration came to be.

In short, Plaintiff has not met its burden of proof to establish that the work product protection applies to the draft declaration requested by RFP no. 18. 

Accordingly, the Motion is GRANTED.  Defendant is ordered to give notice.