Judge: Maurice A. Leiter, Case: 20STCP00884, Date: 2023-03-15 Tentative Ruling

Case Number: 20STCP00884    Hearing Date: March 15, 2023    Dept: 54

Hearing Date: March 15, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Production of Privilege Log and Withheld Documents;

Motion for Terminating Sanctions

Moving Party: Defendant Tesla, Inc.

Responding Party: Plaintiff Hannah Hollocks

T/R:     DEFENDANT’S MOTIONS ARE DENIED.

            DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On March 2, 2020, Plaintiff Hannah Hollocks filed a complaint against Defendant Tesla, Inc., asserting causes of action for (1) sexual harassment; (2) discrimination; (3) retaliation; (4) failure to prevent sexual harassment; and (5) disability discrimination. Plaintiff alleges she was the only female worker at Tesla’s Pomona Collision Center. Throughout her time there, Plaintiff alleges she was consistently sexually harassed, sexually assaulted twice by two supervisors, and retaliated against for reporting this conduct. Plaintiff alleges Defendant did not fairly investigate these claims, instead choosing to ignore Plaintiff’s treatment.

ANALYSIS

A. Motion to Compel Production of Privilege Log and Withheld Documents

            Defendant moves for an order (1) compelling Plaintiff to provide a privilege log within five days after entry of the Order; (2) compelling Plaintiff to produce full and complete copies of all text messages improperly redacted for “privacy” within five days after entry of the Order; (3) compelling Plaintiff to produce full and complete copies of all text messages improperly redacted as “privileged” within five days after entry of the Order or, in the alternative, provide those text messages to the Court for in camera analysis within five days of entry of the Order.

            Defendant asserts Plaintiff has redacted various text messages as “private” or “privileged.” Defendant argues that Plaintiff must produce every text message so Defendant may determine which are relevant to this case. Defendant also contends that text messages between Plaintiff and her father are not privileged.

            In opposition, Plaintiff asserts that the motion is moot because under the protective order, Defendant was required to identify which text messages it would use at trial no later than February 14, 2023. Plaintiff represents that Defendant did not comply with this order.

            Defendant has not provided the Court with sufficient information to grant this motion. There is no separate statement and no discussion of the discovery requests. Defendant does not make clear exactly what it asked for in discovery; nor does Defendant explain why it is entitled to sort through potentially thousands of unredacted text messages so that it may determine which it believes are relevant.

Defendant has not satisfied its burden on this motion.

B. Motion for Terminating Sanctions

It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP § 2023.010(d)) or to disobey “a court order to provide discovery.”  (CCP § 2023.010(g).)  Under CCP § 2023.030, courts have the authority to issue monetary sanctions, evidentiary sanctions, or terminating sanctions after giving parties proper notice and the opportunity to be heard.

In determining whether sanctions should be imposed, courts consider the totality of the circumstances, including the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.”  (Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.)   “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Wilson v. Jefferson (1985) 163 Cal. App. 3d 952, 959.)

Defendant moves for terminating sanctions against Plaintiff on the ground that Plaintiff destroyed evidence. Defendant asserts Plaintiff deleted text messages between herself and one of the alleged perpetrators of harassment/assault, Rogelio Ornelas Luna’s (“Junior”), in December 2019 after she contemplated litigation against Defendant. Defendant believes these text messages contained relevant information for this case. Defendant was unable to obtain the messages from Junior. Defendant alternatively requests the Court give adverse inference instruction about the texts to the jury.

In opposition, Plaintiff represents she had not yet engaged counsel at the time the messages were deleted and was under no obligation to preserve evidence. Plaintiff also argues Defendant failed to preserve Junior’s phone and text messages.

The Court will not award terminating sanctions based on this record. The Court will address a possible jury instruction on spoliation of evidence after it hears the relevant testimony at trial.

Defendant’s motion for terminating sanctions is DENIED.