Judge: Michael E. Whitaker, Case: 21STCV13827, Date: 2022-07-27 Tentative Ruling

Case Number: 21STCV13827    Hearing Date: July 27, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

July 27, 2022

CASE NUMBER

21STCV13827

MOTION

Motions to Compel Further Responses To

Demand for Production, Set 1; Request for Monetary Sanctions

MOVING PARTY

Plaintiff Tami Warren

OPPOSING PARTY

Defendant Martha Ruffman

 

In the complaint filed on April 12, 2021, Plaintiff Tami Warren (“Plaintiff”) alleges she was injured after a vehicle operated by Defendant Martha Ruffman (“Defendant”) collided with Plaintiff’s vehicle after Defendant made an unsafe left turn.   Plaintiff moves the Court for an order compelling Defendant to provide further responses to the following discovery request:

 

Demand for Production, Set 1, Propounded to Defendant

  1. DISCOVERY – GENERAL PRINCIPLES

     

    “The purpose of the discovery rules is to enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.  In other words, the discovery process is designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”  (Juarez v. Boy Scouts of Am., Inc. (2000) 81 Cal.App.4th 377, 389 [cleaned up].)  

     

                Where a party objects, or responds inadequately, to discovery requests, a motion lies to compel further responses, and that party has the burden to justify the objections or inadequate responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to a demand for inspection”].)  “A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion.  However, when the facts asserted in support of and in opposition to the motion are in conflict, the trial court's factual findings will be upheld if they are supported by substantial evidence.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [cleaned up].)

     

  2. ATTORNEY WORK PRODUCT DOCTRINE

     

                The attorney work product doctrine is codified under Code of Civil Procedure section 2018.010, et seq. 

               

    It is the policy of the state to do both of the following:

     

    (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

     

    (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.

     

    (a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

     

    (b) The work product of an attorney, other than a writing described in subdivision (a), 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.

     

    (See Code Civ. Proc., §§ 2018.020, 2018.030.)  “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ All other work product receives qualified protection; 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.’ ”  (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, citations omitted (hereafter, Coito).)

     

                In Coito, the California Supreme Court decided “[w]hat work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements.”  (Coito, supra, 54 Cal.4th at 485.)  With respect to both items, the Coito court opined:

     

    [W]e hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its attorney's impressions, conclusions, opinions, or legal research or theories.  If not, then the items may be subject to discovery if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim or will result in an injustice.

     

    As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).

     

    (Id. at p. 486 [cleaned up].)   Attorneys are the holders of the “work product privilege.”  (See Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468 [“The work product privilege is held by the attorney, not the client”].)  And the party that seeks the production of an attorney’s “work product,” other than a writing, “has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in injustice.”  (Id. at p. 469.)[1]  

     

                Here, Plaintiff seeks the production of surveillance photographs, films and videotapes of Plaintiff on November 11 and 12, 2020 by Hudson Investigation, and a corresponding investigative report (collectively, “Sub Rosa Evidence”) in the possession, custody and control of Defendant.  (See Declaration of Gabriel H. Wainfeld, ¶ 7.)  Plaintiff contends that good cause exists for the production to (1) protect against surprise, and (2) allow the plaintiff to prepare an examination of the person who performed the surveillance.

     

                In opposition, Defendant contends that the Sub Rosa Evidence is the work product of counsel for Defendant and consequently protected from disclosure under the attorney work product doctrine.  Further, Defendant asserts that she intends to use the Sub Rosa Evidence as impeachment evidence and is thus not required to produce such impeachment evidence per California Rules of Court, rule 3.1548(b). 

     

                In short, the question before the Court is whether the attorney work product doctrine precludes the production of the Sub Rosa Evidence. 

     

                Plaintiff relies primarily on Suezaki v. Superior Court for the proposition that the attorney work product doctrine does not protect the Sub Rosa Evidence from being produced.  Plaintiff’s reliance is faulty.  (Suezaki v. Superior Court (1962) 58 Cal.2d 166.)  First, the California Supreme Court held that the motion pictures of the plaintiff taken by an investigator hired by the defendant’s attorney is not protected by the attorney-client privilege.  (Id. at p. 172.)  Second, the California Supreme Court noted that the motion pictures were the work product of the defendant’s attorney.  (Id. at p. 177.)  As such, the Suezaki Court stated as follows:

     

    [I]n California the fact that the material sought to be discovered is the ‘work product’ of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted. It does not mean that, simply because the material involved is the ‘work product’ of the attorney, it can or should deny discovery. Something more must exist. The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, discovery would or would not be fair and equitable.

     

    (Id. at p. 178.)  

     

                 Against the backdrop of both parties’ positions, the Court finds Fisher v. National Railroad Passenger Corporation to be instructive.  In that case, the defendant obtained through an investigator surveillance of the plaintiff’s activities inconsistent with his claimed injuries which would be used to impeach the plaintiff at trial.  (Fisher v. National R.R. Passenger Corp. (S.D. Ind. 1993) 152 F.R.D. 145, 147 (hereafter, Fisher).  The defendant objected to the production of the surveillance evidence before the plaintiff’s deposition based in part on the attorney work product doctrine.  Following the plaintiff’s deposition, the defendant produced a single surveillance video taken of the plaintiff that the defendant intended to use as evidence at trial.  The plaintiff nevertheless sought the production of all of the surveillance video evidence.  (Id. at p. 148.) 

     

                The issue before the Fisher court was “Whether surveillance tapes of a Plaintiff which Defendant does not intend to introduce at trial, but which it possesses, are discoverable by the Plaintiff prior to trial.”  (Fisher, supra, 152 F.R.D. at p. 150.)   In answering that question and finding that the plaintiff did not meet his burden to compel the production of the surveillance evidence, the Fisher court stated:

     

    Deciding if a party has demonstrated the requisite “substantial need” to justify discovery of work product involves a balancing of the value of broad discovery as an accurate method of arriving at a full resolution of each dispute with the corresponding need to prevent undue intrusion into the attorney's preparation of her case. Striking this balance is, at best, a discretionary decision of the court in the factual context of the presented case.  However, in exercising this discretion, relevant considerations include, among others, the importance of the protected materials to the party seeking discovery; the degree to which the protected material reflects the thoughts and mental impressions of an attorney but yet remains outside of that absolutely protected category of materials; the impeachment value of the material sought; and whether the party seeking discovery knows, or is merely surmising, that the materials sought contain impeaching material.

     

    (Id. at pp. 151–152 [cleaned up].)  Further, the court noted:

     

    Concluding that Plaintiff failed to make the showing required to invade work product is not meant to refute the notion that surveillance tapes prepared by a defendant to impeach a plaintiff may contain substantive evidence, rather than merely impeachment evidence.  To the contrary, the current weight of authority suggests that representations contained in videotapes are indeed substantive evidence, and retreats from the previously held belief that evidence used for impeachment is of a kind different and distinguishable from evidence used to prove a case. Nor is it questioned that the videotapes may be relevant to the issue of damages or harm suffered by plaintiff.  However, . . . not all relevant, substantive evidence is discoverable, especially if that evidence is protected attorney work product. Once conceded that work product protection extends to the disputed materials, a different inquiry altogether is warranted, one which requires Plaintiff to demonstrate substantial need for the protected materials. Merely claiming that surveillance tapes prepared in anticipation of litigation might contain substantive evidence, especially when an alternative source for that evidence exists, does not provide “substantial need” to invade attorney work product.

     

    (Id. at p. 153.) 

     

    1. Work Product

       

                  The Sub Rosa Evidence was developed at the behest of counsel for Defendant and such evidence exists because of the efforts of defense counsel.  (See, e.g., Coito, supra, 54 Cal.4th at p. 495 [“witness statement is in part the product of the attorney’s work.  The witness statement would not exist but for the attorney’s initiative, decision, and effort to obtain it”].) 

       

                  As such, the Court finds that the Sub Rosa Evidence is the work product of defense counsel which is entitled to qualified protection as counsel for Defendant has failed to establish that the Sub Rosa Evidence is entitled to absolute protection.  Specifically, defense counsel has not shown that the Sub Rosa Evidence is writings reflecting his impressions, conclusions, opinions, or legal research or theories.  (See Declaration of Gabriel H. Wainfeld, ¶ 7.) 

       

    2. Good Cause for Production

       

                  Plaintiff claims that the production of the Sub Rosa Evidence will prevent unfair surprise whether pre-trial (at her deposition) or at trial.  She fears a “trial by ambush.”  That fear is material provided that the Sub Rosa Evidence is utilized by Defendant pre-trial or at trial for any purpose including impeachment.  But whether the Sub Rosa Evidence has any probative value will depend on what Plaintiff discloses during the discovery process including her deposition.  Specifically, if Plaintiff discloses information which is consistent with the Sub Rosa Evidence, then such evidence loses its potential impeachment quality and may not be utilized by Defendant.  At this juncture, Plaintiff is in the best position to determine whether any surveillance of her would be consistent with her alleged injuries, and to present evidence through her own testimony regarding the extent of her injuries which may or may not affect her life activities. 

       

                  The same may be said of Plaintiff’s other rationale for the production – to prepare for the examination of the investigator who obtained or developed the Sub Rosa Evidence.  Such preparation will be superfluous if the Sub Rosa Evidence is not utilized by Defendant.  If Defendant intends to use the Sub Rosa Evidence, then such evidence must be produced which would assist Plaintiff in preparing for the examination of the investigator, if any. 

       

                  Then again, Defendant argues that the Sub Rosa Evidence is simply impeachment evidence which need not be produced pre-trial, relying on California Rules of Court, rule 3.1548.  Defendant’s reliance, however, is misplaced.  Rule 3.1548 applies only to voluntary expedited jury trials.  Here, the parties have not requested an expedited jury trial under Rule 3.1547, and therefore, Defendant’s argument fails. 

       

                  Equally important, Defendant asserts that the Sub Rosa Evidence is merely impeachment evidence which may be used at trial but the Sub Rosa Evidence is protected from disclosure under the attorney work product doctrine.  Yet “the defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.”  (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 [at issue was whether a pre-litigation investigation report should be produced during discovery].)  Similarly, the California Supreme Court has held that an attorney cannot simultaneously advance work product in an affirmative fashion and preclude disclosure of such work product.

       

      Much like the work product doctrine itself, this second theory of implied waiver is premised on the need to protect the integrity of the judicial proceeding. The cases recognize that allowing one party to rely on a document to establish key facts while simultaneously shielding that same document from the other side works an unfair adversarial advantage. Considerations of basic fairness accordingly may require disclosure of otherwise privileged information or communications where a party has placed in issue a communication which goes to the heart of the claim in controversy.

       

      Courts have found implied waiver in a variety of litigation contexts.  In Nobles, for example, the United States Supreme Court rejected an argument that criminal defense counsel could simultaneously rely on a testifying defense investigator to impeach the credibility of a critical prosecution witness while also claiming the investigator's report was protected by the work product doctrine. The court explained: “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. ... [¶] ... Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony.” 

       

      (People v. Superior Court (Jones) (2021) 12 Cal.5th 348, 363 [cleaned up].)   Here, the Court finds Defendant’s argument to be equally unavailing even if Defendant intends to use the Sub Rosa Evidence for impeachment purposes only.                           

       

      Sanctions

                 

      A trial court may sanction a party for engaging in the misuse of discovery, which includes:  failure to respond or submit to an authorized method of discovery; making an evasive response to discovery; making, without substantial justification, an unmeritorious objection to discovery; and making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. (See Code Civ. Proc., § 2023.010.)

       

                  In addition, Code of Civil Procedure section 2031.310, subdivision (h) provides: “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 

       

                  Here, both parties seek monetary sanctions in connection with the motion.  However, the Court finds the imposition of monetary sanctions against either party to be unwarranted.  The parties had a legitimate dispute as to whether the Sub Rosa Evidence should be produced notwithstanding the protection afforded under the attorney work product doctrine.   

       

      CONCLUSION AND ORDERS

       

      Therefore, the Court grants, in part, Plaintiff’s motion to compel further responses to the Demand for Production per Code of Civil Procedure section 2031.310, and orders the production of the Sub Rosa Evidence, after Plaintiff’s deposition, provided that Defendant intends to use such evidence, pre-trial or at trial.  To that end, Defendant shall notify Plaintiff in writing if Defendant intends to use the Sub Rosa Evidence during any stage of the action (including non-expert and expert discovery phases) and produce the Sub Rosa Evidence within 5 days of that written notice. 

       

      Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.

       

       



[1] “The language of section 2018.030 does not otherwise define or describe work product. Courts have resolved whether particular materials constitute work product on a case-by-case basis, although they have sometimes taken different approaches.  Some courts have attempted to answer the question by distinguishing between derivative or  nonderivative material, or between interpretative and evidentiary material.  These cases have concluded that only derivative or interpretive material—material created by or derived from an attorney's work reflecting the attorney's evaluation of the law or facts—constitutes work product.  Examples of such material include diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial.  Nonderivative material—material that is only evidentiary in nature—does not constitute work product. Examples of such material include the identity and location of physical evidence or witnesses.”  (Coito, supra, 54 Cal.4th at pp. 488–489 [cleaned up]; see also People v. Superior Court (Jones) (2019) 34 Cal.App.5th 75, 81, aff'd and remanded  (2021) 12 Cal.5th 348 [Work product includes “materials compiled by investigators and other agents in preparation for trial”].)