Judge: Michael P. Linfield, Case: 22STCV01351, Date: 2023-03-27 Tentative Ruling
Case Number: 22STCV01351 Hearing Date: March 27, 2023 Dept: 34
SUBJECT: Motion to Compel Further Answers to
Deposition of Ashley Roberts and for Sanctions
Moving Party: Plaintiffs
Sawyer S., Donlad D., Ayden M., Connor C., Hayden H., Walker B., Sophia F.,
Corinne D., Symonne H., Claire E., and Reese E.
Resp. Party: Defendants Tiffany Smith, Hunter Hill, and
Piper Rockelle, Inc.
Plaintiffs’ Motion is DENIED. The Parties’ respective Requests for
Sanctions are DENIED.
Defendants are ordered to produce a privilege log to Plaintiffs within
10 days. The privilege log must identify any documents that have been withheld
and the privilege(s) being asserted for withholding each document.
PRELIMINARY COMMENT:
The Court noted in one of its earlier
tentative orders that the Court expects the parties’ respective counsel to act
with a higher quality of communication and cooperation. The Court’s
expectations have not been met.
“Although we have not as yet reached the point where the participants
at a deposition will be required to be licensed by the state boxing commission, we note with dismay the ever growing number of cases in
which most of the trappings of civility between counsel are lacking. . . . A reasonable and good faith attempt at
informal resolution entails something more than bickering with deponent's
counsel at a deposition. Rather, the law requires that counsel attempt to talk
the matter over, compare their views, consult, and deliberate.” (Townsend v. Super. Ct. (1998) 61
Cal.App.4th 1431, 1438–39, citation omitted.)
Section E(11) of Appendix 3.A to the
Local Rules of the Los Angeles Superior Court, titled “Guidelines for Civility
in Litigation,” states: “Counsel should not engage in any conduct during a
deposition that would not be allowed in the presence of a judicial officer.”
The Court reminds counsel for both sides
to be civil. The Court expects that no further reminders will be necessary.
The Court also reminds Plaintiffs’ counsel
that it is impermissible to cite to an unpublished decision. (See, e.g., Motion, p. 7:17-21.) Further, a motion that is longer than 10
pages must contain a Table of Contents and a Table of Authorities. (CRC Rule 3.1113(f).)
BACKGROUND:
On January 12, 2022,
Plaintiffs Sawyer S., Donlad D., Ayden M., Connor C., Hayden H., Walker B.,
Sophia F., Corinne D., Symonne H., Claire E., and Reese E. filed a Complaint
against Defendants Tiffany Smith, Hunter Hill, and Piper Rockelle, Inc. The
underlying allegations involve the mistreatment and abuse of Plaintiffs, who
are all minors, in the production of Defendants’ YouTube channel. The listed
causes of action are:
(1) Violation of
California Civil Code § 3344;
(2) Violation of Common
Law Right of Publicity;
(3) Unjust Enrichment;
(4) Intentional
Interference with Contractual Relations;
(5) Intentional
Interference with Prospective Economic Advantage;
(6) Civil Conspiracy;
(7) Sexual Battery;
(8) Battery;
(9) Intentional Infliction
of Emotional Distress; and
(10) Violation of Business
and Professions Code sections 17200, et seq.
On May 11, 2022,
Defendants filed their Answer.
On February 17, 2023,
Plaintiffs filed their Motion to Compel Further Answers to Deposition of Ashley
Roberts. Plaintiffs concurrently filed: (1) Declaration of Matthew S. Sarelson;
(2) Separate Statement; and (3) Proof of Service. The Motion includes a Request
for Sanctions.
On March 14, 2023,
Defendants filed their Opposition. Defendants concurrently filed: (1)
Declaration of Kenneth Ingber; and (2) Response to Separate Statement. The
Opposition includes a Request for Sanctions.
On March 20, 2023,
Plaintiffs filed their Reply.
ANALYSIS:
I.
Legal
Standard
“[T]he process by which a nonparty is required to provide
discovery is a deposition subpoena.” (Code Civ. Proc., § 2020.010, subd. (b).)
“A deposition subpoena may
command any of the following:
a. “Only the
attendance and the testimony of the deponent, under Article 3 (commencing with
Section 2020.310).
b. “Only the
production of business records for copying, under Article 4 (commencing with
Section 2020.410).
c. “The
attendance and the testimony of the deponent, as well as the production of
business records, other documents, electronically stored information, and tangible
things, under Article 5 (commencing with Section 2020.510).”
(Code Civ. Proc., § 2020.020, subds. (a)–(c).)
“If a deponent fails to answer
any question or to produce any document, electronically stored information, or
tangible thing under the deponent’s control that is specified in the deposition
notice or a deposition subpoena, the party seeking discovery may move the court
for an order compelling that answer or production.” (Code Civ. Proc., §
2025.480, subd. (a).)
“If the court determines
that the answer or production sought is subject to discovery, it shall order
that the answer be given or the production be made on the resumption of the
deposition.” (Code Civ. Proc., § 2025.480, subd. (i).)
II.
Discussion
A.
Deposition
Questions and Documents at Issue
Plaintiffs’ Separate Statement lists the following questions as being
unanswered during the deposition of Non-Party Ashley Roberts on December 2,
2022:
(1)
Are you
paying the attorney to be here today in any way?
(2)
Have you
paid your attorney any money at all in connection with this representation?
(3)
Has
anyone other than you paid for your attorney to be present today?
(4)
What is
your current home address?
(5)
Is [341
Hauser Boulevard] your home address?
(6)
Are you
going to [pay for your lawyer]?
(Separate Statement,
pp. 2:21, 2:26–27, 3:16, 3:27, 5:9–10, 6:6.)
In addition, the Separate Statement
references a request for production of documents that, among other things,
sought “[a]ll communications between you and any other third party with respect
to all Plaintiffs, their guardian ad litems [sic], and the respective claims in
the pending matter commonly known as 22STCV01351 and styled as ‘Sawyer S., a
minor et al. v. Tiffany Rockelle Smith, an individual, et al.’ For purposes of
this document request, include all text messages, instant messages (IMs),
direct messages (DMs), emails and/or any other form of written communication.”
(Separate Statement, p. 6:13–19.)
B.
The
Parties’ Arguments
Plaintiffs move the Court for an Order: (1) requiring Non-Party Ashley
Roberts (“Ms. Roberts”) to sit for a second deposition after the production of
her responsive documents, with Defendants paying the fees and costs for this
second deposition; (2) requiring Ms. Roberts to produce all documents
responsive to the subpoena duces tucem; (3) prohibiting Defense Counsel from
making speaking objections or otherwise interrupting any future depositions;
(4) overruling all privilege and privacy objections raised by Defense Counsel
during the initial deposition of Ms. Roberts; and (5) requiring Defendants to pay
attorney’s fees and costs incurred for the initial deposition of Ms. Roberts.
(Motion, pp. 14:21–28, 15:1–4.) Plaintiff argues that these requests are
appropriate because Ms. Roberts did not answer questions that are subject to
discovery and did not produce all documents responsive to her deposition
subpoena. (Id. at pp. 7–9.)
Defendants oppose the Motion, arguing: (1) that Ms. Roberts disclosed
who is paying her attorney’s fees; (2) that Ms. Roberts has a right to privacy
and her home address is not relevant; and (3) that Ms. Roberts has already
produced the documents responsive to the subpoena. (Opposition, pp. 6:8, 7:15,
9:1.)
Plaintiffs reiterate their arguments in their Reply.
C.
Discussion
1.
Ms.
Roberts and Her Counsel
The four questions regarding Ms. Roberts’ contractual relationship with
her Counsel are relevant to this matter and appropriate to ask in a deposition.
As the issue appears to be whether Defendants are paying for Ms. Roberts to be
represented, the answers to these questions go to the credibility of Ms.
Roberts, which the Court would assess if this matter goes to trial.
However, there does not appear to be an actual dispute about this
issue. Defendants admit that they are paying Ms. Roberts’ legal fees.
(Opposition, p. 6:10–11.) Further, Defendants have already produced an
indemnification agreement between Ms. Roberts and Defendant Smith, wherein
Defendant Smith agreed to defend and indemnify Ms. Roberts. (Id. at p.
6:11–19.) Thus, while the answers to these questions are relevant as a matter
of credibility, there is no need to order a second deposition solely to answer
them because the answers are already apparent.
2.
Ms.
Roberts’ Home Address
The two questions regarding Ms. Roberts’ home address are not relevant
to this matter. Defense Counsel correctly notes that Ms. Roberts has a right to
privacy. While there may have been issues with serving Ms. Roberts in the past,
Ms. Roberts is now represented, and her Counsel can be served on her behalf.
There is no other indication at this time that Ms. Roberts’ home address is
relevant to the underlying issues in this matter.
3.
Documents
Requested of Ms. Roberts
Plaintiffs move for an order “requiring Ashley Roberts to read the
subpoena that her counsel accepted on her behalf, and then produce all
responsive documents prior to sitting for a continued deposition.” (Motion, p.
9:12–14.) Plaintiffs are concerned that there may be responsive documents Ms.
Roberts has not produced because another witness, Jorge Hernandez, produced a
responsive text message between him and Ms. Roberts. (Separate Statement, p.
7:1–3.)
Defendants disagree, arguing: (1) that Ms. Roberts and Mr. Hernandez
were asked to produce different categories of documents, and some of Ms.
Roberts’ materials were withheld based on filtering out items that were
personal and irrelevant; (2) that no one was withholding documents because
Defense Counsel produced the documents for both witnesses, including the text
message at issue; (3) that Ms. Roberts already conducted a search for the
categories of documents requested; (4) Plaintiffs’ demand that Ms. Roberts go
through 16,000 documents to see if all responsive documents were produced is
burdensome, harassing, and oppressive; and (5) that Plaintiffs have not
established good cause to require Ms. Roberts to submit to a second deposition.
(Opposition, pp. 9:10–28, 10:1–9.)
The Court agrees with Defendants that Ms. Roberts’ failure to produce
one responsive text message is not sufficient to establish good cause for a
second deposition. Furthermore, Defense Counsel seems to admit that Ms. Roberts
has produced everything to Defense Counsel. However, it is not clear to the
Court what filters and/or criteria Defense Counsel used for determining which
of the claimed 16,000 documents were personal and irrelevant. More importantly,
to the extent any documents were withheld on the basis of privilege, a privilege
log must be produced.
The Court will not require Ms. Roberts
to sit for a second deposition. To do so would be a waste of resources. But the
Court will require Defense Counsel to provide a privilege log to Plaintiff’s
Counsel that lists (1) what discovery has been withheld and (2) on what basis
it was withheld.
D.
Sanctions
“[C]ivility in litigation tends to be efficient by allowing disputants
to focus on core disagreements and to minimize tangential distractions. It is a
salutary incentive for counsel in fee-shifting cases to know their own low
blows may return to hit them in the pocketbook.” (Karton
v. Ari Design & Constr., Inc. (2021) 61 Cal.App.5th 734, 747.)
Sanctions are denied.
III.
Conclusion
Plaintiffs’ Motion is DENIED. The Parties’ respective Requests for
Sanctions are DENIED.
Defendants are ordered to produce a privilege log to Plaintiffs within
10 days. The privilege log must identify any documents that have been withheld
and the privilege(s) being asserted for withholding each document.