SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Lymbhya Tavera Garcia (“Plaintiff”) filed this action against Defendant Target Brands, Inc. (“Defendant”) for injuries Plaintiff sustained when she slipped on a pool of liquid in Defendant’s store and fell. Plaintiff moves the Court for an order compelling Defendant to provide further responses to Request for Production of Documents (“RPDs”), set two. 

Plaintiff requests further disclosures to request nos. 19-23, 25-26, and 28-31, and further verified responses to 32-33, and 35-37.  

Defendant opposes the motion, and Plaintiff filed a reply.  

(1) A statement of compliance with the demand is incomplete.¿ 

(2) A representation of inability to comply is inadequate, incomplete, or evasive.¿ 

(3) An objection in the response is without merit or too general.¿ 

Plaintiff’s motion identifies Nos. 19-23, 25-26, and 28-31, and 35-37 at issue. The joint supplemental IDC statement submitted by the parties address some of these requests, in which the remaining requests at issue are disclosures for 19-23 and 25, and further responses to requests 32-33 and 36-37.  

 

Defendant objected on the grounds of attorney-client privilege and work product privilege, and identified the unprivileged portion of “Target Guest Incident Report” in response to Nos. 19, 21, 23, and 26. Defendant further provided that the written statement of Target employee Alejandra Gonzalez was prepared as part of the “Guest Incident Report” in anticipation of litigation. As to No. 36, Defendant responded that four photographs of the incident taken by Target employee Myisha Street were produced.  

Plaintiff argues Defendant’s objections asserting the attorney work product and attorney-client privilege to Request nos. 19, 21, 23, and 36 should be overruled and stricken because the factual basis for the privilege was not specifically enunciated. However, failure to provide a factual basis for a privilege is not a waiver of it. (Motown Record Corp. v. Sup. Ct. (1984) 155 Cal.App.3d 482, 492.) Further, failures to provide a privilege log or set forth specific privilege objections are not grounds for finding waivers of the objections. (Korea Data Systems Co. v. Sup. Ct. (1997) 51 Cal.App.4th 1513, 1516-17.) In this case, Defendant did provide a factual basis by identifying the specific document and objecting on the grounds that it was prepared in anticipation of litigation. 

Specifically, as to the incident report and witness statements, the attorney work product privilege prevents disclosure of documents prepared for the purpose of trial.  In Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, the court considered the “dominant purpose” for creating reports as a determining factor to whether it is privileged.  (Scripps, supra, 109 Cal.App.4th at p. 533 [“Where, as here, a corporate employer requires that its employees make a report, the privilege of that report is determined by the employer’s purpose in requiring the report”].)  Where a corporate employer requires its employees to make a report, the privilege of that report is determined by the employer's purpose in requiring the report. (D.I. Chadbourne, Inc. v. Sup. Ct. (1964) 60 Cal.2d 723, 736.) Where an employer requires employees to prepare a report with the dominant purpose of eventual transmission to the employer's attorneys, the attorney-client privilege may protect the report from disclosure to opposing parties. (Scripps Health v. Sup. Ct. (2003) 109 Cal.App.4th 529, 534.) 

Plaintiff provides the statements by Alejandra Gonzalez are relevant because she is a percipient witness to the incident, and thus meets her initial burden of showing good cause for production of this document. Therefore, Defendant carries the burden of establishing the existence of the attorney-client privilege. (Zimmerman v. Sup. Ct. (2013) 220 Cal.App.4th 389, 402 [party resisting discovery must establish the existence of the privilege].) The party resisting discovery bears this burden because the attorney-client privilege is “in derogation of the truth-finding process.” (United States v. ChevronTexaco Corp. (N.D. Cal. 2002) 241 F.Supp.2d 1065, 1070.)  

Here, Defendant provides a declaration from Shannon McCort (“McCort”), its Senior Manager Claims attesting that the purpose of the guest incident report is to assist Sedgwick, Target’s third-party administrator, information relating to the incident for purposes of defending Target in case there is a litigation. However, the Court is unable to consider McCort’s declaration, because her sworn statement is unsigned. Therefore, Defendant has not submitted evidence supporting its contention that it meets the standards established in Scripps and D.I. Chadbourne, and fails to meet its burden establishing the existence of the privilege asserted.  

Defendant responded that the request is overly broad, vague, and ambiguous, and assumes facts not in evidence, and without waiving any objections, responded: “Following a diligent search and reasonable inquiry, responding defendant confirmed that no such statements are in possession of this responding Defendant and none will be produced.”  

Plaintiff argues request 22, requesting any and all documents related to the subject incident, should be produced because the assertion of privilege has been waived since it was not specifically enunciated. No such objection was raised, nor does Defendant identify any documents relevant to this request. However, the response is not compliant with CCP section 2031.230, and thus the compel further is GRANTED only to the extent that Defendant must serve a code-compliant response.   

 

D. Request No. 25 

Request No. 25 seeks: “Provide copies of any and all written documents that identify any and all individuals who were working at the subject Target on the date of the incident.” 

Defendant initially responded that the request was overly broad, burdensome, oppressive, and that it violated privacy rights of third parties. Defendant’s supplemental responses further provided that  the request seeks Target’s confidential and proprietary documents that may be produced following the Court’s signing of the Stipulated Protective Order. Pursuant to the order, Defendant provided it will produce the following confidential material: Team member Handbook (hourly), Team member handbook (executive), Spill Clean Up Procedures, Basic Safeness-Guest Incidents, Basic Safeness Sales Floor Guide (Employee), and Basic Safeness Sales Floor Guide (Trainer).  

Plaintiff asserts no disclosure was served as to Request No. 25. Here, references to Target’s team member handbook and safety procedures are not responsive to this request.  

The request is GRANTED as to Request No. 25 for supplemental responses providing basic witness information of name and contact information; any other private information such as social security number and the like may be redacted.  

 

E. Request No. 32 and 33 

Request No. 32: “Provide copies of any and all documents that identify any and all individuals whose job duties included monitoring the floor for spills at the subject Target store on the date of the subject INCIDENT.” 

Request No. 33: “Provide copies of any and all documents that identify an and all individuals who worked at the subject Target on the date of the subject INCIDENT who had contact with Plaintiff on that date.” 

Defendant responded to No. 32 that “all Target employees on duty inspected, maintained and monitored floors of the store on a constant and ongoing basis on the date of the incident,” and responded to No. 33 that the request is vague and ambiguous as to “had contact with plaintiff.” 

Plaintiff argues further disclosure identifying witnesses and their contact information should be provided as to requests 32 and 33. Plaintiff contends basic witness contact information is not subject to the attorney-client privilege. If all Target employees had the duty to monitor the floor for spills, then this request overlaps with Request No. 25.  

Therefore, the motion as to Request No. 32 is GRANTED.  

The motion as to Request No. 33 is vague and ambiguous, whether “contact” may mean communication, meeting generally, physical touch or any other definition, and therefore DENIED.  

 

F. Request No. 37 

Request No. 37: “Provide copies of any and all security reports for the subject Target on the date of each of the slip and falls that occurred at the subject Target in the 10 year period before the INCIDENT.” 

Defendant objected on the grounds that: “This request is overly broad, vague and ambiguous as to security reports. It is also burdensome, without any reasonable limitation in its scope and seeks information not reasonable calculated to lead to discovery of admissible evidence.” 

Plaintiff argues Request No. 37 should be produced because the documents are relevant to Plaintiff’s case for premises liability, and the request for prior slip and fall incidents within 10 years is relevant. Defendant’s section of the joint IDC statement provides it is willing to produce documents on a narrowed scope to reflect slip and fall incidents near the aisle where the incident occurred for the last 3 years. The Court orders Defendant to turn over all security reports for all slip and fall incidents occurring anywhere in the subject Target, for 3 years prior to the incident. 

 

IV. Conclusion 

Based on the foregoing, Plaintiff’s motion to compel further responses to RPDs, set one, are GRANTED pertaining to Request Nos. 19, 20, 21, 23, 32 and 36. Request No. 22 is GRANTED only to the extent that Defendant must serve a code-compliant response. Request No. 25 is GRANTED in terms of providing supplemental responses with basic witness information of name and contact information. Request No. 37 is GRANTED only to the extent of all security reports for all slip and fall incidents occurring anywhere in the subject Target covering 3 years prior to the incident. 

 

Defendant is ordered to provide further responses to the above requests within thirty (30) days. 

 

Plaintiff is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

Dated this 28th day of November 2023