Judge Michelle C. Kim, Case 21STCV22501 2023-05-05 Tentative Ruling

Plaintiff David Takeda (“Plaintiff”) filed this action against Defendant Costco Wholesale Corporation (“Defendant”) for injuries Plaintiff sustained when Defendant’s employee allegedly drove “an industrial caddy” inside Defendant’s store and crashed into Plaintiff.

On October 12, 2022, Plaintiff filed the instant motion to compel further responses to request for production of documents (“RPDs”), set one, against Defendant. On December 20, 2022, Defendant filed its opposition to the motion. On April 10, 2023, the parties participated in an Informal Discovery Conference concerning the RPDs, but the issues were not resolved. On April 28, 2023, Plaintiff filed his reply to Defendant’s opposition.

Plaintiff moves to compel further responses to RPDs, set one, Nos. 2, 15, 37, and 43, asserting that Plaintiff seeks an incident report Defendant identified but refused to produce, and that Plaintiff seeks all documents relating to accidents at Defendant’s store involving the same type of cart that impacted Plaintiff. Plaintiff argues that the documents are directly relevant to his contention that the cart posed an unnecessary risk to customers.

In opposition, Defendant argues that it provided code-compliant responses to the RPDs, and that Plaintiff fails to establish good cause for compelling further responses. Additionally, Defendant contends that the ten year period identified in the RPDs is overbroad, but Defendant is amenable to producing further responses once Plaintiff properly tailors the requests.

In reply, Plaintiff contends that Defendant’s objections are meritless, and that the documents Plaintiff seeks are not privileged. Further, Plaintiff asserts he has agreed to limit his requests five years, and that the requested documents are relevant to Plaintiff’s claims.

CCP § 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:

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

A motion to compel further responses to RPDs “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Id. at § 2031.310(b)(1).)

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.)

(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.

It is not enough for a party to assert that something is protected as privileged, but rather the burden is on the party asserting the objection to prove the preliminary facts that show a privilege or protection applies. (See Mize v. Atchison, T. & S. F. ry. Co. (1975) 46 Cal.App.3d 436, 447.)

In determining whether an employee statement or report is protected as privileged, the case of D.I. Chadbourne, Inc. v. Superior Court (1964), details eleven basic principles to be applied. (See 60 Cal.2d 723, 736-38.) As relevant here, the D.I. Chadbourne court stated:

4. Where the employee's connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation's business, the employee is no longer an independent witness, and his statement or report is that of the employer;

5. If, in the case of the employee last mentioned, the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer's purpose in requiring the same; that is to say, if the employer directs the making of the report for confidential transmittal to its attorney, the communication may be privileged;

6. When the corporate employer has more than one purpose in directing such an employee to make such report or statement, the dominant purpose will control, unless the secondary use is such that confidentiality has been waived;

7. If otherwise privileged under the rules stated above, a communication does not lose its privilege merely because it was obtained, with the knowledge and consent of the employer, by an agent of the employer acting under such agency;

(Id. at 737.) Furthermore, research, accident and investigative reports may be subject to qualified work product protection. (See Payless Drug Stores, Inc. v. Superior Court (1976) 54 Cal.App.3d 988, 991; see also Coito v. Sup.Ct. (2012) 54 Cal.4th 480, 498-99.)

In Payless Drug Stores, Inc., the plaintiff sought to compel production of accident reports prepared by the defendant’s employees following a slip and fall incident. (54 Cal.App.3d at 989-90.) In finding the reports to be privileged, the Court noted:

It appears from the declarations submitted by petitioner that the insurance carrier required reports of petitioner corporate employer in cases in which accidents were claimed to have occurred; that both the insurance carrier and petitioner intended the reports to be confidential for transmission to and use by attorneys defending petitioner in litigation arising out of such claims; that the reports were transmitted by the insurance carrier to the attorney for petitioner for his use in defending litigation arising out of this claim.

Evidence to the effect that the report in question was prepared by an employee of the corporate employer on the date of the accident on a preprinted form furnished by the insurance carrier headed ‘Public Liability Accident—Report Every Accident Immediately to Harbor Insurance Company’ is sufficient to establish the dominant purpose. No other purpose was shown. Although the report was not labeled ‘confidential,’ as was the report in Sierra Vista Hospital v. Superior Court (1967), 248 Cal.App.2d 359, 56 Cal.Rptr. 387, [D.I.] Chadbourne establishes that when a corporate employer directs the employee, at the request of the insurance carrier, to make such a report, the intent of the employer controls.

Here, RPD No. 2 requests, “Please produce all recorded or written statements of any witnesses to the INCIDENT,” and RPD No. 15 demands, “Please produce all DOCUMENTS regarding or relating any investigation conducted PERTAINING TO the INCIDENT.” In response to RPD 2, Defendant asserted various objections and stated that Defendant would produce a copy of a Member First Report of Incident and witness statement. Defendant further stated that a Confidential Incident Report was prepared regarding the incident was prepared in anticipation of litigation, so the report is protected from disclosure by the attorney work product doctrine. In response to RPD 15, Defendant asserted various objections and asserted that “[a]ny responsive documents would have been prepared in anticipation of litigation and therefore protected from disclosure by the attorney work product doctrine.”

Plaintiff seeks to compel Defendant to produce the incident report in response to RPDs 2 and 15 arguing the report is not protected by the attorney work product doctrine or by the attorney-client privilege. Defendant, in opposition, asserts that its employee’s and Plaintiff’s written statements were produced in response to these requests. Defendant contends that while it identified a Confidential and Privileged Warehouse Report, it was prepared specifically in anticipation of litigation, so production is not required.

While Defendant contends that the subject incident report was prepared in preparation for litigation and sent to Defendant’s Claims Department, Defendant does not submit any evidence to support this assertion. For example, Defendant does not submit a declaration from any of Defendant’s agents or employees detailing the dominant purpose of the reports and documents, nor does defense counsel address this in its declaration attached to the opposition. Defendant’s arguments in the memorandum of points and authorities are not evidence. Defendant, thus, fails to show the dominant purpose of the subject reports is preparation for litigation. (See D.I. Chadbourne, Inc., 60 Cal.2d at 737; see also Payless Drug Stores, Inc., 54 Cal.App.3d at 991.) Moreover, although Defendant contends in its response to Plaintiff’s separate statement that the incident report is not a witness statement, Defendant itself identified the incident report in response to RPD 2 and does not otherwise clarify whether the report contains any witness statements.

Therefore, Plaintiff’s motion to compel further responses to RPDs, set one, 2 and 15 is granted. Defendant is ordered to serve a further response to RPDs 2 and 15 within twenty (20) days.

RPDs, set one, Nos. 37 and 43 seek, “ALL DOCUMENTS PERTAINING TO any prior accidents with the in CARTS where any person (employee or customer) was injured in the past 10 years,” and “ALL DOCUMENTS PERTAINING TO any prior accidents with the in CARTS where any person (employee or customer) was injured in the past 10 years,” respectively. In response, Defendant asserted various objections, including that the requests were overbroad in time and scope.

In its opposition, Defendant contends that ten years is too broad a period to be relevant to the subject incident, but Defendant provides that it is amenable to providing further responses once the requests are narrowed. In reply, Plaintiff attests that he has agreed to limit his requests to five years before the incident. This timeframe is reasonable. Furthermore, Defendant does otherwise dispute that the requested documents are relevant to Plaintiff’s claims. As to the remaining objections asserted in the responses, the party objecting responses to a discovery request has the burden of justifying the objection. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220; see also Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95.) Defendant does not establish the appropriateness of any of its remaining objections.

Based on the foregoing, Plaintiff’s motion to compel further responses to RPDs, set one, 37 and 43 is granted. Defendant is ordered to serve further responses to RPDs 37 and 43 within twenty (20) days. The requests are limited to information for five years prior to the date of the incident. No sanctions are requested, and none are awarded.

Hon. Michelle C. Kim

Judge of the Superior Court