Judge Michelle C. Kim, Case 22STCV09412 2023-05-08 Tentative Ruling

Plaintiff Tanya Maida (“Plaintiff”) filed this action against Defendant Trader Joe’s Company, Inc. (“Defendant”) alleging a single cause of action for negligence. Plaintiff alleges she was on Defendant’s premises waiting in line to enter its store when an employee negligently allowed a metal dumpster door to violently swing open and into Plaintiff.

At this time, Defendant moves for a protective order prohibiting the deposition of Fonda Burke (“Burke”). Plaintiff opposes the motion, and Defendant filed a reply.

Defendant provides that on February 6, 2023, Plaintiff unilaterally noticed the deposition of Burke, who is the Senior Director of Risk Management and Treasury for Defendant. Defendant contends Plaintiff noticed Burke’s deposition because she signed verifications on behalf of Defendant, and that Burke has no independent knowledge concerning the facts of this case. Defendant argues that Plaintiff is seeking to harass and burden Defendant. Further, Defendant argues Burke’s position is akin to a claims adjuster and liaison between Defendant and regional defense counsel, and so she serves on the legal team that is defending this case. Defendant avers that Burke is a high-level corporate official, who is considered an apex deponent, and there are less intrusive means for Plaintiff to obtain the relevant discovery.

In opposition, Plaintiff argues that Defendant does not establish good cause for the requested protective order, and Plaintiff contends that Burke does not qualify as an apex deponent. Plaintiff asserts that Defendant’s person most knowledgeable provided deposition testimony that contradicted Defendant’s written discovery responses that were verified by Burke, so Plaintiff must be allowed to investigate the discrepancies. Plaintiff avers that Defendant’s discovery responses indicate that Burke has some personal knowledge relating to the incident. Additionally, Plaintiff argues that Burke is not an attorney and is not subject to any privileges.

In reply, Defendant asserts that its personal most knowledgeable did not witness the incident, and that it has agreed to produce its employee that witnessed the incident. Defendant further contends that verifying discovery responses does not subject Burke- an apex deponent- to deposition, and that Plaintiff fails to establish the necessity of taking Burke’s deposition.

CCP § 2025.420(a) states that “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

In this case, Defendant, through counsel, asserts that it met and conferred with Plaintiff to try resolve this dispute but was unable to do so. (Mot. Mathis Decl. ¶¶ 5-6.) The Court finds this is sufficient to satisfy CCP § 2025.420(a).

CCP § 2025.010 provides, “[a]ny party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.” (Emphasis added.)

Pursuant to CCP § 2025.420(b), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:”

(5) That the deposition be taken only on certain specified terms and conditions.

Furthermore, CCP § 2017.020(a) states “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.”

“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.)

Here, Defendant contends Plaintiff is seeking to depose Burke because she signed verifications on behalf of Defendant. Defendant argues the deposition should be precluded because Burke is privy to information protected by the attorney-client and work-product privileges. 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 the attorney-client or work product protection applies. (Mize v. Atchison, T. & S. F. ry. Co. (1975) 46 Cal.App.3d 436, 447; see also Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95 [It is the burden of the objecting party to support the applicability of a particular privilege].)

Defendant provides that Burke facilitates communications between Defendant’s counsel and Defendant’s employees, and Burke’s deposition would call for repeated objections based on privilege and other grounds. However, Defendant does not provide sufficient evidence for the Court to determine that the attorney-client privilege or work product doctrine apply such as to prohibit the entire deposition of Burke on these grounds alone. Rather, if a question is asked that invokes either protection, a proper objection can be asserted at the deposition.

Furthermore, while Defendant argues the deposition of Burke is improper because she is part of the team defending the case and depositions of opposing counsel are presumptively improper, Defendant admits that Burke is not an attorney, and Defendant does not cite any authority holding that the deposition of a claims examiner is presumptively improper for the same reasons as the deposition of as opposing counsel’s would be.[1] As the parties acknowledge, Burke is the person who signed the verifications on Defendant’s behalf and has thus inserted herself into the case.

A verification generally states the party has read the discovery requests and the responses and is familiar with their contents, and the response is true based on the person’s knowledge. (Weil & Brown, Cal. Prac. Guide: Civ Proc Before Trial (TRG 2020), § 8:1104; see also Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1349 [“two purposes to a verification: first, to ma[k]e the discovery responses admissible; second, to provide a witness who could testify concerning the sources for the discovery responses.”).] Admittedly, if the party verifying discovery responses is an entity, one of its officers or agents must sign the response under oath on behalf of the party, which Burke has done on behalf of Defendant in this case. (See e.g., CCP § 2030.250(b); accord. CCP § 2025.010.) Burke, thus, by signing the verifications to Defendant’s discovery responses has represented that she has at least some personal knowledge of the information provided therein or the sources the information was obtained from, and such information would be relevant to this matter.

Additionally, Defendant cites to Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 (“Liberty Mut.”), in arguing Plaintiff has not shown that Burke has unique or superior knowledge of discoverable information. The issue in Liberty Mut. Was “whether the head of a corporation may be deposed when there is no showing he or she had any involvement in a lawsuit against the corporation, and prior to the plaintiff's exhaustion of less intrusive means of discovery.” (Id. at 1284.) The Court concluded, “it amounts to an abuse of discretion to withhold a protective order when a plaintiff seeks to depose a corporate president, or corporate officer at the apex of the corporate hierarchy, absent a reasonable indication of the officer's personal knowledge of the case and absent exhaustion of less intrusive discovery methods.” (Id. at 1287.)

Defendant avers that Burke is the Senior Director of Risk Management & Treasury and submits Burke’s declaration providing that she has no personal knowledge of the facts surrounding this case. However, even if Burke is an “apex” deponent as Defendant asserts, Burke is still the person who verified Defendant’s discovery responses on its behalf. As analyzed above, because Burke verified Defendant’s discovery responses, Burke necessarily represented she has knowledge regarding such, and if Burke did not know what she signed, it would call the verification into question. Plaintiff did not merely notice Burke’s deposition without any connection to the instant action, or “leap-frog[ ] to the apex of the corporate hierarchy in the first instance.” (Liberty Mut. Ins. Co., 10 Cal.App.4th at 1287.)

Moreover, while Defendant argues there are less intrusive means to obtain the requested information, and the information should first be sought by written discovery, Plaintiff has already served written discovery on Defendant. Further, Plaintiff is entitled to use multiple methods to obtain relevant discovery. “One of the principal purposes of the Discovery Act … is to enable a party to obtain evidence in the control of his adversary in order to further the efficient, economical disposition of cases according to right and justice on the merits. [ ]” (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d 300, 303.)

Based on the foregoing, Defendant’s motion for a protective order prohibiting Burke’s deposition is denied. As to Plaintiff’s request for an order that Defendant produce Burke for deposition within 30 days, Plaintiff is ordered to meet and confer with Defendant and properly notice Burke’s deposition pursuant to Code.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] Even if the court applied the same logic that applies to attorneys as to Burke as a claims examiner, “an attorney may verify a response as officer or agent of a corporate party… Doing so, however, will constitute a limited waiver of the attorney-client and work product privileges, ‘during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response.’ [Citations.]” (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1351.)