Judge: Nathan Vu, Case: 30-2022-01246391, Date: 2022-10-31 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motions to Compel
Plaintiff Erik Jin’s motion to compel further responses to form interrogatories (set one) is GRANTED.
Plaintiff Erik Jin’s motion to compel further responses to requests for production (set one) is DENIED.
Defendant Margaret McIntosh is ORDERED to serve full and complete responses to form interrogatory numbers 13.1 and 13.2 within 15 days of service of the notice of ruling.
Plaintiff Erik Jin moves to compel further responses to form interrogatory numbers 13.1 and 13.2 and requests for the production of documents numbers 7 and 16.
Compelling Further Responses to Interrogatories and Requests for Production
A party may move for an order compelling further responses to interrogatories on the grounds that: (1) An answer to a particular interrogatory is evasive or incomplete; (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate; or (3) an objection to an interrogatory is without merit or too general. (Civil Proc. Code, § 2030.300, subd. (a).)
A party also may move for an order compelling further responses to requests for the production of documents on the grounds that: (1) a statement of compliance with the request is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. (Civil Proc. Code, § 2031.310, subd. (a).)
Here, Plaintiff moves to compel on the basis that Defendant Margaret McIntosh’s objections are without merit, particularly Defendant’s assertion that the attorney work product doctrine bars form interrogatory numbers 13.1 and 13.2 and requests for the production of documents numbers 7 and 16.
Attorney Work Product Doctrine
“In California, an attorney's work product is protected by statute.” (Coito v. Superior Ct. (2012) 54 Cal.4th 480, 485.) Civil Procedure section 2018.030(a) provides absolute protection from disclosure for “[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories.” (Civil Proc. Code, § 2018.030, subd. (a).) Such materials are “not discoverable under any circumstances.” (Id.)
Section 2018.030(b) provides a qualified protection from disclosure for all other attorney materials: “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.” (Civil Proc. Code, § 2018.030, subd. (b).)
As explained by the Court of Appeal, the law “recognizes what is termed an ‘absolute’ privilege as to writings containing the attorney's impressions, opinions, legal research and theories and recognizes a ‘qualified’ privilege as to all written materials and oral information not reflecting the attorney's legal thoughts.”) (Lasky, Haas, Cohler & Munter v. Superior Court (1985) 172 Cal.App.3d 264, 271, italics original; see Fellows v. Superior Ct. (1980) 108 Cal.App.3d 55, 68.)
“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.” (Coito v. Superior Ct., supra, 54 Cal.4th at p. 488.)
The purpose of the privilege is twofold: to “[p]reserve 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” and to “[p]revent attorneys from taking undue advantage of their adversary's industry and efforts.” (Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 468.)
Plaintiff relies upon Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166. There, the Supreme Court held that surveillance video of a plaintiff in a personal injury action that the attorney had taken solely as part of trial preparation and which was intended to be confidential, fell within the qualified work product protection and were not subject to discovery as a matter of law. (Id. at pp. 177-178.) Rather, the Supreme Court remanded the case to the trial court to exercise its discretion in determining whether or not such material should be produced. (Id. at pp. 178-79.)
The Suezaki Court explained as follows:
[U]nder the California rule, the trial court may consider the facts on which a claim of ‘work product’ is predicated, and exercise the discretion granted by the provisions of the discovery statutes in order to prevent abuse and to reach a determination consistent with equity and justice. This simply means that in 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 … While it would appear that inspection of the films should be permitted, the discretion granted by the statute is the discretion of the trial court, not of this court. Therefore, the matter should be referred back to the trial court to permit it to exercise its discretion as conferred by statute, and to permit it to decide whether on the showing that has or may be made it should deny, grant, or conditionally grant the order.
(Id. at pp. 178-179.)
Defendant relies upon Coito v. Superior Ct., supra, 54 Cal.4th 480, which involved recordings of witness interviews and information about the identity of the witnesses from whom defense counsel had obtained statements. (Id. at p. 485.) The Supreme Court held that the recordings and information might be subject to absolute protection if the objecting party “can make a preliminary or foundational showing that [disclosure] would reveal the attorney's tactics, impressions, or evaluation of the case.” (Id. at pp. 486 & 502.) The Supreme Court reasoned the lists could in some instances reveal an attorney’s impressions of the case, for example, the attorney's selection of certain witnesses from a larger pool, but it would not “always or even often be the case that a witness list . . . reflects counsel's premeditated and carefully considered selectivity.” (Id. at p. 502.)
The Coito Court also held that the recordings were entitled to at least qualified protection and the information would as well, if disclosure of the information “would result in opposing counsel taking undue advantage of the attorney's industry or efforts.” (Id. at pp. 486 & 502.) It was for the trial court to “determine . . . whether absolute or qualified work product protection applies to the material in dispute” on a case-by-case basis. (Id. at p. 502.)
In a more recent, Curtis v. Superior Court (2021) 62 Cal.App.5th 453, the Court of Appeal held that the identity of a non-testifying expert is not entitled to absolute work product protection because it is not “a writing” that would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories.” (Id. at p. 459.) However, the Court held that if an attorney can show that disclosure of the identity of a nontestifying expert would result in opposing counsel taking undue advantage of the attorney's industry or efforts or impair the attorney's ability to prepare and investigate a case, the identity may be entitled to protection under the qualified work product privilege.” (Ibid.) In that case, the identity is only discoverable if the party seeking discovery can establish 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.” (Ibid.)
As these cases establish, the court must determine whether surveillance media and information regarding surveillance is protected by the attorney work product doctrine based on the specific circumstances of each case. In making that determination, the court considers the following: (1) whether disclosure will disclose counsel’s impressions, conclusions, opinions, or legal research or theories (privilege holder’s burden), (2) whether or not disclosure will result in an unfair advantage (privilege holder’s burden), and (3) whether or not denial of discovery will unfairly prejudice the party seeking discovery (propounding party’s burden).
As to the form interrogatories, they do not require defense counsel to disclose the actual substance of any surveillance. Rather the form interrogatories ask Defendant whether or not any surveillance has occurred, and if yes, to disclose information about the surveillance.
Under Coito v. Superior Ct., such information is not protected by the attorney work product doctrine as a matter of law; rather, the objecting party must show “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).” (Coito v. Superior Ct., supra, 54 Cal.4th at p. 486.)
Here, Defendant fails to make the showing required for absolute protection or qualified protection as to the form interrogatories. Defendant asserts in conclusory and general terms that disclosure would reveal defense counsel’s tactics, impressions, or evaluation of the case and would result in Plaintiff taking undue advantage of the defense counsel’s industry or efforts, but provides no specific explanation.
The court is sympathetic to Defendant’s concerns that divulging details of the surveillance may risk disclosing information that Defendant wishes to protect. However, Defendant must nonetheless provide some explanation other than bare conclusions and generalities that could be applied to every case involving surveillance.
Further, the few facts that are known show that the information requested in the form interrogatories is discoverable. For example, the surveillance in question appears to be of Plaintiff and focuses on Plaintiff’s activities and physical condition. This should hardly be a surprise in a case in which Plaintiff asserts personal injury claims. Divulging that defense counsel has had Plaintiff surveilled to determine Plaintiff’s activities and physical condition does not constitute an unfair advantage to Plaintiff or reveal counsel’s tactics, impressions, or evaluation of the case that are not already known to all.
Defendant has not met her burden to show that disclosure of the information requested in the form interrogatories would reveal defense counsel’s tactics, impressions, or evaluation of the case, or would result in Plaintiff taking undue advantage of the defense counsel’s industry or efforts. The information requested by the form interrogatories is therefore discoverable.
As to surveillance media itself, for the reasons discussed above, Defendant has not shown that such media would reveal Defendant’s counsel’s tactics, impressions, or evaluation of the case. The surveillance media is thus not subject to absolute protection.
However, the surveillance media is protected by a qualified privilege as a matter of law. (Coito v. Superior Ct., supra, 54 Cal.4th at p. 486.)
The burden then falls upon Plaintiff to show “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.” (Civil Proc. Code, § 2018.030, subd. (b).)
Plaintiff argues that he needs the surveillance media in order to avoid surprise and trial by ambush. Plaintiff asserts, for example, that he needs the surveillance media “to prepare to examine the person who took the video and/or photographs” and “to review the materials for authenticity.” Plaintiff is concerned that the Defendant has taken 10 hours of surveillance video and will only use 10 minutes of the video at trial.
However, this is neither true nor necessary at this point. Because the court will grant the motion to compel as to the form interrogatories, Plaintiff will be able to learn the identity of the person who took the videos and depose that person if he wishes to do so. Further, there is no indication that Defendant will use the surveillance videos at trial and Defendant will have to disclose them unless she uses them for impeachment. Even then, to the extent that the video is of Plaintiff, Plaintiff will have knowledge of his own activities and physical condition and can testify as to what is shown on the video. Thus, there will be no undue prejudice or injustice visited upon Plaintiff by denying discovery of the surveillance media.
Other Objections
Defendant asserted other objections to Plaintiff’s form interrogatories and requests for production. In his motions, Plaintiff explained why these objections should be overruled. In her oppositions, Defendant has not responded why the objections (other than with respect to the attorney work product doctrine). The court therefore overrules the other objections.
Plaintiff shall give notice of this ruling.