Nancy Brusegaard Johnson, et al. v. Cooperative of American Physicians, Inc.

DEFENDANT COOPERATIVE OF AMERICAN PHYSICIANS, INC.’S MOTION TO QUASH PLAINTIFFS’ DEPOSITION SUBPOENA

 

MOVING PARTY: Defendant Cooperative of American Physicians, Inc.

RESPONDING PARTY(S): Plaintiffs Nancy Brusegaard Johnson, Paul Rogus, and Jorge Lira

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs Nancy Brusegaard Johnson, Paul Rogus, and Jorge Lira worked for Defendant Cooperative of American Physicians, Inc. Plaintiffs allege Defendant terminated their employment after Plaintiffs reported that a fellow employee had engaged in a scheme to steal money and product from Defendant. Plaintiffs bring causes of action for (1) violation of Labor Code section 1102.5, (2) wrongful termination in violation of public policy, and (3) defamation.

Defendant now moves to quash Plaintiffs’ deposition subpoena for production of business records served on Kinsel Forensic Accounting, LLP.

TENTATIVE RULING:

Defendant’s Motion to Quash is GRANTED IN PART AND DENIED IN PART. The third-party is ordered to turn over all records consistent with the Subpoena except where they contain attorney impressions, conclusions, or legal opinions, those items may be redacted, subject to a potential in camera review by this Court.

Plaintiffs are ordered to give notice, unless waived.

DISCUSSION:

Motion to Quash Deposition Subpoena

I. Legal Standard

A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Proc., § 1987.1.) 

II. Analysis

Defendant Cooperative of American Physicians, Inc., moves to quash the deposition subpoena served on Kinsel Forensic Accounting, LLP. 

Plaintiffs bring this action against their former employer, alleging they were unlawfully terminated after reporting the theft of another employee, Ricardo Ulloa. After learning of Ulloa’s theft, Defendant represents that it retained Kinsel Forensic Accounting, LLP, to conduct an investigation in support of Defendant’s insurance claim for damages resulting from the theft. (Shin Decl. ¶ 5.) Plaintiff now seeks to subpoena documents from Kinsel relating to the insurance claim. Defendant argues those documents are attorney work product, protected by the attorney client privilege, overbroad, and not relevant to this action.

Second, the court rejects the contention that the subpoena is overbroad or seeks irrelevant discovery. Evidence is relevant if it “ha[s] any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code § 210.)  “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (CCP § 2017.010; Davies v. Superior Court (1984) 36 Cal.3d 291, 301 [“discovery is not limited to admissible evidence”].) 

The documents sought here from Kinsel Accounting bear directly on Ulloa’s underlying theft of company property, which ultimately may have triggered Plaintiffs’ termination. The discovery is therefore relevant to the issues in this case. This conclusion is consistent with the legislature’s “very liberal and flexible standard of relevancy,” such that any “doubts as to relevance should generally be resolved in favor of permitting discovery.” (Williams, supra, 3 Cal. 5th at 542.)

Finally, Defendant argues the discovery sought is protected as attorney work product. Under Code of Civil Procedure section 2018.030(a), “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” Any other work product of an attorney “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.” (§ 2018.030(b).) “The burden of establishing that a particular matter is privileged is on the party asserting that privilege [citation].” (San Diego Professional Ass’n v. Superior Court of San Diego County (1962) 58 Cal.2d 194, 199.) Generally, the “work product” of an attorney's employees or agents is treated as the “work product” of the attorney. (See Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal. App. 3d 626, 647-648.) 

Douglas Shin, Defendant’s General Counsel, represents in his declaration that Defendant retained Kinsel Accounting to “conduct a confidential investigation in support of CAP’s insurance claim for damages resulting from Ulloa’s theft.” (Shin Decl. ¶ 5.) Shin states that the “primary purpose of Kinsel Accounting’s investigation was to assist CAP’s inhouse counsel in rendering legal advice to CAP with regard to the insurance claim CAP submitted to its insurer,” and that this investigation was “separate and independent from CAP’s internal investigation.” (Id. ¶ 6.) Shin further represents that “[a]ll documents and communications exchanged with Kinsel Accounting were transmitted through, or at the direction of, [Shin] as CAP’s in-house counsel.” (Id. ¶ 5.)

Here, to the extent these documents might include in house counsel’s "impressions, conclusions, or legal opinions," they are privileged and not subject to disclosure, per the attorney work product doctrine. 

Considering the case and totality of the circumstances, the court concludes that denial of the discovery would deny Plaintiffs the opportunity to discover documents highly relevant to their claims. Thus, denial of the discovery sought risks unfair prejudice to Plaintiffs.
Therefore, where not protected by the work product privilege, the documents relating to the Kinsel investigation are discoverable. 

Accordingly, Defendant’s Motion to Quash is GRANTED IN PART AND DENIED IN PART. The third-party is ordered to turn over all records consistent with the Subpoena except where they contain attorney impressions, conclusions, or legal opinions, those items may be redacted, subject to a potential in camera review by this Court.

III. Sanctions

In making an order pursuant to California Code of Civil Procedure section 1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

The Court declines to award expenses as the motion was not made or opposed in bad faith or without substantial justification.

IT IS SO ORDERED.

Dated:   April 04, 2024 ___________________________________