Judge Richard S. Whitney, Case 37-2021-00050279-CU-BC-CTL 2024-01-05 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2021-00050279-CU-BC-CTL, Date: 2024-01-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00050279-CU-BC-CTL FOR PURPOSE LAW GROUP VS TOVELLA DOWLING PC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

PLAINTIFF FOR PURPOSE LAW GROUP'S MOTION TO COMPEL DEFENDANT TOVELLA DOWLING, PC TO FURTHER RESPOND TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET THREE); AND FOR IMPOSITION OF MONETARY SANCTIONS is GRANTED, in part.

Plaintiff/Cross-Defendant For Purpose Law Group, a Professional Law Corporation ('Plaintiff') seeks to compel further responses to Plaintiff's Requests for Production of Documents (Set Three) Nos. 59 and 69 from Defendant Mary Dowling ('Defendant'). Request for Production No. 59 requests All DOCUMENTS containing or reflecting the email addresses to which the 'ADVERTISING CAMPAIGNS' were sent. Request for Production No. 69 requests All DOCUMENTS containing or reflecting the email addresses to which the 'PRESS RELEASE CAMPAIGN' was sent. Defendant asserts four objections.

Defendant first asserts the requests seek confidential trade secret information. The Court agrees the requests are broadly worded to potentially include clients who were never clients of Plaintiff. 'Customer lists and related information may constitute protectable trade secrets.' (Gemini Aluminum Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263.) The UTSA defines a trade secret as information that '(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and [¶] (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.' (§ 3426.1, subd. (d), italics added.) (Id.) '[T]he burden of making a prima facie showing of the particularized need for a trade secret is on the party seeking discovery.' (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1395.) It is undisputed that the requests seek client information that goes beyond the clients at issue in Plaintiff's complaint regarding misappropriation of trade secrets. Plaintiff does not present any argument or evidence that the requests do not seek trade secret information. Defendant's objections are sustained to the extent the requests seek information as to Defendant's clients who were never Plaintiff's clients and which do fall within the definition of Plaintiff's purported trade secrets.

Second, Defendant asserts attorney-client privilege. 'Since the claim of privilege is an affirmative objection to a request for material otherwise discoverable, the burden of proving the same is on the party making that claim.' (Brotsky v. State Bar of Cal. (1962) 57 Cal.2d 287, 303.) 'If an objection is based on Calendar No.: Event ID: TENTATIVE RULINGS

3039498 62 CASE NUMBER: CASE TITLE: FOR PURPOSE LAW GROUP VS TOVELLA DOWLING PC [IMAGED] 37-2021-00050279-CU-BC-CTL a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.' (Code Civ. Proc., § 2031.240(c)(1).) 'The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material.' (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) '[U]nder the Evidence Code, the attorney-client privilege applies to confidential communications within the scope of the attorney-client relationship even if the communication does not relate to pending litigation; the privilege applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.' (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371.) ''[C]onfidential communication between client and lawyer' means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

(Evid. Code, § 952.) Defendant did not provide a privilege log. Defendant has not provided sufficient information to determine the merits of Defendant's assertions as to privilege. While Defendant mentions the communications are from an attorney, Defendant makes no mention of the communication being made in connection with advice being sought or given. To the extent Defendant was withholding any responsive requests based on privilege, Defendant was obligated to produce a privilege log. Defendant failed to do so. In sum, Defendant has not met its burden.

Defendant also cites the privacy rights of third parties, citing Hofmann Corp. v. Superior Court (1985) 172 Cal.App.3d 357. Plaintiff attempts to distinguish Hofmann based on the fact the case involved a products liability case. In the Court's opinion this distinction does not make a difference. However, Plaintiff also points to the fact that the Hofmann case did not involve a stipulated protective order, as is the case here. Plaintiff alleges that Defendant failed to follow procedures with regard to recording intake data about potential new clients and following up with them and diverting potential clients to Plaintiff.

Given these allegations, information as to potential clients of Plaintiff could be relevant. To balance the interests of the parties and the third parties, the Court finds Defendant should produce responsive documents pursuant to the 'attorney's eyes only' portion of the stipulated protective order to the extent the information concerns potential clients of Plaintiff if they did not become clients of Defendant (trade secret). This addresses Defendant's concern that the requests seek information outside the scope of Plaintiff's purported trade secret while balancing Plaintiff's interest in seeking information as to allegations beyond the trade secret misappropriation claims.

Defendant is ordered to provide further responses in accordance with the limitations discussed above within fourteen (14) calendar days. No sanctions are awarded.

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