Judge: Richard Y. Lee, Case: 30-2019-01100947, Date: 2022-09-29 Tentative Ruling

Plaintiff Susan Moore (“Plaintiff”) seeks an order compelling defense medical expert, Kyle Boone, Ph.D., ABPP_ABCN (“DR. BOONE”), to produce materials that she was required to produce pursuant to the deposition notice and the Court’s October 13, 2021 Joint Stipulation for Defense Medical Examination of Plaintiff Susan Moore and Protective Order.

Code of Civil Procedure section 2025.480(a) states: “If a deponent fails to answer any question or to produce any document, electronically stores information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

Plaintiff contends that the Defendants and their expert, DR. BOONE, agreed to produce “all of the test materials from the examination” of Plaintiff pursuant to the October 13, 2021 Joint Stipulation and Order Thereon; that Plaintiff requested in her Amended Deposition Notice and Demand for Production of Documents that DR. BOONE produce “all test materials from the examination”; that Defendants never objected to the deposition notice or the document requests; and that DR. BOONE failed to produce: (1) interview notes that she had prepared; and (2) her test questions and copies of the carbonless copies of materials which Plaintiff made actual markings on.

In Opposition, Defendant/Cross-Complainant/Cross-Defendant Evolution Landscaping, Inc. (“Defendant” or “EVOLUTION”) contends that the October 13, 2021 Joint Stipulation did not require DR. BOONE to produce her test questions or all of her test materials; that Defendants produced DR. BOONE’s interview notes to Plaintiff’s counsel on July 7, 2022 (see Ruwe Decl., Exh. B); and that there are no portions of the test materials on which Plaintiff herself marked so there are no such documents to produce.

Here, Plaintiff and Defendants entered into a Joint Stipulation to allow for the mental examination of Plaintiff and stipulated to certain matters as set forth in the Joint Stipulation. (See Dickson Decl., ¶ 4 Exh. 5.) Paragraph 17 of the Joint Stipulation states:

“At the conclusion of Dr. Boone’s testing of plaintiff, the audio recording, a copy of the raw data generated, including plaintiff’s responses, and all test results regarding plaintiff shall be promptly forwarded to plaintiff’s counsel.”

(See Exh. 5, Para. 17.)

As set forth in the Joint Stipulation, the Court finds that paragraph 17 did not require DR. BOONE to produce her “test questions” or all of her “testing materials.” The language only states that “all test results” and “a copy of the raw data generated, including plaintiff’s responses.”

The Amended Deposition Notice of DR. BOONE, however, included document requests including the following:

“Request No. 1: All DOCUMENTS and/or evidence reviewed by the expert in preparation for his deposition.

“Request No. 15: Any and all raw data generated from the deponent’s examination of plaintiff.

“Request No. 16: Any and all written test questions that plaintiff was required to answer during the deponent’s examination of plaintiff.”

(See Dickson Decl., ¶ 8, Exh. 1, Amended Notice of Taking Deposition of DR. BOONE.)

Defendants did not serve any written objections to the deposition notice. Accordingly, the Court finds that Defendants waived any objections they may have had to these document requests. (See C.C.P. section 2025.410(a) [“Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.”].)

As set forth above, Defendant stated in its Opposition that it already produced DR. BOONE’s interview notes. (See Ruwe Decl., Exh. B.) As such, the Court finds the Motion is MOOT as to the interview notes.

The Court, however, GRANTS the Motion as to the test questions used by DR. BOONE during her mental examination of Plaintiff as this category of documents was requested in the deposition notice and Defendants failed to assert any objections to the request.

The Court also finds that any concerns regarding the confidentiality of the test materials can be dealt with via the Protective Order already agreed to by the parties in the Joint Stipulation. (See Joint Stipulation, ¶¶ 18-28.) Although the Court agrees with Plaintiff that Carpenter v. Superior Court (2006) 141 Cal.App.4th 249 cited by Plaintiff is not on all-fours with this case as the issue herein is not whether or not the copyright laws prohibit the production of the testing materials, Carpenter did recognize that “the test questions and answers may be given to plaintiff's counsel or a designated psychologist, subject to a protective order strictly limiting the use and further disclosure of the material, and providing for other safeguards against access that would compromise the integrity and validity of the tests.” (Carpenter, supra, 141 Cal.App.4th at 274.)

The Court DENIES Defendant’s request that DR. BOONE be requested to produce the test questions under seal. The test questions are being produced to the parties pursuant to the Protective Order. In the event this confidential material is to be filed with the Court, the Protective Order sets forth the process for doing so and for filing a Notice of Intent to Seal. (See Paragraph 22 of Joint Stipulation.)

The Court ORDERS the production occur within the next 14-calendar days.

Moving Party is to give notice.