Judge: Richard Y. Lee, Case: 30-2021-01223747, Date: 2022-08-11 Tentative Ruling

Defendant Super Center Concepts, Inc. (also erroneously sued as Superior Grocers) (“Defendant”) moves for the Court to issue a protective order regarding Plaintiff Maria Isabel Aguilar’s Requests for Production of Documents, Nos. 23-25, 29, and 31, and order that the documents need not be produced pursuant to Code of Civil Procedure section 2031.060(b)(1).

Defendant contends that Plaintiff’s Requests for Production of Documents, Nos. 23-25, 29, and 31 seeks to obtain information regarding Defendant’s policies and procedures for investigating injuries, taking photographs, reporting an incident, and retaining video of an injury incident; that the instant dispute involves a one-page document describing the internal protocol regarding the handling of injury incidents that was created by Defendant’s general liability department; that this internal document is protected by the attorney-client privilege and attorney work-product privilege as it was prepared by Defendant’s legal department and constitutes legal advice on handling an incident that may give rise to litigation; that Defendant agreed to produce a privilege log identifying this documents; that to the extent this internal document is only entitled to qualified protection, Plaintiff is still not entitled to the document; and that less intrusive means exist to obtain the information sought. Defendant also provides that the parties met and conferred prior to the filing of this motion and that Defendant has brought this motion promptly.

Code of Civil Procedure section 2031.060(a) provides that when a request for production of documents has been demanded, “the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (Code Civ. Proc. § 2031.060(a).) The motion must be accompanied by a meet and confer declaration under Section 2016.040. (Ibid.)

Code of Civil Procedure section 2031.060(b) provides, “[t]he court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” The protective order may provide, among other things, that all or some of the items or categories of items in the demand need not be produced or made available, that the time to respond to the demands be extended, that inspection be made only on specified terms and conditions. (Code Civ. Proc. § 2031.060(b).) 

A party seeking a protective order bears the burden of showing good cause for issuance of the order by a preponderance of the evidence. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317-318; Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) 

Here, the declaration of Defendant’s counsel, Brianna Z. Andrade, indicates that Plaintiff propounded Requests for Production of Documents, Set One on January 14, 2022; that from April 9, 2022, and May 6, 2022, counsel for the parties met and conferred in writing and by telephone; and that on May 6, 2022, Defendant served supplemental responses to Plaintiff’s Requests for Production of Documents, Set One, providing that Defendant will provide a privilege and protective order in response to certain requests, including the requests at issue in the motion. (Declaration of Brianna Z. Andrade, ¶¶ 4-8; Exs. 1-4.) The instant motion was filed on May 11, 2022. The declaration of Defendant’s counsel does not mention any attempts at an informal resolution concerning the production of the internal document at issue in the motion after serving supplemental responses on May 6, 2022. However, Defendant’s counsel states that during the telephonic meet and confer with Plaintiff’s counsel on the morning of May 6, 2022, “Plaintiff did not agree to any alternative resolution other than production of the document Defendant contends is protected by attorney-client and work-product privileges.” (Declaration of Brianna Z. Andrade, ¶ 8.)

In addition, as Plaintiff first served a meet and confer letter concerning the requests at issue on April 9, 2022, and the instant motion was filed on May 11, 2022, Defendant promptly brought the instant motion.

The supplemental responses to Requests for Production of Documents, Nos. 23-25, 29, and 31 asserts that the requests seek information protected by the attorney-client and attorney work-product doctrines. (Ex. 1 to Declaration of Brianna Z. Andrade.) Defendant does not specify which entry on the privilege log that was served on May 6, 2022, is at issue, but it appears to the Court that the relevant entry is the second document which indicates that the internal document was revised in August 2019, that it was created by Defendant, and that Defendant received the document. The privileged log describes the document as “Superior Grocers Accident/Incident Report—Customer Incident Protocol,” and provides that it is withheld on the basis of “attorney work product privilege.”

When a responding party asserts claims of privilege or attorney work product protection, the responding party must provide sufficient factual information to enable the parties and the court to evaluate the merits of a claim, including, if necessary, a privilege log. (Code Civ. Proc. § 2031.240(c)(1); Riddell, Inc. v. Superior Court (2017) 14 Cal.App.5th 755, 772.)

In asserting the attorney-client privilege, “[t]he party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) The attorney-client privilege generally allows the client “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privileged is claimed by:  (a) The holder of the privilege; (b) A person who is authorized to claim the privilege by the holder of the privilege; or (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure. (Evid. Code § 954(a)-(c).) The holder of the privilege is the client. (Evid. Code § 953(a).)

As to a claim of attorney work product, Code of Civil Procedure section 2018.030 provides for two levels of protection. “A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Code Civ. Proc. § 2018.030(a).) “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.”  (Code Civ. Proc. § 2018.030(b).) “The protection afforded by the privilege is not limited to writings created by a lawyer in anticipation of a lawsuit. It applies as well to writings prepared by an attorney while acting in a nonlitigation capacity. [Citation.]” (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 833.)

“Whether specific material is protected work product must be resolved on a case-by-case basis. [Citation.] ‘In camera inspection is the proper procedure to evaluate the applicability of the [attorney] work product doctrine to specific documents, and categorize whether each document should be given qualified or absolute protection.’ [Citation.]” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993.) “The person claiming protection under the attorney work product doctrine bears the burden of proving the preliminary facts to show the doctrine applies. [Citation.]” (Ibid.)

Here, despite Defendant’s assertions that it seeks to withhold an internal document that is a one-page document describing the internal protocol regarding the handling of injury incidents that was created by Defendant’s general liability/legal department, Defendant provides no evidence in support of any of these contentions.  There is insufficient factual information to enable the Court to evaluate the merits of the claim of attorney-client privilege or work-product privilege. The Court also notes that the “Author” of the document is not identified as Defendant’s general liability or legal department, but merely as “Super Center Concepts, Inc., DBA Superior Grocers.” (Ex. 1 to Declaration of Brianna Z. Andrade.)

As a result, Defendant has not met its burden of proving the preliminary facts to show that either privilege applies and fails to present good cause for ordering that the internal document need not be produced by a preponderance of the evidence.

Based on the foregoing, the Court DENIES, without prejudice, Defendant’s motion for protective order.

Defendant to give notice.