Judge Ronald F. Frank, Case 19STCV04924 2023-04-25 Tentative Ruling

Judge: Ronald F. Frank, Case: 19STCV04924, Date: 2023-04-25 Tentative Ruling

Case Number: 19STCV04924 Hearing Date: April 25, 2023 Dept: 8

Tentative Ruling

HEARING DATE: April 25, 2023¿

CASE NUMBER: 19STCV04924

CASE NAME: Jeffery Cook v. Nautilus, Inc., et al

MOVING PARTY: Plaintiff, Jeffery Cook

RESPONDING PARTY: Defendant, Nautilus

TRIAL DATE: None Set.

MOTION:¿ (1) Motion to Quash

Tentative Rulings: (1) Motion to Quash is DENIED unless Plaintiff convinces the Court that the balance of discoverability (in a case where Plaintiff has not even made an offer of proof as to less intrusive means of enabling the defense to secure the requested information) versus privacy interests tips in his favor

I. BACKGROUND¿

On February 14, 2019, Plaintiff filed this action against Defendants. Plaintiff’s action is a products liability case in which he alleges he suffered a traumatic brain injury resulting in loss of income and permanent loss of earning capacity. Plaintiff claims substantial financial impact from the injury on the exercise equipment but has not located corroboration for his assertion of a lucrative career as a professional private security guard. Defendant served a document subpoena on Wells Fargo for several years’ worth of historical account information, based on discovery form the State EDD that the Wells Fargo account was an active one when the EDD sent benefit payments to Plaintiff. Nautilus asserts that while recognizing the right of financial privacy in bank accounts, it needs to discovery evidence of plaintiff’s earning history to provide facts for the defense economist expert to use in formulating opinions on past and future economic losses.

On September 14, 2022, Plaintiff filed a Motion to Quash Defendant’s Subpoena to Wells Fargo Bank and National Association. On October 24, 2022, Defendant, Nautilus, Inc. filed an opposition brief. The Court conducted a hearing on March 30 and continued the hearing to April 25 after giving both sides input as to parameters for the Court’s exercise of discretion bearing on the balancing of discoverable need for the information versus plaintiff’s privacy interests.

In its March 30 tentative Ruling, the Court noted that while the SDT to Wells Fargo may be premature, the hour is getting late for Plaintiff to give verified discovery responses that enable the Defendant to examine the bona fides of the loss of earnings and loss of earning capacity claims. The Court indicated it will require an offer of proof as to tracing the income stream, e.g., what person or entities paid Plaintiff to be an executive Protection Agent, what form the compensation took (e.g., cash, barter, wire transfers, checks, money orders, etc., and where the money was deposited. If there is no offer of proof to permit Defendant to follow such tracing, the Court would be inclined to deny the Motion to Quash and permit the SDT to go forward (with some restrictions on its scope) because of the EDD’s identification of the subject Wells Fargo account as a financial institution where money payable to Plaintiff was deposited during the relevant time.

The parties have not filed any follow-up briefs or declarations bearing on the prior tentative ruling. Plaintiff has not made an offer of proof as to what other information would be available to the defense expert to lay a foundation for economist opinions on loss of earnings or loss of future earnings. Plaintiff should come to the hearing prepared to explain why no follow-up papers have been filed, and to educate the Court further on the plaintiff’s position.