Judge Salvatore Sirna, Case Number: 22PSCV01739, Date: 2023-06-29 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV01739, Date: 2023-06-29 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV01739 Hearing Date: December 7, 2023 Dept: G

Defendant Ford Motor Company’s Motion for Entry of Protective Order to Govern Production of Confidential Materials

Respondent: Plaintiffs Quanyi Wang and Ruoxuan Li

TENTATIVE RULING

Defendant Ford Motor Company’s Motion for Entry of a Protective Order to Govern Production of Confidential Materials is GRANTED with modifications as delineated below.

BACKGROUND

This is a lemon law action. In November 2021, Plaintiffs Quanyi Wang and Ruoxuan Li entered into a warranty contract with Defendant Ford Motor Company (Ford) by purchasing a 2021 Ford Explorer from Defendant Hemborg Ford. Subsequently, Wang and Li’s vehicle manifested engine defects.

On November 8, 2022, Wang and Li filed a complaint against Ford, Hemborg Ford, and Does 1-10, alleging the following causes of action: (1) breach of express warranty, (2) breach of implied warranty, and (3) negligent repair. On April 6, 2023, the court sustained a demurrer to the Complaint by Hemborg Ford with leave to amend.

On April 26, 2023, Wang and Li filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On June 29, the court sustained Hemborg Ford’s demurrer to the FAC without leave to amend.

On August 28, 2023, Ford filed the present motion. A hearing on Ford’s motion is set for December 7 and a post-mediation status conference/trial setting conference is also set for May 15, 2024.

ANALYSIS

Ford moves for a protective order to protect the confidentiality of discovery responses. For the following reasons, the court GRANTS Ford’s motion with modifications.

Legal Standard

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., §§ 2030.090, subd. (b) [interrogatories], 2031.060, subd. (b) [production of documents], 2033.080, subd. (b) [requests for admission].) Such orders may include excusing the party from answering the discovery requests at issue, limiting the number of discovery requests, or extending the time to respond to discovery requests. (Code Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), 2033.080, subd. (b).) The court has considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Discussion

As an initial matter, Wang and Li argue Ford’s motion must be denied on the grounds that it is untimely. In response to a discovery demand, “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, subd. (a).) The timeliness and promptness of a protective order request “turns on the facts.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.) Wang and Li argue they served discovery on Ford in March 2023 and that Ford failed to file the present motion until August 2023. But the supporting declaration of Wang and Li’s counsel fails to provide any support for this claim. Instead, Wang and Li’s counsel provides a vague and cursory description of meet-and-confer efforts. (Powell Decl., ¶ 2.) In contrast, the declaration of Ford’s counsel details meet-and-confer efforts that began in January 2022 and continued up until August 2023. (Biemann Decl., ¶ 3-6.) Thus, the court finds Ford’s motion is timely, and now considers the motion on the merits.

In this case, the parties do not dispute that Ford’s discovery responses include confidential information that should be protected from disclosure pursuant to a protective order. (Motion, p. 1:3-6; Opp., 1:3-9.) Instead, while Wang and Li have agreed to the use of a LASC model protective order, they do not agree with Ford’s proposed modifications to the model protective order, including (1) Ford’s definition of “affiliated attorneys,” (2) Ford’s document access requirements, (3) Ford’s prohibition on sharing documents with mock jurors, (4) Ford’s prohibition on the posting or sale of discovery documents, and (5) Ford’s requirements for the return or destruction of documents at the conclusion of the case.

The court addresses each proposed modification below:

Definition of “Affiliated Attorneys”

First, Ford proposes changes to the definition of “affiliated attorneys” in paragraph 7(b) of the model protective order. In the model protective order, access to confidential records is limited to “Attorneys of record in the Proceedings and their affiliated attorneys, paralegals, clerical and secretarial staff employed by such attorneys who are actively involved in the Proceedings and are not employees of any Party.” Ford proposes qualifying “affiliated attorneys” as “affiliated attorneys in the same firm.” (Biemann Decl., Ex. I, ¶ 7(b).)

Ford argues this modification is necessary to prevent Ford’s documents from being shared with multiple attorneys who have no responsibility to protect Ford’s documents. But such an argument ignores the actual wording of the model protective order. The model protective order does not allow Ford’s documents to be shared with any broadly affiliated attorney. Rather, as quoted above, it limits disclosure to “affiliated attorneys . . . employed by such attorneys who are actively involved in the Proceedings.”

The court finds there is no good cause set forth for preventing the disclosure of documents to attorneys who Wang and Li’s counsel employ outside of their firm. Accordingly, the court declines to issue a protective order with this modification.

Document Access Requirements

Second, Ford proposes an additional requirement in paragraph 7(b) that covers non-lawyer access to Ford’s documents by including language stating, “each non-lawyer given access to Confidential Materials shall be . . . required to execute Exhibit A agreeing to be bound by the terms of this protective order prior to disclosure.” (Biemann Decl., Ex. I, ¶ 7(b).) Ford contends this modification is required because each non-lawyer must acknowledge and agree to be bound by the protective order. Here, Ford fails to provide any legal authority for this position and the non-lawyers’ consent is not required for the court’s order to have legal effect and to bind them. Accordingly, the court declines to issue a protective order with this modification.

Ford also proposes (1) allowing access to videographers and providers of litigation support services, (2) allowing access to outside experts or non-attorney consultants who sign Exhibit A, and (3) prohibiting access to experts or consultants who are currently employed by a competitor of Ford. Because Wang and Li do not address these proposed changes in their opposition, the court finds they have waived any challenge to them and GRANTS Ford’s request to issue a protective order with these modifications.

Prohibition on Sharing Documents with Mock Jurors

Third, Ford proposes deleting paragraph 7(g) from the model protective order which allows mock jury participants to access Ford’s documents provided they sign Exhibit A. Ford maintains this modification is required because mock jurors are virtual strangers and Ford will have no way to confirm the accuracy of their contact information if an issue arises.

The court finds this argument is without merit since it could easily apply to any of the other parties with access to Ford’s documents. Accordingly, the court declines to issue a protective order with this modification.

Prohibition on Posting or Sale of Documents

Fourth, Ford proposes modifying paragraph 8 of the model protective order to prevent the posting of the documents “on any website or internet accessible document repository that is accessible to anyone other than the persons noted in paragraph 7 above.” (Biemann Decl., Ex. I, ¶ 8(a).) Ford also proposes language that prohibits persons in paragraph 7 from selling, advertising, or publicizing Ford’s confidential documents. (Biemann Decl., Ex. I, ¶ 8(a).)

Here, Ford fails to demonstrate why this additional language is necessary. The proposed model order already states that Wang and Li shall only permit access to the persons designated in paragraph 7. (Biemann Decl., Ex. I, ¶ 7.) And it states Ford’s documents shall only be used “for the purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any business or other purpose whatsoever.” (Biemann Decl., Ex. I, ¶ 8.)

The court finds there is no good cause for the additional language which simply restates the protective order’s requirements and, therefore, the court declines to issue a protective order with this modification.

Document Disposal Requirements

Fifth and last, Ford proposes modifying paragraph 21 of the model protective order to require the return or destruction of all confidential materials and documents within thirty (30) days after settlement or termination of the proceeding. (Biemann Decl., Ex. I, ¶ 21.) Ford’s proposed modification also removes language from the model protective order which allows Wang and Li to retain their work product. (Biemann Decl., Ex. I, ¶ 21.) While Wang and Li do not appear to challenge the requirements to return or destroy confidential documents, they do oppose the removal of language involving work product. While Ford argues allowing Wang and Li to keep work product with confidential information would afford Ford with no ability to track their location and use over time, the court finds this argument is unavailing as Wang and Li still will be under the continuing obligation to protect the confidentiality of such information pursuant to the stipulation.

Accordingly, the court GRANTS Ford’s request to issue a protective order these modifications with the exception of its omission of language allowing Wang and Li to keep their work product.

CONCLUSION

Based on the foregoing, Ford’s motion for a protective order is GRANTED with the following modifications.

In paragraph 7(b) of the proposed protective order, Ford’s inclusion of “in the same firm” and “required to execute Exhibit A agreeing to be found by the terms of this protective order prior to disclosure” shall be stricken.

In paragraph 7(g) of the proposed protective order, the following language from the model protective order shall be included:

“mock jury participants, provided, however, that prior to the Disclosure of Confidential Materials to any such mock jury participant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain that such person is bound to follow the terms of such Order, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A.”

In paragraph 8 of the proposed protective order, Ford’s inclusion of subdivision (a) and subdivision (b) shall be stricken.

In paragraph 21 of the proposed protective order, the following language from the model protective order shall be included where indicated in italics:

“Within thirty (30) days after the settlement or other termination of the Proceeding, the undersigned Parties shall have thirty (30) days to either (a) promptly return to counsel for each Designating Party all Confidential Materials and all copies thereof, including any documents which any such Party disclosed to any Qualified Person, or (b) securely destroy the Protected Documents, including any documents which any such Party disclosed to any Qualified Person and certify in writing such destruction to the Designating Party, except that counsel for each Party may maintain in its files, in continuing compliance with the terms of this Stipulation and Protective Order, all work product, and one copy of each pleading filed with the Court.”