Judge: Serena R. Murillo, Case: 21STCV30924, Date: 2022-08-25 Tentative Ruling
Case Number: 21STCV30924 Hearing Date: August 25, 2022 Dept: 29
TENTATIVE
Defendants
SGD Enterprises and Jose Campos Beltran’s motion for a protective order is
GRANTED in part. The motion for a protective order is granted as to Items 3, 4,
and 5 of the Requests for Production but denied as to items 1 and 2. Additionally,
the deposition is limited to only discussing
the tasks that Pontaza was requested to perform by defense counsel, and
authenticating and laying the foundation for any video or photographs taken of
Plaintiff by Pontaza.
Legal Standard
Protective Order
CCP section 2025.420(a) provides that “[b]efore . . . a deposition, any
party, any deponent, or any other affected natural person or organization may
promptly move for a protective order.” (CCP § 2025.420(a).) “The
court, for good cause shown, may make any order that justice requires to
protect any party, deponent, or other natural person or organization from
unwarranted annoyance, embarrassment, or oppression, or undue burden and
expense.” (CCP § 2025.420(b).) In fashioning a protective order, a
court has the discretion to, among other things, order “[t]hat the deposition
not be taken at all,” “[t]hat the deposition be taken only on certain specified
terms and conditions,” or “[t]hat the deponent’s testimony be taken by written,
instead of oral, examination.” (CCP § 2025.420(c)(1), (5),
(6).)
The burden of proof is on the party
seeking the protective order to show “good cause” for the order he or she
seeks. (Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th
245, 255.) A motion for a protective order “shall be accompanied by a
meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2030.090.) “A meet and
confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
presented by the motion.” (Code Civ. Proc., §
2016.040.)
““‘The state has two substantial interests in
regulating pretrial discovery. The first is to facilitate the search for truth
and promote justice. The second is to protect the legitimate privacy interests
of the litigants and third parties…The interest in truth and justice is
promoted by allowing liberal discovery of information in the possession of the
opposing party…The interest in privacy is promoted by restricting the procurement
or dissemination of information from the opposing party upon a showing of ‘good
cause.’ …The trial court is in the best position to weigh fairly the competing
needs and interests of parties affected by discovery…’ [Citation]” (Nativi
v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 317.) “A
trial court must balance the various interests in deciding ‘whether
dissemination of the documents should be restricted.’ [Citation.]” (Ibid.)
Further, even where a motion for a protective order is denied in whole or in
part, the trial court may still impose ‘terms and conditions that are just.’
(Code Civ. Proc., § 2025.420, subd. (g)…)” (Ibid.)
Discussion
Defendants move
for a protective order staying the deposition of Richard Pontaza, Defendants’
private investigator, employed by Ethos Risk Services, Inc. (“Ethos”), who
conducted sub rosa surveillance of Plaintiff. In addition to ordering that
Pontaza to appear in person for a deposition, Plaintiff requested that Pontaza
produce the following items:
“1. Any and all photographs of Plaintiff
MIGUEL JUAREZ.
2. Any and all videos of Plaintiff MIGUEL JUAREZ.
3. Any and all communications between YOU and the Law Office of John A. Hauser.
4. Any and all reports of Plaintiff MIGUEL JUAREZ.
5. Any and all Documents showing the dates YOU were observing Plaintiff or
attempting to observe Plaintiff, including calendars or schedules.”
Defendants argue that Plaintiff’s
Deposition Subpoena served on Pontaza is improper as Plaintiff is seeking
information from Defense Counsel’s private investigator, relating to work
performed in connection with this litigated matter, and such information is
protected under the attorney work product privilege.
“Surprisingly,
there is no recent authority dealing with claims of work product protection for
photos, videos, etc. prepared under an attorney's direction.” (Weil &
Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
2015) § 8:243.) However, there are federal cases, including two from the Southern
District of California, that directly or indirectly support Plaintiff’s
contention that surveillance/sub rosa footage should ultimately be
discoverable. Of these, an on-point recent analysis is found in Witman v. Knight Transportation,
Inc. (S.D.Cal., Apr. 29,
2016) 2016 WL 9503738. In that case, the court found that sub rosa/surveillance
footage constituted work product but nevertheless had to be disclosed because a
substantial need existed for the footage and the plaintiff could not obtain the
substantial equivalent. (Witman, supra, 2016
WL 9503738 at *2.) Of course, the Witman court was employing the Federal Rules
of Civil Procedure, and specifically Rule 26(b)(3) as the standard for
qualified immunity for work product. In California, our standard is Code of
Civil Procedure, section 2018.030, subdivision (b), which provides that “[t]he
work product of an attorney . . . 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.” This is a slightly different standard.
Nevertheless,
the Witman case collects helpful authorities and
analysis of this issue. Discovery of the surveillance footage was compelled
“for reasons of reviewing the materials for authenticity, facilitating possible
settlement, avoiding unnecessary interruptions at trial, and fairness in the
administration of justice. [Citations.]” (Witman, supra, at *2.) The court also noted that
it was impossible for the plaintiff to secure a substantial equivalent by
alternate means – a similar, but not identical, standard to California’s
‘unfair prejudice’ standard (Code Civ. Proc., § 2018.020, subd. (b) – because a
video records information at a particular time and place under particular
circumstances and cannot be duplicated. (Witman, supra, at *3; see also Gutshall v. New Prime, Inc. (W.D.Va. 2000) 196 F.R.D. 43, 46
[same]; see also Martin v.
Long Island RailRoad Co. (E.D.N.Y.
1974) 63 F.R.D. 53, 55 [“Since plaintiff’s past activities obviously can no
longer be filmed, the barrier of the work-product rule is lifted”].) Finally,
the Witman court noted that some other courts
resolved this issue by compelling disclosure of the surveillance footage, but
preserving its impeachment value by ordering that it not be disclosed until
after the plaintiff’s deposition. (Witman, supra, at *3; see also Daniels v. AMTRAK (S.D.N.Y. 1986) 110 F.R.D. 160,
161.)
The
most recent controlling case to squarely address the issue was Suezaki v. Superior Court (1962) 58 Cal.2d 166 (Suezaki),
which was decided before attorney work product received any statutory
protection in California. Suezaki held that a photograph does not become
privileged by the mere fact that it was taken for the purpose of litigation by
an employee of a city or corporation and transmitted to that city or
corporation’s attorney. (58 Cal. 2d at p. 176.) Suezaki also held that surveillance/sub rosa
footage is not attorney-client communication, but is attorney work product. (Id. at p. 177.) There, the court
explained that in California, “the fact that the material sought to be
discovered is the ‘work product’ of the attorney is one factor to be used by
the trial court in the exercise of its discretion in determining whether or not
discovery should be granted.” (Id. at
p. 178.) This observation remains valid even under California’s since-enacted
work product statutes, because the work product statutes are “intended to be a
restatement of existing law relating to protection of work product” and are
“not intended to expand or reduce the extent to which work product is
discoverable.” (Code Civ. Proc., § 2018.040.) The following principle
from Suezakiremains good
law and is relevant: “The trial court must consider all the relevant factors
involved and then determine whether, under all the circumstances, discovery
would or would not be fair and equitable.” (58 Cal. 2d at p. 178.) The Suezaki court sent the question back to the
lower court to decide whether the surveillance footage was discoverable under
this standard. The court suggested, without deciding, that it was. (Id. at p. 179 [“While it would appear that
inspection of the films should be permitted, the discretion granted by the
statute is the discretion of the trial court, not of this court”].)
Requests for Production Items 1 and 2
Here, the court accepts that the items 1 and 2
consist of qualified work product. (Suezaki, supra, at p. 1777.) However, qualified work product
should be disclosed if retention would “unfairly prejudice” the party
seeking discovery in preparation of a claim or defense, or “result in an
injustice.” (Code Civ. Proc., § 2018.030(b).) A party seeking disclosure
has the burden to establish that withholding disclosure would unfairly
prejudice the party in preparing its claim or its defense. (Coito v.
Sup. Ct. (2012) 54 Cal.4th 480, 495.) Here, Plaintiff has not filed
an opposition and thus, has not met his burden to show unfair prejudice if the
evidence is retained.
Alternatively,
the purpose of protecting attorney work product is to “preserve the rights of
attorneys to prepare cases for trial with that degree of privacy necessary to
encourage them to prepare their cases thoroughly and to investigate not only
the favorable, but unfavorable aspects of those cases and prevent attorneys
from taking undue advantage of their adversary’s industry and efforts.”
(Code Civ. Proc., § 2018.030(b).)
The court
resolves the issue by compelling disclosure of the surveillance footage in
items 1 and 2 but preserves its impeachment value by ordering that it not be disclosed until
after the plaintiff’s deposition. Thus, Plaintiff cannot take advantage
of Defendants’ industry and preparation if they have prepared surveillance
information, and Plaintiff can adequately prepare for trial.
Requests for Production Items 3, 4, and 5
With regard to items 3, 4, and 5 the court
finds there is good cause to preclude this information. Communications
between the attorney and the investigator may encompass matters that are truly
protected by privilege. Further, an investigator’s report prepared regarding
surveillance of Plaintiff may reveal the attorney’s impressions. The same
is true regarding the investigator’s calendar or schedule, which may include
notes relating to the attorney’s impressions.
Moreover, Plaintiff has not demonstrated any facts suggesting unfair
prejudice or how a failure to disclose this report would result in an injustice
when arguably, Plaintiff would have the same opportunity to review the
surveillance video in question.
Deposition Testimony
With the above in mind, the court also will limit the
scope of the questioning at the deposition to only
discussing the tasks that Pontaza was requested to perform by defense counsel, and
authenticating and laying the foundation for any video or photographs taken of
Plaintiff by Pontaza.
Conclusion
Accordingly, Defendants’ motion for a protective order is GRANTED in
part. The motion for a protective order is granted as to Items 3, 4, and 5 but
denied as to items 1 and 2. The deposition is limited to only discussing the tasks that Pontaza was
requested to perform by defense counsel, and authenticating and laying the
foundation for any video or photographs taken of Plaintiff by Pontaza.
Moving party is directed to
give notice.