TENTATIVE

Defendant’s motion to quash deposition subpoena is GRANTED in part and DENIED in part. The motion to quash the deposition subpoena is GRANTED as to portions of the subpoena that seeks retention documents, call logs, memorandums, field notes, invoices, investigation reports, correspondence, emails, text message and all other items. The motion to quash the deposition subpoena is DENIED as to the portions of the subpoena that seeks photographs, audio recordings or videos of Plaintiff, but the Court orders that the photos, audio, and surveillance footage are not disclosed until after Plaintiff’s deposition.

Legal Standard

When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored information, or other things before a court or at the taking of a deposition, the court, upon motion “reasonably made” by the party, the witness, or any consumer whose personal records are sought, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms and conditions as the court may specify.  (See Code Civ. Proc. § 1987.1; Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206.) 

There is no requirement that the motion contain a meet-and-confer declaration demonstrating a good-faith attempt at informal resolution. (See id.)

The court can make an order quashing or modifying a subpoena as necessary to protect a person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1, subd. (a).)

Discussion

Defendant moves to quash a subpoena Plaintiff issued to Defendant’s private investigator, Merge Investigations, Inc., arguing the subpoena is invasive of the attorney work product privilege, is overbroad, vague and ambiguous, and seeks impeachment evidence which is not required to be disclosed pursuant to this court’s seventh amended standing order.

Plaintiff’s subpoena seeks the following:

“Any and all document, items and/or tangible things related to the surveillance/investigation conducted by Merge Investigations, Inc., of plaintiff Mansour Ghaffari, at all times, including without limitation July 27, 2021, July 28, 2021, July 30, 2021, and August 24, 2021, including but not limited to, retention documents, invoices, time logs, call logs, memorandums, field notes, still photographs, video footage, audio recordings, investigation reports, correspondence, emails, text message and all other itmes (sic) in your possession relating to Mr. Mansour Ghaffari.”

“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. (Suezaki v. Superior Court, 58 Cal. 2d at 176.)  Suezaki also held that surveillance/sub rosa footage is not attorney-client communication, but is attorney work product. (Id. at 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 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 Suezaki remains 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.” (Id. at 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 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”].)

Surveillance Photos, Videos, and Audio Recordings of Plaintiff

Here, the court accepts that the footage consists of qualified work product.  (Suezaki, supra, at 177.)  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 argues the surveillance footage is sought to preclude any ambush or unfair surprise by the defense.

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).)  Defendant argues that Plaintiff has not made a persuasive showing of unfair prejudice or injustice required to overcome a qualified work product protection because Plaintiff has not yet been deposed. Defendant argues it would be unfairly prejudiced if the instant subpoena is not quashed, as Plaintiff would have the opportunity to review the surveillance and tailor his deposition testimony to confirm to the evidence.

The court resolves the issue by compelling disclosure of the surveillance photos, audio, and video of Plaintiff but preserves its impeachment value by ordering that it not be disclosed until after Plaintiff’s deposition.  Thus, Plaintiff cannot take advantage of Defendants’ industry and preparation, and Plaintiff can adequately prepare for trial.  As such, the motion to quash the subpoena is denied in part. It is denied as to the portion of the subpoena seeking surveillance photos, audios, and videos. However, the Court orders that the photos and surveillance footage are not disclosed until after Plaintiff’s deposition.

Retention Documents, Call Logs, Memorandum, Field Notes, Invoices, Correspondence, Emails, Text Messages and All Other Items

With regard to retention documents, call logs, memorandums, field notes, investigation reports, correspondence, emails, text message and all other items, the court finds there is good cause to quash the subpoena seeking this information.  Communications between the attorney and the investigator may encompass matters that are truly protected by privilege. Further, an investigator’s report, notes, audio recordings, or other documents prepared regarding surveillance of Plaintiff may reveal the attorney’s impressions. The same is true regarding the investigator’s call logs, time logs or invoices, 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 these items would result in an injustice when arguably, Plaintiff would have the same opportunity to review the surveillance video in question. Thus, the motion to quash the deposition subpoena is granted as to the portion of the subpoena that seeks the above items.

Conclusion

Accordingly, Defendant’s motion to quash deposition subpoena is GRANTED in part and DENIED in part. The motion to quash the deposition subpoena is GRANTED as to portions of the subpoena that seeks retention documents, call logs, memorandums, field notes, invoices, investigation reports, correspondence, emails, text message and all other items. The motion to quash the deposition subpoena is DENIED as to the portions of the subpoena that seeks photographs, audio recordings or videos of Plaintiff, but the Court orders that the photos, audio, and surveillance footage are not disclosed until after Plaintiff’s deposition.

Moving party is ordered to give notice.