Judge Steven A. Ellis, Case Number: 21STCV08680, Date: 2023-07-10 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV08680, Date: 2023-07-10 Tentative Ruling

Case Number: 21STCV08680 Hearing Date: July 10, 2023 Dept: 29

TENTATIVE RULING. The Court GRANTS IN PART and DENIES IN PART the motion to compel.

Background

Plaintiff Mary Katharine Thomas (“Plaintiff”) files this motion to compel Defendant Guy Robert Petty (“Defendant”) to answer certain questions asked at his deposition. (Defendant is not a named defendant in the case filed by Plaintiff but is a party and a named defendant in the consolidated case, Weissman v. Petty, et al., Case No. 21STCV34351.) Plaintiff filed her motion on May 2, 2023. The dispute was not resolved at an Informal Discovery Conference held on June 13, 2023. Defendant filed his opposition on June 26, 2023, and Plaintiff filed her reply on June 30, 2023. The Court has reviewed the filings of the parties and issues the following tentative rulings.

Analysis

At his deposition, Defendant refused to answer six questions. The Court will consider each in turn.

Question No. 1

Q. “[H]ave you see this letter [marked as Exhibit 3] dated December 7th, 2022, sir?”

Exhibit 3 is apparently a letter sent by Plaintiff’s counsel to Defendant’s counsel, and Defendant objects to this question on the basis of the attorney-client privilege, arguing that compelling Defendant to answer this question, and to reveal whether his lawyer showed the letter to him, would necessarily intrude upon protected attorney-client communications.

The Court agrees in part and disagrees in part. Once the privilege objection is raised, it becomes apparent that the question in substance has two separate components, which can be framed as follows: (1) “Have you seen this letter [or “has your attorney shown you this letter”] in a confidential attorney-client communication?”; and (2) “Other than in a confidential communication with your attorney, have you seen this letter?” The first component of the question is covered by the attorney-client privilege and objectionable, but the second component is not. Plaintiff is entitled to an answer to the question, “Other than in a confidential communication with your attorney, have you seen this letter [Exhibit 3] dated December 7th, 2022?” And if the answer is “yes,” Plaintiff is entitled to ask reasonable follow up questions.

As narrowed, the question does not seek information protected by the attorney-client privilege and is not objectionable. Defendant’s relevance objection is overruled. The motion to compel is GRANTED in part, as to the narrowed question and reasonable follow up.

Question No. 2

Q. Are you aware that we have tried to settle this case within the policy limits of your insured?

Defendant objects again on the basis of the attorney-client privilege. The Court’s analysis is similar to that set forth above with regard to Question No. 1. As to this question, the motion is granted in part and denied in part. The question will be narrowed to the following: “Other than based on information that you obtained in a confidential communication with your attorney, are you aware that we have tried to settle this case within the policy limits of your insured?” And if the answer is “yes,” Plaintiff is entitled to ask reasonable follow up questions.

Question No. 3

Q. Do you know that I stipulated not to call her [your daughter] as a witness and/or make any comments about her at trial if she does not attend trial?

Again, Defendant objects on the basis of the attorney-client privilege, and again the Court’s analysis is similar to that set forth above. As to this question, the motion is granted in part and denied in part. The question will be narrowed to the following: “Other than based on information that you obtained in a confidential communication with your attorney, do you know that I stipulated not to call her [your daughter] as a witness and/or make any comments about her at trial if she does not attend trial.” And if the answer is “yes,” Plaintiff is entitled to ask reasonable follow up questions.

Question No. 4

Q. [O]utside of you – your attorney that you retained in this deposition in my case, have you ever seen this document [Exhibit 4] before?

Again, Defendant objects on the basis of the attorney-client privilege, and again the Court’s analysis is similar to that set forth above. As to this question, the motion is granted in part and denied in part. The question will be narrowed to the following: “Other than in a confidential communication with your attorney, have you seen this document [Exhibit 4] before?” And if the answer is “yes,” Plaintiff is entitled to ask reasonable follow up questions.

Question No. 5

Q. When was the first time you retained Mr. Elder for the purposes of this deposition here today?

Again, Defendant objects on this basis of attorney-client privilege. This objection is overruled. Foundational facts relating to the establishment of the attorney-client relationship, such as when counsel was retained, are discoverable and not subject to the attorney-client privilege. Defendant’s relevance objection is overruled. The motion to compel is GRANTED.

Question No. 6

Q. Sir, have you seen Assignment of Rights marked as Exhibit 4 before?

Again, Defendant objects on the basis of the attorney-client privilege, and again the Court’s analysis is similar to that set forth above. As to this question, the motion is granted in part and denied in part. The question will be narrowed to the following: “Other than in a confidential communication with your attorney, have you seen Assignment of Rights marked as Exhibit 4 before?” And if the answer is “yes,” Plaintiff is entitled to ask reasonable follow up questions.

Finally, the Court notes that neither side has requested sanctions in connection with this discovery motion.

Conclusion

As to Questions Nos. 1, 2, 3, 4, and 6 (identified above), Plaintiff’s motion to compel is GRANTED IN PART and DENIED IN PART. The questions are narrowed, as set forth above, and as to the narrowed questions the motion to compel is granted.

As to Question No. 5, Plaintiff’s motion to compel is GRANTED.

The Court orders Defendant to provide answers to these questions at a deposition to be scheduled within 30 days of this Order.