Judge: Teresa A. Beaudet, Case: BC574630, Date: 2023-02-02 Tentative Ruling

Case Number: BC574630    Hearing Date: February 2, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Alvin Tate, an incompetent adult, by and through his Guardian Ad Litem Clarence Tate (“Plaintiff”) filed this action on March 5, 2015 against, among other defendants, Defendant FCA US LLC (“FCA”). The Complaint asserts causes of action for (1) strict product liability, and (2) negligence product liability. The case arises out of a car accident involving a 1998 Dodge Caravan and an airbag that did not deploy.

FCA indicates that on June 3, 2022, it served Plaintiff with FCA’s Requests for Production and Inspection of Tangible Things Set Six (“RFP No. 6”). (Mauch Decl., ¶ 50, Ex. 45.) Plaintiff served responses to RFP No. 6 in which it objected to each of the requests therein. (Mauch Decl., ¶ 51, Ex. 46.) FCA’s counsel attempted to meet and confer with Plaintiff’s counsel regarding Plaintiff’s objections to RFP No. 6. (Mauch Decl., ¶¶ 55-56, Exs. 50-51.) However, Plaintiff’s counsel never responded to FCA’s counsel’s inquiries to meet and confer. (Mauch Decl., ¶ 57.) FCA’s counsel then scheduled an Informal Discovery Conference (“IDC”) for August 30, 2022. (Mauch Decl., ¶ 57.)

Following the August 30, 2022 IDC, the Court issued a minute order providing, inter alia, that “[b]ecause Plaintiff’s counsel failed to appear at the IDC, Defendant FCA has fulfilled its IDC requirement. The deadline to file a motion to compel further responses is extended to 09/30/22.” (Mauch Decl., ¶ 57, Ex. 52.)[1]

FCA now moves for an order to compel Plaintiff’s further response to RFP No. 6. Plaintiff opposes. 

Legal Standard

Code of Civil Procedure section 2031.310, subdivision (a) permits a propounding party to move for an order compelling a further response to a demand for inspection if the propounding party deems that a statement of compliance is incomplete, a representation of inability to comply is inadequate, incomplete, or evasive, or an objection is without merit or too general. (Id.,           § 2031.310, subd. (a).) A motion to compel further responses to a demand for inspection must set forth specific facts showing good cause for the discovery sought and must be accompanied by a meet and confer declaration. (Id., § 2031.310, subd. (b).) 

Discussion

            As set forth above, FCA moves to compel further responses to RFP No. 6. 

            Request for Production No. 118 of RFP No. 6 seeks “[a]ny computers, including laptop, desktop, or tablet computers, used by Plaintiff’s attorney of record Joseph D. Davis, Esq. or his law firm from November 8, 2013 to the present. These devices will be inspected pursuant to the protocol attached hereto as Exhibit A. Plaintiff is further requested to provide any username, password, passcode, or other log-in information needed to access the devices or data. The inspection will not permanently alter or destroy the devices involved.”

            Request for Production No. 119 seeks “[a]ny cellular telephone(s) used by Plaintiff’s attorney of record Joseph D. Davis, Esq. from November 8, 2013 to the present. These devices will be inspected pursuant to the protocol attached hereto as Exhibit A. Plaintiff is further requested to provide any username, password, passcode, or other log-in information needed to access the devices or data. The inspection will not permanently alter or destroy the devices involved.”

            Request for Production No. 120 seeks “[t]he cloud data, including but not limited to iCloud data, of Plaintiff’s attorney of record Joseph D. Davis, Esq. from November 8, 2013 to the present. This data will be inspected pursuant to the protocol attached hereto as Exhibit A. Plaintiff is further requested to provide any username, password, passcode, or other log-in information needed to access the devices or data. The inspection will not permanently alter or destroy the devices involved.”

            Request for Production No. 121 seeks “[a]ny USB device, hard drive, thumb drive, or other electronic device in the possession, custody, or control of Plaintiff’s attorney of record Joseph D. Davis, Esq. for storing files and data from November 8, 2013 to the present, including but not limited to the SanDisc Cruzer Glide USB device with data removed from Clarence Tate’s laptop on or around January 18, 2022. These devices will be inspected pursuant to the protocol attached hereto as Exhibit A. Plaintiff is further requested to provide any username, password, passcode, or other log-in information needed to access the devices or data. The inspection will not permanently alter or destroy the devices involved.”

RFP No. 6 indicates that each of the requested devices will be inspected pursuant to the certain specified parameters. (Mauch Decl., ¶ 50, Ex. 45.) Nine topics are listed in the parameters, including: (1) “[a]llegation that attorney Joseph Davis destroyed and/or concealed the subject Airbag Electronic Control Module (AECM),” (2) “[p]ayments, loans, advances, gifts, cash, and other consideration given to a Tate family member (Clarence Tate, Jay Tate, Lorraine “Diane” Tate, Constance Tate, Jeannie Randle, or Shayla Tate) by Joseph Davis, including any requests for such payments made by a Tate family member to Joseph Davis,” (3) “[a]llegation that Joseph Davis paid Jeannie Randle and Shayla Tate to testify in a certain manner,” (4) “Clarence Tate’s post-December 2018 declarations recanting his allegations of misconduct,” (5) “[a]llegation that Joseph Davis agreed to pay Clarence Tate’s anticipated perjury fine,” (6) “Clarence Tate’s communications regarding preparation for his deposition and production of responsive documents,” (7) “Tate family members’ communications with Joseph Davis since December 7, 2018, including Clarence Tate, Jay Tate, and Lorraine “Diane” Tate,” (8) “[a]llegation that Joseph Tate paid Jay Tate to forge Clarence Tate’s signature on

declarations after the December 7, 2018 testimony,” and (9) “Clarence Tate’s transfer of files and data from his laptop computer onto a USB device prior to FCA US, LLC’s forensic examination.” (Mauch Decl., ¶ 50, Ex. 45.)

FCA asserts that the Court has authority to compel the digital forensic inspection of Davis’s computer, cellular telephone, and cloud data for responsive documents as set

forth in RFP No. 6. FCA cites to TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448-449, where the Court of Appeal noted that “[i]n the more specific context of a demand for production of a tangible thing, the party who asks the trial court to compel production must show good cause for the request--but unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. Here, the home computer is indisputably relevant (Zieminski does not seriously contend otherwise)…TBG is entitled to discover any nonprivileged information, cumulative or not, that may reasonably assist it in evaluating its defense, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.” (Internal quotations, citations, and emphasis omitted.)

FCA contends that good cause exists for compelling further responses to RFP No. 6. because the requests “seek[] information that is directly related to evidence of misconduct which Plaintiff, Davis, and Clarence Tate failed to produce through prior discovery requests.” (Mot. at p. 16:13-14.) FCA asserts that on December 7, 2018, while the jury was deliberating in the instant case, Clarence Tate testified in Court before the presiding Judge Michael B. Harwin as to various allegations of misconduct. The accusations included, for example, that Joseph Davis (“Davis”) spoliated evidence by concealing and possibly destroying the AECM, that Davis paid Clarence Tate $20,000 to fire Plaintiff’s prior lawyers, and that Davis paid witnesses for specific testimony. (Mauch Decl., ¶ 17, Ex. 14 (12/7/2018 Ct. Trans.) at pp. 2:10-18, 4:24-5:3, 5:9-18, 6:4-24, 13:6-14:4, 28:5-8.)  

FCA also indicates that on December 1, 2016, Davis sent an email stating that the “black box evidence … will really hurt the case” and that he was “reluctant to commit to writing [his] concerns about what Chrysler might learn.” (Mauch Decl., ¶ 10, Ex. 7.) FCA also indicates that on May 2, 2017, Clarence Tate sent an email to Davis stating, inter alia, that Davis “lied to the Court about the black box and its mysterious disserpearance (sic)….” (Mauch Decl., ¶ 16, Ex. 13.) 

In addition, FCA indicates that through the forensic examination of Clarence Tate’s laptop, FCA learned that all files on the laptop had been wiped from the computer and placed onto a USB device (“Sandisk Cruzer Glide USB”) on January 18, 2022. (Mauch Decl., ¶ 45.) When FCA’s counsel contacted Clarence Tate to inquire about his compliance with the Court’s order about the USB device, Clarence Tate responded by saying “Davis has that.” (Mauch Decl., ¶ 46.) Clarence Tate further stated that (a) he had someone remove the data from his laptop and put it onto a USB drive, (b) he left the USB drive at his “brother’s house,” and (c) that Davis subsequently “picked it up” from his brother’s house. (Id.)

FCA notes that on August 11, 2022, the Court in this matter issued a minute order indicating, inter alia, that “[t]he parties participated in an Informal Discovery Conference. The parties agreed and the Court ordered as follows: On or before September 9, 2022, Mr. Davis will file and serve a declaration indicating that neither he nor anyone acting on his behalf asked Clarence Tate to transfer anything from Clarence Tate’s laptop to a USB device, nor did he or anyone on his behalf pick up or receive any such device from Mr. Tate or his brother Jay Tate.” (Mauch Decl., ¶ 48, Ex. 43.) FCA indicates that Davis signed a Declaration indicating that “[a]s far as I know, Clarence Tate did not transfer any data from his laptop to a USB device. [] I did not receive from Clarence Tate, or his brother Jay Tate, a device containing information downloaded from Clarence Tate’s laptop.” (Mauch Decl., ¶ 49, Ex. 44.) FCA asserts that accordingly, Davis’s declaration fails to deny that Davis or anyone on his behalf asked Clarence Tate to transfer files from the laptop to a USB device, and that anyone on Davis’s behalf picked up a device containing information downloaded from Clarence Tate’s laptop.

FCA further indicates that on February 13, 2019, Clarence Tate indicated in an email to Davis that “[m]y brother jay advised me last night that you agreed to pay him $3000 if he could forged [sic] My signature on some papers…” (Mauch Decl., ¶ 23, Ex. 20.) Clarence Tate’s email refers to text messages and a voice message. (Ibid.) FCA asserts that Davis’s electronic devices may have evidence of those text messages and voicemail or other materials confirming that Clarence Tate’s signature was forged. In addition, FCA indicates that Clarence Tate testified that Davis agreed to help pay any perjury fine that the Court may assess on Clarence Tate. (Mauch Decl., ¶ 42, Ex. 39 (Cl. Tate Dep. Vol. II) at p. 267:7-269:6.)

FCA asserts that Plaintiff’s objections to RFP No. 6 are without merit. Specifically, FCA asserts that “[t]he attorney-client privilege has been waived with respect to the alleged misconduct in numerous instances and in numerous ways. (See Evid. Code 912(a).) This objection has been addressed several times by this Court already, and in each instance, the discovery was allowed. (See, e.g., Rulings on MTC dep. of attorneys J. Davis, D. Rochen, S. Trussell, and L. Cutrone and MTC Inspection of C. Tate’s electronic devices.) The same result and analysis applies here.” (Mot. at p. 21:8-12.) In its separate statement in support of the instant motion, FCA contends that “Clarence’s testimony to the Court on Dec. 7, 2018 effectively waived any such attorney-client privilege relating to the alleged misconduct. (See, e.g., 12/7/2018 Ct. Trans. at 2:10-18, 4:24-5:3, 5:9-18, 6:4-24, 13:6-14:4, 28:5-8, Ex. A.).” (FCA’s Separate Statement at p. 7:21-23.)

FCA cites to Evidence Code section 912, which provides in pertinent part that “the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege)…is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Code Civl Proc., § 912, subd. (a).) Evidence Code section 953¿, provides that the “¿holder of the privilege¿” means “¿[t]he client, if the client has no guardian or conservator.¿” (Evid. Code., ¿§ 953, subd. (a)¿.) The “¿holder of the privilege¿” is “¿[a] guardian or conservator of the client, if the client has a guardian or conservator,¿” except “¿[i]f the guardian or conservator has an actual or apparent conflict of interest with the client,¿” in which case “¿the guardian or conservator does not hold the privilege.¿” (¿Evid. Code, §§ 953, subd. (b)¿.) The Court notes that the subject December 7, 2018 Court transcript indicates that Clarence Tate was Plaintiff’s guardian ad litem at that time. (Mauch Decl., ¶ 17, Ex. 14 (12/7/2018 Ct. Trans.) at p. 1:16-23.)

Plaintiff’s opposition solely consists of a Declaration of Plaintiff’s counsel, Joseph Davis. Mr. Davis states that “[m]y computer contains several thousand Tate-related emails which FCA wants to examine. This should not be allowed and FCA has no right to fish through an attorney’s computer based on an unsubstantiated hunch that it ‘might’ contain evidence that I have repeatedly sworn does not exist.” (Davis Decl., ¶ 10.)

As FCA notes in the reply, no privilege log was provided. Moreover, Plaintiff’s opposition does not mention the attorney-client privilege. ((See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 596-597 [burden to show preliminary facts supporting application of privilege not met where defendant failed to produce privilege log or identify any specific confidential communications]); Code Civ. Proc.,                   § 2031.240(c)(1) [“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.”].)

Based on the evidence presented by FCA, the Court finds that FCA has demonstrated good cause to compel the inspection of Davis’s devices as set forth in RFP No. 6. However, the Court has some concerns regarding the scope of the search described in the proposed protocol that will be discussed at the hearing.  

Conclusion

Based on the foregoing, the Court grants FCA’s motion subject to the discussion regarding the scope of the protocol.  The Court also will set dates for compliance with the protocol.

The Court orders FCA to give notice of this order.

DATED:  February 1, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court