Judge Theresa M. Traber, Case Number: 22STCV35306, Date: 2023-11-20 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV35306, Date: 2023-11-20 Tentative Ruling

Case Number: 22STCV35306 Hearing Date: November 20, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 20, 2023 TRIAL DATE: April 23, 2024

CASE: Terri Johnson v. Paramount Global, Inc. et al.

CASE NO.: 22STCV35306

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION

MOVING PARTY: Plaintiff Terri Johnson

RESPONDING PARTY(S): Defendant CBS Broadcasting, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an employment discrimination action filed on November 4, 2022. Plaintiff alleges that she was wrongfully terminated based on her medical condition which precluded her from receiving the COVID-19 vaccine.

Plaintiff moves to compel further responses to requests for production propounded to Defendant CBS Broadcasting, Inc.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Responses to Requests for Production is GRANTED to the extent described herein.

Defendant is to produce all responsive materials not already produced pursuant to this order within 30 days.

DISCUSSION:

Plaintiff moves to compel further responses to requests for production propounded to Defendant CBS Broadcasting, Inc.

Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of several documents. As these documents are not relevant to the Court’s ruling, Defendant’s request is DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Plaintiff’s Objections to Defendant’s Evidence

Plaintiff raises several evidentiary objections to the Declaration of Erika Grant in opposition to the motion. The Court rules on these objections as follows:

Objection No. 1: SUSTAINED as an improper legal conclusion. It is not for this witness to say whether the matters for which Ms. Washington was consulted constituted a request for “legal advice.”

Objection No. 2: SUSTAINED as an improper legal conclusion.

Objection NO. 3: SUSTAINED as an improper legal conclusion.

Objection No. 4: SUSTAINED as an improper legal conclusion to the extent the declarant states that what was requested from and received from Ms. Washington constituted legal advice, and otherwise OVERRULED. The statements do not lack foundation, nor are they speculative nor un-authenticated, as they are within the declarant’s personal knowledge. The requests are not hearsay. The best evidence rule is inapplicable.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Timeliness

A motion to compel further responses to requests for production must be served “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Plaintiff propounded Requests for Production, Set One, on Defendant CBS Broadcasting, Inc. on December 20, 2022. (Declaration of Michael G. Jacob ISO Mot. ¶ 2; Exh. A.) Defendant served its responses on February 17, 2023. (Id. ¶ 3, Exh. B.) Plaintiff’s counsel states under penalty of perjury that the parties agreed to extend the cutoff date for the motion to October 13, 2023, the date this motion was filed. (¶ 6.) The declaration does not state that the agreement was made in writing, nor does it provide written memorialization of that agreement. Defendant does not dispute the existence of the agreement, however; nor does it contend the motion is untimely. The Court therefore construes the statements of Plaintiff’s counsel as referencing a written agreement to extend the cutoff date. Under this construction, Plaintiff’s motion is timely.

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

The Declaration of Michael Jacob states that the parties met and conferred extensively between May 11, 2023 and the filing of this motion, with particular reference to an Informal Discovery Conference held on September 14, 2023. (Jacobs Decl. ¶ 6.) The Court therefore finds that Plaintiff has satisfied the statutory meet and confer obligations.

Good Cause

Plaintiff moves to compel further responses to Requests for Production Nos. 18-21, 40, 51, and 62 propounded to Defendant. Plaintiff also moves to compel production of the unredacted version of a document which appears to be notes from an interview of Plaintiff produced as part of Defendant’s responses.

Requests Nos. 18, 19, 20, and 21 seek documents which were relied upon in deciding to terminate Plaintiff’s employment, which support Defendant’s decision to terminate Plaintiff, describe the reasons Plaintiff’s employment was terminated, or show the persons who made or participated in the decision to terminate Plaintiff. (Jacob Decl. Exh. A. Nos. 18-21.) Good cause exists for these requests, as they are facially relevant to Plaintiff’s employment discrimination and wrongful termination claims.

Request No. 40 seeks any documents or electronically stored information reflecting Defendant’s investigation into whether Plaintiff falsified any documents submitted to Defendant between November 1, 2021 through January 17, 2022. (Id. No. 40.) This request is also facially relevant to Plaintiff’s claims because the Complaint expressly states that Defendants claimed they were terminating Plaintiff for falsifying documents. (See Complaint ¶ 17.) Good cause therefore exists for this request as well.

Request No. 51 seeks any documents reflecting Defendant’s consideration of any request by any employee other than Plaintiff pertaining to vaccination between November 1, 2021 through January 2022. Request No. 62 seeks any documents supporting any determination by Defendant that a request for vaccine exemption by any employee between November 1, 2021 through January 21, 2022 would have produced an undue hardship on Defendant’s operations. (Jacob Decl. Exh. A. Nos. 51, 62.)

“Me-too” evidence of other individuals who have been subjected to sufficiently similar discrimination or harassment is discoverable as evidence of the intent of the decision-maker. (See Pantoja v. Anton (2011) 198 Cal.App.4th 87, 89; see also McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 296-98.) Plaintiff states that these requests specifically seek to elicit “me-too” evidence, and, indeed, the requests pertain directly to the claims asserted by Plaintiff. (See Complaint ¶¶ 11-13.) As drafted, however, the requests are overbroad in that they seek production of “me too” documentation that does not necessarily involve the same decision-maker. As such evidence is relevant because it tends to prove discriminatory intent or that a claimed legitimate basis for the adverse employment action was pretextual, evidence of actions taken by other decision-makers is unlikely to be relevant here. (See Pantoja, supra, 198 Cal.App.4th at 114; see also Johnson v. United Cerebral Palsy/Spastic Children’s Found. Of Los Angeles & Ventura Counties (2009) 173 Cal.App.4th 740, 760.) The Court therefore narrows the scope of these requests to request for vaccination exemptions, exceptions, or accommodations that were presented to or fielded by Ariel Parker, Erika Grant, or Lynette Sereno between November 1, 2021 and January 21, 2022. Having done so, the Court will consider Defendant’s responses and objections to these requests.

Defendant’s Responses

In response to each request, Defendant served a series of largely boilerplate objections before stating that it would produce responsive non-privileged documents subject to those objections. With the exception of those objections examined further herein, Defendant does not support or even discuss most of the objections asserted. The Court therefore finds those objections without merit.

1. Attorney-Client Privilege

With respect to Requests Nos. 18 through 21 and No. 40, Defendant’s principal objection—and the source of the dispute—is that the requests, as drafted, seek materials protected by the attorney-client privilege and the work product doctrine. Defendant identified eight documents which it contends are subject to the privilege and produced a privilege log for those documents. (Jacobs Decl. Exh. N.) Seven of the documents are email communications with Defendant’s legal department sent during the relevant time period. (Id.) The eighth is a set of handwritten notes taken by Lynette Sereno from an interview with Plaintiff, written on a printout of emails between Ms. Grant, Ms. Sereno, and Fania Washington, Defendant’s legal counsel. (Id.; see also Declaration of Erika Grant ISO Opp. ¶ 4.) The printout itself has been redacted. (Jacobs Decl. Exh. J.)

At the outset, Code of Civil Procedure section 2031.240(c)(1) states that if a party objects to a demand for inspection based on a privilege, the response “shall provide sufficient factual information for other parties to evaluate the merits of that claim [of privilege], including, if necessary, a privilege log.” (Code Civ. Proc. § 2031.240(c)(1).) Defendant’s privilege log does not identify the materials with sufficient specificity to allow other parties, such as the Court, to evaluate the merits of Defendant’s privilege claim. A cursory description of electronic communications as “email” or a printout as “Interview notes re: Terri Johnson” is not sufficient to permit the Court to evaluate Defendant’s claim of privilege. For that reason alone, the Court could find Defendant’s invocation of the attorney-client privilege and work product doctrine insufficient. The party asserting the privilege bears the burden of proving “the ‘preliminary facts to show the privilege applies, ‘i.e. a communication made in the course of an attorney-client relationship.” (Costco Wholesale Corp. v. Superior Ct. (2009) 47 Cal.4th 725, 733 [emphasis added].) Defendant’s privilege log provides no evidence that the communications were made in the course of the attorney-client relationship, only that they were made between an attorney and the client. At minimum, Plaintiff is certainly entitled to a more detailed privilege log than what was provided.

Notwithstanding the deficiencies in the privilege log itself, Defendant offers the declaration of Ms. Erika Grant, who states that, in the course of the investigation of Plaintiff which culminated in Plaintiff’s termination, Ms. Grant and Ms. Sereno consulted with Fania Washington purely in a legal capacity regarding the investigation and termination, and not in any other role. (Grant Decl. ¶ 3.) However, that declaration provides no facts supporting that contention, merely an inadmissible legal conclusion that Ms. Washington was consulted for legal advice, and that she provided that advice. Defendant has thus failed to properly establish that the attorney-client privilege applies. Moreover, even assuming arguendo that those communications were made in the attorney-client relationship, Defendant appears to place the communications at issue. “Fundamental fairness may require disclosure of otherwise privileged information or communications where [a partu] has placed in issue a communication which goes to the heart of the claim in controversy.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 604.) An implied waiver of the attorney-client privilege can be shown “by demonstrating that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action.” (S. Cal. Gas Co. v. Public Utils. Com. (1990) 50 Cal.3d 31, 40.)

Plaintiff contends that Defendant asserted an advice-of-counsel defense in its response to Form Interrogatory No. 201.1, and thereby placed the substance of its communications with counsel at issue, by claiming that Erica Grant participated in the termination decision “in consultation with legal” (See Jacobs Decl. Exh. D. No. 201.1.) Defendant denies asserting an advice of counsel defense. Instead, Defendant argues that even if the adequacy of the investigation is at issue, there is no implied waiver of the attorney-client relationship because the investigation was made by the Human Resources department, not by an attorney or a law firm. (See Kaiser Found. Hosps. v. Superior Court (1998) 66 Cal.App.4th 1217, 1226.) As Defendant states, Kaiser held that, when the adequacy of a pre-litigation investigation is at issue, production of the investigation materials does not waive the attorney-client privilege merely because that investigation was done in consultation with the defendant’s attorneys. (See Id. at 1226-27.) However, the issue identified in the Form Interrogatories, as restated in Defendant’s opposition, is whether Defendant followed reasonable procedures in reaching its termination decision. As Defendant expressly states, one of those “reasonable procedures” includes “consulting with counsel.” (Opposition p. 11:22-23.) This is an advice-of-counsel defense, whether Defendant chooses to call it that or not, and thereby places the substance of those consultations at issue on its face. To the extent Defendant seeks to justify its procedures as reasonable by indicating that they involve consultation with attorneys, Defendant puts that consultation at issue and, thus, waive the privilege to that extent.

As to the interview notes, Defendant again fails to offer any admissible evidence showing that the communication which was redacted was made in the course of the attorney-client relationship. Moreover, even had it done so, it appears to the Court that the privilege was waived by disclosure. A privilege is waived with respect to a protected communication if a holder of the privilege has voluntarily “disclosed a significant part of the communication.” (Evid. Code § 912(a).) Such a waiver must be narrowly defined. (Transamerica Title Ins. Co. v. Superior Ct. (1987) 188 Cal. App. 3d 1047, 1052.) “What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege.” (Id.) Plaintiff contends that Defendant has disclosed a significant part of the communication by producing the handwritten notes reflecting Plaintiff’s answers to the questions she was asked. According to Plaintiff, those notes and their arrangement on the document effectively discloses that there were interview questions in that communication and suggests the substance of those questions. Defendant, in opposition, asserts that it did not disclose any part of the communications, only Ms. Sereno’s notes of a meeting with Plaintiff. The Court is not persuaded. The notes are not simple yes/no questions instead containing substantive information and are arranged in such a manner as to permit, at least, an educated guess as to what has been redacted. For example, one of the first notes identifies a “Dr. Yi Steven,” which appears to be a response to a question about the identity of Plaintiff’s doctor. (Jacobs Decl. Exh. J.) Another note says “Doesn’t know who would fill it out,” which, in context, appears to respond to a question to the effect of “why did Plaintiff not have a doctor fill out her vaccine exemption form?” (Id.) In the Court’s view, this material is tantamount to a disclosure of a significant part of the contents of the document on which the notes were taken. Plaintiff is therefore entitled to the full document.

The Court therefore finds that Plaintiff is entitled to disclosure of the materials identified in the privilege log.

2. Me-Too Evidence

Defendant’s principal objection to Plaintiff’s request for me-too evidence is that it invades the privacy rights of third parties and is overbroad and unduly burdensome.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

As Defendant asserts, individuals have a legally protected privacy interest in their medical information. (See, e.g., Pettus v. Cole (1996) 49 Cal.App.4th 402, 440-41.) Production of such information is a “serious potential invasion of privacy rights.” (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 656.) Individuals thus necessarily have a reasonable expectation of privacy as to their medical information.

Plaintiff argues in the moving papers that disclosure of these materials is essential for the bulk of Plaintiff’s claims. Plaintiff also concedes this evidence may be disclosed subject to a protective order limiting its disclosure, and thus mitigating the harm sought. Defendant, in opposition, proposes a chart identifying each request for a medical exemption to the vaccine requirement, the result, and the reason for that result. Defendant contends that the chart will show it granted a number of medical exemptions supported by medical certifications. (See Declaration of Christopher A. Elliot ISO Opp. ¶ 3-6.) Plaintiff dismisses that proposal as “self-serving” and asserts, without authority, that Defendant “cannot be the gatekeeper for this important information.” The Court does not share Plaintiff’s view. Defendant’s proposed solution would describe the accommoda-tions requested, the decision reached, and the reasoning for that decision. So long as that information is provided under penalty of perjury, and also states the method by which each decision was reached, the Court finds such a proposal will fairly address both the third-party privacy interests and Plaintiff’s need for evidence to prove intent or pattern and practice.

As to Defendant’s objection based on undue burden, that objection appears to be mooted by the Court’s findings regarding the scope of the request and the proper solution to preserve the privacy interests of third parties. The Court therefore declines to address that objection.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Further Responses to Requests for Production is GRANTED to the extent described herein.

Defendant is to produce all responsive materials not already produced pursuant to this order within 30 days.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 20, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.