Judge: Theresa M. Traber, Case: 23STCV11095, Date: 2024-09-06 Tentative Ruling

Case Number: 23STCV11095    Hearing Date: September 6, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     September 6, 2024                 TRIAL DATE: NOT SET

CASE:                         Ana Pineda Aragon v. Ford Motor Co.

CASE NO.:                 23STCV11095           

MOTION FOR PROTECTIVE ORDER

MOVING PARTY:               Defendant Ford Motor Co.

RESPONDING PARTY(S): Plaintiff Ana Pineda Aragon

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a lemon law action filed on May 16, 2023.  Plaintiff alleges that she purchased a 2017 Ford Escape which subsequently manifested unspecified defects.

Defendant moves for a protective order regarding the use and disclosure of certain materials.

TENTATIVE RULING:

Defendant’s Motion for Protective Order is GRANTED IN PART to the extent described herein.

DISCUSSION:

Defendant moves for a protective order regarding the use and disclosure of certain materials.

Legal Standard

Defendant’s motion is brought under Code of Civil Procedure section 2031.060, which provides, in relevant part: 

(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. 

(b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: 

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all. 

(2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended. 

(3) That the place of production be other than that specified in the demand. 

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. 

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way. 

(6) That the items produced be sealed and thereafter opened only on order of the court. 

(Code Civ. Proc. § 2031.060(a)-(b).) 

Meet and Confer

            Before filing a motion for a protective order, Defendant is required to file a declaration stating its efforts to meet and confer with the opposing party to resolve this dispute, 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.)

            Defendant has not filed a declaration which speaks to its efforts to informally resolve this dispute with Plaintiff. Defendant has therefore failed to comply with its statutory meet-and-confer obligations. Nevertheless, the Court will address the motion on its merits to facilitate a speedy resolution of this dispute.

Timing of Motion

            Plaintiff objects to this motion as untimely.

            Code of Civil Procedure section 2031.060(a) states that a party may “promptly” move for a protective order. The statute provides no specific window when such a motion may be brought. Moreover, contrary to Plaintiff’s assertion, none of the statutes which authorize protective orders require that a motion be made before the expiration of the time required for a response. (Code Civ. Proc. §§ 2030.090(a); 2031.060(a); 2025.420(a).) Plaintiff’s citation to Willis v. Superior Court is not on point, as the footnote cited discusses the time to object to discovery requests on the based on privacy interests, not the proper timing to seek a protective order regarding the handling of confidential information. (Willis v. Superior Court (1980) 112 Cal.App.3d 277, 289 n.5.) Plaintiff contends that the motion is not timely because Plaintiff served discovery requests on Defendant on October 11, 2023, with responses provided on November 28, 2023, and verifications on January 24, 2024. (Declaration of David Polyakov ISO Mot. ¶¶ 2-4.) Plaintiff contends that Defendant was dilatory in seeking this protective order by failing to bring the motion until June 27, 2024. The Court is not persuaded that Defendant’s motion should be denied on this basis where the statute imposes no clear deadline and Plaintiff has made no showing of prejudice by the delay.

Analysis

            Defendant requests that the Court impose a protective order regarding the use and disclosure of select documents which, according to Defendant, contain sensitive, confidential information and trade secrets. During discovery, Defendant agreed to produce its Warranty Policy & Procedure Manual, its Customer Relationship Center Policies and Procedures, and its Reacquired Vehicle Policy and Procedures. (Declaration of David Polyakov ISO Mot. ¶ 5.) Defendant contends that these materials contain confidential, proprietary, or trade secret information and materials. (Declaration of Jacob Doss ISO Mot. ¶¶ 9-12.) To that end, Defendant requests that the Court issue a protective order, derived from the Los Angeles Superior Court Model Protective Order, with modifications to Paragraphs 7, 8, and 21.

With respect to Paragraph 7, Defendant’s revisions clarify that “affiliated attorneys” mean attorneys in the same firm and provide that Plaintiff’s counsel’s office personnel who have access to Defendant’s confidential documents must sign Exhibit A. (See Polkyakov Decl. Exh. B.) Defendant also proposes a revision to sub-section (d) to include videographers and litigation support companies (along with court reporters), who may have access to Defendant’s confidential documents by virtue of their retention in a case. (Id.) Defendant removed sub-section (f), which permitted mock jurors to access Defendant’s confidential documents because Defendant has no ability to identify such persons or ensure (or confirm) their compliance. (Id.) Defendant also revised sub-section (g) to include non-attorneys with experts, and to provide that Defendant’s confidential documents may not be shown to competitors of Defendant. (Id.) Defendant contends that these measures are necessary to limit the risk of unauthorized access to confidential materials and establish records of compliance with the protective order. (Declaration of Jacob Doss ISO Mot. ¶¶ 9-12.)

Plaintiff opposes Defendant’s proposed revisions to this paragraph on the basis that they are unnecessary and overly burdensome, arguing that restricting access to confidential documents to attorneys within the same firm is unnecessary, as are disclosure limitations to mock juries, as mock juries under the Model Protective Order must sign a certification, thereby ensuring their accountability. The Court is not persuaded by Plaintiff’s arguments in opposition to these revisions. Clarification of the term “affiliated attorneys” and exclusion of mock jurors from accessing confidential documents do not, on their face, impose an undue burden on Plaintiff, and Defendant has demonstrated the appropriateness of such measures to protect its confidential and proprietary information.

More persuasively, Plaintiff argues that a requirement that all employees in Plaintiff’s counsel’s office must sign Exhibit A is unnecessary and unduly burdensome. The Court concurs: under the Model Order, the signature of Plaintiff’s counsel binds counsel, the firm, and its employees. Requiring additional signatures of other employees merely imposes a heavier administrative burden to no appreciable benefit. Further, given that all documents document produced pursuant to the protective order are to be marked with “Confidential” on each page, there is little risk that members or staff of Plaintiff’s law firm will lose sight of the protected status of these documents in the absence of individually signed affidavits. 

Moving onto Paragraph 8, Defendant’s revisions provide that the receiving party may not post Defendant’s confidential documents to any website or advertise Defendant’s documents for sale. (Polyakov Decl. Exh. B.) Defendant contends that these provisions are reasonable and necessary to protect Ford’s documents from improper dissemination. (Doss Decl. ¶¶ 9-12.)  Plaintiff argues that these revisions are unnecessary, as the Model Protective Order strictly limits the use of these materials to the litigation process. The Court does not share Plaintiff’s view. An express prohibition against the posting or sale of Defendant’s confidential documents on a website or internet-accessible repository forecloses a major potential avenue for dissemination of Defendant’s confidential information and imposes no burden on Plaintiff’s use of these materials in furtherance of this action.

Finally, with respect to Paragraph 21, Defendant’s revisions clarify the process for Plaintiff’s counsel to return or destroy Defendant’s confidential documents at the conclusion of the case and require that all of Defendant’s confidential documents be returned or destroyed within 30 days of the case’s conclusion. (Polyakov Decl. Exh. B.)  Defendant argues that its proposals do not inhibit Plaintiff’s ability to litigate this matter in any way because it continues to allow for disclosure to counsel for use in this case and are necessary given Defendant’s interest in protecting its confidential business and trade-secret information from unfettered disclosure. (See Doss Decl. ¶¶ 9-12.) Plaintiff opposes this modification on the ground that Plaintiff’s counsel should be permitted to retain a complete copy of the case file subject to the protective order, as there is no risk of harm to Defendant. The Court disagrees. The proposed modification provides a clear and enforceable timeline for protection of Defendant’s confidential information at the conclusion of the case.

The Court therefore finds good cause for the issuance of a protective order as proposed by Defendant, with the exception of the requirement that each member of Plaintiff’s counsel’s office personnel sign the certification attached as Exhibit A to the proposed order.

CONCLUSION:

Accordingly, Defendant’s Motion for Protective Order is GRANTED IN PART to the extent described herein.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  September 6, 2024                             ___________________________________

                                                                                    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.