Judge: Thomas S. Mcconville, Case: 2021-01190980, Date: 2023-06-12 Tentative Ruling

Defendant Dr. Amy Bandy’s Motion to Compel Further Responses to Inspection Demands, Set No. 2 and Sanctions is GRANTED. (See Code Civ. Proc. § 2031.310.)

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.    

The court finds that plaintiff’s objections are without merit.

Plaintiff fails to show that the records sought by defendant contain counsel’s impressions, conclusions, research, etc., thus the records are not absolutely privileged as attorney wok product.

The “work product” of experts consulted by the attorney and who will not testify at trial is treated as the attorney's “work product.” (See Scotsman Mfg. v. Sup.Ct. (1966) 242 Cal.App.2d 527, 530.) That privilege can be waived by disclosure.

Plaintiff argues that the search terms utilized by plaintiff’s non-retained expert constitute  protected work product. The inspection categories do not seek plaintiff’s expert’s search terms utilized during the site inspection, but instead, the records obtained by the expert as a result of the inspection. Plaintiff presents no evidence establishing that disclosure of the records obtained as a result of the use of the expert’s search terms could be “backward engineered” to determine the supposedly privileged search terms.

Additionally, evidence establishes that plaintiff’s expert and defendant’s expert negotiated over the scope of the search of the defendant’s computers and the search terms, which would result in the disclose of the plaintiff’s expert’s search terms to someone who had no interest in maintaining confidentiality of the search terms. (See Laguna Beach County Water Dist. v. Sup.Ct. (Woodhouse) (2004) 124 Cal.App.4th 1453, 1459.)  Lazo Decl. para. 15.

Finally, the evidence reflects that plaintiff is estopped from raising work product privilege as to the subject records, having advised counsel for defendant that counsel “…would receive copies of “…everything that was imaged…” without advising defendant’s counsel that plaintiff would assert objections to the same records after the site inspection and the records were obtained.  Exh. D to Couper Decl. (See Southern California Edison Co. v. Public Utilities Com'n (2000) 85 Cal.App.4th 1086, 1110 [elements of equitable estoppel].)

Plaintiff shall supplement her production within 15 days of notice of this court’s order.

Plaintiff’s request for sanctions is denied.

The court imposes monetary sanctions against plaintiff in the sum of $1,385.00. Sanctions payable to counsel for defendants within thirty days of notice of this order.

Defendant shall give notice.