Judge: Walter P. Schwarm, Case: 30-2020-01175254, Date: 2022-10-04 Tentative Ruling

Plaintiffs’ (P.H.) Motion to Compel Newport-Mesa Unified School District’s Further Responses to Plaintiff’s Requests for Production of Documents, Set One (Motion), filed on 5-31-22 under ROA No. 111, is GRANTED.  The Notice of this Motion (Notice) was filed on 5-31-22 under ROA No. 111.

Code of Civil Procedure section 2031.310 provides: “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given 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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

The Motion seeks to compel further responses to Request for Production (RFP) Nos. 29, 31, and 32.  The Motion states, “To be clear, Plaintiff is not seeking any protected work product materials. To the extent any of the materials reflect the impressions of an attorney acting in a representative capacity, Plaintiff is not seeking such records. However, Plaintiff is entitled to the factual records, such as interviews and notes related to the interviews, and reports written by the investigator in furtherance of the statutorily required investigation. Despite relying on attorney work-product privilege to withhold these documents, the District provided a bare bones privilege log that fails to sufficiently outline the preliminary facts necessary for the District to meet its burden to assert the privilege. And, to the extent any such factual records could have been considered attorney work product, the District waived the work product privilege by placing the adequacy of its investigation at issue in this case. As such, the District must be compelled to provide such records.” (Motion; 2:24-3:6.)

Defendant’s (Newport-Mesa Unified School District) Opposition to Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests for Production, Set One (Opposition), filed on 9-16-22 under ROA No. 142, responds, “Plaintiff argues that the investigation file cannot be considered work-product or privileged communications because the documents were not authored by an attorney. However, plaintiff’s argument is flawed because the documents (items 1-9) were prepared by an investigator retained by the District’s claim examiner to investigate the allegations in the UCP. These documents were prepared by the District’s agents for the purposes of litigation and as such, are protected by the attorney-client privilege and work product doctrine.” (Opposition; 4:5-11.)

Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 128 (Wellpoint), states, “If a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived.”

Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535-536 (Scripps), provides, “It has long been recognized that communications made by an insured to his ‘ “liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney in so defending him.” . . .’ [Citation.] Here, the reports were ‘primarily created for the purpose of attorney review whether or not litigation is actually threatened at the time a report is made.’ Based on Scripps's self-insured status, the reports were also used by the risk managers as de facto insurance claims handlers. These facts, which plaintiffs did not dispute, compel a finding that the occurrence reports are attorney-client privileged communications. The trial court's remark that the reports are not privileged because they primarily involve ‘observational information” as opposed to “opinion information’ was unsound as this distinction is not contained in statutes articulating the attorney-client privilege nor cases interpreting the scope of the privilege. [Citation.]” It may be that the factual aspect of the reports will be revealed during some other aspect of discovery, but this does not make the occurrence reports discoverable.”

Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1226, 1227 (Kaiser), explains, “In short, Wellpoint did not make a blanket holding that the attorney-client privilege and the work product doctrine are waived in every case that an employer puts the adequacy of its prelitigation investigation at issue. We therefore agree with Kaiser that plaintiffs' reading of the holding in Wellpoint is overbroad. Adoption of plaintiffs' position would result in the destruction of the attorney-client privilege and the work product doctrine in every case of alleged employee discrimination or harassment in which an employer puts the adequacy of its prelitigation investigation at issue. Where a defendant has produced its files and disclosed the substance of its internal investigation conducted by nonlawyer employees, and only seeks to protect specified discrete communications which those employees had with their attorneys, disclosure of such privileged communications is simply not essential for a thorough examination of the adequacy of the investigation or a fair adjudication of the action. [Citation.] Here, Kaiser performed a prelitigation in-house investigation through a nonlawyer human resources specialist and then produced its entire investigation file in discovery, only claiming attorney-client or work product protection of certain specified documents consisting of attorney-client communications. Under the circumstances presented in this case, we therefore conclude that neither the attorney-client privilege nor the work product doctrine has been waived unless it is established through other discovery that a significant part of any particular communication has already been disclosed to third parties. [Citation.]” (Footnote 4 omitted.)

Here, Defendant produced a privilege log (Varon Decl., ¶ 8 and Exhibit PE 3.)  Defendant’s Answer (filed on 10-4-21 under ROA No. 55, pleads, “This Defendant is not liable in that they did not exercise or demonstrate the requisite deliberate indifference relative to any alleged complaints made by the plaintiff.” (Answer; 2:18-21.)  This allegation places the adequacy of Defendant’s investigation at issue.  Kaiser is distinguishable because it is not clear that Defendant seeks to protect specified discrete communications.  Scripps is distinguishable because the documents identified in Defendant’s Privilege Log do not consist of communications by an insured to the insured’s insurance company.

None of the documents referenced in Defendant’s privilege log clearly indicate that they reflect communications between Defendant and its attorneys.  Defendant’s privilege log refers to communications between an investigator and a third party. Further, it is not clear that Defendant has produced its files similar to the production in Kaiser. (Kaiser, supra, 66 Cal.App.4th 1221-1222.)

Based on the above, the court GRANTS Plaintiffs’ (P.H.) Motion to Compel Newport-Mesa Unified School District’s Further Responses to Plaintiff’s Requests for Production of Documents, Set One, filed on 5-31-22 under ROA No. 111, as to RFP Nos. 29, 31, and 32.  The court ORDERS Defendant to provide further verified responses to RFP Nos. 29, 31, and 32 within 20 days from the date of service of the notice of the court’s decision.

Plaintiff is to give notice.