Judge William A. Crowfoot, Case Number: 23AHCV01417, Date: 2024-08-19 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01417, Date: 2024-08-19 Tentative Ruling

Plaintiff Vincent Derosa (“Plaintiff”) filed this personal injury action against defendant Costco Wholesale Corporation (“Defendant”) on June 21, 2023. Plaintiff alleges that on July 10, 2021, he was shopping at Defendant’s store when he approached a pallet (“Pallet”) which contained new motion detector lights (“Product”). (Compl., ¶ 12.) Directly at the top of the Pallet was a plexiglass display which had lights and gave detailed information regarding the Product. (Ibid.) As Plaintiff began placing boxes of the Product into his shopping cart, the display fell down and hit him, causing him to fall to the floor and sustain severe injuries. (Id. ¶ 13.)

On April 8, 2024, Defendant filed this motion to uphold its designation of certain documents produced in discovery as “Confidential” pursuant to a stipulation and protective order entered on November 6, 2023.

On August 5, 2024, Plaintiff filed an opposition brief and evidentiary objections.

On August 14, 2024, Defendant filed a notice of lodging stating that certain documents would be lodged conditionally under seal for the purposes of this motion. The Court received the documents on August 16, 2024.

Under the stipulated protective order, a designating party has the right to designate as “Confidential” any documents, testimony or information that it “in good faith believes to contain non-public information that is entitled to confidential treatment under applicable law.” (Garcia Decl., Ex. D, ¶ 2.)

“In the event that counsel for a Party receiving Documents, Testimony or Information in discovery designated as “Confidential” objects to such designation with respect to any or all of such items, said counsel shall advise counsel for the Designating Party, in writing, of such objections, the specific Documents, Testimony or Information to which each objection pertains, and the specific reasons and support for such objections (the “Designation Objections”).” (Garcia Decl. Ex. D, ¶ 6.) Paragraph 6 also provides the following procedure for upholding any confidential designations:

Counsel for the Designating Party shall have thirty (30) days from receipt of the written Designation Objections to either (a) agree in writing to de-designate Documents, Testimony or Information pursuant to any or all of the Designation Objections and/or (b) file a motion with the Court seeking to uphold any or all designations on Documents, Testimony or Information addressed by the Designation Objections (the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and all existing designations on the Documents, Testimony or Information at issue in such Motion shall remain in place. The Designating Party shall have the burden on any Designation Motion of establishing the applicability of its “Confidential” designation. In the event that the Designation Objections are neither timely agreed to nor timely addressed in the Designation Motion, then such Documents, Testimony or Information shall be de-designated in accordance with the Designation Objection applicable to such material.

On December 26, 2023, Defendant produced documents which it designated as confidential. On December 28, 2023, Plaintiff’s counsel sent a letter requesting that Defendant de-designate the documents or file a motion to uphold the designations. (Garcia Decl., Ex. A.) The letter did not specifically identify any document by Bates number, but stated, “There is nothing confidential about the incident report, employee schedules, or safety rules at the Costco store concerning, for example, “pallet stacking.” (Id., p. 2.) Plaintiff also stated that the documents included improper redactions and requested that Defendant provide a privilege log to support those redactions or remove them and provide “clean copies.” (Id., pp. 2-3.)

On April 1, 2024, Plaintiff’s counsel sent another meet and confer letter which raised the issue of Defendant’s obligation to file a motion to uphold its confidential designations. Plaintiff stated that Defendant did not file a motion after Plaintiff sent its meet and confer letter. Instead, Defendant had filed a notice of removal on January 17, 2024. Plaintiff reminded Defendant that since the action was remanded to state Court on March 27, 2024, Defendant’s 30-day deadline to file a motion to uphold its designation would expire on April 6, 2024. Due to the removal proceedings, Plaintiff extended the deadline as a professional courtesy by two days to April 8, 2024.

On April 4, 2024, Defendant sent a meet and confer letter which argued that Plaintiff’s objections to its designations were improper because Plaintiff did not identify the specific documents, testimony, or information, and did not cite any reason for the objections other than to say that “[t]here is nothing confidential.” (Garcia Decl., Ex. C.) Plaintiff did not respond, so Defendant filed this motion out of an abundance of caution to preserve its designations. But, without identifying or providing any documents for review, Defendant has essentially asked the Court to render an advisory opinion.

On August 5, 2024, Plaintiff filed an opposition brief in which his chief complaint is that Defendant did not include any of the documents that are purportedly confidential. The Court notes that this is a problem caused by Plaintiff’s own making because of its failure to identify any particular documents either in his initial objections or in his failure to respond to Defendant’s meet and confer letter sent on April 4, 2024. Even in Plaintiff’s opposition, Plaintiff fails to identify the documents by Bates number and still vaguely refers to the documents as the incident report, employee schedules, or safety rules regarding “pallet stacking.”

On August 14, 2024, Defendant lodged 190 documents with the Court. There is no way for the Court to confirm before the hearing that these are in fact the documents that Plaintiff obliquely referenced in his objections. However, even assuming that they are, Defendant offers no evidence to meet its burden of showing that they are confidential. Defendant’s sole evidence in support of its motion is its counsel’s declaration which states “[u]pon information and belief” that his client “seeks to maintain the confidentiality of the documents . . . by requiring a protective order.” (Garcia Decl., ¶ 8.) This statement lacks foundation because it is made on information and belief; therefore, it is not competent testimony demonstrating that the lodged documents are entitled to confidential treatment.

Based on the foregoing, Defendant’s motion is DENIED. Nevertheless, the Court notes that due to Plaintiff’s deficient objections and steadfast refusal to identify the documents with disputed designations with any specificity, the 30-day deadline to file a motion to uphold the designations of the produced documents has not expired. Therefore, the motion is denied without prejudice.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.