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| Recent Developments in California Discovery and
Privilege Law Follow on Twitter |
| E-Discovery Guidelines issued by Nor. Dist.
Calif http://tinyurl.com/aqrtvw2 E-Discovery Pocket Guide HERE from the Litigation Section of the California Bar. Article reviewing Calif. E-Discovery Act HERE. |
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Negro v.
Superior Court (10/21/2014,
6th Distr.), Court ordered consent satisfies lawful
consent exception to Stored Communications Act but express consent
must be given.
“Negro
has been ordered by a Florida court to give his express consent
to
disclosure, and he has complied with that order by e-mailing
Google
and consenting to its production of the e-mails sought. We hold
that
this express consent takes the contemplated production outside
of the
Stored Communications Act, 18 United States Code section 2702
(SCA or
Act), and permits Google to make the requested disclosure,
notwithstanding claims by Negro to the contrary. We further hold
that
in light of Negro's valid express consent to disclosure, the Act
poses no impediment to a subpoena compelling Google produce the
messages.”
Stored Communications Act prohibits
disclosure of contents of a communication stored by provider of
Electronic
Commun. Serv(18 U.S.C. § 2702(a)(1).) Disclosure permitted if
"lawful
consent" provided by originator, an addressee or intended
recipient "or "subscriber."((b)(3)). Lawful consent
exception to Stored Communications Act requires express consent
which
may be given pursuant to a court order but “is not
satisfied by consent that is merely constructive, implied in
law, or
otherwise imputed to the user by a court.” Judicial fiat is
insufficient.
Evilsizor v.
Sweeney (10/28/ 2014, 1st Dist.) , Cal.App.4th
St. Mary v. Superior Court (2014),
223 Cal.App.4th 762 RFA deemed admitted
motion. Substantial compliance with response
requirements prevents granting RFA deemed admitted motion.
"Substantial compliance" must be based on totality of response and
ruling on individual requests and responses is reversible error
since it converts a deemed admitted motion into a motion for
further responses. The decision provided other significant
guidance & detailed analysis of the statute.
Substantial compliance is based on the meaning, objectives and
purpose of the statute. The response must provide essential
information but is not required to satisfy every detail and
technicality. “... actual compliance is not
required where the proposed response is facially a good-faith
effort to respond to RFAs in a manner that is substantially
Code-compliant.” The Court concluded the
responses were substantially compliant when they were verified,
filed prior to hearing, majority were code compliant, and
“most of the balance” contained “meaningful, substantive
responses.”
Unequivocal Admissions & Denials may contain additional
language or explanation. The Court cited Smith
v. Circle P Ranch Co. (1978) 'As
framed, denied,' " and Holguin v. Superior Court
(1972) [RFA responses proper despite "rather weaseling
qualification attached to most of them that they are made on
advice of counsel"].) and 2 commentators. The Court approved
similar responses: "Admit. Thomas Schellenberg was also
present. Admit, first position
only. Deny. There seemed to be
rational explanations for tardiness. Deny.
That letter dated April 10, 2008, was by no means a statement of
'problems....”
Ellis v. Toshiba America Information Systems, Inc.
(2013) , 218 Cal.App.4th 853 modified 219 CA4th 322 The
Court affirmed an award of monetary sanctions against
plaintiff's counsel for failure to meet and confer and for
failure to comply with court order for inspection of a
computer. Sanctions were based on violation of C.C.P. §2023.010, subdivisions (d), (e),
(f), and (g).
After settlement of the class action the parties engaged in
several years of litigation involving discovery of ESI regarding
time records relevant to fees. While ESI issues and arguments were
discussed, no ESI discovery issues were determined and the ESI
statutory provisions were not relevant. However, it addressed
several ESI concepts in footnotes 4, 5, 6, 8, 18 & 20. Orders
for preservation and examination of computers relevant to billing
records were issued but were not at issue on appeal. A writ on the
discovery orders had been summarily denied. Defendant was seeking
metadata but the court did not imposes sanctions for destruction
of metadata though the trial court did order production in native
format. The order imposing sanctions was based on failure to
comply with 2 court orders for limited inspection of counsel's
computer.
The Court noted at page 32 of the slip opinion as to sanctions.
“As the trial court said with some exasperation at the April 24,
2009 hearing on Toshiba's motion for sanctions, after Sklar argued
that the lack of an ordered protocol substantially justified her
disobedience of the court order requiring inspection, 'the record
in this case is one of obfuscation and delay by [Sklar].' We agree. The record
as we have described it above shows that Sklar did not
cooperate in creating a protocol, and "strongly indicates that
the purpose [of Sklar's behavior] was . . . to generally
obstruct the self-executing process of discovery." (Clement v.
Alegre, supra, 177 Cal.App.4th at p. 1292.) That she disputed
details of the protocol (while failing to negotiate with
Toshiba) does not provide substantial justification for her
open defiance of a court order requiring inspection. "The
trial court could look at the whole picture of the discovery
dispute and was well within its discretion in rejecting
[Sklar's] claim of substantial justification." (Ibid.)”
“Section 2023.020 requires the court to "impose a
monetary sanction ordering any party or attorney who fails to
confer as required pay the reasonable expenses, including
attorney's fees, incurred by anyone as a result of that
conduct." Although the discovery statutes expressly require that
a party "meet and confer" before filing certain discovery
motions (§§ 2030.300, subd. (b), 2031.310, subd. (b)(2)), there
is no statutory requirement at issue in this case. Instead, the
trial court repeatedly directed the parties to cooperate in
creating an acceptable protocol for the inspection of Sklar's
electronic records. The record shows that while Toshiba
repeatedly attempted to discuss a protocol for the inspections,
Sklar did not {Slip Opn. Page 32} reciprocate in a constructive
fashion. This failure to engage in cooperative discussion
regarding a protocol resulted in the lack of any agreed-upon
procedure for the July 2008 inspection by Toshiba's expert.
"'[A] reasonable and good faith effort at informal resolution
entails something more than bickering with [opposing] counsel .
. . . Rather, the law requires that counsel attempt to talk the
matter over, compare their views, consult, and deliberate.'
[Citation.]" (Clement v. Alegre, supra, 177 Cal.App.4th at p.
1294.) Sklar cannot rely on the absence of a detailed
protocol--an absence to which she contributed by failing to meet
and confer with Toshiba--as substantial justification for
disobeying the court order to allow the inspection.
County of Los Angeles v. Los Angeles
County Employee Relations Commission (2013),56 Cal.4th 905 Right
to privacy of home address and telephone number recognized
but rejected based on balancing
Exclusive bargaining representative entitled to obtain [contact
info]home addresses and phone numbers of all represented
employees, including those who have not joined the union. Based
on settled labor law principles of a presumption of relevancy,
County employer had a duty to disclose the home address and
telephone number of employees. The burden shifted to the County
employer to show non-relevancy or other reasons, including
privacy, for non-disclosure. It failed to do so.
Right to Privacy framework of Hill case reiterated and
followed: B of P on asserting party to establish all 3 essential
elements---(1) legally protected privacy right, (2)objective and
reasonable expectation of claimant's privacy, and (3)invasion of
privacy serious in nature and scope, If so, balance privacy v.
need for disclosure.
In re Biomet M2a Magnum Hip
Implant Products Liability Litigation (N.D.Ind.
4/18/13) ESI search upheld on facts presented. 19.5
million doc universe reduced to 3.9 mil. by keyword search and to
2.5mil. by deduplication; followed by statistical sampling to
verify accuracy; followed by one run of predictive coding;
followed by review for confidentiality, privilege and relevancy.
Plaintiff's objected to initial keyword cull and sought do over
using predictive coding with joint input on seed set. Court
applied cost benefit analysis and suggested if plaintiffs want a
do over they could pay for it.
Las Canoas Co., Inc. v. Kramer
(2013) , 216 Cal.App.4th 96 Reasonableness of court
reporter fees for transcript copy must be challenged in pending
action and not subsequent action. . “Here we hold that, absent
extraordinary circumstances, the court in the action in which the
dispute arises is the only court to resolve the issue.”
V & P Trading Co., Inc. v. United Charter, LLC (2012) , 212 Cal.App.4th 126 (2012) Lack of capacity to sue due to suspension for failure to pay taxes, is not a defense to a discovery motion to compel answers to interrogatories when the defense was not raised promptly in the litigation and without explanation for the delay.
Kerner v.
Superior Court (Widom) (2012), 206 Cal.App.4th 84 Privilege
waiver / Opportunity to object
The trial court decided any attorney client privilege had been
waived and ordered discovery without determining if the privilege
existed. The appellate court determined that the attorney client
relationship had been established based on the facts and ordered
further proceedings on the waiver issue:
“In light of the unusual circumstances of this case, …. The trial
court must conduct further proceedings, including an evidentiary
hearing, to determine whether Kerner waived her attorney-client
privilege.... The court must make explicit findings as to whether,
despite her physical condition after the attack, Kerner had an
opportunity to consult with counsel concerning assertion of her
attorney-client privilege and whether she had an opportunity to
claim the privilege in this action through her counsel but failed
to do so.”
The decision involved several issues,
relationships and lawsuits and the holding was summarized by the
Court.
“After careful consideration of
the record in these four consolidated writ proceedings, we
conclude that (1) the trial court must conduct further
proceedings to determine whether Kerner waived her claims of
attorney-client privilege with respect to the production of
documents; (2) the trial court erred in finding that Kerner and
Woolverton did not have an attorney-client relationship and
improperly granted Widom's motion to compel Kerner to answer
certain deposition questions; (3) the trial court erred by
considering conduct protected by the litigation privilege (Civ.
Code, § 47, subd. (b)) in support of its finding that Widom had
established a substantial probability of prevailing on a claim
for punitive damages; (4) the existence of an attorney-client
relationship between Woolverton and Kerner does not establish a
basis for privity between them for purposes of collateral
estoppel; and (5) the trial court's consideration of evidence
that Widom had been found "factually innocent" of criminal
charges in ruling on the motion in limine was error.”
In re Marriage of Hofer (2012) , 208 Cal.App.4th 454 Sanctions Husband chose not to disclose evidence of his financial circumstances despite three separate discovery orders and sanctions. This choice "disentitles" husband to a choice accorded most litigants, the choice to appeal. The appeal is dismissed.
Diepenbrock v. Brown (2012) , 208 Cal. App. 4th 743 Sanctions / Substantial Justification. "[C]onflicting legal authority on an unsettled issue provided substantial justification for appellants' position, negating the basis for the sanction order." Marital privilege issue raised by non-party spouse being deposed on punitive damages financial issue. Conflicting motions were filed to compel answers and for protective order to prevent questions on the issue and both sides sought sanctions. The Trial Court “observed...to me the privilege under 970 is clear and so that was the reason for the sanctions." While there was no analysis or holding as to the marital privilege, the Court of Appeal noted that one secondary source recognized a conflict in views on the law and held that was substantial justification for the losing party to oppose the motion.
Chin v. Port Authority of New York New Jersey, 685 F.3d 135(2d
Cir. 7/10/12), spoliation
law in Second Circuit in race discrimination
promotion case.“... plaintiff...argues ...court
erred in denying the plaintiffs' motion requesting an
adverse inference instruction due to ... destruction of
the promotion folders used to make promotions ….upon
receiving notice of the filing of plaintiffs' EEOC charge
...[Defendant] had an obligation to preserve the promotion
folders yet failed to do so. It argues, however, that the
district court did not abuse its discretion in denying an
adverse inference instruction. We agree.
“[A] party seeking an
adverse inference instruction based on the destruction of
evidence must establish (1) that the party having control
over the evidence had an obligation to preserve it at the
time it was destroyed; (2) that the records were destroyed
with a culpable state of mind; and (3) that the destroyed
evidence was relevant to the party's claim or defense such
that a reasonable trier of fact could find that it would
support that claim or defense .” Residential Funding Corp.
v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)
(internal quotation marks omitted). If these elements are
established, a district court may, at its discretion,
grant an adverse inference jury instruction insofar as
such a sanction would “serve[ ][the] threefold purpose of
(1) deterring parties from destroying evidence; (2)
placing the risk of an erroneous evaluation of the content
of the destroyed evidence on the party responsible for its
destruction; and (3) restoring the party harmed by the
loss of evidence helpful to its case to where the party
would have been in the absence of spoliation.” Byrnie v.
Town of Cromwell, 243 F.3d 93, 107 (2d Cir.2001). ***
“We reject the notion that a failure to institute a
“litigation hold” constitutes gross negligence per se.
[citation] Rather, we agree that “the better approach is to
consider [the failure to adopt good preservation practices]
as one factor” in the determination of whether discovery
sanctions should issue.[citation] ...a finding of gross
negligence merely permits, rather than requires, a district
court to give an adverse inference instruction. [citation]
Even if we assume arguendo both that the Port Authority was
grossly negligent and that the documents here were
“relevant,” ... a “case-by-case approach to the failure to
produce relevant evidence,” at the discretion of the
district court, is appropriate. [citation] In this case, the
district court concluded that an adverse inference
instruction was inappropriate in light of the limited role
of the destroyed folders in the promotion process and the
plaintiffs' ample evidence regarding their relative
qualifications when compared with the officers who were
actually promoted. [citation] At trial, Howard Chin was able
to establish his service record and honors, and Chief
Charles Torres testified that Howard Chin was very smart and
a good employee. Under these circumstances, the district
court did not abuse its discretion in concluding that an
adverse inference instruction was inappropriate.
Coito v. Superior Court (2012), 54 Cal.4th
480 Witness statement is at least qualified and may be
absolute work product. Identity of witness providing statement may
be qualified or absolute work product.
"...we hold that the recorded witness statements are entitled as a
matter of law to at least qualified work product protection.
The witness statements may be entitled to absolute protection if
defendant can show that disclosure would reveal its “attorney’s
impressions, conclusions, opinions, or legal research or
theories.” (§ 2018.030, subd. (a).) If not, then
the items may be subject to discovery if plaintiff can show that
“denial of discovery will unfairly prejudice [her] in preparing
[her] claim . . . or will result in an injustice.”
(§ 2018.030, subd. (b).)
"As to the identity of witnesses from whom defendant’s counsel has
obtained statements, we hold that such information is not
automatically entitled as a matter of law to absolute or qualified
work product protection. In order to invoke the privilege,
defendant must persuade the trial court that disclosure would
reveal the attorney’s tactics, impressions, or evaluation of the
case (absolute privilege) or would result in opposing counsel
taking undue advantage of the attorney’s industry or efforts
(qualified privilege).
Doe v. United
States Swimming, Inc. (2011),200
Cal.App.4th 1424. Strained
interpretation of protective order / order compelling discovery
justifies sanctions as a failure to comply with the order
without substantial justification. Attorney's inadequate
declaration provided sufficient support for the trial court
finding of lack of substantial justification and an in camera
review of documents produced was not required.
Trial court heard and determined competing motions to compel and
for protective order and issued an order balancing those interests
and permitting limited redactions of private information.
Responding party “pushed the envelop” and produced “heavily
redacted” documents in a confusing manner in further responding.
“The redacted
documents included newspaper articles, Yahoo
search results, information copied from an Internet news site, and
a complaint filed in
Texas.”(p.4,slip opp.) Trial court granted
further motion to compel and awarded monetary sanctions in excess
of $5000 finding the responding party had failed to comply with
the prior order without substantial justification. Sanctions were
issued for non-compliance with the original order without
substantial justification. In affirming the sanctions order, the
appellate court did not consider the underlying privacy issues.
(p.10,slip opp.)
“The burden of
proving 'substantial justification' for failing to comply with
a discovery order compelling answers or production of
documents and opposing a motion to compel compliance is on the
losing party claiming that it acted with 'substantial
justification.'" (p11,slip opp.)
“Ordinarily, discovery motions are resolved by declaration. (Cal.
Rules of Court, rule 3.1306(a) ["Evidence received at a law and
motion hearing must be by declaration or request for judicial
notice without testimony or cross-examination, unless the court
orders otherwise for good cause shown"]”
Dozier v. Shapiro (2011), 199 Cal.App.4th 1509 Treating physician in med mal
case precluded from testifying as expert on standard of care.
Judgment for defendant affirmed. Treating physician who later
forms opinion based on new information provided by counsel [depo
& med recs of def. Doc] becomes a “retained” expert who must
be disclosed and for whom retained expert information must be
provided.
Prior to expert disclosure, at
treating physician's deposition, the physician had not formed
opinion on standard of care and lacked information to do so.
Objection was raised at the deposition to examination on such
subjects. Subsequent expert disclosures mentioned that treating
physicians might offer opinions and would also testify about
standard of care, causation, damages, and related subjects but
did not provide an expert declaration for this expert. The
expert was provided new information [the med records and depo of
defendant doc] a year after his deposition and
approximately 9 months after expert disclosures on which to base
its opinion and, consequently, was transformed into a retained
expert. Failure to provide the expert declaration at that point
was a failure to comply with the law that denied defendant
required information on the substance of the testimony.
The trial court concluded that the expert's deposition testimony
had not provided notice of the opinion on standard of care or
opportunity to learn of it at that time. It also reconfirmed the
principle that a treating physician may testify as an expert
without becoming a retained expert for whom the declaration is
required. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 38.)
City of Woodlake v. Tulare County Grand Jury (2011), 197 Cal.App.4th 1293 Good cause affidavit requirements of C.C.P.§1985 for a subpoena does not apply to civil grand jury proceedings because they are not civil proceedings
Reilly v. Greenwald & Hoffman, LLP (2011) , 196 Cal.App.4th
891 [4th Dist.Div.1, 5/23/11] Corporate derivative action against
attorney barred when attorney–client privilege prevented use of
evidence in defense. Corporation's outside counsel was
sued in derivative action by 49% stockholder for negligent and
tortious conduct for facilitating the 51% shareholder's conversion
of corporate funds to her own use after the 2 agreed to dissolve
the corporation. 51% stockholder was the president, director and
chief financial officer of corporation; 4( % stockholder was an
officer and director. Corporate counsel provided advice to 51%
shareholder / president / chief financial holder re subject of
lawsuit. Court “finding” that corporation had not waived
attorney-client privilege as to communications between the the 51%
stockholder and counsel that are the subject of the lawsuit.
Demurrer sustained without leave to amend on grounds that counsel
could not defend against claims and that claims against counsel are barred.
In a derivative action, the stockholder does not stand in the
shoes of the the corporation and cannot waive the privilege. The
filing of the action does not waive the privilege.
Dissolved corporation continues to exist for purposes of winding
up and defending lawsuits. The holder of the corporate privilege
is its successor. EC §953(d) The
attorney has a duty to claim the privilege. EC §955.
B&P §6068. EC §958 does not apply to
corporation.
The issue of a conditional stay approach was not decided.
Doe v. Superior Court (Luster) (2011) , 194 Cal.App.4th 750, 2d Dist. Verification can be executed in fictitious name when action is filed and prosecuted in fictitious name. See also Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758.
Clark v. Superior
Court (VeriSign, Inc.) (2011), 196 Cal. App. 4th 37
Disqualification of counsel for failure to comply
with Rico ethics rule affirmed when client provided clearly
privileged documents that were “excessively” reviewed.
Disqualification is not required in all cases when the Rico ethics
rule is violated but may be appropriate to protect a party's
rights or the integrity of the judicial system. . The trial court
ruled these measures were prophylactic, not punitive, and were
necessary to protect [the party's] rights as well as the integrity
of the judicial proceedings, and found there " 'exists a genuine
likelihood that the . . . misconduct of [counsel] will affect the
outcome of the proceedings before the court.' "
The court ordered (1) disqualification of counsel, (2) return of
documents, and (3) prohibition of counsel from discussing the
contents of the documents with anyone or providing counsel's work
product in the action to either the party or any representative
thereof.
People v. Gray (4/28/ 2011), 194 Cal.App.4th 1133. Ordered depublished 8/24/11. Third District held a privilege is waived when notes are used to refresh recollection, brought to the witness stand and used to testify.
Simke,
Chodos,
Silberfeld & Anteau, Inc. v. Athans (2011)
, 195 Cal. App. 4th 1275 “The question
presented here is whether a plaintiff may recover attorney fees
incurred in a case terminated in his or her favor as a discovery
sanction where the complaint contains a request for an unspecified
amount of attorney fees. Put another way, does a complaint have to
specify by dollar amount the attorney fees that will be incurred
and sought in a case ultimately resolved by a default judgment
entered as a discovery sanction?
“We answer that question in the negative....”
National Day Laborer Organizing
Network v. United States Immigration and Customs
Enforcement Agency (S.D.N.Y. 2011), Usable ESI must be searchable
and include metadata. Specific meta data identified.
Recipient complained the form of
production in a FOIA case was not reasonably usable when it
received unsearchable PDFs without metadata. Plaintiff had
informally requested spreadsheets be produced in native format,
text in separate files, and bate stamping. After criticizing
counsel for not attempting to discuss and resolved issues, the
trial court suggested standards for production of documents in
general and pursuant to discovery rules.
“By now, it is well accepted, if not indisputable,
that metadata is generally considered to be an integral part of
an electronic record.”
“Once again, it is by now well accepted that when a
collection of static images are produced, load files must also
be produced in order to make the production searchable and
therefore reasonably usable.
“It is no longer acceptable for any party,
including the Government, to produce a large collection of
static images of EST without accompanying load files. A party
always has the option to produce ESI in native format, which
will reduce costs. But if a party chooses to produce TIFF
images, it must assume that the receiving party will review
those images on some sort of review platform such as a
Concordance database — which requires load files in order to be
reasonably useable. Whether or not metadata has been
specifically requested — which it should be — production of a
collection of static images without any means of permitting the
use of electronic search tools is an inappropriate downgrading
of the ESI.”
On the issues before it, the court determined:“Because no metadata was specifically requested, and
because this is an issue of first impression, I will not require
Defendants to re-produce all of the records with metadata.
However, Defendants must re-produce all spreadsheets in native
format; produce all text records in static image single file
format together with their attachments. All records must be
Bates stamped, which should also assist in the production of
single file format.”
METADATA FIELDS Plaintiff requested 24 fields of metadata.
The court ordered specific load files produced in the future:
Bates_Begin; Bates_End; Attach_Begin; Attach_End; Sent_Date;
Sent Time; To; From; CC; BCC: Subject/Title; Text; Custodian;
and Native File [14 suggested as essential at a judicial cle
program]; Received_Date and Time; Create_Date and Time;
Last_Modified Date and Time; Author, Original Source? The trial
court rejected, because the parties had not addressed it and “at
this juncture I see no need” for it: Parent Folder; File Size,
File Name; File Extension; Record Type; or Master_Date.
Holmes
v. Petrovich Development Co., LLC (2011) , 191Cal.App.4th
1047 [3d Dist. 1/13/11] Client
email to lawyer on employer computer violating employer manual,
signed agreement and warning not confidential and not
privileged. Ev.C. §917, subd. (b). Employee communication
via email to attorney claimed to be privileged at deposition.
Employee sought return and sanctions for use in violation of
alleged agreement. Appeal of summary judgement. Alleged error: “...denying
her motion for discovery sanctions, seeking return of the e-mails
that she sent her attorney,...using the company's computer. We
disagree.” “An electronic communication is not privileged ”... (1)
when the electronic means used belongs to the defendant; (2) the
defendant has advised the plaintiff that communications using
electronic means are not private, may be monitored, and may be
used only for business purposes; and (3) the plaintiff is aware of
and agrees to these conditions. A communication under these
circumstances is not a "'confidential communication between client
and lawyer'" within the meaning of section 952 because it is not
transmitted "by a means which, so far as the client is aware,
discloses the information to no third persons other than those who
are present to further the interest of the client in the
consultation . . . ." Slip Opinion, Page 30
“Absent a company communication to employees explicitly
contradicting the company's warning to them that company computers
are monitored to make sure employees are not using them to send
personal e-mail, it is immaterial that the "operational reality"
is the company does not actually do so. “
Quon case distinguished
on 4th amendment &
“operational realities” grounds
Toyota Motor Sales, U.S.A., Inc. v. Superior Court (Braun) (2010), 189 Cal.App.4th 1391 No. B226902 Counsel presence at psych exam prohibited absent showing of necessity.A writ issued to set aside the trial court's order permitting an examinee's counsel to be present in an adjoining room at a psychiatric exam in order to monitor the exam due to a lack of any evidence of necessity. Based on language in the Vinson and Golfland Entertainment cases, the court acknowledged that a trial court could permit counsel to be present at a psychiatric examination if necessary to protect the examinee from intrusive or offensive probing or otherwise protect his privacy in exceptional cases.
Tucker v. Pacific Bell Mobile Services (2010),186 Cal.App.4th 1548 Monetary sanctions affirmed for attorney coaching of witness at deposition but reversed in part because the amount cannot include anticipated cost that have not been incurred: “We conclude the court did not have the authority to award sanctions for 'further deposing Plaintiff Julie Knapp' because defendants had not 'incurred' those expenses within the meaning of section 2023.030, subdivision (a).”
The Court also held monetary
sanctions can be awarded for failure to answer questions at
deposition even though no motion to compel or order to answer has
been made. [ Slip Opinion
Page 13]
As a preliminary matter the court held that, when a deposition is
being used in two separate actions C.C.P. §1008 does not prohibit
a party from bringing the same motion, denied without prejudice in
one action, in the second action. [Slip Opinion. Page 12]
In affirming the propriety of an award of sanctions the court
stated:
"We review
discovery orders for an abuse of discretion.”***
“Plaintiffs do not contend the court abused its discretion by
granting the motion for sanctions....Similarly, plaintiffs do not
argue the court improperly concluded coaching Knapp and
instructing her not to answer certain questions was a discovery
abuse within the meaning of sections 2023.010 and 2023.030.”
The Court also noted that appellant had not argued that “coaching [the client] and instructing her not to answer certain questions was a discovery abuse within the meaning of sections 2023.010 and 2023.030.” The appellate court deferred to the factual determinations of the trial court and noted: “At the hearing on the motion, the court indicated it was 'very concerned' that Franklin's conduct was 'inappropriate' and that it appeared to be 'coaching the witness in terms of this very critical issue of standing.' The court rejected Franklin's version of what happened at the deposition. It explained, 'putting a note in front of a witness during a deposition and then telling the witness not to say what it is, it certainly has the objective appearance of being improper coaching.'"
The facts reflected in the appellate court opinion raised several issues before the trial court that were not properly before or decided by the appellate court but are worth noting with regard to the trial court ruling. Counsel had communicated to the client via handwritten notes during the deposition. The notes were destroyed after the deposition and after opposing counsel demanded that they be preserved.Qualcomm v. Broadcom (S.D.Ca., April 2, 2010), CASE NO. 05cv1958-B (BLM) Magistrate Judge "declines" to award sanctions against counsel concluding as follows.
"It is undisputed that Qualcomm improperly withheld from Broadcom tens of thousands of documents that contradicted one of its key legal arguments. However, the evidence presented during these remand proceedings has established that while significant errors were made by some of the Responding Attorneys, there is insufficient evidence to prove that any of the Responding Attorneys engaged in the requisite “bad faith” or that Leung failed to make a reasonable inquiry before certifying Qualcomm’s discovery responses. Accordingly, the Court declines to impose sanctions on the Responding Attorneys and hereby dissolves the order to show cause that initiated these proceedings."
REVERSED Coito v. Superior Court,
Stanislaus County (2010), 182
Cal.App.4th
758 Witness statements are
not qualified or absolute work product absent
something "unique about
a particular witness interview that revealed
interpretive rather than evidentiary information." The court rejected the Nacht
& Lewis decision and ordered the
trial court to grant a motion compelling answers to form
interrogatory 12.3 production of witness statements taken
by investigators at the direction of counsel including
questions provided by counsel. The Court in both the
majority and dissent discussed work product cases in
detail and they both agreed the trial court should be
reversed and Nacht & Lewis was improperly
decided. The majority opinion stated its reasoning
in part as follows:
"We agree with petitioner’s argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness’s recollection, impeach the witness’s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)"
"...we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product. Because such statements are not work product, neither is a list of witnesses from whom statements have been obtained (the list requested by form interrogatory No. 12.3)"
The dissenting opinion
agreed "absolute work product privilege is not
applicable to a recorded witness statement merely
because it was recorded by an attorney or his agent" but
concluded it was only potentially
discoverable under the qualified privilege.
COMMENT. The case reconciles with Nacht & Lewis Architects, Inc. v. Superior Court (1996), 47 Cal.App.4th 214 and is consistent with numerous prior cases when attention is placed on the facts and holding in each case rather than a general and categorical conclusion that witness statements are or are not protected. Work product issues like privileges are determined based on the facts presented and the party asserting the objection has the burden of proof. See additional comments by practicing lawyers:
Bruce Nye; Adams | Nye | Trapani | Becht LLP
http://www.calbizlit.com/cal_biz_lit/2010/03/witness-statements-word-product-or-not.html
Morgan, Lewis & Bockius LLP
http://www.morganlewis.com/pubs/LEPG_WorkProductDoctrine_LF_10mar10.pdf
Christopher E. Hale
http://www.martindale.com/litigation-law/article_Sheppard-Mullin-Richter-Hampton-LLP_954158.htm
Paul Caleo Susana Gonzales
http://www.burnhambrown.com/index.cfmfuseaction=content.contentDetail&id=9140&lid=0&print=1
John Gherini; Sedgwick, Detert, Moran & Arnold LLP
http://www.sdma.com/california-appellate-court-rejects-nacht--lewis-regarding-the-scope-of-the-attorney-work-product-doctrine- in-california-03-16-2010/
Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) Spoliation Sanctions issued: adverse jury instruction, set forth in full in the opinion, as to those grossly negligent in performing discovery duties and monetary sanctions against all. The opinion is lengthy and the court noted in Fn 56 that the Judge and 2 of her law clerks spent "close to three hundred hours resolving this spoliation motion". The opinion reviewed various issues and considerable federal case law to be considered in evaluating spoliation sanctions in the 2d Circuit. Lawyers practicing in other jurisdictions should note distinctions in the law and pay attention to the law of the jurisdiction. See Toshiba America Electronic Components, Inc., v. Superior Court (2004) 124 Cal. App. 4th 762. The Court noted as to the duty to preserve: "it was beyond cavil that the duty to preserve evidence included a duty to preserve electronic records. Fn.82. This duty was well established as early as 1985 and has been repeatedly stated by courts across the country." For more details see summary at electronic_data_discovery_new_developments.html
In re
Estate of Dorothy Manuel (Cal. App. Second Dist., Div.
3; August10. 2010) 187 Cal.App.4th 400; [113Cal.Rptr.3d 448,
2010 DJDAR 12445]. Sanctions for unreasonable denial of a
request for admission pursuant to C.C.P. §2033.420 cannot be assessed
against counsel, only the party, based upon the clear wording
of the statute.
Clement v. Alegre (2009) , 177 Cal.App.4th 1277 [No. A123168. First Dist., Div. Two. Sep. 23, 2009.] Sanctions for "meritless" and "nitpicking" objections. An award of $6,632.50 as discovery sanctions was not an abuse of discretion where the party was avoiding discovery "(in this case by responding to straightforward interrogatories with nitpicking and meritless objections), resulting in delaying proceedings, impeding the self-executing operation of discovery, and wasting the time of the court, the discovery referee, the opposing party, and his counsel". Slip Opn. Page 2. The court found there was no substantial justification for such disputes to be forced into court "when no genuine dispute exists." Slip Opn. Page 15.
An objection that the term "economic damages" was vague was found to be "preposterous" at p.7 and without substantial justification. Slip Opn. Page 8
An interrogatory that referred to an answer to a prior interrogatory in the same set is not objectionable based on C.C.P. 2030.060 (d) because "reference to the previous interrogatory here does not refer to or incorporate other materials or documents." Slip Opn. Page 12.
The Court also confirmed that abuses need not be wilful to be sanctionable. "There is no requirement that misuse of the discovery process must be willful for a monetary sanction to be imposed." (Cal. Civil Discovery Practice (Cont.Ed.Bar 4th ed. May 2009 update) § 15.94, p. 1440, citing Code Civ. Proc. § 2023.030, subd. (a); 2 Hogan & Weber, Cal. Civil Discovery (2d ed. 2004) Sanctions, § 15.4, p. 15-8 ["Whenever one party's improper actions -- even if not 'willful' -- in seeking or resisting discovery necessitate the court's intervention in a dispute, the losing party presumptively should pay a sanction to the prevailing party." (Fn. omitted)]; Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)
The opinion as a whole suggests a practical rather than literal or "nitpicking" approach to objections based on the form of interrogatories so as to control abuse and avoid circumvention of limitations on burden such as the limit of 35. Exercise care in relying on some dictum.
While suggesting both sides might have tried harder to resolve the issues, the appellate court accepted the trial court's conclusion that the parties were at an impasse and noted, That [moving party] refused to be bullied into re-writing adequate interrogatories and extending more time for responses does not constitute a failure to {Slip Opn. Page 18} meet and confer...."
Meza v. H.
Muehlstein & Co. (2009) , 176 Cal.App.4th 969 [No.
B201427. Second Dist., Div. Three. Aug. 18, 2009.] While affirming
the disqualification of counsel due to conflict of interest, the
Appellate court concluded that the Joint Defense Doctrine is recognized in California and
disclosure of work product to co-counsel is not a waiver.
The appellate court upheld the order disqualifying
counsel due to conflict arising from counsel sharing information
in the case before one lawyer joined the firm of the opposing
side. Defense counsel's proposed CMC order permitted defense
counsel to share information without it constituting a waiver of
work product and defendants also agreed to share some costs of
defense. In that order the trial court notes that "cooperation
among counsel... is essential for the orderly and expeditious
resolution of the litigation" and "dissemination of information
of common interest among . . . defendants' counsel...shall be
protected by attorney-client privilege" and work product.
Counsel then shared work product. Thereafter, Counsel
representing a former defendant in the action joined plaintiff's
law firm. Remaining co-defendants moved to disqualify
plaintiff's entire law firm. The motion was granted and upheld
by the appellate court.
The appellate court held that substantial work product had been
revealed and that denial of the disqualification "would
undermine California's policy in favor of protecting attorney
work product, its own CMC order, and the integrity and fairness
of the proceedings." It also held:
*California recognizes the common
interest doctrine. Under that doctrine, Lucent and the joining
defendants did not waive protection of confidential attorney
work product.
*work product protection is not waived except by a disclosure
wholly inconsistent with the purpose of the privilege, which is
to safeguard the attorney's work product and trial preparation.
*"Under the common interest doctrine, an attorney can disclose
work product to an attorney representing a separate client
without waiving the attorney work product privilege if
(1) the disclosure relates to a common
interest of the attorneys' respective clients;
(2) the disclosing attorney has a reasonable expectation that
the other attorney will preserve confidentiality; and
(3) the disclosure is reasonably necessary for the
accomplishment of the purpose for which the disclosing attorney
was consulted. (See OXY, supra, 115 Cal.App.4th at p. 891.)
{Slip Opn. Page 12}"
The
appellate
court noted that "... defendant's attorney's disclosure of work
product relating to the defendants' adverse interests results in
a waiver of the attorney work product privilege. However, the
disclosure of work product relating to the defendants' common
interests does not result in a waiver so long as the second and
third elements of the common interest doctrine are satisfied."
Musaelian v.
Adams (2009), 45 Cal.4th 512 (filed 1/15/09), S156045,
Ct.App. 1/4 A112906, Sonoma County Super. Ct. No. SCV236208 No
attorney fees for attorney representing itself.
"We hold therefore that an attorney who
responds in pro se to a filing abuse may not recover
sanctions under section 128.7 in the form of an award of
attorney fees. Laborde v. Aronson, supra, 92 Cal.App.4th
459, and Abandonato v. Coldren, supra, 41 Cal.App.4th 264,
are disapproved to the extent they are inconsistent with our
holding here."
The Court distinguished attorneys representing themselves
from attorneys representing other litigants but who may not
receive specific compensation for specific:
“in-house attorneys, like private counsel
but unlike pro se litigants, do not represent their own
personal interests and are not seeking remuneration simply
for lost opportunity costs that could not be recouped by a
nonlawyer.” [citation] Similarly, privately or publicly
funded legal services providers representing indigent
parties, or attorneys litigating on a contingency fee basis,
are not representing their own personal interests or seeking
remuneration for lost opportunities."
New Albertsons, Inc. v. Superior Court (Shanahan) (2008), 168 Cal.App.4th 1403 B207661 (Los Angeles County Super. Ct. No. BC365496) Denial of withdrawal of admission and granting of discovery and spoliation sanctions reversed.
The trial court was reversed after it denied a motion to withdraw an admission made pursuant to request and imposed evidence and issue sanctions for misuse of the discovery process. The appellate court opinion in dictum and its reasoning restricts a trial court's ability to control discovery abuses and impose sanctions for such abuses including spoliation, provides a low standard for permitting withdrawal or amendments of admissions, and limits the application of the Supreme Court decision in Cedars-Sinai.Pratt v. Union Pacific Railroad Co.
(2008) , 168 Cal.App.4th 165 [No. C055656. Third Dist.
Nov. 12, 2008.]
“This appeal is from a trial court order prohibiting the defendant
... from compelling plaintiff ...to attend a medical examination
or conducting a disciplinary hearing to terminate [his]employment
for refusing to provide it with medical evidence justifying his
continued absence from work."
"The order for injunctive relief is deemed a protective order and
is affirmed as such. The order for sanctions is also affirmed.
Costs are awarded to plaintiff."
Dong Ah Tire
& Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL
4298331 (N.D. Cal.
Sept. 19, 2008)
At a corporate 30(b)(6)
deposition, the witness produced by the party “was unable
to provide knowledgeable testimony on the majority of the sixteen
topics designated in the deposition notice” and the party was
“ordered...to produce a knowledgeable and fully prepared witness
or witnesses to testify...concerning the ten topics not adequately
addressed by [the witness] in the prior Rule 30(b)(6) deposition.”
In addition the party was ordered “to conduct a diligent search
and reasonable inquiry into each...requests for production and to
produce all internal email regarding the subject matter of this
case, communications between Taishan and CTG, relevant documents
Taishan identified but did not produce, and documents for which
Zhang admits no search was previously undertaken. If no documents
are found, Taishan will be required to submit a declaration
stating that a search was made for all responsive documents,
explaining why any responsive documents could not be produced, or
providing the circumstances under which the responsive documents
were misplaced or destroyed.”
The trial court discussed 9th Circuit and N.D. spoliation law and required the
parties to provide further information in response to its
questions to evaluate the spoliation claim
(1) Why was the document destruction policy not followed?
(2) Who was responsible for not following the document destruction
policy?
(3) When were the items identified above destroyed, and when were
they supposed to be destroyed under the document destruction
policy?
(4) When did Taishan and CTG select their counsel for events
relating to this litigation?
(5) What further facts and dates can be added to the general
timeline noted above based on evidence submitted after this
Court's August 25, 2008 Order? Such evidence would come from, but
is not limited to, documents that were found, lost/destroyed
documents that were found, and the new Rule 30(b)(6)
deposition(s).
(6) Explain why should the letter from Calvin Li, in which he
admitted graphite contamination, should/should not be the date of
“anticipated litigation” for purposes of determining sanctions.
(7) Explain why the seventeen point report should/should not be
the date of “anticipated litigation” for purposes of determining
sanctions.
(8) How does the destroyed/lost evidence relate to the party's
respective claim or defense?
Lee v. Dynamex,
Inc. (2008) , 166 Cal.App.4th 1325. [No. B196235. Second Dist., Div. Seven. Aug. 26,
2008.] After first denying Lee's motion to compel Dynamex
to identify and provide contact
information for potential putative class members, the
trial court denied Lee's motion for class certification. Because
the trial court's discovery ruling directly conflicts with the
Supreme Court's subsequent decision in Pioneer Electronics
(USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 (Pioneer),
as well as our decisions in Belaire-West Landscape, Inc. v.
Superior Court (2007) 149 Cal.App.4th 554 and Puerto v. Superior
Court (2008) 158 Cal.App.4th 1242 (Puerto), and that ruling
improperly interfered with Lee's ability to establish the
necessary elements for class certification, we reverse both
orders and remand for further proceedings regarding class
certification.
“...in light of the trial court's discovery order
precluding identification of potential class members before
certification, we conclude Lee was not provided with an adequate
opportunity to meet his burden and, therefore, reverse the
denial of the class certification motion with directions to
permit discovery to proceed and then to conduct a new class
certification hearing.
Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) , 165 Cal.App.4th 1568 Terminating sanctions for discovery abuse reversed because granted after discovery motion cutoff date.
Tierno v. Rite Aid Corp., 2008 WL
3287035 (N.D. Cal. July 31, 2008) Discovery of opt out
class members. Cost shifting for production of paper.
“This is a class action wage-and-hour employment case alleging
that employees were misclassified as managers and therefore
unlawfully denied break time, overtime pay, and other benefits due
under various laws for non-exempt employees.
“Order requiring Rite Aid to disclose the names and contact
information of opt out class members and all individuals who were
store managers during the class period outside California” not
rejected by trial court judge reviewing the magistrate's order.
“Both parties rely on Pioneer Electronics, Inc. v. Superior Court,
40 Cal.4th 360, 370-73 (2007), which reviewed the framework the
Court should use to assess privacy claims: first, the claimant
must have a "legally protected privacy interest," such as an
interest in precluding dissemination of sensitive information or
in making intimate personal decisions without outside intrusion;
second, the claimant must have a "reasonable expectation of
privacy" founded on broadly based community norms; third, the
invasion of privacy must be "serious"; and fourth, the privacy
interest must outweigh the countervailing interests, such as
discovery rights. Id. at 370-73, citing Hill v. National
Collegiate Athletic Assn. 7 Cal.4th 1, 35-40 (1994); see also
Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008).
“Proof that Rite Aid's policies and practices on what tasks store
managers perform are uniform nationwide might bolster the argument
that they are uniform throughout California. Judge Larson's
conclusion that Plaintiff's interest in discovery outweighs any
minimal privacy intrusion caused by disclosure was not clearly
erroneous.
Rite Aid's second Objection, that California law requires an
employer to obtain the consent of employees before releasing their
private identifying information in discovery, has no merit. Rite
Aid argues that "[d]isclosure of an individual's personal
identifying information is only appropriate where the court
'impose[s] important limitations, requiring written notice of the
proposed disclosure to all [individuals], giving them the
opportunity to object to the release of their own personal
identifying information.' " Objections at 8, quoting Pioneer
Electric, 40 Cal.4th at 373. This is an overreading of Pioneer
Electric. That case held only that an order requiring disclosure
of potential class members' contact information was not a serious
invasion of privacy, because the contact information alone
"involves no revelation of personal or business secrets, intimate
activities .. and threatens no undue intrusion to one's personal
life" and because the court had ordered notice. Id. Pioneer
Electric did not impose a notice requirement. Moreover, notice
would make no sense here, as witnesses cannot choose to "opt out"
of civil discovery.
Fn.3 As one court pointed out, "[g]enerally, witnesses are not
permitted to decline to participate in civil discovery, even when
the information sought from them is personal or private." Puerto,
158 Cal.App.4th at 1256-57.
Cost Shifting. “...the seven-factor Zubulake
test...is intended solely for electronic discovery, not for
discovery of paper documents.”
“The rule for paper documents, on the other hand, is that '[a]
party producing documents will ordinarily not be put to the
expense of making copies for the requesting party.'
“Magistrate Judge Larson clearly erred by analyzing the dispute
under Zubulake. However, other grounds may exist for shifting the
costs of copying to Rite Aid. ...while the Court is unaware of
such grounds, Plaintiff shall be granted the opportunity to
argue....
United States District Court,
Regents of the Univ. of California v. Superior Court
(Aquila Merchant Services, Inc.) (2008), 165 Cal.App.4th 672.
disclosure under economic and legal coercion is not waiver
To avoid waiver of work product or attorney-client
privilege by disclosure, it must be done “without
coercion”. The court held threats of prosecution from government
is “coercion” within the meaning of Evid. C. §912. Disclosure
of privileged information when “the threat of regulatory action
and indictment posed the risk of significant costs and
consequences” to the holder is not a waiver.
“...as a matter of policy, the federal government advised
corporations under criminal and regulatory investigation that they
might avoid indictment or regulatory sanctions if they fully
cooperated in the government's investigation and among other
matters waived the attorney-client and attorney work product
privileges.”
“...the trial court found each defendant produced privileged
documents to the government because each defendant believed there
would be severe regulatory or criminal consequences if it was
labeled as uncooperative by the government.”
“...each of the defendants obtained an agreement from the
government under which the government agreed that disclosure of
information to the government was not a waiver of the
attorney-client and work product privileges. None of the
defendants was indicted."
“..the defendants produced to the federal agencies the results of
investigations their respective outside counsel had conducted with
respect to the defendants' compliance with federal regulations and
antitrust law."
The trial court “found that the defendants' cooperation with the
federal agencies did not waive the privileges” and the appellate
court affirmed finding no abuse of discretion."
“...the holder of a privilege need only take "reasonable steps" to
protect privileged communications."
The decision applies to work product as well as attorney – client
privilege. “Although its function is different than the
attorney-client privilege, in this context the attorney work
product privilege is subject to the same waiver principles applied
to the attorney work product privilege. "Waiver of work product
protection, though not expressly defined by statute, is generally
found under the same set of circumstances as waiver of the
attorney-client privilege-by failing to assert the protection, by
tendering certain issues, and by conduct inconsistent with
claiming the protection. [Citations.] Waiver also occurs by an
attorney's 'voluntary disclosure or consent to disclosure of the
writing to a person other than the client who has no interest in
maintaining the confidentiality of the contents of the writing.'"
(McKesson, supra, 115 Cal.App.4th at p. 1239; but see Transamerica
Computer v. Intern. Business Machines (9th Cir. 1978) 573 F.2d
646, 650, fn. 5 (Transamerica Computer).) Thus disclosure to a
third party will waive the work product privilege unless the
disclosure was coerced.”The opinion noted that the issue had not
been raised in the McKesson case and based its decision primarily
on non-California cases involving such matters as inadvertent
production, production pursuant to court order or subpoena, in
camera review pursuant to court suggestion.
Liberty
Mutual Fire Ins. Co. v. LCL Administrators, Inc. (2008)
, 163 Cal.App.4th 1093 [No. C053289. Third Dist. Jun.
10, 2008.] Terminating and
monetary sanctions for “vacuous, meaningless responses” to
“straightforward interrogatories [form interrogatory 15.1
and similar special interrogatories], asking for witnesses,
documents and evidence to support... affirmative defenses and
cross-claims” and the subsequent default judgment were affirmed.
The trial court granted two motions to compel further answers to
form interrogatory 15.1 and awarded monetary sanctions. It warned
that a failure to provide substantive responses could result in
striking affirmative defenses. Responding party promised to
provide a third supplemental response but failed to do so.
After time extensions and non-compliance, two motions to
compel responses to special interrogatories of similar nature were
avoided first by a response prior to the hearing and second by a
declaration of non-opposition. The trial court ordered answers
without objections and the responding party provided evasive
responses. In opposition to the terminating sanctions, responding
party provided declarations from two experts suggesting
investigations had been made, opinions formed and facts did
exist.
The trial and appellate courts relied on responding party's
failures to meet and confer
to support a finding of willfulness and as an independent basis
for awarding sanctions. The opinion also noted the lack of
knowledge of the responding party's PMQ's deposition.
“LCL finally claims that the trial court improperly considered past conduct that
had previously been sanctioned. According to this argument, the
only issue before the trial court was the severity of LCL's
current transgressions; past discovery abuses have no place in
deciding whether to impose terminating sanctions. The claim has no
merit.”
“LCL also claims that terminating sanctions were excessive and an
abuse of discretion because the orders were designed solely to
punish LCL and not to further the objects of discovery.
"The trial court was not being
punitive--it was exercising its broad authority to levy
the ultimate sanction when prior efforts yielded no results.
***Here, LCL persisted in its pattern of failure or refusal to
give meaningful responses to discovery. The trial court was not
required to allow LCL to continue its stalling tactics
indefinitely.”
The Court held a showing of
prejudice is not required for terminating sanctions and
that it existed since the responding party failed to show an
intelligible basis for its position. It held that “wilfulness” was
required but that wilfulness was shown by “worthless” and
“evasive” responses, a failure to meet and confer,
obfuscation and game playing. Intentional concealment is not
required.
R & R Sails Inc. v. Ins.
Co. of Pa.(S.D.
Cal. 2008), 2008 WL 2232640 Sanctions
for failure of a claims examiner to search for and produce
electronic notes in database in an insurance
breach of contract case. The Court ordered payment within 30 days of
$39,914.68 [Cf. $67,154.72 requested and itemized] as
reasonable expenses incurred due to the failure to
conduct a reasonable investigation and produce
electronic records from a data base. Sanctions were
mandated since the failure to produce electronic notes
was not “substantially justified” because the claims
examiner “failed to recognize that the ... database that
he entered notes into contained the 'daily activity logs
or telephone records' that Plaintiff had been
requesting.”
The Court also precluded evidence “Based on Defendant's
past failure to timely produce electronically- stored
information, and Plaintiff's concern that additional
responsive electronically-stored information may be in
Defendant's possession. ***The introduction of any
documents or electronically-stored information which have
already been requested by Plaintiff but were not produced
by Defendant within the discovery period, would risk
prejudice to Plaintiff.” The Magistrate recommended “that
Defendant be precluded from relying on or introducing any
documents, testimony, or expert witness' testimony which
relies on documents or electronically-stored information
that was requested by Plaintiff but was not produced by
Defendant on or before [the close of discovery.”
Documents requested in state court under C.C.P. §2031 were
defined by reference to the definition in Evidence Code
250. After removal to federal court, the Magistrate noted
that the “boilerplate definition of "document" ... did not
provide clear notice that Plaintiff sought discovery from
electronic sources” but considered electronic documents to
be within the scope of the request. It also noted that the
requester had sent two letters requesting written or
electronic copies of the documents at issue but that there
was “no indication that the parties discussed the
discovery of electronically-stored information at their
26(f) conference.” The court rejected the responding
parties explanation “that [claims examiner] did not
associate Plaintiff's document request with the
electronically-stored records which are maintained on his
computer rather than in hard-copy, paper form.”
In re Flash Memory Antitrust Litig.(N.D.
Cal. 2008), 2008 WL 1831668 (4/22/08)
ORDER REGARDING PRESERVATION OF
EVIDENCE enterred in Northern District of California, SAUNDRA
B. ARMSTRONG, District Judge.
IT IS HEREBY ORDERED THAT:
All parties and their counsel are reminded
of their duty to preserve evidence that may be
relevant to this action. The duty extends to documents, data, and
tangible things in the possession, custody and control of the
parties to this action, and any employees, agents, contractors,
carriers, bailees, or other non-parties who
possess materials reasonably anticipated to be subject to
discovery in this action. "Documents, data, and tangible things"
shall be interpreted broadly to include writings, records, files,
correspondence, reports, memoranda, calendars, diaries, minutes,
electronic messages, voice mail, E-mail, telephone message records
or logs, computer and network activity logs, hard drives, backup
data, removable computer storage media such as tapes, discs and
cards, printouts, document image files, Web pages, databases,
spreadsheets, software, books, ledgers, journals, orders,
invoices, bills, vouchers, check statements, worksheets,
summaries, compilations, computations, charts, diagrams, graphic
presentations, drawings, films, charts, digital or chemical
process photographs, video, phonographic, tape or digital
recordings or transcripts thereof, drafts, jottings and notes,
studies or drafts of studies or other similar such material.
Information that serves to identify, locate, or link such
material, such as file inventories, file folders, indices, and
metadata, is also included in this definition. Until the parties
reach an agreements on a preservation plan or the Court orders
otherwise, each party shall take reasonable steps to preserve all
documents, data, and tangible things containing information
potentially relevant to the subject mater of this litigation. In
addition, counsel shall exercise all reasonable efforts to
identify and notify parties and non-parties of their duties,
including employees of corporate or institutional parties, to the
extent required by the Federal Rules of Civil Procedure.
Serrano
v. Stefan Merli Plastering Co., Inc. (2008), 162 Cal.App.4th
1014 No. B193502. Second Dist., Div. Three. May. 7,
2008 Trial Court can determine
if a court reporter fee charged a non-noticing party is
reasonable and, if not, determine the appropriate amount and
order payment on appropriate terms.
Expert depositions were taken a month before trial and the
non-noticing party requested a copy of the transcript but objected
to the reporter's fee. “The [parties] agreed that the court would
determine "the validity and reasonableness" of the expedited
service fee and that the ruling would govern the fees for all
other deposition transcripts in this action.” The trial court
expressed the opinion that the reporter's fee was unconscionable
but determined it could not determine the fee based on Urban
Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App.
4Th 688. The Court “remanded with directions to the trial court to
(1) determine whether the expedited service fees charged by Coast
for copies of deposition transcripts were reasonable, and (2) if
any of those amounts were unreasonable, order Coast to refund to
the Serranos the amounts paid by the Serranos in excess of the
reasonable charges.
“Our holding is limited to circumstances where (1) there is no
relevant contractual relationship between the deposition reporter
and the non-noticing party relating to the cost of a copy of the
deposition transcript and (2) court intervention is required to
ensure that the deposition reporter provide a copy of a deposition
transcript to a non-noticing party in a pending action where the
reporter has either refused to provide such a copy or is willing
to do so only on the condition that the non-noticing party pay
what it believes to be an unreasonable fee.”
Hirano
v.Hirano (Cal. App. Second Dist., Div. 8;December 19, 2007)
(As modified Jan.2, 2008) 158 Cal.App.4th 1. After reversal of
judgment entered after dismissal for failure to
prosecute and remand for a trial, discovery reopens. The
prior demand for exchange of experts is of no effect.
In the first trial, experts were precluded because of
non-disclosure in accord with a demand. A continuance of
the first trial because of the unavailability of a party
was denied and that action dismissed for failure to
prosecute. The judgment based on that dismissal for
failure to prosecute was reversed and the matter remanded
for a new trial.
After remand, on the new date of trial, the trial court
granted respondent’s motion to preclude appellant from
introducing any expert testimony based upon non-compliance
in the second trial with the demand made in the first
trial. No new demand had been made in the second trial;
but, the moving party had made a disclosure by fax.
Because the appellate had no expert witnesse due to the
preclusion order, the trial court granted respondent’s
motion for nonsuit. The Court of Appeal reversed this
judgment for improper exclusion of evidence stating as
follows.
"When the prior judgment was reversed, the matter remanded
and a new initial trial date set, discovery was
automatically reopened. (Fairmont, supra, 22 Cal.4th at p.
250; Beverly Hospital, supra, 19 Cal.App.4th 1289.)
Because neither party made a section 2034.210 demand for
exchange of expert witness information in connection with
the new initial trial date, neither was required to comply
with section 2034.260. (West Hills, supra, 98 Cal.App.3d
at p. 660.) Accordingly, the trial court erred in
excluding appellant’s expert witness evidence on the
grounds that appellant failed to make a timely exchange of
expert witness information."
Snyder
v.
Superior Court (Caterpillar, Inc.) (Cal.App.Second
Dist., Div. 2; December 18, 2007) 157 Cal.App.4th 1530. The
Court held a local rule
requiring disclosure of absolute or qualified work product
is invalid. The court concluded without extensive
discussion as follows:
Krinsky v. Doe 6 (2008),158 Cal.App.4th
1242
1st Amendment protection of identity of anonymous speaker on
Internet. Because plaintiff in a defamation action failed
to establish a prima facie case in opposition to a motion to
quash, plaintiff's discovery of the identity of an Internet poster
and potential defendant from the poster's ISP is protected and
prevented by the First Amendment right to speak anonymously.
“...Krinsky served a subpoena....
Yahoo! notified Doe 6 that it would comply with the subpoena
in 15 days unless a motion to quash or other legal objection
was filed. Doe 6 then moved in superior court to quash the
subpoena on the grounds that (1) plaintiff had failed to state
a claim sufficient to overcome his First Amendment rights for
either defamation or interference with a contractual or
business relationship, and (2) plaintiff's request for
injunctive relief was an invalid prior restraint.”
“Where it is clear to the court that
discovery of the defendant's identity is necessary to pursue
the plaintiff's claim, the court may refuse to quash a
third-party subpoena if the plaintiff succeeds in setting
forth evidence that a libelous statement has been made. fn. 14
When there is a factual and legal basis for believing libel
may have occurred, the writer's message will not be protected
by the First Amendment.[citations] Accordingly, a further
balancing of interests should not be necessary to overcome the
defendant's constitutional right to speak anonymously.”
The trial court failed to determine whether a prima facie case
for defamation had been presented. The Appellate Court
concluded “that the language of Doe 6's posts, together with
the surrounding circumstances -- including the recent public
attention to SFBC's practices and the entire "SFCC"
message-board discussion over a two-month period -- compels
the conclusion that the statements of which plaintiff
complains are not actionable.”
“We thus conclude [the online statements] were not actionable
under Florida's defamation law. Because plaintiff stated no viable
cause of action that overcame Doe 6's First Amendment right to
speak anonymously, the subpoena to discover his identity should
have been quashed.”
Puerto v. Superior Ct. (Wild Oats Markets,
Inc.), (2008), 158 Cal.App.4th 1242. No.
B199631 (1/15/08) In a case “alleging wage and hour violations, contact information required for 2600
employees identified as potential witnesses in response to Form
Interrogatory 12.1. An "opt in" approach is unduly
restrictive. See also Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40
Cal.4th 360.
After initially responding with boilerplate objections, defendant
provided the names and positions but not contact info of 2600 -
3000 witnesses to the incident subject to all objections but later
suggested they may not actually be witnesses. Ultimately, the
trial court required the identified “witnesses” to consent in
writing and “opt in” as a prerequiste for disclosure of contact
information. The appellate court issued a writ vacating that order
and requiring disclosure. It discussed privacy rights extensively.
“During discovery , the trial court partially granted a motion to
compel Wild Oats to provide the telephone numbers and addresses of
individuals previously identified by name by Wild Oats in response
to a form interrogatory, adopting a procedure to protect their
privacy by sending a notice that would have required those
individuals to fill in a postcard authorizing a third party
administrator to disclose their addresses and phone numbers to
petitioners. We conclude that the opt-in notice unduly hampers
petitioners in conducting discovery to which they are entitled by
erecting obstacles that not only exceed the protections necessary
to adequately guard the privacy rights of the employees involved
but also exceed the discovery protections given by law to far more
sensitive personal information. Based on this conclusion, we hold
that the trial court abused its discretion, and grant the
writ.”***“Let a peremptory writ of mandate issue directing the
superior court to vacate its order allowing disclosure and contact
only if the witness consents, and to enter a new order directing
the disclosure of contact information for the individuals
identified in response to Form Interrogatory No. 12.1. This order
is without prejudice to petitioners seeking a further response to
the Form Interrogatory that includes only those persons Wild Oats
believes to have percipient knowledge.”
“Apparently mindful of the fact that the right to privacy in
contact information is unlikely to trump the petitioners' right to
investigate their claims by contacting witnesses, Wild Oats
vigorously argues that the population whose information is sought
by petitioners cannot be characterized as witnesses. Taking this
position requires Wild Oats to assert that the individuals it
identified under oath in response to discovery are not potential
witnesses.”
“In response to Form Interrogatory No. 12.1, Wild Oats identified
approximately 2600 witnesses, but refused to tell petitioners how
to find them. Petitioners have a statutory entitlement to the
contact information for these witnesses.” [citations]
Factual distinctions from the Pioneer case were noted “...we also
note that salient distinctions exist between that case and the
circumstances here. In Pioneer, the plaintiffs sought not just
contact information, but the very identities of the affected
individuals; here the witnesses' identities have already been
disclosed. Moreover, the discovery in Pioneer was precertification
discovery designed to identify members of the class rather than to
locate percipient witnesses, although the Supreme Court did note
that some number of the potential class members would also be
witnesses. This procedural distinction explains why the opt-out
letter outcome of Pioneer is not necessarily appropriate here: in
Pioneer, the plaintiffs were looking for people who would want to
participate in the lawsuit. As pursuing litigation is a voluntary
activity, an opt-out letter that offered recipients the option of
participating or declining to participate was appropriate. In
contrast, a percipient witness's willingness to participate in
civil discovery has never been considered relevant--witnesses may
be compelled to appear and testify whether they want to or not.”
Rico v. Mitsubishi Motors
(2007), 42 Cal.4th 807 (Filed
12/13/07) Recipient's ethical duty
upon receipt of inadvertently produced
documents that are privileged, confidential or
protected from discovery.
Attorney disqualification upheld.
The Supreme Court determined a
document, in toto,
to be absolute work product and to have been
inadvertently produced. It adopted the ethical standard
set forth in State
Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal.
App. 4th 644. It also agreed that the “standard
applies to documents that are plainly privileged and
confidential, regardless of whether they are privileged
under the attorney-client privilege, the work product
privilege, or any other similar doctrine that would
preclude discovery based on the confidential nature of
the document.”
The Supreme Court found no
abuse of discretion and affirmed the disqualification of
counsel as an appropriate remedy.
Rico v.
Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 Attorney generated document
reflecting attorney's thoughts and notes is protected as
Absolute Work Product.
Document prepared by a person acting as a
paralegal regarding an expert interview as to case evalutation
and strategy created at direction of counsel that reflects
counsel's thought process and contain counsel's notes is
protected as absolute work product. Trial and appellate courts
found and the Supreme Court afffirmed that “the entire document
was protected as attorney work product.”
2 client reps & case manager, 2 lawyers, and 2 "designated
defense experts" met "to discuss their litigation strategy and
vulnerabilities. Case Mgr. and outside Atty "had worked together
over a few years. Atty asked Case Mgr. "to take notes at the
meeting and indicated specific areas to be summarized. Case Mgr.
typed the notes on Atty's computer and acted as Atty's
paralegal. Case Mgr. returned the computer and never saw a
printed version of the notes. Atty printed only one copy of the
notes, which he later edited and annotated. Atty never
intentionally showed the notes to anyone, and the court
determined that the sole purpose of the document was to help
Atty defend the case.
“The notes were written in a dialogue style and summarize
conversations among two outside counsel and the two experts.
They are dated, but not labeled as 'confidential' or 'work
product.' The printed copy of these compiled and annotated notes
is the document at issue here. The document contained notations
by one counsel but had never been seen by co-counsel.
“The document is not a transcript of the...strategy session, nor
is it a verbatim record of the experts’ own statements. It
contains [Case Mgr.'s] summaries of points from the strategy
session, made at [Atty.'s] direction. [Atty] also edited the
document in order to add his own thoughts and comments, further
inextricably intertwining his personal impressions with the
summary. (See Rodriguez, supra, 87 Cal.App.3d at pp. 647-648.)
In this regard, the trial court found: 'As to the content of the
document, although it doesn’t contain overt statements setting
forth the lawyer’s conclusions, its very existence is owed to
the lawyer’s thought process. The document reflects not only the
strategy, but also the attorney’s opinion as to the important
issues in the case. Directions were provided by [Atty] as to the
key pieces of information to be recorded, and [Atty] also added
his own input as to the important details, by inserting other
words in the notes. The attorney’s impressions of the case were
the filter through which all the discussions at the conference
were passed through on the way to the page.' The court
concluded, '[T]his court determines that the attorney’s
directions to record only portions of the conference specific to
the attorney’s concerns in the litigation are sufficient to
support the finding that the notes are covered by the absolute
work product [doctrine], as the choices in statements to record
show the thought process and are too intertwined with the
document.'
“Although the notes were written in dialogue format and contain
information attributed to Mitsubishi’s experts, the document
does not qualify as an expert’s report, writing, declaration, or
testimony. The notes reflect the paralegal’s summary along with
counsel’s thoughts and impressions about the case. The document
was absolutely protected work product because it contained the
ideas of [Atty] and his legal team about the case. (§ 2018.030,
subd. (a).)”
Unzipped Apparel, LLC v. Bader
(2007), 156 Cal.App.4th 123, 67 Cal.Rptr.3d 111 When a nonparty served with a
records subpoena elects to file an objection rather
than comply with the duty to produce, the propounding party is
required to move to compel
within 60 days of receipt of that objection or waive
its right to compel.
Mota v. Superior Court (Villalobos) 2007), 156 Cal.App.4th 351 [No. G038289. Fourth Dist., Div. Three. Oct. 22, 2007.] Discovery was denied in a probate proceeding involving objections to a trustee's distribution because a formal petitioner pursuant to Probate Code Sec. 850 to recover funds had not been filed. The appellate court ruled the petition was not a prerequisite to conducting discovery relevant to the accounting and distribution. The appellate court directed “respondent court to vacate its order denying discovery and to reconsider Mota's motion to compel to determine whether the documents she seeks are discoverable. Although personal financial information was involved in the discovery, the privacy issue was not raised or determined.
Belaire-West Landscape, Inc. v. Superior
Court (2007), 149 Cal. App. 4th 554
Privacy of complainants
protected in putative class action for wage and hour
violations by providing notice and opprtunity to object and
opt out.
“During precertification discovery, the trial court
granted a motion to compel Belaire-West to provide the names and
contact information of all current and former Belaire-West
employees and adopted a proposed notice to those individuals
that would have required them to object in writing in order to
prevent information about them from being disclosed to the real
parties in interest..Applying Pioneer Electronics (USA), Inc. v.
Superior Court (2007) 40 Cal.4th 360 [53 Cal. Rptr. 3d 513, 150
P.3d 198] (Pioneer), we conclude that the opt-out notice
adequately protects the privacy rights of the current and former
employees involved. We deny the writ.”
“ We conclude that the trial court properly
evaluated the rights and interests at stake, considered the
alternatives, balanced the competing interests, and permitted
the disclosure of contact information regarding Belaire-West's
current and former employees unless, following proper notice,
they objected in writing to the disclosure. Requiring current
and former employees to object to disclosure of their identities
and contact information presents no serious invasion of their
privacy interests.” [see the opinion for the text and content of
the notice and the findings of the trial court.]
The Court set forth the following elements based on the Hill and
Pioneer cases:
“As a starting point, the claimant must possess a
“legally protected privacy interest.”
Next, the claimant must have a reasonable expectation of privacy
under the particular circumstances, including the customs,
practices, and physical settings surrounding particular
activities.
Third, the invasion of privacy must be serious in nature, scope,
and actual or potential impact; trivial invasions do not create
a cause of action.
If a claimant meets these criteria, then the court must balance
the privacy interest at stake against other competing or
countervailing interests. (Pioneer, supra, 40 Cal.4th at pp.
370–371.)”
Zurich American Ins. Co. v. Superior Court
(Watts Industries, Inc.) (2007) , Cal.App.4th [No.
B194793. Second Dist., Div. Four. Oct. 11, 2007.] The appellate
court reversed the trial court when it stated and presumably
applied a definition of
attorney–client privilege that did not include the
language of Evidence Code Section 952, which permits disclosure to those to whom
disclosure is reasonably necessary for the accomplishment of the
purpose for which the lawyer is consulted. After an
agreed in camera inspection of the first 76 documents, the referee
and trial court had overruled the privilege claims.
“The referee recognized that many of the disputed documents
'indicate internal litigation plans and strategy with respect to
the cases in dispute,' but 'the attorney-client privilege is
limited to communications by counsel to a client, and by a client
to counsel. The fact that many of the disputed items contain
discussion of legal matters, strategy, and status of the bad faith
litigation cannot be used to cloak them with either the
attorney-client privilege or the work product privilege for that
reason alone.'"
“[Defendant]contends the trial court...used the
wrong standard in overruling its claim of attorney-client
privilege.... We agree that the challenged orders employed an
overly restrictive definition of the attorney-client privilege,
and grant relief on that basis.”
“The fundamental issue in this case is whether
corporate communications not directly involving an attorney, but
which discuss legal advice, come within this privilege. As we
have seen, the discovery referee and trial court adopted a
definition of the attorney-client privilege limited to "items in
the claim file that contain actual copies of letters or e-mail
communications from outside counsel, or documents that have been
created by counsel, or received by counsel, or that contain
direct communications from counsel, as indicated in the comment
section of the attached listing of documents, . . ." This
definition is inadequate because it fails to take into account
language of section 952 expressly contemplating that
confidential communications include information transmitted to
persons "to whom disclosure is reasonably necessary for the
transmission of the information," and those to whom disclosure
is reasonably necessary for "the accomplishment of the purpose
for which the lawyer is consulted." Section 952 expressly
includes legal opinions and advice given by a lawyer within the
definition of confidential communication.”
The appellate court did not rule on any documents. It discussed
basic statutory and case law, as well as the Restatement Third
of Law Governing Lawyers, and provided “guidelines” to the trial
court before remanding the matter for the trial court “to
conduct a new review of the disputed documents applying the
principles related to the attorney-client privilege expressed in
this opinion.”
Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.
Mardirossian
& Associates, Inc. v. Ersoff (2007), 153 Cal.App.4th 257 .
Improper to exclude testimony
inconsistent with deposition testimony. "The usual
purpose of motions in limine is to preclude the
presentation of evidence deemed inadmissible and prejudicial by
the moving party.'" (Kelly v. New West Federal Savings
(1996) 49 Cal.App.4th 659, 669 (Kelly).) ***
His deposition testimony is not inconsistent with his trial
testimony on that point; but, even if it were, the trial court
properly concluded such inconsistency was to be evaluated by the
trier of fact. (Kelly, supra, 49 Cal.App.4th at p. 673.) As
our Division Four colleagues recognized in Kelly, although
a party may be precluded from introducing evidence contrary to its
response in a request for admission (Code Civ. Proc., § 2033.410,
subd. (a)), deposition testimony does not serve the same purpose
as a request for admission, which is aimed primarily "at setting
at rest a triable issue so that it will not have to be tried." (Kelly,
at p. 673.) Accordingly, "[i]t is a misuse of a motion in
limine" to attempt to compel a witness or a party to conform
his or her trial testimony to his or her deposition testimony.
Trial testimony may be impeached by inconsistent deposition
testimony, but absent an abuse of the discovery process, such
testimony should not be precluded. (Id. at p. 672.)"
Jacob B. v. County of Shasta, 40 Cal.4th 948, 154
P.3d 1003, 56 Cal.Rptr.3d 477. Litigation
privilege applies to and prohibits an action based on the
constitutional right to privacy. Official writing a
letter to be used in litigation is protected by the litigation
privilege and cannot be sued for violating the right to privacy
of a non-party. The Constitutional Right to Privacy is not
absolute and must be balanced against the absolute litigation
privilege of Civil Code 47(b) which encourages participation in
judicial proceedings.
Michaely v. Michaely (2007), 150 Cal.App.4th 802[2d Dist., Div. 5. Apr. 16,
2007.] Sanctions establishing factual findings upheld. The
appellate court rejected the argument
“that discovery sanctions can only be imposed for failure to
comply with a court order, or when a pattern of discovery
abuse leads to a loss of evidence” and upheld sanctions based
on the broad discretion that trial courts have. Factual
findings established based on egregious discovery misconduct.
The discovery referee “...found that at the deposition,
Husband engaged in intentional, pervasive, and egregious
evasiveness, was willfully untruthful, and gave inconsistent and contradictory testimony. His
conduct at the deposition was the equivalent of refusing to sit
for the deposition, in violation of court order. Husband failed
{Slip Opn. Page 4} to produce documents in response to the
request for production, did not produce documents he claimed to
have produced, claimed that he could not identify documents
which he did produce, and intentionally produced voluminous
documentation which was not responsive. He had in the past
failed to comply with other discovery. His intentionally evasive
and obstreperous conduct deprived Wife of meaningful discovery.”
The Court found “that the order was necessary to level the
playing field and prevent Wife from being prejudiced by
Husband's willful and egregious misuse of discovery, and that
the imposition of lesser sanctions would not be a sufficient
remedy. The court found: "[Husband's] consistent evasion,
coupled with [his] responses which were blatant untruths and not
credible, amounted to an egregious abuse of the discovery
process."
Objections to the discovery referee were rejected as
non-prejudicial and waived as untimely.
Steven M. Garber &
Assoc. v. Eskandarian (2007) , 150 Cal.App.4th 813
[2d Dist., Div.8. Apr. 24, 2007] Opinion modified
and certified for partial publication. Terminating sanctions for not
complying with order compelling further responses. Form
and special interrogatories and production requests were served on
multiple defendants who failed to object on time and then served
multiple late objections. The trial court ordered further
responses and awarded sanctions against the parties and counsel.
When further responses were not filed, terminating sanctions were
granted. The appellate court affirmed stating “Given that appellants themselves had brought on the
situation that the court had to resolve on January 26, 2005,
the trial court could do nothing other than what it did do,
which was to grant the motion for terminating sanctions and to
offer appellants a chance to set that order aside.”
“Appellants' contention that a
statement of damages should have been filed before the default
was taken is without merit. A statement of damages is
required only in cases involving personal injuries or wrongful
death. (Code Civ. Proc., § 525.11.)”
Reedy v. Bussell (2007), 148 Cal.App.4th 1272, 56 Cal.Rptr.3d 216 Terminating sanctions affirmed stating “Based upon the record before us, we can only wonder what took it so long.” On two other, matters the sanctions entering specific dollar judgments were reversed since specific damages had not been alleged. It was suggested that only the issue of damages need be tried and that liability could be established by a more limited sanction order.
Parker, v. Wolters Kluwer United
States (2007), 149
Cal.App.4th 285, A party repeatedly failed to comply
with discovery obligations and court orders and the
court awarded monetary and terminating sanctions. Terminating
sanctions were upheld as to the complaint when the propounding
party was denied discovery on it. The sanctions were reversed as to both non-propounding and
propounding parties when sanctions went beyond rectification
of the discovery abuses. When discovery related to the
complaint but not the cross-complaint, terminating sanctions on
the cross-complaint were reversed. It was also an abuse of
discretion to award sanctions in favor of non-propounding
parties when they were not justified by a showing of prejudice.
Parties seeking sanctions have the burden to show prejudice. The
court noted and discussed a seeming inconsistency in decisions
relating to sanctions in favor of non-propounding parties.
Violation of a prior order is not a prerequisite for monetary
sanctions. Findings that opposition was without substantial
justification are not required when sanctions are granted.
Monetary sanctions are required on the “first offense” unless
the court makes an express finding that the failure to provide
discovery was “without substantial justification.”
Ex parte motion after oral notice at a deposition is proper to
compel attendance but not to obtain sanctions for discovery
abuses.
A party waives objections to distance limitations by failing to
object 3 days prior to the deposition.
The Supreme Court reviewed Hill v. National Collegiate Athletic Assn. (1994), 7 Cal.4th 1
Assuming that a
claimant has met the foregoing Hill criteria for
invasion of a privacy interest, that interest must be measured
against other competing or countervailing interests in a
"balancing test."[citations] "Conduct alleged to be an invasion
of privacy is to be evaluated based on the extent to which it
furthers legitimate and important competing
interests."...Protective measures, safeguards and other
alternatives may minimize the privacy intrusion. "For example,
if intrusion is limited and confidential information is
carefully shielded from disclosure except to those who have a
legitimate need to know, privacy concerns are assuaged." (Ibid.)
[See below re appellate opinion]
Britts v. Superior Court
(2006), 145 Cal.App.4th
1112 "We hold ... that
discovery motions, including those that are pending, are also stayed upon the filing of an
anti-SLAPP motion."
United States v. Long
(9/27/06) Crim. App. No. 200201660, United States Court
of Appeals for the Armed Forces, Argued February 21, 2006,
Decided September 27, 2006.
www.armfor.uscourts.gov/opinions/2006Term/05-5002.pdf
Court of Appeals for the Armed forces found a soldier had reasonable
expectation of privacy in e-mails sent and received on a
military computer and stored on a server and that evidence
obtained by search should be excluded. The decision
was based on the announced policy for monitoring computer use,
the practice of the administrators and the password protection
of the uses.
"As noted, in examining Fourth Amendment privacy interests,the
courts look first to whether the individual had a subjective
expectation of privacy.If the courts ascertain that a
subjective expectation of privacy exists, they then determine
if that expectation is one that society is prepared to accept
as reasonable." Page 12. Citing Minnesota v. Olson, 495 U.S.
91, 95-96 (1990); United States v. Monroe, 52 M.J. 326, 330
(C.A.A.F. 2000). O’Connor v. Ortega, 480 U.S. 709, 715 (1987)
(plurality opinion).
Cooley v.
Superior Court (Greenstein) (June 26, 2006) , 140 Cal.App.4th 1039 The business records subpoena can only be used to obtain
documents from persons who can execute the business records
affidavit. "At first blush, it would seem that a
person or entity that maintains records would also be the
custodian of those records. Nevertheless, the custodian of
records or other qualified witness contemplated by Evidence
Code section 1561 must also be able to attest to various
attributes of the records relevant to their authenticity and
trustworthiness. As such, execution of a section 1561
affidavit is more than simply a clerical task." ..."And as
section 1561 now stands, the [person merely in possession of
records] is unable to comply with subdivision (a)(4) and (5),
and, thus, is not a [proper] custodian of the records sought."
C.C.P. §2020.020 provides for three situations for the
issuance of a subpoena: (a)only testimony (b) only business
records for copying per §2020.410 and (c) testimony and
production. C.C.P. §2020.410(c) provides that when seeking
only production of business records for copying the subpoena
must be directed to a custodian "qualified to certify the
records." C.C.P. §2020.430 requires the "qualified person" to
deliver the affidavit required by Evid. Code §1560. NOTE: the
same affidavit requirement does not apply to a subpoena for
both testimony and production.
Global
Compliance v. American Labor Law [NOT REPORTED
Cal.App 2nd Dist. May 15,2006) 2006 WL
1314171, 2006 Cal. App. Unpub. LEXIS 4157. Discovery
sanctions affirmed. When a court denied sanctions due to
the failure to provide a factual basis in support of the
request as required by C.C.P. §2023, the court had
inherent authority to deny without prejudice, to invite a
new motion and to reconsider the denial, and to grant
monetary sanctions. Citing "(LeFrancois
v.
Goel (2005) 35 Cal.4th 1094, 1107 [holding
Code of Civil Procedure "sections 437c and 1008 limit the
parties' ability to file repetitive motions but do not
limit the court's ability, on its own motion, to
reconsider its prior interim orders"]
"ALLC and Mango argue they should not have been required,
at their expense, to provide the documents in the CD-ROM
format, because that is not how their documents were "kept
in the usual course of business[.]" (Code Civ.
Proc., § 2031, former subd. (g)(1), now
subd. (f)(1).) They do not dispute that the documents at
issue were "kept" in their computer. A CD is simply a copy
of the electronic data on the computer. Just as
photocopying is proper for copying a document in paper
form, downloading computer files onto a CD is an
appropriate means for copying the electronic data on a
computer's hard drive. Any right to reimbursement was
waived by their failure to request that CPC pay for the
CD(s)."
O'Grady v. Superior Court (2006), 139 Cal.App.4th 1423,
2006 WL 1452685 A writ issued directing
the trial court to enter a protective order sought by
publishers of a website to prohibit
discovery of sources or content of e-mails stored on a
service providers servers "because (1) the subpoena to the
email service provider cannot be enforced consistent with
the plain terms of the federal Stored Communications
Act[citations]; (2) any subpoenas seeking
unpublished information from petitioners would be
unenforceable through contempt proceedings in light of the
California reporter's shield [citations]; and (3) discovery
of petitioners' sources is also barred on this record by the
conditional constitutional privilege against compulsory
disclosure of confidential sources [citation]."
See also California Shellfish v.
United Shellfish(1997), 56 Cal.App.4th 16, 23 [Plaintiff
must serve at least one defendant to assure protection of
adversarial interests and protect against abuse of the discovery
process. Plaintiff argued it needed discovery to determine who to
serve but court noted the greater protection provided for motions
to perpetuate testimony and noted that this was the "minimum
protection" required.]
FTC v. Ameridebt, Inc.,
(N.D.Ca. 2006), 2006 U.S. Dist. LEXIS 13687 A motion by a non-party
to stay an order denying a motion to quash a subpoena
based on estimated volume or attorney fee costs of review was
denied. The non-party had been permitted to assert privileges by
providing a log. "...the Court is skeptical that the volume is
as great as his 'estimate,' and notes that the email could
likely be screened efficiently through the use of electronic
search terms that the parties agreed upon. The costs of
compliance with subpoena for e-mail "...are quantifiable and, if
appropriate, can be remedied by cost-shifting."
Kemper Mortg., Inc. v. Russell,
(S.D.Ohio 2006), 2006 U.S. Dist. LEXIS 20729 Plaintiff's request for compensation for complying, pursuant to the advice of
its own expert, with its duty to preserve was denied because
"the Court believes that it is without authority to do so." "One
of the unexpected costs of using the electronic tool is that it
may become costly to abide by one's duty to preserve evidence,
but that is not a cost which can be shifted to the opposing
party, at least in the absence of a demand for a litigation hold
which seeks court enforcement and/or requests for discovery
which can limit the amount of information which needs to be
preserved."
Tien v. Superior Court (Tenet
Healthcare Corp.) (2006) , 139 Cal.App.4th
528. Privacy
of putative class member contacting counsel.
By agreement, a sample of putative class member employees were
invited to contact plaintiff's counsel and defendant sought
the names etc. of those who did and plaintiffs sought a
protective order. 24 of 82 objected to disclosure, some
because they feared retaliation. The appellate courts affirmed
the trial court's overruling of the attorney-client privilege
objection because disclosure of names of persons contacting
counsel "would reveal nothing confidential." The trial court
did not mention but the appellate court overruled the work
product objection holding "Plaintiffs' counsel was merely the
passive recipient of some telephone calls. Therefore, the
trial court's discovery order does not violate the attorney
work product doctrine."
The trial court was reversed on privacy grounds: "... we
conclude that the privacy rights ...outweigh Tenet's need for
the discovery." The court noted that the "identity of persons
who consult with counsel implicates their right of privacy"
and that disclosure was not justified by a "compelling" need.
The court also noted "if employees feel their employer will be
informed whenever they contact an attorney suing the employer,
many would be deterred from exercising their right to consult
counsel."
"The court must consider the purpose of the information
sought, the effect that disclosure will have on the affected
persons and parties, the nature of the objections urged by the
party resisting disclosure and availability of alternative,
less intrusive means for obtaining the requested information.
[Citation.] Based on an application of these factors, the more
sensitive the nature of the personal information that is
sought to be discovered, the more substantial the showing of
the need for the discovery that will be required before
disclosure will be permitted."[citation]
Fischer v, United Parcel Service Co (E.D.Mich.2006 Slip Copy), 2006 WL 1046973. Discovery of search efforts "Defendant produced the e-mail, but claims that it is unable to find the attachment. Plaintiff is unwilling to simply accept Defendant's claim and asked to depose someone familiar with Defendant's retrieval efforts. Plaintiff contends that the Magistrate's compromise order that Defendant make the appropriate person available for an informal telephone conference was not clearly erroneous or contrary to law." The district court judge affirmed the magistrate's decision. Note this informal procedure may not be proper under California law but the discovery of search efforts may be.
Gonzales v. Google, Inc. (N.D.CA. 2006), 234 F.R.D. 674, 2006 WL
778720 At issue in the underlying case is the
effectiveness of existing technological protections of children
from pornography accessible via search engines. "Apparently, in preparing its defense, the
Government initiated a study designed to somehow test the
effectiveness of blocking and filtering software."
It sought search engine data for its study from non-parties
Yahoo, AOL, Microsoft and Google: a "listing of
the URLs ...available to a user [and]... the text of users'
search queries". Only Google resisted. The scope of the
subpoena to Google was significantly reduced prior to the
hearing to a random "sample of
50,000 URLs from Google's search index and 5,000 search
queries entered by Google's users from Google's query log."
In granting discovery of the URLs the Court stated: "Given the broad definition of
relevance in Rule 26, and the current narrow scope of
the subpoena, despite the vagueness with which the
Government has disclosed its study, the
Court gives the Government the benefit of the doubt." The
trial court further reduced production, based on a trade secret
balancing analysis, by denying access to any search
queries and imposing conditions: 1. "Google shall not be
required to disclose proprietary information with respect to its
database; 2. The Government shall pay the reasonable cost
incurred by Google in the formulation and implementation of the
extraction protocol; 3. Any information disclosed in response to
this Order shall be subject to the protective order in the
underlying case." The Court addressed several issues of
general interest. For more detail see New
Developments in Electronic Discovery.
NON-PARTY DISCOVERY. "The Court recognized a "third-party's interest in not being
compelled by a subpoena to reveal confidential business
information and devote resources to a distant litigation" as
"vital". It stated "This Court is particularly concerned
anytime enforcement of a subpoena imposes an economic burden
on a non-party. Under Rule 45(3)(a), a court may modify or
quash a subpoena even for relevant information if it finds
that there is an undue burden on the non-party."
CREATIONS OF DATA. "Google argues that it faces
an undue burden because it does not maintain search query or
URL information in the ordinary course of business in the
format requested by the Government.[citation] As a general
rule, non-parties are not required to create documents that do
not exist, simply for the purposes of discovery. [citation] In
this case, however, Google has not represented that it is
unable to extract the information requested from its existing
systems. Google contends that it must create new code to
format and extract query and URL data from many computer
banks, in total requiring up to eight full time days of
engineering time. Because the Government has agreed to
compensate Google for the reasonable costs of production, and
given the extremely scaled-down scope of the subpoena as
modified, the Court does not find that the technical burden of
production excuses Google from complying with the subpoena."
Fairfax v. Lords (2006) , 138
Cal.App.4th 1019. In a medical malpractice case
where expert opinion on the standard of care was critical, the
trial court and jury verdict was reversed for failure to grant a
motion in limine to exclude
defendant's expert when defendant failed to disclose
"simultaneously" in accord with current C.C.P.§2034.260(b).
Plaintiff disclosed an expert and "reserved" its
right to call treating physicians. Prior to the disclosure
date, defendant Lords had not retained an expert. "Lords'
document identified no retained witnesses, stating instead
that he 'hereby gives notice that he is not designating any
retained experts for the first exchange of expert witness
information.' He went on to state, however, that he 'expressly
reserves the right to designate experts in rebuttal to
[Farifax] designations.' Lords did specifically list 26
treating physicians and other healthcare professionals who had
examined or rendered treatment to Fairfax, but did not state
that he expected any of them to testify. Instead, he merely
stated that he also "reserve[d] the right to call [them] as
expert witnesses."
20 days after the initial disclosure defendant disclosed two
experts. Because the initial disclosure was improper ["Lords'
initial expert witness exchange did neither of the things
required by subdivision (f) -- it neither listed any experts
that he "expected" to call as witnesses, nor did it state that
he had no present intention to offer expert testimony"], a
supplemental disclosure was not available.
Creative Science Systems, Inc. v. Forex Capital Markets, LLC. (N.D.Ca. 2006.Slip Copy), 2006 WL 870973 The requested adverse inference sanctions were considered excessive for the violation of a broad protective order but monetary sanctions were imposed. "However, while the record does not contain convincing evidence that the reinstallations [of linix operating system software] were motivated by bad faith, the Court does conclude the failure of FXCM and its counsel to take affirmative steps to comply with the Preservation Order-which would have caused FXCM not to reinstall the operating systems on the servers at issue is evidence of at least some degree of bad faith."
Rodriguez
v. City of Fresno (E.D.Cal.2006 slip op.),
2006 WL 903675 ["Request for
Production ... seek metadata for documents regarding the
events .... Although Defendants point to Exhibit K as
responsive to these requests, the document does not
identify what changes were made to the
documents. By way of the declaration..., Defendants
estimate that it would take approximately eight hours
to gather the requested metadata. This amount of time
is not unreasonable. Accordingly, Defendants must
produce the requested metadata.
"....Defendants shall
produce these documents to the extent they have them
in an electronic format. This includes email
communications, radio
communications and unit-to-unit electronic
communications."]
Bergersen v. Shelter
Mut. Ins. Co.
(D.Kan.2006. Slip Copy), 2006 WL
334675 Dictim re
production on CD is
not production of documents “as they are kept in the usual
course of business.” though motion denied as untimely.
United States ex rel Tyson v.
Amerigroup Ill., Inc. (N.D.Ill.2005),
2005 U.S. Dist. LEXIS 24929. Motion
to quash production of e-mails of 3 employees of a non-party
governmental agency was granted on grounds of relevance and
undue burden despite (1) the requesting party's offer to pay
the costs, (2) the limit of search efforts to certain terms,
and (3) the limitation to one year.
The trial court noted a stronger
mandate to protect non-parties from burden:
Rule 45(c)(3)(A)(iv) mandates that a court "shall quash or modify" a
subpoena if it "subjects a person to undue burden." The
Advisory Committee's Notes to the 1991 amendments to Rule 45 make clear that the amendments have "enlarged the
protections afforded persons who are required to assist the
court by giving information or evidence." The rule "requires
the court to protect all persons from undue burden imposed
by the use of the subpoena power." Id. This is not
the discretionary language of Rule 26(c), under which a court "may make any order which
justice requires to protect a party or person from . . .
undue burden . . . ." It is a "command[]." Heidelberg Americas, Inc. v. Tokyo
Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir.
2003).
In keeping with the text and purpose of Rule 45(c)(3)(A), it has been consistently held that
"non-party status" is a significant factor to be considered
in determining whether the burden imposed by a subpoena is
undue. See N.C. Right to Life, Inc. v. Leake, -- F.R.D.
--, 2005 U.S. Dist. LEXIS 22554, 2005 WL 2456982 (D.D.C.
Oct. 6, 2005); Wyoming v. United States Dep't of
Agric., 208 F.R.D. 449, 452 (D.D.C. 2002); In re Automotive Refinishing Paint, 229
F.R.D. 482, 495 (E.D.Pa. 2005). As the First Circuit has explained:
Burden is not limited to out of pocket expenses.
"It is not a decisive answer to say that the defendants have offered pay the costs that might be incurred in retrieving the emails. Expense is but a part of the burden. As Mr. Petty's uncontested affidavit indicates, the process of retrieving the emails also entails the extensive use of equipment and internal man-power. It will take six weeks to restore and review the data of just one of the three individual's email accounts. The entire project, then, will entail eighteen weeks of effort. To be sure, one can imagine the use of three dedicated servers to perform each of the six weeks of restoration work concurrently, but the end result is still eighteen weeks of man-power and eighteen weeks of use of the necessary equipment. That burden, which is undeniably substantial, exists independently of the monetary costs entailed."
The burden of proof is on the objecting party and undue burden is not presumed merely because electronic information is the subject matter. "There must be affirmative and compelling proof. Ipse dixits will not suffice. [citations] HFS has provided such evidence in the form of the affidavit of a testimonially competent HFS employee." Also, the requesting party must supply some evidence in support of its position. The court reviewed the detailed explanation provided by one expert as to the efforts and costs involved in producing the e-mails and then noted the opponents deficiencies:
"Significantly, the defendants do not challenge any
of Mr. Perry's assertions. This omission, they claimed at oral
argument, was the inevitable result of having no familiarity
with the internal systems used at HFS. The argument is
unpersuasive. The defendants could have sought leave to depose
Mr. Perry, and, of course, they could have retained an expert
of their own to opine on the validity of Mr. Perry's
statements -- at least in a general sense. "
"The defendants have dealt with the question of undue burden
by essentially ignoring its existence. This mode of dealing
with potentially dispositive argument is as "pointless" as is
ignoring potentially dispositive authority that is contrary to
a party's position. [citations] While ignoring the question of
burdens, the defendants have not cited not a single case in
which a non-party was subjected to the significant burden of
restoring electronic data from backup tapes."
