1.MOTION FOR PROTECTIVE ORDER

On 11/20/13, Plaintiff NAUTILUS INC. served a second deposition subpoena on First American Title employee Ester Reynolds (title officer) and former employee Lisa Figgins (escrow officer), to retake their depositions a second time. Non-party FIRST AMERICAN TITLE asks the Court to issue a protective order blocking the requested depositions because they are repetitive, so that their burden, expense, and intrusiveness clearly outweighs the likelihood that they will lead to the discovery of admissible evidence. (CCP 2017.020 (a).)

The Court DENIES the motion and DENIES the request for $3,000 in monetary sanctions.

The Court will hear argument regarding sanctions as to plaintiff.

On a motion for protective order, the burden is on First American Title, as the moving party, to present competent evidence to show GOOD CAUSE that “the burden, expense, or intrusiveness” of the discovery sought by Nautilus Inc. “CLEARLY OUTWEIGHS the likelihood that the information sought will lead to the discovery of admissible evidence.” (CCP 2017.020; Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.)

Here, First American Title carries its initial burden to show that the second deposition subpoena is duplicative and unnecessary. First American Title presents the Racek Declaration to show that Nautilus served a prior deposition subpoena on 7/11/13 and previously deposed Reynolds and Figgins on 7/25/13 and 7/26/13. Therefore, First American Title argues that the second subpoena seeking testimony on the same 28 categories of information was repetitive and unnecessary.

First American Title also carries its initial burden to state facts showing that it made a reasonable and good faith attempt to informally resolve each issue presented by the motion. (CCP 2016.040; CCP 2017.020 (b); see generally Racek Decl.)

So the burden shifts to Plaintiff Nautilus to show why further depositions are necessary.

In Opposition, Plaintiff Nautilus carries its burden to show that additional deposition testimony is warranted and reasonable. This is because at their initial depositions, Figgins and Reynolds revealed the existence of emails that First American Title had failed to produce in its initial discovery responses. On 8/29/13, after the depositions had already been completed on 7/25/13 and 7/26/13, First American produced an additional 358 pages of relevant emails. Therefore, Nautilus has shown good cause to proceed with additional depositions. (See generally Watkins Decl.)

And during the meet and confer process, Nautilus agreed to limit the scope of the second subpoena to only 13 of the original 28 categories.

In its Opposition, Plaintiff Nautilus argues convincingly that Ms. Yirong Lu, a loan officer for Security One Bank, was intimately involved in helping the Yangs conduct the allegedly fraudulent transaction. And Nautilus makes a compelling showing that that First American Title and some of its employees, both past and present, may possess information showing that Lu and Security One knew or reasonably should have known that the reverse mortgage and related transactions were fraudulent.

As to burdensome and oppressive, First American Title fails to carry its ultimate burden to show that complying with the second deposition subpoena would be burdensome or oppressive. First American has failed to make any specific factual showing of precisely how much work would be required to produce the requested information. So First American has failed to show that the burden or expense of production would be excessive and the utility of the information sought minimal. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 419.)

The ground for objection is oppression. Thus, it is not enough that the questions will require a lot of work to answer. It must be so unjust that it amounts to oppression. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.)

In determining if the burden is unjust, a weighing process is required: It must appear that the amount of work required to answer the questions is so great, and the utility of the information sought so minimal, that it would defeat the ends of justice to require the answers. (Columbia Broadcasting System Inc. v. Superior Court (1968) 263 Cal.App. 2d 12, 19.)

On a motion to compel answers, the burden is on the objecting party to sustain the objection by detailed evidence showing precisely how much work is required to answer; conclusionary statements are not sufficient. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418 [manager’s declaration that search of 78 branch offices would be required was insufficient, because it did not show hours required].)

A discovery request was held “oppressive” where uncontradicted declarations showed that a response would require review of over 13,000 insurance claims files, requiring 5 claims adjusters working full time for 6 weeks each. (Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318.)

In Reply, First American raises three arguments.

First American Not a Party

First American argues that it is not a formal party to this lawsuit and that it is not a real party in interest. This line of argument appears to be irrelevant because Nautilus is still entitled to subpoena and depose non-party witnesses who may possess relevant information.

Additional Depositions Unnecessary

First American asserts that additional discovery on the proposed topics are unnecessary. But First American fails to carry its burden to prove that this assertion is true.

Attorney-Client Privilege

In its second deposition topic, Nautilus proposes to ask questions about First American’s defense of its insured under the title insurance policy. First American argues that this entire line of questioning is subject to attorney-client privilege.

This argument fails for three reasons. First American fails to cite any authority for the proposition that an entire line of questioning may be prohibited because it necessarily runs afoul of attorney-client privilege. On the contrary, First American must invoke the attorney-client privilege as to specific questions and specific documents. It cannot invoke a blanket privilege as to a broad topic of proposed questions that have yet to be asked. Even if First American could properly invoke a blanket privilege as to a broad deposition topic, which it cannot, that would not be a sufficient ground for prohibiting the entire deposition.

Plaintiff shall serve notice of this ruling.