Motion: Motion for Protective Order
Moving Party: Defendants
Responding Party: Plaintiffs

Tentative Ruling: Motion for protective order is granted in part.

Plaintiffs Jafet Diego, Miguel Garcia, and Lisa Lopez filed this action against Defendants City of Whittier, Whitter City Council, Whittier City Clerk, and individual City Council Members. Defendants move for a protective order pursuant to CCP §2025.420(b). They seek an order that would: preclude inquiries into matters covered by the legislative and deliberative process privileges; exclude non-parties from the depositions; and prohibit the use or dissemination of discovery information for any purpose other than trial.

Privilege –
Defendants seek a protective order based on the legislative and deliberative process privileges, which preclude inquiries into the subjective motives or mental processes of legislators and protects materials reflecting deliberative or decision-making processes – as distinguished from “purely factual, investigative matters.” See Bd. of Supervisors v. Superior Ct. (1995) 32 Cal.App.4th 1616, 1625-26; Rogers v. Superior Ct. (1993) 19 Cal.App.4th 469, 477-78.

Plaintiffs argue that this motion is premature, asserting that the privileges should be raised and discussed at depositions in regard to particular questions that may be asked. This argument has merit. Although a protective order may be sought before, during, or after a deposition (see CCP §2025.420(a)), the context of the objection is important. First of all, Plaintiffs may honor an objection at the deposition. Also, it would be helpful to the court to see the circumstances and factual context of the question.

For example, in City and County of San Francisco v. Superior Ct. (1975) 13 Cal.3d 933, 936, the Supreme Court denied a petition for writ of prohibition, holding that matters pertaining to the legislative privilege were premature where the questions had yet been asked of the witnesses. Also, the deliberative process privilege applies only if the public interest in nondisclosure clearly outweighs the public interest in disclosure. See Citizens v. City of Lodi (2012) 205 Cal.App.4th 296, 306. That kind of analysis is better determined with concrete questions. See also Times Mirror Co. v. Superior Ct. (1991) 53 Cal.3d 1325, 1341 (privilege applies only to communications before a decision is made).

This ground of the motion is denied.

Non-Parties–
Defendants seek to exclude a non-party, Angelita Medina, who attempted to attend Defendants’ depositions. There is no absolute right to attend a deposition, and the court can fashion a protective order that is appropriate to a particular case. E.g. Lowy Develop. Corp. v. Superior Ct. (1987) 190 Cal.App.3d 317, 321-22. There is evidence that
Medina is a political activist; she is not a party to the case and is not a resident of Whittier; and she has engaged in direct advocacy to alter the City’s electoral system. Under these circumstances, there is no good reason for Medina to attend the depositions.
Plaintiffs contend that Medina was retained as a consultant in this case and may give advice to counsel, but that does not establish good cause for her attendance. It appears that Medina can review the transcripts and provide guidance to Plaintiff’s counsel after the depositions are completed.

This ground of the motion is granted, and Medina is excluded from depositions.

Limits on Use of Discovery –
Defendants seek to limit the use of discovery to trial and pre-trial proceedings in this action. A protective order may be issued to prevent the public release of information obtained through the discovery process, as there is no First Amendment right to pre-trial discovery information. See Seattle Times v. Rhinehart (1984) 467 U.S. 20, 32-36; NBC Subsidiary v. Superior Ct. (1999) 20 Cal.4th 1178, 1208 n.25 (the First Amendment “does not compel public access to discovery materials that are neither used at trial nor submitted as a basis for adjudication.”).

While the court has the power to limit disclosure of pretrial discovery, Defendants have not pointed to any particular discovery which should be restricted. And they have not demonstrated good cause why discovery responses generated by a public entity such as the City should be restricted in the manner they have requested. This ground is denied, without prejudice to objections that identify specific items of discovery and that make a specific showing of good cause.

Evidence –
The City’s request for judicial notice is granted as to the declaration of Angelita Medina filed on 12/5/13, and is otherwise denied as irrelevant. In light of the court’s limited rulings, the court declines to rule upon the parties’ evidentiary objections since they are directed at evidence that is not material.

Sanctions –
Plaintiffs have requested an award of sanctions. The request is denied.