Case Number: BC659904 Hearing Date: June 01, 2018 Dept: 47

Jane Doe v. Talaat Captan, et al.

MOTION TO COMPEL PRODUCTION OF DOCUMENTS

MOVING PARTY: Defendants Talaat Captain and Air Hollywood, Inc.

RESPONDING PARTY(S): Plaintiff Jane Roe.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges a pervasive environment of sexual harassment at Defendants’ place of employment. Plaintiff also alleges wage theft (failure to pay overtime) and meal and rest break violations by her employer. Plaintiff alleges that she was constructively terminated.

The parties have stipulated to the Court hearing a motion to compel production of text messages between Plaintiff and witness Rachel Owen.

TENTATIVE RULING:

The Court finds that an attorney-client privilege which may exist as to the subject text messages has been waived. The Court will conduct an in camera review of the unredacted subject text messages regarding the attorney work product privileged. Plaintiff’s counsel is ordered to produce the unredacted subject text messages for the Court’s in camera review.

DISCUSSION:

Motion To Compel Production

The statutory authority for this motion is not specified, but the parties have stipulated to the Court hearing a motion to compel production of text messages between Plaintiff and witness Rachel Owen. At issue is whether the redacted text messages between Plaintiff and witness Rachel Owen produced by Plaintiff in response to the request for production of documents—attached as Exh. A to the Declaration of Danielle S. Krauthamer—should be ordered produced in an unredacted version.

As to the attorney-client privilege, the Court finds that any attorney-client privilege which may have existed was waived as to the substance of the texts disclosed to Rachel Owen, who is not an attorney. Nor has Plaintiff demonstrated that disclosure to Owen was necessary to further Plaintiff’s counsel’s representation of Plaintiff’s interests.

“‘A disclosure in confidence of a communication that is protected by a privilege provided by [attorney-client privilege, section 954], when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer … was consulted, is not a waiver of the privilege.’” (OXY Resources, supra, 115 Cal.App.4th at p. 890, italics added; see First Pacific Networks, Inc. v. Atlantic Mutual Ins. Co. (N.D.Cal. 1995) 163 F.R.D. 574, 581 [both §§ 912 and 952 contain the same concept, i.e., whether there is a reasonable necessity for disclosure to a third party, in order to accomplish the purpose of consulting the lawyer].)

Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 Cal.App.4th 754, 768.

“[W]hile the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege.” (Id. at p. 1299, fns. omitted.)” BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1256 (italics omitted).

As to whether or not the communications come within the attorney work product doctrine, in that Plaintiff consents to such procedure so long as it does not operate as a waiver of the privilege, the Court will conduct an in camera review of the text messages to see if they constitute attorney work product and, if so, whether they are absolutely privileged or only entitled to conditional protection yet should be disclosed to Defendants:

Documents privileged under the attorney work product doctrine are exempt from disclosure under the Act. (County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 64 [149 Cal. Rptr. 3d 324].) The purpose of the attorney work product doctrine is to preserve the rights of attorneys in the preparation of their cases and to prevent attorneys from taking advantage of the industry and creativity of opposing counsel. (Code Civ. Proc., § 2018.020.) The doctrine, however, “is not limited to writings created by a lawyer in anticipation of a lawsuit. It applies as well to writings prepared by an attorney while acting in a nonlitigation capacity.” (County of Los Angeles v. Superior Court (2000) 82 Cal.App.4th 819, 833 [98 Cal. Rptr. 2d 564].)

The attorney work product doctrine absolutely protects from discovery writings that contain an “attorney’s impressions, conclusions, opinions, or legal research or theories.” (Code Civ. Proc., § 2018.030, subd. (a).) General work product (Code Civ. Proc., § 2018.030, subd. (b)) is entitled to conditional or qualified protection. (Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 815 [192 Cal. Rptr. 104].) Whether specific material is protected work product must be resolved on a case-by-case basis. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135 [86 Cal. Rptr. 2d 180].) “[I]n camera inspection is the proper procedure to evaluate the applicability of the [attorney] work product doctrine to specific documents, and categorize whether each document should be given qualified or absolute protection.” (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 121 [68 Cal. Rptr. 2d 844] (Wellpoint).)

League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993 (bold emphasis added)

CCP § 2018.030 provides:

(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.

(b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

(Bold emphasis added.)

Finally, Plaintiff’s objection that the material is irrelevant has not been persuasively presented. That remains to be seen upon the Court’s in camera review.

Accordingly, Plaintiff’s counsel is ordered to produce the unredacted subject text messages for the Court’s in camera review.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 1, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court