2017-00219481-CU-PA

Sabino Ernesto Flores vs. La Tapatia Tortilleria, Inc.

Nature of Proceeding: Motion to Compel Production of Documents (Gary Paul Harmon)

Filed By: Quiroga, Roberto Dominguez

Plaintiff Sabino Ernesto Flores’ (“Plaintiff”) motion to compel defendant Gary Paul Harmon (“Defendant”) to serve a further response to Plaintiff’s request for production of documents, Set One, number 6, is GRANTED.

This action arises from an automobile versus pedestrian collision involving Plaintiff and Defendant, acting as an employee at the time of defendant La Tapatia Tortilleria, Inc.. Plaintiff served Defendant with its first set of document requests on January 25, 2018. Defendant served responses on May 2, 2018.

After meet and confer efforts failed, Plaintiff now moves to compel a further response to Request for Production Number 6, which seeks “Any and all Document(s) in your possession, custody, or control that contain witness statements regarding the impact.”

Defendant objected on the grounds of attorney work product, attorney client privilege, not reasonably calculated to lead to the discovery of admissible evidence, and vague and ambiguous. Defendant then identified and produced copies of Plaintiff’s medical records and a copy of Defendant’s Vehicle Accident Report.

Plaintiff contends Defendant is improperly withholding a witness statement obtained from Charles Henderson. Plaintiff contends that in response to form interrogatories, Defendant identified Charles Henderson as the only known third party witness to the incident and indicated his witness statement was taken via audio recording by Staci Moreno on Marcy 7, 2017. However, Defendant has failed to identify this statement in response to RFPD number 6, provide a privilege log, or make a proper statement regarding their inability to comply regarding Mr. Henderson’s statement (if such is the case).

In meet and confer efforts, Plaintiff contends defense counsel indicated the statement had either been lost or destroyed, that Defendant otherwise refused to produce the statement pursuant to its work product objection, and/or further intends to use the statement at trial for impeachment purposes. Of course, “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.” (CCP § 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.” (CCP § 2018.030, subd. (b); Coito v. Superior Court (2012) 54 Cal. 4th 480, 485.) The Court further noted “[w]here relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.” (Id. at p. 490.)

On June 12, 2018, Defendant served a supplemental response, along with a privilege log. The Court notes service of responses after the motion was filed does not moot the motion. Plaintiff is still entitled to an order. To be clear, a motion is “made” when it is

filed and served. (CCP § 1005.5.) At the time the motion was filed Defendant had not served further responses. Accordingly, Defendant’s supplemental response is inapposite to this motion.

To the extent Mr. Henderson’s statement has been lost or destroyed (as possibly indicated by defense counsel), Defendant’s response is not code compliant. CCP section 2031.230 specifically provides: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Defendant’s response is inadequate and does not properly represent their inability to comply, if such is the case.

As to Defendant’s objections based on work product and the attorney-client privilege, it appears Defendant has abandoned its objection based on attorney-client privilege. In opposition, Defendant only argues the statement is protected by the work product privilege and then cites to Coito v. Superior Court (2012) 54 Cal.4th 480.

Coito stands for the proposition that witness statements, even procured by counsel, are not automatically entitled to absolute work product production; instead, such protection requires a foundational showing that disclosure would reveal an attorney’s impressions, conclusions, opinions, legal research or theories. (Coito, supra, 54 Cal.4th at 495-496.) Indeed, as noted in Coito, a witness statement could be written to include a straight recitation of the statements of the witness without any of the attorney’s impressions. (Coito, supra, 54 Cal.4th at 495.) On the other hand, the court identified several other scenarios in which absolute work product protection may apply to a witness statement. One example the court discusses is that the very questions that the attorney has chosen to ask (or not ask) may provide a window into the attorney’s theory of the case or evaluation of the importance of issues in a case making absolute work product protection available. (Id.)

Here, however, Defendant has not made any evidentiary showing whatsoever in this regard. As the party objecting to the discovery, Defendant bears the burden of justifying the asserted work product objection and has failed to meet that burden. Defendant summarily concludes that Mr. Henderson’s statement obtained by Staci Moreno is absolutely protected (Opposition at p. 4), but Defendant provides no foundational showing that disclosure of the statement would reveal counsel’s protected impressions, conclusions, opinions, etc. The statement was taken by an insurance adjuster and there is no explanation that she was acting as counsel’s agent in anticipation of litigation. There is simply no explanation as to why Defendant believes the work product protection applies beyond the fact that they interposed the work product privilege objection in their response. Indeed, Defendant’s argument glosses over their burden and quickly turns to whether Plaintiff had demonstrated unfair prejudice. This is insufficient.

Defendant’s remaining objections based on relevance and vague and ambiguous are overruled. These are essentially boilerplate objections and no effort was made to

justify them.

As a result, Plaintiff’s motion to compel a further response to request for production number 6 is GRANTED.

No later than August 6, 2018, Defendant shall serve a further verified written response to Plaintiff’s request for production number 6, and produce non-privileged, responsive documents.

Plaintiff’s request for monetary sanctions is denied.