Case Number: VC065234 Hearing Date: June 18, 2019 Dept: SEC

LEMIEUX v. K&M MEAT COMPANY INC., et al.

CASE NO.: VC065234

HEARING: 6/18/19

JUDGE: LORI ANN FOURNIER

#6

TENTATIVE ORDER

I. Cross-Defendant Lemieux’s motion to quash deposition subpoena for production of business records issued to Law Office of Barber & Bauermeister is DENIED.

II. Cross-Complainant K&M Meat Co., Inc.’s motion to compel Barber & Bauermeister to produce business records pursuant to deposition subpoena is GRANTED.

No sanctions to either party. K&M is to give NOTICE.

Cross-Defendant Lemieux moves to quash the deposition subpoena issued to Barber & Bauermeister (“B&B”).

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands. (CCP 1987.1.)

The subpoena seeks B&B’s “entire file for the action” except for discovery and documents filed with the court, “any and all correspondence”, “all memoranda”, and “all documents” between Lemieux and/or Laura Dolan and/or “any person” and B&B relating to the first and second contract, “any and all documents” that pertain to Lemieux’s personal opinion about Felix Goldberg and/or K&M Meat Co., Inc. and why Lemieux filed the action, and all of B&B’s invoices relating to the action.

B&B is Lemieux’s former counsel in the underlying action that forms K&M’s malicious prosecution Cross-Complaint. Lemieux has asserted the defense of “advice of counsel.”

“[T]he deliberate injection of the advice of counsel into a case waives the attorney-client privilege as to communications and documents relating to the advice… But the privilege is not to be set aside when one party seeks verification of the authenticity of its adversary’s position… In view of Transamerica’s stipulation that it will limit its use of the advice of counsel defense, the issue about… bad faith is a question only about the state of mind of Transamerica’s corporate decision makers.” (Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1053.)

Transamerica involved a situation where Transamerica asserted advice of counsel in connection with a pending lawsuit. The documents at issue all postdated the filing of the cross-action and pertained to matters about the pending litigation. There, Transamerica stipulated to limit its advice of counsel defense. Further, in Transamerica, the documents were not relevant to the state of mind of the corporate decision makers.

Here, Lemieux is not asserting advice of counsel received in connection with the pending action. Lemieux has asserted advice of counsel as to her former attorneys’ advice in the underlying action. Further, Lemieux’s state of mind is not at issue. Lemieux stated that her attorneys in the underlying action advised her to sue on the first contract instead of the second contract. Accordingly, B&B’s state of mind is directly at issue, and is distinguishable from the Transamerica case.

Further, B&B does not contest any of K&M’s factual or legal arguments raised in K&M’s accompanying motion to compel. B&B’s refusal to comply was based on Lemieux’s continued assertion of the attorney-client privilege.

In addition, it would appear that the crime/fraud exception pursuant to Ev. Code 956 would apply under these facts. Lemieux fraudulently represented that her employment was governed by the first employment agreement. That representation was false, as a matter of law, by the trial court and the Court of Appeal. (Markus Decl., Ex. A.) Further, Lemieux knew the representation was false because Lemieux or someone on her behalf manipulated the notary stamp on the document so that K&M had no way of knowing that a second contract existed. (Id.)

Lemieux contends that the crime/fraud exception does not apply, but fails to adequately explain how or why the fraud exception would not apply under these facts. (See Lemiuex Reply, 5:1-10.)

Finally, Lemieux contends the subpoena is overbroad in scope, but Lemieux does not present any alternatives to narrow the scope of the subpoena in a way that would allow K&M to obtain the information needed to prosecute its claim. It is unclear how any alternative discovery methods would narrow the scope of the information sought.

Accordingly, Lemieux’s motion to quash is DENIED.

For the same reasons, K&M’s motion to compel is GRANTED. No sanctions because substantial justification exists.