Tentative Ruling

Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Daniel Laurin O’Keefe, et al. v. State of California, Department of Transportation, et al.
Case No: 18CV00937
Hearing Date: Mon Nov 04, 2019 9:30

Nature of Proceedings: Motion Compel Discovery Responses and Request for Sanctions

Daniel Laurin O’Keefe, et al., v. State of California, et al. (Judge Sterne)

Case No. 18CV00937

Hearing Date: November 4, 2019

HEARING: Motion of Defendant Amtrak to Compel Discovery

ATTORNEYS:

For Plaintiffs Daniel Laurin O’Keefe and Kelly Anne O’Keefe: Anthony E. Vieira, Law Offices of Berglund & Johnson

For Defendant National Railroad Passenger Corporation (Amtrak): Michael E. Murphy, Brock Christensen, Sims Law Firm, LLP

TENTATIVE RULING:

The motion of defendant Amtrak to compel discovery is granted in part and denied in part. The motion is granted to require a further verified written response, without objection and in a form complying with the Code of Civil Procedure, to request No. 56 of defendant Amtrak’s requests for production of documents, set two. Plaintiffs shall serve the further response, and produce all responsive documents thereto, on or before November 19, 2019. In all other respects, including requests for awards of monetary sanctions, the motion is denied.

Background:

This case concerns the tragic death of Connor Edward O’Keefe, who died on March 11, 2017, at age 18, when he was struck by a train as he walked northbound on the railroad tracks near Fernald Point in Santa Barbara County. Plaintiffs Daniel O’Keefe and Kelly O’Keefe are the decedent’s parents. On February 23, 2018, plaintiffs filed their complaint, alleging causes of action for dangerous condition of public property, negligence (wrongful death), and public nuisance. The defendants are State of California Department of Transportation, County of Santa Barbara, City of Santa Barbara, and National Railroad Passenger Corporation dba Amtrak (Amtrak). On May 9, 2018, plaintiffs filed a request for dismissal as to City of Santa Barbara.

On September 14, 2018, plaintiffs served their responses to Amtrak’s requests for production of documents, set one (RFP1). (Christensen decl., ¶ 8 & exhibit E; Vieira decl., ¶ 4 & exhibit A.) (Note: Plaintiffs have failed to include electronic bookmarks for their exhibits in violation of Rules of Court, rule 3.1110(f)(4).) Amtrak failed to raise any concerns regarding the adequacy of these responses and did not bring a motion to compel further responses within the 45-day time period. (Vieira decl., ¶ 5.)

On July 24, 2019, Amtrak served its supplemental document production demands on plaintiffs (SRFP). (Vieira decl., ¶ 7.) On August 16, plaintiffs served their response to the SRFP. (Christensen decl., ¶ 9 & exhibit F; Vieira decl., ¶ 7 & exhibit B.) The SRFP states that responding parties have no further information.

On August 22, 2019, plaintiffs served their responses to Amtrak’s request for production of documents, set two (RFP2). (Christensen decl., ¶ 7 & exhibit D; Vieira decl., ¶ 8 & exhibit C.)

On September 3, 2019, counsel for Amtrak sent a fax letter to counsel for plaintiffs regarding the responses and production of documents. (Christensen decl., ¶ 10 & exhibit G.) This fax and Amtrak’s counsel’s subsequent telephone calls occurred while counsel for plaintiffs was out of the office and out of the country. (Vieira decl., ¶ 9.) The letter and telephone calls were not returned prior to the filing of this motion to compel on October 7, 2019. (Christensen decl., ¶ 10.)

Amtrak seeks to compel production of documents relating to RFP1 request Nos. 9, 10, 37, and 43, and to RFP2 request No. 56. Amtrak also requests an award of monetary sanctions.

Plaintiffs oppose the motion.

Analysis:

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

“(1) A statement of compliance with the demand is incomplete.

“(2) A representation of inability to comply is inadequate, incomplete, or evasive.

“(3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with both of the following:

“(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

“(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b).)

“Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)

“If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320, subd. (a).)

One difference between a motion to compel further responses and a motion to compel compliance is that the former has a statutory time limit in which to make the motion and the latter has no such time limit. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)

RFP1 No. 9 is: “Unaltered reproductions of all photographic prints and/or videos depicting or purporting to depict the incident scene referred to in your Complaint.”

The response to RFP1 No. 9 is: “Objection. This discovery request includes information which violates the attorney work product privilege in that it requires disclosure of Plaintiff’s attorney’s own work product and/or the identities of advisers, consultants and/or expert witnesses and/or their opinions in violation of the statutory protections set forth in CCP §2018.030(a), (b) and §2034.210(a). See Williamson v. Superior Court, 21 Cal.3d 829, 834 (1978); South Tahoe Public Utilities District v. Superior Court, 90 Cal.App.3d 135 (1979); Sheets v. Superior Court, 257 Cal.App.2d 1 (1967); Sanders v. Superior Court, 34 Cal.App.3d 270 (1973); Scotsman v. Superior Court, 242 Cal.App.2d 527 (1966).

“Objection. To the extent this discovery request seeks confidential communications between Plaintiff and Plaintiff’s attorney during the course of the attorney-client relationship, it violates the attorney-client privilege. Evidence Code §950, 952; Shannon v. Superior Court, 217 Cal.App.3d 986, 995 (1990); Mitchell v. Superior Court, 37 Cal.3d 591 (1984); Roberts v. City of Palmdale, 4 Cal.4th 363 (1993). Responding party further objects that this request may reflect expert opinion and, therefore, is privileged.

“Without waiving said objections, plaintiffs respond as to non-privileged videos and photographs: The parties have all received the Coroner and scene photographs from the County of Santa Barbara. Plaintiffs further identify the AMTRAK video, which has not yet been provided to the parties.”

According to Amtrak, plaintiffs admitted at their depositions that shortly after the decedent’s incident, plaintiffs took photographs and videos of the incident scene. (Christensen decl., ¶ 12.) According to plaintiffs, on October 21, 2019, plaintiffs served an amended response and produced the photographs and videos responsive to RFP1 Nos. 9, 10, and 43. (Vieira decl., ¶ 11.)

Except as to issues regarding sanctions, the motion to compel is moot as to RFP1 No. 9 because the responsive documents at issue have been produced. However, insofar as the issue of sanctions remains (see Rules of Court, rule 3.1348(a)), the court notes that the motion is untimely. The text of the response largely consists of objections. (Note: Citation to cases are wholly unnecessary in a response to discovery unless a particular case’s doctrine is being invoked. In this response, the cases cites are decades old, with the use of underlining for the case citations rather than italics literally underscoring that these citations have been copied and pasted without consideration or update over a lengthy period of time.) The Code of Civil Procedure requires: “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.)

The non-objection part of the response to RFP1 No. 9 does not state that any document would be produced. It merely identifies some responsive documents. The court would have granted a motion to compel further responses to this request had a motion been made, particularly for the reason relevant here: The written response does not state that all documents will be provided. When some documents are provided, one cannot tell from the written response whether it is represented that all responsive documents have been produced. Code of Civil Procedure section 2031.320, subdivision (a), is clear in providing for an order to compel inspection “in accordance with that party’s statement of compliance.” There is nothing in plaintiffs’ response that is inconsistent with its production because plaintiffs have not complied with their written requirement to state that all responsive documents are being produced. That being the case, the problem is not in compelling compliance in accordance with plaintiffs’ statement of compliance, but in Amtrak’s failure to compel a further response within the 45-day time limit.

The same issues and result applies for RFP1 Nos. 10 and 43.

RFP No. 37 is: “The decedent’s cell phone that was used by him or that was in his possession, custody, or control on the day of the incident.”

The response to RFP No. 37 is: “Decedent’s phone was damaged beyond repair as it was bent in half and nothing was recoverable.”

For the same reason discussed above, the motion to compel production in accordance with plaintiffs’ statement of compliance will be denied. The response is improper for the same reasons discussed above: plaintiffs have not agreed to produce the phone. Because plaintiffs have not agreed to produce the responsive phone, there is no statement of compliance to enforce.

Like the photographs responsive to previous requests, there is no indication that the phone would be subject to the SRFP. Supplemental demands apply only to “later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.050, subd. (a).) There is no showing that the phone was later-acquired and the response to RFP1 No. 37 indicates that the phone was not later-acquired.

RFP2 No. 56 is: “True and correct copies all text messages between you and Connor O’Keefe in the week before his incident on March 11, 2017.”

The response to RFP2 No. 56 is: “Objection. This discovery request violates Plaintiff’s right of privacy guaranteed by the California Constitution (Cal. Const., Arti. I, §1). As recognized in Valley Bank of Nevada v. Superior Court, 15 Cal. 3d 652, 656 (1975) this right of privacy ‘extends to the details of one’s personal life’ as well as to one’s financial affairs.’ See also Cobb v. Superior Court 99 Cal.App.3d 543 (1979). Although the right of privacy is not absolute, disclosure of personal and financial information may not be compelled without good cause. In this case, the discovery request seeks the disclosure of cell phone records (specifically, his text messages) which contain personal information that is not reasonably related to the issues involved in this matter. The information requested is not relevant to the subject matter of this incident and will not lead to admissible evidence at trial.”

Unlike the motion as to the requests discussed above, this motion is a motion to compel a further written response and is timely made within the 45-day period. Plaintiffs assert that the motion is procedurally defective on this point because there no reasonable and good faith attempt to meet and confer. The failure of the meet and confer process was the direct result of counsel for plaintiffs being out of the office and out of the country so as not to respond to Amtrak’s letter and telephone calls. Amtrak’s efforts were sufficient.

“The state Constitution expressly grants Californians a right of privacy. [Citation.] Protection of informational privacy is the provision’s central concern. [Citation.]

In [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill)], we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.)

“In [Hill], we considered this test at length and clarified its purview. We explained that not ‘every assertion of a privacy interest under article I, section 1 must be overcome by a “compelling interest.” Neither the language nor history of the Privacy Initiative unambiguously supports such a standard. In view of the far-reaching and multifaceted character of the right to privacy, such a standard imports an impermissible inflexibility into the process of constitutional adjudication.’ [Citation.] A ‘ “compelling interest” ’ is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’ [Citation.] But whenever lesser interests are at stake, the more nuanced framework discussed above applies, with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Williams v. Superior Court, supra, 3 Cal.5th at p. 556.)

The court has previously analyzed the privacy interests of the respective parties in connection with business records subpoenas. The court does not repeat that analysis here. It is sufficient for these purposes to identify that the text messages here at issue are limited to the one week before decedent’s death and are likely to be probative of decedent’s state of mind shortly before the incident resulting in his death. The language and timing of text messages may communicate significant information about his state of mind without the filter of personal testimony of emotionally involved parties characterizing those text messages. Thus, although plaintiffs have a clear, legally protected, and substantial privacy interest in the confidentiality of those messages, defendant’s need for this discovery outweighs the privacy interest in keeping the text messages confidential. To the extent necessary and appropriate, the court can issue orders limiting the use of such messages at trial, but there is a strong showing of the need for obtaining this information through discovery. Consequently, the privacy objection to disclosure in discovery is overruled. The motion to compel a further response to RFP2 No. 56 will be granted.

Under the circumstances here where the motion is partially meritorious, the court finds that an award of monetary sanctions would be unjust. The request for an award of monetary sanction will be denied.