2012-00137532-CU-PO

Kathleen Holly Nicholls vs. Sacramento Motorcars LLC

Nature of Proceeding:    Motion to Compel Production of Documents

Filed By:  Dunn, Reginald A.

Plaintiff Kathleen Holly Nicholls’ (“Nicholls”) motion to compel production of documents
is DENIED.

This is a negligence action.  Nicholls alleges that an employee of Defendant Infiniti of
Elk Grove (“Infiniti”) took her on a test drive and negligently caused her to suffer
injuries.

Nicholls propounded the subject document requests on June 21, 2013.  Infiniti served
objections and responses on August 5, 2013.  Deeming certain of Infiniti’s objections
and responses to be invalid, Nicholls’ commenced the meet-and-confer process.
Infiniti then served supplemental responses in which it identified several recorded
statements made by Infiniti employees to Infiniti and its insurer.  Citing Scripps Health
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v. Superior Court [“Scripps”] (2003) 109 Cal.App.4   529, 534, Infiniti claimed that the
statements were protected from disclosure because they were obtained in anticipation
of litigation.  Counsel met and conferred again, but they reached an impasse on the
question whether the employee statements must be produced.  The parties dispute
other aspects of the supplemental responses as well.  This motion follows.

Preliminarily, Nicholls is admonished for filing a separate statement that does not
comply with CRC 3.1345(c)(2).  A party moving to compel production of documents
must set forth the text of all the applicable discovery responses, including the full text
of the original responses and all objections.  Future failures to comply with applicable
rules of court or procedural statutes may result in the court striking the nonconforming
papers.

Attorney-Client Privilege

Nicholls does not dispute that, under Scripps, statements that a corporate employee
makes for the dominant purpose of reporting confidential information to the employer’s
attorney, including to the attorney by way of the company’s insurer, are protected by
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the attorney-client privilege.  (109 Cal.App.4   at 533-534 [citations omitted].)  Nicholls
argues, nonetheless, that Infiniti has not demonstrated that the witness statements at
issue were collected primarily to communicate confidential information to Infiniti’s
attorney or insurer.

Infiniti’s supplemental responses provide that the statements in question were
“provided to employer” or “provided to his employer and its insurance company in
anticipation of litigation.”  (See Dunn Decl., Exh. D.)  Nonetheless, Nicholls argues that
Infiniti has not sufficiently demonstrated the primary purpose of the statements was to
report confidential information as in Scripps.  The court disagrees.

Infiniti has shown that it collected the subject statements in order to obtain the relevant
employees’ confidential versions of the incident in anticipation of litigation.
(Bustamonte Decl., ¶¶ 4, 6.)  Infiniti has also shown that the attorney who received the
confidential statements was assigned by Infiniti’s insurance carrier.  (Id., ¶ 5.)  This
evidence persuades the court that the statements were collected for the dominant if
not exclusive purpose of preparing for litigation.  Under these circumstances, the
statements are protected from disclosure by virtue of the attorney-client privilege.  The
fact that Infiniti collected some of the statements before Nicholls commenced this civil
action, and collected some of them after, does not alter the court’s conclusion; the
statements were all collected in anticipation of litigation or in response to it.

The only remaining issue is whether Infiniti somehow destroyed the attorney-client
privilege by having its employees collect the statements from the witnesses, as
opposed to having the statements delivered directly from the employee-witnesses to
Infiniti’s attorney or insurer.  Infiniti argues that, to the extent its non-witness
employees collected the statements, the statements remain protected from disclosure
because the collecting employees were the attorney’s agents and, therefore, the
statements are within the attorney work-product doctrine.

In the court’s view, the fact that Infiniti employees collected the statements does not
take the statements outside the attorney-client privilege.  In Scripps, the witnesses
delivered their statements to an “on-site risk manger” who acted as an agent of the             employer and the employer’s insurer.  (109 Cal.App.4   at 535.)  Thus, disclosure to
non-witness employees of the employer does not necessarily destroy the privilege.
Furthermore, even though Infiniti has not identified the names of titles of the employee
(s) who collected the statements, the court finds that those employees were
designated to collect the statements in order to provide Infiniti’s attorney and insurer
with confidential reports in anticipation of litigation.  Thus, whatever positions the
collecting employees held, they acted in the same capacity as the on-site risk
managers who did not destroy the privilege in Scripps.

Other Objections

The court notes that Nicholls briefly disputes the validity of Infiniti’s other objections,
i.e., that the requests for the witness statements are “vague and ambiguous” or
implicate privacy rights.  Because the court has determined that Infiniti may rely on the
attorney-client privilege to withhold the statements, it need not address the validity of
these other objections.

Conclusion

The motion is DENIED.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.

Counsel are advised that the Sacramento County Superior Court’s Local Rules were
revised and renumbered as of 01/01/13.  When giving notice of the court’s tentative
ruling system, counsel should cite Local Rule 1.06, not former Local Rule 3.04.