2013-00156463-CU-PA

Rick Mejia vs. Elaine Malm

Nature of Proceeding:      Motion to Compel Non-Party to Attend Deposition and Produce Records

Filed By:    Loewen, Michael R.

Plaintiffs Rick and Karen Mejia’s motion to compel is granted.

In this personal injury action arising from a motor vehicle accident, Plaintiffs served a
deposition subpoena on Dan Bauwens, an investigator hired by defendant’s insurance
company who conducted surveillance on Plaintiff Karen Mejia.  Defendant’s counsel
notified Plaintiffs’ counsel that Mr. Bauwens would not attend the deposition and would
not produce the requested surveillance photos/videos.  Defendant’s counsel
maintained that such information was attorney work product.

Pursuant to CCP § 2018.030(a), writings that reflect an attorney’s “impressions,
conclusions, opinions, or legal research or theories” are never discoverable.  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.”  (CCP § 2018.030(b).)  CCP § 2018.030 does not define “work
th
product.”  (Coito v. Superior Court (2012) 54 Cal.4   480, 488.)  Case law has held that
the work-product protection does not apply to information gathered by an investigator
or claim adjuster who is not an agent of an attorney and who obtained the information
before counsel was retained.  (Wilson v. Superior Court (1964) 226 Cal.App.2d 715,
723-724.)  “A report which is not the product of the attorney or of his agents or
employees is not an attorney work product, and an attorney, ‘cannot, by retroactive
adoption, convert the independent work of another, already performed, into his
own.’”  (Bank of Orient v. Superior Court (1977) 67 Cal.App.3d 588, 598 [quoting
Wilson, supra 226 Cal.App.2d at 724].)

Here, there is no dispute that Mr. Bauwens was hired by Defendant’s insurance carrier
and performed the subject surveillance at the carrier’s request in December 2013, prior
to the time that an attorney was retained by Defendant’s insurer for defendant’s benefit
in late January 2014.  Indeed, Plaintiffs’ retained counsel who contacted Defendant’s
insurance carrier directly in October 2013 and made a settlement demand in late
November 2013.  Plaintiffs’ counsel advised the carrier in December that a lawsuit
would be filed if the carrier did not pay policy limits.  The carrier then hired an
investigator to conduct surveillance on Karen Mejia which was conducted on
December 20 and 21, 2013.  Plaintiffs filed the lawsuit on December 19, 2013, and
served it on Defendant on January 23, 2014.  The insurance carrier retained
Defendant’s counsel on January 28, 2014, and provided defense counsel with Mr.
Bauwens’ investigative materials.              Under the above authority, the information gathered by Mr. Bauwens at the request of
Defendant’s insurance carrier, prior to counsel being retained for Defendant is not
entitled to work product protection.  Defendant’s counsel cannot convert Mr. Bauwens’
independent work which was not performed at Defendant’s counsel’s request and prior
to Defendant’s counsel’s involvement into counsel’s own work.  Defendant’s attempt to
distinguish  Wilson on the basis that there was no evidence in that case that the
investigation undertaken by the insurance adjuster was done in anticipation of litigation
as there is in the instant case in not persuasive.  That case turned on the finding that
“[w]hatever the extent of an attorney’s work product may be, it is clear that, given the
broadest possible definition, it is still the attorney’s work, or that of his agents or
employees, that is involved, and the attorney cannot, by retroactive adoption, convert
the independent work of another, already performed, into his own.”  ( Wilson, supra,
226 Cal.App.2d at 724 [emphasis in original].)  Defendant cannot oppose Plaintiffs’
attempt to depose Mr. Bauwens and obtain the investigative materials on the basis of
work product protection.

The Court also rejects Defendant’s request that Mr. Bauwens’ deposition be stayed
until after Plaintiffs are deposed.  Defendant believes that allowing Plaintiff Karen Mejia
to view the surveillance video prior to her deposition will be unfair because she would
then be able to conform her deposition testimony to the video.  The Court notes that
this request appears moot as Plaintiffs’ depositions were set for May 29, 2014.  In any
event the request is denied.

Finally, the Court rejects the argument that relief is not available because a motion to
compel pursuant to CCP §2025.480, requires that a motion be brought within 60 days
after “the completion of the record of the deposition.  Defendant argues that Plaintiffs
failed to make a record of Mr. Bauwens’ nonappearance and refusal to produce
documents and thus there is no record of the deposition.  The Court disagrees.  Here,
Defendant made clear that Mr. Bauwens would not attend the deposition or produce
any documents and filed an objection in response to the deposition subpoena.
Objections served in response to a business records subpoena constitute a record of a
deposition for purposes of CCP § 2025.480.  (Unzipped Apparel, LLC v. Bader (2007)
156 Cal.App4th 123, 136.)  While the instant subpoena, unlike the business records
only subpoena in Unzipped also called for Mr. Bauwens’ personal appearance in
addition to the production of business records, the Court sees no reason to reach any
different conclusion than the one reached in Unzipped.  The Court will not find that
under the instant circumstances where Defendant’s counsel made clear that Mr.
Bauwens would not attend the noticed deposition or produce any documents and
served an objection to the deposition subpoena, that Plaintiffs’ counsel was required to
travel to the location noticed for the deposition and incur the expense of a court
reporter to create a record of nonappearance.

In sum, the motion is granted.  Mr. Bauwens is directed to appear for his deposition
and produce the documents requested in the subpoena.  The deposition shall take
place at the location set forth in the deposition subpoena.  The parties shall meet and
confer regarding the date and time of the deposition.

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