On 11 April 2014, the motion of plaintiff Brigitta Handel (“Handel”) to compel further responses to requests for production of documents, set one (“RPD”) and for monetary sanctions was argued and submitted. Defendant Costco Wholesale Corp. (“Costco”) filed a formal opposition to the motion.

Statement of Facts

This is a personal injury action arising from an incident occurring at Costco’s Mountain View store. On 24 October 2011, several boxes full of knives fell off a lift machine and onto Handel, injuring her left shoulder and arm. Handel alleges that Costco owed her a duty to provide a safe shopping environment and breached that duty by failing to properly secure the knife boxes and to cordon off the area while restocking the shelves. In her complaint, she asserts three causes of action for (1) negligence, (2) “res ipsa loquitor”, and (3) negligence per se.

Discovery Dispute

On 1 August 2014, Handel served the RPD on Costco. On 23 October 2014, Costco served responses, containing both objections and substantive responses.

On 19 December 2014, Handel’s counsel informed defense counsel that the responses were evasive and incomplete. Hopeful that additional time would permit them to resolve the dispute informally, on 21 January 2014, the parties extended the time to file a motion to compel to 7 March 2014.

On 29 January 2014, the parties engaged in a lengthy meet-and-confer conference during which the parties managed to resolve many, but not all, of the disputes. In a follow-up letter that same day, Handel’s counsel indicated that unless the parties could come to an agreement regarding the remaining issues, a motion to compel would still be necessary.

Dissatisfied with the lack of progress on the remaining issues, Handel filed this motion to compel further responses to the RPD on 7 March 2014. On 28 March 2014, Costco filed its opposition. Handel filed her reply on 4 April 2014.

Discussion

Handel moves to compel Costco to provide further responses to the RPD on the ground that Costco’s responses are evasive and incomplete. She also requests an award of monetary sanctions against Costco. In opposition, Costco argues that it has already agreed to provide much of the information sought and its remaining responses are proper. Costco also makes a request for judicial notice in support of its opposition.

I. Request for Judicial Notice

In support of its opposition, Costco requests that the Court take judicial notice of Handel’s complaint filed on 8 July 2013. A court may take judicial notice of court records that are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters are subject to judicial notice].) As Handel’s complaint is unquestionably relevant to the issues involved in this motion, Costco’s request for judicial notice is GRANTED.

II. Motion to Compel Further Responses to the RPD

Handel moves to compel further responses to RPD Nos. 1-4, 6-10, and 12-14 concerning documents prepared by Costco regarding the incident and witness statements taken by Costco (RPD Nos. 1-2), documents relating to the boxes of knives at issue (RPD No. 3), photographs or film depicting the accident (RPD No. 4), safety and training policies intended to prevent customer injuries from falling objects (RPD Nos. 6-9), timesheets for all employees present during the incident and other documents reflecting the identity of potential witnesses (RPD Nos. 10 and 12), documents reflecting lawsuits involving falling merchandise at the Mountain View store filed during the five years prior to the incident (RPD No.13), and documents reflecting lawsuits involving falling merchandise at all Costco stores filed during the five years prior to the incident (RPD No. 14). Costco responded to RPD Nos. 1-2 and 4 with both objections and substantive responses. The responses to RPD Nos. 3, 6-10, and 12-14 consist solely of objections.

Handel argues further responses are warranted because the objections lack merit and the substantive responses are incomplete. Costco contends that an order compelling further responses is not warranted because its objections are proper and the substantive responses are complete.

A. Legal Standards

A party propounding a request for production may move for an order compelling a further response if it deems that a response is incomplete or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)

B. Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Handel contends that each of the RPD seeks relevant information. Documents regarding the incident and witness statements will provide factual information concerning the incident. Information concerning the knife boxes and any photographs or film depicting the accident will assist Handel in reconstructing the amount of force the falling boxes applied to her arm and shoulder. Safety and training policies will assist Handel in understanding if the violation of these policies helped cause the incident. Employee timesheets will assist in the identification of potential witnesses to the incident. Finally, lawsuits involving falling merchandise will assist Handel in determining whether Costco has a pattern and practice of injuring customers with falling merchandise. Since Handel has articulated legitimate reasons for the discovery sought, good cause exists.

C. Objections

Costco asserted a litany of objections in response to RPD Nos. 1-4, 6-10, and 12-14. The only objections it attempted to justify in opposition to the motion to compel are those discussed more fully below. The remaining objections are therefore overruled, except for the objections to RPD Nos. 9-10 and 12 based on the attorney-work product doctrine and the attorney-client privilege, which have been preserved. (See Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189.)

1. Attorney-Client Privilege

Costco objected to RPD Nos. 1, 2 and 13-14 on the ground that the documents sought are protected by the attorney-client privilege.

A prerequisite to any claim of privilege is the existence of a confidential communication between an attorney and a client. When the client is a corporation, the lawyer-client privilege extends to employee communications with counsel only if one of the following circumstances apply: (1) information has been transmitted between corporate counsel and an employee who is also a defendant in the same case, (2) information has been transmitted between corporate counsel and someone with authority to speak on behalf of a corporation, or (3) an employee prepared a statement for transmittal to counsel pursuant to a pre-existing duty under corporate rules or policies, provided that the statement’s primary purpose was to assist counsel in anticipation of litigation. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 736-738.) Forwarding documents to a third party insurer prior to transmitting them to counsel does not eliminate the privilege’s protection, as long as the dominant purpose remains the eventual transmission of the report to an attorney. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 535.)

With regard to RPD Nos. 1 and 2, Costco objected to the production of two specifically identified documents, particularly a Warehouse Incident Report and a recorded interview of Costco employee Frank Lopez with Costco’s third party claims administrator concerning the incident, because they were made in anticipation of a lawsuit.

To establish that the Warehouse Incident Report and the recorded interview are privileged, Costco relies on the declaration of Zois Johnston, one of its claims managers. Ms. Johnston declares that in-store personnel are required to investigate all accidents at their store and promptly fill out a privileged and confidential warehouse incident report. (Johnston Decl., ¶ 3.) The report is then forwarded to Costco’s attorneys and third-party claims administrators in preparation for anticipated litigation.

Furthermore, part of the duties of Costco’s third-party administrator is to interview Costco employees concerning customer accidents. (Johnston Decl., ¶ 5.) Costco employees are required as a term of their employment to participate in these interviews. (Johnston Decl., ¶ 6.) This information is then forwarded to Costco’s attorneys in preparation for anticipated litigation.

The declaration sets forth facts sufficient to show that the Warehouse Incident Report and the recorded employee interview are statements for transmittal to counsel pursuant to a pre-existing duty and the documents’ primary purpose was to assist counsel in anticipation of litigation. Therefore, these documents fall within the scope of the attorney-client privilege and the objections to RPD Nos. 1 and 2 on this ground is sustained.

With regard to RPD Nos. 13 and 14, Costco objected to the production of documents in response to the requests concerning lawsuits involving falling merchandise because the requests do not exclude information prepared by its employees in anticipation of litigation. While information prepared by its employees in anticipation of litigation would be privileged, it is unclear from Costco’s responses whether it has additional non-privileged documents in its possession responsive to RPD Nos. 13 and 14. Therefore, Costco is ordered to either make a statement of compliance or a statement of an inability comply consistent with the requirements of Code of Civil Procedure section 2031.210.

2. Relevance and Overbreadth

Costco objected to RPD Nos. 10 and 13-14 on the grounds that the information sought is irrelevant and the requests are overbroad.

As noted above, discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

With regard to RPD No. 10, Costco contends that the timesheets of all employees at the Mountain View store present during the incident are irrelevant to this action and the request is overbroad because it seeks timesheets from employees with no connection to the incident.

Costco’s argument is not persuasive. The timesheets of employees physically present at the Mountain View store during the incident would most accurately reflect the universe of potential witnesses with personal knowledge of events leading up to the incident, the incident itself, and its aftermath. Therefore, this information might reasonably assist Handel in preparing for trial. Accordingly, the documents sought are relevant and the request is not overbroad.

With regard to RPD Nos. 13-14, Costco objected to the requests for information concerning lawsuits involving falling merchandise on the ground that they are overbroad in scope, and therefore, irrelevant. While acknowledging that lawsuits involving similar subject matter (i.e. incidents involving falling boxes of knives) would be relevant, it contends the term “falling merchandise” is too general and that evidence of prior negligent acts involving merchandise other than knives would be irrelevant to the present action.

In response, Handel argues that the information sought is relevant to her cause of action for negligence per se. She alleges that Costco violated Labor Code section 9103, which provides that when heavy machinery is used to move merchandise from a shelf, there shall be a safety zone established to temporarily block customers from entering areas where merchandise could fall during removal from a shelf. Plaintiff contends that the requests will assist her in determining whether Costco has a pattern and practice to avoid the requirements of this provision at all of its stores.

Costco’s relevance and overbreadth arguments are without merit. Information concerning lawsuits based on “falling merchandise” will assist Handel in ascertaining whether Costco has a policy of failing to cordon off shopping aisles to prevent injury to customers. As this information might assist Handel in preparing for trial, the information sought is relevant and the request is not overbroad.

3. Unduly Burdensome

Costco objected to RPD No.14 on the ground that compliance with the request would be unduly burdensome. It contends that it is an international corporation with thousands of stores and the amount of work required to produce documents responsive to this request would far outweigh the benefit to Handel.

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship. (Id. at pp. 417-418.) In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (Ibid.)

Costco makes no particularized showing of facts demonstrating the hardship the production of documents in response to RPD No. 14 would entail. It does not provide an estimate of the amount of time the document production would take or the extent of the expense such a production would require Costco to incur. (Contra, Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters working full time for six weeks each.]) Therefore, the objection is overruled as to RPD No.14.

4. Right to Privacy

Costco objected to RPD Nos. 10 and 13-14 on the ground that they invade the right to privacy of their employees and other unspecified third parties.

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) It is well-established that the right to privacy extends to a person’s work history and personnel documents. (See Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1426-1427; Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (1981) 119 Cal.App.3d 516, 528-530.)

Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)

With regard to RPD No. 10, Costco contends that disclosure of its employees’ timesheets at the Mountain View store would constitute a serious invasion of their privacy. Handel argues that any intrusion would be minimal, and the identity of potential witnesses is essential to the fair resolution of the lawsuit.

Handel’s argument is meritorious. As noted above, the timesheets of employees present at the Mountain View store on the day of the incident would most accurately reflect the universe of potential witnesses to the incident. Therefore, the information is directly relevant to Handel’s claim and essential to the resolution of the lawsuit.

In addition, no less intrusive means are available to confirm the identity of all possible witnesses to the incident. No extraneous or sensitive information concerning employee benefits or finances would be disclosed, just the hours the employees worked and their identifying information. Therefore, the Court will next consider whether the employees’ right to privacy outweighs Handel’s right to discover relevant information.

Disclosure of timesheets of employees’ present during the incident would not constitute a substantial intrusion into their privacy. The information sought concerns only the identification of potential witnesses and the request is limited in time and scope. Therefore, any intrusion would be nominal. On the other hand, the timesheets would allow Handel to discover a number of potential witnesses to the incident. Therefore, as the intrusion would be slight and the information sought could be significant, Costco has not justified its privacy objection to RPD No. 10.

With regard to RPD Nos. 13 and 14, Costco contends that these requests “improperly implicate the privacy rights of third-parties involved in these lawsuits.” (See Opp’n, p. 12.) Costco, however, has provided no specific argument in support of this contention and does not identify the privacy right at issue. Furthermore, looking at the face of the requests, it is not readily apparent how third party privacy interests would be implicated. The requests seek documents regarding prior litigation and such litigation would necessarily be public. Therefore, Costco has not justified its privacy objections to RPD Nos. 13-14.

5. Conclusion

Based on the foregoing, all objections to RPD Nos. 3-4 and 6-8 are overruled. As Costco did not provide substantive responses to RPD Nos. 3 and 6-8, further responses to these requests are warranted.

All objections to RPD Nos. 1-2, 9-10 and 12 are overruled except for objections based on the attorney-client privilege and attorney work product doctrine, which have been preserved.

D. Substantive Responses

A substantive response to a demand for production must address each item or category of items separately with a statement of compliance or a statement of an inability to comply. (See Code Civ. Proc., § 2031.210, subd. (a).) In addition to the objections discussed above, Costco provided substantive responses to RPD Nos. 1-2 and 4.

RPD Nos. 1-2 seek documents prepared by Costco regarding the incident and witness statements taken by Costco. In response, Costco identified four responsive documents, agreed to produce two of the documents and refused to provide two of the documents, the Warehouse Incident Report and the recorded interview of Frank Lopez, on the ground of attorney-client privilege. Costco did not indicate that the identified documents constitute all documents responsive to the request.

As discussed above, Costco’s privilege objections to the Warehouse Incident Report and the recorded interview of Frank Lopez are sustained. It is not clear, however, from Costco’s responses whether it has additional non-privileged documents in its possession responsive to RPD Nos. 1 and 2. Therefore, Costco is ordered to either make a statement of compliance or a statement of an inability comply consistent with the requirements of Code of Civil Procedure section 2031.210.

RPD No. 4 seeks documents containing photographs, films or videotapes, depicting any place, object or individual concerning the incident. In response, Costco identified and produced a single photograph of the knife boxes. Once again, Costco did not indicate that the identified document constitute all documents responsive to the request.

After Handel filed this motion, Costco’s counsel sent an email, stating that Costco had no additional responsive documents to this request other than a document it had recently discovered, which counsel attached to the email. Therefore, Costco contends that it has complied with its discovery obligations in regards to this request and no further response is necessary.

Costco’s argument is without merit. As noted above, a substantive response to a request for production must either be an unambiguous agreement to comply with the request or an unambiguous statement of an inability to comply. (See Code Civ. Proc. § 2031.210.) Costco’s identification of a single responsive document is not an unambiguous agreement to comply or a statement of inability to comply with the request.

In addition, Costco’s production of a previously unidentified document further reinforces that its response is incomplete and evasive. Without an unambiguous statement of compliance signed under penalty of perjury, Handel has no assurance that Costco will produce all documents responsive to the request. Therefore, a further response is warranted to RPD No. 4.

E. Conclusion

Based on the foregoing, the motion to compel further responses to the RPD is GRANTED.

III. Handel’s Request for Monetary Sanctions

Handel makes a code-compliant request for monetary sanctions against Costco in the amount of $3,625 pursuant to Code of Civil Procedure section 2031.310, subdivision (h).

Section 2031.310, subdivision (h) provides that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to requests for production of documents unless the party or attorney acted with substantial justification or other circumstances make the imposition of the sanction unjust. Here, Handel prevailed on her motion, Costco’s opposition was not substantially justified and no other circumstances make the imposition of sanctions unjust. Therefore, Handel is entitled to an award of monetary sanctions against Costco.

Handel’s counsel, Jeremy Burns, avers that he has spent 7.5 hours drafting this motion. His billing rate is $350 per hour. Counsel further declares that his paralegal spent an additional 10 hours preparing the motion to compel at a billing rate of $100 per hour. While the hourly rates are reasonable, the amount of time spent preparing the moving papers is not. The Court finds three hours a reasonable time for counsel to draft the motion and an additional three hours a reasonable amount of time for his paralegal to prepare the motion. Accordingly, Handel’s request for monetary sanction is GRANTED IN PART in the amount of $1,350.

Conclusion and Order

Costco’s request for judicial notice is GRANTED.

Handel’s motion to compel further responses to the RPD is GRANTED. Accordingly, within 20 days of the date of the filing of this Order, Costco shall serve verified code-compliant further responses to RPD Nos. 1-4, 6-10, and 12-14, without objections (except for attorney-client privilege and attorney work product doctrine, which have been preserved as to RPD Nos. 1-2, 9-10, and 13-14), and produce documents in accordance with those responses. To the extent any documents are withheld based upon attorney-client privilege and/or attorney work product doctrine, Costco shall also serve a privilege log identifying all documents withheld and providing a factual basis for the privilege claimed.

Handel’s request for an award of monetary sanctions against Costco is GRANTED IN PART in the amount of $1,350. Accordingly, within 20 days of the date of the filing of this Order, Costco shall pay $1,350 to Handel’s counsel.