2017-00211638-CU-IC

James Caplis vs. Mercury Casualty Company

Nature of Proceeding: Motion to Compel 1. Form 2. Special 3. Production (Mercury Casualty

Filed By: Nicholson, Suzanne M.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific discovery requests that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

Plaintiff’s motion to compel defendant Mercury Casualty Company’s (“MCC”) further responses to form and special interrogatories and to requests for production of documents along with the production of responsive documents is DENIED, as follows.

The notice of motion does not comply with Code of Civil Procedure §1010 or CRC Rule 3.1110(a).

Plaintiff’s separate statement is incomplete in that it fails to include any of the definitions found in the subject discovery and fails to include any of the responses which were effectively incorporated into those responses at issue in this motion. Counsel is reminded that the purpose of the separate statement is to enable the court to resolve the discovery dispute without having to consult any other document. (See, CRC Rule 3.1345(c) [requirements for separate statement].)

The Gebhardt Declaration in opposition to this motion was not executed under penalty of perjury as required by Code of Civil Procedure §2015.5 and is therefore inadmissible.

Factual Background

This is an action against an insurer and its attorneys, Clasen, Raffalow & Rhoads (“CRR”), for bad faith, breach of fiduciary duty and concealment in connection with a lawsuit previously filed against plaintiff, for which Cumis counsel was eventually retained.

Plaintiff now moves to compel MCC’s further responses to a handful of form and special interrogatories and to requests for production of documents on the ground MCC’s responses were incomplete and/or insufficient. MCC opposes.

Analysis

At the outset, the court must remind all counsel but especially plaintiff’s that given the number of motions such as this which must be addressed on a daily basis, there are simply not enough judicial resources available to resolve each and every discovery dispute that could have and should have been resolved informally. This serves to highlight the critical need for all counsel’s legitimate, reasonable and good faith meet-

and-confer efforts before filing any discovery motion. Although it dealt with a motion to compel answers to deposition questions, the decision of Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet-and-confer process is not intended to be some perfunctory formality but rather it “requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.) Nevertheless, despite the number of other matters on this crowded calendar, this court will address yet another largely unremarkable discovery dispute which could have and should have been resolved by counsel via the meet-and-confer process without the use of finite judicial resources.

Form Interrogatory 12.1 (Witnesses). The court will sustain MCC’s objection to this interrogatory on the ground that plaintiff’s own definition of the term “incident” is overly broad and ambiguous, making it impossible for MCC to provide a meaningful answer. Plaintiff remains free to propound carefully-crafted interrogatories which enable MCC to reasonably understand the information sought and then to respond accordingly.

Form Interrogatory 12.2 (Interviews). Notwithstanding the preceding paragraph and the confusion created by plaintiff’s definition of “incident,” the court finds that MCC has adequately responded to this interrogatory by stating “there are no interviews concerning the ‘incident’” and adding that if one had occurred, it would be reflected in the claims file previously produced. At worst, MCC is guilty of providing too much information but this alone does not justify compelling a further response to this interrogatory under the circumstances here.

Form Interrogatory 12.3 (Statements). For essentially the same reasons cited in the previous paragraph, the court finds that MCC has adequately responded to this interrogatory by stating, “Defendant knows of no such statements about the ‘incident’” and then clarifying that if any written or recorded statement were obtained, it would be reflected in the claims file previously produced.

Form Interrogatory 12.6 (Reports). The court will sustain MCC’s objection to this interrogatory on the ground that plaintiff’s own definition of the term “incident” is overly broad and ambiguous, making it impossible for MCC to provide a meaningful answer. Plaintiff remains free to propound carefully-crafted interrogatories which enable MCC to reasonably understand the information sought and then to respond accordingly.

Special Interrogatory 3. This question asks for all those involved in assessing coverage in the underlying lawsuit and MCC provided this information but declined on privacy grounds to disclose the addresses of two individuals who are no longer employed by MCC. The court holds that MCC properly objected to the disclosure of such information and plaintiff has failed to make the showing needed to justify an order compelling disclosure of this information. Indeed, it remains unclear whether either of these individuals currently possesses any unique information related to this case which cannot be obtained from other individuals or from the claims file already produced.

Special Interrogatory 4. This interrogatory seeks the identity of all those involved in deciding to provide plaintiff with a defense in the underlying lawsuit and MCC appears to have provided this information including incorporating its responses to the preceding three interrogatories but MCC again declined to disclose the addresses of former employees on account of their privacy rights. MCC was entitled if not obligated to object to the disclosure of such private information and as noted above, plaintiff has failed to make the showing needed to justify an order compelling disclosure of this

information, particularly since it is not clear that any of these individuals possess any information which cannot be obtained from other sources available to plaintiff.

Special Interrogatory 23. This one asks MCC to identify all individuals involved in the decision to reject the mediator’s proposal for settling the underlying lawsuit and again, MCC provided the names but refused to disclose the addresses of former employees.

MCC’s objection is sustained and plaintiff has failed to demonstrate why this court should at this juncture compel disclosure of this information.

Requests for Production. For unknown reasons, plaintiff did not include in the separate statement either the specific requests or the specific responses at issue here as expressly required by CRC Rule 3.1345(c) but instead, provided the following vague remarks without any particular context:

In response to Plaintiff’s requests for production, [MCC] stated that all “non-privileged portions of its claims file” was being produced. [MCC] and the Clasen [Law] Firm submitted a “joint?” privilege log with their initial production of documents. The claims of privilege lack merit and the documents identified on the privilege log should be ordered to be produced.

Plaintiff then focused on two individual documents and two particular categories of documents.

The two individual documents at issue appear to be letters to MCC from attorney

Hallisy over two years after the latter stopped representing plaintiff in the underlying
action but plaintiff nevertheless contends these communications are not privileged
because (1) Evidence Code §962 provides there is no attorney-client privilege as
between joint clients and (2) such post-representation communications with MCC were

prohibited by Rules of Professional Conduct 3-310(E) [prohibiting attorney from

accepting employment adverse to former client from whom attorney obtained
confidential information material to new employment]. The court must reject both
contentions. Evidence Code §962 is inapplicable here since plaintiff was not
represented by the attorney at the time he sent the two letters to MCC. Plaintiff’s
reliance on Rule 3-310(E) is misplaced as well inasmuch as plaintiff has failed to
demonstrate not only that attorney Hallisy obtained from plaintiff any confidential
information which is somehow material to attorney Hallisy’s post-representation
communications with MCC but also that these post-representation communications
with MCC are somehow “adverse” to plaintiff. But even if they were and these post
-representation communications with MCC somehow violated Rule 3-310(E), plaintiff’s
remedy is not found in an order compelling production of such documents which in this
case otherwise appear to be privileged.

The remaining two categories of documents which plaintiff now argues are not privileged and/or should be produced consist of largely the same documents which are at issue in plaintiff’s concurrent motion to compel further responses from CRR. The court rejects plaintiff’s arguments for the reasons set forth in the tentative ruling denying plaintiff’s motion as against CRR.

Conclusion

For the reasons explained above, plaintiff’s motion to compel MCC’s further responses to interrogatories and requests for production must be and hereby is denied in its

entirety.

Neither side requested monetary sanctions.