Kristina Nabong v. Daughters of Charity Health System		CASE NO. 114CV264044
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 17

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of defendant Daughters of Charity Health System to Compel Return of Property, for Disqualification of Counsel and for Monetary Sanctions was argued and submitted.  Plaintiff Kristina Nabong filed formal opposition to the motion.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).

1. Statement of Facts

This is an action for various wage and hour claims.  Plaintiff Kristina Nabong (“Plaintiff”) was formerly employed by defendant Daughters of Charity Health System (‘DCHS”) as an executive assistant to Robert Issai, President and CEO of DCHS.  Plaintiff was allegedly subjected to a variety of Labor Code violations, including but not limited to unpaid overtime wages and double-time wages, off-the-clock work, inadequate rest breaks and meal periods, and unpaid premium wages.  Plaintiff filed her complaint on April 18, 2014, asserting claims for (1) minimum wage; (2) overtime; (3) failure to provide meal and rest breaks; (4) waiting time penalties; (5) failure to properly itemize wage statements; and (6) unfair competition.

1. Discovery Dispute

On some unspecified date, Plaintiff produced 463 pages of documents in response to DCHS’s request for production.  (See Declaration of Brian Morris in Support of DCHS’s Motion to Compel (“Morris Decl.”), ¶ 3.)  Believing that approximately 400 of the documents produced belonged to it and were not properly in Plaintiff’s possession, and included items that were privileged, on September 8, 2014, DCHS’s counsel sent a letter to opposing counsel stating as much and requesting that the items be returned.  (Id. at ¶ 6 and Exhibit C.)  The letter also requested that counsel disqualify herself from continuing to represent Plaintiff and advised that if counsel did not do so, DCHS would move for a disqualification order.

That same day, Plaintiff’s counsel responded to the letter via email, suggesting that opposing counsel depose Plaintiff to determine how she obtained the documents and stating that he had not identified the specific privilege that applied to each document.  (Morris Decl., ¶ 7 and Exhibit D.)[1]

On September 9, 2014, counsel for DCHS sent another letter further clarifying DCHS’s position by specifying the documents that it believed were privileged.  (Morris Decl., ¶ 8 and Exhibit E.)  DCHS also expressed its belief that irrespective of the applicability of any privilege, it was entitled to the return of non-privileged documents that Plaintiff had obtained by self-help that were DCHS’s property.  (Id.)

The following day, counsel for both parties had a conversation regarding the disputed documents in which Plaintiff’s counsel refused to return the documents and refused to articulate how Plaintiff had obtained them.  (Morris Decl.,      ¶ 9.)  Plaintiff’s counsel did opine, however, that it was theoretically possible that Plaintiff had obtained the documents from the Internet or from an unidentified DCHS representative, and stated that DCHS had to take Plaintiff’s deposition to determine if the documents were privileged and if she was otherwise entitled to retain and present those items to counsel.  (Id.)

On September 11, 2014, DCHS reiterated its position that the disputed documents were privileged and/or improperly obtained.  (Morris Decl., § 10 and Exhibit F.)  In an effort to accommodate Plaintiff and avoid the necessity of a noticed motion, DCHS offered to take an abbreviated deposition of Plaintiff on the issue of how she obtained the documents.  (Id.)  Plaintiff’s counsel refused to permit an abbreviated deposition of her client, stating that DCHS would only get one deposition, total, and if it wanted more, to “expect a motion.”  (Morris Decl., ¶ 11 and Exhibit G.)  Plaintiff also expressed its belief that she was entitled to take, present to counsel, and use for her benefit Defendant’s privileged and non-privileged documents.  (Id.)  Given Plaintiff’s position, DCHS declined to take her deposition and indicated its intention to proceed with a motion to compel if the parties were at an impasse.  (Morris Decl., ¶ 12 and Exhibit H.)

On September 15, 2014, Plaintiff’s counsel responded via email, seeking clarification as to what type of motion DCHS intended to file and stating that she was amendable to producing her client for deposition pursuant to proper notice.  (Morris Decl., ¶ 13 and Exhibit I.)

On September 16, 2014, DCHS again asked Plaintiff via written correspondence how she obtained documents that it believed were its property.  (Morris Decl., ¶ 15 and Exhibit K.)  It then stated that given Plaintiff’s repeated refusal to “articulate a basis for why” she was properly in possession of DCHS’s property, a motion to compel return of the documents and disqualify counsel was necessary.  (Id.)  Consequently, on October 3, 2014, DCHS filed the instant motion to compel.  On October 20, 2014, Plaintiff filed her opposition.  DCHS filed its reply on October 24, 2014.

• Discussion

DCHS moves for an order compelling Plaintiff to return any and all originals and/or copies of any DCHS documents in her possession, custody, or control; or in the possession, custody of her attorneys or agents, which came into her possession during and by virtue of her employment with DCHS; this includes the documents identified in Exhibit B to the declaration of Brian Morris filed in support of DCHS’s motion to compel.  DCHS further moves to disqualify Plaintiff’s counsel based on the retention of the subject documents and for monetary sanctions against both Plaintiff and her counsel.

1. Motion to Compel Return of Documents; For Disqualification of Counsel; And for Monetary Sanctions
2. Document Return

DCHS’s motion is predicated on its contention that Plaintiff has improperly obtained and retained its property and that she should not be permitted to benefit from improper self-discovery.  Plaintiff acknowledges in a declaration provided in support of her opposition to DCHS’s motion that she obtained the documents which are the subject of this motion in the course and scope of her employment with the Defendant.

As a general matter, the Discovery Act “was intended to bring a new form of order to civil discovery and to eliminate some of the more undesirable elements of the adversarial system, including the ‘sporting theory of litigation- namely surprise at trial.’ [Citation.]”  (Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4^th 1279, 1288 (Pillsbury)  Discovery takes this “sporting” element out of trial preparation but retains the adversarial nature of trial.  (Id.)  “In doing so, the Discovery Act as amended and interpreted has subsumed the entire field pertaining to the gathering of evidence in preparation for trial.”  Accordingly, as DCHS asserts, the law disapproves of so-called “self-discovery,” i.e., the process by which a litigant or potential litigant “converts, interdicts or otherwise purloins documents in the pursuit of litigation outside the legal process ….”  (Id.)

Yet that is precisely what Plaintiff engaged in here by retaining documents which belong to DCHS and that she obtained by virtue of her employment with defendant.  In that vein, this case in analogous to Pillsbury, supra, where the court held that the defendants’ self-help evidence gathering was inappropriate. In that case, the plaintiff law firm sought to and did obtain an injunction that required the defendant, an attorney who represented current and former employees of the plaintiff, to return documents that were removed from the law firm.

In affirming the trial court’s granting of the injunction, the appellate court rejected the defendant’s contention that “mere ownership” was an insufficient basis for ordering the return of the employer’s materials and cited with approval the cases relied on by the plaintiff, which disapproved of self-discovery and involved parties that had taken materials from their employers without permission prior to or at the conclusion of their employment.  (See Pillsbury, supra, 55 Cal.App.4^th at 1287-1288, citing Conn v. Superior Court (1987) 196 Cal.App.3d 774 and In re IBP Confidential Business Documents Litig. (8^th Cir. 1985) 754 F.2d 787.)  The court then observed that “[d]iscovery in the litigation context presupposes ownership of documents will remain with whomever holds title, while allowing access to the trier of fact, and litigants, in specifically delineated legal proceedings.”  (Id. at 1288.)

Here, Plaintiff does not claim to own any of the documents that are at issue but nevertheless maintained possession of them after her employment concluded without DCHS’s consent.  This was improper.

The Court notes that while it is possible that some of the documents may properly be in the possession of Plaintiff, such as certain communications between Defendant’s counsel and Plaintiff about matters that ask about Defendant’s position about Plaintiff’s exempt status, Plaintiff decided to leave the way Plaintiff acquired the documents to speculation. This is insufficient to meet Plaintiff’s burden to show proper possession of any of the documents.

The Court will not condone Plaintiff’s self-discovery and with its inherent power to prevent abuses in the use of its process (see Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287), orders that she and her attorneys return to DCHS any and all originals and/or copies of any DCHS documents in her possession which she obtained during and by virtue of her employment with DCHS.  This includes, but is not limited to, those documents identified in Exhibit B to the declaration of Brian Morris filed in support of DCHS’s motion to compel.

2. Disqualification of Counsel

DCHS next moves to disqualify Plaintiff’s counsel due to the retention of the documents at issue.

Plaintiff’s counsel, under penalty of perjury, declares that she has not used the documents to prosecute her client’s case.  (See Declaration of Tanya Gomerman in Support of Plaintiff’s Opposition to Defendant’s Motion to Compel, ¶ 8.)

Disqualification of counsel is deemed to be an appropriate remedy for the retention of certain privileged documents.  (See Clark v. Superior Court (2011) 196 Cal.App.4^th 37; Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4^th 807.)

“A trial court’s authority to disqualify an attorney derives from its inherent power to “control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.  The power is frequently exercised on a showing that disqualification is required under professional standards governing . . . . . potential adverse use of confidential information.”
(Clark v. Superior Court (2011) 196 Cal. App. 4th 37, 47.)  (citations omitted.)   “When ruling on a disqualification motion, the paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.  The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.”  (Id. at 47-48.)  (citations and internal quotation marks omitted.)

Defendant presented no evidence that Plaintiff’s counsel: (1) obtained the documents through any improper means; (2) concealed the fact that the document’s were in counsel’s possession; (3) excessively reviewed the documents; or (4) affirmatively employed the documents to pursue Plaintiff’s claims against DCHS.

In short, the facts as currently presented to the Court do not call for the drastic measure of disqualification.  Accordingly, DCHS’s request is DENIED.

3. Monetary Sanctions

Finally, DCHS requests that the Court impose monetary sanctions against Plaintiff and her counsel in the amount of $12,350 pursuant to Code of Civil Procedure section 2023.030, which provides that the Court may impose monetary sanctions for abuse of discovery.  Though, as set forth above, self-discovery is frowned upon by the law, the Court finds that sanctions for abuse of discovery are not warranted in this case and that the compelled return of DCHS’s documents is a sufficient remedy based on the facts of this case.  Accordingly, DCHS’s request for monetary sanctions is DENIED.[2]

1. Conclusion and Order

The motion is GRANTED IN PART and DENIED IN PART.  The motion is GRANTED as to DCHS’s request for an order compelling return of all originals and/or copies of any DCHS documents in Plaintiff or her counsel’s possession and otherwise DENIED.  Plaintiff and her counsel shall return the foregoing items to DCHS within 10 days of the date of the filing of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] The Court notes that the language and tone of the communications from both sides’ counsel include attacks on opposing counsel’s professionalism, including accusations of “churning the books” and that counsel was not meeting professional obligations.   The Court suggests counsel review Kim v. Westmoore Partners (4th Dist. 2011) 201 Cal.App.4th 267: “Our profession is rife with cynicism, awash in incivility.  Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It’s time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility.  All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required.  In this case, those teeth will take the form of sanctions.” Kim, 201 Cal.App.4th at 293

[2] In anticipation of future motions before this Court, the Court suggests that the parties review Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551. Among other points, prospective costs, such as future travel time, are not appropriate unless Plaintiff filed opposition papers or an appearance at the hearing was required. Anticipated costs are not awarded.