Case Number: KC063315 Hearing Date: June 11, 2014 Dept: O

Arnold, et al. v. Sealy Mattress Manufacturing Company, Inc., et al. (KC063315)

Plaintiffs Arnold and Bartolotti’s MOTION FOR PROTECTIVE ORDER

Respondent: Defendant Jakel Motors, Inc.

TENTATIVE RULING

Plaintiffs Arnold and Bartolotti’s motion for protective order is GRANTED as to Alison Gokal, and DENIED as to Jay Newell, Lawrence Kashar and Douglas Bennett. No sanctions to either party.

Plaintiffs Arnold and Bartolotti’s motion for protective order is GRANTED as to Alison Gokal, and DENIED as to Jay Newell, Lawrence Kashar and Douglas Bennett. No sanctions to either party.

AS TO ALISON GOKAL:
Depositions of opposing counsel are presumptively improper. (Carehouse Convalescent Hosp. v. Sup.Ct. (2006) 143 Cal.App.4th 1558, 1562.) The practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause… The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; (3) the information is crucial to the preparation of the case. (Spectra-Physics, Inc. v. Superior court (1988) 198 Cal.App.3d 1487, 1496.)

Defendant has submitted Exhibit A, which consists of pictures taken on 1/22/14 and 3/13/14, clearly depicting an alteration to the motor. The bearing retainer cap at the base of the shaft and directly below the bearing on this motor was removed, and then forced back over the bearing, causing it to turn inside out with teeth facing up. (Litt Decl., Par. 9.) According to defendant, the motor was in the exclusive possession of plaintiffs, and therefore, either plaintiffs’ counsel or their experts spoliated the evidence.

The court finds the information relating to spoliation of evidence is relevant and not privileged, and is crucial to the preparation of the case. The bearing retainer cap “acts as a spring which holds the bearing in place, aligns it to the shaft, and allows the bearing to rotate to accomplish the alignment. It is a critical part of the subject motor and serves a distinct purpose… plaintiffs or their experts may now attempt to point to this deformed part or the scrape marks on the bearing as evidence of a design or manufacturing defect which caused or contributed to this fire.” (Frisse Decl., Paar. 9.) However, Defendant failed to establish that no other means exist to obtain the information. Plaintiffs already submitted verified discovery responses, affirming that the only individuals who handled the motor were plaintiffs’ counsel’s “warehouse personnel” and “Enkay Engineering.” (Reply, 5:20-28.) Defendant admits that on 3/6/14, representatives of Enkay Engineering conducted a visual examination of the evidence. Rather than deposing these individuals, defendant has accepted Attorney Braun’s declaration that the inspection was strictly visual. The individuals themselves did not sign any declaration or provided any testimony relating to their inspection. Nor was discovery conducted on counsel’s “warehouse personnel.” Motion is GRANTED as to Alison Gokal.

AS TO JAY NEWELL:
Plaintiffs contend their counsel hired Newell, and therefore, work product protection applies to the work of the attorney’s employees. (Rico v. Mitsubishi motors Corp. (2007) 42 Cal.4th 758, 815.) The court critically notes that plaintiffs failed to identify the “warehouse personnel” by name in their response to discovery. Since plaintiff’s discovery responses are deficient in this regard, and since it is unclear if Newell is part of counsel’s “warehouse personnel,” Newell may deposed as to non-privileged percipient facts, i.e whether he has any knowledge relating to the alteration of the motor from 1/22/14 to 3/13/14. Motion is DENIED as to Jay Newell.

AS TO LAWRENCE KASHAR AND DOUGLAS BENNETT:
An individual who may ultimately possess expert information may nonetheless be deposed as a percipient witness. (Brun v. Bailey (1994) 27 Cal.App.4th 641; Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198.) The court critically notes that plaintiffs failed to identify the “warehouse personnel” by name in their response to discovery. Since plaintiff’s discovery responses are deficient in this regard, and since it is unclear if the experts are part of counsel’s “warehouse personnel,” the experts may be deposed as to non-privileged percipient facts, i.e. whether they have any knowledge relating to the alteration of the motor from 1/22/14 to 3/13/14. Motion is DENIED as to the experts.

No sanctions to either party.