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 21 August 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 22 August 2014, the following motions were argued and submitted:

1. motion of Plaintiff to compel Defendant National Semiconductor Corp. to provide further responses to requests for production of documents; and
2. motion of Defendant National Semiconductor Corp. to quash deposition notice or, in the alternative, motion for protective order.

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[1]

on Wednesday, 20 August 2014, counsel appeared on a combination ex parte application/”heads up conference” which should simplify the hearing on this matter.  Counsel were instructed that they could appear around 11:00 am.

I.  Statement of Facts.

Plaintiff Michael Hager (“Plaintiff”) was born on April 26, 1965, with severe birth defects, including mental retardation, skeletal and limb deformation, severely impaired circulation, and chromosomal abnormalities.  (Complaint at ¶¶ 1, 26.)  “From approximately 1962 to 1964,” Plaintiff’s mother was an employee at the Fairchild Semiconductor facility in Mountain View (“the Fairchild facility”).  (Id. at ¶ 8.)  Defendant National Semiconductor (“Defendant”) is the successor in interest of Fairchild Corporation, which owned, operated, managed, and controlled the facility where Plaintiff’s mother was employed.  (Id. at ¶ 4.)

During her employment at the Fairchild facility, Plaintiff’s mother worked in “clean rooms” where she was exposed to numerous teratogenic, genotoxic, and reproductively toxic chemicals that were absorbed into her body through her skin, and through inhalation.  (Complaint at ¶¶ 9, 24, 25.)  These chemicals were a direct and proximate cause of Plaintiff’s birth defects.  (Id. at ¶¶ 26, 29.)  The owners of the Fairchild facility knew or should have known of the potential harm that could result from exposure to the chemicals Plaintiff’s mother used in her work, but nonetheless failed to take adequate steps to protect its workers, misrepresented the safety of working in its facility, and actively concealed the potential dangers.  (Id. at ¶¶ 16, 20, 21, 23, 27, 30-32.)

Plaintiff and his family were unaware of the cause of his birth defects until December 2008.  (Complaint at ¶ 34.)  Since learning of Plaintiff’s condition, Plaintiff’s parents spoke with “numerous treating physicians, surgeons, and other health care providers and specialists regarding” Plaintiff’s birth defects, none of whom “ever suggested, implied or suspected” that “exposure to teratogenic, genotoxic and reproductively toxic chemicals and processes” were “a potential contributing cause of the birth defects and injuries” suffered by Plaintiff.  (Id. at ¶ 33.)  However, in December 2008, Plaintiff’s mother learned about attorneys who were investigating the link between birth defects and chemicals used in the semiconductor industry.  (Complaint at ¶ 34.)  Plaintiff’s mother contacted these attorneys, who conducted an investigation and concluded that Plaintiff’s condition was caused by his mother’s exposure to chemicals at the Fairchild facility.  (Id. at ¶¶ 35-36.)  Prior to the attorneys’ investigation, Plaintiff and his family had no reason to suspect the true cause of his disability.  (Id. at ¶ 37.)

Based upon these allegations, Plaintiff filed his Complaint in December 2010, claiming damages for negligence, ultra hazardous activity liability, willful misconduct, fraud, premises liability, and strict products liability.  On February 7, 2011, Defendant filed the instant demurrer to each of these causes of action.  In connection with its demurrer, Defendant requests judicial notice of court documents filed in related lawsuits.  Plaintiff filed his statement in opposition to Defendant’s demurrer on September 23, 2011, and Defendant filed its reply brief on September 29, 2011.

II.            Discovery Dispute.

In preparation for litigation, NSC hired Nichols Smith, a private investigator, to interview Plaintiff’s father, Paul Hager, regarding his knowledge of Plaintiff’s alleged birth defects.  The evidence shows that Smith recorded interviews with Hager on March 26, 2013, March 30, 2013, and April 20, 2013.

During discovery, NSC produced the March 26 and March 30 recordings, however, pursuant to NSC’s privilege log, it refused to provide the April 20 recording, as it contained alleged protected work product, namely, NSC’s attorney’s impressions, conclusions, and theories.  Specifically, NSC claimed that their counsel, Marc Katz, provided Smith with desired lines of inquiry to ask Hager on April 20, thereby creating absolutely protected work product.

III.           Analysis.

No tentative ruling. Counsel may appear and argue on the merits.

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”