Case Name: Peter Isherwood, et al. v. Specialized Bicycle Components, Inc., et al.

Case No.: 2013-1-CV-245098

Defendant Fox Factory Inc.’s Motion to Compel Deponent Giuseppe Fiorante to Answer Deposition Questions and Produce Evidence, and for an Award of Monetary Sanctions

Factual and Procedural Background

This negligence and products liability action arises from plaintiff Peter Isherwood’s (“Isherwood”) injury in a bicycling accident. In 2008, Isherwood, a resident of British Columbia, purchased a specialized full-suspension mountain bike. (First Amended Complaint (“FAC”), ¶ 14.) On April 24, 2011, Isherwood was downhill mountain biking near Kamloops, British Columbia. (Id. at ¶ 15.) As Isherwood was landing a jump, the steerer tube on his bicycle broke and he was thrown forward. (Ibid.) As a result, Isherwood hyper-extended his neck and was immediately unable to move his arms and legs. (Ibid.) Imaging demonstrated that Isherwood had suffered a C5-6 facet dislocation, which was surgically repaired, and an incomplete traumatic spinal cord injury. (Id. at ¶ 16.) Later inspection and testing of Isherwood’s bicycle revealed that its aluminum steerer tube had failed, causing the bicycle to disintegrate and Isherwood to fall. (Id. at ¶ 17.)

Based on the foregoing, Isherwood and his wife, plaintiff Tamara Jayne Bickerton (“Bickerton”) (collectively, “Plaintiffs”), filed the operative FAC against several defendants, including Fox Factory, Inc. (“Fox”) dba Fox Racing Shox, the manufacturer of Isherwood’s bicycle’s racing shocks. (FAC, ¶ 14.) The FAC sets forth claims for: (1) negligence; (2) strict products liability; (3) breach of the implied warranty of merchantability; (4) breach of the implied warranty for a particular purpose; and (5) loss of consortium.

Currently before the Court is the motion by Fox to compel deponent Giuseppe Fiorante (“Fiorante”) to answer deposition questions; to compel Fiorante to produce all evidence obtained at the accident scene or created based on his visit to the accident scene; and for an award of monetary sanctions.

Discovery Dispute

On November 20, 2015, former defendant King Cycle Group, Inc. (“King”) noticed the deposition of the person most qualified (“PMQ”) for Plaintiff’s consultant Camp, Fiorante, Matthews and Mogerman (“CFM”). (Rosenlund Dec., Ex. B.) The deposition notice indicated that King sought to depose CFM’s PMQ regarding the following eight deposition topics: (1) all visits to the accident site during which bicycle parts, including but not limited to the baseplate, were collected; (2) the collection of any bicycle parts, including but not limited to the baseplate, from the accident site; (3) the collection of any other evidence related to the incident from the accident site; (4) the preservation of any bicycle parts, including but not limited to the baseplate, obtained from the accident site; (5) the preservation of any other evidence related to the incident that was obtained from the accident site; (6) the chain of custody for any bicycle parts, including but not limited to the baseplate, obtained from the accident site; (7) the chain of custody for any other evidence related to the incident obtained from the accident site; and (8) the chain of custody for the bicycle involved in the incident from the date of the incident until its delivery to Plaintiffs’ expert in Los Angeles, California. (Rosenlund Dec., Ex. B.) On the same day, Plaintiffs served objections to the deposition notice. (Rosenlund Dec., Ex. C.)

On December 1, 2015, King, Fox, and defendant Specialized Bicycle Components, Inc. deposed Fiorante as CFM’s PMQ. (Rosenlund Dec., Ex. C.) During the deposition, Plaintiffs’ counsel asserted objections and instructed Fiorante not to answer questions pertaining to a wide variety of topics, including his first visit the accident site, actions he had taken to investigate the accident, reports or data generated from the investigation of the accident site, the information regarding entities who had custody of the baseplate, the status of and his involvement with a lawsuit filed in British Columbia on Isherwood’s behalf, his representation of Plaintiffs, and his legal practice. (Ibid.) Plaintiffs’ counsel asserted that the questions were improper because they pertained to matters not described in the deposition notice, matters protected by the attorney-client privilege, and/or matters protected by the work product doctrine. (Ibid.) Fiorante followed counsel’s instructions and refused to answer those questions. (Ibid.)

On January 13, 2015, Fox received a signed, corrected copy of Fiorante’s deposition transcript from Plaintiffs. Thereafter, Fox’s counsel sent a meet and confer letter to Plaintiffs’ counsel outlining purported deficiencies with Fiorante’s deposition testimony, specifically with respect to Fiorante’s refusal to answer various deposition questions. (Rosenlund Dec., Ex. D.) A few weeks later, Fox’s counsel sent a follow-up email to Plaintiffs’ counsel, but Plaintiffs’ counsel did not respond.

Consequently, on March 8, 2016, Fox filed the instant motion to compel Fiorante to answer 39 deposition questions and produce all evidence obtained at the accident scene or created based on his visit to the accident scene, and for an award of monetary sanctions.

Several weeks after the motion was filed, Plaintiffs’ counsel replied to the meet and confer letter from Fox’s counsel, advising that answers would be provided to Question Nos. 18, 27, 30, and 33-36 and Plaintiffs would otherwise stand on their objections. (McGuinn Dec., Ex. A.)

Two days later, on April 15, 2016, Plaintiffs filed papers in opposition to the motion.

Discussion

Pursuant to Code of Civil Procedure section 2025.480, Fox moves for an order compelling Fiorante to appear for a continued deposition to answer 39 questions he previously refused to answer. In addition, Fox moves for an order compelling Fiorante to produce “all evidence obtained at the accident scene or created based on his visit to the accident scene, including the surveyors documentation and photographs identified on page 41:19-21 of [his deposition transcript], as well as any other data or work created by said surveyors.” (Ntc. Mtn., p. 1:7-11.)

I. Legal Standard

Code of Civil Procedure section 2025.480 provides that, if a deponent fails to answer any question or to produce any document specified in the deposition notice, the party seeking discovery may move the court for an order compelling an answer or production of documents described in the notice. (Code Civ. Proc., § 2025.480, subd. (a).) The burden of persuasion on a motion to compel under section 2025.480 depends on the relief sought. If the moving party seeks an order requiring the deponent to answer questions that were objected to at the deposition, the deponent bears the burden of justifying such refusal. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 (“Coy”); see also Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 (“Fairmont”).) If the court determines that the answer sought is subject to discovery, it shall order that the answer be given on the resumption of the deposition. (Code Civ. Proc. § 2025.480, subd. (i).)

In contrast, if the moving party seeks an order compelling the production of documents described in a deposition notice, the motion must be accompanied by a showing of good cause. (Code Civ. Proc., § 2025.450, subd. (b)(1) [stating that a good cause showing must be made for production of documents pursuant to deposition notice].) If good cause is shown, the burden shifts to the responding party to justify any objections. (Fairmont, supra, 22 Cal.4th at p. 255.)

II. Production of Evidence and/or Documents

Fox asserts that the Court should compel Fiorante to produce evidence and/or documents relating to his investigation of the accident scene because such information is relevant to the litigation and cannot be obtained through any other avenue. In opposition, Plaintiffs contend that the evidence and/or documents sought are protected from discovery by various privileges.

As a threshold matter, though not addressed by the parties, the Court finds that Fox’s request for an order compelling Fiorante to produce evidence and/or documents is improper on its face because the deposition notice does not ask Fiorante to produce any evidence or documents.

As articulated above, Code of Civil Procedure section 2025.480 allows a party to move the court for an order compelling production if a deponent fails to “produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena ….” (Code Civ. Proc., § 2025.480, subd. (a), emphasis added.)

Here, the subject deposition notice only notices the deposition of CFM’s PMQ and sets forth the areas of inquiry for the PMQ’s oral examination. (Rosenlund Dec., Ex. B.) The deposition notice does not demand that the PMQ produce any documents or evidence in connection with his or her deposition. (Ibid.) Consequently, Code of Civil Procedure section 2025.480 does not authorize the instant motion to compel production of evidence and/or documents. Furthermore, Fox does not cite any other statute authorizing its motion as it pertains to the request for an order compelling production of evidence and/or documents.

For these reasons, Fox’s request for an order compelling production of evidence and/or documents is DENIED.

III. Answers to Deposition Questions

Fox argues that the Court should compel Fiorante to answer Question Nos. 1-39 because the objections raised by Plaintiffs’ counsel either fail to justify Fiorante’s refusal to answer or lack merit.

A. Question Nos. 18, 27-30, and 33-36

Questions Nos. 18, 27-30, and 33-36 ask Fiorante to state: whether he has “an understanding as to why” he is identified in Plaintiffs’ interrogatory responses as a person who found the baseplate; if he knew that the baseplate was missing from Isherwood’s bicycle at the time of his second visit to the accident scene; whether he had been to the accident scene “other than on the two occasions … discussed” during the deposition; “[h]ow many people were present on [his] first visit to the accident site”; if he “adhere[d] to any particular protocol for the collection or preservation of forensic evidence” when he first visited the accident scene; the name of the forensic consultant that the baseplate was given to; if he had “an estimate based on personal knowledge … as to when [the baseplate] was delivered to” the consulting metallurgical engineer; “[how] long after the baseplate was given to [his] anonymous forensic consultant to when it was given to this entity in Los Angeles”; and “what did the entity in Los Angeles do.” (Sep. Stmt., pp. 15, 20-22, 24-25.)

Plaintiffs’ counsel objected to these questions on the grounds that they seek information protected by the attorney-client privilege, protected by the work product doctrine, and/or regarding matters not described in the deposition notice.

In their opposition, Plaintiffs do not attempt to defend their objections to these questions; rather, they expressly acknowledge that answers are warranted to Questions Nos. 18, 27-30, and 33-36. (Opp’n. Sep. Stmt., pp. 34, 48-51, 54-56.) Consequently, the Court finds that the undefended objections are without merit and, therefore, overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221; see also Wellpoint Health Networks, Inc. v. Super. Ct. (1997) 59 Cal.App.4th 110, 130 (“Wellpoint”) [the objecting party has the initial burden of showing that material falls within the applicable privilege].)

Accordingly, Plaintiffs have not justified Fiorante’s refusal to respond to Questions Nos. 18, 27-30, and 33-36, and answers to those questions are warranted.

B. Question Nos. 1, 5-7, 10-17, and 38

Question Nos. 1, 5-7, 10-17, and 38 ask Fiorante to state: if he “ever represented plaintiffs in product liability cases”; if the document marked as Exhibit 105 during his deposition is a public filing in Vancouver; “[i]n what capacity [he] signed [the document marked as Exhibit 105 during his deposition]”; “the status of the action in Canada that [he] filed on behalf of the plaintiff in this action”; if he reported “Isherwood’s lawsuit to the British Columbia government under the Healthcare Cost Recovery Act”; whether “the plaintiff’s name [was] intentionally misspelled to be Peter Iserwood instead of Peter Isherwood” on the document marked as Exhibit 105 during his deposition; if anything had “been done in the British Columbia court system to correct the spelling of … Isherwood’s name on the complaint … marked as Exhibit 105”; if the document marked as Exhibit 105 during his deposition was served on any of the defendants in that lawsuit; if there is “any agreement in existence presently between [his] firm and any of the defendants in the civil claim referenced in Exhibit 105”; if there had “been any disclosures or discovery undertaken in [the] civil claim referenced in Exhibit 105”; if any counter-claims had “been filed in [the] civil claim referenced in Exhibit 105”; if there had “been any settlement of any aspect of the claims referenced in the civil claim … marked as Exhibit [105]”; and if he “had any of Plaintiffs’ other bicycles in [his] possession since [he] was retained” aside from the one bicycle that was discussed during the deposition. (Opp’n. Sep. Stmt., pp. 2, 7-8, 10, 16, 18, 20, 23, 25, 27, 29, 31, and 58.)

Plaintiffs’ counsel objected to each of these questions on the ground that they seek information beyond the scope of the topics described in the deposition notice. Plaintiffs’ counsel also objected to Question No. 1 on the ground of privacy, Question Nos. 5-6 on the ground of attorney-client privilege, and Question No. 38 on the ground of work product doctrine.

1. Undefended Objections

Except as expressly discussed below, Plaintiffs do not attempt to defend their objections to Question Nos. 1, 5-7, 10-17, and 38. The Court finds that the undefended objections are without merit and, therefore, overruled. (See Coy, supra, 58 Cal.2d at p. 220-221; see also Wellpoint, supra, 59 Cal.App.4th at p. 130.)

2. Beyond the Scope of the Topics Set Forth in the Deposition Notice

Plaintiffs assert that Question Nos. 1, 5-7, 10-17, and 38 seek information beyond the scope of the topics described in the deposition notice. (Opp’n. Sep. Stmt., pp. 8, 10-12, 17-33, 59-60.) Plaintiffs contend that a PMQ witness cannot be compelled to respond to deposition questions that are beyond the scope of matters described in the deposition notice, and cite a federal case—Paparelli v. Prudential Ins. Co. of America (D. Mass. 1985) 108 F.R.D. 727 (“Paparelli”)—in support of their position.

Paparelli analyzes Federal Rules of Civil Procedure (“FRCP”), rule 30(b)(6), which authorizes the deponent to “set out the matters on which each person designated will testify.” (Paparelli, supra, 108 F.R.D. at pp. 729-730.) FRCP, rule 30 (b)(6) simply does not apply to the present case, which is governed by the Civil Discovery Act. Unlike FRCP, rule 30 (b)(6), the applicable provision of the Civil Discovery Act—Code of Civil Procedure section 2025.230—does not permit the deponent to limit the scope of the deposition of its PMQ(s). Consequently, Plaintiffs’ reliance on Paparelli is misguided.

Furthermore, nothing in Code of Civil Procedure section 2025.230 suggests that a PMQ witness cannot be compelled to respond to deposition questions that are beyond the scope of matters described in the deposition notice. Code of Civil Procedure section 2025.230 states that “[i]f the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested,” and “the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” The purpose of that statute “is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking” and to avoid “I don’t know” responses to deposition inquires. (Maldonado v. Super. Ct. (2002) 94 Cal.App.4th 1390, 1395-1396.) The statute does not indicate that the scope of a deposition is limited to the matters set forth in the notice.

Moreover, as a general rule, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) Objections on the grounds of the competency of the deponent, or the relevancy, materiality, or admissibility at trial of the testimony are “unnecessary” and do not justify a deponent’s failure to answer a deposition question. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014 (“Stewart”); see also Code Civ. Proc., § 2025.460, subd. (c).) Thus, even though Fiorante may not be the person most qualified to testify about the matters outside of the topics described in the deposition notice, he cannot refuse to answer deposition questions for that reason.

Therefore, Plaintiffs’ objections to Question Nos. 1, 5-7, 10-17, and 38 on the ground that they seek information beyond the scope of the topics described in the deposition notice are overruled.

3. Relevance

Plaintiffs assert that Question Nos. 10-17 are irrelevant because they seek information about Isherwood’s Canadian lawsuit and, consequently, do not related to liability or damages in this action. (Opp’n., Sep. Stmt., pp. 18, 20, 22, 25, 27, 29, 31, 33.)

Objections on the ground of relevancy are “unnecessary” and do not justify a deponent’s failure to answer a deposition question. (Stewart, supra, 87 Cal.App.4th at p. 1014 [“[T]he deponent’s counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition. Relevance objections should be held in abeyance until an attempt is made to use the testimony at trial.”].)

Accordingly, Plaintiffs’ relevance objections are overruled.

4. Miscellaneous Objections

Plaintiffs contend that Fiorante’s refusal to respond to Question No. 6 was warranted because “the answer to the question is self-evident from the document ….” (Opp’n., Sep. Stmt., p. 10.) Plaintiffs also contend that Fiorante’s refusal to respond to Question No. 7 was warranted because the question is duplicative of Question No. 4.

First, Plaintiffs failed to raise these grounds for objection during Fiorante’s deposition and, therefore, they are waived. (See Boler v. Super. Ct. (1987) 201 Cal.App.3d 467, 473 (“Boler”) [“[i]t does seem that an objection to a deposition question must state the specific ground, and unstated grounds are waived”], emphasis added; see also Code Civ. Proc., § 2025.460, subd. (b) [“Errors and irregularities of any kind occurring at the oral examination that might be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition. These errors and irregularities include, but are not limited to, those relating to the manner of taking the deposition, to the oath or affirmation administered, to the conduct of a party, attorney, deponent, or deposition officer, or to the form of any question or answer.”].)

Second, Plaintiffs do not cite any legal authority, and the Court is aware of none, indicating that Fiorante’s failure to answer the deposition questions was justified because the answer to Question No. 6 was self-evident and Question No. 7 was duplicative. Therefore, even if the objections were not waived, they substantively lack merit.

5. Conclusion

For the foregoing reasons, Plaintiffs have not justified Fiorante’s refusal to respond to Question Nos. 1, 5-7, 10-17, and 38, and answers to those questions are warranted.

C. Question Nos. 2-3

Question Nos. 2-3 ask Fiorante to identify the matter(s) in which he currently represents Plaintiffs and state whether he currently represents Plaintiffs in connection with this case. (Opp’n. Sep. Stmt., pp. 3-4.)

Plaintiffs’ counsel objected to the questions on the ground of attorney-client privilege.

In opposition, Plaintiffs do not attempt to justify their objections on the ground of attorney-client privilege. Rather, Plaintiffs assert that the motion, as it pertains to these questions, is moot because “[l]ater, more focused questions were asked and answered, confirming that … Fiorante’s firm was retained to assist plaintiffs’ counsel with the California action … and that … Fiorante was the identified attorney for plaintiffs in the claim filed in Vancouver.” (Opp’n. Sep. Stmt., pp. 4-5.)

Since Plaintiffs do not attempt to defend their objections based on the attorney-client privilege, they do not meet their initial burden to show that the information sought is privilege and, therefore, the objections are overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221; see also Wellpoint, supra, 59 Cal.App.4th at p. 130.)

Moreover, Plaintiffs do not cite any legal authority, and the Court is aware of none, providing that a deponent may refuse to answer a deposition question on the ground that he or she has already responded to other questions seeking the same or similar information.

Therefore, Plaintiffs have not justified Fiorante’s refusal to respond to Question Nos. 2-3, and answers to those questions are warranted.

D. Question No. 4

Question No. 4 asks Fiorante to describe the “status of the lawsuit that [he] filed on behalf of the plaintiff in this action.” (Opp’n. Sep. Stmt., p. 5.)

Plaintiffs’ counsel objected to the question on the grounds of attorney-client privilege and work product doctrine.

In opposition, Plaintiffs contend that the question “could not be answered without reference to confidential communications with … Fiorante’s clients and to … Fiorante’s impressions, conclusions, opinions, or legal research or theories.” (Opp’n. Sep. Stmt., p. 6.)

Plaintiffs’ arguments are conclusory and fail to establish that the question calls for the disclosure of information protected by the attorney-client privilege and/or work product doctrine. On its face, the question merely calls for the disclosure of facts, which in all likelihood are matters of public record. The status of the case filed in Canada, i.e., whether the case is pending, at issue, in trial, dismissed, or settled, is neither a privileged communication between Fiorante and Plaintiffs nor Fiorante’s work product. (See Code Civ. Proc., § 2018.030 [providing that the work product doctrine only protects work product of an attorney]; see also Fund Ins. Co. v. Super. Ct. (Front Gate Plaza, LLC) (2011) 196 Cal.App.4th 1263, 1275 (“Fund”) [work product doctrine provides absolute protection for an attorney’s “impressions, conclusions, opinions, or legal research or theories,” including unwritten work product, and qualified protection for work product other than a writing]; Mitchell v. Super. Ct. (1984) 37 Cal. 3d 591, 599 (“Mitchell”) [“The [attorney-client] privilege authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client.”]; Evid. Code, § 952 [defining the term “confidential communication between client and lawyer”].) Plaintiffs do not cite any facts or legal authority demonstrating otherwise. Therefore, Plaintiffs’ objections to Question No. 4 are overruled.

Accordingly, Plaintiffs have not justified Fiorante’s refusal to respond to Question No. 4, and an answer to that question is warranted.

E. Question No. 8

Question No. 8 asks Fiorante to state if it is his “practice to obtain authority from clients before filing complaints on their behalf.” (Opp’n. Sep. Stmt., p. 12.)

Plaintiffs’ counsel objected to the question on the grounds that it seeks information beyond the scope of the topics described in the deposition notice and protected by the attorney-client privilege.

In opposition, Plaintiffs attempt to justify all of their objections to Question No. 8. With respect to their first objection, Plaintiffs contend that a PMQ witness cannot be compelled to respond to deposition questions that are beyond the scope of matters described in the deposition notice, and cite Paparelli in support of their position. Regarding their second objection, Plaintiffs contend that the information sought is protected by the attorney-client privilege because it is “an indirect attempt to learn what communications, if any, … Fiorante has with plaintiffs … before filing the Vancouver claim.” (Opp’n. Sep. Stmt., p. 14.) Plaintiffs also argue that the information sought is irrelevant to any issue in this litigation.

As an initial matter, Plaintiffs’ relevance objection is overruled because such an objection does not justify a deponent’s failure to answer a deposition question. (Stewart, supra, 87 Cal.App.4th at p. 1014.)
Next, for the same reasons articulated above with respect to Question Nos. 1, 5-7, 10-17, and 38, Plaintiffs’ objection that the question seeks information beyond the scope of the topics described in the deposition notice lacks merit. Consequently, this objection is overruled.

Finally, Plaintiffs’ argument that that question calls for the disclosure of information protected by the attorney-client privilege is well-taken. “In California[,] the privilege has been held to encompass not only oral or written statements, but additionally actions, signs, or other means of communicating information.” (Mitchell, supra, 37 Cal. 3d at p. 600, citing Ex Parte McDonough (1915) 170 Cal. 230, 234 and Estate of Kime (1983) 144 Cal.App.3d 246, 255.) Here, Fiorante’s testimony regarding his practice, or lack thereof, of obtaining authorization from client’s before initiating legal actions could potentially reveal the nature of confidential communications with his clients, i.e., that the client(s) authorized Fiorante to take and/or file particular actions.

Therefore, Plaintiffs have justified Fiorante’s refusal to respond to Question No. 8, and an answer to that question is not warranted.

F. Question No. 9

Question No. 9 asks Fiorante to state whether he spoke to anyone from SNC Cycles Limited prior to filing the Canadian lawsuit on behalf of Isherwood. (Opp’n. Sep. Stmt., p. 14.)

Plaintiffs’ counsel objected to the question on the grounds that it seeks information beyond the scope of the topics described in the deposition notice and protected by the work product doctrine.

In opposition, Plaintiffs attempt to justify all of their objections to Question No. 9. With respect to their first objection, Plaintiffs contend that PMQ witness cannot be compelled to respond to deposition questions that are beyond the scope of matters described in the deposition notice, and cite Paparelli in support of their position. Regarding their second objection, Plaintiffs contend that the information sought is protected by the work product doctrine because “who a lawyer elects to interview or not interview and when he elects to do so or not do so … directly relates to … Fiorante’s impressions, conclusions, opinions, or legal research or theories.” (Opp’n. Sep. Stmt., p. 16.)

For the same reasons previously set forth above, Plaintiffs’ first objection—that the question seeks information beyond the scope of the topics described in the deposition notice—lacks merit. Consequently, the objection is overruled.

Next, the Court finds that Plaintiffs’ second objection based on the work product doctrine is not well-taken. The case of Coito v. Super. Ct. (2012) 54 Cal.4th 480 (“Coito”) illustrates when an objection based on the work product doctrine is appropriate. In Coito, the California Supreme Court significantly limited the holding in Nacht & Lewis Architects v. Super. Ct. (1996) 47 Cal.App.4th 214 (“Nacht”) that a party could not be compelled to respond to form interrogatory No. 12.2 because the information it seeks—a list of witnesses whom counsel interviewed—is attorney work product. (See Nacht, supra, 47 Cal.App.4th at p. 217.) The court held that the identity of witnesses from whom a party’s counsel has obtained statements “is not automatically entitled as a matter of law to absolute or qualified work product protection.” (Coito, supra, 54 Cal.4th at p. 486.) “In order to invoke the privilege, [the party] must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).” (Id., at p. 486.) Thus, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the discovery request would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. (Ibid.) Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the identities of the witnesses. (See id. at p. 504.)

Additionally, with respect to the actual witness statements that were obtained by counsel, the court held that witness statements created from an interview conducted by an attorney are entitled to qualified work product protection as a matter of law. (See Coito, supra, 54 Cal.4th at p. 486.) It reasoned that failing to apply qualified work product protection to witness statements obtained by an interview conducted by an attorney would allow an adversary to free-ride off opposing counsel’s industry and efforts and impede the Legislature’s intent to encourage attorneys to prepare their cases thoroughly and to investigate not only the favorable, but also the unfavorable, aspects of those cases. (See id. at pp. 496-497.) The court noted that “a recorded witness interview may, in some instances, reveal the ‘impressions, conclusions, opinions, or legal research or theories’ of the attorney and thus be entitled to absolute protection. … This may occur not only when a witness’s statements are ‘inextricably intertwined’ with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. … It also may occur when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney’s theory of the case or the attorney’s evaluation of what issues are most important. Lines of inquiry that an attorney chooses to pursue through followup questions may be especially revealing.” (Id. at 496.)

However, witness statements procured by an attorney will not always reveal the attorney’s thought process, as in the scenario in which an attorney collects statements from witnesses to an accident with no particular foresight, strategy, selectivity, or planning is not uncommon. (See Coito, supra, 54 Cal.4th at p. 496 [“What, for example, of the situation in which an attorney sends an investigator to interview all witnesses listed in a police report, and the investigator asks few if any questions while taking the witnesses’ statements? Clearly, these statements would reveal nothing significant about the attorney’s impressions, conclusions, or opinions about the case”].)

Here, Question No. 9 seeks to discover whether Fiorante spoke with anyone from SNC Cycles Limited. Thus, at most, the question possibly calls for the disclosure of information about the identity of potential witnesses that Fiorante may, or may not, have interviewed. The question does not demand the disclosure of any witness statements that may have been obtained by Fiorante. As indicated above, the identity of witnesses from whom a party’s counsel obtained statements “is not automatically entitled as a matter of law to absolute or qualified work product protection.” (Coito, supra, 54 Cal.4th at p. 486.) Instead, such information may be entitled to work product protection if the objecting party can make a preliminary or foundational showing that answering the discovery request would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. (Ibid.) Plaintiffs fail to make such a preliminary or foundational showing. (See e.g. Coito, supra, 54 Cal.4th at pp. 501-502 [explaining the type of factual showing that might demonstrate that disclosure of the identity of witnesses from whom counsel has taken a statement would reveal information about counsel’s evaluation of or conclusions about the case].) Rather, they merely assert in a conclusory manner that the information sought is protected by the work product doctrine because “who a lawyer elects to interview or not interview and when he elects to do so or not do so … directly relates to … Fiorante’s impressions, conclusions, opinions, or legal research or theories.” (Opp’n. Sep. Stmt., p. 16.) Therefore, Plaintiffs objection based on the work product doctrine is overruled.

Accordingly, Plaintiffs have not justified Fiorante’s refusal to respond to Question No. 9, and an answer to that question is warranted.

G. Question Nos. 19-23 and 25

Question Nos. 19-23 and 25 ask Fiorante to: state whether he performed any investigation of the events giving rise to this lawsuit; describe what he did to investigate the accident; state “[w]hat did [he] visit the site to do”; state why he visited “the site for the first time”; state how long he spent at the site during his first visit to the scene of the accident; and state whether anyone besides him went to the accident scene during his first visit. (Opp’n. Sep. Stmt., pp. 34, 36-37, 42, 45.)

Plaintiffs’ counsel objected to each of the questions based on the work product doctrine. Plaintiffs’ counsel also objected to Question Nos. 20-23 on the ground of attorney-client privilege.

In opposition, Plaintiffs only attempt to justify their objection based on the work product doctrine.
The Court finds that the undefended objections are without merit and, therefore, overruled. (See Coy, supra, 58 Cal.2d at p. 220-221; see also Wellpoint, supra, 59 Cal.App.4th at p. 130.)

With respect to their objection based on the work product doctrine, Plaintiffs argue that all investigations and activities, other than Fiorante’s second visit to the accident scene, are entitled to qualified protection under the work product doctrine. Plaintiffs assert that “[t]he type and scope of investigations that an attorney chooses to perform himself or direct his agent to perform, and how he or the agent go about performing such investigations, is reflective of counsel’s strategy and the development of legal theories ….” (Opp’n. Sep. Stmt., pp. 35, 37, 39, 41, 43, 46.)

The Court agrees with Plaintiffs that information regarding the manner in which Fiorante chose to conduct his investigation of the events surrounding the incident, the specific steps he took to investigate the incident, and the reasons that motivated his visits to the scene of the accident are entitled to qualified work product privilege because such information would reveal his tactics, strategy, and/or theories. (See Coito, supra, 54 Cal.4th at p. 502 [an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the discovery request would reveal the attorney’s tactics, impressions, or evaluation of the case].) Moreover, Fox has not established that denial of discovery will unfairly prejudice it in preparing its defense or result in an injustice. (See Code Civ. Proc., § 2018.030, subd. b) [“[t]he work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice”].) For these reasons, the objection based on the work product doctrine is sustained as to Question Nos. 20-22. Consequently, Plaintiffs have justified Fiorante’s refusal to respond to Question Nos. 20-22, and answers to those questions are not warranted.
With respect to Question Nos. 19, 23, and 25, the objection is overruled because those questions do not ask Fiorante to disclose the type and scope of his investigation, or how he performed his investigation. Rather, those questions merely ask Fiorante to state whether he performed any investigation at all, how long he was at the accident site during his first visit, and whether anyone else was at the accident scene during his first visit. Disclosure of those facts will not reveal Fiorante’s tactics, impressions, theories, or evaluation of the case. In light of the foregoing, Plaintiffs have not justified Fiorante’s refusal to respond to Question Nos. 19, 23, and 25, and answers to those questions are warranted.
H. Question No. 24

Question No. 24 asks Fiorante to state if he was “told where to go [to find the accident scene] by one of [his] clients in connection with the case [he is] representing them in.” (Opp’n. Sep. Stmt., p. 43.)

Plaintiffs’ counsel objected to the question on the grounds of attorney-client privilege and work product doctrine.
In opposition, Plaintiffs attempt to defend both of their objections. As Plaintiffs persuasively argue, it is readily apparent that Question No. 24 seeks the disclosure of confidential attorney-client communications because the question expressly asks Fiorante to reveal whether he was told by his client where the scene of the accident was located. (See Mitchell, supra, 37 Cal. 3d at p. 599; see also Evid. Code, § 952; Alpha Beta Co. v. Super. Ct. (1984) 157 Cal.App.3d 818, 824 [confidential communications include information given from a client to the attorney].) Consequently, the objection based on the attorney-client privilege is sustained.
Thus, Plaintiffs have justified Fiorante’s refusal to respond to Question No. 24, and an answer to that question is not warranted.
I. Question Nos. 31-32

Questions Nos. 31-32 ask Fiorante to state whether the survey conducted of the trail at the accident scene generated a report and describe where “that data [collected by the surveyors is] kept presently.” (Opp’n. Sep. Stmt,. pp. 51-52.)

Plaintiffs’ counsel objected to the questions on the ground of work product doctrine.

In opposition, Plaintiffs attempt to defend their objection, arguing that the objection based on the work product doctrine was proper to the questions “as framed.” (Opp’n. Sep. Stmt,. pp. 52-53.) Plaintiffs assert that they “did not object to any questions relating to the inspection … Fiorante performed relative to the subject matter of the Notice of Deposition…”; “[o]ther investigations and activities are protected from disclosure by the attorney work product doctrine”; and “[a] survey report, if any, is presently protected from disclosure by the attorney work product doctrine.” (Ibid.)

These conclusory arguments fail to establish that the discovery sought is Fiorante’s work product. Whether a survey report exists does not reveal anything about Fiorante’s impressions, conclusions, opinions, legal research, or theories. (See Fund, supra, 196 Cal.App.4th at p. 1275 [work product doctrine provides absolute protection for an attorney’s “impressions, conclusions, opinions, or legal research or theories,” including unwritten work product, and qualified protection for work product other than a writing].) The mere existence of a document containing privileged information is not privileged. (See Hernandez v. Super. Ct. (2003) 112 Cal.App.4th 285, 293.) Similarly, the location of evidence, such as the surveyors’ data, simply does not constitute Fiorante’s work product. (See Coito, supra, 54 Cal.4th at pp. 488-489, 499 [indicating that the physical location of evidence is information that is only evidentiary in nature as opposed to material created by or derived from an attorney’s work and reflecting the attorney’s evaluation of the law or facts].) Therefore, Plaintiffs’ work product objection is overruled.

Accordingly, Plaintiffs have not justified Fiorante’s refusal to respond to Question Nos. 31-32, and answers to those questions are warranted.

J. Question Nos. 26 and 39

Question No. 26 asks Fiorante to state if he has “ever spoken with anyone who was present at the time of … Isherwood’s accident other than … Isherwood.” (Opp’n. Sep. Stmt., p. 46.) Question No. 39 asks Fiorante to state whether anyone other than his clients or consultants told him that “there were any parts missing from the bike” before “[his] trip to the scene where [he] found the baseplate.” (Opp’n. Sep. Stmt., p. 60.)

Plaintiffs’ counsel objected to Question No. 26 on the grounds of attorney-client privilege and work product doctrine. Plaintiffs’ counsel objected to Question No. 39 on the grounds that it lacks foundation, seeks information beyond the scope of the topics described in the deposition notice, and seeks information protected by the attorney-client privilege.

In opposition, Plaintiffs only attempt to justify their objections based on the work product doctrine.

The Court finds that the undefended objections are without merit and, therefore, overruled. (See Coy, supra, 58 Cal.2d at p. 220-221; see also Wellpoint, supra, 59 Cal.App.4th at p. 130.)

With respect to their objection based on the work product doctrine, Plaintiffs argue that “[t]he identities of witnesses are discoverable, but who an attorney chooses to speak to or not speak to is protected from disclosure by the attorney work product doctrine.” (Opp’n. Sep. Stmt., pp. 47-48, 61.)

Plaintiffs’ argument is unpersuasive as the California Supreme Court in Coito explicitly stated that the identity of witnesses from whom a party’s counsel has obtained statements “is not automatically entitled as a matter of law to absolute or qualified work product protection.” (Coito, supra, 54 Cal.4th at p. 486.) Furthermore, Plaintiffs fail to make a preliminary or foundational showing that answering Question No. 39 would reveal the Fiorante’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the Fiorante’s industry or efforts. (See e.g. id., at pp. 501-502 [explaining the type of factual showing that might demonstrate that disclosure of the identity of witnesses from whom counsel has taken a statement would reveal information about counsel’s evaluation of or conclusions about the case].) For these reasons, the objection based on the work product doctrine is overruled.

Therefore, Plaintiffs have not justified Fiorante’s refusal to respond to Question Nos. 26 and 39, and answers to those questions are warranted.

K. Question No. 37

Question No. 37 asks Fiorante to state whether he ever had contact with the person “who turned over [Isherwood’s] bike to [his] firm.” (Opp’n. Sep. Stmt., p. 56.)

Plaintiffs’ counsel objected to the question on the grounds that it sought information beyond the scope of the topics described in the deposition notice and protected by the work product doctrine.

In opposition, Plaintiffs attempt to justify all of their objections. Plaintiffs contend that a PMQ witness cannot be compelled to respond to deposition questions that are beyond the scope of matters described in the deposition notice, and cite Paparelli in support of their position. Plaintiffs further contend that “[t]he identities of witnesses are discoverable, but who an attorney chooses to speak to or not speak to is protected from disclosure by the attorney work product doctrine.” (Opp’n. Sep. Stmt., p. 58.)

For the same reasons previously articulated above with respect to Question Nos. 9, 26, and 39, Plaintiffs’ objections lack merit. Consequently, the objections are overruled.

Consequently, Plaintiffs have not justified Fiorante’s refusal to respond to Question No. 37, and an answer to that question is warranted.

L. Conclusion

Accordingly, Fox’s request for an order compelling Fiorante to answer deposition questions is GRANTED IN PART and DENIED IN PART. The request is DENIED as to Question Nos. 8, 20-22, and 24. The request is GRANTED as to Question Nos. 1-7, 9-19, 23, 25-36, and 38-39. Fiorante shall appear and be deposed within 20 calendar days of the date of the filing of the Order at a date and time that is mutually agreed upon by the parties. At his continued deposition, Fiorante shall answer Question Nos. 1-7, 9-19, 23, 25-36, and 38-39. Counsel may also pose any reasonably related follow-up questions and Plaintiffs may assert objections thereto.

IV. Request for Monetary Sanctions

Fox requests an award of monetary sanctions against Plaintiffs or their counsel in the amount of $6,409 pursuant to Code of Civil Procedure section 2025.480, subdivision (j).

That statute provides that monetary sanctions shall be awarded against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production at deposition, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances exist which make the imposition of the sanction unjust.

While Fox was largely successful on its motion, to the extent it sought to compel Fiorante to provide answers to deposition questions, the Court nonetheless finds that Plaintiffs acted with substantial justification because their objections Question Nos. 8, 20-22, and 24 were well-taken.

According, Fox’s request for monetary sanctions is DENIED.