2013-00144682-CU-PO

R J Lahn vs. Specialized Education Services Inc

Nature of Proceeding:   Motion for Protective Order

Filed By:  Fakhimi, Jessica A.

***  Judge Cadei discloses that the law firm of Dreyer, Babich, Buccola, Wood &
Campora LLP represented his family in 2004-05 in connection with an automobile
accident.  Additionally, prior to Judge Cadei’s appointment to the bench, he had a
professional relationship with the Dreyer, Babich law firm including the representing
the firm regarding certain financial matters in the early 1990s, referring matters to them
and undertaking cases and clients that were referred to him while he was in practice  prior to June 2002.  Judge Cadei has not had any personal relationship with the
members of the firm and does not socialize with any of the attorneys from the Dreyer,
Babich firm beyond the usual meetings of professional organizations in the community.
Judge Cadei has determined that the foregoing does not disqualify him from hearing
this matter but provides this information to fully inform all parties in advance of the
hearing.  ***

Defendants’ motion for protective order limiting the dissemination of
personal/private/confidential/medical/educational information including documents
produced and testimony given in this action to parties, their counsel and
experts/consultants, any mediator(s) and other persons agreed to by the parties is
effectively UNOPPOSED and is GRANTED, as follows.

Moving counsel is admonished because the notice of motion fails to comply with Code
of Civil Procedure §1010 and CRC Rule 3.1110(a).

At the outset, the Court must remind all counsel 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.)  Most troubling here is that defendants’ request for a
protective order limiting the disclosure of sensitive information appears to have been
eminently reasonable and not particularly unusual in a case like this where personal,
private and/or confidential information is likely to be disclosed during discovery.  The
Court finds no reason why counsel should have been unable to resolve the issues
presented here without the necessity of a formal motion.  Nevertheless, at the expense
of other matters on this crowded docket, the Court reluctantly addresses another
rather unremarkable discovery dispute that should have been resolved through the
meet-and-confer process.

According to the moving papers, this action arises out of allegations of the sexual
abuse of plaintiff, a special needs minor, by another student while attending
defendants’ school.  Defendants maintain that discovery in this action is likely to
require the production of records and/or testimony relating to a variety of subjects
which are personal, private and/or confidential including but not limited to personal,
medical and/or educational information pertaining to plaintiff, other students and
defendants’ employees as well as information constituting defendants’ trade secrets.
Indeed, defendants contend their initial production of documents to plaintiff will include
such documents and thus, they now seek a protective order limiting the dissemination
of such documents/information to only those who need to know or otherwise agreed to
by the parties.

Although plaintiff’s reply to defendants’ opposition to plaintiff’s related motions to
compel defendants’ further responses to plaintiff’s initial requests for production briefly
highlight why plaintiff believes the protective order sought here by defendants should
be denied, the reply papers explicitly state, “The issues relating to whether a protective
order should or should not be issued will be fully briefed in plaintiff’s opposition to the             defendant’s motion for a protective order.” (3/18/2014 Oppos. to Mot. To Compel,
p.8:12-14.)  However, according to the 3/19/2014 letter from plaintiff’s counsel, plaintiff
ultimately decided not “to file any additional papers in opposition” to the present motion
for protective order.

Based on the limited record now before the Court and the lack of any substantive
opposition by plaintiff, this Court finds that defendants have established good cause
sufficient to issue a protective order limiting the disclosure of documents and testimony
produced during the course of this litigation to only those with a need for such
personal, private and/or confidential information.  Thus, unless and until the Court
orders otherwise, such information shall not be disclosed to anyone but the parties to
this action, their counsel and experts/consultants, any mediator(s) and any other
persons agreed to by the parties in writing.

The Court notes that while defendants’ motion certainly could have and should have
been pursued much earlier, the mere delay in filing the motion was not entirely
unreasonable and does not under the circumstances here justify the outright denial of
the requested relief which otherwise appears more than justified in this case.

To the extent the parties encounter any more issues with respect to the scope of the
protective order granted here (or for that matter, any other discovery in this case),
counsel shall meet-and-confer in good faith consistent with the language found in
Townsend v. Superior Court and in this ruling before filing a discovery motion.

The Court declines to award monetary sanctions here.

This minute order is effective immediately.  Pursuant to CRC Rule 3.1312, defendants
to prepare a proposed protective order consistent with their moving papers.

Item  13    2013-00144682-CU-PO

R J Lahn vs. Specialized Education Services Inc

Nature of Proceeding:  Motion to Compel Production (Carlee Erickson)

Filed By:  Campora, Steven M.

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

***  Judge Cadei discloses that the law firm of Dreyer, Babich, Buccola, Wood &
Campora LLP represented his family in 2004-05 in connection with an automobile
accident.  Additionally, prior to Judge Cadei’s appointment to the bench, he had a
professional relationship with the Dreyer, Babich law firm including the representing
the firm regarding certain financial matters in the early 1990s, referring matters to them
and undertaking cases and clients that were referred to him while he was in practice
prior to June 2002.  Judge Cadei has not had any personal relationship with the
members of the firm and does not socialize with any of the attorneys from the Dreyer,
Babich firm beyond the usual meetings of professional organizations in the community.
Judge Cadei has determined that the foregoing does not disqualify him from hearing
this matter but provides this information to fully inform all parties in advance of the  hearing.  ***

Plaintiff’s motion to compel defendant Erickson’s further responses to plaintiff’s
requests for production, set one, along with the production of responsive documents is
GRANTED in part and DENIED in part, as follows.

At the outset, the Court must remind all counsel 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.)

Most troubling here is that the bulk of the issues raised here seem to relate directly
with defendant’s request for a protective order limiting the disclosure of sensitive
information to third parties and plaintiff’s refusal to agree to what appears to have been
an eminently reasonable request, not particularly unusual in a case like this where
personal, private and/or confidential information is likely to be disclosed during
discovery.  The Court finds no reason why counsel should have been unable to
resolve the issues presented here without the necessity of a formal motion.
Nevertheless, at the expense of other matters on this crowded docket, the Court
reluctantly addresses another rather unremarkable discovery dispute that should have
been resolved through the meet-and-confer process.

This action arises out of allegations of the sexual abuse of plaintiff, a special needs
minor, by another student while attending defendants’ school.  The First Amended
Complaint alleges causes of action for neglect/abuse of a “special needs” minor,
professional negligence and battery.  Based on these allegations, plaintiff propounded
an initial set of requests for production to several of the named defendants.  It is now
claimed by plaintiff that defendant Erickson’s objections and responses to most of the
requests are in various respects deficient and that without justification, no documents
have yet been produced.

In opposition, defendant asserts that they have already agreed to produce nearly all of
the documents requested by plaintiff and have over 2200 pages ready to be delivered
once a protective order limiting their dissemination is in place but plaintiff has
unreasonably refused to agree to the protective order, thereby necessitating a formal
motion which is now set for 4/2/2014.  The opposition also maintains that defendants
have already agreed to produce subject to the protective order the documents sought
by all but four (4) of plaintiff’s requests for production (i.e., request Nos. 15, 25, 29 and
35) and that despite plaintiff’s failure to meet-and-confer with respect to these four
requests, defendants will voluntarily provide further responses to request Nos. 25, 29
and 35.  As to request No. 15, defendant contends their objections are justified and on
that basis, they decline to provide a further response to No. 15.

The Court notes that it has now issued a tentative ruling granting defendants’ motion
for protective order limiting the dissemination of
personal/private/confidential/medical/educational information including documents
produced and testimony given in this action.  This would appear to address
defendants’ sole remaining objection to the actual production of documents in
response to plaintiff’s request Nos. 1-2, 4-6, 8-9, 11-14, 17, 20, 23-24, 26-28, 30-34
and 36-45.  Therefore, the motion to compel production of the documents responsive
to these particular requests is granted.  Because defendant have agreed to produce all
documents responsive to these requests subject to the protective order, the Court
need not rule on any of the other objections asserted in response to each.

In response to request Nos. 16, 18-19 and 21, defendant has indicated they have no
responsive documents.  However, plaintiff correctly points out that Code of Civil
Procedure §2031.230 requires a specific explanation of why defendants are unable to
comply with these requests and also the name and address of anyone who is believed
to have possession, custody or control of the responsive documents.  Because
defendant has failed to comply with these requirements, they shall provide further
responses to request Nos. 16, 18-19 and 21.  Because defendants appear to have no
documents responsive to these requests, the Court need not rule on the objections
asserted to them.

As noted above, defendants have agreed to provide further responses to request Nos.
25, 29 and 35.  Therefore, the motion to compel further responses to these requests is
granted.  Based on the present record, the Court declines to overruled defendants’
assertion of attorney-client and attorney work product privileges in response to request
Nos. 25 and 29 but defendants shall provide an appropriate privilege log pursuant to
Code of Civil Procedure §2031.240(b) for each and every responsive document
withheld from production on account of any privilege asserted in response to these two
and any other individual request for production from plaintiff.

The sole remaining request for production at issue here is No. 15, which requests all
writings reflecting the number of employees had present at the subject school on each
school day between 9/1/2011 and 6/6/2012.  The Court finds that this request is
unreasonably overbroad and not reasonably calculated to lead to the discovery
admissible evidence.  Moreover, plaintiff has failed to make the specific showing
required under Code of Civil Procedure §2031.310(b)(1):  A party moving to compel a
further response must “set forth specific facts showing good cause” justifying the
discovery sought by the documents requests.  Plaintiff’s separate statement filed in
support of this motion contains any “specific facts which tend to show good cause” to
obtain this information via documents, as opposed to other methods.  Accordingly, the
motion to compel is denied as to request No. 15, as that request is currently framed.

The Court declines to award plaintiff monetary sanctions here because defendants’
opposition was under the circumstances substantially justified and that imposition of
such sanctions would otherwise unjust.

The Court also declines to impose monetary sanctions against plaintiff since
defendants could have and should have much earlier anticipated and sought the
protective order which now appears to have delayed the production of documents
sought by plaintiff and because the present motion to compel was substantially
justified.

Consistent with the foregoing, defendant shall provide verified further responses
without additional objections, the production of all non-privileged responsive
documents and an appropriate privilege log no later than 6/20/2014 (unless the parties             mutually agree to a later date, to be confirmed in writing).

To the extent the parties encounter any more issues with respect to these requests for
production (or for that matter, other discovery requests), counsel shall meet-and-confer
in good faith consistent with the language found in Townsend v. Superior Court before
filing a motion to compel.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item  14    2013-00144682-CU-PO

R J Lahn vs. Specialized Education Services Inc

Nature of Proceeding:   Motion to Compel Production (Specialized Education of California)

Filed By:  Campora, Steven M.

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

***  Judge Cadei discloses that the law firm of Dreyer, Babich, Buccola, Wood &
Campora LLP represented his family in 2004-05 in connection with an automobile
accident.  Additionally, prior to Judge Cadei’s appointment to the bench, he had a
professional relationship with the Dreyer, Babich law firm including the representing
the firm regarding certain financial matters in the early 1990s, referring matters to them
and undertaking cases and clients that were referred to him while he was in practice
prior to June 2002.  Judge Cadei has not had any personal relationship with the
members of the firm and does not socialize with any of the attorneys from the Dreyer,
Babich firm beyond the usual meetings of professional organizations in the community.
Judge Cadei has determined that the foregoing does not disqualify him from hearing
this matter but provides this information to fully inform all parties in advance of the
hearing.  ***

Plaintiff’s motion to compel defendant Specialized Education of California’s further
responses to plaintiff’s requests for production, set one, along with the production of
responsive documents is GRANTED in part and DENIED in part, for the reasons set
forth in the Court’s tentative ruling on plaintiff’s motion to compel defendant Erickson’s
further responses.

Consistent with the foregoing, defendant shall provide verified further responses
without additional objections, the production of all non-privileged responsive
documents and an appropriate privilege log no later than 6/20/2014 (unless the parties
mutually agree to a later date, to be confirmed in writing).

To the extent the parties encounter any more issues with respect to these requests for
production (or for that matter, other discovery requests), counsel shall meet-and-confer
in good faith consistent with the language found in Townsend v. Superior Court before
filing a motion to compel.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item  15    2013-00144682-CU-PO

R J Lahn vs. Specialized Education Services Inc

Nature of Proceeding:   Motion to Compel Production (Specialized Education Services Inc)

Filed By:  Campora, Steven M.

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

***  Judge Cadei discloses that the law firm of Dreyer, Babich, Buccola, Wood &
Campora LLP represented his family in 2004-05 in connection with an automobile
accident.  Additionally, prior to Judge Cadei’s appointment to the bench, he had a
professional relationship with the Dreyer, Babich law firm including the representing
the firm regarding certain financial matters in the early 1990s, referring matters to them
and undertaking cases and clients that were referred to him while he was in practice
prior to June 2002.  Judge Cadei has not had any personal relationship with the
members of the firm and does not socialize with any of the attorneys from the Dreyer,
Babich firm beyond the usual meetings of professional organizations in the community.
Judge Cadei has determined that the foregoing does not disqualify him from hearing
this matter but provides this information to fully inform all parties in advance of the
hearing.  ***

Plaintiff’s motion to compel defendant Specialized Education Services, Inc.’s further
responses to plaintiff’s requests for production, set one, along with the production of
responsive documents is GRANTED in part and DENIED in part, for the reasons set
forth in the Court’s tentative ruling on plaintiff’s motion to compel defendant Erickson’s
further responses.

Consistent with the foregoing, defendant shall provide verified further responses
without additional objections, the production of all non-privileged responsive
documents and an appropriate privilege log no later than 6/20/2014 (unless the parties
mutually agree to a later date, to be confirmed in writing).

To the extent the parties encounter any more issues with respect to these requests for
production (or for that matter, other discovery requests), counsel shall meet-and-confer
in good faith consistent with the language found in Townsend v. Superior Court before
filing a motion to compel.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)