Case Number: BC592726 Hearing Date: May 15, 2019 Dept: 48

(1) MOTION TO COMPEL DOCUMENTS WITHHELD BY DEFENDANTS BASED ON ALLEGED PRIVILEGE FOR IN CAMERA INSPECTION;

(2) MOTION TO COMPEL PRODUCTION OF NATIVE VERSIONS OF EMAILS

MOVING PARTY: (1) Plaintiff/Cross-Defendant Steven Jensen;

(2) Defendant/Cross-Complainant Kristen Kerr

RESPONDING PARTY(S): (1) Defendant/Cross-Complainant Kristen Kerr;

(2) Plaintiff/Cross-Defendant Steven Jensen

PROOF OF SERVICE:

Correct Address: (1) Yes; (2) Yes.
16/21 (CCP § 1005(b)): (1) OK. Served by e-service on February 15, 2019; continued to this date per April 2, 2019 minute order; (2) OK. Served by electronic service on April 22, 2019; set for hearing per stip. & order.

DENY Plaintiff/Cross-Defendant Jensen’s motion to compel production of documents for in camera inspection without prejudice; (Kerr’s request for sanctions was previously denied);
GRANT Defendant/Cross-Complainant Kerr’s motion to compel further responses to requests for production of documents, set two, Nos. 6 – 9; DENY both parties’ request for sanctions.

ANALYSIS

Motion to Compel Documents for In Camera Inspection

Plaintiff/Cross-Defendant Steven Jensen moves to compel production of documents withheld by Defendant/Cross-Complainant Kristen Kerr based on alleged privilege for in camera inspection.

The Court previously ordered the parties to meet and confer regarding the supplemental privilege log and documents produced by Kerr on February 15, 2019 and to file a joint supplemental separate statement regarding any outstanding issues.

Jensen cites cases—Mavroudis v. Sup. Ct. (1980) 102 Cal.App.3d 594, 606; Cornish v. Sup. Ct. (1989) 209 Cal.app.3d 467, 480; People v. Manago (1990) 220 Cal.App.3d 982, 990, fn. 4; Lipson v. Sup. Ct. (1996) 48 Cal.App.4th 1599, 1619; OXY Res. California LLC v. Sup. Ct. (2004) 115 Cal.App.4th 874, 896. which have been superseded or limited by more recent case law:

Once a communication between a client and attorney made in the course of the attorney-client relationship is shown, the communication is presumed to be privileged. The Court cannot conduct an in camera inspection of documents to determine whether or not a communication comes within the attorney-client privilege; instead, the party opposing application of the privilege must make a preliminary showing that there has been a waiver of the privilege or an exception to the privilege applies before the Court may examine the documents in camera.

“The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply.” (Costco, supra, 47 Cal.4th at p. 733; see § 917, subd. (a).)

Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 843-54 (bold emphasis and underlining added).

The Court ordered a supplemental statement identifying any outstanding issues regarding the supplemental privilege log and documents produced by Kerr on February 15, 2019. However, Moving party Jensen’s supplemental statement does not address Kerr’s supplemental privilege log, nor does it address each document identified in Pekarcik’s privilege log (Exh. C to motion) to meet Jensen’s burden of demonstrating that the privilege was waived or the crime-fraud exception applies. “[T]he proponent of the exception bears the burden of proof of the existence of crime or fraud. (See Cooke v. Superior Court (1978) 83 Cal. App. 3d 582 [147 Cal. Rptr. 915].)” Geilim v. Superior Court (1991) 234 Cal.App.3d 166, 174.

Moving party Jensen has not identified how each privilege log entry reflects a waiver of the attorney-client privilege or qualifies for the crime-fraud exception. Jensen still apparently wants the Court to engage in a wholesale in camera inspection of every document identified in the privilege log. However, as Costco and its progeny hold, this is improper.

The motion to compel production of documents withheld by Defendant/Cross-Complainant Kristen Kerr based on alleged privilege for in camera inspection is DENIED without prejudice to a renewed motion.

Kerr’s request for sanctions was previously denied.

Motion to Compel Production of E-Mails in Native Format

Defendant/Cross-Complainant Kristen Kerr moves to compel Plaintiff/Cross-Defendant Steven Jensen to produce native versions of emails. This is actually a motion to compel further responses to requests for production of documents. On February 25, 2019, Jensen produced responses to Kerr’s demand for production, set two, by mail and email. See Karapetyan Decl., Exh. 3. Accordingly, Kerr had until April 16, 2019 (50 days) to bring a motion to compel further responses. The parties agreed in writing to extend the deadline to bring this motion until April 22, 2019. See Karapetyan Decl., Exh. 8.

Kerr’s counsel engaged in sufficient meet and confer efforts prior to bringing this motion. See Karapetyan Decl., ¶¶ 7 – 14; Exhs. 4 – 11.

CCP § 2031.310(b)(1) requires that a motion to compel further responses to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Bold emphasis added.) See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98:

u Demand For Production Nos. 6, 7, 8, 9: GRANT.

In the separate statement, Kerr has demonstrated good cause for production of the documents requested.

Jensen’s response that he will meet and confer regarding a proper protocol for reviewing the appropriate contents of the parties’ relevant electronic devices does not comply with CCP § 2031.280(c), which provides:

(c) If a party responding to a demand for production of electronically stored information objects to a specified form for producing the information, or if no form is specified in the demand, the responding party shall state in its response the form in which it intends to produce each type of information.

Kerr is not entitled to an order compelling compliance until Jensen responds that he will produce all responsive documents. CCP § 3031.320(a).

Jensen’s objections are OVERRULED as without merit. Even the attorney-client privilege and attorney work-product doctrine objections appear to be inapplicable, as the request is limited to emails reference or relied upon in Jensen’s complaint, i.e., as a basis for Kerr’s liability, or in defending against Kerr’s cross-complaint.

All responsive documents are to be produced in the forms in which they are ordinarily maintained or in a form that is reasonably usable, i.e., native versions of the emails, not a compilation in a PDF.

(d) Unless the parties otherwise agree or the court otherwise orders, the following shall apply:

(1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.

(2) A party need not produce the same electronically stored information in more than one form.

CCP § 2031.280(d).

Jensen argues in the opposition that he has produce all native emails. Kerr states in her reply that the emails produced by Jensen after this motion was filed cannot be authenticated by Kerr’s certified forensic expert. Declaration of Matthew Albee, ¶ 14. Kerr is entitled to emails which are capable of being authenticated.

Further responses are due within 20 days.

Kerr’s request for sanctions is DENIED. The notice of motion did not include a request for sanctions as required by CCP § 2023.040, which provides:

Jensen’s request for sanctions is DENIED.