Case Number: KC066276    Hearing Date: August 19, 2014    Dept: J

Re: USA Waste of California, Inc. v. City of Irwindale, etc., et al. (KC066276)

MOTIONS TO QUASH SUBPOENA FOR PERSONAL APPEARANCE AND PRODUCTION OF DOCUMENTS AND THINGS TO KRIS KHILNANI AND TO SUJI SOMASUNDARAM

Moving Party: Defendant Irwindale Partners, L.P.

Respondent: Plaintiff USA Waste of California, Inc.

POS: Moving OK; Opposing OK; Reply OK

This case arises out of a dispute involving the filling of the Arrow Pit, a former open pit sand and gravel quarry consisting of approximately 65 acres of undeveloped land in the City of Irwindale. The Complaint, filed on 8/26/13, asserts causes of action for:

1. Declaratory Relief [v. City of Irwindale]
2. Declaratory Relief [v. City of Irwindale]
3. Declaratory Relief [v. Irwindale Partners]
4. Breach of Written Contract [v. City of Irwindale]
5. Intentional Interference with Contractual Relations [v. Defendant Dispatch and Does 1 through 50]
6. Unfair Competition [v. Defendant Dispatch and Does 1 through 50]

On 10/15/13, this case was deemed related to case number KC066049, Irwindale Partners, L.P. v. USA Waste of California, et al.

The Case Management Conference is set for 9/29/14.

Defendant Irwindale Partners, L.P. (“Irwindale Partners” or “Defendant”) moves for orders pursuant to CCP § 1987.1(a) quashing the Deposition Subpoenas by Plaintiff USA Waste of California, Inc. (“USA Waste” or “Plaintiff”) for Personal Appearance and Production of Documents and Things to Kris Khilnani and Suji Somasundaram (the “Subpoenas”). The motions are made on the grounds that the Subpoenas seeks premature expert discovery and, in addition, seeks documents protected as privileged. The arguments made in support of and in opposition to the motions are essentially the same and thus, will be discussed together below.

CCP § 1987.1 provides that when a subpoena requires the attendance of a witness or the production of documents issue therein, or at the taking of a deposition, the court, upon motion reasonably made by the party, the witness, or any consumer described in Section 1985.3, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. The motion must be accompanied by a declaration showing a “reasonable and good faith attempt at informal resolution of the dispute” between the party requesting the records and the “consumer” or “employee” whose records are involved or counsel for such person. (CCP §§ 1985.3(g), 1985.6(f)(4).)

SERVICE OF THE DEPOSITION SUBPOENA:

To compel the attendance and testimony of any deponent who is not a party or an officer, director, managing agent, or employee of a party, it is necessary to serve on the deponent a deposition subpoena. (CCP § 2025.280(b).) If the attendance of a deponent is to be compelled by service of a deposition subpoena, an identical copy of that subpoena must be served on all parties with the notice of deposition. (CCP § 2025.240.) Thus, in addition to serving a deposition subpoena on a nonparty deponent, it is also necessary to serve a copy of the subpoena and a notice on all other parties. (CCP §§ 2025.220, 2025.240.)

Defendant represents that it was never served with a copy of the subpoena. (Motion, Smith Decl. ¶ 4.) Plaintiff does not dispute this representation. Thus, it appears that the notice of the subpoena was technically defective.

EXPERT TESTIMONY:

A demand for exchange of expert witness information may be made any time after the case is initially set for trial. The deadline for the demand is 10 days after the initial trial date has been set or 70 days before that trial date, whichever is later. (CCP § 2034.220.) If the expert is one who has been retained to testify, it is the responsibility of the party designating such expert to make him or her available for deposition … upon service of a proper deposition notice and payment of the expert’s fees by the deposing party. (CCP §§ 2034.410, 2034.460(a).)

Defendant represents that Plaintiff is aware that Defendant has communicated with and provided documents to Kris Khilnani and Suji Somasundaram of Advanced Earth Sciences, Inc. (“AES”) in connection with their role as experts. (Motion, Smith Decl. ¶ 8.) Thus, until the time of their expert designation and the proper disclosure of such information, it appears that their depositions are premature.

Plaintiff, in opposition, contends that Kris Khilnani and Suji Somasundaram should be treated as ordinary witnesses and that Defendant has waived all claims of privilege by producing several records and reports related to the Arrow Pit in response to a previously issued subpoena. However, it appears that Kris Khilnani and Suji Somasundaram are not ordinary percipient witnesses, but rather, experts retained on behalf of Defendant to assist in resolving its dispute relating to the inert debris engineered fill operations at the Arrow Pit that is the subject of the pending litigation. Expert testimony is required because the average layperson does not have the training or the experience to comment on such technical matters. Moreover, the Subpoena seeks the expert witnesses’ entire file and documents in connection with the Arrow Pit. Defendant is not arguing that the engineering report itself is privileged, but only the information upon which the report is based and/or any assumptions used by the experts to formulate their opinion.

It appears that Plaintiff will be able to fully explore the expert opinions and the documents in their possession once the same are designated per the requirements set forth in the Code of Civil Procedure. Thus, the motions to quash are granted.