On 14 February 2014, the motion of Plaintiff Wells Fargo Insurance Services USA, Inc. (“Plaintiff”) for a protective order and to strike portions of deposition transcript was argued and submitted. Defendant Brian Hetherington (“Hetherington”) filed a file formal opposition to the motion.
Statement of Facts
This action arises from an alleged breach of fiduciary duties. Plaintiff, an insurance brokerage, employed Hetherington and other named defendants in various executive and management positions.
In 2012, Hetherington allegedly officially accepted the position of “Chief Executive Officer/Co-Chairman & Founding Principal” at defendant ABD Insurance & Financial Services Inc. (“ABD”), Plaintiff’s competitor. Hetherington and Plaintiff allegedly entered into an agreement whereby Plaintiff would continue to employ Hetherington with reduced job responsibilities for one year, but Hetherington still owed Plaintiff a duty of loyalty. Plaintiff alleges that Hetherington then caused ABD executives and managers to solicit their respective teams to leave Plaintiff and join ABD.
Discovery Dispute
While working for Plaintiff, Hetherington communicated with Plaintiff’s attorney, Baldwin Lee (“Lee”), on several occasions, and Lee jointly represented Plaintiff and Hetherington in his personal capacity in one prior lawsuit.
On 11-12 June 2013, Plaintiff deposed Hetherington. Hetherington responded to some deposition inquiries by referring to, or relying on information obtained from, communications he had with Lee. Plaintiff deemed the information disclosed by Hetherington to be protected from disclosure by its attorney-client privilege, and at the end of the second day of Hetherington’s deposition, Plaintiff asserted an attorney-client privilege objection.
On 18 September 2013, Plaintiff’s counsel wrote Hetherington’s counsel and requested that Hetherington “strike” the privileged information from his deposition transcript and stipulate to a protective order precluding him from disclosing Plaintiff’s privileged communications in the future. Hetherington’s counsel refused the request.
The parties’ counsel continued to meet and confer, but ultimately were unable to resolve the dispute as to whether the attorney-client privilege precludes Hetherington from disclosing confidential communications with Lee.
Plaintiff filed this motion to strike deposition testimony and for a protective order on 19 December 2013.
On 31 January 2014, Hetherington filed an opposition to the motion.
On 6 February 2014, Plaintiff filed its reply.
Discussion
Plaintiff moves for a protective order “striking” certain portions of Hetherington’s deposition transcript and prohibiting Hetherington from “disclosing such communications in the future.”
As a threshold matter, the Court notes that the word “strike” is an inaccurate term to describe the relief sought by this motion with respect to the deposition testimony. A motion to strike is typically associated with eliminating a pleading or a portion thereof or with eliminating from evidence certain facts or testimony already admitted. (See Code Civ. Proc. [CCP”], §§ 435-436 [motion to strike is a motion challenging a pleading], see also Evid. Code, § 353, subd. (a) [motion to strike is a motion to remove admitted evidence from the court record]). Here, Plaintiff seeks an order to redact and preclude the parties from attempting to enter into evidence or otherwise disclosing information in certain portions of the deposition transcript. As such, this motion is a motion for a protective order.
To the extent Plaintiff seeks to exclude portions of the transcript from evidence, the Court will not make such an evidentiary ruling in connection with a discovery motion. (See generally, People v. Morris (1991) 53 Cal.3d 152, 188 [providing that a motion in limine is a motion brought before the trial court for the purpose of excluding evidence].) Thus, the Court will consider whether to enter an order redacting and otherwise precluding the parties from disclosing certain portions of the deposition transcript, and prohibiting Hetherington from disclosing Plaintiff’s privileged communications.
I. Legal Standard
A court has the authority to enter a protective order pertaining to pretrial discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (See CCP, § 2017.020, subd. (a).) For “good cause shown” by the moving party, the court may make an appropriate order to control deposition proceedings and protect any party from “unwarranted annoyance, embarrassment or oppression, or undue burden and expense.” (CCP, § 2025.420.) The issuance and formulation of protective orders are largely discretionary, and the court must balance the interests of the public, the plaintiff, and the defendant by requiring the party seeking to restrict discovery to demonstrate “good cause” for the restriction. (Raymond Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 587-588; Westinghouse Electric Corp. v. Newman & Holtzinger (1995) 39 Cal.App.4th 1194, 1208-1209.)
II. Analysis
A. The Deposition Transcript
There are four sections of the deposition transcript (Deposition Transcript, at pp. 29:19-29:4 [“First Section”], 29:5-8 [“Second Section”], 345:3-17 [“Third Section”], and 375:13-376:12 [“Fourth Section”]) that Plaintiff argues should be redacted and otherwise protected from disclosure on the ground of attorney-client privilege.
A client has the privilege to refuse to disclose or to prevent another from disclosing a confidential communication between it and its lawyer. (Evid. Code § 954.) The objecting party has the initial burden of showing that the communication falls within the privilege. (Wellpoint Health Networks, Inc. v. Super. Ct. (1997) 59 Cal.App.4th 110, 130.) If it meets this burden, the communication is presumed confidential, and the non-objecting party must show the privilege does not apply or has been waived. (Evid. Code, § 917.)
1. First Section and Second Section
In the First Section, Hetherington explained how he learned about the duty of loyalty that he and Plaintiff’s other employees owed to Plaintiff, and generally stated that Lee helped him understand what duties were owed.
As for the Second Section, Plaintiff asked Hetherington “[s]o you had an understanding that [Plaintiff’s] employees had a duty of loyalty that included not competing with [Plaintiff] while they were employed by [Plaintiff]?” Hetherington affirmatively responded and illustrated his response by referring to his participation in another lawsuit through which he became familiar with the expression “preparing to compete.”
The testimony at issue was taken on the first day of Hetherington’s two-day deposition, and Plaintiff did not raise an attorney-client privilege objection until the end of the second day. Since Plaintiff did not timely assert its attorney-client privilege objection, it waived the privilege as to the First Section and Second Section. (See CCP, § 2025.460, subd. (a) [objection waived if not timely raised before or during the deposition].)
In any event, Plaintiff proffers no arguments to establish that the First Section and Second Section encompass privileged information, and Hetherington persuasively argues that the testimony does not disclose communications.
The protective order sought regarding the First Section and Second Section is therefore not warranted.
2. Third Section
In the Third Section, Hetherington responded to a question about Plaintiff’s recruitment by referring to instructions that Lee gave him to pass along to certain third parties.
Immediately after the Third Section, Plaintiff advised that it would “move to strike” the testimony “as nonresponsive.” The Third Section occurred on the second day of the deposition, and at the end of the day, Plaintiff asserted a general attorney-client privilege objection. Thus, the attorney-client privilege objection to the Third Section was timely asserted. (See generally, Best Products, Inc. v. Super. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189 [raising a boilerplate privilege objection preserves the objection].)
Plaintiff does not attempt to show that the Third Section contains communications that would be subject to the attorney-client privilege. Rather, it assumes Hetherington bears the burden of showing that the privilege does not apply or has been waived, and proffers arguments to rebut Hetherington’s counsel’s assertion made during meet and confer discussions regarding the joint client exception to the attorney-client privilege. (See Evid. Code, § 962 [joint client exception].)
Plaintiff argues that the joint client exception does not apply because the only case where Plaintiff and Hetherington were jointly represented by Lee is not the case that gave rise to the communication at issue. Regardless of whether the joint client privilege applies, Plaintiff’s argument is unavailing because it does not demonstrate that the communication at issue is between it and its counsel. Therefore, Plaintiff has not made the requisite showing that the Third Section encompasses presumptively confidential communications.
In any event, assuming arguendo that Hetherington communicated with Lee on Plaintiff’s behalf and therefore the communication at issue is presumptively confidential, Hetherington persuasively argues that the communication was not confidential because he and Lee intended the communication to be shared with third parties. (See Evid. Code, § 952 [confidential communications], Zurich Am. Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1495 [discussing the client’s intent with respect to determining whether a communication is confidential].)
Alternatively, Hetherington persuasively argues that the confidentiality was subsequently waived when Hetherington—acting on Plaintiff’s behalf and pursuant to Lee’s instructions—disclosed Lee’s statements to third parties. (Evid. Code, § 912, subd. (a) [disclosure waives the privilege].)
While there is no waiver if the disclosure is reasonably necessary to further the client’s interests and is made to someone whose interest in maintaining the confidentiality of the communication overlaps with the client’s interest, in this case, nothing suggests that the third parties share with Plaintiff a common interest in maintaining the confidentiality. (See McKesson HBOC, Inc. v. Super. Ct. (2004) 115 Cal.App.4th 1229, 1237-1238.) Thus, the Third Section does not encompass privileged communications.
Since the Third Section does not encompass privileged communications, the protective order sought concerning the Third Section is not warranted.

3. Fourth Section
The Fourth Section describes events concerning a third party’s departure from his former employer to take a job with Plaintiff.
Plaintiff preserved its attorney-client privilege objection by stating on the record that it would “move to strike” the Fourth Section “as nonresponsive” and asserting a general attorney-client privilege objection. (See Best Products, Inc. v. Super. Ct., supra, 119 Cal.App.4th, at pp. 1188-1189.)
However, Plaintiff does not attempt to show how the Fourth Section encompasses privileged communications.
Hetherington persuasively argues that the Fourth Section does not encompass communications because it merely describes events surrounding a third party’s departure from his former employer to work for Plaintiff.
Therefore, Plaintiff’s argument that the attorney-client privilege provides a ground for the Court to enter a protective order regarding the Fourth Section is unavailing.
B. Future Communications
Plaintiff argues a protective order precluding Hetherington from disclosing its confidential communications with Lee is necessary to protect its attorney-client privilege in such communications.
Hetherington contends such an order would be an unconstitutional prior restraint. “Orders which restrict or preclude a citizen from speaking in advance are known as ‘prior restraints,’ and are disfavored and presumptively invalid.” (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241, quotation marks in original.) Since Plaintiff seeks to preclude Hetherington from speaking in advance, the order sought is a prior restraint on his speech.
Prior restraints on trial participants, i.e. “[g]ag orders,” are presumed to be “unconstitutional unless (1) the speech sought to be restrained poses a clear and present danger or serious and imminent threat to a protected competing interest; (2) the order is narrowly tailored to protect that interest; and (3) no less restrictive alternatives are available.” (Id., citation omitted.)
Plaintiff does not attempt to show that the speech at issue poses a clear and present danger or serious and imminent threat to its protected interest. In addition, Plaintiff does not articulate exactly what communications with Lee it seeks to prevent Hetherington from disclosing. Therefore, the order sought is not narrowly tailored. Moreover, should, for example, Hetherington threaten to disclose the purportedly privileged communications in connection with a discovery demand, the proper procedure to prevent the disclosure is to timely assert a specific attorney-client privilege objection. As such, there is at least one less restrictive alternative for Plaintiff to protect its interest.
Thus, the Court will not issue a protective order precluding Hetherington from making certain statements.
Conclusion
Plaintiff’s motion for a protective order is DENIED WITHOUT PREJUDICE to a specific showing.