Case Number: BC595770
KENNETH D RICKEL VS MARTIN W. ENRIGHT ET AL

Filing Date: 09/25/2015
Case Type: Legal Malpractice

02/21/2018
5 Motions to Compel Third Party Compliance
With Deposition Subpoenas

TENTATIVE RULING

Plaintiff’s 5 motions to compel compliance with deposition subpoena against (1) Non-Party Respondent Alexander Davis;
(2) Non-Party Respondent Bruce Friedman; (3) Non-Party Respondent Disruptive Technology Solutions, LLC; (4) Non-Party Respondent Disruptive Technology Advisers, LLC; and (5) Non-Party Respondent DTA II, LLC. Collectively these five are referred to herein as “Respondents.”

Motions are taken together as the issues are common.

Motions are GRANTED in part pursuant to CCP §1987.1 and CCP §2025.480 and DENIED without prejudice, in part. Sanctions are denied without prejudice.

Respondents’ objections on the basis of CRC Rule 3.1346 are overruled.

Respondents’ objections that the requested documents are obtainable from Other Sources are overruled.

All other objections are overruled other than Respondent’s Privacy and Privilege objection which are not ripe for determination.

Respondents’ privacy objections are inappropriately raised as the wholesale use of this objection without a privilege log is incapable of being analyzed or challenged. To the extent Respondents believe documents are responsive but privacy objections apply, each is ordered to provide a response in compliance with CCP §2031.240 (privilege log.)

Respondents’ privilege objections are inappropriately raised as the wholesale use of this objection without a privilege log is incapable of being analyzed or challenged. To the extent Respondents believe documents are responsive but privilege objections apply, each is ordered to provide a response in compliance with CCP §2031.240 (privilege log.)

All Respondents are ordered to produce a privilege log that complies with CCP §2031.240 detailing the identity of each responsive document or writing that relates to the requested category and stating the basis for a claim of privilege or privacy objection. The privilege log is to be e-mailed to and served on Plaintiff by each Respondent by 3/5/2018. Thereafter the Respondents and parties are ordered to meet and confer by 3/12/2018 and come to agreement regarding production of any documents or writings on the privileged list or to fully confer about the nature of the writing and objection and attempt to resolve any remaining dispute and make any agreement that would allow voluntary production by 3/12/2018.

Contemporaneously with the service of the privilege logs on 3/5/2018, Respondents are each ordered to produce all responsive documents demanded to be produced in the deposition notices that are not listed on the privilege log as protected by privilege or privacy claims.

In Plaintiff’s option, Plaintiff may proceed with a further motion to compel or notice and take the depositions of any or all Respondents. Time for notice of depositions is shortened to permit depositions to be expedited for purpose of opposing the MSJ or for trial. Each respondent shall then submit to a deposition by 3/20/2018.

Alternatively, Plaintiff may file a further motion for an order to produce any of the challenged documents withheld from production and for sanctions and proceed with depositions thereafter.

If Plaintiff cannot obtain compliance with the production of a privilege log as to each of the Respondents, then the court will, on ex-parte application, consider setting the hearing on compliance and production on shortened notice or delay the hearing on the MSJ and/or trial as needed to allow for completion of discovery.

See discussion.

DISCUSSION

CRC 3.1346 Objections Overruled

This rule requires that notice of, and all moving papers for, a motion to compel directed at a nonparty deponent “must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” The purpose of this requirement is to ensure that nonparties get adequate notice of potential proceedings against them. Respondents have plainly been aware of this action for quite some time, and the lack of personal service has not inhibited their ability to respond and engage in discussions with Plaintiff’s counsel long before the motion was filed. Adherence to this rule would serve no purpose.

Objection Re: Obtainable from Other Sources is Overruled

While Respondents statement of the rule is correct, two considerations militate against the application of that rule in this case. First, Respondents are not the ordinary nonparty deponents. The allegations in this case are essentially that Defendants helped Plaintiff’s business partner exclude Plaintiff out of the proceeds of a stock deal. Respondents are the business partner, the entity that did the deal, and an officer of that entity. Respondents aren’t in this case only because there has been a settlement between them and Plaintiff. So the information needed by Plaintiff is at least as likely to be in Respondents’ possession as anyone else’s.

Second, as noted by the court in connection with the previous motion heard on 1/31/18, there is a game of evidentiary musical chairs in progress. Ds initially refused to produce the information sought by P, on the grounds that it was privileged. Some of Respondents are Ds’ clients, to whom the privilege belongs. So Plaintiff went to Respondents, seeking the information directly, only to be told that he needed to get the information from Defendants. Plaintiff went back to Defendants, who continued to assert the privilege. Plaintiff, acting in his capacity as corporate member-manager for Respondents, waived the privilege. Defendants required Plaintiff to file a motion, which he did. This court, in the absence of an expressed intent by Respondents to assert the privilege, proposed in its tentative ruling to uphold Plaintiff’s waiver. At that point, Defendants’ created a last minute declaration with assertions of the privilege on behalf of Respondents.

In sum, Respondents are trying to have their cake and eat it too. They have instructed Defendants not to answer questions, and now are telling Plaintiff and this court that Defendants have the answers. The music must stop, and P must have a chair. It is not clear to what extent the documents Ds have overlap with the documents Respondents have, but P has a right to find out.

The court cannot rule on the privilege objections. Privilege objections cannot be evaluated in the abstract. To the extent Respondents believe documents or categories are responsive but privilege objections apply, they are ordered to produce a privilege log, pursuant to CCP §2031.240, within 20 days. Plaintiffs are entitled to responses, even if the responses consist only of the privilege log. Then the parties and the court can have a meaningful discussion about the propriety of the objections.

Privacy Objections are Overbroad and Inappropriate

““In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (internal quotations and citations omitted).

“Unlike privilege, the protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery (see ¶8:323). Disclosure may be ordered if a “compelling public interest” would be served thereby. [Britt v. Sup.Ct. (San Diego Unified Port Dist.), supra, 20 C3d at 855-856, 143 CR at 702; John B. v. Sup.Ct. (Bridget B.) (2006) 38 C4th 1177, 1199, 45 CR3d 316, 332].” Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) at ¶ 8:294.

“The party seeking discovery must show a particularized need for the confidential information sought. The broad ‘relevancy to the subject matter’ standard is not enough here. The court must be convinced that the information is directly relevant to a cause of action or defense … i.e., that it is essential to determining the truth of the matters in dispute. [Britt v. Sup.Ct. (San Diego Unified Port Dist.)[, supra,] 20 C.3d [at] 859-862; Harris v. Sup.Ct. (Smets) (1992) 3 C.A.4th 661, 665 (citing text)].” Id. at ¶ 8:320 (emphasis theirs). “Discovery will not be ordered if the information sought is available from other sources or through less intrusive means. [Allen v. Sup.Ct. (Sierra) (1984) 151 C.A.3d 447, 449; and see Britt v. Sup.Ct. (San Diego Unified Port Dist.)[, supra,] 20 C.3d [at] 856—discovery ‘cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved’].” Id. at ¶ 8:321.

“The court must then ‘carefully balance’ the interests involved: i.e., the claimed right of privacy versus the public interest in obtaining just results in litigation. [Valley Bank of Nevada v. Sup.Ct. (Barkett) (1975) 15 C.3d 652, 657; Alch v. Sup. Ct. (Time Warner Entertainment Co.) (2008) 165 C.A.4th 1412, 1422; Life Technologies Corp. v. Suo.Ct. (Joyce) (2011) 197 C.A.4th 640, 653]. Considerations should include: • the purpose of the information sought; • the effect that disclosure will have on the parties and the trial; • the nature of the objections urged by the party resisting disclosure; and • the ‘ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.’ [Valley Bank of Nevada v. Sup.Ct. (Barkett), supra, 15 C.3d at 658 (emphasis added; internal quotes omitted); see Pioneer Electronics (USA), Inc. v. Sup.Ct. (Olmstead) (2007) 40 C.4th 360, 371].” Id. at ¶ 8:323.

The more “sensitive” the information (e.g., personal financial information, customers’ lists, trade secrets, etc.), the greater the need for discovery must be shown. [Hoffman Corp. v. Sup.Ct. (Smaystrla) (1985) 172 CA3d 357, 362, 218 CR 355, 357; Tien v. Sup.Ct. (Tenet Healthcare Corp.) (2006) 139 CA4th 528, 540, 43 CR3d 121, 129] Id. at ¶ 8:324. “What suffices to justify an invasion will…vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest. (Hill, at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.) To the extent prior cases require a party seeking discovery of private information to always establish a compelling interest or compelling need, without regard to the other considerations articulated in Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, they are disapproved.” Williams, supra, 5 Cal.5th at 557 & fn.8.

Privacy objections, like privilege, are hard to evaluate in the abstract. This is particularly true because privacy concerns can be assuaged by measures like redactions and protective orders. As such, these concerns are typically ripe for resolution by way of a meet and confer between counsel. However, since the privacy objections, like the privilege, have been asserted wholesale, there can be no particularized weighing of interests or meeting and conference on possible expedients and accommodations. Therefore, the appropriate step at this point is to join the privacy issues to the privilege log. To the extent Respondents believe documents are responsive but privacy objections apply, they must provide a response in compliance with CCP § 2031.240.

Burden/Overbreadth Objections are Overruled

This is essentially an overbreadth objection. Objections based on overbreadth succeed only where the question is totally unintelligible, or where requiring an answer would be oppressive. Weil & Brown, et al., Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1084 “[T]o support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” West Pico Furniture Co. of Los Angeles v. Superior Court In and For Los Angeles County (1961) 56 C.2d 407, 417. The requests at issue are intelligible (see generally Separate Statements), so Respondents must show that they are oppressive. Respondents have not introduced any evidence to make such a showing.

IT IS SO ORDERED:

Frederick C. Shaller, Judge