2015-00188447-CU-OE

Bernard Ellis vs. Raley’s

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Telfer, Jill P.

Plaintiff Bernard Ellis’ motion to “compel Defendant to provide responsive documents to Plaintiff’s notice of deposition for person most knowledgeable regarding Defendant’s Court ordered production Bates Stamped Documents RAL002442-2449 and production of documents” is denied.

In this employment action, Plaintiff, an African-American, alleges that he was unlawfully terminated while on medical leave. He alleges causes of action for age, disability and racial discrimination in violation of FEHA, retaliation under the California Family Rights Act, retaliation in violation of FEHA, and failure to correct under FEHA. Plaintiff alleges that Raley’s discriminated against him and failed to engage in the interactive process or provide reasonable accommodation to allow him to perform the essential functions of his position.

This Court previously ordered Raley’s to provide a further response to Plaintiff’s special interrogatory no. 35 which asked Raley’s to provide information (employee ID, location, DOB, reason for status, last day worked, etc.) regarding employees who were on leave for more than 12 months. The Court limited the scope of the information to the time period between January 1, 2011 and April 15, 2016. (ROA 66.) Raley’s produced the information by way of a document Bates stamped RAL 2442-2449 which sorted the information by employee ID number. Thereafter Plaintiff noticed the PMK regarding that document. In the PMK deposition notice, Plaintiff requested documents that described the assignment that led to the creation of RAL 2442-2449 and drafts of reports that became RAL 2442-2449. Raley’s interposed objections to the documents requests including objections based on the attorney-client privilege and the work product doctrine. Raley’s designated Trevor Johnson as the PMK and Plaintiff took his deposition on November 21, 2017.

Plaintiff moves to compel Raley’s to produce the documents requested in the PMK deposition notice, specifically, documents that described the assignment that led to the creation of RAL 2442-2449 and drafts of reports that became RAL 2442-2449. Plaintiff argues that the documents will assist him in fully understanding the data set forth in RAL 2442-2449 and that even if the documents were privileged, the privilege was waived when Mr. Johnson testified at the PMK deposition that he reviewed documents in preparing for the deposition. The documents sought by way of this motion are an e-mail transcript between Mr. Johnson and Raley’s counsel, a 5 to 6 page bullet-point document Mr. Johnson created which identified the queries he performed that led to the creation of RAL 2442-2449 (referred to the Leave of Absence 12 months [“LOA”]), and an “initial report” which Plaintiff claims had additional tables and columns than RAL 2442-2449.

Plaintiff appears to concede that the documents at issue are subject to the attorney-client and/or work product doctrine because his only argument in support of the motion is simply that any privilege has been waived when Mr. Johnson testified that he reviewed the documents in preparation for his deposition.

First, however, before even reaching that argument, Raley’s is correct that a motion to compel production of documents described in a deposition notice “shall set forth specific facts showing good cause justifying production or inspection of any document or tangible thing described in the deposition notice. (CCP § 2025.450(b)(1).) Here, however, Plaintiff simply argues that the documents should be produced because Mr. Johnson testified that he reviewed them in preparation for the deposition and apparently that the documents could assist with the understanding of the data contained in RAL 2442-2449 which Plaintiff tries to classify as a complicated table. Raley’s argument that Plaintiff failed to set forth any specific facts showing good cause is persuasive given the fact that Plaintiff was able to depose Mr. Johnson regarding the information contained in RAL 2442-2449 for approximately three hours and thus had more than ample opportunity to obtain information to help him understand the table. In reply, Plaintiff states that there is good cause because Mr. Johnson testified that he reviewed the documents in preparing for his deposition and fails to explain why Mr. Johnson’s deposition was not sufficient to obtain information regarding RAL 2442-2449. In any event, the Court need not base its ruling on a failure to find good cause because even if there were specific facts demonstrating good cause, as discussed below, the subject documents are privileged and the privilege was not waived.

At the outset, it bears noting that the Court may determine the issue of waiver of the privilege as a matter of law, as “that inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values…[and] [t]herefore, the question is predominately legal…” (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1236.)

The attorney-client privilege confers a privilege “to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and

lawyer.” (Evid. Code § 954.) The privilege protects “information transmitted between a client and his or her lawyer in the course of [the attorney-client] relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted…” (Evid. Code § 952.) Simply, the privilege protects confidential communications between the attorney and client. (Evid. Code, § 952.) “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.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) The party opposing the privilege has the burden to establish that the communication was not confidential or that the privilege does not apply for other reasons. (Id.)

By way of the motion, Plaintiff seeks to compel Raley’s to produce email exchanges between Raley’s and its counsel in addition to the LOA, and an “initial report” which contained additional information than RAL 2442-2449. As seen from Raley’s counsel’s declaration, Mr. Johnson is one of the individuals at Raley’s who provided counsel with information to use to defend this lawsuit and the subject emails involved requests from counsel for information. (Schrick Decl. ¶ 11.) There is no argument that these emails are not subject to the attorney-client privilege. With respect to the bullet-point LOA, the document was created at the request of Raley’s counsel by Mr. Johnson to explain to counsel the searches that he performed to create RAL 2442-2449, including searches for categories of information requested by Raley’s counsel that was not requested by Plaintiff in the underlying special interrogatory 35 nor ordered produced by the Court. (Id.) With respect to the “initial report” which Plaintiff contends is a draft of RAL 2442-2449 that had additional columns, Mr. Johnson did not testify that he reviewed such a document at his deposition and instead was referring to the bullet-point LOA. (Id. ¶ 10.) In any event, the additional columns contained categories of information that was specifically requested by Raley’s counsel which was not responsive to special interrogatory 35 nor ordered produced by the Court. The additional columns contained information that was removed from what became RAL 2442-2449 and contains information regarding employees that Raley’s counsel may use to defend Raley’s in this action. (Id. ¶¶ 8, 11.) The emails, the “bullet-point” LOA, and the “initial report” involve attorney-client discussions and highlight Raley’s counsel’s impressions, conclusions, opinions and legal theories. (Id. ¶ 11.)

Here, Raley’s opposition has established the preliminary facts necessary to support the attorney-client privilege with respect to the subject documents. The documents all involve communications between Raley’s counsel and Mr. Johnson, an individual at Raley’s who provides counsel information for use in defending the lawsuit and/or were created by Mr. Johnson at the request of Raley’s counsel and reveal counsel’s impressions, conclusions, opinions and legal theories. Indeed, confidential communications between counsel and the client are protected even if the communication includes unprivileged material. (Costco Wholesale, Corp., supra, 47 Cal.4th at 734.) Further, writings that reflect “an attorney’s impressions, conclusions, opinions or legal research or theories” constitute protected work product. (CCP § 2018.030(a).)

For the first time in reply, Plaintiff argues that the subject documents are not privileged. However, as discussed above, the Court finds that Raley’s met its initial burden to establish the preliminary facts to support the exercise of the privilege. It was therefore Plaintiff’s burden to establish either that the communications were not confidential or that the privilege does not apply for other reasons. (Costco Wholesale Corp., supra, 47 Cal.4th at 733.) Plaintiff argues in reply that the attorney-client privilege does not apply because the LOA is not addressed to anyone and only memorializes the queries used to create the RAL 2442-2449 that was ordered produced by the Court. However, as set forth above, Raley’s counsel declared that the document was created at counsel’s request to explain how RAL 2442-2449 was created and also creates information that was not the subject of special interrogatory 35 nor ordered produced

by the Court. Plaintiff has not overcome Raley’s showing as to this document. As to the “initial report”, again, this was created at the request of Raley’s counsel and the additional columns contained categories of information that was specifically requested by Raley’s counsel which was not responsive to special interrogatory 35 nor ordered produced by the Court and which was ultimately removed from what became RAL 2442-2449 and contains information regarding employees that Raley’s counsel may use to defend Raley’s in this action. Regarding the emails, Plaintiff, with almost no analysis, argues that the attorney-client privilege does not apply where the dominant purpose of the communication was something other than providing the client legal advice. (2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1390-1391 [overruled on other grounds in Costco Wholesale Corp., supra, 47 Cal.4th 725].) In a sentence he contends that because the emails discuss how to create RAL 2442-2449 which was ordered produced by the Court, that the emails could not constitute legal advice. The Court rejects this contention. Raley’s counsel’s declaration specifically states that the emails contained requests to Mr. Johnson from counsel for information for Raley’s theories in the case. (Schrick Decl. ¶ 11.) Plaintiff has failed to demonstrate that the dominant purpose of the emails was anything other than communications regarding legal advice/opinions. This is not a situation where Raley’s counsel was acting as a negotiator for the client or merely giving business advice. ( 2,022 Ranch, supra, 113 Cal.App.4th at 1390-1391.)

The Court need not address Plaintiff’s arguments in reply regarding the work-product privilege given the above. But in any event, Raley’s counsel declared that all of the documents, even those created by Mr. Johnson, were created at counsel’s request and reflect counsel’s “impressions, conclusions, opinions or legal research or theories.” (Schrick Decl. ¶ 11.) Such documents are absolutely protected and not discoverable. (CCP § 2018.030(a).)

Nor has Plaintiff shown that any privilege was waived. Plaintiff argues that any privilege has been waived because Mr. Johnson testified that he reviewed the subject documents in preparation for the deposition. Plaintiff cites to Evidence Code § 771 which provides that where a witness reviews a writing either while testifying or prior to testifying to refresh his or her memory, that writing must be produced. However, case law has made clear that simply reviewing documents prior to testifying for a deposition did not constitute a waiver of the attorney-client privilege. (Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 68.) There, the court recognized an apparent conflict between Evidence Code § 771 and § 954 and harmonized the statutes by finding that “writing” in the context of § 771 was never intended to include a verbatim transcript of a confidential interview between attorney and client with respect to the core issues in the case. (Id. at 73.) The court concluded that in light of the “age and sanctity” of the privilege, it was doubtful that the Legislature intended “writing” in § 71 to cover a unique document such as a transcript of a confidential attorney-client conversation. (Id . at 73-74.)

Sullivan distinguished Kearns Const. Co. v. Superior Court (1968) 266 Cal.App.2d. 405, the very case on which Plaintiff here relies to argue that any privilege has been waived. In Kearns, an employee of the Defendant prepared reports at counsel’s request regarding the circumstances of the plaintiff’s injuries. At the employee’s deposition, the employee stated that he could not testify from memory and would have to use the reports or else he could not testify. The employee utilized the reports in testifying. (Id. 408-409.) The appellate court concluded that the attorney-client privilege was waived when the privileged records were given t the employee and he

testified from them. The court concluded that the privilege should have been claimed at the point he was asked questions that required him to use the reports to refresh his memory. (Id. 413-414.) Sullivan distinguished Kearns because there the employee testified directly from the privileged documents at the deposition without objection whereas the witness in Sullivan refreshed her memory prior to the deposition and raised the privilege when a demand was made to produce the subject document. ( Sullivan, supra, 29 Cal.App.3d at 72.) This result dovetails with the rule that it would be fundamentally unfair to permit the privilege which protects attorney-client communications to be used both as a sword and a shield.” Dietz v. Meisenheimer & Herron (2009) 177 Cal. App. 4th 771, 793.

Here, this situation is not similar to Kearns. As in Sullivan, and unlike in Kearns, Mr. Johnson reviewed some of the privileged documents in advance of the deposition and critically, he did not, as the deponent in Kearns did, indicate that he could not testify independently from the privileged documents or testify directly from them. Indeed, there is no indication that Mr. Johnson had any difficulty at all testifying at his deposition without reference to any material. Moreover, and also unlike the situation in Kearns, Raley’s objected to the production of privileged material both in its response to the PMK deposition notice and also during the deposition. Further, as discussed above, Mr. Johnson did not testify that he reviewed the “initial report” which Plaintiff contends is a draft of RAL 2442-2449 that had additional columns. Plaintiff has failed to demonstrate that any privilege has been waived.

The motion to compel is denied.