A A A 

Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Damion Young vs IDB Media Group Inc et al

Case No: 17CV01288
Hearing Date: Fri Jan 05, 2018 9:30

Nature of Proceedings: Motion: Protective Order

TENTATIVE RULING:  Plaintiff’s motion for protective order is granted in part and denied in part, as set forth herein. The requests for monetary sanctions by both sides are denied.

 

BACKGROUND:

Plaintiff Damion Young is a former music producer and writer for defendant IDB Media Group, Inc., an audio and video recording company located at 6381 Rose Lane, Carpinteria, California 93013. Plaintiff worked for defendant from June 23, 2015 to February 8, 2017, when he was terminated after empty drug bottles were found at defendant’s recording studio. Plaintiff alleges that the bottles contained medications that had been prescribed for him by his physician to lessen the effects of various anxiety and attention deficit disorders from which he suffers. On March 22, 2017, plaintiff filed his complaint against defendant for wrongful termination, disability discrimination, retaliation, failure to prevent discrimination and/or retaliation, failure to reasonably accommodate disability, and breach of contract, among other claims. Plaintiff filed a first amended complaint on November 29, 2017.

On October 24, 2017, defendant propounded to plaintiff Special Interrogatories, Set No. 3, and Requests for Production of Documents, Set No. 3. Plaintiff now moves for a protective order regarding the discovery. Plaintiff also requests an order directing defendant and its counsel to refrain from making “spurious allegations” against plaintiff on the record during any remaining depositions and to make available to plaintiff’s counsel the addresses of defense witnesses so that the witnesses can be subpoenaed for deposition and trial testimony. Lastly, plaintiff requests an award of monetary sanctions against defendant and its counsel. Defendant opposes the motion.    

ANALYSIS:

The court has the authority to issue a protective order regarding written discovery. Specifically, with regard to interrogatories, Code of Civil Procedure Section 2030.090, subdivision (b), provides:

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

“(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

“(4) That the response be made only on specified terms and conditions.”

A protective order may also be issued to limit the scope of requests for production of documents. Code of Civil Procedure Section 2031.060 provides:

“(a) When an inspection . . . of documents, tangible things . . . or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

“(b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

“(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

“(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.”

Counterbalancing Sections 2030.090 and 2031.060 is Code of Civil Procedure Section 2017.010, which provides that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Information is relevant to the subject matter if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement . . . .” Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013 (internal quotes omitted); see also, Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611 (admissibility at trial is not required for information to be discoverable, rather, the test is whether the information sought might reasonably lead to other evidence that would be admissible).

On October 12, 2017, plaintiff’s counsel took the deposition of defendant’s bookkeeper, Marcia Condo. (Parks Dec., ¶6.) Plaintiff attended the deposition. At the conclusion of the deposition, plaintiff’s counsel asked Ms. Condo for her residence address, which Ms. Condo provided on the record. (Parks Dec., ¶7.) On October 13, 2017, plaintiff’s counsel took, and plaintiff attended, the deposition of defendant’s corporate counsel, Derek Thiele. (Parks Dec., ¶8.) When plaintiff’s counsel was finished questioning Mr. Thiele, defense counsel made the following statement on the record:

“[W]e were just made aware within the past hour that our deponent from yesterday [Ms. Condo’s] tires were flat this morning. We have no information as this point as to whether it’s related to this case. It’s obviously very concerning, and moving forward, IDB will be objecting to producing the home address information for any further deponents produced in this case.”

(Parks Dec., ¶9 Ex. 3, Thiele Depo., p. 97:3-10.)

On October 24, 2017, defendant propounded the following special interrogatories to plaintiff:

“SPECIAL INTERROGATORY NO. 83: Please IDENTIFY all people YOU COMMUNICATED with on October 12, 2017, including but not limited to, by text message, on the phone, on social media, or by e-mail.

“SPECIAL INTERROGATORY NO. 84: Please IDENTIFY all people YOU COMMUNICATED with on October 13, 2017, including but not limited to, by text message, on the phone, on social media, or by e-mail.”

(Parks Dec., ¶12, Ex. 4.)

Defendant propounded to plaintiff on the same date the following requests for production of documents to plaintiff:

“REQUEST FOR PRODUCTION NO. 50: All DOCUMENTS created by YOU during the deposition of Marcia Condo on October 12, 2017.

“REQUEST FOR PRODUCTION NO. 51: All DOCUMENTS containing notes YOU took during the deposition of Marcia Condo on October 12, 2017.

“REQUEST FOR PRODUCTION NO. 52: All of YOUR COMMUNICATIONS, including but not limited to text messages, emails and/or written communications, on October 12, 2017 that in any way relate to this case or the testimony of Marcia Condo.

“REQUEST FOR PRODUCTION NO. 53: All DOCUMENTS created by YOU during the deposition of Derek Thiele on October 13, 2017.

“REQUEST FOR PRODUCTION NO. 54: All DOCUMENTS containing notes YOU took during the deposition of Derek Thiele on October 13, 2017.

“REQUEST FOR PRODUCTION NO. 55: All of YOUR COMMUNICATIONS, including but not limited to text messages, emails and/or written communications, on October 13, 2017 that in any way relate to this case or the testimony of Derek Thiele.”

(Parks Dec., ¶12, Ex. 5.)

Plaintiff objected to the discovery on multiple grounds, including that the requested information was protected by the attorney-client privilege, that it violated plaintiff’s privacy rights, and that the information and documents were neither relevant to the subject matter of the action nor reasonably calculated to lead to the discovery of admissible evidence. (Parks Dec., ¶13.) The parties met and conferred and defendant agreed to limit the scope of the special interrogatories as follows:

“SPECIAL INTERROGATORY NO. 83: Please IDENTIFY all people YOU COMMUNICATED with on October 12, 2017, including but not limited to, by text message, on the phone, on social media, or by e-mail, concerning any of the following topics: 1) the allegations in YOUR COMPLAINT, as clarified by the Notice of Errata of Complaint filed and served on May 17, 2017, 2) IDB’s Affirmative Defenses, 3) YOUR lawsuit against IDB, or 4) Marcia Condo, including but not limited to, anything related to or arising from her deposition.

“SPECIAL INTERROGATORY NO. 84: Please IDENTIFY all people YOU COMMUNICATED with on October 13, 2017, including but not limited to, by text message, on the phone, on social media, or by e-mail, concerning any of the following topics: 1) the allegations in YOUR COMPLAINT, as clarified by the Notice of Errata of Complaint filed and served on May 17, 2017, 2) IDB’s Affirmative Defenses, 3) YOUR lawsuit against IDB, 4) Marcia Condo, including but not limited to, anything related to or arising from her deposition, or 5) Derek Thiele, including but not limited to, anything related to or arising from his deposition.”

(Simpler Dec., ¶12, Ex. E.)

Plaintiff contends that the revised special interrogatories are still over broad in seeking information that is not relevant to the subject matter of the action, that is invasive of plaintiff’s privacy rights, and that violates the attorney-client privilege and attorney work product doctrine. Plaintiff claims that defendant’s sole reason for propounding the interrogatories is to harass and intimidate him and to prevent him from communicating his observations, perceptions, feelings, and beliefs about certain defense witnesses to family members, including his elderly grandmother with whom he lives, and close friends. However, as previously discussed, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code Civ. Proc. §2017.010. Thus, while defendant is not entitled to know whether plaintiff communicated with his attorney regarding the complaint, defendant’s affirmative defenses, the lawsuit, and defense witnesses Condo and Thiele, defendant has an absolute the right to discover the identity and location of witnesses. Ibid. Plaintiff has no constitutionally protected right to privacy regarding any communications he may have had with potential witnesses in the case, including family members.

Accordingly, plaintiff’s motion for protective order regarding Special Interrogatory Nos. 83 and 84 will be denied. Plaintiff shall answer the special interrogatories, as modified by defendant.

Defendant’s Requests for Production Nos. 50-51 and 53-54 request production of all documents and/or notes prepared by plaintiff during the depositions of Ms. Condo and Mr. Thiele. (Parks Dec., ¶12, Ex. 5.) However, documentation and writings created by a client at the request of his or her attorney for transmission to the attorney are privileged and not discoverable. “[A] client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between [the] client and lawyer.” Evid. Code §954. A confidential communication between a client and lawyer “means information transmitted between a client and his or her lawyer in the course of that 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 who are present to further the interest of the client in the consultation . . . .” Evid. Code §952. Here, plaintiff’s counsel asked plaintiff to take written notes during the depositions of Ms. Condo and Mr. Thiele and to give the notes immediately to counsel at the conclusion of the depositions, which he did. (Parks Dec., ¶15; Young Dec., ¶8.) The notes and documents, therefore, are privileged and plaintiff’s motion for protective order as to these four document requests will be granted. Plaintiff shall provide a privilege log of the documents and notes he withholds on the basis of privilege.

With regard to Requests for Production Nos. 52 and 55, the requests are over broad since there is no limitation on the identity of the recipient of the communications. (Parks Dec., ¶12, Ex. 5.) Any communications between plaintiff and his attorney would be privileged and not discoverable, while any emails, text messages, or other written communications between plaintiff and third-party witnesses about the case or Ms. Condo’s and Mr. Thiele’s testimony would be discoverable. Plaintiff’s motion for protective order as to Request Nos. 52 and 55 will therefore be denied except for any privileged communications with his attorney. Plaintiff shall again provide a privilege log of any documents withheld from production.

Plaintiff next seeks a protective order directing defendant and its counsel to refrain from putting “spurious allegations” about plaintiff and his counsel on the record during the remainder of the litigation. Plaintiff accuses defense counsel of “unprofessional, offensive, discourteous, [and] derogatory” conduct, in violation of this court’s Local Rules prohibiting harassment and improper conduct at depositions, after counsel learned during the course of Mr. Thiele’s deposition that Ms. Condo’s vehicle had been vandalized the previous evening and then disclosed the vandalism incident on the record. Plaintiff claims that defense counsel was effectively accusing him and/or his attorney of vandalizing Ms. Condo’s vehicle, without proof, but the court disagrees. The record reflects that defense counsel was very careful not to accuse plaintiff or his attorney of any wrongdoing. Counsel stated:

“I do need to put something on the record that we were just notified of. We have no information as to whether it’s related to this case or not, but our deponent from yesterday, Ms. Condo, woke up this morning and all the tires on her car are flat.”

(Parks Dec., ¶9 Ex. 3, Thiele Depo., p. 95:16-21.)

The court finds nothing improper about the statement. Counsel’s reason for disclosing the vandalism incident on the record was to put plaintiff and his counsel on notice so they could confirm that the incident was not related to the case and to make a record that defendant would object to providing the home addresses of its employees in discovery until it can be determined whether the incident was related to the litigation. (Simpler Dec., ¶7.) While it might have been more advisable for defense counsel to have disclosed the incident in a letter to plaintiff’s counsel instead of at the conclusion of Mr. Thiele’s deposition, this portion of the deposition transcript is not evidence and is not something the jury will review or consider in deciding the case.

Lastly, plaintiff requests an order requiring defendant to provide home address information for its witnesses so that the witnesses can be subpoenaed for deposition and trial testimony. The request will be denied as premature since defendant has not refused at this point to provide such information with respect to any witness.

Based on the foregoing, plaintiff’s motion for protective order will be granted with regard to Requests for Production Nos. 50-51 and 53-54. Plaintiff is ordered to provide a privilege log for any writings withheld on the basis of privilege. A privilege log shall also be provided for any writings withheld in response to Requests for Production Nos. 52 and 55. In all other respects, plaintiff’s motion for protective order will be denied. Both sides have requested monetary sanctions, but the requests will be denied as the court does not find that sanctions are warranted under the facts.

 
© Superior Court of the County of Santa Barbara
Locations & Contact Info | Court Security | Human Resources | Privacy Policy | ADA