DARRYL BOLTON VS GENERAL MOTORS LLC

Tentative Rulings

Case Number: BC693622    Hearing Date: November 25, 2019    Dept: 48

(1) MOTION FOR TERMINATING, ISSUE AND/OR EVIDENTIARY SANCTIONS;

(2) MOTION TO COMPEL DEPOSITION OF DEFENDANT’S PERSON MOST KNOWLEDGEABLE AND REQUEST FOR PRODUCTION OF DOCUMENTS

MOVING PARTY: (1) & (2) Plaintiff Darryl Bolton

RESPONDING PARTY(S): (1) & (2) Defendant General Motors LLC

PROOF OF SERVICE:

• Correct Address: (1) Yes; (2)
• 16/21 (CCP § 1005(b)): (1) OK. Served by mail on October 24, 2019; (2) OK. Served by overnight delivery on October 28, 2019.

• CONTINUE hearing on motion for terminating, issue and evidentiary sanctions;

• GRANT motion to compel deposition as to Categories Nos. 1 – 18, both 20s, 21 – 24;

• GRANT motion to compel production of documents as to Requests for Production Nos. 4, 5, 9, 10, 11, 14 – 19, 24.

  ANALYSIS

  Motion for Terminating, Issue and/or Evidence Sanctions

  Plaintiff moves for terminating, issue and/or evidentiary sanctions against Defendant on the grounds that Defendant has failed to obey the Court’s April 2, 2019 discovery order. According to Plaintiff, Defendant failed to provide verified, code-compliant responses and failed to produce the documents identified at Page 2:11-22 of the Ps & As, as well as failing to produce a privilege log.

  The Court’s April 2, 2019 order required further responses to request for production of documents, not just further production. Plaintiff is entitled to code-compliant verified responses that all documents will be produced. The opposing Declaration of Nathaniel R. Cowden indicates that Defendant produced documents, but does not indicate that code-compliant further responses were provided, as ordered by the Court. Cowden Decl., ¶¶ 5, 6. Per the Declaration of Esther Kim, Defendant’s supplemental responses were not verified (Kim Decl., Exh. 2) and no privilege log was provided.

  The hearing on Plaintiff’s motion for terminating sanctions is CONTINUED to December 20, 2019. Plaintiff and Defendant are to submit a joint statement/declaration regarding Defendant’s compliance with the April 2, 2019 order by December 13, 2019. The Court will then consider whether terminating, issue and/or evidence sanctions are appropriate.

  Motion to Compel PMK Deposition and Production of Documents

  ¿ Categories Nos. 1, 2, 3, 9, 10, 12: GRANT.

  Good cause need not be shown for deposition topics (but will be addressed below regarding production of documents at deposition).

  Defendant’s objections are OVERRULED as being inapplicable to these particular categories. As to confidential or trade secret information, Defendant has not demonstrated that confidential or trade secret information would be disclosed. Indeed, except where privileged information is sought, objections to deposition testimony are not grounds to instruct a witness not to answer, and are appropriately asserted at the actual deposition:

  CCP § 2025.460 sets forth the objections which must be raised at deposition otherwise they are waived:

  (a) The protection of information from discovery on the ground that it is privileged or that it is a protected work product under Chapter 4 (commencing with Section 2018.010) is waived unless a specific objection to its disclosure is timely made during the deposition. (b) Errors and irregularities of any kind occurring at the oral examination that might be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition. These errors and irregularities include, but are not limited to, those relating to the manner of taking the deposition, to the oath or affirmation administered, to the conduct of a party, attorney, deponent, or deposition officer, or to the form of any question or answer. Unless the objecting party demands that the taking of the deposition be suspended to permit a motion for a protective order under Sections 2025.420 and 2025.470, the deposition shall proceed subject to the objection. (c) Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition. (d) If a deponent fails to answer any question or to produce any document or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking that answer or production may adjourn the deposition or complete the examination on other matters without waiving the right at a later time to move for an order compelling that answer or production under Section 2025.480.

  (Bold emphasis and underlining added.)

  However:

  [E]ven were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. Code of Civil Procedure section 2025, subdivision (m), governing deposition objections, divides objectionable questions into three categories. Subdivision (m)(1) applies to questions delving into privileged areas and provides that to protect privileged information, "a specific objection to its disclosure" must be "timely made during the deposition." Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure. Code of Civil Procedure section 2025, subdivision (m)(2) applies to questions containing errors or irregularities that might be cured if promptly brought to counsel's attention, such as errors in the form of the question. Objection to these types of missteps is "waived unless a specific objection to them is timely made during the deposition." Subdivision (m)(2) makes clear that counsel should not instruct the deponent not to answer such objectionable questions, expressly stating that "unless the objecting party demand the taking of the deposition be suspended to permit a motion for a protective order under subdivision (n), the deposition shall proceed subject to the objection." Code of Civil Procedure section 2025, subdivision (m)(3) governs inquiry into irrelevant and immaterial matters and provides: "Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition." (Italics added.) In other words, the deponent's counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition. Relevance objections should be held in abeyance until an attempt is made to use the testimony at trial. Code of Civil Procedure section 2025, subdivision (n) goes on to state that the deposition may be suspended if "any party attending the deposition or the deponent demands the taking of testimony be suspended to enable that party or deponent to move for a protective order on the ground that the  [*1015]  examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party." Deposing counsel's insistence on inquiring into irrelevant areas could justify suspension under this standard, but only if it reaches the point where it could legitimately be said that counsel's intent was to harass, annoy, embarrass, or oppress. Taken as a whole, these provisions clearly contemplate that deponents not be prevented by counsel from answering a question unless it pertains to privileged matters or deposing counsel's conduct has reached a stage where suspension is warranted. The fact that suspension is available only where an interrogation into improper matters reveals an underlying purpose to harass, annoy, etc., indicates that witnesses are expected to endure an occasional irrelevant question without disrupting the deposition process.

  Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014-15 (bold emphasis and underlining added).

  ¿ Categories Nos. 4, 5, 6, 7, 8, 11, 13, 14, 15, 16, 17, 18, 20 (both)[1], 21, 22, 23, 24: GRANT.

The attorney-client and attorney work product privileges are SUSTAINED to the extent responsive testimony implicates these privileges.

Defendant’s remaining objections are OVERRULED for the reasons discussed above.

¿ Requests For Production Nos. 4, 5, 10, 11, 14, 15, 16, 17, 18, 19, 24: GRANT.

In the separate statement, Plaintiff has demonstrated good cause for production of the documents requested. The requests are limited by nature, to the extent they pertain to Plaintiff’s vehicle and may reveal the identities of witnesses.

As to the attorney-client privilege and attorney work product, the objection is SUSTAINED to the extent responsive documents come within these privileges. The PMK is to produce a privilege log identifying documents withheld on the basis of either privilege.

Defendant’s objections are OVERRULED as being inapplicable to these particular categories. As to confidential or trade secret information, Defendant has not demonstrated that confidential or trade secret information would be disclosed.

[T]he party claiming the privilege has the burden of establishing its existence. (Evid. Code, § 405; ALRB, supra, 175 Cal.App.3d at p. 715.) Thereafter, the party seeking discovery must make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is upon the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and  that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.

Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.

¿ Request For Production No. 9: GRANT.

Plaintiff has demonstrated good cause in the separate statement.

If Defendant has responsive documents in its possession, it is required to produce it with the PMK. Simply telling Plaintiff to go get shop manuals himself does not identify all responsive documents.