Shaun Rishi Singh vs Oak Harbor Freight Lines Inc et al

Case Number

22CV01151

Case Type

Hearing Date / Time

Mon, 09/23/2024 - 10:00

Nature of Proceedings

Motion: Compel Prod of Docs; Motion: Compel Supplemental Interrogs

Tentative Ruling

The trial date in this matter is also set for 9/30/24.  Appearance at the 10:00 a.m. law and motion calendar is required to discuss setting a new date.

Shaun Rishi Singh vs. Oak Harbor Freight Lines, Inc., et al.    

Case No. 22CV01151        

Hearing Date: September 23, 2024                                       

HEARING:              (1) Plaintiff’s Motion To Compel Further Reponses To                   Supplemental Interrogatories

                                    (2) Plaintiff’s Motion To Compel Further Responses To                 Supplemental Demands For Production Of Documents

                                                           

ATTORNEYS:        For Plaintiff Shaun Rishi Singh: Brian G. Beecher, Greg Mohrman, James Caress, The Law Offices of Arash Khorsandi, PC

For Defendants Oak Harbor Freight Lines, Inc., and Cesar Eduardo Sanchez:  James F. Saunders, Peter H. Crossin, Bradley, Gmelich & Wellerstein LLP

TENTATIVE RULING:

(1) The motion of plaintiff to compel defendant Oak Harbor Freight Lines, Inc., to provide further responses to plaintiff’s supplemental interrogatories is granted, in part. On or before September 30, 2024, defendant shall serve verified further responses to plaintiff’s form interrogatory nos. 13.1 and 13.2, and each of their subparts, in accordance with this ruling. Except as otherwise herein granted, the motion is denied without prejudice.

(2) For all reasons discussed herein, the motion of plaintiff to compel defendant Oak Harbor Freight Lines, Inc., to provide further responses to plaintiff’s supplemental demand for production of documents is granted, in part. On or before September 30, 2024, defendant shall serve verified further responses to plaintiff’s requests for production nos. 8 and 9 in accordance with this ruling. Except as otherwise herein granted, the motion is denied without prejudice.

Background:

On March 24, 2022, plaintiff Shaun Rishi Singh (Singh) filed a complaint against defendant Oak Harbor Freight Lines, Inc., (Oak Harbor) and Cesar Eduardo Sanchez (Sanchez) alleging three causes of action: (1) motor vehicle; (2) general negligence; and (3) negligent entrustment. Singh alleges in the complaint that on June 24, 2021, Sanchez, who was operating a motor vehicle owned by Oak Harbor, caused a collision on U.S. Highway 101 north of Casitas Pass Road in Carpinteria, California, in which Singh was seriously injured.

On May 17, 2022, Oak Harbor and Sanchez filed their answer to the complaint, generally denying its allegations and asserting fifteen affirmative defenses.

On August 27, 2024, Singh filed a motion for an order compelling Oak Harbor to serve further responses to Singh’s supplemental form interrogatory (FI) nos. 13.1 and 13.2, and to produce all responsive videos, photographs, and reports (the FI motion), and a motion for an order compelling Oak Harbor to serve further responses to Singh’s supplemental demands for production of documents (the RFP) nos. 8 and 9 and to produce all responsive videos, photographs, and reports (the RFP motion). In the FI motion and the RFP motion, Singh also requests an order that, to the extent Oak Harbor fails to produce documents responsive to RFP nos. 8 and 9, that Oak Harbor and Sanchez be barred at trial from introducing into evidence or mentioning any surveillance of Singh.

In support of the FI motion and the RFP motion (collectively, the discovery motions), Singh submits separate declarations of his counsel, Greg Mohrman (Mohrman). The Morhman declarations include identical if not substantially similar information in identically numbered paragraphs. For ease of reference, the Court will refer collectively to Morhman declarations and paragraph numbers in which identical information appears.

Morhman states that, in anticipation of an August 5, 2024, trial date, Singh served supplemental discovery requests (the supplemental requests), with responses due on July 8, 2024. (Mohrman Decls., ¶¶ 3.) The record of correspondence between parties attached to the Morhman declarations demonstrates an agreement by the parties to extend Oak Harbor’s time to respond to the supplemental requests to August 19, 2024. (Id. at ¶ 3 & Exhs. 1-3.)

On August 15, 2024, Oak Harbor served verified supplemental responses to FI nos. 13.1 and 13.2 which include statements indicating that Oak Harbor conducted surveillance of Singh and that a written report of the surveillance had been prepared, but that the Oak Harbor would not reveal the details of the surveillance absent an order of good cause from the Court. (Mohrman Decls., ¶¶ 4 & Exh. 4 [supplemental responses to FI nos. 13.1 & 13.2].) Oak Harbor also served verified supplemental responses to RFP nos. 8 and 9 stating that it was in possession of responsive documents and video surveillance, and asserting objections to the production of documents relating to the surveillance of Singh based on the attorney work product privilege. (Id. at ¶ 4 & Exh. 5 [supplemental responses to RFP nos. 8 & 9].)

Morhman met and conferred in writing with counsel for Oak Harbor during which Oak Harbor’s counsel stated “ ‘[w]e do not produce surveillance. It is impeachment evidence. The court can rule on this. [I]n the past the court’s [sic] have held that if the evidence is to be used as impeachment it can review the video and make a determination at that time as to whether it should come into evidence.’ ” (Mohrman Decls., ¶¶ 5 & Exhs. 6.)

Morhman contends that if the Court denies the discovery motions, Singh will suffer prejudice “if he can only review the video evidence in the middle of trial to determine if the entire video has been produced, if it has been altered in any way, or to depose the individual regarding the manner and timing the video was obtained, all of which would be crucial to the [Singh’s] rebuttal ….” (Mohrman Decls., ¶ 6.) Morhman further contends that if the surveillance is not produced, Singh will need “several weeks to identify and hire an expert qualified to examine the video – given that currently [Singh] has no idea the format or storage of it, prepare a report for [counsel] to consider, and time to depose the individual or individuals who procured it” which Morhman contends will cause delay, among other things. (Ibid.)

Oak Harbor opposes the discovery motions.

Analysis:

FI nos. 13.1 and 13.2 request, respectively, that Oak Harbor state whether it or anyone acting on its behalf “conducted surveillance of any individual involved in the INCIDENT or any party to this action[]” and whether a “written report” was prepared on the surveillance. (Mohrman Decls., Exhs. 4.) Oak Harbor’s original response to FI no. 13.1 consists of objections on the grounds that the interrogatory seeks impeachment evidence and disclosure of attorney work product. (Id. at PDF p. 27.) The supplemental response of Oak Harbor to FI no. 13.1 includes an affirmative response (i.e., the word “yes”), and a statement in response to subparts (a) through (d) asserting that the details of the surveillance will not be revealed absent a court order. (Id. at PDF pp. 27-28.) The response of Oak Harbor to FI no. 13.2 also includes an affirmative response (“yes”) and objections on the grounds that the interrogatory seeks impeachment evidence protected by the work product privilege. (Id. at PDF p. 28.) Oak Harbor asserts identical objections to subparts (a) through (d) of FI no. 13.2 as those described above. (Ibid.)

RFP nos. 8 and 9 request, respectively, the production of documents relating to any surveillance of Singh and documents on which Oak Harbor bases its responses to the FI described above. (Morhman Decls., Exhs. 5.) In its supplemental responses to RFP nos. 8 and 9, Oak Harbor states that it is in possession of documents and video film responsive to RFP nos. 8 and 9, and asserts objections that the demands seek impeachment evidence protected by the work product privilege. (Id. at PDF pp. 36-38.)

The parties here do not and cannot reasonably dispute that Oak Harbor is in possession of surveillance of Singh as well as a report and other documents relating to the surveillance. Available information and evidence is also sufficient to show that the requests stated in RFP nos. 8 and 9 directly relate to the issues presented in this litigation with respect to the injuries alleged by Singh as a result of the collision at issue. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Though Oak Harbor contends that information or documents relating to the surveillance constitute attorney work product, Oak Harbor otherwise offers no reasoned argument to show that there does not exist good cause for the requests stated in RFP nos. 8 and 9 to the extent these requests do not seek privileged material.

Oak Harbor also does not appear to contend that the surveillance identified in its responses to the FI and RFP at issue (referred to collectively as the “discovery requests”) constitutes a “confidential communication between” it and its counsel. (Evid. Code, § 954; see also Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, 176-177 [general discussion of attorney-client privilege].) Rather, the present dispute centers on whether or not information and documents relating to the surveillance of Singh constitute the “work product” of counsel for Oak Harbor.

“A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Code Civ. Proc., § 2018.030, subd. (a).) (Note: Undesignated code references shall be to the Code of Civil Procedure unless otherwise noted.) In its responses to the discovery requests and its opposition to the discovery motions, Oak Harbor offers no information, and does not appear to contend, that the surveillance at issue reflects its counsel’s “tactics, impressions, or evaluation of the case ….” (Coito v. Superior Court (2012) 54 Cal.4th 480, 486 (Coito).) For this reason, Oak Harbor has offered no information to show that the surveillance is entitled to absolute work product protection under subdivision (a) of section 2018.030. Rather, Oak Harbor argues that the surveillance of Singh identified in its supplemental responses to the discovery requests is entitled to qualified protection from discovery. (See Opp. [RFP Motion & FI Motion] at pp. 5 [asserting that surveillance of a party “falls under the qualified privilege”]; see also Curtis v. Superior Court (2021) 62 Cal.App.5th 453, 459 (Curtis).)

The work product of an attorney that does not qualify for absolute protection under subdivision (a) of section 2018.030 is “not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030, subd. (b); Coito, supra, 54 Cal.4th at pp. 493-494.) The qualified protection provided in subdivision (b) of section 2018.030 reflects the policy of the state to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases” and to “[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts.” (Code Civ. Proc., § 2018.020, subd. (a) & (b); Coito, supra, 54 Cal.4th at p. 493.)

Though a party seeking to compel responses, or the production of documents in response, to an inspection demand such as the RFP at issue must make a fact-specific showing of good cause justifying the discovery, “ ‘[a] bare showing of “good cause” is not enough to compel production of materials constituting attorney work product.’ [Citation.]” (People v. Hunter (2017) 15 Cal.App.5th 163, 182, original italics.) To the extent the qualified privilege provided under subdivision (b) of section 2018.030 applies, the party seeking discovery of privileged material bears the burden to demonstrate any injustice or unfair prejudice that would result from a denial of discovery. (Curtis, supra, 62 Cal.App.5th at p. 474.)

Though Singh bears the burden to establish any unfair prejudice or injustice that would result from a denial of discovery of the surveillance, Oak Harbor must first make a “preliminary or foundational showing” that responding to the discovery requests will result in Singh’s counsel taking undue advantage of its counsel’s industry or efforts. (Coito, supra, 54 Cal.4th at p. 502.) Subparts (a) through (d) of FI nos. 13.1 and 13.2 effectively seek preliminary or foundational facts relevant to whether or not the surveillance is entitled to the qualified protection provided in subdivision (b) of section 2018.030. However, Oak Harbor has provided no information in its responses to these subparts. In addition, Oak Harbor offers no information in its opposition to the discovery motions sufficient to make the required preliminary foundational showing. Therefore, and as further discussed below, the Court is unable, at this stage of the proceedings, to determine whether the surveillance at issue constitutes the work product of counsel for Oak Harbor.

For example, the Court notes that there exists no information to establish whether or not Oak Harbor has taken the deposition of Singh. Considering the date set for a trial confirmation conference in this matter, the Court assumes for present purposes that Oak Harbor has obtained Singh’s deposition testimony with respect to the injuries Singh sustained as a result of the collision alleged in the complaint. To the extent Singh has provided testimony at his deposition regarding his claimed injuries and damages, it is unclear on what basis Oak Harbor contends that the production of the surveillance will enable Singh to alter that testimony.

Oak Harbor also asserts that it intends to introduce the surveillance at trial for impeachment purposes. To the extent Oak Harbor intends to use the surveillance at trial, Oak Harbor has failed to demonstrate why the identity of the person conducting the surveillance is privileged. (See, e.g., Coito, supra, 54 Cal.4th at p. 489 [identity of witnesses “does not constitute work product”].) Moreover, the Court further notes that it “may bar testimony of a witness whose identity was willfully concealed in answers to interrogatories” upon a showing of prejudice. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 780, fn. 4, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.)

By way of further example, Oak Harbor includes no information in its responses to FI nos. 13.1 or 13.2 regarding the “written report” of the surveillance. Though Oak Harbor may assert objections based on the qualified work product privilege, “the existence of a document containing privileged information is not privileged. … If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document.” (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 293, original italics.) As further discussed above, Oak Harbor has provided no information regarding the report, or a description of the report, in its responses to subpart (d) of FI no. 13.1 and FI no. 13.2,, subpart (d), and 13.2 are deficient.

In addition, wholly absent from the responses of Oak Harbor is any information regarding the nature of the surveillance sufficient to show that the surveillance was the result of its counsel’s industry or efforts. For example, there is no information demonstrating who performed the surveillance, including whether the surveillance was performed by a consultant hired by Oak Harbor’s counsel or another person, when the surveillance was performed (see Wilson v. Superior Court of Los Angeles County (1964) 226 Cal.App.2d 715, 724), whether the surveillance consists solely of video or includes other methods of surveillance, or any other information sufficient to enable the Court to determine whether the surveillance was directed by counsel for Oak Harbor or another person or entity, or whether any reports of the surveillance include evaluations or opinions of a consultant of the type that would qualify for work product protection. (See, e.g., Williamson v. Superior Court (1978) 21 Cal.3d 829, 834 [general discussion]; Coito, supra, 54 Cal.4th at p. 496.)

It is also unclear to the Court on what basis Oak Harbor contends that the surveillance as a whole is privileged. For example, to the extent that counsel for Oak Harbor directed any surveillance to be taken on specific dates or times or at specific locations as determined by counsel, these preliminary facts may be sufficient to show that the surveillance is the product of counsel’s industry and efforts, and that its disclosure may reveal counsel’s thought process. To the extent that the surveillance was directed or determined by the person performing the surveillance and not counsel, and if only portions of the whole of the surveillance are of interest to Oak Harbor, Oak Harbor offers insufficient reasoned argument to show why the entirety of the surveillance would constitute privileged material, or why Singh’s counsel would be taking undue advantage of its counsel’s efforts if Singh were provided with a copy of the surveillance. In addition to the identity of the person who conducted the surveillance, information regarding the time period within which the surveillance was conducted may also be relevant to whether or not the surveillance constitutes work product.

“Whether specific material is protected work product must be resolved on a case-by-case basis.” (League of California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 993.) On a motion to compel the disclosure of documents which the opposing party claims include privileged matter, the Court “can and should determine all of the facts on which the claim of privilege depends” and must “resolve any factual disputes as to whether the party claiming a qualified privilege has established the basis therefore and whether the party seeking discovery has demonstrated an overriding need for disclosure.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1619.) For all reasons discussed above, Oak Harbor has failed to provide any preliminary facts or information sufficient to permit the Court to evaluate Oak Harbor’s claim that the surveillance is protected from disclosure under subdivision (b) of section 2018.030. Therefore, the Court will grant the discovery motions, in part, and order Oak Harbor to serve verified further responses to FI nos. 13.1 and 13.2, and RFP nos. 8 and 9. The Court expects that Oak Harbor will include in its further responses all information necessary to enable the Court to determine whether or not the surveillance constitutes work product.

Furthermore, to the extent a dispute arises with respect to the verified further responses of Oak Harbor to the discovery requests, the parties must, fully and in good faith, meet and confer in an effort to resolve these issues in consideration of the Court’s ruling herein. To the extent a dispute arises, the Court notes that the examples provided herein are illustrative and not exhaustive, and are intended to provide guidance as to the issues that the Court must resolve before it can determine whether the surveillance or report identified in Oak Harbor’s responses to the discovery requests are entitled to qualified protection under subdivision (b) of section 2018.030. Nothing herein shall be construed as an advisory opinion regarding what, if any, preliminary foundational facts would be sufficient to show whether or not the surveillance constitutes attorney work product. Moreover, nothing herein shall be construed by the parties as an advisory opinion with respect to the issues presented in the discovery motions or the manner in which the Court may or intends to resolve these issues.