Silvia Contreras et al vs Costco Wholesale Corporation et al

Case Number

23CV02771

Case Type

Hearing Date / Time

Mon, 02/24/2025 - 10:00

Nature of Proceedings

Motion: Compel Production of Defense Expert's Raw Data

Tentative Ruling

Silvia Contreras, et al. v. Costco Wholesale                 

Case No. 23CV02771

           

Hearing Date: February 24, 2025                                                      

HEARING:              Plaintiffs’ Motion To Compel The Production Of Defense Expert Dr. Delia M. Silva’s Raw Data Related To Neuropsychological Testing Of Plaintiff Silvia Contreras Or, Alternatively, Striking Dr. Silva As Defense Expert

ATTORNEYS:        For Plaintiffs Silvia Contreras, Mariano Contreras, and Adalberto Contreras: Harout Greg Keosian, Natalie H. Suri, Keosian Law LLP

                                    For Defendant Costco Wholesale Corporation: Sean R. Burnett, Jessica Farley, Snyder Burnett Egerer, LLP

                                   

TENTATIVE RULING:

(1) The motion of plaintiffs to compel the production of defense expert Dr. Delia M. Silva’s raw data related to the neuropsychological testing of plaintiff Silvia Contreras is continued to March 24, 2025. The parties shall meet and confer in good faith regarding the terms of an appropriate protective order consistent with the discussion in Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, and this ruling, and shall, on or before March 12, 2025, submit one or more proposed protective orders.

(2) In addition, the parties shall, on or before March 12, 2025, submit in accordance with this ruling joint or individual status reports setting forth their efforts to meet and confer regarding the terms of an appropriate protective order as required herein, and what, if any, issues remain to be determined.

(3) Counsel for defendant Costco Wholesale Corporation, Jessica Farley, shall appear at the hearing on the present motion and explain why counsel did not disclose Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, in defendant’s opposition to plaintiffs’ motion.

Background:

On June 28, 2023, plaintiffs Silvia Contreras (Silvia), Mariano Contreras (Mariano), and Adalberto Contreras (Adalberto) (collectively, plaintiffs) filed a complaint against Costco Wholesale Corporation (Costco), alleging four causes of action: (1) negligence - premises liability; (2) negligent hiring; (3) loss of consortium; and (4) negligent infliction of emotional distress. (Note: Due to common familial surnames and to avoid confusion, the Court will refer to plaintiffs by their first names. No disrespect is intended.) The claims alleged in the complaint arise from an incident which occurred on October 3, 2022, at a Costco location in Goleta, California, when Silvia was struck by shopping carts pushed by a Costco employee, causing Silvia to fall and sustain a head injury, among other things. (Compl., ¶ 9.)

Costco answered the complaint on August 4, 2023, generally denying its allegations and asserting twelve affirmative defenses.

On January 14, 2025, plaintiffs filed a motion for an order compelling the production of all materials related to a neuropsychological examination of Silvia performed by Costco’s retained neuropsychology expert, Dr. Delia M. Silva (Dr. Silva). On January 21, 2025, the Court granted plaintiffs’ January 17, 2025, ex parte application for an order shortening the time to hear the motion, and advanced the hearing to February 24, 2025.

In support of the motion, plaintiffs submit the declaration of their counsel, Natalie H. Suri (Suri). Undisputed or not reasonably disputed information and evidence appearing in the Suri declaration, and the exhibits to that declaration, shows that counsel for the parties executed a “Stipulation For Defense Mental Examination” (the Stipulation), in which the parties agreed that Costco may conduct a mental examination (the examination) of Silvia, who alleges a claim in this action for mental and psychological injuries. (Suri Decl., Exh. A at p. 1, ll. 21-25.) The parties further agreed that the examination would be performed by Dr. Silva pursuant to Code of Civil Procedure section 2032.220. (Id. at Exh. A, p. 1, ll. 26-27 & ¶¶ 1, 4 & 6.)

Pursuant to the Stipulation, the examination would include a clinical interview and neuropsychological tests to be selected from a list which was ostensibly attached to the Stipulation. (Suri Decl., Exh. A, ¶¶ 5-6.) (Note: The list of tests referenced in the Stipulation is not attached to the copy submitted to the Court.) The parties further agreed that Silvia would not be subjected to blood tests, “x-rays, CT scans, MRIs”, or other diagnostic tests or procedures, and that the examination would not be painful, protracted, or intrusive. (Ibid.)

The parties further agreed that, at the conclusion of any psychological testing of Silvia, “a copy of the actual tests, test answers, interpretative materials used, reports of tests, raw data generated, scoring and all test results … shall be forwarded to [Silvia’s] neuropsychologist”, and that Dr. Silva would prepare and provide to Silvia’s counsel a written report pursuant to Code of Civil Procedure section 2032.610. (Suri Decl., Exh. A, ¶¶ 7 & 12.) With respect to “the raw data generated and all test results” (the Raw Data) regarding Silvia, the parties agreed that Silva would file a motion to compel the production of the Raw Data. (Id. at Exh. A, ¶ 7(a).) The Stipulation provides that, pending the Court’s determination of that motion, the use of the Raw Data would be limited to Silvia’s neuropsychologist and to “that which is required for the resolution of the pending action”. (Id. at Exh. A, ¶¶ 7(b), 7(c) & 13.)

Dr. Silva conducted the examination of Silvia on September 16, 2024, and prepared a report titled “Independent Medical Evaluation In Neuropsychology” (the report) which is dated October 4, 2024. (Suri Decl., ¶¶ 2, 5 & Exh. A, ¶ 1 & Exh. B.) The report includes Dr. Silva’s conclusion that Silvia “did not perform in a valid manner” and “was responding non-credibly and underperforming”, that Silvia’s “level of effort was suboptimal”, and that “[w]hile it is possible that [Silvia] may have actual cognitive deficits, it is not expected that they would be attributable to the 10/03/2022 injury, as there was no objective evidence that she sustained a TBl/concussion.” (Id. at ¶¶ 4-5 & Exh. B at pp. 75 & 77-78.)

Suri states that, apart from “alleged scores”, Dr. Silva has not produced the Raw Data, including tests, test data, literature, or interpretive materials, to support the conclusions stated by Dr. Silva in the report. (Suri Decl., ¶ 4.)

Costco opposes the motion. In support of its opposition, Costco submits the declaration of Dr. Silva, who is a licensed psychologist, board-certified in clinical neuropsychology by the American Board of Professional Psychology, and a qualified medical evaluator. (Silva Decl., ¶ 1.) Dr. Silva states that she has performed psychological evaluations in the context of personal injury cases since 2013, and was retained by Costco to conduct the examination of Silvia and report her findings and conclusions. (Id. at ¶¶ 1 & 3.)

Dr. Silva does not dispute that the report does not include, and that she has not provided to Silvia’s counsel, the Raw Data used during Silvia’s examination. (Silva Decl., ¶ 4.) Dr. Silva states that she will not agree to provide the Raw Data to Silvia’s counsel because, according to Dr. Silva, legal and ethical obligations prevent her from disclosing the Raw Data to anyone who is not a licensed professional psychologist. (Id. at ¶ 5.) Dr. Silva also expresses general concerns regarding the confidentiality and validity of psychological testing should the Raw Data be disclosed directly to Silvia’s counsel. (Ibid.)

Dr. Silva asserts that the validity of all neuropsychological and psychological test instruments is contingent on the novelty of test instructions, stimuli, questions, and answers, and that the “naivete” of examinees concerning the procedures and contents of the tests is crucial for a valid and informative examination. (Silva Decl., ¶ 6.) Dr. Silva also asserts that the testing materials used during Silvia’s examination are highly sensitive, proprietary, and copyright protected, and that the dissemination of these materials to non-psychologists threatens their future security and validity. (Id. at ¶¶ 6-8.)

Dr. Silva states that, due to the threat of public harm which may arise from the general release of proprietary test information contained within the Raw Data, the California Board of Psychology, the National Academy of Neuropsychology, the American Academy of Clinical Neuropsychology, and the American College of Professional Neuropsychology have adopted formal requirements and issued statements pertaining to the release of test-related materials. (Silva Decl., ¶ 8.)

Dr. Silva is also states that, as a licensed psychologist, she is bound by the “Ethical Principals of Psychologists and Code of Conduct” (the Code of Conduct) set forth by the American Psychological Association (the APA), and subject to “laws and regulations promulgated by the State of California regarding the legal obligation to maintain the security of testing materials and procedures.” (Silva Decl., ¶ 9.) Specifically, Dr. Silva asserts that standards 9.07 and 9.11 of the APA’s Code of Conduct, which according to Dr. Silva concern the release of sensitive test data and materials, “require that psychologists refrain from compromising the security of mental test instruments, as widespread knowledge of specific test content by the public will compromise the future validity of the tests.” (Id. at ¶ 10.)

Dr. Silva also refers to “Standards for Educational and Psychological Testing (2014)” (the Standards), which, according to Dr. Silva, is an extensive multi-organizational publication intended to “ ‘promote the sound and ethical use of tests and to provide a basis for evaluating the quality of testing practices.’ ” (Silva Decl., ¶ 11.) According to Dr. Silva, the Standards “advise against the distribution of mental test instruments to unqualified users (i.e., individuals not trained and licensed to utilize the tests).” (Ibid.) According to Dr. Silva, “Standard 9.21 states that ‘[t]est users have the responsibility to protect the security of tests, including that of previous editions.’ ” (Ibid.) Further, “Standard 8.1 addresses the importance of all test-takers having access to equivalent information about tests in advance of taking them, and Standard 8.2 mentions that any advanced information concerning a test must be consistent with obtaining valid responses.” (Ibid.)

Dr. Silva further asserts that the California Board of Psychology has imposed various restrictions on psychologists which are intended to control and limit the distribution of test materials, and which provide that a psychologist “ ‘shall not reproduce or describe in public or in publications subject to general public distribution any psychological tests or other assessment devices, the value of which depends in whole or in part on the naivete of the subject, in ways that might invalidate the techniques’ ” and “shall limit access to such tests or devices to persons with professional interests who will safeguard their use. [Citation.]” (Silva Decl., ¶ 12, original italics.)

In addition, Dr. Silva states that the disclosure of raw data and testing materials has not been approved by the governing body of the APA, and that the APA has not adopted a policy which permits the disclosure of raw data and testing materials to anyone other than a licensed psychologist or psychiatrist who is bound by the APA’s ethical guidelines. (Silva Decl., ¶ 13.) For these reasons, Dr. Silva contends, a general protective order would not mitigate the ethical and legal obligations which prevent Dr. Silva from providing the Raw Data directly to plaintiffs’ counsel. (Id. at ¶ 14.)

Dr. Silva also attaches as exhibit 1 a “Collective Statement of Importance of Protection of Psychological Test Materials as of May 29, 2024” (the Collective Statement) which is signed by what Dr. Silva describes as “approximately 95% of board-certified neuropsychologists in the State of California who maintain the position that raw data will not be released to individuals who are not licensed psychologists, even under protective orders.” (Silva Decl., ¶ 16.) The Collective Statement also includes a description of the potential risks of releasing raw data to non-psychologists. (Ibid.)

Costco also submits the declaration of its counsel, Jessica Farley (Farley), who states that Costco has offered to provide the Raw Data used or collected during the Dr. Silva’s examination of Silvia to plaintiffs’ psychology expert in order to resolve the issue presented in this proceeding. (Farley Decl., ¶ 7.)

Analysis:

The parties here do not dispute that Silvia has placed her mental condition in controversy, or that Costco is authorized to obtain discovery of Silvia’s condition by means of the examination conducted by Dr. Silva. (See Code Civ. Proc., § 2032.020, subd. (a); Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887.) (Note: Undesignated code references herein shall be to the Code of Civil Procedure unless otherwise stated.) Though the Stipulation effectively eliminated the need for Costco to obtain leave of court to conduct the examination pursuant to Code of Civil Procedure section 2032.310, the parties also do not appear to dispute, for present purposes, that Dr. Silva conducted the examination of Silvia in compliance with sections 2032.020 or 2032.220, or that the report otherwise complies with section 2032.610. Based on the respective positions advanced by the parties, it is the Court’s understanding that the present dispute relates only to whether or not Dr. Silva may be compelled to produce the Raw Data at issue directly to Silvia’s counsel.

Silvia contends that if the Raw Data is not produced to her counsel, her counsel will be unable to conduct a proper or meaningful cross-examination of Dr. Silva, or to determine if the Raw Data is sufficient to support Dr. Silva’s opinions. Silvia further asserts that she is willing to enter into a protective order to safeguard the Raw Data. For these reasons, Silvia argues, the Court should compel the production of the Raw Data to her counsel.

Costco contends that that the Raw Data is confidential, that Dr. Silva is prohibited from releasing the Raw Data to anyone other than a licensed psychologist, and that a protective order would not resolve the ethical and legal concerns asserted by Dr. Silva. Costco further contends that Silvia’s counsel does not have the requisite expertise or qualifications to interpret the Raw Data, and that Silva can retain an expert to interpret the Raw Data and convey necessary information to Silvia’s counsel. For these reasons, Costco argues, there exists sufficient good cause to limit the disclosure of the Raw Data to any expert that may be retained by Silvia.

The parties do not address in their respective papers an identical if not substantively similar dispute addressed by the Fifth District Court of Appeal in Randy’s Trucking, Inc. v. Superior Court of Kern County (2023) 91 Cal.App.5th 818, 834 (Randy’s Trucking). Randy’s Trucking involved a suit filed by a school bus driver and passenger against the driver of a tractor-trailer and his employer. (Id. at p. 824.) The school bus driver plaintiff claimed that she suffered a traumatic brain injury when the tractor-trailer driven by the defendant employee rear-ended the school bus that plaintiff was driving. (Ibid.) Consequently, defendants sought to compel the plaintiff school bus driver to submit to a mental examination by defendants’ neuropsychologist. (Id. at p. 825.)

Similar to the parties in this action, the parties in Randy’s Trucking could not agree to the “ground rules” for the school bus driver’s mental examination. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 825.) Plaintiffs would not agree to the examination “unless the examining neuropsychologist provided them with all testing materials [and] raw test data”, while defendants maintained that their neuropsychologist “was unwilling to transfer those items to plaintiffs’ counsel, although she would provide them to a similarly situated expert who was subject to the same professional and ethical duties to which she was subject.” (Ibid.) The dispute prompted the filing of a motion by defendants for an order granting leave to conduct the neuropsychological examination of the school bus driver plaintiff “without having to provide raw data and copyrighted examination questions to plaintiffs’ counsel.” (Ibid.)

To support their motion, defendants in Randy’s Trucking submitted a declaration of their neuropsychologist which advanced the same if not a substantively similar position as that advanced by Dr. Silva in this proceeding, as further detailed above. (See Randy’s Trucking, supra, 91 Cal.App.5th at p. 826.) Similar to the arguments advanced by Costco in this action, defendants in Randy’s Trucking argued that the disclosure of raw data and other materials relating to plaintiff’s examination would cause defendants’ neuropsychologist “to violate her ethical and professional duties”, and that “the raw data and examination questions were of no use to plaintiffs’ counsel ‘other than to utilize it improperly to corrupt the process by preparing future clients using the copyrighted questions.’ ” (Id. at pp. 825-826.) Defendants, like Costco in this proceeding, requested that the court instead “order the transfer of data to plaintiffs’ retained neuropsychologist, ‘whoever that is ….’ ” (Id. at p. 826.)

In their opposition to defendants’ motion, plaintiffs in Randy’s Trucking “asserted they only were seeking to have the raw data from the examination provided to their counsel in addition to plaintiffs’ expert”, and offered to sign a protective order “making the data available for use only in this case and only for review by counsel’s team and experts, with the data to be destroyed at the conclusion of the case ….” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 826.) To support their position plaintiffs in Randy’s Trucking, as Silvia has in this proceeding, relied on Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, in which the court concluded, among other things, that copyright law did not preclude plaintiff in that case from obtaining a copy of written test materials. (Ibid.; Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 253.)

After a hearing, the trial court entered a written order granting the defendants’ motion, and requiring, among other things, that “’all raw data’ be provided to [plaintiffs’] counsel … subject to a protective order.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 828.) Defendants sought review of the trial court’s order by writ of mandate, arguing that the trial court erred in ordering the transmission of the raw data to anyone other than a licensed psychologist or neuropsychologist. (Id. at p. 834.)

In conducting its review, the appellate court noted the absence of “statutory authority … precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 834.) The appellate court also recognized “the trial court’s broad discretion in discovery matters” and its “power to order disclosure of test materials and data to the plaintiff’s attorney.” (Id. at p. 835.)

The only evidence addressing whether the trial court in Randy’s Trucking had abused its discretion in ordering the transmission of raw examination data to plaintiffs’ counsel was the declaration of defendants’ neuropsychologist. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 837.) The appellate court acknowledged issues or “dangers” which, according to defendants’ neuropsychologist, may result from the exposure of test materials and raw data, which the court found may include “compromising the validity of future neuropsychological test results”, the potential for “misuse and misinterpretation of tests” by untrained persons, “potential conflicts with the APA Ethical Standards” including “ ‘several key principles in the Specialty Guidelines for Forensic Psychology of the American Psychological Association (2013)’ ”, “an increased likelihood test content and instructions would be disseminated which ‘raises the risk that motivated parties will coach and prepare examinees for testing in advance, specifically to influence test results’, and that “ ‘ “[l]awyers involved in brain injury litigation routinely coach their clients how to approach neuropsychological testing to their advantage.” ’ ” (Ibid.)

 

Notwithstanding the “dangers” cited by defendants’ neuropsychologist, the court in Randy’s Trucking found that defendants had failed to show why a protective order would not ameliorate the dangers or risks which may result from the disclosure of raw examination data or the risk of any potential for violating the neuropsychologist’s ethical obligations. (Randy’s Trucking, supra, 91 Cal.App.5th at pp. 837-838.) The court further noted that, while defendants’ neuropsychologist had identified various standards which the neuropsychologist claimed could be violated by a disclosure of raw examination data, the neuropsychologist had failed to explain these potential violations or submit copies of the standards to the trial court. (Id. at p. 838.)

When weighing the evidence submitted by defendants against “plaintiffs’ right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion …”, the court determined that “[w]ithout the raw data …, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) The court concluded that “[b]ased on the record before it, the trial court reasonably could find plaintiffs had a legitimate need for the raw data … and the concerns about maintaining test security would be satisfied with a protective order.” (Id. at p. 848.) For these, and other reasons more fully discussed in Randy’s Trucking, the court found that writ relief was not warranted. (Id. at pp. 838 & 848.)

As the dispute at issue in Randy’s Trucking is substantively similar if not identical to the dispute at issue in the present proceeding, that decision is persuasive and on point.

While Dr. Silva describes various “formal requirements”, statements, and standards including those issued by the APA, Dr. Silva quotes only select portions of these materials which Dr. Silva contends could be violated if the Raw Data is transmitted to Silvia’s counsel. Wholly absent from the motion is a sufficiently complete copy of these requirements, statements, or standards. Dr. Silva also fails to identify which “laws and regulations” promulgated by the State of California prohibit Dr. Silva from transmitting the Raw Data to Silvia’s counsel, and fails to provide a sufficient explanation showing why transmission of the Raw Data to Silvia’s counsel would violate these laws or regulations, or why any violation of these laws or regulations could not be alleviated by an appropriate protective order.

In addition, the conclusory contentions offered by Dr. Silva regarding potential violations which purportedly could occur if the Raw Data is provided to Silvia’s counsel are themselves insufficient to explain these violations, or to show why a protective order could not alleviate any potential violations or resolve any risks relating to the “security” of the Raw Data or its dissemination to the general public.

The select language set forth in the Silva declaration and in the memorandum also suggests that the standards or restrictions referenced by Dr. Silva are intended to address the reproduction of test materials to the general public, or to persons who may not safeguard their use. (See, e.g., Silva Decl., ¶ 12.) For example, the language cited by Dr. Silva suggests that the Raw Data may be disclosed in litigation involving the type of claims asserted by Silvia in this action, provided there exist appropriate and sufficient safeguards regarding its use. Dr. Silva and Costco fail to explain why a protective order could not provide appropriate safeguards regarding the use of the Raw Data outside of this litigation.

In addition, the language of the APA’s Code of Conduct standards 9.04, 9.07, 9.11, set forth in Costco’s opposing memorandum, does not on its face show that Dr. Silva is prohibited from releasing the Raw Data under the circumstances present here. For example, Code of Conduct standard 9.04 states that a psychologist “may” refrain from releasing test data to protect a client from harm, or from misuse or misrepresentation of that data. (Memorandum at p. 4.) Code of Conduct standard 9.07 refers only to the “use” of assessment techniques by unqualified persons, and does not refer to their release or disclosure for the purpose cited by Silvia and her counsel. (Ibid.) Though Code of Conduct standard 9.11 requires that a psychologist undertake reasonable efforts to maintain the integrity and security of test materials consistent with the “law” (ibid.), this language suggests to the Court that, to the extent there exists an appropriate protective order sufficient to maintain the integrity and security of the Raw Data, such as by prohibiting use of the Raw Data outside of this litigation, Dr. Silva would not be prohibited from releasing the Raw Data to Silvia’s counsel. Dr. Silva and Costco fail to explain why an appropriate protective order could not satisfy any requirements imposed under these standards.

Regarding Costco’s argument that Silvia’s counsel is not qualified to interpret the Raw Data, counsel “would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination ….” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 838.) Moreover, available information suggests that Silvia has not retained an expert to whom the Raw Data could be transmitted. Under these circumstances, Silvia “should not be forced to retain an expert to gain access to these materials and even if [she does] retain one, that expert can only assist [Silvia’s counsel] in preparing for cross-examination; to prepare and conduct an effective cross-examination, ‘the attorney must themselves possess more than a secondhand understanding of the information being scrutinized.’ ” (Ibid.) For these reasons, any purported inability of Silvia’s counsel to interpret the Raw Data does not, alone, justify a denial of the motion.

Though Costco also asserts that, generally, attorneys can use test information to coach future clients, “that risk is not unique to psychological testing.” (Randy’s Trucking, supra, 91 Cal.App.5th at p. 841.) Further, Costco has failed to “show testing integrity is meaningfully compromised by the potential for some attorney recall.” (Ibid.)

The remaining arguments advanced by Costco are themselves insufficient to show that “attorneys regularly violate protective orders, including those concerning psychological or neuropsychological testing materials” or the existence of “a substantial risk of abusive intentional dissemination or an unacceptable risk of inadvertent disclosure” such that no protective order would be adequate to address Dr. Silva’s concerns about the security of the Raw Data or its release outside of this litigation. (Randy’s Trucking, supra, 91 Cal.App.5th at p. 842.)

Silvia has made a sufficient showing of the need for her counsel to obtain the Raw Data at issue in the present proceeding in order to permit her counsel to understand the information at issue with respect to the examination conducted by Dr. Silva. There is nothing to suggest, or which would permit the Court to conclude, that no protective order could sufficiently address any concerns regarding the security, integrity, or potential for misuse of the Raw Data, or prevent its release to persons not a party to or otherwise involved in this litigation. Therefore, for the foregoing reasons, the Court intends to grant the motion subject to an appropriate protective order consistent with the discussion in Randy’s Trucking.

The Court infers from the moving and opposing papers that the parties have not engaged in efforts to discuss or agree to the terms of a protective order with respect to the Raw Data. Therefore, though the Court intends to grant Silvia’s motion, the Court will continue the hearing to permit the parties sufficient time to meet and confer regarding the terms of an appropriate protective order. The Court will order the parties to submit one or more proposed protective orders consistent with the discussion in Randy’s Trucking and this ruling. In addition, the Court will order the parties to submit individual or joint status reports describing the parties’ meet and confer efforts and what, if any, issues remain to be resolved. If the parties fail to reach an agreement as to an appropriate protective order, the Court will resolve the dispute at the continued hearing.

The Court further notes that Rule 3.3 of the Rules of Professional Conduct provides that a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel … [¶].” (Rules Prof. Conduct, rule 3.3(a)(2).) The Fifth District Court of Appeal’s decision in Randy’s Trucking is, for reasons further discussed above, directly on point and adverse to the position advanced by Costco in this proceeding. Silvia’s counsel did not disclose Randy’s Trucking. The Court questions why counsel for Costco did not disclose this legal authority in its opposition to Silvia’s motion. Therefore, the Court will require Costco’s counsel, Jessica Farley, to appear at the present hearing on the motion, and explain to the Court why counsel did not disclose Randy’s Trucking in its opposition to Silvia’s motion.