Preview
Nv
a Da
Anne Costin (SBN 260126)
COSTIN LAW INC.
369 Pine Street, Ste. 506
San Francisco, CA 94104
Tel: (415) 977-0400
Fax: (415) 977-0405
Email: anne@costinlawfirm.com
Attorney for PLAINTIFF
ILANA DIAMOND
ILANA DIAMOND,
Plaintiff,
Vv.
UBER TECHNOLOGIES, INC.; and DOES
1-25, inclusive,
Defendant.
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
05/21/2018
Clerk of the Court
BY:SANDRA SCHIRO-
Deputy Clerk
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
Reservation No. 04160529-02
Case No, CGC-17-561879
PLAINTIFF’S REPLY
TO DEFENDANT UBER’S OPPOSITION
TO MOTION BY PLAINTIFF FOR
ISSUANCE OF COMMISSION
AUTHORIZING OUT OF STATE
DEPOSITION IN ACCORDANCE WITH
CODE OF CIVIL PROCEDURE
SECTION 2026.010
Hearing date: May 29, 2018
Time: 9:30 a.m.
Dept:
Complaint Filed: October 13, 2017
Trial Date: December 10, 2018
PLAINTIFF'S REPLY
PAGE |Bo wow
PLAINTIFF’S REPLY MEMORANDUM
1 INTRODUCTION.
There are two motions set for hearing on Tuesday May 29, 2018 at 9:30 a.m. in Department
302 of this Court: (1) Plaintiff Diamond’s motion requesting issuance of a commission for the out
of state deposition of witness Emily Bushaw, and (2) Defendant Uber’s motion seeking a protective
order preventing that deposition. Here, Plaintiff submits her Reply regarding the issuance of an out
of state witness commission.
IL. ISSURANCE OF A COMMISSION PER CCP 2026.010 IS MANDATORY.
The language of Code of Civil Procedure Section 2026.010 expressly states that issuance of
an out of state commission is mandatory:
On request, the clerk of the court shall issue a commission authorizing the deposition in
another state or place. The commission shall request that process issue in the place where
the examination is to be held, requiring attendance and enforcing the obligations of the
deponents to produce documents and electronically stored information and answer questions. |
The commission shall be issued by the clerk to any party in any action pending in its
venue without a noticed motion or court order. The commission may contain terms that
are required by the foreign jurisdiction to initiate the process. Ifa court order is required by
the foreign jurisdiction, an order for a commission may be obtained by ex parte
application.
(Code of Civil Procedure Section 2026.010(f), emphasis added.)
CCP 2026.010 was enacted in 2002, and contained the same mandatory “shall” language as
the above. (Code of Civil Procedure Section 2026.01 O(c), emphasis added.)
The pre-2002 version of this statute (previously codified as CCP Section 2026). did not
contain such mandatory language, and instead stated “When necessary or convenient, the court
shall issue a commission on such terms and with such directions as are just and appropriate.” (Code
of Civil Procedure Section 2026(c), pre-2012 version, emphasis added.)
The case that Defendant Uber cites (Dow Chem. Co. v. Superior Court (1969) 2 Cal. App. 3d
1, 8-9) was decided before 2002, when this “necessary or convenient” language was still contained
in the statute. Given that the statute has been amended and issuance of a commission is now
mandatory, the authority cited by Defendant Uber is no longer binding nor persuasive.
PLAINTIFF'S REPLY
PAGE 2It. DEFENDANT HAS REQUESTED THAT THIS COURT RULE ON ISSUES OF
PRIVILEGE.
Both of the pleadings that Defendant Uber has submitted related to Bushaw’s deposition (i.e.
Uber’s opposition to Plaintiff's request for an out of state commission, and Uber’s concurrently set
motion for a protective order) were filed with this Court. Both of Uber’s submissions request that
this Court rule on issues of privilege, and both pleadings present arguments to this Court
regarding privilege under California law. By doing so, Defendant itself has confirmed that this
Court has jurisdiction to decide these issues.
Yet at the same time Defendant requests this Court to rule on these substantive issues,
Defendant also argues that a Washington Court should decide these issues based on Washington law.
Notably, the only authority that Defendant cites in support of this argument is CCP 2026.010(c),
which expressly only applies to service of an out of state deposition notice and in no manner
addresses issues of substantive law.
Plaintiff is unaware of any authority that would prevent this Court from ruling on the issues
of privilege before it.
Given that the Bushaw investigation at issue involved witnesses located in California, related
to events that occurred in California, and (according to Uber’s own motion for a protective order),
was done “at the direction” of Uber’s California in-house counsel regarding Plaintiff Diamond’s
potential California law discrimination claims (see Achia Swift Declaration Paragraphs | and 4)
Defendant’s request for this California Court to rule on issues of privilege under California law
certainly makes sense, and is legally supported. (See International Ins. Co. v. Montrose Chemical
Corp. (1991) 231 Cal.App.3d 1367, 1370, holding that California law governed discovery ina
California case, even with regard to issues which arose during a deposition that occurred in
Connecticut).
Ht
PLAINTIFP’S REPLY
PAGE 3no
IV. CONCLUSION,
Plaintiff asserts that pursuant to the mandatory language of Code of Civil Procedure Section
2026.010, the out of state commission which Plaintiff has requested should issue. Defendant Uber’s
request for this Court to rule on privilege issues could then occur in the context of Defendant’s
motion for a protective order.
Respectfully submitted,
DATED: May 21, 2018 COSTIN LAW INC,
By:
ANNE COSTIN
Attomey for PLAINTIFF DIAMOND
PLAINTIFF’S REPLY
PAGE 4PROOF OF SERVICE
1, Anne Costin, declare that: | am employed in the County of San Francisco, State of California. I
am over the age of 18, and am not a party to this action. My business address is 369 Pine Street,
Suite 506, San Francisco, California 94104,
On May 21, 2018, I served:
PLAINTIFF’S REPLY TO DEFENDANT UBER’S OPPOSITION TO MOTION BY
PLAINTIFF FOR ISSUANCE OF COMMISSION AUTHORIZING OUT OF STATE
DEPOSITION IN ACCORDANCE WITH CODE OF CIVIL PROCEDURE SECTION
2026.010
in said cause addressed as follows:
Robin Lagorio
Ethel Johnson
Maria Domingo
Morgan, Lewis & Bockius LLP
One Market, Spear Street Tower
San Francisco, CA 94105
ethel johnson@morganlewis.com
robin.lagorio@morganlewis.com
maria.domingo@morganlewis.com
/X/ (BY EMAIL) Service completed per email pursuant to prior email service agreement
between the parties. Service completed by attaching a PDF of the above documents to an email and
then sending that email to the electronic mail addresses listed above.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct. Executed on May 21, 2018.
Anne ake uf vo Seat
___ PLAINTIFF’S REPLY
PAGE 5
Preview
Nv a Da Anne Costin (SBN 260126) COSTIN LAW INC. 369 Pine Street, Ste. 506 San Francisco, CA 94104 Tel: (415) 977-0400 Fax: (415) 977-0405 Email: anne@costinlawfirm.com Attorney for PLAINTIFF ILANA DIAMOND ILANA DIAMOND, Plaintiff, Vv. UBER TECHNOLOGIES, INC.; and DOES 1-25, inclusive, Defendant. ELECTRONICALLY FILED Superior Court of Catifornia, County of San Francisco 05/21/2018 Clerk of the Court BY:SANDRA SCHIRO- Deputy Clerk IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION Reservation No. 04160529-02 Case No, CGC-17-561879 PLAINTIFF’S REPLY TO DEFENDANT UBER’S OPPOSITION TO MOTION BY PLAINTIFF FOR ISSUANCE OF COMMISSION AUTHORIZING OUT OF STATE DEPOSITION IN ACCORDANCE WITH CODE OF CIVIL PROCEDURE SECTION 2026.010 Hearing date: May 29, 2018 Time: 9:30 a.m. Dept: Complaint Filed: October 13, 2017 Trial Date: December 10, 2018 PLAINTIFF'S REPLY PAGE |Bo wow PLAINTIFF’S REPLY MEMORANDUM 1 INTRODUCTION. There are two motions set for hearing on Tuesday May 29, 2018 at 9:30 a.m. in Department 302 of this Court: (1) Plaintiff Diamond’s motion requesting issuance of a commission for the out of state deposition of witness Emily Bushaw, and (2) Defendant Uber’s motion seeking a protective order preventing that deposition. Here, Plaintiff submits her Reply regarding the issuance of an out of state witness commission. IL. ISSURANCE OF A COMMISSION PER CCP 2026.010 IS MANDATORY. The language of Code of Civil Procedure Section 2026.010 expressly states that issuance of an out of state commission is mandatory: On request, the clerk of the court shall issue a commission authorizing the deposition in another state or place. The commission shall request that process issue in the place where the examination is to be held, requiring attendance and enforcing the obligations of the deponents to produce documents and electronically stored information and answer questions. | The commission shall be issued by the clerk to any party in any action pending in its venue without a noticed motion or court order. The commission may contain terms that are required by the foreign jurisdiction to initiate the process. Ifa court order is required by the foreign jurisdiction, an order for a commission may be obtained by ex parte application. (Code of Civil Procedure Section 2026.010(f), emphasis added.) CCP 2026.010 was enacted in 2002, and contained the same mandatory “shall” language as the above. (Code of Civil Procedure Section 2026.01 O(c), emphasis added.) The pre-2002 version of this statute (previously codified as CCP Section 2026). did not contain such mandatory language, and instead stated “When necessary or convenient, the court shall issue a commission on such terms and with such directions as are just and appropriate.” (Code of Civil Procedure Section 2026(c), pre-2012 version, emphasis added.) The case that Defendant Uber cites (Dow Chem. Co. v. Superior Court (1969) 2 Cal. App. 3d 1, 8-9) was decided before 2002, when this “necessary or convenient” language was still contained in the statute. Given that the statute has been amended and issuance of a commission is now mandatory, the authority cited by Defendant Uber is no longer binding nor persuasive. PLAINTIFF'S REPLY PAGE 2It. DEFENDANT HAS REQUESTED THAT THIS COURT RULE ON ISSUES OF PRIVILEGE. Both of the pleadings that Defendant Uber has submitted related to Bushaw’s deposition (i.e. Uber’s opposition to Plaintiff's request for an out of state commission, and Uber’s concurrently set motion for a protective order) were filed with this Court. Both of Uber’s submissions request that this Court rule on issues of privilege, and both pleadings present arguments to this Court regarding privilege under California law. By doing so, Defendant itself has confirmed that this Court has jurisdiction to decide these issues. Yet at the same time Defendant requests this Court to rule on these substantive issues, Defendant also argues that a Washington Court should decide these issues based on Washington law. Notably, the only authority that Defendant cites in support of this argument is CCP 2026.010(c), which expressly only applies to service of an out of state deposition notice and in no manner addresses issues of substantive law. Plaintiff is unaware of any authority that would prevent this Court from ruling on the issues of privilege before it. Given that the Bushaw investigation at issue involved witnesses located in California, related to events that occurred in California, and (according to Uber’s own motion for a protective order), was done “at the direction” of Uber’s California in-house counsel regarding Plaintiff Diamond’s potential California law discrimination claims (see Achia Swift Declaration Paragraphs | and 4) Defendant’s request for this California Court to rule on issues of privilege under California law certainly makes sense, and is legally supported. (See International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1370, holding that California law governed discovery ina California case, even with regard to issues which arose during a deposition that occurred in Connecticut). Ht PLAINTIFP’S REPLY PAGE 3no IV. CONCLUSION, Plaintiff asserts that pursuant to the mandatory language of Code of Civil Procedure Section 2026.010, the out of state commission which Plaintiff has requested should issue. Defendant Uber’s request for this Court to rule on privilege issues could then occur in the context of Defendant’s motion for a protective order. Respectfully submitted, DATED: May 21, 2018 COSTIN LAW INC, By: ANNE COSTIN Attomey for PLAINTIFF DIAMOND PLAINTIFF’S REPLY PAGE 4PROOF OF SERVICE 1, Anne Costin, declare that: | am employed in the County of San Francisco, State of California. I am over the age of 18, and am not a party to this action. My business address is 369 Pine Street, Suite 506, San Francisco, California 94104, On May 21, 2018, I served: PLAINTIFF’S REPLY TO DEFENDANT UBER’S OPPOSITION TO MOTION BY PLAINTIFF FOR ISSUANCE OF COMMISSION AUTHORIZING OUT OF STATE DEPOSITION IN ACCORDANCE WITH CODE OF CIVIL PROCEDURE SECTION 2026.010 in said cause addressed as follows: Robin Lagorio Ethel Johnson Maria Domingo Morgan, Lewis & Bockius LLP One Market, Spear Street Tower San Francisco, CA 94105 ethel johnson@morganlewis.com robin.lagorio@morganlewis.com maria.domingo@morganlewis.com /X/ (BY EMAIL) Service completed per email pursuant to prior email service agreement between the parties. Service completed by attaching a PDF of the above documents to an email and then sending that email to the electronic mail addresses listed above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 21, 2018. Anne ake uf vo Seat ___ PLAINTIFF’S REPLY PAGE 5