Preview
ELECTRONICALLY
VANESSA L. HOLTON (111613) aoe ee
General Counsel County of San Francisco
ROBERT G. RETANA (148677) 11/21/20 17
Deputy General Counsel jerk of ene Our
PAUL A. BERNARDINO (164654) To eeeual ele
Assistant General Counsel
OFFICE OF GENERAL COUNSEL
THE STATE BAR OF CALIFORNIA :
180 Howard Street DEPARTMENT : 204
San Francisco, CA 94105-1639 Hearing : 01/03/2018 2:00 pm
Tel: (415) 538-2012
Fax: (415) 538-2321
Email: paul.bernardino@calbar.ca.gov
Attorneys for Non-Party Witness the State Bar of California
Exempé from Filing Fees Pursuant to Government
Code Section 6103
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
IN RE: Case No, PTR-17-301118
. Related Case No. PCN 13-297063
THE GOSEY RECOVABLE LIVING Related Case No. PTR 14-297499
TRUST DATED JANUARY 3, 2007
NON-PARTY WITNESS THE STATE BAR
OF CALIFORNIA’S NOTICE OF MOTION
AND MOTION STAYING AND QUASHING
THE DEPOSITION NOTICE; REQUESTING
A PROTECTIVE ORDER; AND
MEMORANDUM OF POINTS AND
AUTHORITIES AND DECLARATION iN
SUPPORT THEREOF
DATE: January 3, 2018 [approved by Rosie]
TIME: 2:00 p.m.
DEPT: 204
JUDGE: The Honorable John K. Stewart
J
Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-30111828
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TABLE OF CONTENTS
INTRODUCTION ..
THE DEFECTIVE NOTICE OF APPEARANCE FOR DEPOSITION OF A
NON-PARTY SHOULD BE QUASHED .,.....sssssssssscssesssesessnsesscossseceussesnsasscestesersessnseres 1
THE INSTRUSIVENESS OF THE DEPOSITION TO AN ONGOING DISCIPLINARY
MATTER FOR THE SUPREME COURT RISKS THE CIRCUMVENTION OF STATE
BAR RULES.....c.ccsssesssssssessssssscsanessnsenneepeccsacennequecanesacsesetesessenesssesusesscavecarqnessnseyasteneersnecten 2
THE INSTRUSIVENESS OF THE DEPOSITION OF A NON-PARTY STATE BAR
WITNESS OUTWEIGHS THE LIKELIHOOD THAT THE INFORMATION SOUGHT
WILL LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE ,.....scssesssscsecrssescseensnsce 3
THE STATE BAR REQUESTS THAT ANY FUTURE DEPOSITION OF A NON-
PARTY IN THIS PROBATE CASE SHOULD BE SUBJECT TO A PROTECTIVE
ORDER ..essocssssecssssscssecssnceesaseessecesesssessneceavetacarecssvenseneeesossnsavorsenessestenesscessoseneesnsuseseanecesees 4
A. Other Investigation Is Confidential... .cecscesecsscesesseeeeescaresssenaneeaceneesennnenees 5
B. Right to Privacy Is Protected Under the Constitution, ......sssessseceecseessnmssnseneecsen 5
Cc. Official Information Is Privileged. 0.0... cessseceeeeesecetesesarsenearenesnenacanceneenneeneeneeee 6
Dz. Attorney Work Product Is Privileged. ........ccsscssessssssesssssnessesssessssserseeneeseneseeessee 6
E. Attorney-Client Information Is Privileged. ....
THE STATE BAR HAS MADE A GOOD FAITH EFFORT TO REACH AN
INFORMAL RESOLUTION ON A PROTECTIVE ORDER .......csscecscesssesssecsserosessneesser 7
THE STATE BAR HAS TIMELY MADE AND SERVED THIS MOTION TO STAY
AND QUASH THE DEPOSITION AND TO ISSUE A PROTECTIVE ORDER.......:.7
CONCLUSION. ....-sscsssssorssessensssnceesensoustiessiersuesssesnssenesanenyeantass nanesnosenreanenanseasernaentven sees &
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Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-301118TABLE OF AUTHORITIES
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Cases
Chronicle Pub. Co. v, Superior Court
(1960) 54 Cal.2d 548 .
Emslie v. State Bar
(1974) 11 Cal.3d 210
Heffron v. Los Angeles Transit Lines
(1959) 170 Cal.App.2d 709 sescssosssnssssesesneesnetseeneeneeseeseettnsestesteatenneiseneesnsent 4
In re Attorney Discipline System
(1998) 19 Cal 4th 582 .recesssssssseeccsssscssessssecesnsneessentesestonasesganasssnanestsenenteesonsresesesensieseessstty 2
oe I AH Fw NY
| In re Rose
1 (2000) 22 Cal.4th 430
| Jacobs v. State Bar
| (1977) 20 Cal.3d 191
|
i Konigsberg v. State Bar of California
| (1957) 353 U.S. 252 cccssecsssnsesssssssessesactnsonenneanesnncessteunsstieensnssnaesiensssesnsesessna 2
| Lee v. Swansboro Country Property Owners Ass'n
(2007) 151 Cal. App.4th 575 ....ccesecsssssenessesesnsenenesneeserescsesssenssnneerecasscsessesasssecsnesecenenene 8
aka
Ro NM S& 6
15
| Richards y. Superior Court
16 | (1968) 258 Cal.App.2d 635
|
\7 || Rosenthal y. Justices of the Supreme Court of California
is | (9th Cir, 1990) 910 F.2d S61 o..eecseccessesessecneecesncenesecaneonnnnsnensenesssseceenseessanuanseysassesecenensenee 2
|| Saleeby v. State Bar
19] (1985) 39 Cal.3d 547
20 | Singer v. Superior Court
21 | (1960) 54 Cal.2d 318.
22 |] Solin v. O’Melvey & Myers
(2001) 89 Cal.App.4th 451 .. assnnosesondseweesiakio/asinghieni wisantvensobddh ata ses sensancpatpuennenene T
2.
3 | State Comp. Ins. Fund v. Superior Court
4 (2001) 91 Cal. App.4th 1080 v.sccscssssssssssnsessstsaneuetiesssseuaseensesneesatsnnennsssnesssssensees O
25 || Valley Bank of Nevada v. Superior Court
(1975) 15 Cal. 3d 652. cesccsesascsasssessessesnsesnssenstsesinnseteeetniseintunssianeietiesssnsesnnese 5
26
White v. Davis
27 (1975) 13 Cal.3d 757
28
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Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-301118woe WV AH FB WwW YD
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2 SERB BOKRRk SF Seri_aanraoanes
Statutes
Business & Professions Code
§ 6001...
§ 6054...
UMAANN
Code of Civil Procedure
§ 1987.1 1,3,
§ 1987.1(a)...
§ 2017.010
§ 2017.020(a)..
§ 2019(b)(1)
§ 2019.030(a)..
Evididence Code
§ 1040(b)(1)
§ 1040(b)(2)
Anan
Government Code
Rules of Court
rule 9.12... ds belebelecedlstaded otal taal nat shehab
Rules of Procedure of State Bar
tule 5.111
tule 5.151
rule 5.155
tule 5.61 ..
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Constitutional Provisions
California Constitution
art. I, §1.,
art. VI, §9
iii
Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-301118i TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD
PLEASE TAKE NOTICE that on January 3, 2018, at 2:00 p.m., or as soon thereafter as
the matter may be heard in Department 204 of the above-mentioned court located at 400
McAllister Street, California, 94105, non-party witness the State Bar of California moves this
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5 || Court for an order, staying and quashing the deposition notice and, in the interest of judicial
6 ]] economy, issuing a protective order to any future subpoena served on the State Bar.
7 This motion to stay and quash the deposition notice of a non-party and the request for
8 |] protective order is based upon the memorandum of points and authorities and the supporting
9 i declaration filed herewith, and any additional briefing required by this Court or filed in reply, as
10 |] well as the arguments of counsel at a hearing, and any other record deemed appropriate by this
11 Court.
12 Pursuant to the Local Rule of the Probate Court:
13 1) The Probate Department adopts CRC 3.1308(a) (1) as the tentative ruling procedure
14 in probate law and motion and discovery matters.
15 2) Parties may obtain a tentative ruling issued by the Probate Department by telephoning
16 (415) 551-4000. Tentative rulings are generally available by 3:00 p.m. the day before
the hearing. A tentative ruling that does not become available until after 3:00 p.m. is a
17 late tentative ruling. A late tentative ruling will indicate that the ruling is late. Ifa
tentative ruling is late, the parties must appear unless all parties agree to submit to a
18 late tentative ruling, in which case the Court will adopt the late tentative ruling.
7 3) Unless an appearance is required, any party contesting the tentative ruling must notify
20 opposing counsel and advise the Court by calling the Probate Department courtroom
clerk at (415) 551-3702 no later than 4:00 p.m. the day before the hearing.
21
22 || Dated: November 21, 2017 Respectfully submitted,
OFFICE OF GENERAL COUNSEL
23 THE STATE BAR OF CALIFORNIA
By: Glen
6 PAUL A. BERNARDINO
ASSISTANT GENERAL COUNSEL
Attorneys for Non-Party Witness
28 THE STATE BAR OF CALIFORNIA
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Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No, PTR-17-301118Coe YN DA WH B&B WHR
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
On November 8, 2017, Lori R. Wallerstein, an investigator of the State Bar of California
(“State Bar”) and a non-party in this case, was defectively served by Drexel A. Bradshaw
through his attorney David W. Baer to a deposition. First, the deposition notice is not
accompanied by a signed proof of service. Second, the deposition notice fails to describe “the
matters upon which the witness is to be examined.” On that basis alone, the deposition notice
should be quashed.
In addition to these procedural defects, the intrusiveness of the deposition of a State Bar
investigator, while Mr. Bradshaw’s disciplinary action is ongoing, may be designed to
circumvent State Bar Rules and cause this Court to intrude upon the exclusive jurisdiction of the
California Supreme Court over attorney discipline, Indeed, the intrusiveness of the deposition
outweighs the likelihood that the information sought will lead to discovery of admissible
evidence. On these bases, the deposition notice should be barred at this time.
Finally, the State Bar requests that any future deposition of State Bar employee in this
probate case be subject to a protective order as proposed herein,
Il, THE DEFECTIVE NOTICE OF APPEARANCE FOR DEPOSITION OF A NON-
PARTY SHOULD BE QUASHED
Code of Civil Procedure, section 1987.1 provides that upon motion by the witness, the
court may “make an order quashing the subpoena entirely [or] modifying it... upon such terms
or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., §
1987.1.) Here, the deposition notice does not contain a signed proof of personal service. (See
Declaration of Bernardino (“Decl.”), Exh. A, at p. 2; see also Code Civ. Proc., § 1987, et seq.:
Gov. Code, § 68097.1 [subpoenaing public employees]'.) Also, the deposition notice does not
contain any description of “the matters upon which the witness is to be examined,” although the
deponent is named as not a natural person. (See Decl., Exh. A, at p. 1.) Because Mr. Baer has
not stated—at all-the matters upon which the non-party witness is to be cxamincd in a deposition,
} Although the box was marked that $275 was tendered, the proof of service is unsigned,
and the State Bar does not appear to have that check in its possession. (See Decl., 3.)
1
‘Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-301 118he seeks information so broad that it is not reasonably calculated to lead to discovery of relevant
or admissible evidence, and, necessarily includes information precluded from disclosure by law.
Accordingly, the State Bar requests this Court to quash the deposition notice in its entirety.
Iff. THE INSTRUSIVENESS OF THE DEPOSITION TO AN ONGOING
DISCIPLINARY MATTER FOR THE SUPREME COURT RISKS THE
CIRCUMVENTION OF STATE BAR RULES
The Supreme Court has absolute and exclusive jurisdiction regarding attorney discipline,
including suspension and disbarment. (Saleeby v, State Bar (1985) 39 Cal.3d 547, 557-558.) Its
power is plenary. (Konigsberg v. State Bar of California (1957) 353 U.S. 252, 254-258.) In that
light, the State Bar of California proceeds as the administrative arm of the Supreme Court. (Jn re
Attorney Discipline System (1998) 19 Cal.4th 582, 600; Jacobs v. State Bar (1977) 20 Cal.3d
191, 196; Emslie v. State Bar (1974) 11 Cal.3d 210, 224; Rosenthal v. Justices of the Supreme
Court of California (9th Cir. 1990) 910 F.2d 561, 566, cert. den. (1991) 498 U.S. 1087.) And,
the State Bar is a constitutional entity, an integral part of the judicial function. (in re Rose
(2000) 22 Cal.4th 430, 438; see Cal. Const., art. VI, §9; Bus. & Prof. Code, § 6001.)
The State Bar Court provides the trial and appellate proceedings designed to generate a
disciplinary recommendation to the Supreme Court. (Rules of Court, rule 9.12; Rules of Proc. of
State Bar, rule 5.111, rule 5.151, rule 5.155; see In re Rose (2000) 22 Cal.4th at p. 442.) Because
the State Bar Court assists the Supreme Court, faithful compliance with the State Bar rules
| should be followed by all litigants in ali courts”, non-compliance would interfere with the
Supreme Court’s exclusive jurisdiction.
The State Bar has an ongoing disciplinary action against Mr. Bradshaw which relates to
this probate case. Under rule 5.61 of the Rules of Procedure of the State Bar, “no party may... .
compel another party to testify at a deposition.” (See Decl. at Exh. B.) Because Bradshaw
would not generally be allowed to depose a State Bar employee in his disciplinary proceeding,
without leave of the State Bar Court, this Court should quash the deposition notice to forestall
? Section 6054, of the Business and Professions Code, as it applies to courts, provides:
“[O]fficials . .. of the courts of this state shall cooperate with and give reasonable assistance and
information . . . to the State Bar of California . . . in connection with any investigation or
proceeding within the jurisdiction of the State Bar of California, regarding the . . . discipline of
attorneys. ...” (1bid.)
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Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No, PTR-17-301118oe WA A RY YD KE
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any attempt by him to circumvent the State Bar Rules. If Bradshaw has a legitimate reason for
the deposition of a State Bar investigator, he should bring that motion in the State Bar Court first.
IV. THE INSTRUSIVENESS OF THE DEPOSITION OF A NON-PARTY STATE BAR
WITNESS OUTWEIGHS THE LIKELIHOOD THAT THE INFORMATION
SOUGHT WILL LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE
Section 2017.010 of the Code of Civil Procedure only permits discovery of relevant
matter which “either is itself admissible in evidence or appears reasonably calculated to lead to
the discovery of admissible evidence.” (/bid.)
Here, without any offer of proof from Mr. Baer as to how a State Bar investigator’s
testimony would not be inadmissible hearsay, he has failed to demonstrate that the deposition is
reasonably calculated to lead to the discovery of admissible evidence.
Indeed, section 1987.1 of the Code of Civil Procedure provides that: “The court shall
limit the scope of discovery if it determines that the burden [or] intrusiveness of that discovery
clearly outweighs the likelihood that the information sought will lead to the discovery of
admissible evidence.” (Ibid, emphasis added.) Section 2017.020(a) also mandates limits: “The
court shall restrict the . . . extent of use of'a discovery [deposition] if it determines either of the
following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable
from some other source that is more convenient, less burdensome, or less expensive. (2) The
selected method of discovery is unduly burdensome . . . taking into account the needs of the case,
the amount in controversy, and the importance of the issues at stake in the litigation.” (/bid.)
Here, the deposition of a State Bar investigator is unreasonably cumulative or duplicative
of the documents produced to Mr. Bradshaw in the State Bar disciplinary action—over 16,567
pages. (See Decl. 7 10.) Secondly, the discovery sought is obtainable from some other source
by interviewing the actual witnesses with actual personal knowledge, while an investigator’s
deposition would ultimately be inadmissible hearsay. Thirdly, the availability of another source
would be less burdensome to the non-party State Bar witness. Finally, in contrast, the selected
method of discovery deposition of a non-party at this stage is unduly burdensome taking into
account the needs of the probate case, because an investigator could not testify to the legal
conclusion of fraud, especially when the disciplinary proceeding has yet to be adjudicated by the
State Bar Court.
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Non-Party’s Motion Staying Deposition and Quashing Deposition NoticeCm RAH PR YH DY He
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Under these unique facts and circumstances, the burdens involved in a deposition would
clearly outweigh whatever benefits might be obtained. (Code Civ. Proc., § 2017.020(a).) Where
documents have been produced in the State Bar disciplinary action, a deposition of a State Bar
investigator would be unnecessarily cumulative where essentially the same information can be
obtained with less inconvenience to the State Bar by deposing the witness with actual personal
knowledge. (Id., § 2019.030(a).)
Moreover, because the deposition sought affects the rights of a non-party, the State Bar’s
ongoing disciplinary proceeding against Mr. Bradshaw, and absent an offer of proof entitling
him to depose a State Bar investigator, this Court should consider whether the discovery sought
can be tiered to reduce the burdens and then proceed further incrementally only as needed,
V. THE STATE BAR REQUESTS THAT ANY FUTURE DEPOSITION OF A NON-
PARTY IN THIS PROBATE CASE SHOULD BE SUBJECT TO A PROTECTIVE
ORDER
Section 2019, subdivision (b) (1), Code of Civil Procedure, provides that the trial court
may for good cause shown refuse to allow “certain matters” to be inquired into, or “may make
any other order which justice requires to protect the party or witness from annoyance,
embarrassment, or oppression.” (/bid.) This section gives the court judicial discretion in
determining what matters should not be disclosed on deposition. (See Singer v. Superior Court
(1960) 54 Cal.2d 318, 327; Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.)
In the interest of judicial economy and based on legal authority below, the State Bar
requests this Court issue a protective order in its probate case, limiting the scope of any future
examination of a non-party State Bar witness. For the reasons stated below and in order to
protect the integrity of the disciplinary proceeding for the Supreme Court as addressed above,
the State Bar respectfully proposes a protective order as follows:
No party herein may inquire of the State Bar of California, or any witness from the
State Bar, into the following areas: (1) any information relating to other investigations
that has not yet resulted in formal charges; (2) any information that would reasonably
violate rights to privacy; (3) any information relating to official information; and (4) any
information relating to attorney-work product or attorney-client privilege. Further, any
such deposition is hereby limited to questions relating to non-confidential documents
already in Drexel A. Bradshaw’s possession, arising from the October 20, 2017 charges
filed by the State Bar,
Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-301118CO em KH HA BR YW NY
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As stated in Argument III above, the State Bar has an ongoing disciplinary action against
Mr. Bradshaw, On October 20, 2017, the State Bar filed formal charges against Mr. Bradshaw in
anotice of disciplinary charges. (See Decl. {{{ 10-11.) While disciplinary investigations are no
longer confidential after formal charges are filed, any information relating to another
investigation, beyond the formal charges, remains confidential. (See Bus, & Prof. Code, §
6086.1, subd. (b).)
A. Other Investigation Is Confidential.
Communications to the State Bar relating to lawyer misconduct or competence, or any
communication related to an investigation or proceeding and testimony given in the proceeding
are required by law to remain confidential. (Bus. & Prof. Code, § 6094.) Before formal charges
are filed, all disciplinary investigation files are confidential and shall not be disclosed pursuant to
any state law, unless and until formal charges are filed against an attorney. (Bus. & Prof. Code,
§ 6086.1, subd. (b).) This statute prohibits public disclosure of any and all information that is
not part of any formal disciplinary proceedings before the State Bar Court, which encompasses
the investigation record collected prior to the filing of formal charges. A protective order, here,
would preserve the confidentiality of any other investigation pursuant to state law.
B. Right to Privacy Is Protected Under the Constitution.
Communication to the State Bar is protected by a person’s state constitutional right to
privacy. (Cal. Const., art. 1, § 1.) In White v. Davis (1975) 13 Cal.3d 757, the Supreme Court
held that a violation of the constitutional right to privacy occurs when “information properly
obtained for a specific purpose [is used] for another purpose or [disclosed] to some third party.”
(id, at p. 775.) The constitutional provision is self-executing; it confers a judicial right of action
on all Californians, (/6id.) Disclosure of this information in another litigation would violate
California’s expanded right to privacy of any witness in the investigation.
Further, the right to privacy extends to one’s confidential financial affairs, as well as to
the details of one’s personal life. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d
652, 656.) Here, information given to the State Bar by complaining witnesses are still protected
by the right to privacy that the State Bar must assert. A protective order, here, would safeguard
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the privacy of witnesses who provided information to the State Bar.
Cc. Official Information Is Privileged.
Evidence Code section 1040 confers upon the State Bar an official information privilege.
This privilege may not be waived by the action of other parties. In Chronicle Pub. Co, v.
Superior Court (1960) 54 Cal.2d 548, the Supreme Court recognized the State Bar’s compelling
interest to maintain as confidential its disciplinary files and information: “in the case of
complaints against members of the State Bar, it is essential to secure all possible information
bearing thereon, and necessarily much of the information can only be had upon the
understanding that the informant and the information will be treated as confidential.” (id. at p.
570.) Complaints to the State Bar not resulting in disciplinary action are privileged, where
confidentiality furthered the State Bar’s interest in encouraging citizens to provide information
and attorneys to cooperate in a disciplinary investigation, and the attorneys’ own interests in
avoiding publication of unfounded complaints weighed against disclosure. (See id. at pp. 571-
571; Bus. & Prof. Code § 6068, subds. (a), (i).)
The State Bar’s official information privilege is absolute because the statutory provisions
within the Business and Professions Code prohibit disclosure. (See Evid. Code, § 1040, subd.
(b)(1).) Where records are prohibited from disclosure by law, absolute official information
privilege attaches and trial court lacks discretion to order disclosure in response to subpoena.
(Richards v. Superior Court (1968) 258 Cal.App.2d 635, 639.) Alternatively, the State Bar also
holds a conditional privilege to refuse to disclose official information if preserving
confidentiality outweighs the necessity of disclosure in the interest of justice. (Evid. Code, §
1040, subd. (b)(2).) A protective order, here, would preserve the confidentiality of any other
investigation pursuant to official information privilege.
Dd. Attorney Work Product Is Privileged.
The attorney work product rule creates for the attorney a qualified privilege against
discovery of general work product and an absolute privilege against disclosure of writings,
containing the attorney’s impressions, conclusions, opinions, or legal theories. (See State Comp.
Ins. Fund y. Superior Court (2001) 91 Cal.App.4th 1080, 1091 [employee properly declined to
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Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-301118Com ND HW B® BW NY eS
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Preview
ELECTRONICALLY VANESSA L. HOLTON (111613) aoe ee General Counsel County of San Francisco ROBERT G. RETANA (148677) 11/21/20 17 Deputy General Counsel jerk of ene Our PAUL A. BERNARDINO (164654) To eeeual ele Assistant General Counsel OFFICE OF GENERAL COUNSEL THE STATE BAR OF CALIFORNIA : 180 Howard Street DEPARTMENT : 204 San Francisco, CA 94105-1639 Hearing : 01/03/2018 2:00 pm Tel: (415) 538-2012 Fax: (415) 538-2321 Email: paul.bernardino@calbar.ca.gov Attorneys for Non-Party Witness the State Bar of California Exempé from Filing Fees Pursuant to Government Code Section 6103 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO IN RE: Case No, PTR-17-301118 . Related Case No. PCN 13-297063 THE GOSEY RECOVABLE LIVING Related Case No. PTR 14-297499 TRUST DATED JANUARY 3, 2007 NON-PARTY WITNESS THE STATE BAR OF CALIFORNIA’S NOTICE OF MOTION AND MOTION STAYING AND QUASHING THE DEPOSITION NOTICE; REQUESTING A PROTECTIVE ORDER; AND MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION iN SUPPORT THEREOF DATE: January 3, 2018 [approved by Rosie] TIME: 2:00 p.m. DEPT: 204 JUDGE: The Honorable John K. Stewart J Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-30111828 oO 6B NY AH Rw Ww | | i | | | Ti. IV. TABLE OF CONTENTS INTRODUCTION .. THE DEFECTIVE NOTICE OF APPEARANCE FOR DEPOSITION OF A NON-PARTY SHOULD BE QUASHED .,.....sssssssssscssesssesessnsesscossseceussesnsasscestesersessnseres 1 THE INSTRUSIVENESS OF THE DEPOSITION TO AN ONGOING DISCIPLINARY MATTER FOR THE SUPREME COURT RISKS THE CIRCUMVENTION OF STATE BAR RULES.....c.ccsssesssssssessssssscsanessnsenneepeccsacennequecanesacsesetesessenesssesusesscavecarqnessnseyasteneersnecten 2 THE INSTRUSIVENESS OF THE DEPOSITION OF A NON-PARTY STATE BAR WITNESS OUTWEIGHS THE LIKELIHOOD THAT THE INFORMATION SOUGHT WILL LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE ,.....scssesssscsecrssescseensnsce 3 THE STATE BAR REQUESTS THAT ANY FUTURE DEPOSITION OF A NON- PARTY IN THIS PROBATE CASE SHOULD BE SUBJECT TO A PROTECTIVE ORDER ..essocssssecssssscssecssnceesaseessecesesssessneceavetacarecssvenseneeesossnsavorsenessestenesscessoseneesnsuseseanecesees 4 A. Other Investigation Is Confidential... .cecscesecsscesesseeeeescaresssenaneeaceneesennnenees 5 B. Right to Privacy Is Protected Under the Constitution, ......sssessseceecseessnmssnseneecsen 5 Cc. Official Information Is Privileged. 0.0... cessseceeeeesecetesesarsenearenesnenacanceneenneeneeneeee 6 Dz. Attorney Work Product Is Privileged. ........ccsscssessssssesssssnessesssessssserseeneeseneseeessee 6 E. Attorney-Client Information Is Privileged. .... THE STATE BAR HAS MADE A GOOD FAITH EFFORT TO REACH AN INFORMAL RESOLUTION ON A PROTECTIVE ORDER .......csscecscesssesssecsserosessneesser 7 THE STATE BAR HAS TIMELY MADE AND SERVED THIS MOTION TO STAY AND QUASH THE DEPOSITION AND TO ISSUE A PROTECTIVE ORDER.......:.7 CONCLUSION. ....-sscsssssorssessensssnceesensoustiessiersuesssesnssenesanenyeantass nanesnosenreanenanseasernaentven sees & i Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-301118TABLE OF AUTHORITIES bo Cases Chronicle Pub. Co. v, Superior Court (1960) 54 Cal.2d 548 . Emslie v. State Bar (1974) 11 Cal.3d 210 Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709 sescssosssnssssesesneesnetseeneeneeseeseettnsestesteatenneiseneesnsent 4 In re Attorney Discipline System (1998) 19 Cal 4th 582 .recesssssssseeccsssscssessssecesnsneessentesestonasesganasssnanestsenenteesonsresesesensieseessstty 2 oe I AH Fw NY | In re Rose 1 (2000) 22 Cal.4th 430 | Jacobs v. State Bar | (1977) 20 Cal.3d 191 | i Konigsberg v. State Bar of California | (1957) 353 U.S. 252 cccssecsssnsesssssssessesactnsonenneanesnncessteunsstieensnssnaesiensssesnsesessna 2 | Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal. App.4th 575 ....ccesecsssssenessesesnsenenesneeserescsesssenssnneerecasscsessesasssecsnesecenenene 8 aka Ro NM S& 6 15 | Richards y. Superior Court 16 | (1968) 258 Cal.App.2d 635 | \7 || Rosenthal y. Justices of the Supreme Court of California is | (9th Cir, 1990) 910 F.2d S61 o..eecseccessesessecneecesncenesecaneonnnnsnensenesssseceenseessanuanseysassesecenensenee 2 || Saleeby v. State Bar 19] (1985) 39 Cal.3d 547 20 | Singer v. Superior Court 21 | (1960) 54 Cal.2d 318. 22 |] Solin v. O’Melvey & Myers (2001) 89 Cal.App.4th 451 .. assnnosesondseweesiakio/asinghieni wisantvensobddh ata ses sensancpatpuennenene T 2. 3 | State Comp. Ins. Fund v. Superior Court 4 (2001) 91 Cal. App.4th 1080 v.sccscssssssssssnsessstsaneuetiesssseuaseensesneesatsnnennsssnesssssensees O 25 || Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652. cesccsesascsasssessessesnsesnssenstsesinnseteeetniseintunssianeietiesssnsesnnese 5 26 White v. Davis 27 (1975) 13 Cal.3d 757 28 ii Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-301118woe WV AH FB WwW YD yb oN NN YN NN WY be i = 2 SERB BOKRRk SF Seri_aanraoanes Statutes Business & Professions Code § 6001... § 6054... UMAANN Code of Civil Procedure § 1987.1 1,3, § 1987.1(a)... § 2017.010 § 2017.020(a).. § 2019(b)(1) § 2019.030(a).. Evididence Code § 1040(b)(1) § 1040(b)(2) Anan Government Code Rules of Court rule 9.12... ds belebelecedlstaded otal taal nat shehab Rules of Procedure of State Bar tule 5.111 tule 5.151 rule 5.155 tule 5.61 .. NNNN Constitutional Provisions California Constitution art. I, §1., art. VI, §9 iii Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case NO. PTR-17-301118i TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD PLEASE TAKE NOTICE that on January 3, 2018, at 2:00 p.m., or as soon thereafter as the matter may be heard in Department 204 of the above-mentioned court located at 400 McAllister Street, California, 94105, non-party witness the State Bar of California moves this 2 3 4 5 || Court for an order, staying and quashing the deposition notice and, in the interest of judicial 6 ]] economy, issuing a protective order to any future subpoena served on the State Bar. 7 This motion to stay and quash the deposition notice of a non-party and the request for 8 |] protective order is based upon the memorandum of points and authorities and the supporting 9 i declaration filed herewith, and any additional briefing required by this Court or filed in reply, as 10 |] well as the arguments of counsel at a hearing, and any other record deemed appropriate by this 11 Court. 12 Pursuant to the Local Rule of the Probate Court: 13 1) The Probate Department adopts CRC 3.1308(a) (1) as the tentative ruling procedure 14 in probate law and motion and discovery matters. 15 2) Parties may obtain a tentative ruling issued by the Probate Department by telephoning 16 (415) 551-4000. Tentative rulings are generally available by 3:00 p.m. the day before the hearing. A tentative ruling that does not become available until after 3:00 p.m. is a 17 late tentative ruling. A late tentative ruling will indicate that the ruling is late. Ifa tentative ruling is late, the parties must appear unless all parties agree to submit to a 18 late tentative ruling, in which case the Court will adopt the late tentative ruling. 7 3) Unless an appearance is required, any party contesting the tentative ruling must notify 20 opposing counsel and advise the Court by calling the Probate Department courtroom clerk at (415) 551-3702 no later than 4:00 p.m. the day before the hearing. 21 22 || Dated: November 21, 2017 Respectfully submitted, OFFICE OF GENERAL COUNSEL 23 THE STATE BAR OF CALIFORNIA By: Glen 6 PAUL A. BERNARDINO ASSISTANT GENERAL COUNSEL Attorneys for Non-Party Witness 28 THE STATE BAR OF CALIFORNIA 1 Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No, PTR-17-301118Coe YN DA WH B&B WHR 10 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On November 8, 2017, Lori R. Wallerstein, an investigator of the State Bar of California (“State Bar”) and a non-party in this case, was defectively served by Drexel A. Bradshaw through his attorney David W. Baer to a deposition. First, the deposition notice is not accompanied by a signed proof of service. Second, the deposition notice fails to describe “the matters upon which the witness is to be examined.” On that basis alone, the deposition notice should be quashed. In addition to these procedural defects, the intrusiveness of the deposition of a State Bar investigator, while Mr. Bradshaw’s disciplinary action is ongoing, may be designed to circumvent State Bar Rules and cause this Court to intrude upon the exclusive jurisdiction of the California Supreme Court over attorney discipline, Indeed, the intrusiveness of the deposition outweighs the likelihood that the information sought will lead to discovery of admissible evidence. On these bases, the deposition notice should be barred at this time. Finally, the State Bar requests that any future deposition of State Bar employee in this probate case be subject to a protective order as proposed herein, Il, THE DEFECTIVE NOTICE OF APPEARANCE FOR DEPOSITION OF A NON- PARTY SHOULD BE QUASHED Code of Civil Procedure, section 1987.1 provides that upon motion by the witness, the court may “make an order quashing the subpoena entirely [or] modifying it... upon such terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.) Here, the deposition notice does not contain a signed proof of personal service. (See Declaration of Bernardino (“Decl.”), Exh. A, at p. 2; see also Code Civ. Proc., § 1987, et seq.: Gov. Code, § 68097.1 [subpoenaing public employees]'.) Also, the deposition notice does not contain any description of “the matters upon which the witness is to be examined,” although the deponent is named as not a natural person. (See Decl., Exh. A, at p. 1.) Because Mr. Baer has not stated—at all-the matters upon which the non-party witness is to be cxamincd in a deposition, } Although the box was marked that $275 was tendered, the proof of service is unsigned, and the State Bar does not appear to have that check in its possession. (See Decl., 3.) 1 ‘Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-301 118he seeks information so broad that it is not reasonably calculated to lead to discovery of relevant or admissible evidence, and, necessarily includes information precluded from disclosure by law. Accordingly, the State Bar requests this Court to quash the deposition notice in its entirety. Iff. THE INSTRUSIVENESS OF THE DEPOSITION TO AN ONGOING DISCIPLINARY MATTER FOR THE SUPREME COURT RISKS THE CIRCUMVENTION OF STATE BAR RULES The Supreme Court has absolute and exclusive jurisdiction regarding attorney discipline, including suspension and disbarment. (Saleeby v, State Bar (1985) 39 Cal.3d 547, 557-558.) Its power is plenary. (Konigsberg v. State Bar of California (1957) 353 U.S. 252, 254-258.) In that light, the State Bar of California proceeds as the administrative arm of the Supreme Court. (Jn re Attorney Discipline System (1998) 19 Cal.4th 582, 600; Jacobs v. State Bar (1977) 20 Cal.3d 191, 196; Emslie v. State Bar (1974) 11 Cal.3d 210, 224; Rosenthal v. Justices of the Supreme Court of California (9th Cir. 1990) 910 F.2d 561, 566, cert. den. (1991) 498 U.S. 1087.) And, the State Bar is a constitutional entity, an integral part of the judicial function. (in re Rose (2000) 22 Cal.4th 430, 438; see Cal. Const., art. VI, §9; Bus. & Prof. Code, § 6001.) The State Bar Court provides the trial and appellate proceedings designed to generate a disciplinary recommendation to the Supreme Court. (Rules of Court, rule 9.12; Rules of Proc. of State Bar, rule 5.111, rule 5.151, rule 5.155; see In re Rose (2000) 22 Cal.4th at p. 442.) Because the State Bar Court assists the Supreme Court, faithful compliance with the State Bar rules | should be followed by all litigants in ali courts”, non-compliance would interfere with the Supreme Court’s exclusive jurisdiction. The State Bar has an ongoing disciplinary action against Mr. Bradshaw which relates to this probate case. Under rule 5.61 of the Rules of Procedure of the State Bar, “no party may... . compel another party to testify at a deposition.” (See Decl. at Exh. B.) Because Bradshaw would not generally be allowed to depose a State Bar employee in his disciplinary proceeding, without leave of the State Bar Court, this Court should quash the deposition notice to forestall ? Section 6054, of the Business and Professions Code, as it applies to courts, provides: “[O]fficials . .. of the courts of this state shall cooperate with and give reasonable assistance and information . . . to the State Bar of California . . . in connection with any investigation or proceeding within the jurisdiction of the State Bar of California, regarding the . . . discipline of attorneys. ...” (1bid.) 2 Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No, PTR-17-301118oe WA A RY YD KE YN NNN NN NN ee — eo eUA ARES SF FSF Ce ODWRFGBE BETS any attempt by him to circumvent the State Bar Rules. If Bradshaw has a legitimate reason for the deposition of a State Bar investigator, he should bring that motion in the State Bar Court first. IV. THE INSTRUSIVENESS OF THE DEPOSITION OF A NON-PARTY STATE BAR WITNESS OUTWEIGHS THE LIKELIHOOD THAT THE INFORMATION SOUGHT WILL LEAD TO DISCOVERY OF ADMISSIBLE EVIDENCE Section 2017.010 of the Code of Civil Procedure only permits discovery of relevant matter which “either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (/bid.) Here, without any offer of proof from Mr. Baer as to how a State Bar investigator’s testimony would not be inadmissible hearsay, he has failed to demonstrate that the deposition is reasonably calculated to lead to the discovery of admissible evidence. Indeed, section 1987.1 of the Code of Civil Procedure provides that: “The court shall limit the scope of discovery if it determines that the burden [or] intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Ibid, emphasis added.) Section 2017.020(a) also mandates limits: “The court shall restrict the . . . extent of use of'a discovery [deposition] if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome . . . taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (/bid.) Here, the deposition of a State Bar investigator is unreasonably cumulative or duplicative of the documents produced to Mr. Bradshaw in the State Bar disciplinary action—over 16,567 pages. (See Decl. 7 10.) Secondly, the discovery sought is obtainable from some other source by interviewing the actual witnesses with actual personal knowledge, while an investigator’s deposition would ultimately be inadmissible hearsay. Thirdly, the availability of another source would be less burdensome to the non-party State Bar witness. Finally, in contrast, the selected method of discovery deposition of a non-party at this stage is unduly burdensome taking into account the needs of the probate case, because an investigator could not testify to the legal conclusion of fraud, especially when the disciplinary proceeding has yet to be adjudicated by the State Bar Court. Hit Case No. PTR-17-303 118 Non-Party’s Motion Staying Deposition and Quashing Deposition NoticeCm RAH PR YH DY He Se WAakt Bots Under these unique facts and circumstances, the burdens involved in a deposition would clearly outweigh whatever benefits might be obtained. (Code Civ. Proc., § 2017.020(a).) Where documents have been produced in the State Bar disciplinary action, a deposition of a State Bar investigator would be unnecessarily cumulative where essentially the same information can be obtained with less inconvenience to the State Bar by deposing the witness with actual personal knowledge. (Id., § 2019.030(a).) Moreover, because the deposition sought affects the rights of a non-party, the State Bar’s ongoing disciplinary proceeding against Mr. Bradshaw, and absent an offer of proof entitling him to depose a State Bar investigator, this Court should consider whether the discovery sought can be tiered to reduce the burdens and then proceed further incrementally only as needed, V. THE STATE BAR REQUESTS THAT ANY FUTURE DEPOSITION OF A NON- PARTY IN THIS PROBATE CASE SHOULD BE SUBJECT TO A PROTECTIVE ORDER Section 2019, subdivision (b) (1), Code of Civil Procedure, provides that the trial court may for good cause shown refuse to allow “certain matters” to be inquired into, or “may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.” (/bid.) This section gives the court judicial discretion in determining what matters should not be disclosed on deposition. (See Singer v. Superior Court (1960) 54 Cal.2d 318, 327; Heffron v. Los Angeles Transit Lines (1959) 170 Cal.App.2d 709.) In the interest of judicial economy and based on legal authority below, the State Bar requests this Court issue a protective order in its probate case, limiting the scope of any future examination of a non-party State Bar witness. For the reasons stated below and in order to protect the integrity of the disciplinary proceeding for the Supreme Court as addressed above, the State Bar respectfully proposes a protective order as follows: No party herein may inquire of the State Bar of California, or any witness from the State Bar, into the following areas: (1) any information relating to other investigations that has not yet resulted in formal charges; (2) any information that would reasonably violate rights to privacy; (3) any information relating to official information; and (4) any information relating to attorney-work product or attorney-client privilege. Further, any such deposition is hereby limited to questions relating to non-confidential documents already in Drexel A. Bradshaw’s possession, arising from the October 20, 2017 charges filed by the State Bar, Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-301118CO em KH HA BR YW NY RBoN YM YM NY RY NY YM eH me tit oe oe e2AUOAHh BOSS Seri AR2aBEBSHR AS As stated in Argument III above, the State Bar has an ongoing disciplinary action against Mr. Bradshaw, On October 20, 2017, the State Bar filed formal charges against Mr. Bradshaw in anotice of disciplinary charges. (See Decl. {{{ 10-11.) While disciplinary investigations are no longer confidential after formal charges are filed, any information relating to another investigation, beyond the formal charges, remains confidential. (See Bus, & Prof. Code, § 6086.1, subd. (b).) A. Other Investigation Is Confidential. Communications to the State Bar relating to lawyer misconduct or competence, or any communication related to an investigation or proceeding and testimony given in the proceeding are required by law to remain confidential. (Bus. & Prof. Code, § 6094.) Before formal charges are filed, all disciplinary investigation files are confidential and shall not be disclosed pursuant to any state law, unless and until formal charges are filed against an attorney. (Bus. & Prof. Code, § 6086.1, subd. (b).) This statute prohibits public disclosure of any and all information that is not part of any formal disciplinary proceedings before the State Bar Court, which encompasses the investigation record collected prior to the filing of formal charges. A protective order, here, would preserve the confidentiality of any other investigation pursuant to state law. B. Right to Privacy Is Protected Under the Constitution. Communication to the State Bar is protected by a person’s state constitutional right to privacy. (Cal. Const., art. 1, § 1.) In White v. Davis (1975) 13 Cal.3d 757, the Supreme Court held that a violation of the constitutional right to privacy occurs when “information properly obtained for a specific purpose [is used] for another purpose or [disclosed] to some third party.” (id, at p. 775.) The constitutional provision is self-executing; it confers a judicial right of action on all Californians, (/6id.) Disclosure of this information in another litigation would violate California’s expanded right to privacy of any witness in the investigation. Further, the right to privacy extends to one’s confidential financial affairs, as well as to the details of one’s personal life. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656.) Here, information given to the State Bar by complaining witnesses are still protected by the right to privacy that the State Bar must assert. A protective order, here, would safeguard 3 Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-3011182 OY DA Rw DL yeN BW NY YN NY KY De em — e227 Anu EK TF GE RABARESBHBRAOS the privacy of witnesses who provided information to the State Bar. Cc. Official Information Is Privileged. Evidence Code section 1040 confers upon the State Bar an official information privilege. This privilege may not be waived by the action of other parties. In Chronicle Pub. Co, v. Superior Court (1960) 54 Cal.2d 548, the Supreme Court recognized the State Bar’s compelling interest to maintain as confidential its disciplinary files and information: “in the case of complaints against members of the State Bar, it is essential to secure all possible information bearing thereon, and necessarily much of the information can only be had upon the understanding that the informant and the information will be treated as confidential.” (id. at p. 570.) Complaints to the State Bar not resulting in disciplinary action are privileged, where confidentiality furthered the State Bar’s interest in encouraging citizens to provide information and attorneys to cooperate in a disciplinary investigation, and the attorneys’ own interests in avoiding publication of unfounded complaints weighed against disclosure. (See id. at pp. 571- 571; Bus. & Prof. Code § 6068, subds. (a), (i).) The State Bar’s official information privilege is absolute because the statutory provisions within the Business and Professions Code prohibit disclosure. (See Evid. Code, § 1040, subd. (b)(1).) Where records are prohibited from disclosure by law, absolute official information privilege attaches and trial court lacks discretion to order disclosure in response to subpoena. (Richards v. Superior Court (1968) 258 Cal.App.2d 635, 639.) Alternatively, the State Bar also holds a conditional privilege to refuse to disclose official information if preserving confidentiality outweighs the necessity of disclosure in the interest of justice. (Evid. Code, § 1040, subd. (b)(2).) A protective order, here, would preserve the confidentiality of any other investigation pursuant to official information privilege. Dd. Attorney Work Product Is Privileged. The attorney work product rule creates for the attorney a qualified privilege against discovery of general work product and an absolute privilege against disclosure of writings, containing the attorney’s impressions, conclusions, opinions, or legal theories. (See State Comp. Ins. Fund y. Superior Court (2001) 91 Cal.App.4th 1080, 1091 [employee properly declined to 6 Non-Party’s Motion Staying Deposition and Quashing Deposition Notice Case No. PTR-17-301118Com ND HW B® BW NY eS ptm teh oN AA ROH HS by N YN WN N 8B ®