Preview
1 DOWNEY BRAND LLP
WILLIAM R. WARNE (Bar No. 141280)
2 bwarne@downeybrand.com
CASSANDRA M. FERRANNINI (Bar No. 204277)
3 cferrannini@downeybrand.com
JENNIFER L. WILLIAMS (Bar No. 261037)
4 jwilliams@downeybrand.com
621 Capitol Mall, 18th Floor
5 Sacramento, California 95814
Telephone: 916.444.1000
6 Facsimile: 916.444.2100
7 Attorneys for Defendants
PALMER CAPITAL, INC.
8 and WILLIAM S. PALMER
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF PLACER
12
DOWNEY BRAND LLP
13 RICHARD E. RYAN, a natural person, Case No. S-CV-0046844
14 Plaintiff, DEFENDANTS’ MOTION IN LIMINE
NO. 2 TO EXCLUDE AUDIO
15 v. RECORDINGS
16 PALMER CAPITAL, INC., a California Trial Date: April 15, 2024
corporation; WILLIAM S. PALMER, a Time: 8:30 AM
17 natural person; and DOES 1 through 10, Dept.: TBD
inclusive,
18 Action Filed: June 10, 2021
Defendants. FAC Filed: October 29, 2021
19 Trial Date: April 15, 2024
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4106913 1
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 I. INTRODUCTION
2 Defendants Palmer Capital, Inc. and William Palmer (“Defendants”) hereby move in
3 limine to preclude Plaintiff Richard Ryan (“Ryan”) from introducing or referring to six (6) audio
4 recordings of private conversations exchanged with Bill Palmer on November 12, 2020. The basis
5 for excluding the audio recordings is twofold. First, the recordings are subject to the evidentiary
6 sanctions issued by the court on July 6, 2023. Second, California law provides that any “recording
7 [of] a confidential communication” without the consent of all parties is “not admissible in any
8 judicial, administrative, legislative, or other proceeding.” (Penal Code, § 632, subd. (a) [emphasis
9 added].) Defendants never consented to the recordings or their removal from PCI’s premises.
10 II. BACKGROUND
11 A. Discovery
12 On July 18, 2022, Defendants served 62 document requests to Ryan. (Cassandra
DOWNEY BRAND LLP
13 Ferrannini Decl., p. 1, ¶ 2 & attached Exh. 1, Requests for Production, Set One.) The requests
14 broadly addressed not only Ryan’s allegations in the complaint, but also PCI’s allegations in the
15 cross-complaint. (See generally Exh. 1, Requests for Production, Set One.)
16 As relevant here, the requests asked Ryan to produce all “documents” and
17 “communications” regarding “Defendants” from November 17, 2015, to the present (No. 10),
18 Ryan’s performance between November 17, 2015, and November 17, 2020 (No. 7), his
19 termination (No. 4), and the allegations in his complaint (No. 35). (Id. at pp. 8:15-17, 8:6-8, 7:23-
20 25, 22:26-28.)
21 “Documents” expressly included “audiotapes” and “electronic records,” with “audio files”
22 and “video files” to be produced in their native format. (Id. at pp. 2:20-3:10.) “Communications”
23 meant “any oral, written or electronic transmission of information,” including “conversations,”
24 “telephone calls,” and “messages.” (Id. at p. 3:11-27.)
25 B. First Motion to Compel
26 After multiple extensions, Ryan responded to the document requests on September 16,
27 2022. (Cassandra Ferrannini Decl., p. 1, ¶ 2 & attached Exh. 2, Responses to Requests for
28 Production, Set One.) Ryan agreed to produce documents responsive to Request Nos. 1-10, 12-16,
4106913 2
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 27-39, 41-44, and 46-62. (See generally Exh. 2, Responses to Requests for Production, Set One.)
2 However, no documents or communications were produced. (Cassandra Ferrannini Decl., p. 1, ¶
3 2.)
4 The following month, Defendants moved to compel production, supplemental written
5 responses, and a privilege log. Ryan did not oppose the motion, which was granted on November
6 29, 2022. (Request for Judicial Notice, p. 2, ¶ 7 & attached Exh. G, Minute Order, p. 2.) The
7 order required Ryan to provide responsive documents within 10 days of notice of entry of the
8 order. (Exh. G, Minute Order, p. 2.)
9 C. Second Motion to Compel
10 When Ryan did not produce any further responses or documents within 10 days as ordered,
11 Defendants filed another motion to compel compliance and recover sanctions. Again, Ryan did
12 not oppose the motion, which was granted on March 7, 2023. (Request for Judicial Notice, p. 2, ¶
DOWNEY BRAND LLP
13 8 & attached Exh. H, Minute Order, p. 2.)
14 Ryan eventually produced 12,616 pages of documents in response to the second motion.
15 (Cassandra Ferrannini Decl., p. 2, ¶ 7.) But notably absent from the production were any audio
16 recordings. (Ibid.)
17 D. Deposition Testimony (May 15, 2023)
18 Defendants noticed Ryan’s deposition for May 15, 2023, a date that was mutually agreed
19 upon. (Id. at p. 2, ¶ 8.) The deposition notice contained the same document requests as the prior
20 written discovery plus one additional request (not relevant here). (Compare Exh. 1, Requests for
21 Production, Set One, pp. 7-15, with Exh. 3, Ryan Depo. Notice, pp. 4-12.)
22 On May 15, 2023, Defendants took Ryan’s deposition. (Cassandra Ferrannini Decl., p. 3, ¶
23 9.) When asked what he had done to prepare, Ryan indicated he listened to six audio recordings
24 just that morning on his phone. (Exh. 5, Ryan Depo. Transcript, Vol. 1, p. 153:8-14.) When
25 asked why those recordings had not been produced, Ryan claimed they had been forwarded to his
26 counsel. (Id. at p. 153:15-20.) But they were never produced. (Cassandra Ferrannini Decl., p. 3,
27 ¶ 9.)
28 / / /
4106913 3
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 E. Third Motion for Sanctions
2 The day after the deposition, on May 16, 2023, Defendants met and conferred about the
3 failure to produce documents and things requested in the deposition notice, as well as the prior
4 written discovery. Defendants demanded that Ryan immediately produce all documents and
5 things he was withholding by the end of the week. He did not, prompting Defendants to file yet
6 another motion for sanctions.
7 Defendants moved for an order imposing an evidentiary sanction at trial precluding Ryan
8 from using any documents or things responsive to Request for Production Nos. 1-10, 12-16, 27-
9 39, 41-44, 46-62, and 63. The court granted the motion on July 6, 2023. (Request for Judicial
10 Notice, p. 2, ¶ 10 & attached Exh. J, Minute Order, p. 2.)
11 Ryan eventually produced the six audio recordings. (Cassandra Ferrannini Decl., p. 3, ¶
12 11.)
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13 F. Deposition Testimony (June 13, 2023)
14 Defendants deposed Ryan again on June 13, 2023. (Id. at p. 3, ¶ 12.) He again testified
15 that he listened to the six audio recordings before the deposition. (Exh. 7, Ryan Depo. Transcript,
16 Vol. 2, p. 394:20-23.)
17 When asked how he had obtained copies of those voicemails, which were left on an
18 internal office system years earlier, Ryan explained that he played them while at work and
19 “recorded the relevant parts” on his personal cell phone. (Id. at p. 409:6-12.)
20 He also testified that other voicemails on that same office system were deleted; these six
21 voicemails were the only ones he saw fit to preserve. (Id. at p. 408:3-8.)
22 III. LEGAL ANALYSIS
23 A party may file a motion in limine to prevent an opposing party from using certain
24 evidence at trial. (People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds in
25 People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; FMC Corp. v. Plaisted & Cos. (1998) 61
26 Cal.App.4th 1132, 1168.)
27 In addition to excluding evidence, the court may instruct opposing counsel to avoid any
28 mention of the evidence during questioning or in argument to the jury. (Grimshal v. Ford Motor
4106913 4
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 Co. (1981) 119 Cal.App.3d 757, 793 [court instructed counsel not to mention any other car fires
2 without leave of court]; see In re Charbonneau (1974) 42 Cal.App.3d 505, 507 [attorney held in
3 contempt for violating order not to mention post-accident changes to produce design and recall of
4 products].)
5 A. The Audio Recordings are Subject to Evidentiary Sanctions Issued on July 6, 2023.
6 “The court may impose an evidence sanction by an order prohibiting any party engaging in
7 the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ.
8 Proc., § 2023.030, subd. (c); see Deeter v. Angus (1986) 179 Cal.App.3d 241, 255 [exclusion of
9 audio tape not produced in response to discovery requests].) Further, “a trial court has inherent
10 authority to preclude evidence to police an abuse of the litigation process.” (Peat, Marwick,
11 Mitchell & Co. v. Super. Ct. (1988) 200 Cal.App.3d 272, 286.)
12 This court did just that on July 6, 2023, following a series of willful discovery abuses by
DOWNEY BRAND LLP
13 Ryan. (Exh. J, Minute Order, p. 2.) Specifically, despite expressly agreeing to produce
14 documents and communications regarding Defendants and his employment, Ryan failed to do so.
15 In November 2022, the court ordered him to produce all responsive documents and
16 communications. (Exh. G, Minute Order, p. 2.) Again, he failed to do so, forcing Defendants to
17 file yet another motion to compel. That second motion was granted in March 2023 and monetary
18 sanctions were awarded. (Exh. H, Minute Order, p. 2.) Despite paying $1,780 in monetary
19 sanctions, Ryan still failed to produce responsive documents and communications, resulting in a
20 third motion. The court was well-within its discretion in granting an evidentiary sanction for
21 Ryan’s repeated discovery abuses. (See Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d
22 901, 904 [affirming sanctions order dismissing plaintiff’s action for failure to comply with a single
23 discovery order compelling compliance with document requests and interrogatories].)
24 The audio recordings were responsive to several document requests, including Request
25 Nos. 4, 7, 10, and 35 (among others). (Exh. 1, Requests for Production, Set One, 8:15-17, 8:6-8,
26 7:23-25, 22:26-28.) Per the court’s order, Ryan is precluded from using any documents or things
27 responsive to Request for Production Nos. 1-10, 12-16, 27-39, 41-44, 46-62, and 63. (Exh. J,
28 Minute Order, p. 2.) Accordingly, the court should exclude the audio recordings at trial.
4106913 5
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 B. The Audio Recordings were Illegally Obtained.
2 It is illegal under California law for any person to “intentionally and without the consent of
3 all parties to a confidential communication, eavesdrops upon or record the confidential
4 communication of another.” (Penal Code, § 632, subd. (a).) The term “confidential
5 communication” includes any communication carried on in circumstances as may reasonably
6 indicate that any party to the communication desires it to be confined to the parties. (Penal Code,
7 § 632, subd. (c).) To enforce the public policy against the secret recording of confidential
8 communications, all such recordings are inadmissible “in any judicial, administrative, legislative,
9 or other proceeding.”1 (Penal Code, § 632, subd. (d).)
10 Here, Ryan played voicemails saved on his office phone and recorded “relevant parts” onto
11 his personal cell phone. (Exh. 7, Ryan Depo. Transcript, Vol. 2, p. 409:6-12.) The messages were
12 for Ryan alone and made outside the presence of anyone else. There is no question that Bill
DOWNEY BRAND LLP
13 Palmer had a reasonable expectation of privacy with regard to these internal communications at
14 work. Ryan never advised that he intended to record the messages, and he certainly never
15 obtained Defendants’ consent to do so. (Exh. 14, Palmer Depo. Transcript, pp. 213:20-217:5; cf.
16 Gruber v. Yelp, Inc. (2020) 55 Cal.App.5th 591, 611 [consent required for one-way recordings that
17 only recorded representatives’ voices].)
18 Ryan may argue that Bill Palmer implicitly consented to recording by leaving a voicemail.
19 After all, the point of a voicemail is to leave a recording of a voice message for the recipient to
20 listen to later. But the California Supreme Court has recognized a “critical distinction” between
21 repeating conversations secondhand and recording firsthand conversations with a “mechanical
22 device.” (Gruber v. Yelp, Inc., supra, 55 Cal.App.5th at p. 608.) “While one who imparts private
23 information risks the betrayal of his confidence by the other party, a substantial distinction has
24 been recognized between the secondhand repetition of the contents of a conversation and its
25 simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or
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There are very limited exceptions to the prohibition in Penal Code section 632, none of which
28 apply here. (See Penal Code, §§ 633.5, 633.6, subd. (b).)
4106913 6
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 mechanical device.” (Ribas v. Clark (1985) 38 Cal.3d 355, 360-361 [emphasis added].) “[S]uch
2 secret monitoring denies the speaker an important aspect of privacy of communication—the right
3 to control the nature and extent of the firsthand dissemination of his statements.” (Id. at p. 361.)
4 Moreover, even if Bill Palmer implicitly consented to leaving a voicemail, he did not
5 consent to Ryan playing the voicemail and cherry-picking “relevant parts” to record on his
6 personal cell phone. (Cf. Gruber v. Yelp, Inc., supra, 55 Cal.App.5th at p. 611 [one-sided
7 recordings of representatives’ voice only subject to Penal Code section 632.) “One who invites
8 another to his home or office takes a risk that the visitor . . . may repeat all he hears and observes
9 when he leaves. But he does not and should not be required to take the risk that what is heard and
10 seen will be transmitted by photograph or recording . . . to the public at large or to any segment of
11 it that the visitor may select.” (Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245, 249
12 [emphasis added].)
DOWNEY BRAND LLP
13 Nor did Defendants consent to Ryan removing these (or any other materials) from the
14 office and retaining them following his termination. “Any litigant or potential litigant who
15 converts, interdicts or otherwise purloins documents in the pursuit of litigation outside the legal
16 process does so without the general protections afforded by the laws of discovery and risks being
17 found to have violated protected rights.” (Pillsbury, Madison & Sutro v. Schectman (1997) 55
18 Cal.App.4th 1279, 1289 [lawyer who obtained personnel documents from another firm employee
19 who wrongfully removed them from the Pillsbury law firm deemed to have wrongfully acquired
20 confidential information and ordered to return them]; Conn v. Super. Ct. (1987) 196 Cal.App.3d
21 774, 785 [former employee who took over 10,000 pages of employer records when he resigned,
22 without the knowledge or consent of the employer, ordered to return them].) For these reasons,
23 the audio recordings should also be excluded under Penal Code section 632.
24 IV. CONCLUSION
25 The court ordered evidentiary sanctions in July 2023. Those sanctions apply to six audio
26 recordings that Ryan had in his possession yet continued to withhold, despite multiple motions to
27 compel and sanctions. In addition, Ryan made the recordings (of private office communications)
28 / / /
4106913 7
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
1 without Defendants’ knowledge and consent. The recordings should be excluded based on the
2 court’s order granting evidentiary sanctions, as well as Penal Code section 632.
3 DATED: April 5, 2024 DOWNEY BRAND LLP
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By:
6 CASSANDRA M. FERRANNINI
Attorneys for Defendants
7 PALMER CAPITAL, INC.
and WILLIAM S. PALMER
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4106913 8
DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS
Preview
1 DOWNEY BRAND LLP WILLIAM R. WARNE (Bar No. 141280) 2 bwarne@downeybrand.com CASSANDRA M. FERRANNINI (Bar No. 204277) 3 cferrannini@downeybrand.com JENNIFER L. WILLIAMS (Bar No. 261037) 4 jwilliams@downeybrand.com 621 Capitol Mall, 18th Floor 5 Sacramento, California 95814 Telephone: 916.444.1000 6 Facsimile: 916.444.2100 7 Attorneys for Defendants PALMER CAPITAL, INC. 8 and WILLIAM S. PALMER 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF PLACER 12 DOWNEY BRAND LLP 13 RICHARD E. RYAN, a natural person, Case No. S-CV-0046844 14 Plaintiff, DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO 15 v. RECORDINGS 16 PALMER CAPITAL, INC., a California Trial Date: April 15, 2024 corporation; WILLIAM S. PALMER, a Time: 8:30 AM 17 natural person; and DOES 1 through 10, Dept.: TBD inclusive, 18 Action Filed: June 10, 2021 Defendants. FAC Filed: October 29, 2021 19 Trial Date: April 15, 2024 20 21 22 23 24 25 26 27 28 4106913 1 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 I. INTRODUCTION 2 Defendants Palmer Capital, Inc. and William Palmer (“Defendants”) hereby move in 3 limine to preclude Plaintiff Richard Ryan (“Ryan”) from introducing or referring to six (6) audio 4 recordings of private conversations exchanged with Bill Palmer on November 12, 2020. The basis 5 for excluding the audio recordings is twofold. First, the recordings are subject to the evidentiary 6 sanctions issued by the court on July 6, 2023. Second, California law provides that any “recording 7 [of] a confidential communication” without the consent of all parties is “not admissible in any 8 judicial, administrative, legislative, or other proceeding.” (Penal Code, § 632, subd. (a) [emphasis 9 added].) Defendants never consented to the recordings or their removal from PCI’s premises. 10 II. BACKGROUND 11 A. Discovery 12 On July 18, 2022, Defendants served 62 document requests to Ryan. (Cassandra DOWNEY BRAND LLP 13 Ferrannini Decl., p. 1, ¶ 2 & attached Exh. 1, Requests for Production, Set One.) The requests 14 broadly addressed not only Ryan’s allegations in the complaint, but also PCI’s allegations in the 15 cross-complaint. (See generally Exh. 1, Requests for Production, Set One.) 16 As relevant here, the requests asked Ryan to produce all “documents” and 17 “communications” regarding “Defendants” from November 17, 2015, to the present (No. 10), 18 Ryan’s performance between November 17, 2015, and November 17, 2020 (No. 7), his 19 termination (No. 4), and the allegations in his complaint (No. 35). (Id. at pp. 8:15-17, 8:6-8, 7:23- 20 25, 22:26-28.) 21 “Documents” expressly included “audiotapes” and “electronic records,” with “audio files” 22 and “video files” to be produced in their native format. (Id. at pp. 2:20-3:10.) “Communications” 23 meant “any oral, written or electronic transmission of information,” including “conversations,” 24 “telephone calls,” and “messages.” (Id. at p. 3:11-27.) 25 B. First Motion to Compel 26 After multiple extensions, Ryan responded to the document requests on September 16, 27 2022. (Cassandra Ferrannini Decl., p. 1, ¶ 2 & attached Exh. 2, Responses to Requests for 28 Production, Set One.) Ryan agreed to produce documents responsive to Request Nos. 1-10, 12-16, 4106913 2 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 27-39, 41-44, and 46-62. (See generally Exh. 2, Responses to Requests for Production, Set One.) 2 However, no documents or communications were produced. (Cassandra Ferrannini Decl., p. 1, ¶ 3 2.) 4 The following month, Defendants moved to compel production, supplemental written 5 responses, and a privilege log. Ryan did not oppose the motion, which was granted on November 6 29, 2022. (Request for Judicial Notice, p. 2, ¶ 7 & attached Exh. G, Minute Order, p. 2.) The 7 order required Ryan to provide responsive documents within 10 days of notice of entry of the 8 order. (Exh. G, Minute Order, p. 2.) 9 C. Second Motion to Compel 10 When Ryan did not produce any further responses or documents within 10 days as ordered, 11 Defendants filed another motion to compel compliance and recover sanctions. Again, Ryan did 12 not oppose the motion, which was granted on March 7, 2023. (Request for Judicial Notice, p. 2, ¶ DOWNEY BRAND LLP 13 8 & attached Exh. H, Minute Order, p. 2.) 14 Ryan eventually produced 12,616 pages of documents in response to the second motion. 15 (Cassandra Ferrannini Decl., p. 2, ¶ 7.) But notably absent from the production were any audio 16 recordings. (Ibid.) 17 D. Deposition Testimony (May 15, 2023) 18 Defendants noticed Ryan’s deposition for May 15, 2023, a date that was mutually agreed 19 upon. (Id. at p. 2, ¶ 8.) The deposition notice contained the same document requests as the prior 20 written discovery plus one additional request (not relevant here). (Compare Exh. 1, Requests for 21 Production, Set One, pp. 7-15, with Exh. 3, Ryan Depo. Notice, pp. 4-12.) 22 On May 15, 2023, Defendants took Ryan’s deposition. (Cassandra Ferrannini Decl., p. 3, ¶ 23 9.) When asked what he had done to prepare, Ryan indicated he listened to six audio recordings 24 just that morning on his phone. (Exh. 5, Ryan Depo. Transcript, Vol. 1, p. 153:8-14.) When 25 asked why those recordings had not been produced, Ryan claimed they had been forwarded to his 26 counsel. (Id. at p. 153:15-20.) But they were never produced. (Cassandra Ferrannini Decl., p. 3, 27 ¶ 9.) 28 / / / 4106913 3 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 E. Third Motion for Sanctions 2 The day after the deposition, on May 16, 2023, Defendants met and conferred about the 3 failure to produce documents and things requested in the deposition notice, as well as the prior 4 written discovery. Defendants demanded that Ryan immediately produce all documents and 5 things he was withholding by the end of the week. He did not, prompting Defendants to file yet 6 another motion for sanctions. 7 Defendants moved for an order imposing an evidentiary sanction at trial precluding Ryan 8 from using any documents or things responsive to Request for Production Nos. 1-10, 12-16, 27- 9 39, 41-44, 46-62, and 63. The court granted the motion on July 6, 2023. (Request for Judicial 10 Notice, p. 2, ¶ 10 & attached Exh. J, Minute Order, p. 2.) 11 Ryan eventually produced the six audio recordings. (Cassandra Ferrannini Decl., p. 3, ¶ 12 11.) DOWNEY BRAND LLP 13 F. Deposition Testimony (June 13, 2023) 14 Defendants deposed Ryan again on June 13, 2023. (Id. at p. 3, ¶ 12.) He again testified 15 that he listened to the six audio recordings before the deposition. (Exh. 7, Ryan Depo. Transcript, 16 Vol. 2, p. 394:20-23.) 17 When asked how he had obtained copies of those voicemails, which were left on an 18 internal office system years earlier, Ryan explained that he played them while at work and 19 “recorded the relevant parts” on his personal cell phone. (Id. at p. 409:6-12.) 20 He also testified that other voicemails on that same office system were deleted; these six 21 voicemails were the only ones he saw fit to preserve. (Id. at p. 408:3-8.) 22 III. LEGAL ANALYSIS 23 A party may file a motion in limine to prevent an opposing party from using certain 24 evidence at trial. (People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds in 25 People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; FMC Corp. v. Plaisted & Cos. (1998) 61 26 Cal.App.4th 1132, 1168.) 27 In addition to excluding evidence, the court may instruct opposing counsel to avoid any 28 mention of the evidence during questioning or in argument to the jury. (Grimshal v. Ford Motor 4106913 4 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 Co. (1981) 119 Cal.App.3d 757, 793 [court instructed counsel not to mention any other car fires 2 without leave of court]; see In re Charbonneau (1974) 42 Cal.App.3d 505, 507 [attorney held in 3 contempt for violating order not to mention post-accident changes to produce design and recall of 4 products].) 5 A. The Audio Recordings are Subject to Evidentiary Sanctions Issued on July 6, 2023. 6 “The court may impose an evidence sanction by an order prohibiting any party engaging in 7 the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. 8 Proc., § 2023.030, subd. (c); see Deeter v. Angus (1986) 179 Cal.App.3d 241, 255 [exclusion of 9 audio tape not produced in response to discovery requests].) Further, “a trial court has inherent 10 authority to preclude evidence to police an abuse of the litigation process.” (Peat, Marwick, 11 Mitchell & Co. v. Super. Ct. (1988) 200 Cal.App.3d 272, 286.) 12 This court did just that on July 6, 2023, following a series of willful discovery abuses by DOWNEY BRAND LLP 13 Ryan. (Exh. J, Minute Order, p. 2.) Specifically, despite expressly agreeing to produce 14 documents and communications regarding Defendants and his employment, Ryan failed to do so. 15 In November 2022, the court ordered him to produce all responsive documents and 16 communications. (Exh. G, Minute Order, p. 2.) Again, he failed to do so, forcing Defendants to 17 file yet another motion to compel. That second motion was granted in March 2023 and monetary 18 sanctions were awarded. (Exh. H, Minute Order, p. 2.) Despite paying $1,780 in monetary 19 sanctions, Ryan still failed to produce responsive documents and communications, resulting in a 20 third motion. The court was well-within its discretion in granting an evidentiary sanction for 21 Ryan’s repeated discovery abuses. (See Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 22 901, 904 [affirming sanctions order dismissing plaintiff’s action for failure to comply with a single 23 discovery order compelling compliance with document requests and interrogatories].) 24 The audio recordings were responsive to several document requests, including Request 25 Nos. 4, 7, 10, and 35 (among others). (Exh. 1, Requests for Production, Set One, 8:15-17, 8:6-8, 26 7:23-25, 22:26-28.) Per the court’s order, Ryan is precluded from using any documents or things 27 responsive to Request for Production Nos. 1-10, 12-16, 27-39, 41-44, 46-62, and 63. (Exh. J, 28 Minute Order, p. 2.) Accordingly, the court should exclude the audio recordings at trial. 4106913 5 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 B. The Audio Recordings were Illegally Obtained. 2 It is illegal under California law for any person to “intentionally and without the consent of 3 all parties to a confidential communication, eavesdrops upon or record the confidential 4 communication of another.” (Penal Code, § 632, subd. (a).) The term “confidential 5 communication” includes any communication carried on in circumstances as may reasonably 6 indicate that any party to the communication desires it to be confined to the parties. (Penal Code, 7 § 632, subd. (c).) To enforce the public policy against the secret recording of confidential 8 communications, all such recordings are inadmissible “in any judicial, administrative, legislative, 9 or other proceeding.”1 (Penal Code, § 632, subd. (d).) 10 Here, Ryan played voicemails saved on his office phone and recorded “relevant parts” onto 11 his personal cell phone. (Exh. 7, Ryan Depo. Transcript, Vol. 2, p. 409:6-12.) The messages were 12 for Ryan alone and made outside the presence of anyone else. There is no question that Bill DOWNEY BRAND LLP 13 Palmer had a reasonable expectation of privacy with regard to these internal communications at 14 work. Ryan never advised that he intended to record the messages, and he certainly never 15 obtained Defendants’ consent to do so. (Exh. 14, Palmer Depo. Transcript, pp. 213:20-217:5; cf. 16 Gruber v. Yelp, Inc. (2020) 55 Cal.App.5th 591, 611 [consent required for one-way recordings that 17 only recorded representatives’ voices].) 18 Ryan may argue that Bill Palmer implicitly consented to recording by leaving a voicemail. 19 After all, the point of a voicemail is to leave a recording of a voice message for the recipient to 20 listen to later. But the California Supreme Court has recognized a “critical distinction” between 21 repeating conversations secondhand and recording firsthand conversations with a “mechanical 22 device.” (Gruber v. Yelp, Inc., supra, 55 Cal.App.5th at p. 608.) “While one who imparts private 23 information risks the betrayal of his confidence by the other party, a substantial distinction has 24 been recognized between the secondhand repetition of the contents of a conversation and its 25 simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or 26 27 1 There are very limited exceptions to the prohibition in Penal Code section 632, none of which 28 apply here. (See Penal Code, §§ 633.5, 633.6, subd. (b).) 4106913 6 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 mechanical device.” (Ribas v. Clark (1985) 38 Cal.3d 355, 360-361 [emphasis added].) “[S]uch 2 secret monitoring denies the speaker an important aspect of privacy of communication—the right 3 to control the nature and extent of the firsthand dissemination of his statements.” (Id. at p. 361.) 4 Moreover, even if Bill Palmer implicitly consented to leaving a voicemail, he did not 5 consent to Ryan playing the voicemail and cherry-picking “relevant parts” to record on his 6 personal cell phone. (Cf. Gruber v. Yelp, Inc., supra, 55 Cal.App.5th at p. 611 [one-sided 7 recordings of representatives’ voice only subject to Penal Code section 632.) “One who invites 8 another to his home or office takes a risk that the visitor . . . may repeat all he hears and observes 9 when he leaves. But he does not and should not be required to take the risk that what is heard and 10 seen will be transmitted by photograph or recording . . . to the public at large or to any segment of 11 it that the visitor may select.” (Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245, 249 12 [emphasis added].) DOWNEY BRAND LLP 13 Nor did Defendants consent to Ryan removing these (or any other materials) from the 14 office and retaining them following his termination. “Any litigant or potential litigant who 15 converts, interdicts or otherwise purloins documents in the pursuit of litigation outside the legal 16 process does so without the general protections afforded by the laws of discovery and risks being 17 found to have violated protected rights.” (Pillsbury, Madison & Sutro v. Schectman (1997) 55 18 Cal.App.4th 1279, 1289 [lawyer who obtained personnel documents from another firm employee 19 who wrongfully removed them from the Pillsbury law firm deemed to have wrongfully acquired 20 confidential information and ordered to return them]; Conn v. Super. Ct. (1987) 196 Cal.App.3d 21 774, 785 [former employee who took over 10,000 pages of employer records when he resigned, 22 without the knowledge or consent of the employer, ordered to return them].) For these reasons, 23 the audio recordings should also be excluded under Penal Code section 632. 24 IV. CONCLUSION 25 The court ordered evidentiary sanctions in July 2023. Those sanctions apply to six audio 26 recordings that Ryan had in his possession yet continued to withhold, despite multiple motions to 27 compel and sanctions. In addition, Ryan made the recordings (of private office communications) 28 / / / 4106913 7 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS 1 without Defendants’ knowledge and consent. The recordings should be excluded based on the 2 court’s order granting evidentiary sanctions, as well as Penal Code section 632. 3 DATED: April 5, 2024 DOWNEY BRAND LLP 4 5 By: 6 CASSANDRA M. FERRANNINI Attorneys for Defendants 7 PALMER CAPITAL, INC. and WILLIAM S. PALMER 8 9 10 11 12 DOWNEY BRAND LLP 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4106913 8 DEFENDANTS’ MOTION IN LIMINE NO. 2 TO EXCLUDE AUDIO RECORDINGS