Party Discovery: HONG TRUONG vs. HERITAGE RESIDENTIAL CARE, INC., et al

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                                Case Number: 17-CIV-05199

                                                          SUPERIOR COURT OF SAN MATEO COUNTY
                                                      400 County Center                         1050 Mission Road
                                                   Redwood City, CA 94063                 South San Francisco, CA 94080
                                                                     www.sanmateocourt.org

                                                                   Minute Order
              HONG TRUONG        vs.  HERITAGE RESIDENTIAL CARE, INC., et al                                          17-CIV-05199
                                                                                                              08/23/2018 9:00 AM
                                                                                                    Motion to Compel Production
                                                                                                                      of Documents
                                                                                                              Hearing Result:   Held

              Judicial Officer: DuBois, Richard H.                      Location: Courtroom 7A
              Courtroom Clerk: Andrea Daley                             Courtroom Reporter:      Diana Masetti


              Parties Present
               KAUFMAN, CASEY A                   Attorney

              Minutes
              Journals
               - Appearance made on behalf of: Heritage Residential Care, Inc. by attorney: Ellie Lank.

               Argument presented by counsel. Matter submitted.

               Tentative ruling modified and becomes order:

               DEFENDANT HERITAGE RESIDENTIAL CARE, INC.'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS

               Defendant Heritage Residential Care's motion to compel production of documents is DENIED without
               prejudice to renew motion after development of further facts regarding prejudice. The photos at issue
               are protected by the attorney work product privilege set forth at CCP 2018.030. The moving party has
               not established that denial of discovery will result in unfair prejudice in preparing its defense.

               Under the general rules relating to work product, it appears that the photographs at issue are protected
               under at least a "qualified" work product privilege. Plaintiff asserts that the "sole purpose of the visit [to
               the accident site] was to analyze liability" and that the presence of the liability expert consultant
               corroborates this claim. Counsel states that "the subjects, viewing angles, and particular close-ups
               contained in the photographs were specifically chosen in response to plaintiff's counsel's theories of
               liability." Taking these statements at face value, it appears that counsel has established that the photos
               are derivative, as they reflect his evaluation of the question of liability. Accordingly, it appears the
               Plaintiff has met his burden of showing the photographs are privileged.

               Heritage essentially claims it is inconceivable that a photograph could communicate counsel's
               impressions, but does not present compelling argument in support of this claim. At least one California
               decision (Suezaki v. Sup.Ct. (1962) 58 C2d 166, 177-178) indicates that photographs can contain an
               attorney's impressions. Heritage does not present contrary authority from California or elsewhere.

               i. Prejudice

               If the photos are protected only by a qualified work product privilege, it's not clear that the

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                                                                                                                   Case Number: 17-CIV-05199

               circumstances warrant disclosure. Counsel for Heritage notes that it was retained in 2018 and therefore
               did not have an opportunity to inspect the scene immediately following the accident.            However, as
               noted by Plaintiff, Heritage, which is owned by Defendant De La Cruz, is located at the accident scene. It
               had an opportunity to take photos of the accident scene at any time following the accident. Further,
               Heritage does not indicate whether it took advantage of this opportunity, or whether it possesses any
               photos of the accident scene taken during the same time period. This is not an inappropriate question to
               ask at this stage of the litigation.

               Ultimately, because (1) Heritage had access to the property/accident scene at all times following the
               accident, and (2) does not allege whether it has photos of the scene from the same time period,
               Heritage has not established that denial of discovery will result in unfair prejudice in preparing its
               defense.

               No formal order or any other notice is required.

              Future Hearings and Vacated Hearings

                  January 29, 2019 1:30 PM Mandatory Settlement Conference
                  Courtroom 2J
                  Mandatory Settlement Conferences, -

                  February 11, 2019 9:00 AM Jury Trial
                  Master Calendar, -




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