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DIEPENBROCK & COTTER, LLP Electronically Filed
1 JOHN P. COTTER, State Bar No. 158783 12/29/2020 2:54 PM
BRIAN J. O’CONNOR, State Bar No. 155159 Superior Court of California
2 1435 River Park Drive, Suite 400
Sacramento, California 95815 County of Stanislaus
3 T.: (916) 565-6222 | F.: (916) 565-6220 Clerk of the Court
E. bjo@diepenbrockcotter.com By: Nicole Nelson, Deputy
4
Attorneys for Defendants KOOGER FARMS, LLC and J. JESUS MUNOZ
5 VELASCO
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF STANISLAUS
10
11 RYAN LIMA, JR., an individual; Case No. CV-20-000378
Consolidated w/CV-20-000418
12 Plaintiff(s),
13 vs. Assigned for all purposes to
Judge Stacy Speiller, Department 22
14 J. JESUS MUNOZ VELASCO, an
individual; KOOGER FARMS, LLC, a DEFENDANT KOOGER FARMS,
15 limited liability company; ROBERT TREY LLC’S AND J. JESUS MUNOZ
CHEYENNE FLETCHER, an individual; VELASCO’S MEMORANDUM OF
16 HENRY D. MORRIS, JR., an individual; POINTS AND AUTHORITIES IN
AMERICAN RIVER AG, INC., a OPPOSITION TO PLAINTIFF RYAN
17 corporation; SUZANNE E. TYLER, an LIMA’S MOTIONS TO COMPEL
individual; VICTOR DE ANDA, an FURTHER RESPONSES TO REQUEST
18 individual; KELLY E. POWERS, an FOR PRODUCTION OF
individual; BARBARA JEANETTE BOEGE, DOCUMENTS, SET ONE
19 an individual; PAUL WEGNER, an
individual; COUNTY OF STANISLAUS, a
20 governmental entity; CITY OF MODESTO, a Date: January 12, 2021
governmental entity; THE STATE OF Time: 8:30 a.m.
21 CALIFORNIA including but not limited to Dept.: 22
CALTRANS and THE DEPARTMENT OF Hon. Stacy Speiller
22 TRANSPORTATION, a governmental entity;
VANTAGE TRAILERS, INC., a corporation;
23 and DOES 1-400 INCLUSIVE;
24 Defendant(s) Complaint Filed: 1/16/20
Trial Date: None
25
26 Defendants KOOGER FARMS, LLC and J. JESUS MUNOZ VELASCO hereby submit the
27 following Memorandum of Points and Authorities in Opposition to Plaintiff RYAN LIMA’S
28 Motions to Compel Further Responses to his Request for Production of Documents, Set One.
1
MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 Mr. Lima filed two motions—one against Kooger Farms and one against Mr. Velasco. The
2 motions, the Requests for Production of Documents on which they are based, and the responses to
3 those requests, are identical for both Kooger Farms and Mr. Velasco. So this opposition is directed
4 to both motions. Where appropriate, Kooger Farms and Mr. Velasco will be referred to collectively
5 as “Defendants.”
6 I
7 FACTUAL AND PROCEDURAL BACKGROUND
8 These consolidated cases (Lima v. Velasco, CV-20-000378 and Fletcher v. Velasco, CV-20-
9 000418) arise out of a two-vehicle traffic collision which occurred on January 2, 2019 near Modesto,
10 California. The accident happened at approximately 3:50 a.m. at the intersection of Beckwith Road
11 and North Dakota Avenue.
12 The intersection is a four-way stop. Each stop sign was equipped with flashing lights on top
13 of them. Defendant Jesus Velasco was driving a 2012 Peterbilt tractor which was owned by co-
14 defendant Kooger Farms. Mr. Velasco was towing a 2001 Vantage trailer. He was travelling on
15 eastbound Beckwith Road when he came to its intersection with North Dakota Avenue. He stopped
16 at the stop sign. He then drove into the intersection to continue on Beckwith Road.
17 Plaintiff and moving party Ryan Lima, Jr. was a front seat passenger in the 2000 Chevy
18 Suburban driven by co-plaintiff Robert “Trey” Fletcher on southbound North Dakota Ave. Mr.
19 Fletcher failed to stop at the stop sign and ran into Mr. Velasco’s trailer as it was moving through
20 the intersection.
21 On May 13, 2019, attorney Otto L. Haselhoff sent a letter to Defendants’ insurance carrier,
22 informing them of Mr. Haselhoff’s representation of Mr. Lima in this matter. (A true and correct
23 copy of Mr. Haselhoff’s May 13, 2019 letter is attached to the accompanying declaration of John P.
24 Cotter as a part of Exhibit A.) On June 9, 2019, the firm of Diepenbrock & Cotter, LLP was retained
25 to conduct the defense of Kooger Farms and Jesus Velasco in this case. At the direction of defense
26 counsel John P. Cotter, surveillance investigators were retained to conduct surveillance of plaintiff
27 Ryan Lima, and to obtain video documentation of his physical movement for potential use as
28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 impeachment evidence in this case. Surveillance video of Mr. Lima was obtained and provided to
2 Mr. Cotter by the surveillance investigators. (See the accompanying declaration of John P. Cotter.)
3 Plaintiff filed his complaint on January 16, 2020.
4 II
5 PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANTS
6 On June 12, 2020, Mr. Lima’s attorney Otto L. Haselhoff served Requests for Production of
7 Documents on Defendants’ attorney Brian J. O’Connor. (A true and correct copy of the Request for
8 Production of Documents to Kooger Farms is attached to the accompanying declaration of Brian J.
9 O’Connor as Exhibit C.) Request Nos. 1, 2, 3 and 41 sought production of applicable insurance
10 policies. Request No. 42 sought rules and regulations regarding the load, transportation of goods,
11 etc. On November 10, 2020, just before the filing of this motion, Defendants served a supplemental
12 response to these requests. (A true and correct copy of the Supplemental Response to the Request
13 for Production of Documents to Kooger Farms is attached to the accompanying declaration of Brian
14 J. O’Connor as Exhibit D.) Although these requests are the subject of plaintiff’s motion, Defendants
15 believe that its Supplemental Response has resolved the dispute as to these requests.
16 Plaintiff’s Request for Production of Documents included Request No. 10, which is also the
17 subject of the present motion. Request No. 10 reads as follows:
18 10. Photographs, negatives, diagrams, video, motion pictures, slides, sketches,
notes and/or other visual representations of the ACCIDENT SCENE, and/or
19 person(s), things or vehicle(s) involved in the INCIDENT, taken at any time,
including surveillance of the PLAINTIFF(S).
20
21 Defendants served responses to the Request for Production of Documents on August 3, 2020.
22 (A true and correct copy of the Kooger Farm’s responses to the Request for Production of
23 Documents is attached to the accompanying declaration of Brian J. O’Connor as Exhibit E.) The
24 response to Request No. 10 read as follows:
25 This request seeks information which might reflect counsel’s evaluation of the case
and/or his impressions, conclusions, opinions, legal research and or theories, or are
26 otherwise protected by the attorney work product doctrine. Whether any such
surveillance has been performed will be disclosed after the defendants have deposed
27 the plaintiff and any other witness supporting the plaintiff’s claim of serious injury.
(See Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177-178; Hogan and Weber:
28 California Civil Discovery, Work Product Protection: (2nd ed. 13:11, 13-34)
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 II
2 THE MEET AND CONFER EFFORTS
3 On August 14, 2020, Mr. Haselhoff sent a letter to Mr. O’Connor to meet and confer
4 regarding certain discovery responses which Mr. Haselhoff believed were deficient, including some
5 of the responses to the Request for Production of Documents. (A true and correct copy of Mr.
6 Haselhoff’s August 14, 2020 letter is attached to the accompanying declaration of Brian J. O’Connor
7 as Exhibit F.) With regard to Request No. 10, partly referencing his remarks regarding Form
8 Interrogatories 13.1 and 13.2, which also concern surveillance videos, Mr. Haselhoff wrote:
9 Request No. 10 concerns surveillance documents. Again, no privilege applies and the
documents should be produced. . . . The response improperly states, without basis,
10 that disclosure of surveillance will be made following plaintiff’s deposition.
11 On September 28, 2020 Mr. O’Connor responded to Mr. Haselhoff’s meet and confer letter.
12 (A true and correct copy of Mr. O’Connor’s September 28, 2020 letter is attached to the
13 accompanying declaration of Brian J. O’Connor as Exhibit G.) With regard to Request No. 10, as
14 well as Form Interrogatories 13.1 and 13.2, Mr. O’Connor wrote:
15 We are not claiming that the information sought is absolutely protected by the work
product doctrine. Our position is that it is protected by a qualified work product
16 privilege which recognizes the balancing test in which a court must engage to
determine whether, and how, such information ought to be disclosed. The court must
17 weigh the plaintiff’s need for disclosure of the items and to avoid surprise at trial
versus possible prejudice to defendants by early disclosure of such films. If a plaintiff
18 were to know of the existence and/or content of surveillance films in advance of his
deposition, he may tailor his deposition testimony to address the film’s contents. If
19 a plaintiff is truthful about the nature and extent of his claimed injuries at deposition,
he should have nothing to fear regarding the existence or contents of surveillance
20 films.
21 Our responses refer to the recognition of this balancing test which must be used by
the court in the exercise of its discretion in Suezaki v. Superior Court (1962) 58
22 Cal.2d 166, 178. Our responses also reference Hogan and Weber: California Civil
Discovery, Work Product Protection: (2nd ed. 13:11, 13-34), which cites numerous
23 cases in which courts perform the balancing test and come up with the reasonable
solution which we propose—the contents of any surveillance films which might exist
24 will be made available to you after Mr. Pena’s (sic—Lima’s) deposition is taken.
(See e.g., Snead v. American Export-Isbrandtsen Lines, Inc. (1973, ED PA) 59 FRD
25 148.
26 The written exchange between the attorneys was completed with Mr. Haselhoff’s letter of
27 October 2, 2020 in which Mr. Haselhoff set forth the points and authorities that he has used to
28 support this motion. (A true and correct copy of Mr. Haselhoff’s October 2, 2020 letter is attached
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 to the accompanying declaration of Brian J. O’Connor as Exhibit H.)
2 Subsequent to this exchange of letters, Mr. Haselhoff and Mr. O’Connor discussed the
3 dispute further by telephone, but they could not come to an agreement regarding the responses to
4 Request No. 10. However, they did agree that the dispute could be resolved by way of a motion to
5 compel further responses rather than a motion for a protective order. They also agreed that they
6 would not seek sanctions in either the motion or the opposition to it.
7 III
8 LEGAL ARGUMENT
9 A. California Law – CCP § 2018.020-030, Suezaki v. Superior Court and CCP §
2031.060
10
11 Code of Civil Procedure § 2018.020-030 codifies the attorney work product doctrine. CCP
12 § 2018.020 states:
13 It is the policy of the state to do both of the following:
14 (a) Preserve the rights of attorneys to prepare cases for trial with that degree of
privacy necessary to encourage them to prepare their cases thoroughly and to
15 investigate not only the favorable but the unfavorable aspects of those cases.
16 (b) Prevent attorneys from taking undue advantage of their adversary's industry and
efforts.
17
CCP § 2018.030 provides:
18
(a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal
19 research or theories is not discoverable under any circumstances.
20 (b) The work product of an attorney, other than a writing described in subdivision
(a), is not discoverable unless the court determines that denial of discovery will
21 unfairly prejudice the party seeking discovery in preparing that party’s claim or
defense or will result in an injustice.
22
23 (Emphasis added). The product of investigations “conducted by an attorney, or by an attorney’s
24 agent at the attorney’s behest, constitute work product protected by section 2018.030.” Coito v.
25 Superior Court (2012) 54 Cal. 4th 480, 494.
26 As noted in Weil & Brown et al., Cal Practice Guide: Civil Procedure Before Trial,
27 “Surprisingly, there is no recent authority dealing with claims of work product protection for photos,
28 videos, etc., prepared under an attorney’s direction. (Again, the Discovery Act is not helpful because
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 it leaves the definition of ‘work product’ to case law.)” (Weil & Brown § 8:243) But Defendants’
2 position is supported by Suezaki v. Superior Court (1962) 58 Cal 2d. 166. Plaintiff agrees that “[t]he
3 Suezaki case, in fact, remains the leading authority in California on this topic.” (See plaintiff’s
4 Memorandum of Points & Authorities in support of this motion at page 7, line 16.)
5 In Suezaki, as here, at the instruction of defense counsel, an investigator was hired to take
6 motion pictures of the personal injury plaintiff without his knowledge. In discovery proceedings,
7 the plaintiffs requested that the defendants produce the films. Defendants resisted production, and
8 the plaintiffs’ filed a motion to compel. The trial court denied the motion, ruling that although the
9 “plaintiffs had made a sufficient showing of good cause for inspection,” the films were protected by
10 the attorney-client privilege.
11 The Suezaki court reversed, and held that surveillance films were not protected by the
12 attorney-client privilege. However, the court also entertained the defense argument that they were
13 protected by the attorney work product doctrine:
14 The defendants, however, approach the problem from another angle. They urge that,
even if the films are not privileged for other reasons, they are privileged solely
15 because they are the “work product” of their attorney.
16 (Suezaki at 177.)
17 On this issue the court held that the attorney work product doctrine does not act as an
18 absolute privilege (CCP § 2018.030(a)) protecting surveillance films. However, it allowed for
19 qualified protection (CCP § 2018.030(b)), holding that:
20 . . . if the subject matter involved is the work product of the attorney, that is a factor
that the trial court should consider, in its discretion, together with other relevant
21 factors, in determining whether to deny or to grant discovery in whole or in part.
22 ...
23 [U]nder the California rule, the trial court may consider the facts on which a claim of
“work product” is predicated, and exercise the discretion granted by the provisions
24 of the discovery statutes in order to prevent abuse and to reach a determination
consistent with equity and justice. This simply means that in California the fact that
25 the material sought to be discovered is the “work product” of the attorney is one
factor to be used by the trial court in the exercise of its discretion in determining
26 whether or not discovery should be granted. . . . The trial court must consider all the
relevant factors involved and then determine whether, under all the circumstances,
27 discovery would or would not be fair and equitable.
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 Thus, although the Court of Appeal reversed the trial court, it did not order the production
2 of the films as a matter of law. Instead, it held that:
3 . . . the matter should be referred back to the trial court to permit it to exercise its
discretion as conferred by statute, and to permit it to decide whether on the showing
4 that has or may be made it should deny, grant, or conditionally grant the order.
5 The judicial discretion that the Suezaki court recognized is codified in Code of Civil
6 Procedure § 2031.060, which provides in relevant part:
7 (a) When an inspection, copying, testing, or sampling of documents, tangible things,
places, or electronically stored information has been demanded, the party to whom
8 the demand has been directed, and any other party or affected person, may promptly
move for a protective order. This motion shall be accompanied by a meet and confer
9 declaration under Section 2016.040.
10 (b) The court, for good cause shown, may make any order that justice requires to
protect any party or other person from unwarranted annoyance, embarrassment, or
11 oppression, or undue burden and expense. This protective order may include, but is
not limited to, one or more of the following directions:
12
...
13
(2) That the time specified in Section 2030.260 to respond to the set of
14 demands, or to a particular item or category in the set, be extended.
15 ...
16 (4) That the inspection, copying, testing, or sampling be made only on
specified terms and conditions.
17
...
18
(g) If the motion for a protective order is denied in whole or in part, the court may
19 order that the party to whom the demand was directed provide or permit the discovery
against which protection was sought on terms and conditions that are just.
20
21 As Mr. O’Connor stated in his meet and confer letter of September 28, 2020, the Defendants
22 are not claiming that surveillance videos are absolutely protected by the work product doctrine. The
23 defense position is that the law provides for a qualified work product protection which recognizes
24 the discretionary balancing test authorized by the Suezaki court and codified in Code of Civil
25 Procedure § 2031.060.1 The Defendants acknowledge that plaintiffs are entitled to information
26 about the videos, and to see the videos before trial “(1) to protect against surprise; and (2) prepare
27 1
Although the statute applies to protective orders, the parties have agreed that this dispute can be resolved by way of a
28 motion to compel production of the videos. The competing interests of the parties, and the discretionary balancing of
those interests by the court, are the same, regardless of the procedure used to bring the matter before the court.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 for an examination of the person who performed the surveillance.” (See plaintiff’s Memorandum
2 of Points & Authorities in support of this motion at page 8, line 15.) However, the Defendants’
3 interests must also be weighed in the balance. By performing video surveillance of a personal injury
4 plaintiff, Defendants are attempting to acquire legitimate impeachment evidence in the event that
5 the plaintiff might be exaggerating his injuries. To be effective, such videos should generally be
6 recorded as early as possible, before initial written discovery is propounded. Thus they often exist
7 before the plaintiff has an opportunity to request information about, and the production of, the
8 videos. But if the Defendants were required to provide information about the videos or produce
9 them before the plaintiff’s deposition, the plaintiff could tailor his testimony to what he knows about
10 the videos or sees in them, rather than what he might say without such information. Thus, any
11 potential impeachment value of the evidence would be lost. As such, the Defendants will have
12 suffered “undue burden and expense” in procuring the video, as contemplated by Code of Civil
13 Procedure § 2031.060.
14 Withholding the videos, and information about them, until after his deposition is taken will
15 not prejudice the plaintiff. The videos, and information about them, will be provided after the
16 deposition, with plenty of time for him to take the deposition of the person who performed the
17 surveillance and otherwise prepare for trial. On the other hand, disclosure of the information and
18 the videos before the deposition threatens to render them utterly useless and thereby subject the
19 Defendants to undue burden and expense.
20 B. Persuasive Secondary Authority and Out-of-State Cases
21 The Suezaki court did not rule one way or another as to whether the films should be produced.
22 It left that determination to the trial court. There are no California cases which provide any further
23 guidance on how a court should resolve the issue, probably because each case turns on its own facts,
24 so the issue is not subject to any bright line rules.
25 However, many persuasive authorities have adopted the solution that the Defendants propose
26 here. One is Hogan and Weber’s treatise California Civil Discovery. In the section of work product
27 protection it states:
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 The fair solution of this dilemma (production of surveillance footage) may be to deny
discovery of either the existence or content of surveillance films until the defense has
2 had the opportunity to depose plaintiff and any other witness supporting the
plaintiff’s claim of serious injury.
3
4 (See Hogan and Weber: California Civil Discovery, Work Product Protection: 2nd ed. 13:11, 13-
5 34.)
6 While out-of-state decisions are not binding on a California court, they can be considered
7 persuasive authorities. See, e.g., Hammond Lumber Co. v. Kearsley (1918) 36 Cal.App.431; In re:
8 Episcopal Church Cases (2009) 45 Cal.4th 467, 490.
9 Withholding of information regarding surveillance footage until after the plaintiff’s
10 deposition was also the solution ordered by the court in Snead v. American Export-Isbrandtsen
11 Lines, Inc. (1973, ED PA) 59 FRD 148. (In accordance with California Rule of Court 3.1113(i), a
12 true and correct copy of the Snead case is attached to the accompanying declaration of Brian J.
13 O’Connor as Exhibit I.) The Snead Court explained the dilemma as follows:
14 The main purpose for secret motion pictures of a plaintiff is to impeach his
credibility. Films taken without the knowledge of the subject often have a dramatic
15 impact in court. One who has described in elaborate detail his disabilities, their extent
and duration, and the limitations they impose may be shown by the camera to be a
16 fraud. The possibility that such pictures exist will often cause the most blatant liar to
carefully consider the testimony he plans to give under oath. . . . Most defense
17 lawyers contend that if a plaintiff knows surveillance films exist, he will tailor what
he has to say accordingly. For tactical reasons, therefore, they would prefer to have
18 plaintiff testify and then have the jury see the films. Defendants contend that
uncertainty as to the existence of surveillance pictures is the best way to promote
19 truthfulness and the showing of such films in court, a proper way to penalize a
plaintiff who has been dishonest.
20
Lawyers representing plaintiffs, on the other hand, argue that unless they can check
21 the integrity of the photographer, the accuracy of his methods, and review the pictures
he has taken, they are deprived of the proper means to cross-examine or seek rebuttal
22 testimony. Thus, they maintain that the need to prevent possible abuse by defense
investigators requires full disclosure as to the films in advance of trial and an
23 opportunity for them to be seen.
24 (Snead at 150.)
25 Ultimately the Snead Court decided that the fairest resolution of the dispute was to provide
26 for discovery of the surveillance footage after plaintiff’s deposition. This is the same solution being
27 proposed by Defendants in this case. The Snead Court explained its reasoning as follows:
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 Once [the plaintiff’s] testimony is memorialized in deposition, any variation he may
make at trial to conform to the surveillance films can be used to impeach his
2 credibility, and his knowledge at deposition that the films may exist should have a
salutary effect on any tendency to be expansive.
3
4 (Snead at 151.)
5 The Snead Court’s decision to allow discovery of surveillance films after a plaintiff’s
6 deposition has likewise been followed in a number of other jurisdictions for the same reason—to
7 prohibit a plaintiff from preparing his testimony in advance of deposition to conform to whatever is
8 contained in the surveillance footage. See, e.g., Wolford v. JoEllen Smith Psychiatric Hospital
9 (1997, La) 693 So.2d 1164; Ward v. CSX Transportation, Inc. (1995, ED NC) 161 FRD 38; Corrigan
10 v. Methodist Hospital (1994, ED PA) 158 FRD 54, 59. (In accordance with California Rule of Court
11 3.1113(i), true and correct copies of the Wolford, Ward and Corrigan cases are attached to the
12 accompanying declaration of Brian J. O’Connor as Exhibits J, K, and L, respectively.) Consistent
13 with the preceding authorities, Defendants have never proposed a complete prohibition on discovery
14 of the surveillance films but have instead proposed the reasonable solution of producing the videos,
15 and information about them, after plaintiff’s deposition has been completed. To date, plaintiff has
16 refused to accept this offer.
17 In this motion, plaintiff claims that Snead was contradicted within its own district in
18 Babyage.com, Inc. v. Toys “R” Us Inc. (2006, ED PA) 458 F. Supp. 2d 263. (See plaintiff’s
19 Memorandum of Points & Authorities in support of this motion at page 11, line 4. In accordance
20 with California Rule of Court 3.1113(i), a true and correct copy of the Babyage.com case is attached
21 to the accompanying declaration of Brian J. O’Connor as Exhibit M.) However, plaintiff’s criticism
22 of Snead by reference to Babyage.com is misplaced. The case is distinguishable on numerous
23 grounds. Both Snead and Babyage.com are trial court cases, so Babyage.com does not overrule
24 Snead. In addition, Babyage.com was not a personal injury case; it was an antitrust case. In fact,
25 Snead is mentioned in a footnote with no criticism. It is merely prefaced with “But see . . .” And
26 the footnote clearly distinguishes Snead as a personal injury case. (See Babyage.com at 265, fn. 8.)
27 Moreover, the subject of the discovery dispute in Babyage.com was not surveillance videos.
28 In Babyage.com the plaintiffs wanted to withhold confidential communications which had been
10
MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
1 surreptitiously recorded on audiotape. First of all, such recordings are not only inadmissible as
2 evidence in California courts (Penal Code § 632(d)), but making such a recording is a criminal
3 offense. (Penal Code § 632(a)). Such recordings would not be the subject of discovery proceedings
4 in this state. So Babyage.com is not applicable to this case. Babyage.com is also distinguishable by
5 the fact that what is depicted on surveillance videos is neither confidential, nor is it a communication.
6 It is simply a depiction of a person performing activities in public places. For that reason,
7 Babyage.com is not applicable.
8 IV
9 CONCLUSION
10 For the foregoing reasons, Defendants Kooger Farms and Jesus Velasco respectfully request
11 that the court issue an order pursuant to CCP § 2031.060 relieving Defendants of the obligation to
12 produce surveillance videos of plaintiff Ryan Lima until after the Defendants have taken his
13 deposition.
14
15 Respectfully submitted,
16 DATED: December 29, 2020 DIEPENBROCK & COTTER, LLP
17
By:
18 JOHN P. COTTER
BRIAN J. O’CONNOR
19 Attorneys for Defendants
KOOGER FARMS, LLC
20 J. JESUS MUNOZ VELASCO
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MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL
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DIEPENBROCK & COTTER, LLP Electronically Filed 1 JOHN P. COTTER, State Bar No. 158783 12/29/2020 2:54 PM BRIAN J. O’CONNOR, State Bar No. 155159 Superior Court of California 2 1435 River Park Drive, Suite 400 Sacramento, California 95815 County of Stanislaus 3 T.: (916) 565-6222 | F.: (916) 565-6220 Clerk of the Court E. bjo@diepenbrockcotter.com By: Nicole Nelson, Deputy 4 Attorneys for Defendants KOOGER FARMS, LLC and J. JESUS MUNOZ 5 VELASCO 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF STANISLAUS 10 11 RYAN LIMA, JR., an individual; Case No. CV-20-000378 Consolidated w/CV-20-000418 12 Plaintiff(s), 13 vs. Assigned for all purposes to Judge Stacy Speiller, Department 22 14 J. JESUS MUNOZ VELASCO, an individual; KOOGER FARMS, LLC, a DEFENDANT KOOGER FARMS, 15 limited liability company; ROBERT TREY LLC’S AND J. JESUS MUNOZ CHEYENNE FLETCHER, an individual; VELASCO’S MEMORANDUM OF 16 HENRY D. MORRIS, JR., an individual; POINTS AND AUTHORITIES IN AMERICAN RIVER AG, INC., a OPPOSITION TO PLAINTIFF RYAN 17 corporation; SUZANNE E. TYLER, an LIMA’S MOTIONS TO COMPEL individual; VICTOR DE ANDA, an FURTHER RESPONSES TO REQUEST 18 individual; KELLY E. POWERS, an FOR PRODUCTION OF individual; BARBARA JEANETTE BOEGE, DOCUMENTS, SET ONE 19 an individual; PAUL WEGNER, an individual; COUNTY OF STANISLAUS, a 20 governmental entity; CITY OF MODESTO, a Date: January 12, 2021 governmental entity; THE STATE OF Time: 8:30 a.m. 21 CALIFORNIA including but not limited to Dept.: 22 CALTRANS and THE DEPARTMENT OF Hon. Stacy Speiller 22 TRANSPORTATION, a governmental entity; VANTAGE TRAILERS, INC., a corporation; 23 and DOES 1-400 INCLUSIVE; 24 Defendant(s) Complaint Filed: 1/16/20 Trial Date: None 25 26 Defendants KOOGER FARMS, LLC and J. JESUS MUNOZ VELASCO hereby submit the 27 following Memorandum of Points and Authorities in Opposition to Plaintiff RYAN LIMA’S 28 Motions to Compel Further Responses to his Request for Production of Documents, Set One. 1 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 Mr. Lima filed two motions—one against Kooger Farms and one against Mr. Velasco. The 2 motions, the Requests for Production of Documents on which they are based, and the responses to 3 those requests, are identical for both Kooger Farms and Mr. Velasco. So this opposition is directed 4 to both motions. Where appropriate, Kooger Farms and Mr. Velasco will be referred to collectively 5 as “Defendants.” 6 I 7 FACTUAL AND PROCEDURAL BACKGROUND 8 These consolidated cases (Lima v. Velasco, CV-20-000378 and Fletcher v. Velasco, CV-20- 9 000418) arise out of a two-vehicle traffic collision which occurred on January 2, 2019 near Modesto, 10 California. The accident happened at approximately 3:50 a.m. at the intersection of Beckwith Road 11 and North Dakota Avenue. 12 The intersection is a four-way stop. Each stop sign was equipped with flashing lights on top 13 of them. Defendant Jesus Velasco was driving a 2012 Peterbilt tractor which was owned by co- 14 defendant Kooger Farms. Mr. Velasco was towing a 2001 Vantage trailer. He was travelling on 15 eastbound Beckwith Road when he came to its intersection with North Dakota Avenue. He stopped 16 at the stop sign. He then drove into the intersection to continue on Beckwith Road. 17 Plaintiff and moving party Ryan Lima, Jr. was a front seat passenger in the 2000 Chevy 18 Suburban driven by co-plaintiff Robert “Trey” Fletcher on southbound North Dakota Ave. Mr. 19 Fletcher failed to stop at the stop sign and ran into Mr. Velasco’s trailer as it was moving through 20 the intersection. 21 On May 13, 2019, attorney Otto L. Haselhoff sent a letter to Defendants’ insurance carrier, 22 informing them of Mr. Haselhoff’s representation of Mr. Lima in this matter. (A true and correct 23 copy of Mr. Haselhoff’s May 13, 2019 letter is attached to the accompanying declaration of John P. 24 Cotter as a part of Exhibit A.) On June 9, 2019, the firm of Diepenbrock & Cotter, LLP was retained 25 to conduct the defense of Kooger Farms and Jesus Velasco in this case. At the direction of defense 26 counsel John P. Cotter, surveillance investigators were retained to conduct surveillance of plaintiff 27 Ryan Lima, and to obtain video documentation of his physical movement for potential use as 28 2 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 impeachment evidence in this case. Surveillance video of Mr. Lima was obtained and provided to 2 Mr. Cotter by the surveillance investigators. (See the accompanying declaration of John P. Cotter.) 3 Plaintiff filed his complaint on January 16, 2020. 4 II 5 PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANTS 6 On June 12, 2020, Mr. Lima’s attorney Otto L. Haselhoff served Requests for Production of 7 Documents on Defendants’ attorney Brian J. O’Connor. (A true and correct copy of the Request for 8 Production of Documents to Kooger Farms is attached to the accompanying declaration of Brian J. 9 O’Connor as Exhibit C.) Request Nos. 1, 2, 3 and 41 sought production of applicable insurance 10 policies. Request No. 42 sought rules and regulations regarding the load, transportation of goods, 11 etc. On November 10, 2020, just before the filing of this motion, Defendants served a supplemental 12 response to these requests. (A true and correct copy of the Supplemental Response to the Request 13 for Production of Documents to Kooger Farms is attached to the accompanying declaration of Brian 14 J. O’Connor as Exhibit D.) Although these requests are the subject of plaintiff’s motion, Defendants 15 believe that its Supplemental Response has resolved the dispute as to these requests. 16 Plaintiff’s Request for Production of Documents included Request No. 10, which is also the 17 subject of the present motion. Request No. 10 reads as follows: 18 10. Photographs, negatives, diagrams, video, motion pictures, slides, sketches, notes and/or other visual representations of the ACCIDENT SCENE, and/or 19 person(s), things or vehicle(s) involved in the INCIDENT, taken at any time, including surveillance of the PLAINTIFF(S). 20 21 Defendants served responses to the Request for Production of Documents on August 3, 2020. 22 (A true and correct copy of the Kooger Farm’s responses to the Request for Production of 23 Documents is attached to the accompanying declaration of Brian J. O’Connor as Exhibit E.) The 24 response to Request No. 10 read as follows: 25 This request seeks information which might reflect counsel’s evaluation of the case and/or his impressions, conclusions, opinions, legal research and or theories, or are 26 otherwise protected by the attorney work product doctrine. Whether any such surveillance has been performed will be disclosed after the defendants have deposed 27 the plaintiff and any other witness supporting the plaintiff’s claim of serious injury. (See Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177-178; Hogan and Weber: 28 California Civil Discovery, Work Product Protection: (2nd ed. 13:11, 13-34) 3 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 II 2 THE MEET AND CONFER EFFORTS 3 On August 14, 2020, Mr. Haselhoff sent a letter to Mr. O’Connor to meet and confer 4 regarding certain discovery responses which Mr. Haselhoff believed were deficient, including some 5 of the responses to the Request for Production of Documents. (A true and correct copy of Mr. 6 Haselhoff’s August 14, 2020 letter is attached to the accompanying declaration of Brian J. O’Connor 7 as Exhibit F.) With regard to Request No. 10, partly referencing his remarks regarding Form 8 Interrogatories 13.1 and 13.2, which also concern surveillance videos, Mr. Haselhoff wrote: 9 Request No. 10 concerns surveillance documents. Again, no privilege applies and the documents should be produced. . . . The response improperly states, without basis, 10 that disclosure of surveillance will be made following plaintiff’s deposition. 11 On September 28, 2020 Mr. O’Connor responded to Mr. Haselhoff’s meet and confer letter. 12 (A true and correct copy of Mr. O’Connor’s September 28, 2020 letter is attached to the 13 accompanying declaration of Brian J. O’Connor as Exhibit G.) With regard to Request No. 10, as 14 well as Form Interrogatories 13.1 and 13.2, Mr. O’Connor wrote: 15 We are not claiming that the information sought is absolutely protected by the work product doctrine. Our position is that it is protected by a qualified work product 16 privilege which recognizes the balancing test in which a court must engage to determine whether, and how, such information ought to be disclosed. The court must 17 weigh the plaintiff’s need for disclosure of the items and to avoid surprise at trial versus possible prejudice to defendants by early disclosure of such films. If a plaintiff 18 were to know of the existence and/or content of surveillance films in advance of his deposition, he may tailor his deposition testimony to address the film’s contents. If 19 a plaintiff is truthful about the nature and extent of his claimed injuries at deposition, he should have nothing to fear regarding the existence or contents of surveillance 20 films. 21 Our responses refer to the recognition of this balancing test which must be used by the court in the exercise of its discretion in Suezaki v. Superior Court (1962) 58 22 Cal.2d 166, 178. Our responses also reference Hogan and Weber: California Civil Discovery, Work Product Protection: (2nd ed. 13:11, 13-34), which cites numerous 23 cases in which courts perform the balancing test and come up with the reasonable solution which we propose—the contents of any surveillance films which might exist 24 will be made available to you after Mr. Pena’s (sic—Lima’s) deposition is taken. (See e.g., Snead v. American Export-Isbrandtsen Lines, Inc. (1973, ED PA) 59 FRD 25 148. 26 The written exchange between the attorneys was completed with Mr. Haselhoff’s letter of 27 October 2, 2020 in which Mr. Haselhoff set forth the points and authorities that he has used to 28 support this motion. (A true and correct copy of Mr. Haselhoff’s October 2, 2020 letter is attached 4 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 to the accompanying declaration of Brian J. O’Connor as Exhibit H.) 2 Subsequent to this exchange of letters, Mr. Haselhoff and Mr. O’Connor discussed the 3 dispute further by telephone, but they could not come to an agreement regarding the responses to 4 Request No. 10. However, they did agree that the dispute could be resolved by way of a motion to 5 compel further responses rather than a motion for a protective order. They also agreed that they 6 would not seek sanctions in either the motion or the opposition to it. 7 III 8 LEGAL ARGUMENT 9 A. California Law – CCP § 2018.020-030, Suezaki v. Superior Court and CCP § 2031.060 10 11 Code of Civil Procedure § 2018.020-030 codifies the attorney work product doctrine. CCP 12 § 2018.020 states: 13 It is the policy of the state to do both of the following: 14 (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to 15 investigate not only the favorable but the unfavorable aspects of those cases. 16 (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts. 17 CCP § 2018.030 provides: 18 (a) A writing that reflects an attorney's impressions, conclusions, opinions, or legal 19 research or theories is not discoverable under any circumstances. 20 (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will 21 unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. 22 23 (Emphasis added). The product of investigations “conducted by an attorney, or by an attorney’s 24 agent at the attorney’s behest, constitute work product protected by section 2018.030.” Coito v. 25 Superior Court (2012) 54 Cal. 4th 480, 494. 26 As noted in Weil & Brown et al., Cal Practice Guide: Civil Procedure Before Trial, 27 “Surprisingly, there is no recent authority dealing with claims of work product protection for photos, 28 videos, etc., prepared under an attorney’s direction. (Again, the Discovery Act is not helpful because 5 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 it leaves the definition of ‘work product’ to case law.)” (Weil & Brown § 8:243) But Defendants’ 2 position is supported by Suezaki v. Superior Court (1962) 58 Cal 2d. 166. Plaintiff agrees that “[t]he 3 Suezaki case, in fact, remains the leading authority in California on this topic.” (See plaintiff’s 4 Memorandum of Points & Authorities in support of this motion at page 7, line 16.) 5 In Suezaki, as here, at the instruction of defense counsel, an investigator was hired to take 6 motion pictures of the personal injury plaintiff without his knowledge. In discovery proceedings, 7 the plaintiffs requested that the defendants produce the films. Defendants resisted production, and 8 the plaintiffs’ filed a motion to compel. The trial court denied the motion, ruling that although the 9 “plaintiffs had made a sufficient showing of good cause for inspection,” the films were protected by 10 the attorney-client privilege. 11 The Suezaki court reversed, and held that surveillance films were not protected by the 12 attorney-client privilege. However, the court also entertained the defense argument that they were 13 protected by the attorney work product doctrine: 14 The defendants, however, approach the problem from another angle. They urge that, even if the films are not privileged for other reasons, they are privileged solely 15 because they are the “work product” of their attorney. 16 (Suezaki at 177.) 17 On this issue the court held that the attorney work product doctrine does not act as an 18 absolute privilege (CCP § 2018.030(a)) protecting surveillance films. However, it allowed for 19 qualified protection (CCP § 2018.030(b)), holding that: 20 . . . if the subject matter involved is the work product of the attorney, that is a factor that the trial court should consider, in its discretion, together with other relevant 21 factors, in determining whether to deny or to grant discovery in whole or in part. 22 ... 23 [U]nder the California rule, the trial court may consider the facts on which a claim of “work product” is predicated, and exercise the discretion granted by the provisions 24 of the discovery statutes in order to prevent abuse and to reach a determination consistent with equity and justice. This simply means that in California the fact that 25 the material sought to be discovered is the “work product” of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining 26 whether or not discovery should be granted. . . . The trial court must consider all the relevant factors involved and then determine whether, under all the circumstances, 27 discovery would or would not be fair and equitable. 28 /// 6 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 Thus, although the Court of Appeal reversed the trial court, it did not order the production 2 of the films as a matter of law. Instead, it held that: 3 . . . the matter should be referred back to the trial court to permit it to exercise its discretion as conferred by statute, and to permit it to decide whether on the showing 4 that has or may be made it should deny, grant, or conditionally grant the order. 5 The judicial discretion that the Suezaki court recognized is codified in Code of Civil 6 Procedure § 2031.060, which provides in relevant part: 7 (a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom 8 the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer 9 declaration under Section 2016.040. 10 (b) The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or 11 oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: 12 ... 13 (2) That the time specified in Section 2030.260 to respond to the set of 14 demands, or to a particular item or category in the set, be extended. 15 ... 16 (4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions. 17 ... 18 (g) If the motion for a protective order is denied in whole or in part, the court may 19 order that the party to whom the demand was directed provide or permit the discovery against which protection was sought on terms and conditions that are just. 20 21 As Mr. O’Connor stated in his meet and confer letter of September 28, 2020, the Defendants 22 are not claiming that surveillance videos are absolutely protected by the work product doctrine. The 23 defense position is that the law provides for a qualified work product protection which recognizes 24 the discretionary balancing test authorized by the Suezaki court and codified in Code of Civil 25 Procedure § 2031.060.1 The Defendants acknowledge that plaintiffs are entitled to information 26 about the videos, and to see the videos before trial “(1) to protect against surprise; and (2) prepare 27 1 Although the statute applies to protective orders, the parties have agreed that this dispute can be resolved by way of a 28 motion to compel production of the videos. The competing interests of the parties, and the discretionary balancing of those interests by the court, are the same, regardless of the procedure used to bring the matter before the court. 7 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 for an examination of the person who performed the surveillance.” (See plaintiff’s Memorandum 2 of Points & Authorities in support of this motion at page 8, line 15.) However, the Defendants’ 3 interests must also be weighed in the balance. By performing video surveillance of a personal injury 4 plaintiff, Defendants are attempting to acquire legitimate impeachment evidence in the event that 5 the plaintiff might be exaggerating his injuries. To be effective, such videos should generally be 6 recorded as early as possible, before initial written discovery is propounded. Thus they often exist 7 before the plaintiff has an opportunity to request information about, and the production of, the 8 videos. But if the Defendants were required to provide information about the videos or produce 9 them before the plaintiff’s deposition, the plaintiff could tailor his testimony to what he knows about 10 the videos or sees in them, rather than what he might say without such information. Thus, any 11 potential impeachment value of the evidence would be lost. As such, the Defendants will have 12 suffered “undue burden and expense” in procuring the video, as contemplated by Code of Civil 13 Procedure § 2031.060. 14 Withholding the videos, and information about them, until after his deposition is taken will 15 not prejudice the plaintiff. The videos, and information about them, will be provided after the 16 deposition, with plenty of time for him to take the deposition of the person who performed the 17 surveillance and otherwise prepare for trial. On the other hand, disclosure of the information and 18 the videos before the deposition threatens to render them utterly useless and thereby subject the 19 Defendants to undue burden and expense. 20 B. Persuasive Secondary Authority and Out-of-State Cases 21 The Suezaki court did not rule one way or another as to whether the films should be produced. 22 It left that determination to the trial court. There are no California cases which provide any further 23 guidance on how a court should resolve the issue, probably because each case turns on its own facts, 24 so the issue is not subject to any bright line rules. 25 However, many persuasive authorities have adopted the solution that the Defendants propose 26 here. One is Hogan and Weber’s treatise California Civil Discovery. In the section of work product 27 protection it states: 28 /// 8 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 The fair solution of this dilemma (production of surveillance footage) may be to deny discovery of either the existence or content of surveillance films until the defense has 2 had the opportunity to depose plaintiff and any other witness supporting the plaintiff’s claim of serious injury. 3 4 (See Hogan and Weber: California Civil Discovery, Work Product Protection: 2nd ed. 13:11, 13- 5 34.) 6 While out-of-state decisions are not binding on a California court, they can be considered 7 persuasive authorities. See, e.g., Hammond Lumber Co. v. Kearsley (1918) 36 Cal.App.431; In re: 8 Episcopal Church Cases (2009) 45 Cal.4th 467, 490. 9 Withholding of information regarding surveillance footage until after the plaintiff’s 10 deposition was also the solution ordered by the court in Snead v. American Export-Isbrandtsen 11 Lines, Inc. (1973, ED PA) 59 FRD 148. (In accordance with California Rule of Court 3.1113(i), a 12 true and correct copy of the Snead case is attached to the accompanying declaration of Brian J. 13 O’Connor as Exhibit I.) The Snead Court explained the dilemma as follows: 14 The main purpose for secret motion pictures of a plaintiff is to impeach his credibility. Films taken without the knowledge of the subject often have a dramatic 15 impact in court. One who has described in elaborate detail his disabilities, their extent and duration, and the limitations they impose may be shown by the camera to be a 16 fraud. The possibility that such pictures exist will often cause the most blatant liar to carefully consider the testimony he plans to give under oath. . . . Most defense 17 lawyers contend that if a plaintiff knows surveillance films exist, he will tailor what he has to say accordingly. For tactical reasons, therefore, they would prefer to have 18 plaintiff testify and then have the jury see the films. Defendants contend that uncertainty as to the existence of surveillance pictures is the best way to promote 19 truthfulness and the showing of such films in court, a proper way to penalize a plaintiff who has been dishonest. 20 Lawyers representing plaintiffs, on the other hand, argue that unless they can check 21 the integrity of the photographer, the accuracy of his methods, and review the pictures he has taken, they are deprived of the proper means to cross-examine or seek rebuttal 22 testimony. Thus, they maintain that the need to prevent possible abuse by defense investigators requires full disclosure as to the films in advance of trial and an 23 opportunity for them to be seen. 24 (Snead at 150.) 25 Ultimately the Snead Court decided that the fairest resolution of the dispute was to provide 26 for discovery of the surveillance footage after plaintiff’s deposition. This is the same solution being 27 proposed by Defendants in this case. The Snead Court explained its reasoning as follows: 28 /// 9 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 Once [the plaintiff’s] testimony is memorialized in deposition, any variation he may make at trial to conform to the surveillance films can be used to impeach his 2 credibility, and his knowledge at deposition that the films may exist should have a salutary effect on any tendency to be expansive. 3 4 (Snead at 151.) 5 The Snead Court’s decision to allow discovery of surveillance films after a plaintiff’s 6 deposition has likewise been followed in a number of other jurisdictions for the same reason—to 7 prohibit a plaintiff from preparing his testimony in advance of deposition to conform to whatever is 8 contained in the surveillance footage. See, e.g., Wolford v. JoEllen Smith Psychiatric Hospital 9 (1997, La) 693 So.2d 1164; Ward v. CSX Transportation, Inc. (1995, ED NC) 161 FRD 38; Corrigan 10 v. Methodist Hospital (1994, ED PA) 158 FRD 54, 59. (In accordance with California Rule of Court 11 3.1113(i), true and correct copies of the Wolford, Ward and Corrigan cases are attached to the 12 accompanying declaration of Brian J. O’Connor as Exhibits J, K, and L, respectively.) Consistent 13 with the preceding authorities, Defendants have never proposed a complete prohibition on discovery 14 of the surveillance films but have instead proposed the reasonable solution of producing the videos, 15 and information about them, after plaintiff’s deposition has been completed. To date, plaintiff has 16 refused to accept this offer. 17 In this motion, plaintiff claims that Snead was contradicted within its own district in 18 Babyage.com, Inc. v. Toys “R” Us Inc. (2006, ED PA) 458 F. Supp. 2d 263. (See plaintiff’s 19 Memorandum of Points & Authorities in support of this motion at page 11, line 4. In accordance 20 with California Rule of Court 3.1113(i), a true and correct copy of the Babyage.com case is attached 21 to the accompanying declaration of Brian J. O’Connor as Exhibit M.) However, plaintiff’s criticism 22 of Snead by reference to Babyage.com is misplaced. The case is distinguishable on numerous 23 grounds. Both Snead and Babyage.com are trial court cases, so Babyage.com does not overrule 24 Snead. In addition, Babyage.com was not a personal injury case; it was an antitrust case. In fact, 25 Snead is mentioned in a footnote with no criticism. It is merely prefaced with “But see . . .” And 26 the footnote clearly distinguishes Snead as a personal injury case. (See Babyage.com at 265, fn. 8.) 27 Moreover, the subject of the discovery dispute in Babyage.com was not surveillance videos. 28 In Babyage.com the plaintiffs wanted to withhold confidential communications which had been 10 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL 1 surreptitiously recorded on audiotape. First of all, such recordings are not only inadmissible as 2 evidence in California courts (Penal Code § 632(d)), but making such a recording is a criminal 3 offense. (Penal Code § 632(a)). Such recordings would not be the subject of discovery proceedings 4 in this state. So Babyage.com is not applicable to this case. Babyage.com is also distinguishable by 5 the fact that what is depicted on surveillance videos is neither confidential, nor is it a communication. 6 It is simply a depiction of a person performing activities in public places. For that reason, 7 Babyage.com is not applicable. 8 IV 9 CONCLUSION 10 For the foregoing reasons, Defendants Kooger Farms and Jesus Velasco respectfully request 11 that the court issue an order pursuant to CCP § 2031.060 relieving Defendants of the obligation to 12 produce surveillance videos of plaintiff Ryan Lima until after the Defendants have taken his 13 deposition. 14 15 Respectfully submitted, 16 DATED: December 29, 2020 DIEPENBROCK & COTTER, LLP 17 By: 18 JOHN P. COTTER BRIAN J. O’CONNOR 19 Attorneys for Defendants KOOGER FARMS, LLC 20 J. JESUS MUNOZ VELASCO 21 22 23 24 25 26 27 28 11 MEMORANDUM OF POINTS AND AUTHORITIES ISO OPPOSITION TO MOTION TO COMPEL