JOSEPH STADISH еt al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SOUTHERN CALIFORNIA GAS COMPANY, Real Party in Interest.
No. B127205
Second Dist., Div. Two.
Apr. 30, 1999.
A petition for a rehearing was denied May 20, 1999.
1130
Ian Herzog; Amy Ardell; and Evan D. Marshall for Petitioners.
No appearance for Respondent.
David Keitel; John McDowell; and Rey S. Yang for Real Party in Interest.
OPINION
MALLANO, J.*-Petitioners, Joseph and Lyn Stadish, seek a writ of mandate directing the superior court to set aside its order of October 29, 1998, in which it denied petitioners’ motion to compel the production of certain documents, and granted real party Southern California Gas Company‘s motion for a protective order. We conclude that under the circumstances of this case, the court was permitted, under the authority of
Petitioners filed an eight-count complaint2 against Southern California Gas Company (the Gas Cоmpany) alleging injuries from exposure to toxic chemicals while living in the vicinity of an underground, natural gas storage field owned by the Gas Company in the City of Playa del Rey. The Playa del Rey field originally housed oil and gas, which resided in its natural condition in the interstices of rock occupying certain strata beneath the surface of the earth. After the oil and gas deposits were withdrawn from the field, the Gas Company, in the mid-1940‘s, began using the depleted field by refilling the reservoir with natural gas obtained from other places. Petitioners claim that there have been hazardous vapor releases from the facility, gases vented to the atmosphere, and potentially dangerous migration of stored gas, and that as a result, members of the public have been physically and mentally injured.
On May 29, 1998, petitioner Lyn Stadish served the Gas Company with a request for production of documents, demanding production of 37 broad categories of documents.3
On June 13, 1998, counsel for the Gas Company, David Keitel, sought from petitioners’ attorney, Amy Ardell, an extension of time within which to respond to several of the discovery requests and to establish a “workable timetable” for all responses.4 Keitel proposed that The Gas Company‘s response to the production of documents be provided “by the end of June.”
On June 19, 1998, Keitel advised that the Gas Company would serve responses by “the last half of July.”
On July 7, 1998, Keitel expressed his continued concern about the “breadth and depth” of the document demand, and proposed a July 24, 1998, date for the Gas Company‘s response to the production of documents.
On July 24, 1998, Keitel advised that the Gas Company “had collected a substantial number of boxes of documents” responsive to petitioner Lyn
Upon her return, Ardell suggested that the Gas Company produce documents on August 5, 1998. Keitel indicated that he was not available on that date. It was finally agreed that Ardell would review the documents on August 7, 1998.
On August 7, 1998, the Gas Company served a verified, written response to petitioner Lyn Stadish‘s request for production of documents. The Gas Company‘s response asserted various attorney-client and attorney work-product privileges, and objected to each “demand on the grounds that it is overbroad in scope and time frame, unduly burdensome, oppressive and harassing. to the extent that it seeks documents and requests information thаt are neither relevant to the subject matter of the pending litigation nor reasonably calculated to lead to the discovery of admissible evidence.” The Gas Company promised to “produce and make available for inspection and copying all non-privileged, responsive documents currently in the possession, custody or control” of the Gas Company. The Gas Company made no mention of any trade secret privilege.
On the same day that the Gas Company served its response to petitioner Lyn Stadish‘s request for production of documents, it made available 40 boxes of documents containing approximately 50,000 pages of documents for Ardell to review. Keitel advised Ardell that there were, however, “some very isolated categories of documents that I cannot produce this morning, but expeсt to have within a matter of days.”
On August 13, 1998, Ardell advised Keitel that although the Gas Company‘s response to petitioner Lyn Stadish‘s request for production of documents included objections based upon privilege, the Gas Company had failed to provide a privilege log.
Ardell and an associate, Bernard Endres, visited the Gas Company‘s offices and reviewed the documents produced in response to petitioner Lyn Stadish‘s request for production of documents. Endres spent approximately ten three- to six-hour days in pursuit of this task.
Following the inspection, Ardell selected for copying approximately one-half of the 50,000 pages of the documents which Keitel had made available, after which counsel discussed the most cost-effective method of duplicating this material. A privilege log was provided for a number of documents withheld on the bases of attorney-client privilege and attorney work-product.
On August 20, 1998, petitioner Joseph Stadish served a separate request for production of documents. He demanded production of 21 categories of documents.
On August 28, 1998, Keitel inquired about Endres‘s role in petitioners’ case. On August 31, 1998, Ardell replied that “Mr. Endres is not my designated representative/expert. He is an associate working with me in this matter.”5
On September 9, 1998, Keitel agreed to provide Ardell with a two-week extension of time within which to file a motion to compel the production of further documents with regard to Lyn Stadish‘s document request.
On September 18, 1998, Ardell proposed, and Keitel agreed, that the Gas Company would make documents responsive to petitioner Lyn Stadish‘s document demand available for a second inspection on September 23, 1998. On September 23, 1998, Ardell designated which of the documents she wanted to have copied. Keitel agreed that Ardell could have the documents requested, and volunteered to copy the documents so they would be “Bates” stamped. Ardell reserved the right to copy at a later time other documents which had been produced.
On October 7, 1998, Ardell agreed to an October 14, 1998 date to review the “second round” of documents produced by the Gas Company.6
Sometime in early October 1998, Keitel informed Claus Langer, a manager at the Gas Company, that Bernard Endres had pаrticipated in reviewing documents for petitioners. Langer informed Keitel that Endres had been involved in actively campaigning and protesting against the “Playa Vista”
On October 9, 1998, Keitel advised Ardell that “[i]t has recently come to my attention that the documents you have selected raise significant concerns by the Gas Company about any use of these documents outside this litigation. Specifically, information has surfaced concerning the role of Bernard Endres in this litigation. Use of these documents (which constitute protectible trade secrets) outside this litigation would subject the Gas Company to a serious risk of adverse competitive intelligence. I would ask that these documents be produced under a standard protective order that would limit their use and dissemination to this lawsuit. I will forward a draft of a confidentiality agreement/protective order to you.”
Keitel informed Ardell that the Gas Company would both fully produce further documents responsive to petitioner Lyn Stadish‘s request for production of documents, and allow Ardell to fully inspect further documents at the Playa del Rey facility in response to petitioner Joseph Stadish‘s request for production of documents, so long as Ardell signed a confidentiality agreement.8 Keitel sent Ardell a proposed confidentiality agreement.
On October 14, 1998, Ardell objected to the proposed confidentiality agreement. She reminded Keitel that “[t]hese documents were requested and produced months ago and would already be in my possession if you had not insisted on doing the copying instead of letting my copy service do it.” She
On October 14, 1998, Keitel sent a modified confidentiality agreement. Ardell refused to sign the agreement.
On October 19, 1998, petitioners moved, ex parte, for an order shortening time to bring a motion to compel production of documents. At the hearing, Keitel advised the court that the Gas Company sought a protective order for the documents in dispute. The court informed Keitel that the Gas Company need not file a separate motion, and that the court would entertain the Gas Company‘s request for a protective order in its opposition papers.
On October 19, 1998, petitioners filed a motion to compel the Gas Company to produce the documents called for in petitioner Lyn Stadish‘s request for production of documents served on May 29, 1998, “which they previously agreed to produce and now will not,” for an order compelling the Gas Company to provide verification that all documents requested by Lyn Stadish‘s request for production of documents served on May 29, 1998, had been identified and produced, for an order compelling the Gas Company to produce the documents called for in petitioner Joseph Stadish‘s request for production of documents served August 20, 1998, and for an order directing the Gas Company to provide verification that all the documents required by Joseph Stadish‘s request for production of documents had been identified and produced. On October 26, 1998, the Gas Company filed its opposition seeking a protective order from the court.
At the hearing on October 29, 1998, the trial court denied petitioners’ motion to compel. The court determined that the Gas Company‘s responses to petitioner‘s document demand were timely, and that the Gas Company had made a prima facie showing of trade secret privilege, impliedly finding that the Gas Company had not waived its right to assert the trade secret privilege as a basis for its request for a protective order.
The trial court was presented with a motion to compel the production of documents, some of which had already been produced for inspection, and some of which, although requested, had not yet been produced.
A. Waiver
1. Were the Gas Company‘s responses to petitioners’ document demands timely filed?
With respect to Lyn Stadish‘s request for production of documents, the correspondence attached to the motion to compel indicates that counsel for petitioners (Ardell) and counsel for the Gas Company (Keitel) agreed to an extension of time within which the Gas Company‘s response to Lyn Stadish‘s document demand was to be filed, and that the Gas Company filed its response within the time agreed. We conclude, therefore, that the Gas Company did not waive the objections asserted within its response, namely, attorney-client privilege and attorney work-product privilege, to the document demand served on May 29, 1998, by petitioner Lyn Stadish.
With respect to Joseph Stadish‘s request for production of documents, there is no indication in the record that the Gas Company ever filed a response. During oral argument, counsel for the Gas Company asserted that it did not file a response to Joseph Stadish‘s document demand because none was due. In the absence of a finding by the trial court with respect to when the Gas Company‘s response to Joseph Stadish‘s document demand was due, we cannot determine whether the Gas Company waived its objections by failing to timely file a response to Joseph Stadish‘s request for production of documents. The trial court, upon being provided with additional information, will be required to make this determination.
2. Did the Gas Company waive its trade secret privilege by failing to assert the privilege in its responses to petitioners’ requests for production of documents?
Because the
A review of the record reveals that the Gas Company did not assert the trade secret privilege in its response to petitioner Lyn Stadish‘s request for production of documents. The record also reveals that after the Gas Company filed its response, counsel for petitioners, Ardell, reviewed 40 boxes of documents, and the Gas Company agreed to copy documents she designated and deliver them to her. It was only after these events transpired that Ardell was informed that the Gas Company was claiming a trade secret privilege. We conclude that the Gas Company, as a matter of law, waived its right to assert the trade secret privilege as to the documents (including the 40 boxes of documents previously produced by the Gas Company) sought in petitioner Lyn Stadish‘s request for production of documents.
As to whether the Gas Company waived its right to assert the trade secret privilege in connection with the document demand served by Joseph Stadish on August 20, 1998, we cannot make such a determination because, as previously noted, the record does not reflect when the Gas Company‘s response was due.11 On remand, the trial court will be required-after being provided with additional information-to make a determination as to whether a waiver occurred.
B. Was petitioners’ motion to compel properly denied?
Petitioners sought to compel the Gas Company to produce the documents called for in petitioner Lyn Stadish‘s request for production of documents
C. Was the protective order properly granted?
The Gas Company claims that the language of
In Coalition Against Police Abuse v. Superior Court, supra, 170 Cal.App.3d 888, the plaintiffs sued a city and a number of individuals and entities challenging a police department‘s use of undercover officers and agents to surveil and report on assertedly lawful political activities. In the course of the proceedings, the plaintiffs had obtained documents from the defendants through discovery. A large number of the documents were produced subject to protective orders which imposed restraints on the copying and use of the documents, and which permitted limited dissemination of certain of the discovered materials. (Coalition Against Police Abuse v. Superior Court, supra, 170 Cal.App.3d at p. 892.) Following entry of judgment pursuant to a settlement agreement, the trial court entered an order requiring that all of the documents described in the order which had been produced by
In In re Marriage of Candiotti, supra, 34 Cal.App.4th 718, a family law custody and visitation proceeding, the trial court issued a protective order restraining an ex-wife from disseminating information regarding the past driving record and other defined personal history of her ex-husband‘s present wife to anyone besides certain specified individuals. The order covered both information acquired during formal discovery and information independently obtained by the ex-wife. (Id. at pp. 719-720.) The Court of Appeal affirmed that part of the order banning dissemination of information obtained through discovery, and reversed that part of the order banning dissemination of independently acquired materials. Thus, only information obtained as a result of discovery could properly be made subjeсt to a protective order. (Id. at p. 724.)
The 40 boxes of documents when produced for inspection by the Gas Company were not subject to a protective order. Petitioners did not, as did the plaintiffs in Coalition and the ex-wife in Candiotti, obtain documents and information pursuant to a court order imposing a protective order. Accordingly, Coalition and Candiotti are distinguishable.
The cases cited by the parties do not directly address the issue of whether a trial court has the authority to issue a protective order where, as here, the party seeking the order failed to assert the trade secret privilege in response to a document demand, and thereafter produced most of the documents for inspection. The answer, we believe, is found in
Here, the trial court delegated to the parties the responsibility of determining which items of discovery contained trade secrets. This was an impermissible delegation of authority.
A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper. (
The state has two substantial interests in regulating pretrial discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the legitimate privacy interests of the litigants and third parties. (Westinghouse, supra, 39 Cal.App.4th at p. 1208.) “The interest in truth and justice is promoted by allowing libеral discovery of information in the possession of the opposing party. [Citation.] The interest in privacy is promoted by restricting the procurement or dissemination of information from the opposing party upon a showing of ‘good cause.’ [Citations.]” (Ibid.) The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. (Ibid.)
The Westinghouse court warned that protective orders “impair the public‘s access to discovery records as well as the parties’ First Amendment right to disseminate information to the public.” (Westinghouse, supra, 39 Cal.App.4th at p. 1208.) “Because the judicial process is frequently the avenue by which the public and regulatory agencies learn of significant health and safety hazards, blocking this avenue may prove detrimental to the public well-being. For this reason, courts frequently consider the public interest when determining whether gоod cause exists for a protective order. [Citations.]” (Ibid.)
In the event the trial court determines that documents requested by petitioners contain trade secrets and are relevant to public health, the trial court must then, in compliance with Westinghouse, balance the interests of the public, the petitioners, and the Gas Company, and reach a decision as to whether dissemination of the documents should be restricted.
DISPOSITION
Let a writ of mandate issue directing the superior court to set aside its order of October 29, 1998, in which it denied petitioners’ motion to compel the production of documents, and granted real party in interest the Gas Company‘s request for a protective order, and to conduct further proceedings consistent with the views expressed herein. Petitioners shall recover their costs.
Nott, Acting P. J., concurred.
ZEBROWSKI, J., Concurring.
Normally it is permissible to follow the case management order (CMO) procedures which have become common in complex litigation. CMO‘s are designed to streamline case processing, to control delay and expense, and to promote just results. A CMO often includes or incorporates a confidentiality order. Confidentiality orders often allow either side unilaterally to designate documents as confidential. Such unilateral designation subjects a designated document to whatever protections are provided by the confidentiality order. The instant case proceeded similarly to this common practice up to this point.
Missing from the instant case, however, are the “declassification” provisions commonly found in CMO‘s and related confidentiality orders. Confidentiality orders generally do allow initial unilateral classification as confidential, and hence do allow a document initially to be unilaterally subjected
In the instant case, there were no declassification provisions in the confidentiality order proposed by Southern California Gas Company. Although the trial court edited the proposed order, the trial court did not insert declassification provisions. In addition, the transcript of the hearing leading to the entry of the order suggests that the trial court did not intend to be further involved after unilateral classification. I agree that a court cannot delegate to a party the court‘s ultimate obligation to make decisions in this regard. However, if the trial court had included declassification provisions and had shown an intent to apply them, I would find this common CMO procedure proper and unobjectionable.
Los Angeles Superior Court Rules, rule 7.19 (Local Rule 7.19) (Court Rules Service (L.A. Daily J.)) does not change this conclusion. Local Rule 7.19 is ironically contained in chapter 7, “Trial Court Delay Reduction,” although it can only reasonably be seen to promote the opposite effect. Notwithstanding that a state statute provides for protective orders, Local Rule 7.19 announces the policy of the Los Angeles Superior Court that “confidentiality agreements and protective orders are disfavored.” It further provides that “[s]uch agreements will not be recognized or approved by this court absent a particularized showing (document by document) that: [¶] (a) Secrecy is in the public interest; and [¶] (b) The proponent has a cognizable interest in the material. or is otherwise protected by law from disclosure; and [¶] (c) That disclosure would cause serious harm.” (Italics and underlining added.) Local rules such as this are enforceable so long as not in conflict with some higher law. (Cf.
Local Rule 7.19 seems to give inordinate weight to the values of open discovery, and little or no weight to the interests of cost control and judicial economy. The time which might be consumed by “a particularized showing (document by document)” regarding each of the thousands of documents which a party might seek to protect could almost certainly be spent more
Nevertheless, if Local Rule 7.19 were interpreted to restrict the granting of a protective order even when needed, it might (as applied) conflict with
Most superior courts around the state will have no “particularized showing (document by document)” requirement, and hence will clearly be free to emрloy the procedures provided in typical CMO‘s used around the country as discussed above. (Cf., e.g., Cipollone v. Liggett Group, Inc. (3d Cir. 1986) 785 F.2d 1108, 1122 [document-by-document approach not mandated by federal rule].)
A petition for a rehearing was denied May 20, 1999.