June 15, 2012 Minute Order re Demurrer_Motion to Strike_Discovery Hearing

This is an unofficial transcript of a scanned Court Document, the original scan can be viewed here

 


SUPERIOR COURT OF CALFORNLA,
COUNTY OF SAN DIEGO
CΕΝΤRΑL

MINUTE ORDER

 

June 15, 2012 Minute Order re Demurrer_Motion to Strike_Discovery Hearing

DΑΤΕ: 06/15/2012
TIME: 10:00:00 AM
DEPT: C-60

JUDICIAL OFFICER PRESIDING: Gonzalo Curiel
CLERK. Hayden Henson
REPORTER/ERM. Tamela Ervin CSRił9685
BAILAFF/COURT ATTENDANT: A. Salvador

CASE NO: 37-2011-00102593-CU-OE-CTL
CASE INIT.DATE: 12/16/2011
CASE TITLE: Felczer vs. Apple linc [IMAGED]
CASE CATEGORY: Civil – Unlimited
CASE TYPE. Other employment


EVENT TYPE: Demurer Motion to strike
MOVING PARTY: Apple Inc
CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/07/2012


EVENT TYPE: Discovery Hearing
MOVING PARTY: Brandon Felczer
CAUSAL DOCUMENTDATE FILED: Motion to Compel Discovery FURTHER RESPONSES TO REQ FOR PRODUCTINS OF DOCS, 04/13/2012


EVENT TYPE: Demurrer / Motion to Strike
MOVING PARTY: Apple Inc
CAUSAL DOCUMENTIDATE FILED. Motion to Strike, 02/07/2012

Additional events listed on last page.


APPEARANCES
Jeffrey L. Hogue, counsel, present for Plaintiff(s).
LYNN C HERMLE, counsel, present for Defendant(s).
Tyler J. Belong, counsel, present on behalf of Plaintiff(s).


Attorney Hogue informs the Court that the tentative did not address plaintiff’s Motion to Compel Apple’s Answer to Special Interrogatories and supplemental briefing, Counsel further informs the Court that he s believes at the 3/13/12 ex parte the Court deemed the ex parte application the moving papers.

Attorney Hermie informs the Court that when she contacted the clerk regarding the motion, she was informed that it was taken off calendar due to the motion not being timely filed.

The Court directs the clerk to locate plaintiff’s supplemental briefing and sets plaintiff’s motion on 727.2012 at 10:00 a.m. in this department.

The Court hears oral argument and confirms the tentative ruling as follows:

1. Defendant Apple Inc.’s Demurrer and Motion to Strike First Amended Complaint

The Court takes the matter under submission.

2. Defendant Apple Inc.’s Motion to Compel Further Responses to Defendant’s Special Interrogatories, Set One, and Request for Production, Set One

The Court grants defendant Apple Inc.’s (“defendant”) motion to compel further responses to defendant’s special interrogatories, set one, and defendant’s request for production, set one, Plaintiff shall serve, within ten days of this ruling, a further response to defendant’s special interrogatory, no. 1. Plaintiff shall also serve, within ten days of this ruling, responsive documents to defendant’s request for production, nos. 66, 88, and 90, as well as an amended privilege lot that identifies the ale and people in the privileged documents.

Defendant’s special interrogatory no. 1 is appropriate since it seeks information to support.plaintiffs contention that his counsel is adequate class counsel, a criteria to obtain class certification, (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450 – “[a]dequacy of representation depends on whether the plaintiffs attorney is qualified to conduct the proposed litigation”.)

Defendant’s request for production no. 66 (independently-prepared witness statements and declarations pertaining to plaintiff’s action) is appropriate. Independently-prepared witness statements are not attorney work product since they do not reveal counsel’s evaluation of the case and are nonderivative. (E.g., Rodriguez v. McDonnell Douglas Corp. o 987) 87 Cal.App.3d 626, 647 – a witness statement was not work product because “written statements of a prospective witness are considered material of a nonderivative or noninterprotative nature.”)

Defendant’s request for production no. 88 (counsel’s communications with defendant’s employees about the allegations in plaintiff’s complaint) is appropriate. Plaintiff’s response shall be limited to unprotected written communications with putative class members, who are third parties.

Defendant’s request for production no. 90 (documents plaintiff obtained from defendant) is appropriate. The request is relevant to defendant’s defenses, e.g., whether plaintiff violated plaintiffs intellectual Property Agreement with defendant, as contended by the motion.

As for the amended privilege log, the attorney–client privilege does not protect the fact that a communication took place or the time, place and participants to the communication. (Samuels v. Mix (1999) 22 Cal4th 1, 20 at footnote 5.) Also, plaintiff has not shown that the privacy rights of the identities of the parties to the written communications outweighs defendant’s need for the discovery. Further, plaintiff fails to provide support that the identities of the parties to the privileged communications are trade secrets, as contended in plaintiff’s opposition. The date of the attorney–client agreement is relevant to establishing when plaintiff obtained legal representation for his claims against defendant.

The usual discovery monetary sanctions are denied as unwarranted under the circumstances,

3. Plaintiffs Motion to compel Further Responses to Plaintiff’s Request for Production, Set
One

The Court grants plaintiff’s motion to compel further responses to plaintiff’s request for production, set one. Defendant shall serve, within ten days of this ruling, responsive documents to plaintiff’s request for production nos. 14, 19, 21, and 27. Plaintiff’s motion establishes that these requests for production are appropriate. Defendant in responding shall redact employee private information and identification to protect the employee’s right to privacy.

The usual discovery monetary sanctions are denied as unwarranted under the circumstances.

Apple shall provide random sample of five percent of retail employees within 30 days and additional five percent of non-retail employees within 60 days. Counsel shall meet and confer regarding the procedure for random sampling. If counsel are unable to reach an agreement they may appear ex parte.

Discovery modified as set forth in the court reporter’s transcript.

The Motion Hearing (Civil) is scheduled for 07/27/2012 at 10:00AM before Judge Gonzalo Curiel.

Civil Case Management Conference is continued pursuant to Court’s motion to 08/17/2012 at 10:00AM before Judge Gonzalo Curiel.

IT IS SO ORDERED.
Judge Gonzalo Curiel


ADDITIONAL EVENTS:


EVENT TYPE: Discovery Hearing


EVENT TYPE: Civil Case Management Conference


 

This is an unofficial transcript of a scanned Court Document, the original scan can be viewed here