Case Name:??? Jane Doe, a minor, by and through her Guardian ad Litem, Richard Doe, ????????????????????????? et al. v. YMCA of Silicon Valley, et al.
Case No.:??????? 2014-1-CV-265774
Non-Party The Hoffman Agency?s Motion for Protective Order
Factual and Procedural Background
In this action, minor plaintiffs Jane Doe, Jill Doe, Jane Doe 3, and Jane Doe 4 (collectively, ?Plaintiffs?) allege that they were sexually abused by defendant Nicholas Lhermine (?Lhermine?) from approximately 2011 to 2013, while Lhermine was employed by defendants YMCA of Silicon Valley (?YMCA?) and Mt. Madonna YMCA (?Mt. Madonna). As a result of the alleged sexual abuse, Plaintiffs suffered mental and emotional distress and seek to recover damages for the same.
In 2014, Plaintiffs filed suit against Lhermine, YMCA, and Mt. Madonna, alleging claims for (1) sexual abuse of a minor, (2) negligence, (3) negligent training and supervision, and (4) intentional infliction of emotional distress.
Currently before the Court is the motion by non-party The Hoffman Agency (?Hoffman?)?a public relations firm employed by the YMCA to assist it with media inquiries regarding the alleged incidents of abuse?for a protective order prohibiting Plaintiffs from taking a second deposition of its general manager, Stephen Burkhart (?Burkhart?), and for an award of monetary sanctions.
Discovery Dispute
In August 2015, Plaintiffs attempted to serve Burkhart with a deposition subpoena, but were unsuccessful.[1] (Allard Dec., Ex. 1.) Subsequently, attorney Marlis McAllister (?McAllister?) contacted Plaintiffs? counsel and informed him that she had been retained by Burkhart with respect to the deposition subpoena. (Allard Dec., Ex. 2.) Over the following days, Plaintiffs? counsel and McAllister exchanged emails regarding the scheduling of Burkhart?s deposition. (Allard Dec., Exs. 3-5.) McAllister advised Plaintiffs? counsel that he need not serve Burkhart with a deposition subpoena as Burkhart would appear at his deposition voluntarily upon receipt of an amended deposition notice. (Ibid.)
In September 2015, Plaintiffs served Burkhart with an amended notice of deposition, setting the deposition for October 28, 2015, and asking Burkhart to produce any and all documents relating to work he performed for YMCA from July 2013 to July 2014. (Allard Dec., Ex. 6.)
Burkhart?s deposition proceeded as scheduled on October 28, 2015.[2] (Allard Dec. Ex. 7, McAllister Dec., Ex. A.) At the outset of his deposition, Burkhart produced approximately 450 pages of documents responsive to the amended deposition notice. (McAllister Dec., ? 2.) Plaintiffs? counsel reviewed the document production, noticed that no emails were included, and questioned Burkhart regarding the existence of any emails and why they had not been produced. (Allard Dec., ? 8; McAllister Dec., Ex. A, pp. 43-44, 74.) Burkhart estimated that he exchanged approximately ten emails with two YMCA employees, Elizabeth Jordan and Kathy Riggins. (McAllister Dec., Ex. A, pp. 43-45.) He testified that he did not produce any emails because his IT department ?killed? and/or ?lost? all of his emails from the relevant time period and he did not have any emails ?beyond the last ? year.? (McAllister Dec., Ex. A, pp. 43-44, 74.) Burkhart then agreed to attempt to locate any emails that were exchanged between Hoffman and representatives of YMCA. (McAllister Dec., Ex. A, p. 75.) Following his deposition, Burkhart did not supplement his document production. (Allard Dec., ? 8.)
Several months later, Plaintiffs served a business records subpoena on Hoffman, requesting production of all writings received by Hoffman from YMCA or sent by Hoffman to YMCA from July 2013 through September 2013. (McAllister Dec., Ex. B; Allard Dec., ? 8.) In response to the business records subpoena, Hoffman produced approximately 50 pages of documents. (McAllister Dec., ? 4.) Hoffman?s document production included emails authored by a former employee, Scott VanSickle (?VanSickle?), that were not produced by Burkhart at his deposition. (McAllister Dec., ? 4, Ex. C; Allard Dec., ? 8, Ex. 8.)
After reviewing Hoffman?s document production, Plaintiffs? counsel contacted McAllister and asserted that a second deposition of Burkhart was warranted regarding the newly produced emails. (McAllister Dec., ? 6, Ex. D; Allard Dec., ? 9.) McAllister responded that she did not believe there was good cause to reopen Burkhart?s deposition based the emails and Burkhart would not appear for a second deposition. (McAllister Dec., Ex. E.) Plaintiffs? counsel and McAllister engaged in further meet and confer efforts, but were unable to resolve their dispute. (McAllister Dec., Exs. F-K.) Plaintiffs? counsel informed McAllister that given the impasse, he would notice Burkhart?s deposition and, if necessary, proceed with a motion to compel his attendance. (McAllister Dec., Ex. K.) It appears that Plaintiffs subsequently noticed Burkhart?s second deposition for May 17, 2016.[3] (Allard Dec., Ex. 9)
In light of the foregoing, on May 9, 2016, Hoffman filed the instant motion for protective order. After the motion was filed, Plaintiffs? counsel contacted McAllister, indicating that Plaintiffs were willing to postpone Burkhart?s second deposition as VanSickle?s deposition was pending and it was possible that he would be able to sufficiently answer questions about the newly produced emails.[4] (Allard Dec., ? 10, Ex. 9.) McAllister promptly rejected Plaintiffs? proposal. (Ibid.) Thereafter, Plaintiffs filed papers in opposition to the motion on May 26, 2016, in which they request an award of monetary sanctions.?Hoffman filed a reply on June 2, 2016.
Discussion
Pursuant to Code of Civil Procedure section 2025.420, Hoffman moves for a protective order prohibiting Plaintiffs from taking a second deposition of Burkhart.[5]
- Meet and Confer
??????????? As an initial matter, Plaintiffs argue that Hoffman failed to adequately meet and confer prior to filing the instant motion because Hoffman?s counsel, McAllister, ?never mentioned her intention to bring this motion.? (Opp?n., p. 3:3-10, emphasis omitted.) Plaintiffs assert that if they had known Hoffman was going to file the instant motion, it ?would have afforded [them] the opportunity to tender their proposal???that the discovery dispute be set aside and re-assessed following the deposition of former President of Hoffman, Scott Van Sickle???in advance of its filing and thereby avoided this motion altogether.? (Opp?n., pp. 2-3.)
A party moving for a protective order must file a meet and confer declaration along with his or her motion.?(Code Civ. Proc., ? 2025.420, subd. (a).)?The declaration must set forth facts ?showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.??(Code Civ. Proc., ? 2016.040, italics added.) The rule requiring parties to meet confer is designed ?to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order? which, in turn, ?will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.? (Townsend v. Super. Ct. (1998) 61 Cal.App.4th 1431, 1435.) The level of effort at informal resolution that satisfies the ?reasonable and good faith attempt? standard depends upon the circumstances of the case. (Obregon v. Super. Ct. (1998) 67 Cal.App.4th 424, 431.)
Here, Hoffman adequately met and conferred with Plaintiffs prior to the filing of the instant motion. The evidence demonstrates that Hoffman?s counsel, McAllister, engaged in multiple good faith discussions with Plaintiffs? counsel regarding the propriety of a second deposition of Burkhart. Under the Code of Civil Procedure, Hoffman was not obligated to inform Plaintiffs that it would be filing the instant motion for protective order. Rather, Hoffman was only required to meet and confer regarding the issues raised in the motion. It is readily apparent that counsel for both Hoffman and Plaintiffs adequately discussed the issues presented in this motion.
Moreover, it is unclear to the Court why Plaintiffs needed to be informed by Hoffman that it intended to file this motion in order for Plaintiffs to present their ?proposal? regarding the postponement of Burkhart?s deposition. Plaintiffs noticed VanSickle?s deposition and knew that he authored the subject emails and might have information about the same. Thus, Plaintiffs could have offered to postpone Burkhart?s deposition until the completion of VanSickle?s deposition at some time prior to the filing of the instant motion. Furthermore, even if Plaintiffs presented their ?proposal? to Hoffman prior to the filing of the motion, it is unlikely that the parties would have reached an informal resolution of the matter. When Plaintiffs offered to postpone Burkhart?s deposition, Hoffman rejected the offer because Plaintiffs? ?ability to get information from Scott VanSickle was only one of the grounds for the motion.? (Allard Dec., Ex. 9.)
For these reasons, Plaintiffs? arguments regarding Hoffman?s meet and confer efforts lack merit.
- Legal Standard
Code Civil Procedure section 2025.420 provides that ?[b]efore, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order.? (Code Civ. Proc., ? 2025.420, subd. (a).)
Upon the filing of a motion for protective order, ?[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense,? including an order that the deposition not be taken at all. (Code Civ. Proc., ? 2025.420, subd. (b)(1).) On a motion for protective order, the court can also restrict the frequency or extent of use of a discovery method if it determines that the deposition would be unreasonably cumulative or duplicative, or the discovery is obtainable from some other source that is more convenient, less burdensome, or less expensive. (Code Civ. Proc., ? 2019.030, subds. (a)(1), (b).) Furthermore, ?[i]f the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.? (Code Civ. Proc., ? 2025.420, subd. (g).)
III.?????? Hoffman Does Not Demonstrate Good Cause for a Protective Order
??????????? Hoffman argues that there is good cause for a protective order prohibiting a second deposition of Burkhart because Plaintiffs? counsel already asked Burkhart ?about the subjects as to which he now claims to need a second deposition.? (Mem. Ps. & As., pp. 2-4.) It is undisputed that Plaintiffs seek a second deposition of Burkhart in order to ask him about statements in emails indicating that YMCA disciplined a supervising teacher and YMCA believed and/or knew that its policies were not followed. Hoffman points out that the information and statements in the emails are virtually identical to information and statements contained in documents produced at the outset of Burkhart?s deposition. (See Reply, Ex. L, pp. Hoffman0043 [?How could this happen in spite of your policies? Based on the investigation, we believe a supervising teacher did not follow our policy. We have removed her from a position supervising childcare workers.?], Hoffman0336 [?How did the Situation Occur with So Many Policies in Place? Based on the investigation, we believe a supervising teacher did not follow our policy. She has been disciplined and removed from a position of supervising child care workers?], Hoffman 0357, Hoffman 0363, Hoffman 0441.) Hoffman contends that there is nothing new and/or different in the recently produced emails and Plaintiffs should have questioned Burkhart about these statements and topics during Burkhart?s first deposition. Hoffman also cites to portions of Burkhart?s deposition testimony where he generally testifies that he was told by YMCA it determined, based on a preliminary investigation, that its protocols, policies, and/or rules were not followed. (See Mem. Ps. & As., p. 6; see also McAllister Dec., Ex. J, p. 36-37.) In addition, Hoffman argues that a second deposition would be oppressive, an unwarranted annoyance, and unduly burdensome because Burkhart has no knowledge of any discipline imposed on any YMCA personnel, including April Zuck (?Zuck?) (the teacher who was purportedly charged with supervising Lhermine). Hoffman offers a declaration from Burkhart to that effect. (See Burkhart Dec., ? 2.) Finally, Hoffman asserts that instead of taking a second deposition of Burkhart, Plaintiffs should question VanSickle about the newly produced emails at his upcoming deposition.
In opposition, Plaintiffs argue that there is good cause for a second deposition of Burkhart based on the newly acquired emails. In support of their position, Plaintiffs point to three emails authored by VanSickle, which were ?cc?d? to Burkhart. (Allard Dec., Ex. 8.) In the first email dated August 26, 2013, VanSickle asked YMCA representatives whether ?the supervisor who did not enforce the policies you cited? had ?been disciplined or fired.? (Ibid.) In the second email dated August 28, 2013, VanSickle stated that documents attached to the email ?echo discussions we?ve had with you so far? and one of the attached documents stated ?we believe a supervising teacher did not follow our policy? and ?[w]e have disciplined that individual and removed her from a position to supervise childcare ?.? (Ibid.) The third email dated September 17, 2013, stated: ?[W]hile we still counsel you to avoid going on-camera, here are some options for answering the question, ?How could this happen?? [?] A. We know our policies were not followed. No staff member is to ever be alone with a child.? (Ibid.)????? Plaintiffs contend that they should be able to depose Burkhart regarding these emails, and the statements therein, because YMCA has taken the position that Lhermine was properly supervised and YMCA and Zuck have denied that any disciplinary action was taken against Zuck as a result of the alleged incidents of abuse. Plaintiff asserts that ?Burkhart?s testimony relating to what YMCA told him on these issues is highly relevant? as statements by YMCA that it disciplined Zuck and did not follow its policies would support Plaintiffs? case and impeach the credibility of YMCA?s employees. Plaintiffs indicate that they would ask Burkhart questions about where and from whom Hoffman obtained the information contained in the emails. Plaintiffs also contend that even though Burkhart declares that he has no knowledge about whether any discipline was imposed on Zuck or any other YMCA personnel, the statement in his declaration ?is not necessarily true? and ?[o]nce confronted with these emails, his memory may serve him better.? (Opp?n., p. 6.)
Upon review of the arguments and evidence, the Court finds that Hoffman has not established good cause for the issuance of a protective order prohibiting a second deposition of Burkhart. It is undisputed that the three emails referenced by Plaintiffs in their papers had not been produced at the time of Burkhart?s deposition and Plaintiffs did not have an opportunity to question Burkhardt about the specific statements set forth therein.?(See Carlson v. Super. Ct. (1961) 56 Cal.2d 431, 434, 437-439 (?Carlson?) [good cause for a second deposition may be found where new factual issues have arisen since the first deposition was conducted].) While Plaintiffs had the opportunity to question Burkhart about substantially similar statements contained in documents produced at the outset of Burkhart?s deposition, questions about the newly produced emails are not necessarily unreasonably cumulative or duplicative as Burkhart may be able to provide new or different information with respect to these specific emails.
Moreover, Hoffman?s contention that a second deposition is unnecessary because Burkhart states in his declaration that he has no knowledge of any discipline imposed on Zuck is without merit. ?This contention misconceives the obvious distinctions between a unilateral affidavit and a bilateral examination. Of course, in an affidavit, the affiant states only those facts that support his contentions, but in a deposition his opponent may inquire into further facts not volunteered by the witness. ? As between the two, only deposition affords an opportunity to alter the effect of the opponent?s factual claims by obtaining from him any information which would tend to rebut or go to the credibility thereof.? (Carlson, supra, 56 Cal.2d at p. 439.)
Finally, even though Plaintiffs may be able to obtain information regarding the newly produced emails from VanSickle, Hoffman has not demonstrated that it would be more convenient, less burdensome, or less expensive for Plaintiffs to do so. (See Code Civ. Proc., ? 2019.030, subds. (a)(1).) It appears to the Court that the convenience, burden, and expense of deposing VanSickle would be approximately the same as the convenience, burden, and expense of deposing Burkhart.
Accordingly, the motion for protective order is DENIED. Within 30 calendar days of this order, at a date and time mutually agreed upon by the parties, Burkhart shall appear for a second deposition. At his second deposition, Burkhart shall answer questions pertaining to the emails authored by VanSickle dated August 26, 2013, August 28, 2013, and September 17, 2013, and any attachments thereto. Plaintiffs may also pose any reasonably related follow-up questions and counsel may assert objections thereto.
- Requests for Monetary Sanctions
??????????? Hoffman requests an award of monetary sanctions in the amount of $6,280.50 against Plaintiffs? counsel pursuant to Code of Civil Procedure section 2025.420. That statute provides that a court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion for a protective order unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust. Here, Hoffman was not successful on its motion and, thus, it is not entitled to an award of monetary sanctions. Accordingly, Hoffman?s request for monetary sanctions is DENIED.
??????????? Plaintiffs request monetary sanctions in the amount of $4,500 against Hoffman?s counsel pursuant to Code of Civil Procedure section 2023.020, arguing that Hoffman failed to adequately meet and confer prior to filing the instant motion. As indicated above, Hoffman adequately met and conferred prior to filing this motion. Thus, Plaintiffs? request for monetary sanctions is DENIED.
[1] The parties did not provide the Court with a copy of the deposition subpoena; rather, Plaintiffs attached a declaration of diligence to their opposition papers reflecting the attempted service of the deposition subpoena.
[2] Notably, it appears that Burkhart was deposed in his individual capacity and not as a representative of Hoffman. (See Allard Dec., Ex. 6 [amended deposition notice seeking the deposition of Burkhart, not Hoffman or a person most qualified for Hoffman with respect to particular areas of inquiry]; see also Code Civ. Proc., ? 2025.230 [?If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.?]; McAllister Dec., Ex. A, pp. 1-2 [deposition transcript indicating that Burkhart was deposed as an individual].)
[3] The parties did not provide the Court with any deposition notice pertaining to Burkhart?s second deposition.
[4] According to Hoffman, VanSickle?s deposition is currently scheduled for June 8, 2016. (Reply, p. 2, fn.1.)
[5] It appears to the Court that Hoffman seeks to prevent a second deposition of Burkhart in his individual capacity as there is no indication that Plaintiffs noticed Hoffman?s deposition or that Hoffman designated Burkhart as its person most qualified regarding particular matters. Accordingly, the Court construes the instant motion as one for a protective order preventing a second deposition of Burkhart as an individual.