Case Name: Watson v. Yellow Cab Company Peninsula, Inc., et al.
Case No.: 2015-1-CV-289121
Defendants Yellow Cab Company Peninsula, Inc., Alpha Cab Company #419 (?Alpha Cab?) and Jagpreet Singh Gulati (?Singh?)? (collectively, ?Defendants?) move to quash the subpoena served on third party Outreach Paratransit Program (?Outreach?) by plaintiff Andrew Watson (?Plaintiff?).
- Background
This is a personal injury action arising out of a motor vehicle accident.? On October 27, 2015, Plaintiff, who was being transported to work, was a passenger in a vehicle owned and operated by Yellow Cab and Alpha Cab and driven by Singh.? (Complaint, ? 7.)? Singh negligently and carelessly operated the taxicab, driving in the opposite direction of traffic on a one-way street, resulting in a head-on collision with another vehicle.? (Id., ?? 8, 9.)? Plaintiff suffered severe injuries in the accident.? (Id.)? On December 16, 2015, Plaintiff filed the Complaint, by and through his duly appointed conservator, Rick Watson, asserting the following causes of action: (1) motor vehicle negligence; and (2) negligent hiring.
- Discovery Dispute
On August 31, 2016, Plaintiff served a deposition subpoena for the production of business records on third party Outreach.? (Declaration of Russell Mortyn in Support of Motion to Quash Subpoena (?Mortyn Decl.?), ? 3 and Exhibit A.)? Yellow Cab has a contractual relationship with Outreach as a service provider transporting disabled passengers in Santa Clara County.? Plaintiff has Down Syndrome, and is transported to and from jobs at Google and VCA Almaden Animal Hospital by either his family or Outreach.
Among other things, the subpoena requested the production of all vehicle accident reports submitted to Outreach by Yellow Cab or any of its affiliates between October 2005 and October 2015.? (Id.)? Approximately a week later, on September 8, 2016, Defendants? counsel sent a meet and confer letter to opposing counsel requesting that Plaintiff immediately withdraw the subpoena because the reports requested were ?privileged attorney/client documents prepared for purposes of defending claims.?? (Mortyn Decl., ? 4 and Exhibit B.)? Counsel advised that if the subpoena was not withdrawn at the close of business that day, he would file a motion to quash and request sanctions.
Opposing counsel responded to the letter that day with his own written correspondence, refusing to withdraw the subpoena based on his contention that the requested materials were not privileged.? (Mortyn Decl., ? 5 and Exhibit C.)
The subpoena ultimately was not withdrawn, and therefore on September 21, 2016, Defendants filed the instant motion to quash, in its entirety, the subpoena served on Outreach on August 31, 2016.? Plaintiff filed his opposition on October 14, 2016.? On October 20, 2016, Defendants filed their reply.
- Discussion
With the instant motion, Defendants move to quash the subpoena served on third-party outreach in its entirety pursuant to Code of Civil Procedure section 1987.1 and request an order that Outreach need not respond or produce any of the requested documents on the ground that the subpoena requests records which are privileged and confidential.
- Substantive Merits
Code of Civil Procedure section 1987.1 provides, in pertinent part, that the court may, ?upon motion reasonably made by a [party] ? make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.?? (Code Civ. Proc.,??????? ? 1987.1, subds. (a) and (b)(1).)? In addition, the court may make ?any other order as may be appropriate to protect the [moving party] from unreasonable or oppressive demands,? including unreasonable violations of his or her right to privacy.? (Id.)
Here, as set forth above, it is Defendants? contention that the items requested by the subpoena, i.e., the accident reports, are protected by the attorney-client privilege.? Defendants note that when he was deposed on May 25, 2016,and asked about accident reports by Plaintiff, Bikram Singh, the owner of Yellow Cab, testified that he had to report the accident to Outreach using a specific form and that said form was ?[f]or our internal and our attorneys? records ??? (Mortyn Decl., Exhibit D at 35:19-23.)
The attorney-client privilege, which is codified in Evidence Code sections 950 through 962, protects from disclosure confidential communications between a client and his lawyer.? While attorney-client communications are presumed to be confidential (Evid. Code, ? 917), the party claiming the attorney-client privilege as a bar to disclosure has the burden of showing that the communication sought to be suppressed falls within the parameters of the privilege.? (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)? As a general proposition, reports prepared by non-attorneys with the dominant purpose of transmission to counsel are protected by the attorney-client privilege.? (See Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529, 534 [confidential ?occurrence report? prepared by hospital employees in anticipation of litigation protected by attorney-client privilege].)? Despite this, Plaintiff insists that the accident reports which are sought by the subject subpoena are not privileged because (1) the privilege was waived by the contract executed between Yellow Cab and Outreach, (2) the purpose of preparing the report was to submit it to Outreach and not Defendants? attorneys, and (3) Outreach already voluntarily produced the accident report.
To the first point, Plaintiff directs the Court?s attention to a copy of the ?Master Agreement for Services? executed between Outreach and Yellow Cab (the ?Contractor?) in November 2008, and in particular the following language:
The Contractor agrees that Outreach Management Personnel have full rights to information sharing regarding any accident or incident that occurs while in service of Outreach. This includes, but is not limited to, Outreach having direct contact with Insurance Brokers, Third party Claims Administrators, Insurance adjusters, and Insurance Company appointed attorneys.? Contact includes verbal, electronic as well as written communication.
(Declaration of Kim David Staskus in Support of Opposition to Motion to Quash (?Staskus Decl.?), ? 10 and Exhibit 9.)
Plaintiff argues that the foregoing language grants Outreach full freedom to disclose information relating to any accident and thus operates to waive any attorney-client privilege that Defendants may contend attaches to, for example, accident reports.? In their reply, Defendants counter that the language clearly contemplates insurance claims and litigation and the language of the contract otherwise provides for the sharing of privileged documents as between potential defendants.
Defendants? argument is not persuasive.? The quoted language set forth above provides for full sharing of information by Outreach, without limitation.? Even if the Court were inclined to accept Defendants? contention that this language did not operate as a waiver, additional facts specific to this case compel the conclusion that the accident reports being sought by the subpoena are not privileged.? First, while Defendants focus on Bikram?s Singh?s testimony that the accident form was ?[f]or our internal and our attorneys? records ?,? they ignore additional testimony by him that he obtained information from the driver, Singh, on the day of the accident because he had to make a report for the purpose of notifying Outreach about it.? (Staskus Decl., ? 11 and Exhibit 10 at 42:4-16.)? Thus, there is some question as to the dominant purpose of the report, i.e., whether it was prepared for Yellow Cab?s counsel to prepare for potential litigation or whether it was prepared for the purpose of notifying Outreach of the incident. Defendants offer nothing, other than the testimony cited in their opening papers, to establish the dominant purpose of report, and thus fail to demonstrate its privileged nature under Scripps Health, etc.
Second, it would appear that any privilege which may have attached to an accident report by Yellow Cab would have been waived upon its transmission to Outreach, who voluntarily produced the report to Plaintiff upon receiving the subject subpoena.?? (See Evidence Code section 912, subd. (a) [stating that the right of any person to claim the attorney-client privilege is waived if any holder of the privilege discloses a significant portion of the communication to a third party].)? While it is true, as Defendants contend, that there is no waiver of privilege if the transmission to the third party was ?reasonably necessary? for the purpose of (1) transmitting information between attorney and client; or (2) accomplishing the purpose for which the attorney was hired (see Evid. Code, ? 952, Comment; see also City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 234-235), Defendants fail to establish that the transmission of the reports to Outreach was reasonably necessary to accomplish either purpose.? A colorable argument might be able to be made regarding the applicability of the so-called ?common interest doctrine? (see OXY Resources Calif. LLC v. Superior Court (2004) 115 Cal.App.4th 874, 890-891), but Defendants fail to sufficiently meet their burden with respect to establishing the applicability of this argument.? (See OXY Resources, at 890-891 [stating that a person seeking to invoke the ?common interest? doctrine must show more than that a confidential communication took place with a third party who purportedly shared a common interest; rather, the sharing of privileged information must ?further the attorney-client relationship? by partied ?aligned on the same side in an investigation or litigation?].)
Ultimately, it is Defendants? burden to establish that the communications at issue (the reports, etc.) fall within the parameters of the attorney-client privilege.? (See Alpha Beta Co., supra, 157 Cal.App.3d at 825.)? The Court finds that they have not done so here and therefore their motion to quash is DENIED.
- Requests for Sanctions
?
Both Defendants and Plaintiff request monetary sanctions.? First, Defendants request that the Court impose sanctions against Plaintiff and his counsel in the amount of $1,900 pursuant to Code of Civil Procedure section 1987.2, subdivision (a), which provides that the court may, in its discretion, award ?the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney?s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.?? As the motion is denied, it cannot be said that it was opposed in bad faith or without substantial justification by Plaintiff.? Consequently, Defendants? request for sanctions is DENIED.
In his opposition, Plaintiff requests that the Court impose sanctions against Defendants and their counsel in the amount of $3,600 pursuant to the same code section, which is purportedly half of the amount of fees incurred by Plaintiff?s counsel in opposing the instant motion. The Court finds that the instant motion was not made with substantial justification, and therefore that sanctions are appropriate.? However, the Court finds the amount requested excessive and thus unreasonable given the issues involved.? Accordingly, Plaintiff?s request for sanctions is GRANTED IN PART in the amount of $1,600 (4 hours x $400/hr).
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- Conclusion and Order
Defendants? motion to quash is DENIED.
Defendants? request for sanctions is DENIED.
Plaintiff?s request for sanctions is GRANTED IN PART.? Within 20 calendar days of this order, Defendants? counsel shall pay $1,600 to opposing counsel.