MOTION FOR DETERMINATION OF PRIVILEGE
Defendant?s Motion ?for the Court to Make a Determination As to Whether a Disc Containing 1,129 pages of Documents Contains Two Privileged Communications? is denied.
The Court cannot compel Defendant to submit the two inadvertently produced communications for in camera review. (Costco Wholesale Corporation v. Superior Court (2009) 47 Cal.4th 725, 739 [reversing trial court order compelling party asserting privilege to submit documents for court?s review].) The documents, as described, are between Defendant?s personnel and Defendant?s attorneys. Assuming no third parties were copied on these emails, to whom disclosure was not reasonably necessary, these communications are presumed to have been made in confidence. (Bank of America, N.A. v. Superior Court of Orange County (2013) 212 Cal.App.4th 1076, 1099-1101.)
Plaintiff is ordered to return the disc, and any copies of the same, to Defendant within seven days of the notice of ruling. Defendant is ordered to produce a new disc and a privilege log for the omitted documents within 10 days of receipt of the disc.
The Court declines to award any sanctions.
MOTION TO COMPEL DEPOSITION
Plaintiff?s Motion ?to Compel the Defendant?s Person Most Knowledgeable to: 1) Familiarize Himself with the Subject Matter of this Case; 2) Make a Diligent Search for Documents Responsive to Deposition Subpoena; 3) Answer Questions at Deposition? is denied.
Defendant designated Darth Eliopulos (the ?PMK?), the Vice President Area Manager for the territory in question. Plaintiff took the deposition of Defendant?s PMK on 11/17/2016. The PMK spent approximately 2 hours and 45 minutes reviewing the file for this matter and an additional 10+ hours reviewing the documents produced.? Plaintiff contends the PMK had not familiarized himself with the subject area.
Based on the transcript portions provided, a substantial amount of the deposition was devoted to questions regarding the gathering of the documents that were produced. Acustodian of records is responsible for preparing a declaration that describes the manner in which the records were prepared. (Evid. Code ? 1561.) However, the PMK is not the custodian of records.? That the PMK did not know how the records were prepared, was not indicative of his lack of familiarity with the area of designation.
Plaintiff contends the PMK was not prepared because he did not know the current whereabouts of the loan officer that worked on the escrow at issue, as she is no longer employed by Defendant. The loan officer?s current contact information and whereabouts were not designated matters.? The court finds that Plaintiff has not shown that the PMK had not familiarized himself those matters as described in the subpoena in compliance with Code of Civil Procedure section 2025, subdivision (d)(6).
Plaintiff requested 22 categories of documents and designated 23 matters on which questions would be asked. ?The witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.? ?(Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396.)? Here, while the PMK had not made that inquiry, a fair reading of the PMK?s deposition indicates that someone else in authority had.? (See also, Connally Decl., ? 5.)
Two of the three questions the PMK was instructed not to answer (policy on acceptance of gifts and the loan officer?s disciplinary history) exceeded the scope of the matters which examination was requested. (Code Civ. Proc., ? 2025.230.) The third question, whether the PMK agreed with Defendant?s position that this action seeks to turn a mistake into a windfall, goes to a legal question.? Such a question is generally not appropriate when asked during a deposition. (See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1263; see also Dunne, Dunne on Depositions in California (2016-2017 ed.) Person ? Most Qualified ? Depositions, ? 14:10.)
Sanctions in the amount of $2,400 are awarded to Defendant and against Plaintiff TGV, LLC, and payable to Lewis Brisbois Bisgaard & Smith LLP within 30 days of the notice of ruling. (Code of Civ. Proc., ?? 2023.010, 2025.480, subd. (j).)
Defendant shall give notice of the rulings.