Plaintiff Fernando Sanchez (“Plaintiff”) seeks an order compelling Defendant John Nicholas Taussig to produce documents, specifically a page of notes, he brought to his deposition on March 12, 2020. The motion is granted.
Plaintiff brings this motion pursuant to Evidence Code section 771. (Notice, at p. 2:4-7.) Although Code of Civil Procedure section 2025.480, subdivision (a), provides authority for a party to move for an order compelling the production of a document under the deponent’s control “that is specified in the deposition notice,” Evidence Code section 771 does not include a similar requirement.
Evidence Code section 771, subdivision (a) provides, subject to certain situations, “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.” “Evidence Code section 771 requires the production of documents used to refresh [a deponent’s] memory with respect to any matter about which he testifies, no more and no less.” (International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1372; see Kerns Const. Co. v. Superior Court for Orange County (1968) 266 Cal.App.2d 405, 410.)
In both International Insurance Company and Kerns, no objection was made during the deposition. (International Ins. Co. v. Montrose Chemical Corp., supra, 231 Cal.App.3d at p. 1373, fn. 4; Kerns Const. Co. v. Superior Court for Orange County, supra, 266 Cal.App.2d at p. 414; see, Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 8:724.3 [citing Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 68].)
A writing used to refresh a deponent’s recollection may not be subject to production if it is privileged. (Sullivan v. Superior Court, supra, 29 Cal.App.3d at p. 74.) “To successfully invoke the lawyer-client privilege, three requirements must be met. There must be a (1) communication, (2) intended to be confidential, and (3) made in the course of the lawyer-client relationship.” (Id. at p. 69.)
Unlike International Insurance Company and Kerns, Defendant objected to the production of the notes at the deposition and continued to object to the production throughout the meet and confer process. (Habbas Decl., at ¶¶ 7, 9, 13, 16-17, 20-21, Exhs. B, at pp. 19:1-15 and 21:8-9, D, and F.) Defendant has demonstrated that at least a portion of the notes were privileged. (Porter Decl., at ¶¶ 3 and 5.) During his deposition, Defendant testified that part of his notes were from the police report and the portion that was not privileged was read into the transcript. (Habbas Decl., Exh. B, at pp. 17:24-18:22, 19:13-15, 20:3-5.) Defendant offered to produce a redacted copy of the notes, with the portion of the notes that Defendant referenced during his deposition unredacted. (Porter Decl., at ¶ 3.)
Plaintiff Fernando Sanchez’s motion is granted. Within 20 days of the notice of ruling, Defendant shall produce a copy of the notes at issue, with redaction of the notes taken pursuant to privileged communications.
The Court declines to award any sanctions.
Plaintiff shall give notice of the ruling.