Plaintiff Scenic Enterprise, LLC’s motion for protective order is granted. (See Code Civ. Proc., § 2025.420.)
Defendant shall pay $5,462.50 in discovery sanctions to plaintiff. (See Code Civ. Proc., § 2025.420, subd. (h).)
“Depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause — a high standard.” (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.) “‘The practice of forcing trial counsel to testify as a witness … has long been discouraged … and recognized as disrupting the adversarial nature of our judicial system….” (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494.)
Consequently, “California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege? [Citations.] [¶] Each of these prongs poses an independent hurdle to deposing an adversary’s counsel; any one of them may be sufficient to defeat the attempted attorney deposition. [¶] Without question, the proponent has the burden of proof to establish the predicate circumstances for the first two prongs.” (Carehouse, supra, 143 Cal.App.4th at p. 1563.)
Defendant fails to meet this burden.
Defendant claims it needs to depose Mr. Holley because he “was the only representative communicating with [Carl] Nielsen of First American and [First American’s] retained counsel [Bobby] Ashrafi and [David] Boss” about “the claim tendered by [plaintiff],” and “[t]herefore, Mr. Holley is the sole person with personal knowledge as to these communications and is the only person who could authenticate the correspondence or speak on behalf of [plaintiff] regarding these communications, which presumably shape [plaintiff’s] basis for an insurance bad faith claim.” (Mot. at pp. 1, 5-6.) Defendant claims that it therefore “seeks information about Mr. Holley’s conversations with First American about coverage and losses, including contact with First American’s counsel concerning the claim,” which “goes directly to whether benefits under the policy were unreasonably withheld.” (Id. at p. 6; see also Hershon decl. ¶¶ 2-14, Exs. 1- 4.)
Defendant fails to show it lacks other practicable means of obtaining this information, and that such information is crucial to their case. (See Carehouse, supra, 143 Cal.App.4th at p. 1563.)
Mr. Holley’s “communications” were made directly to defendant’s in-house counsel, Mr. Nielsen, and/or defendant’s retained counsel, Messrs. Asfrafi and Boss. (See Hershorin decl. ¶¶ 2-7, Exs. 1-4.) Defendant can obtain the substance of these communications from its own attorneys, and defendant’s inhouse counsel can authenticate his own letters. (See id. at Exs. 2, 3.) The mere fact that plaintiff’s counsel discussed the claim with defendant’s counsel does not establish “extremely good cause” to depose him.
As for Mr. Holley’s written communications to defendant (see Hershorin decl. at Exs. 1 [claim letter], 4 [proof of loss statement letter]), defendant fails to explain why it cannot authenticate or establish the genuineness of such correspondence by other means. Indeed, the operative complaint admits the existence of these letters and attaches one. (See FAC ¶¶ 27, 30-32 & Ex. C.)