Case Number: 24STCV14962 Hearing Date: June 25, 2025 Dept: 19
24STCV14962
JANE DOE 1, et al. vs MCGRATH KAVINOKY, LLP, et al.
NATURE OF PROCEEDINGS: Plaintiffs’ Motion to Compel Further Responses to Plaintiffs’ First Set of Form Interrogatories and Request for Monetary Sanctions in the Amount of $8,000. Plaintiffs’ Motion to Compel Further Responses to Plaintiffs’ First Set of Form Interrogatories and Request for Monetary Sanctions in the Amount of $8,000. Plaintiffs’ Motion to Compel Further Responses to Plaintiffs’ First Set of Form Interrogatories and Request for Monetary Sanctions in the Amount of $8,000. Plaintiff’s Motion to Compel Further Responses to Plaintiffs’ First Set of Requests for Production of Documents and Things and Request for Monetary Sanctions in the Amount Of $8,000. Plaintiff’s Motion to Compel Further Responses to Plaintiffs’ First Set of Requests for Production of Documents and Things and Request for Monetary Sanctions in the Amount of $8,000. Plaintiff’s Motion to Compel Further Responses to Plaintiffs’ First Set of Requests for Production of Documents and Things and Request for Monetary Sanctions in the Amount of $8,000.
RULING:
First, the Court grants the Motions to Compel Further Responses to Plaintiffs’ First Set of Form Interrogatories, as prayed, as being unopposed. (E.g., Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 693.)
Second, the Court continues the Motions to Compel Further Responses to Plaintiffs’ First Set of Requests for Production of Documents to August 1, 2025, at 8:30 a.m., in Department 19.
The Court orders Plaintiffs and Defendants to meet and confer further.
The Court also orders Plaintiffs to serve and file fully updated separate statements omitting the many discovery item numbers no longer in issue, at least 10 days before the continued hearing date.
Additionally, the Court orders Defendants to serve and file sufficient evidentiary or log support for the privilege, work-product, and privacy, objections, at least 10 days before the continued hearing date.
The parties may serve and file any desired supplemental documents, at least 10 days before the continued hearing date.
- BACKGROUND
On March 12, 2025, JANE DOE 1 and JANE DOE 2 (Plaintiffs) filed a First Amended Complaint against MCGRATH KAVINOKY, LLP; JENNIFER MCGRATH; and DARREN KAVINOKY (Defendants), alleging the following causes of action:
- Professional Negligence;
- Breach of Fiduciary Duty;
- Fraudulent Misrepresentation;
- Fraudulent Concealment;
- Breach of Written Contract;
- Breach of the Implied Covenant of Good Faith and Fair Dealing;
- Equitable Accounting; and
- Conversion.
Plaintiffs allege that Defendants as attorneys, in a mass tort case, pressured Plaintiffs to act in Defendants’ interest of having maximized attorneys’ fees, rather than Plaintiffs’ maximized recoveries, as to global settlement allocations in a case involving conflicts from jointly representing hundreds of plaintiffs in sexual abuse lawsuits against a former UCLA gynecologist and the Regents of the University of California.
On March 25, 2025, Plaintiffs filed amended Motions to compel Defendants’ further responses to 143 document requests, made to each of three defendants, and to impose $8.000.00 total in sanctions, on grounds that the objections lack merit, the responses lack substance, and no documents have been produced.
On June 11, 2025, filed a combined Opposition, responding that a large percentage of the requests seek privileged and private documents, including those belonging to 310 anonymous parties whom Defendants represented at the same time as Plaintiffs.
- LEGAL STANDARD
A propounding party’s remedy when it deems objections in discovery responses to be without merit is to move for an order compelling further responses. (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal. App. 4th 1116, 1127.) Where respondents object or respond inadequately to discovery requests, a motion lies to compel further responses, as to which respondent has the burden to justify the objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Code Civ. Proc., § 2031.310, subd. (a) [motion to compel further responses lies “[o]n receipt of a response to an inspection demand….”].)
“‘A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.’” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016. Accord, Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294.)
III. ANALYSIS
- Response Statutory Compliance
Plaintiffs contend that the discovery objections lack merit, whereas Defendants contend that they have merit.
A document response must consist of: 1) An agreement to comply, stating whether the productions or inspection will be allowed “in whole or in part,” and that all documents or things in the possession, custody or control of the respondent, as to which no objection is made, will be included, by the date set for inspection (unless informally extended in writing, or the designated timing is subject to objection); 2) a representation of inability to comply, with a specification of any person believed or known to have possession of documents; or, 3) objections and specification of withheld documents. (Code Civ. Proc., §§ 2031.210, subd. (a), 2031.220, 2031.270, 2031.280.)
Here, the Defendants’ responses fail to describe all documents being withheld pursuant to the many objections. “Even where a party deems a demand to be objectionable, he [she, or it] still must identify those items which fall into the category of item in the demand to which an objection is being made.” (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901, fn.3.)
Thus, the Court would require further responses identifying the items withheld based upon the objections, so the Court can more soundly evaluate the objections.
- Attorney-Client Privilege
Plaintiffs argue that requested attorney-client communications relevant to the aggregate settlement, are discoverable, beyond only those communications involving Plaintiffs, because Defendants represented the Jane Does, not separately, but jointly, with group communications addressing common interests. (Reply, 2:1-8 (citing Anten v. Superior Court (2015) 233 Cal.App.4th 1254).) In addition, Plaintiffs maintain that all the requests about the entire underlying litigation are relevant to alleged breaches of duties, such that no work product privilege exists.
Defendants state that many requests seek work product and attorney-client communications with each of the 310 former clients, on subjects relating to their lawsuits. Defendants further argue that the clients did not waive the privilege, since joint clients were not involved, including because they did not communicate with each other, did not know each other’s identities, entered into separate engagement agreements, and experienced separate acts of sexual abuse. (McGrath Declaration, ¶ 24.) Also, they state that only relevant work product in this case alleging attorney malpractice could be discoverable, whereas the discovery seeks irrelevant information beyond that addressing the Plaintiffs’ (citing Code Civ. Proc. § 2018.080).
Where a party serves a timely discovery response stating attorney-client or work-product objections, without a privilege log or facts justifying the objections, the appropriate procedure is to grant a motion to compel further responses having particularized identification of documents as to which the privilege is asserted, and the justifying facts. (Best Product, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189.) Courts may not order waived timely privilege objections based on privilege log deficiencies, but instead are to compel further discovery responses or supplemental privilege logs that identify each withheld document with particularity and provide sufficient factual information for the court to evaluate each privilege claim, and court may impose sanctions. (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1132.) Failures to provide a privilege log or set forth specific privilege objections are not grounds for finding waivers of the objections. (Motown Record Corp. v. Superior Court (1984) 155 Cal.App.3d 482, 492; Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516-1517.)
“[I]f documents responsive to a document request are withheld on privilege grounds, a privilege log or some equivalent specification of any asserted privilege objection ‘shall’ be supplied.” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 813.) “[L]egislation amended subdivision (c)(1) of Code of Civil Procedure section 2031.240 to require the preparation of a privilege log ‘if necessary’ to ‘provide sufficient factual information for other parties to evaluate the merits’ of a claim of privilege or protected work product.” (Bank of Amer., N.A. v. Superior Court (2013) 212 Cal.App.4th 1076, 1098.) Courts may order respondents to produce a privilege log that is sufficiently specific such that the court is able to determine whether a particular document is privileged. (People ex rel. Lockyer v. Superior Court (2004) 122 Cal.App.4th 1060, 1074.)
Reviewing courts uphold trial court determinations as to whether information is privileged, where supported by substantial evidence, “unless a claimed privilege appears as a matter of law from the undisputed facts….” (HLC Properties, Ltd. v. Superior Court (2005) 35 Cal.4th 54, 60. Accord, Clark v. Superior Court (2011) 196 Cal.App.4th 37, 49.) Whether the attorney-client privilege applies to a communication is a question of fact, if the evidence is in conflict, and is not to be disturbed on appeal unless no substantial evidence supports the finding. (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 117; People v. Shrier (2010) 190 Cal.App.4th 400, 411–412.)
As to the joint client exception, if an attorney-client communication was disclosed to a third party, then the proponent of the privilege has the burden to demonstrate that confidentiality was preserved because the communication was reasonably necessary to accomplish the purpose for which a lawyer was consulted, by generally showing the communication’s content. (Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 844–845; Roush v. Seagate Tech., LLC (2007) 150 Cal. App. 4th 210, 225.)
Here, Defendants have not met their burden to serve privilege logs or sufficient evidentiary foundation to show attorney-client privileged documents and to negate any joint client waivers. Further, the parties each have argued factors that could support the Court’s discretionary finding either way.
- Third-Party Privacy
Plaintiffs, after withdrawing some requests, do not seek private medical records or victim statements, but documents relevant to alleged attorney malpractice and fiduciary breaches, which are not burdensome to produce. They also offer solutions of redacting the requested documents to conceal identities and a protective order like the one in the underlying action that no longer applies. (Reply, 2:9-20 and pp. 7-9.)
Defendants report that requested documents contain private information including about victims’ medical treatment, accounts of a doctor’s sexual abuse acts and injuries, and are protected by the absolute physician-patient privilege. Defendants further contend that redacting is not feasible and the documents are likely over 15,000 pages to redact, which would take months, and likely cost hundreds of thousands of dollars in attorneys’ fees. (Fink Declaration, ¶ 13.)
The redacting of personal information before disclosure may avoid privacy issues. (E.g., Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1437 [judges should consider redacting, for assuaging privacy concerns]; Board of Trustees of Cal. State Univ. v. Superior Court (2005) 132 Cal.App.4th 889, 902 [after order requiring redacting of personal information from documents, court did not need an in-camera inspection].)
Parties’ protective orders may not avoid privacy concerns where privacy interests outweigh countervailing interests, and it would not be the most minimum intrusion needed. (Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 369, disapproved on other grounds by Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)
A privacy objection is not ripe for adjudication before a court where there is no factual basis for ruling, such as respondents’ identifying the documents withheld in a privilege log or elsewhere. (Connecticut Indem. Co. v. Superior Court (2000) 23 Cal.4th 807, 818.)
“Oppression exists where there is ‘some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.’” (Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1171.)
Objecting parties must file evidence detailing the amount of work involved, in order to support objections based upon burden and oppression. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) An opinion reasoned that a trial court, in its discretion, reasonably rejected a “burden” discovery objection that responding would require “‘tens of thousands of man hours,’” under circumstances where the evidence and conduct were controverted, and the information was reasonably calculated to lead to discoverable information. (See Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 594.) A court found a document request to be oppressive, where the response would require reviewing 13,000 insurance files, by five employees, working for six weeks. (See Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318.)
Here, Defendant evidenced the large amount of work that it would take to redact private medical information for the requested documents. But Plaintiff disclaims seeking any private medical or victim information, such that it is unclear that private information and burden is involved.
If there is private information requested, the parties cannot legitimately obtain private discovery without first notifying the hundreds of third parties of an opportunity to object to disclosure of their medical-related records. Third parties must be notified (e.g., by letter or e-mail) and given an opportunity to either consent or object, before discovery responses revealing their private information, and parties cannot waive such rights of third parties. (Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561-562; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 374-375; DOE 2 v. Superior Court (2005) 132 Cal.App.4th 1504, 1521.)
Further, the stipulated order from the underlying case is not protective in this case. Protective orders entered in other cases are not necessarily a bar to otherwise discoverable information in a subsequent case. (Cf. McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 216 [“It is unfair to deprive petitioners of … necessary information to which they are entitled simply because they acquired it through another’s violation of a court [protective] order.”].)
The Court orders the parties to meet and confer further towards hopefully resolving the above-referenced issues with regard to privacy objections.
- Trade Secrets and Commercial Information
Plaintiffs claim that Defendants’ advertising and marketing plans and projections will show that Defendants did not intend to handle cases individually. Plaintiffs also criticize as insufficient Defendants’ declaration that consists of one conclusory paragraph asserting trade secrets. (McGrath Declaration, ¶ 25.) Alternatively, Plaintiffs advocate a protective order to protect any trade secrets.
Defendants represent that some requests seek sensitive documents regarding Defendants’ advertising and marketing plans and strategies, financial projections, budgets, and financial analysis, which are trade secrets.
After the objecting party meets the initial burden to show the existence of a trade secret, it shifts to the party requesting the discovery to “‘make a prima facie, particularized showing that the information sought is relevant and necessary to the proof of, or defense against, a material element of one or more causes of action presented in the case, and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit.’” (Citizens of Humanity, LLC v. Costco Wholesale Corp. (2009) 171 Cal.App.4th 1, 13, disapproved on other grounds by Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) After the requesting party meets the shifted burden, the objecting party must show any disadvantages of a protective order. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1390.) Judges must act to protect trade secrets by reasonable means including protective orders, in camera hearings, sealing records and restricting disclosure. (Civ. Code § 3426.5; Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1555, fn. 16.)
Similarly, the party claiming a qualified privilege, such as confidential commercial information, has the burden to show that the information falls within the privilege. (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1618-1619 [addressing reinsurance discovery that may involve confidential commercial information about insurer financial condition]. Courts have limited discretion with regard to granting motions to compel sensitive commercial information over objections thereto. Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141 (court abused discretion in compelling responses that may contain sensitive commercial information, without first reviewing them in camera to ascertain relevance, and whether sensitive matter should be redacted].)
Here, Defendants filed insufficient evidence of the elements of any trade secrets. (McGrath Declaration, ¶ 25.) Evidence Code section 1061, subdivision (b)(1) requires parties seeking protective orders to submit an affidavit based on personal knowledge listing qualifications to opine, and identifying alleged trade secrets and documents disclosing trade secrets. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1144-1145.)
Thus, the Court would overrule the trade secret and sensitive commercial information objections, if considering the current state of the evidence.
- Monetary Sanctions
Plaintiff advocates monetary sanctions, because Defendants stood on prior objections to every request, and the Court already rejected their arbitration basis for objecting to discovery.
Defendants oppose sanctions based on substantial justification for asserting privileges and protections, including as to former clients.
Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice. (E.g., Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-1558.) “‘[T]he phrase “substantial justification” has been understood to mean that a justification is clearly reasonable because it is well grounded in both law and fact.’” (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 75.) “If the party seeking a monetary sanction meets its burden of proof, the burden shifts to the opposing party attempting to avoid a monetary sanction to show that it acted with ‘substantial justification.’” (Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1435.)
The Court is inclined to deny sanctions, considering some strengths and weaknesses as to the positions of each side, showing Defendants’ substantial justification.
- CONCLUSION
The Motions regarding interrogatories are granted as unopposed.
The Court continues the Motions addressing production of documents and things, for meeting and conferring, updated separate statements and supplemental briefing and evidence.
Reportedly, Defendants served supplemental responses on May 15, 2025, and Plaintiffs’ counsel agreed to withdraw request numbers 1, 3-10, 20-22, 24, 25, 28, 31, 47- 49, 52, 56, 62, 82, 85, 92-94, 96, 98, 106, 112-116, 123, 124, 127-129, 131, 140 and 143. Additionally, Defendants agreed to supplement their responses as to numbers 6-10, 20-21, 24, 28, 31, 62, 106, and 140. (E.g., Opposition, 6:23-28, 7:5-8; and Reply, 3:1-2.)
Where respondents served supplemental discovery responses after parties have filed motions to compel responses, courts have broad discretion as to ruling, including ordering the parties to meet and confer and ordering moving party to file a separate statement. (Sinaiko Healthcare Consulting, Inc. v. Klugman (2007) 148 Cal.App.4th 390, 409.)