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Nina Fisher v. Kohl's Department Stores

June 22, 2012


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge


Presently pending before the court is plaintiff's motion to compel production of documents, originally filed on May 24, 2012 and noticed for hearing on June 14, 2012. (Dkt. No. 26.) The parties filed a joint statement pursuant to E.D. Cal. L.R. 251 on June 7, 2012. (Dkt. No. 30.) At the June 14, 2012 hearing, Joshua Boyce appeared on behalf of plaintiff and Matthew Noel appeared on behalf of defendant. After considering the parties' joint statement and supporting documentation, the oral arguments of counsel, and the applicable law, the court now issues the following order.


This diversity action, removed from state court on December 21, 2011, arises from a December 22, 2009 accident during which plaintiff Nina Fisher allegedly slipped and fell on a discarded hanger in defendant Kohl's Department Stores, Inc.'s Roseville store. Plaintiff purportedly suffered serious resulting injuries, including a comminuted fracture of the proximal left humerus and a fracture of the distal right femur above the knee, requiring surgical intervention. Plaintiff sues defendant on theories of negligence and premises liability.

According to plaintiff, she suffers from dementia, and at her April 5, 2012 deposition she could not specifically recall anything that had happened within five minutes after the accident, including whether she spoke to any Kohl's employees, whether she told anyone in the store about a hanger, or whether anyone from Kohl's provided her with assistance after the accident. (Dkt. Nos. 28-15, 28-16.) Mary Ann Haughner, an Assistant Store Manager who apparently authored an incident report regarding the accident, testified at her April 30, 2012 deposition that she did not recall the incident, speaking with plaintiff or anyone else regarding the incident, or assisting plaintiff at the time of the incident. (Dkt. No. 28-14.) Ms. Haughner also did not recall any other slip-and-fall accidents at defendant's Roseville store. (Id.)

On March 20, 2012, plaintiff propounded several requests for production of documents to which defendant filed responses on April 23, 2012. For purposes of this motion, the following 6 requests are technically at issue: documents relating to "prior or subsequent slip and fall accidents," including any lawsuits that were filed, from January 1, 2001 to the present (Request No. 5); documents that identify or refer to any persons who witnessed the incident (Request No. 8); documents identified or referred to in defendant's March 6, 2012 initial disclosure statement (Request No. 9); reports, writings, and/or photographs relating to the investigation of the incident (including conversations with plaintiff, inspection of the area where the incident occurred, instructions to defendant's employees following the incident, and interviews of any witnesses) (Request No. 21); any incident reports filed by defendant's employees relating to events giving rise to the incident (Request No. 25); and any incident reports and/or written statements made by defendant's employees which were prepared in the regular course of business regarding the events as they relate to the litigation (Request No. 26).

(Dkt. Nos. 28-4, 28-5.)

However, after further meet-and-confer efforts and in light of defendant's service of privilege logs on May 17, 2012 and May 18, 2012, the parties now agree that the motion essentially only involves the discoverability of two incident reports: (a) a December 22, 2009 incident report regarding the accident at issue prepared by Assistant Store Manager Mary Anne Haughner; and (b) a February 16, 2009 incident report regarding a previous accident prepared by Store Manager Valerie Donnelly.

According to plaintiff, these incident reports are relevant to defendant's potential liability and prior notice of a possibly dangerous condition(s) in its store. Plaintiff claims the need for their disclosure here is even greater due to plaintiff's amnesia and Ms. Haughner's present inability to recall anything regarding the incident. Plaintiff argues that defendant's various boilerplate objections as to vagueness, ambiguity, overbreadth, relevance, compound form, as well as objections based on trade secret protection, are without merit. Plaintiff also contends that defendant's objections based on the attorney-client privilege and the attorney work product doctrine fail, and that in any event, these objections were waived when defendant failed to make timely and specific objections to several of the requests on these grounds.*fn1 Defendant disputes that the attorney-client privilege and attorney work product objections were waived and contends that the incident reports are privileged and subject to work product protection. DISCUSSION

In diversity cases, issues regarding privilege are determined under the state law that governs decision of the case. See Fed. R. Evid. 501; Star Editorial, Inc. v. United States District Court for the Central District of California, 7 F.3d 856, 859 (9th Cir. 1993). Thus, in determining the existence or extent of the attorney-client privilege in this case, California law controls. Under California law, the attorney-client privilege confers a privilege on the client "to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer...." Cal. Evid. Code § 954. The phrase "confidential communication between client and lawyer" means "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship." Cal. Evid. Code § 952.

"The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply." Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 733 (2009) (internal citations omitted).

"[T]o determine whether a communication is privileged, the focus of the inquiry is the dominant purpose of the relationship between the parties to the communication. Under that approach, when the party claiming the privilege shows the dominant purpose of the relationship between the parties to the communication was one of attorney-client, the communication is protected by the privilege." Clark v. Superior Court, 196 Cal. App. 4th 37, 51 (2011). As the California Supreme Court explained, when deciding whether a corporate employee reporting to the corporation's attorney was speaking on behalf of the corporation so that the report was in effect a communication from the corporation to the attorney: the dominant-purpose test determines whether the relationship between the attorney and the corporate employee is an attorney-client relationship; if the corporation's dominant purpose in requiring the employee to make a statement is the confidential transmittal to the corporation's attorney of information emanating from the corporation, the communication is privileged. And as we have explained, because the privilege protects the transmission of information, if the communication is privileged, it does not become unprivileged simply because it contains material that could be discovered by some other means.

Costco Wholesale Corp., 47 Cal. 4th at 734-35 (emphasis in original).

"However, the attorney-client privilege only protects disclosure of communications between the attorney and the client; it does not protect disclosure of underlying facts which may be referenced within a qualifying communication." State Farm Fire & Casualty Co. v. Superior Court, 54 Cal. App. 4th 625, 639 (1997) (emphasis in original). Furthermore, "documents prepared independently by a party, including witness statements, do not become privileged communications or work product merely because they are turned over to counsel." Wellpoint Health Networks, Inc v. Superior Court, 59 Cal. App. 4th 110, 119 (1997). The California Supreme Court's opinion in Costco made clear that these well-established principles remain intact. Costco Wholesale ...

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