JOVILIE CRUZ NIEVAR v. TROY DION CLARK, et al.

On May 18, Plaintiff filed the current motions, both related to Plaintiff’s desire to seek additional information related to video footage of the truck on the day of the accident. One motion seeks an order

compelling Amazon employees Heather Thuman, Rachel Jensen, and Vijay Sundar to sit for depositions and the second motion seeks further responses to requests for production (“RFP”s) Set Five, Request Nos. 277, 278, 279, 293, 294, and 295. On July 16, Amazon filed their oppositions and on July 22, Plaintiff filed her replies.

Motion to Compel Deposition

Service of a proper deposition notice obligates a party or “party-affiliated” witness to attend and testify, without necessity of subpoena. (Code Civ. Proc., § 2025.280, subd. (a).)

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, . . ., the party giving the notice may move for an order compelling the deponent’s attendance and testimony . . . .” (Code Civ. Proc., § 2025.450, subd. (a).) A motion compelling further deposition testimony “shall set forth specific facts showing good cause,” and “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., § 2025.450, subd. (b)(1)-(2).)

Motions to Compel RFPs.

A party who deems a statement of compliance with a document demand as incomplete, or the representation of inability to comply as inadequate, incomplete, or evasion, or an objection to a document demand as without merit or too general can move to compel further responses. (Code Civ. Proc., §2031.310, subd. (a).) In ruling on the motion, courts may consider the relationship of the information sought to the issues framed in the pleadings; the likelihood that disclosure will be of practical benefit to the party seeking discovery; and the burden or expense likely to be encountered by the responding party in furnishing the information sought. (Weil & Brown, Cal. Prac. Guide (TRG 2013), Civil Procedure Before Trial, §8:1180-8:1181.)

The motion to compel must be noticed within forty-five days of receipt of the responses (plus the additional time if not personally served). (Code Civ. Proc., §2031.310, subd. (c).) The motion to compel must be accompanied by a declaration stating facts showing a reasonable and good faith attempt to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§2031.310, subd. (b)(2), 2016.040.) Additionally, the moving party must set forth facts showing good cause justifying the discovery sought by the demand. (Code Civ.

Proc., §2031.310, subd. (b)(1).) Motions to compel must also be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must be complete in itself; no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).)

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (Code Civ. Proc., § 2031.310, subd. (c).) A motion to compel further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc. § 2031.310(b)(1).)

Analysis

Motion to Compel Depositions

Plaintiff seeks an order compelling Amazon to produce employees Heather Thuman, Rachel Jensen, and Vijay Sunder. Plaintiff seeks the deposition of Ms. Thuman because she is the person identified, through other deposition testimony, who may have the information regarding why footage of the driver on the day of the accident was not found and produced earlier in the litigation despite months of asking. (J. Ritterbeck Decl. ¶¶23, 26, 32; Reply at 2.) Specifically, as to the necessity of Ms. Thuman’s deposition, Plaintiff argues that previous deponents have only testified that they did not know who found the footage, how it was found, when it was found, or where it was located.

In opposition, Amazon argues that Code of Civil Procedure section 2019.030 demands that the Court “restrict the frequency or extent of use of a discovery method” if “[t]he discovery sought is unreasonably cumulative or duplicative, or ... unduly burdensome or expensive.” (Code Civ. Proc., § 2019.030, subd. (a)(1)-(2).) Here, however, Ms. Thuman’s deposition does not appear cumulative or duplicative because no witness yet has been able to answer how the video footage was found, the process used to locate it, and why it was originally communicated to Plaintiff that no footage existed. There are also issues regarding the existence of additional security cameras that may have captured more video footage at the time of the accident and whether there was a search for said footage. Accordingly, the Court intends to grant the motion as to Ms. Thuman.

The depositions of Mr. Sunder and Ms. Jensen are sought because Plaintiff believes they possess information related to the relationship between ATA, Amazon, and A&A. Amazon argues that their depositions are not necessary because both were not witnesses and have no knowledge of the accident. Plaintiff, on reply, clarifies that “Plaintiff seeks their testimony because Amazon identified them in verified discovery responses as the Middle Mile Performance Managers (“MMPMs”) responsible for ATA [] and A&A,” “Amazon’s PMQ testified that Amazon utilized MMPMs to oversee Amazon Relay carriers and that those managers utilized Amazon’s Carrier Performance Escalation Matrix in evaluating carrier performance, including whether carriers should be suspended or terminated from the Relay program,” (Unger Deposition, Exh. 6) and that “Plaintiff’s theory of liability includes Amazon’s supervision, oversight, management, and control of the Relay carriers operating on Amazon’s behalf.” (Reply at 5.)

The court finds that the depositions of Mr. Sunder and Ms. Jensen may lead to the discovery of admissible evidence on the issues of Amazon’s exercise of supervision and control of Relay carriers around the time of the incident, particularly ATA and A&A. The depositions are not cumulative as each of the witnesses were separately the MMPA’s for ATA and A&A. The declarations of Sunder and Jensen generally disavowing any knowledge of ATA and A&A, in which they attest that they do not have “personal knowledge regarding” ATA or A&A (R. Jensen Decl. ¶6; V. Sunder Decl. ¶4.) and have had no contact with ATA or A&A regarding the accident are not sufficient to preclude their depositions, where, for example, memories can be refreshed and questioning goes beyond their contact with these entities “regarding the accident”.

The court intends to grant the motion as to Mr. Sunder and Ms. Jensen.

Motion to Compel RFPs.

RFPs 277 and 279.

RFP 277 and 279 seek communications about any video footage Amazon had regarding the accident, or the day/time it took place. RFP 277 specifically seeks records of non-attorney communication that previous witness Jennifer Bell had regarding the video footage. Amazon objects on the basis of privilege.

As stated by the California Supreme Court:

[O]nly derivative or interpretive material—material created by or derived from an attorney's work reflecting the attorney’s evaluation of the law or facts—constitutes work product. Examples of such material include “diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial.” [Citation.] Nonderivative material—material that is only evidentiary in nature—does not constitute work product. Examples of such material include the identity and location of physical evidence or witnesses.

(Coito v. Superior Court (2012) 54 Cal.4th 480, 488-489.)

Pursuant to the privilege log provided to the Court by Plaintiff (J. Ritterbeck Decl. Ex. 22), only two documents (both involving Ms. Bell) are being withheld in regards to these RFPs. Here, communications to/from Ms. Bell involving co-employee participants Heather Thuman and James Magee, apparently do not involve communications with attorneys or otherwise reveal legal opinions or strategy, and would be nonderivative work product because they relate to seeking the video footage that was ultimately obtained. The court intends to order production of these documents unless counsel for Amazon requests an incamera review of the documents to ensure no privilege exists prior to production.

RFP 278.

RFP 278 seeks all policies and procedures applicable to retention of video footage at the facility the subject truck was leaving at the time of the accident. Amazon originally served a code-compliant response, but since its serving of that response, there has been conflicting deposition testimony as to whether a retention policy existed at the time of the accident.

In its response to Plaintiff’s separate statement, Amazon offers to “serve a supplemental verified response confirming a diligent search and, if no additional CNO5-specific writings are located, stating whether such documents never existed, cannot be found, or are not in its possession, custody, or control.” (Resp. to Sep. Statement at 9.) This offer would resolve the issue before the Court and give Plaintiff a definitive answer to its questions about a retention policy. As such, the Court intends to grant the motion as to RFP 278 with the proviso that service of the proposed verified supplemental response shall constitute a sufficient code compliant response to RFP 278.

RFPs 293-295.

RFPs 293-295 seek “Carrier Performance Escalation” matrices for ATA, A&A, and other third-party carriers. Plaintiff argues that an Amazon witness previously testified that a Carrier Performance Escalation Matrix established the criteria governing when carriers would be suspended or terminated based on their performance scores, and that Amazon’s MMPMs used the matrix in making those determinations. (PMQ Unger Depo.) Amazon argues that it has provided code compliant responses, by responding that it has done a diligent search and has been unable to find the documents referred to. Indeed, even though this response may conflict with the testimony otherwise given, it is code compliant (Code Civ. Proc. § 2031.230), and Amazon cannot be compelled to create or draft a document to satisfy a demand.

Consequently, the Court intends to deny the motion as to RFPs 293-295.

TENTATIVE RULING

• The Court grants Plaintiff’s Motion to Compel Depositions of Heather Thuman, Rachel Jensen and Vijay Sundar. The deponents are to be presented for deposition within 45 days of this ruling.

• The Court grants Plaintiff’s Motion to Compel Further Responses in part:

a. Ordering Amazon to produce a further response to RFP 278; b. Ordering Amazon to produce the documents withheld in response to RFPs 277 and 279, OR the court will conduct an in-camera review of the documents if requested by counsel for Amazon verify privilege status; and c. Denying the motion as to RFPs 293-295.

The court orders production of further responses to the applicable RFP’s within 30 days.

Plaintiff to give notice of the court’s rulings.