KINCAID v. PIETTE, et al.

Defendant filed the present Motion for Protective Order Preventing the Deposition of Mercury Insurance Company’s Adjuster, Roland McTier (Motion). The motion also seeks to quash the subpoena for records and documents because Mr. McTier is not the “custodian of records”.

Section 2017.020, subdivision (a), of the Code of Civil Procedure provides, in pertinent part, as follows: “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Code Civ. Proc., § 2017.020, subd. (a) (emphasis added).)

The issuance and formulation of protective orders are largely discretionary and rulings on motions for protective orders will not be disturbed absent an abuse of discretion. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316-317 (Nativi); Raymond Handling Concepts Corp. v. Super. Ct. (1995) 39 Cal.App.4th 584, 588).) The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery. (Nativi, supra, 223 Cal.App.4th at p. 317.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552 (Harris).) Where there is a legal basis for the trial court’s ruling and it is supported by evidence, a reviewing court will not substitute its opinion. (Id., at p. 1552.)

A monetary sanction shall be imposed against any party, person or attorney who unsuccessfully makes or opposes a motion for protective order, unless it finds the one subject to the sanction acted with substantial justification or the circumstances make the imposition of the sanction unjust. (Code of Civ. Proc., §2034.250, subd. (d).)

Analysis

Defendant seeks a protective order pursuant to sections 2025.420, 1987.1, 1987.2, 2020.410 and 2017.020 of the Code of Civil Procedure as to the Deposition Subpoena for Personal Appearance and Production of Documents and Things and a Notice of Deposition for Mercury Adjuster Roland McTier (McTier) served on November 19, 2025. Defendant contends the subject discovery request disregards the Civil Discovery Act, the Insurance Information and Privacy Protection Act (Insurance Code section 791.01 et seq.), and the privileges afforded under attorney-client communications and attorney work product doctrine.

Citing cases such as American Mutual v. Superior Court (1974) 38 Cal.App.3d 579, 592, Defendant argues an insurer can assert attorney-client privilege to prevent disclosure of its files. Further, Defendant contends the Insurance Information and Privacy Protection Act (Ins. Code section 791.01 et seq.) and section 2017.210 of the Code of Civil Procedure explicitly limit discovery of insurance-related information to the existence of coverage and its limits, not claims handling, underwriting files, or investigative reports.

Defendant requests a protective order to prevent disclosure of privileged information.

Defendant also requests monetary sanctions against Plaintiff for misuse of the discovery process under section 2023.010(a). Alternatively, Defendant requests the court quash the subpoena as it

was not properly served to the “custodian of records” or some other person qualified to authenticate Mercury Insurance Group’s records.

Plaintiff argues Defendant affirmatively pleads settlement and relies on a Release that McTier was an active participant in procuring and as such, he is a percipient witness. Plaintiff argues section 2017.210 does not apply here as Plaintiff is seeking settlement-formation facts and the statute does not shield settlement communications used to procure a release now challenged for fraud or mistake. Plaintiff contends, inter alia, that Mercury Insurance withheld and failed to disclose the existence of known medical liens at the time of settlement execution, which adversely impacted the value of the settlement. Communications with third parties regarding the existence and amount of medical liens is not a privileged communication. Plaintiff further contends Insurance Code section 791.13(h) explicitly permits disclosure in response to a subpoena or court order.

Defendant replies, renewing his contention that the information sought from Plaintiff’s subpoena is privileged and arguing Plaintiff fails to address the argument advanced in his Motion that the subpoena for production of documents must be quashed because it was not served on the proper party. Defendant further renews his position that Code of Civil Procedure section 2020.410(c) requires that a subpoena for production of business records be directed to the “custodian of records” or some other person qualified to authenticate the records.

Plaintiff files a belated objection pointing out that CCP §2020.410(c) only applies to deposition subpoenas solely seeking production of documents without the appearance of a witness, whereas Section 2020.020 governs attendance of in-person witnesses with document production.

In any event, the court agrees that the deposition notice with document production and the subpoena contain some categories which are overbroad and require restriction, and likewise the scope of the deposition must be restricted. The court intends to grant Defendant’s motion in part and permit limited deposition testimony with document production as follows.

Questioning and scope of McTier’s testimony shall be limited to representations at or about the time of execution of the release made by McTier, or others to his knowledge employed by Mercury, to plaintiff or plaintiff’s representatives regarding case value, value of injuries, the amount of medical billings or specials, the existence or non-existence of medical liens, the permanency of the release, and the legal effect of the release. The scope of questioning shall also include McTier’s involvement in discussions with or among Mercury employees regarding the existence of medical liens at or about the time of and after the execution of the release.

Documents to be produced pursuant to notice (or by subpoena) shall be limited in similar fashion to the scope of subject matter permitted for the deposition testimony/questioning of McTier. Such production is limited to documents in the Mercury Claim files generated at or about the time the release was executed referencing the release, terms of the release, notice or existence of medical liens, and potential possession of outstanding medical lien billings. Defendant’s counsel shall produce a privilege log identifying withheld documents. Presently, as for the documents requested to be produced, the subject documents are ostensibly documents held by Mercury Insurance Group’s custodian of records and not by McTier personally. The Court’s decision is

provided as guidance should the parties, absent stipulation, be required to obtain the documents by way of subpoena.

The Defendant’s attendant request for sanctions is denied. The defendant is not the prevailing or successful party as the motion was only partially granted and the court finds the parties acted with substantial justification rendering imposition of sanctions unjust.