Using Protective Orders as a Sword to Properly Monitor Inspections and Testing
By David Finley, Esq.
From Mr. Finley’s article in the January 2020 issue of the Orange County Trial Lawyer Association magazine, THE GAVEL. Reprinted with permission.
I recently encountered an interesting challenge on a research project for a client seeking to oppose a motion to compel an inspection demand in a medical malpractice case. In the motion, defendant sought to compel plaintiff to comply with a demand for an inspection and potentially destructive testing of a key piece of evidence, while also attempting to limit plaintiff’s counsel from being present to monitor the testing. Using the “specified terms and conditions” language in the protective order provision of Code of Civil Procedure section 2031.060, the court accepted plaintiff’s arguments in opposition to the motion and fashioned an order mandated proper monitoring of the inspection process. The legal arguments we employed, and the tactics attempted by the defendant to prevent proper monitoring, are discussed in this article. The approach can be applied to ensure proper monitoring of inspections and testing of tangible things, as well as with demands involving other types of inspections.
The “specific terms and conditions” language in the Code’s protective order provisions can be a powerful tool in combating defense discovery motions…
This case involved a complaint for damages arising from permanent scarring due to an allegedly negligently executed outpatient cosmetic surgery procedure. A key issue in the case was whether plaintiff’s injuries were caused or exacerbated by the wearing of a post-procedure corset-type device. The dispute arose during discovery when defendant served an inspection demand seeking to obtain possession of the device to conduct both an inspection and testing by its consulting expert. Plaintiff did not object to the inspection, in general, but had concerns that any testing could permanently alter the device. In responding to the demand, she added conditions that the proceeding must occur in the presence of plaintiff’s counsel and/or plaintiff’s expert. Defendant refused to agree to these terms, asserting that allowing plaintiff’s counsel or expert to be present would result in premature disclosure of defendant’s consulting expert, prior to the normal timeframe for exchanging expert witness information. Defendant asserted that that plaintiff’s response created oppressive conditions due to the premature expert disclosure. Plaintiff held firm, concerned that any alteration or damage to the device during the testing process would be difficult to prove later at trial, thus necessitating a proper monitor to oversee the process. Plaintiff argued that a request for inspection of tangible things under the Code is akin to a premises liability case, where plaintiff’s counsel are routinely present to observe defense expert inspections, without restriction.
The defendant moved to compel compliance with the inspection demand, asserting that an expert’s identity remains privileged until designated as a trial witness (Schreiber v. Esate of Kiser (1999) 22 Cal.4th 31, 37), and that opinions of experts who have not been designated as trial witnesses are protected by the work product rule (Williamson v. Superior Court (1978) 21 Cal 3d 829, 834-35). The defendant further argued that there is a distinction between inspection and testing involving tangible things as compared to inspection of land or property, pointing to the differing language in the Code relating to each type of demand. Code of Civil Procedure section 2031, subd. (c) states that a party may demand that another party “produce” tangible things for inspection, testing, etc., whereas 2031.010, subd. (d) states that the inspecting party may “enter the land or other property that is in the possession or control of the party on whom the demand is made.” From this distinction, defendant argued that production of tangible things is not satisfied unless the responding party agrees to let those things out of his or her possession and control. (Filipoff v. Superior Court of Los Angeles County (1961) 56 Cal.2nd 443, 450.)
Plaintiff did not dispute that an expert’s identity is privileged until designated as a trial witness, or that any opinions of such expert would be protected by the work product rule. However, the protection of the identity or work product is qualified and not absolute. (See Weil & Brown, Civil Procedure Before Trial (2018, The Rutter Group), §§ 8:222, 8:248 (as with other qualified work product, the court could order disclosure if denial would unfairly prejudice the party seeking discovery or otherwise result in an injustice); Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 298 (good cause for disclosure of an expert’s opinion or identity might arise from a party’s inability to prepare its claim or defense); see also Grand Lake Drive In, Inc. v. Superior Court (1960) 179 Cal.App.2d 122, 129.)
The approach can be applied to ensure proper monitoring of inspections and testing of tangible things, as well as with demands involving other types of inspections.
The Discovery Code is quite clear that the party making the demand “or someone acting on the demanding party’s behalf” may conduct the inspection, testing, sampling, etc. (Code Civ. Proc, §§ 2031.010). However, there is no language in the Code requiring anonymity of the person acting on the demanding party’s behalf, such as a consulting expert. Demanding parties certainly have the right to elect to have an expert participate in the inspection, but to read any additional meaning into the Code that would require the inspector to remain anonymous goes well beyond the plain language of the Code or the legislature’s likely intent in crafting sections 2031.010, et seq. The case law interpreting these sections is equally silent on this issue, and defendant in this case offered no cases to satisfactorily rebut this position.
The Discovery Code similarly offers no specific language as to who may be present during the inspection of tangible things or where the inspection must occur. Section 2031.010, subd. (c), merely states that a party may demand that any other party produce and permit the party to inspect and to photograph, test, or sample tangible things “in the possession, custody, or control” of the party on whom the demand is made. Ibarra v. Superior Court (2013) 217 Cal.App.4th 695, provided helpful guidance to support plaintiff’s position in this case. In Ibarra, an inmate in the Los Angeles Central Jail filed a complaint alleging that guards at the jail physically mistreated him. The plaintiff sought the production of the guards’ official service photographs for use in witness interviews. The trial court ordered the photographs to be produced, but the appellate court reversed and held that the trial court abused its discretion by compelling the disclosure of the photographs without more stringent restrictions on their use. (Ibarra, supra, at p. 160.) In pointing to the risk of harm to the guards, the court held that the demanded evidence should have been made available for viewing at the jail (where the documents were housed), the courthouse, or some other secure location, and only by potential witnesses who were identified by name before viewing the photographs. (Ibid.)
Plaintiff also pointed out that it is common practice for counsel to be present during inspections in many other analogous types of discovery scenarios. These scenarios include: inspections or testing of land or real property in premises cases; inspections of subject vehicles in automobile accident cases; testing and inspection of roads in dangerous condition of public property cases; physical examinations of injured parties in personal injury cases; and, many others.
Relying on the above authorities, the plaintiff looked to the protective order provisions in the Code to support her argument that proper monitoring should be ordered in this case. Code of Civil Procedure section 2031.060 subd. (a) provides that a party to whom an inspection demand is directed may “promptly move for a protective order.” (See also Code Civil Proc. section 2019.030 subd. (b).) Section 2031.060, subd. (b)(4) gives the court the authority to fashion a protective order that the inspection be made“only on specified terms and conditions.” And section 2031.060, subd. (b)(3) provides that the court may order that “the place of production be other than that specified in the demand.” In this case, plaintiff argued, like in Ibarra, that allowing the demand to move forward without more stringent restrictions created a risk of harm to the plaintiff due to concerns about possible alterations or destructive testing of the subject evidence. Pointing to the “specified terms and conditions” language in section 2031.060, subd. (b)(4), supra, plaintiff urged the court to allow plaintiff’s counsel to be present to observe the inspection if it elected to grant defendant’s motion to compel.
Ultimately, the court sided with plaintiff, granting defendant’s motion to compel while ordering that attorneys for both parties may be present during the inspection. The court further prohibited any destructive testing of the evidence, and, not surprisingly, did not impose any sanctions upon plaintiff for opposing the motion.
Ultimately, the court sided with plaintiff … ordering that attorneys for both parties may be present during the inspection.
The logic of the arguments employed in this case can be extended to other types of inspections where the Code is similarly silent as to restrictions on allowing monitors to be present to observe the inspection proceeding(s). This would logically extend to scenarios such as the following:
- Monitoring of inspections for the copying of copying of documents [Code Civ. Proc., § 2031.010, subd. (b)]
- Monitoring of inspections to photograph, test, or sample tangible things [Code Civ. Proc., § 2031.010, subd. (c)]
- Monitoring of inspections to measure, survey, photograph, test, or sample land or other property, or any designated object or operation on it [Code Civ. Proc., § 2031.010, subd. (d)]
- Monitoring of inspections to copy, test, or sample electronically stored information [Code Civ. Proc., § 2031.010, subd. (e)]
The “specific terms and conditions” language in the Code’s protective order provisions can be a powerful tool in combating defense discovery motions, while ensuring that plaintiffs are not put at a disadvantage during the discovery process. Where counsel encounters resistance to reasonable plaintiff requests to monitor defense inspections, the authorities cited above may help support good faith objections to onerous demands. Ultimately, these authorities, and the arguments discussed herein, may be used in supporting briefs to help convince the court to fashion discovery orders allowing such plaintiff monitoring.
David Finley, Esq., is the president and lead brief writer at Esquire One Research Services (esquireone.com), a resource for outsourcing legal brief writing. He is also author of multiple motion-focused Rutter guides, and teaches advanced motion drafting at UC Irvine School of Law. He can be reached at dfinley@esquireone.com.
