*1 On March 28, 2023, plaintiff C.P. filed a motion to compel defendant Costco Wholesale Corporation to respond to interrogatories and requests for production of documents (“RFPs”). Docket no. 25. The motion is supported by the declaration of plaintiff's counsel Allan L. Dollison (“Dollison Decl.”) and exhibits. After reviewing the motion and defendant's objections to it filed on April 10, on April 13, 2023 the court ordered the parties to meet and confer and to file an opposition and reply addressing any remaining disputes.

Defendant filed an opposition on April 25, 2023, supported by the declarations of its counsel Julie M. Romersa (“Romersa Decl.”) and exhibits and the declaration of its counsel John K. Flock (“Flock Decl.”). On May 2, 2023, plaintiff filed a reply, supported by the further declaration of her counsel Dollison (“Dollison Reply Decl.”) and exhibits.

The court found a hearing on this motion would not be of assistance, and so vacated the hearing that was scheduled for May 9, 2023. The court now grants in large part plaintiff's motion for the reasons discussed below.

This case arises from injuries plaintiff allegedly suffered when a refrigerator glass door fell on her at defendant's warehouse store.

After the instant motion to compel was filed and the court ordered the parties to meet and confer, the parties did so over Zoom on April 19, 2023. Romersa Decl. ¶ 2; Dollison Reply Decl. ¶ 3. The parties discussed the disputed interrogatories but were unable to resolve their disputes.[1] Romersa Decl. ¶ 3; Dollison Reply Decl. ¶ 5. Defendant informed plaintiff that its other counsel who was not present, John Flock, was responsible for dealing with documents. Dollison Reply Decl. ¶ 7. As such, the parties did not meet and confer about the disputed RFPs at their April 19, 2023 session. Id.

Following the session, plaintiff emailed Mr. Flock to request a meet and confer session regarding the RFPs. Dollison Reply Decl. ¶ 8, Ex. A. On April 21, 2023, Mr. Flock's paralegal informed plaintiff that Mr. Flock would call her that afternoon. Dollison Reply Decl. ¶ 9, Ex. B. Plaintiff did not receive a call from Mr. Flock. Dollison Reply Decl. ¶ 10.

Later that day, plaintiff received an email, on which Mr. Flock was copied, from defendant's other counsel. Dollison Reply Decl. ¶ 11, Ex. C. That email provided defendant's updated positions regarding the RFPs. Id. Defendant stated that its positions on RFP Nos. 5 and 10 had not changed. Dollison Reply Decl. ¶ 11, Ex. C. It stated that after further inquiry, it determined no documents responsive to RFP No. 11 exist. Romersa Decl. ¶ 6; Dollison Reply Decl. ¶ 11, Ex. C. And it while it also stated that it would provide documents responsive to RFP Nos. 9 and 12, plaintiff never received any such documents. Romersa Decl. ¶; Dollison Reply Decl. ¶ 11, Ex. C.

*2 Plaintiff seeks an order compelling responses to RFP Nos. 5, 9, 10, 11, and 12 and interrogatories 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22, 23, 24, and 25. Opp. at 2-4. Both parties seek sanctions. The discovery cutoff is June 1, 2023. Docket no. 22.

Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2000 amendment (the court has “the authority to confine discovery to the claims and defenses asserted in the pleadings”); U.S. v. Aurora Las Encinas, LLC, 2012 WL 12897081, at *5 (C.D. Cal. Sept. 6, 2012) (“The pleadings define the scope of the present discovery ....” (cleaned up)). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citation and internal quotation marks omitted).

A. RFP Nos. 9 and 12

On April 21, 2023, defendant sent plaintiff an email stating it would provide documents responsive to RFP Nos. 9 and 12, and states in its opposition that the dispute related to those RFPs “has been resolved.” Opp. at 3. But as of the filing of her reply, plaintiff had not received any such documents. As such, defendant is ordered to produce all documents in its possession, custody, or control responsive to RFP Nos. 9 and 12.

B. Interrogatory No. 5 and RFP No. 11

On April 19, 2023, defendant sent plaintiff an emailed letter containing a response to Interrogatory No. 5. And in its April 21, 2023 email to plaintiff, defendant stated that no documents responsive to RFP No. 11 exist. But as plaintiff notes, defendant has failed to provide amended discovery responses reflecting these updates. As such, defendant is ordered to provide further, code-compliant responses to Interrogatory No. 5 and RFP No. 11.

C. RFP No. 5

RFP No. 5 requests “Any and all employee statements concerning the INCIDENT.” Mtn. at 12. Defendant refuses to produce responsive documents, including a Confidential Incident Report dated September 9, 2019, on the bases of attorney work product protection and attorney-client privilege. Mtn. at 12-13; Opp. at 3-4, 8-11.

Defendant maintains the incident report in question was prepared and transmitted pursuant to defendant's policy for when a customer reports an injury or incident. Opp. at 9-10; see Romersa Decl. ¶ 8, Ex. A.[2] Defendant notes that the incident report is clearly labeled as “confidential” and states, “This report is to be prepared for the company's legal counsel. Do not give a copy of this report to or discuss its contents with any person except as instructed.” Romersa Decl. ¶ 7, Ex. B. Defendant contends the document was created “in the ordinary course of business and required by company policy.” Opp. at 8. Defendant did not produce a privilege log including the document. Reply at 4.

1. Work Product Doctrine

*3 The work product doctrine generally protects “documents and tangible things that are prepared in anticipation of litigation or for trial” so as to prevent “disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney.” Fed. R. Civ. P. 26(b)(3). “To qualify for work-product protection, documents must: (1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that other party's representative.” U.S. v. Richey, 632 F.3d 559, 567 (9th Cir. 2011) (internal quotation marks and citation omitted). The work product rule also covers the work product of non-attorneys which is prepared in anticipation of litigation by or for a party or any representative acting on his behalf. See Roberts v. Americable Intern. Inc., 883 F. Supp. 499, 507 (E.D. Cal. 1995) (citing Fed. R. Civ. P. 26(b)(3) Advisory Committee Notes). When “a document serves a dual purpose, that is, where it was not prepared exclusively for litigation, then the ‘because of’ test is used.” Richey, 632 F.3d at 568.

Though defendant asserts that documents responsive to RFP No. 5 are protected by the attorney work product doctrine (Opp. at 3-4), it provides no support for that assertion. In fact, defendant undermines its claim by conceding that the report in question was created “in the ordinary course of business and required by company policy” and that it “may not have been prepared in anticipation of litigation.” Opp. at 8, 10. Defendant even admits that “this case may support an argument that the withheld document is not protected by attorney work product” before turning to its legal arguments regarding attorney-client privilege. Opp. at 8. Considering that nowhere in its opposition does defendant assert that its report was prepared in anticipation of litigation, the first requirement for protection under the work product doctrine, the court finds the doctrine does not apply.

2. Attorney-Client Privilege

In a diversity jurisdiction case such as this one, state law governs matters of privilege. Oakes v. Halvorsen Marine, Ltd., 179 F.R.D. 281, 284 (C.D. Cal. 1998); Fed. R. Evid. 501. In California, the attorney-client privilege attaches to confidential communications between a client and the client's attorney during the course of the attorney-client relationship. Cal. Evid. Code § 952; 2,022 Ranch, LLC v. Superior Court, 113 Cal. App. 4th 1377, 1388 (2003). The party asserting the privilege bears the initial burden of demonstrating that the communication falls within the privilege. Wellpoint Health Networks, Inc v. Superior Court, 59 Cal. App. 4th 110, 123 (1997). Once an attorney-client relationship has been established, communications between the attorney and the client are presumed to be in confidence, and an opposing party bears the burden of proving the communication was not in confidence. Cal. Evid. Code § 917; State Farm Fire & Cas. Co. v. Superior Court, 54 Cal. App. 4th 625, 639 (1997).

Defendant argues the report is privileged because the employees who completed it were essentially speaking as defendant itself to defendant's counsel, rather than as independent witnesses. In support, defendant cites D.I. Chadbourne, Inc. v. Superior Court, 60 Cal. 2d 723 (1964), in which the California Supreme Court identified 11 principles to consider when determining whether a corporate employee's statements to the corporate attorney were effectively communications of the corporation itself, and if so, whether they are privileged. 60 Cal. 2d at 736-39. In summary, “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.” Costco Wholesale Corp. v. Superior Court, 47 Cal. 4th 725, 735 (2009) (citing Chadbourne, 60 Cal. 2d at 737).

*4 Here, defendant seems to argue that its dominant purpose for requiring an employee to fill out an incident report was to send the reports to its counsel. Defendant notes that the report was labeled as confidential and that the form stated that the report was to be prepared for the company's legal counsel. Defendant also states that after the form was transmitted over its Intranet that “Defendant's Risk Management company was notified.” Opp. at 10.

The facts of Fisher v. Kohl's Dep't Stores, 2012 WL 2377200 (E.D. Cal. June 22, 2012), are similar to those here. In Fisher, the court applied California law to find that an incident report prepared after a customer slipped and fell at one of defendant's stores was not privileged. There, as here, the incident reports were “routinely prepared by employees after an accident ... in the ordinary course of business and pursuant to corporate policy,” and “contain[ed] essentially factual information.” Id. at *4. And as here, the reports in Fisher were “intended to be confidential” and employees were instructed “not to discuss the incident with any attorneys without prior approval.” Id.

In Fisher, defendant's own policies stated the dominant purpose of the incident reports was “to prevent recurrence and make the workplace safer – not to communicate information to or seek advice from defendant's attorneys.” Id. Although we lack any such policy statement in the record here, that does not materially distinguish Fisher on this point given that defendant here does not rely on its policies to show the dominant purpose of the report was to communicate with its attorneys. Indeed, the policy statement defendant produced is almost entirely redacted, and the unredacted fragments say nothing about the purpose of the report. See Romersa Decl., Ex. A.

The court in Fisher found that the evidence as to where the forms were routinely sent was ambiguous: the privilege log simply stated “Kohl's Department Stores, Inc.,” whereas witnesses suggested they went to defendant's corporate offices, risk management department, corporate counsel, and possibly outside counsel. Fisher, 2012 WL 2377200, at *4. The evidence here is no clearer than in Fisher. Defendant has failed to produce a privilege log, so the court cannot refer to one to determine a recipient. The incident form itself states it “is to be prepared for the company's legal counsel” (Romersa Decl., Ex. B), but that does not mean the form in fact was sent to and received by legal counsel. Defendant states that after the form was transmitted over its Intranet, its risk management company was “notified.” Opp. at 10. Even assuming the risk management company is equivalent to its legal counsel – something the record does not establish – nowhere does defendant explicitly state that the risk management company or counsel actually received the report after it was transmitted.

As such, the court finds that here, as in Fisher, “[e]ven if it were anticipated that these independent factual statements may prove useful in potential future litigation, there is no clear indication that they were in the first instance directed to an attorney for legal advice.” Fisher, 2012 WL 2377200, at *4. Accordingly, here as in Fisher, “defendant has failed to make a sufficient showing that the dominant purpose of the incident reports was transmission to an attorney for purposes of seeking legal advice,” in other words, “that the dominant purpose of the relationship between the parties to the communications at issue was attorney-client communication.” Id. at 5.

*5 There is no doubt that the incident report was intended to be confidential, but that does not make it privileged. And even if it was sent to legal counsel, that alone would be insufficient. Defendant cannot shield the disclosure of factual information by requiring its employees to transmit the information to risk management or counsel after an incident. “[D]ocuments 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., 59 Cal. App. 4th at 119. See also Costco Wholesale Corp., 47 Cal. 4th at 742 (holding the privilege “does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney”).

Accordingly, defendant is ordered to produce all documents in its possession, custody, or control responsive to RFP No. 5, including the unredacted Confidential Incident Report.

D. RFP No. 10

RFP No. 10 requests “Any and all documents that reflect the identity of any of your employees that were on duty in the PREMISES at the time of the INCIDENT.” Mtn. at 13. Defendant refuses to produce responsive documents on the bases of relevance and privacy. Mtn. at 13-14; Opp. at 4.

Courts have broad discretion in controlling discovery” and “in determining relevancy.” Laub v. Horbaczewski, 331 F.R.D. 516, 521 (C.D. Cal. 2019) (citations omitted). “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. “[T]he right to discover relevant information must be weighed against the right to privacy.” Brown v. Dash, 2021 WL 4434978, at *1 (C.D. Cal. July 27, 2021), reconsideration denied, 2021 WL 4899019 (C.D. Cal. Sept. 1, 2021).

Defendant argues plaintiff has not shown sufficient justification to infringe on its employees' right to privacy in their personal information. Opp. at 7. It notes that at any given time, almost 200 employees are working throughout the warehouse store that was the site of the incident. Id. It states that employees with knowledge of the incident have already been identified, and plaintiff has provided no reason to believe unidentified employees who were on the premises possess knowledge of the incident that would justify the disclosure of their identities. Id.

Plaintiff argues that a list employees who were on duty at the time of the incident is a narrowly tailored request for highly relevant information (Mtn. at 15) and notes that discovery standards under the Federal Rules of Evidence are broad (Reply at 6). But she does not show any need for the identities of the possibly hundreds of employees that were working on the premises at the time of the incident, nor does she contest defendant's statement that employees with information about the incident have already been identified. Because she has not explained what need she has for the information, the court denies her motion to compel a further response to RFP No. 10.

E. Interrogatory Nos. 1-4, 6-8, 11-14, 16-20, and 22-25

Under Federal Rule of Civil Procedure 33, a party may serve up to 25 written interrogatories, unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 33(a)(1). The responding party must serve its answers and any objections within 30 days of being served with the interrogatories, and any ground not stated in a timely objection is waived unless the court excuses the failure for good cause. Fed. R. Civ. P. 33(b)(2); (b)(4). Under Rule 34, a party may request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The responding party must respond in writing (including any objections) within 30 days of being served, and absent objection, is obligated to produce all specified relevant and non-privileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed. R. Civ. P. 34(a), (b)(2).

*6 The interrogatories in dispute request basic factual information about the conditions surrounding plaintiff's injury, for example, the specifications of the door that fell on her and the identities of individuals responsible for the door's maintenance. In response to each of these interrogatories, defendant replied “unknown” or otherwise indicated it did not know the requested information.

Defendant argues its responses were complete and that no supplemental responses are required because it made a reasonable effort to locate the information by reviewing its own documents. Opp. at 5-6. It states that the information requested is not information that would normally be documented in its normal course of business. Opp. at 5. And it notes that while the incident occurred in September 2019, plaintiff did not serve discovery until December 2022, and “[m]emories fade.” Id. Plaintiff argues these responses are insufficient because they claim ignorance over highly relevant, basic information about the incident in question that defendant should have or should be able to obtain after a thorough search. Mtn. at 11; Reply at 3.

The court finds defendant's responses are insufficient. As plaintiff notes, most of the interrogatories in questions request fairly basic information about the incident that would appear to be accessible to defendant after making a thorough inquiry, of people and by examining objects in the store in question, as well as documents. Defendant argues it is not obligated to conduct extensive research, but it has not adequately explained why obtaining the basic information plaintiff requests would require extensive research or be otherwise unreasonable.

Defendant is obligated to make a thorough, good faith search for the information requested. And if after conducting a thorough search it still finds no responsive information it should certify this, which it did not do in its original responses. The court further notes it is not compelling a further response to RFP No. 10, which would have required defendant to produce the identities of all employees who were on the premises at the time of the incident, some of whom may have some of the requested information. Given this, defendant needs to conduct a thorough search to obtain the basic factual information plaintiff requests in her interrogatories.

For these reasons, defendant is ordered to provide further responses to Interrogatory Nos. 1, 2, 3, 4, 6, 7, 8, 11, 12, 13, 14, 16, 17, 18, 19, 20, 22, 23, 24, and 25. If after a thorough search defendant is unable to locate information responsive to these requests, then it must explicitly say so in code-compliant further responses.

F. Plaintiff's Request for Sanctions Is Granted

Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Rule 37(d)(1)(A)(I) also provides a court may “order sanctions if a party fails, after being served with proper notice, to appear for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A)(I).

*7 Both parties here request sanctions. An award of sanctions to defendant is out of the question, not only because it prevailed on just one request in this motion out of many, but also because it failed to properly meet and confer about the disputed RFPs.

Defendant's failure to meet and confer with plaintiff regarding her RFPs is especially notable considering the events of this motion. Plaintiff first requested to meet and confer with defendant regarding these disputes on March 7, 2023. Nothing in the record suggests defendant ever responded to plaintiff regarding plaintiff's request for a conference. Under those circumstances, plaintiff filed her motion on March 28, 2023, without having been able to meet and confer with defendant. On April 10, 2023, defendant then filed objections to the motion, accusing plaintiff of a failure to meet and confer, and requesting the chance to try resolving the disputes at that time. The court granted defendant's request in an attempt to avoid needlessly requiring the court to decide issues that might have been resolved by the parties. Then, after specifically requesting the chance to meet and confer with plaintiff despite not having responded to her initial efforts, defendant utterly failed to meet with plaintiff about her RFPs. As explained above, the parties were unable to discuss the RFPs at their April 19, 2023 session because defense counsel responsible for RFPs was not present. And while plaintiff reached out after the session to schedule another session, she never heard back regarding the request. Rather, she received an email purporting to provide defendant's updated positions on the disputed RFPs. But an emailed list of updated positions is no substitute for the good faith meet and confer efforts contemplated by Local Rule 37.

Under these circumstance, plaintiff's request for sanctions is granted. Plaintiff has been attempting to obtain the discovery requested in this motion since at least March 7, 2023. Since then, defendant has ignored plaintiff's requests to meet and confer in good faith about their disputes twice, despite specifically asking the court for that opportunity.

Plaintiff's counsel states he spent 11.5 hours on her motion and reply, at a rate of $450 per hour, for a total of $5,175. Dollison Reply Decl. ¶ 15. The court finds the time spent and the hourly rate reasonable. Accordingly, the court orders defendant to reimburse plaintiff for fees in the total amount of $5,175.

For the foregoing reasons, the court grants in large part plaintiff's motion to compel and request for sanctions as set forth above. Defendant must produce further written discovery responses and documents as ordered by May 30, 2023.