Opinion
As Modified on Denial of Rehearing Oct. 3, 1963.
Kindel & Anderson, Los Angeles, and Bruce W. Sumner, Santa Ana, for petitioner.
No appearance for respondent.
McCutchen, Black, Harnagel & Shea, Los Angeles, for real party in interest.
PER CURIAM.
The question presented in this proceeding is whether defendant is entitled to inspect recordings of conversations in possession of plaintiff before plaintiff is permitted to take his deposition. Petitioner seeks a writ of prohibition, or other appropriate writ, to restrain respondent court from giving effect to a discovery order entered on March 27, 1963. By this order the court granted defendant's motion for inspection of certain recordings, but denied petitioner's motion for a protective order by which he sought to defer the production of the recordings until after defendant Charles Turner had given his previously scheduled deposition.
The action in which the order was made was commenced by petitioner herein as plaintiff in October 1960. He seeks damages for breach of an alleged oral contract between himself and defendant, Charles Turner, relating to plaintiff's partnership interest in and his employment as general manager of Park Beverage Company, distributors of Lucky Lager and Schlitz beers in Los Angeles County. It is alleged that the contract was entered into in 1957, was reaffirmed in 1959, and was breached 'on and after July 1, 1960.' Plaintiff also seeks damages from numerous other defendants for inducing Turner to breach his contract with plaintiff, and for their interference with his business relations with Turner. He also seeks an accounting against all defendants.
The parties will be referred to hereinafter as 'plaintiff' (petitioner herein); 'defendants' (real parties in interest herein); and 'respondent court.'
The parties to the litigation, through their respective counsel, agreed upon a sequence for the taking of depositions. Pursuant thereto, the deposition of plaintiff was taken over a period of five days, commencing on October 1, 1962. On October 2, the parties stipulated that defendant Turner's deposition would be taken on October 24, 1962. This stipulation was filed with the court.
On October 5, 1962, defendant Turner, pursuant to section 2031, Code of Civil Procedure, sought an order requiring plaintiff to produce recordings made by plaintiff of conversations with Turner and certain other defendants or employees of other defendants. Defendant knew of the existence of the recordings in September 1960.
Plaintiff did not dispute the right of defendants to inspect the recordings, conceding that they were relevant, not privileged, and should be produced in the orderly course of discovery. Rather, he countered with a motion for a protective order pursuant to section 2019(b), Code of Civil Procedure, by which he sought to defer inspection of the recordings until after Turner had given his deposition. Pending decision upon the motions, respondent court on October 15, 1962, stayed the taking of said deposition.
On January 16, 1963, respondent issued its 'Memorandum and Order' by which it granted defendant's motion and denied that of plaintiff, and defendants' counsel was instructed to prepare an order in accordance with provisions therein set forth. Accordingly, on March 27, 1963, the trial judge signed the order here under review. It provides as follows: 'IT IS ORDERED that plaintiff shall produce the several recordings * * * at the times hereinafter set forth, and given defendants a reasonable opportunity to hear said recordings and to have some or all of them transcribed, * * * IT IS FURTHER ORDERED that the recordings of all conversations with defendant Turner shall be so produced within twenty days from the date of this order, and that upon completion of said inspection and transcribing by defendants, plaintiff may resume the taking of the deposition of defendant Turner by stipulation or on
Since, at the outset of the proceedings, plaintiff expressed his willingness to produce the recordings, no issue as to 'good cause' for inspection was before the court; rather, the parties merely invoked the trial court's discretion as to the matter of timing in the pretrial procedure. As stated by the respondent in its memorandum, 'the remaining questions are whether defendants have shown good cause for the production of the recordings at this time, and conversely whether plaintiff has shown good cause for delaying such production until after Turner's deposition has been taken.' (Emphasis added.)
Ordinarily, a litigant has the right to take a proper deposition (Tatkin v. Superior Court, 160 Cal.App.2d 745, 750-752, 326 P.2d 201; Beverly Hills Nat. Bank & Trust Co. v. Superior Court, 195 Cal.App.2d 861, 864-865, 16 Cal.Rptr. 236). In the present case, plaintiff had a right to take Turner's deposition 'without leave of court' (§ 2016(a)), and pursuant to the written stipulation (§ 2019(a)(2)(4)). However, this is not an absolute or unqualified right. To prevent abuse of the deposition and discovery procedures, provision has been made in section 2019(b)(1) for the issuance of protective orders. This section reads in part: 'After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated time or place other than stated in the notice, or that it shall not be taken except by allowing written interrogatories by one or more parties, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, * * * or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment, or oppression.'
All references are to the Code of Civil Procedure unless otherwise specified.
Likewise, the conceded right of defendants to inspection of the recordings is subject to a protective order under the provisions of section 2019(b)(1) by specific reference thereto in the inspection statute (§ 2031).
It is stated in Carlson v. Superior Court, 56 Cal.2d 431, 437, 15 Cal.Rptr. 132, 135, 364 P.2d 308, 311: 'There is no question but that the discovery statutes give to the trial court wide discretion in making such orders as may be necessary to protect parties and deponents from abuse or misuse of depositions. [Citation.] But the court's power to order 'that the deposition shall not be taken, or that it may be taken only' at some other time or place, or in some other manner than as proposed, * * * is not unlimited. Section 2019 of the Code Singer v. Superior Court,
In cases decided prior to the enactment of the present discovery statutes, it was held that the court could, in its discretion, defer the taking of a deposition until the determination of a pending appeal of the cause in which the deposition was to be used (Hays v. Superior Court, 16 Cal.2d 260, 264, 105 P.2d 975); that it was proper to continue the taking of a deposition until it was determined in another action then pending whether plaintiff had the right to maintain the action in which the deposition was sought (Patrick Farms, Inc. v. Superior Court, 13 Cal.App.2d 424, 56 P.2d 1283); or that the court could properly continue the taking of a deposition upon a showing that the ill health of the witness prevented his attendance (Bar Ass'n of San Diego v. Superior Court, 64 Cal.App. 590, 592-593, 222 P. 185). In these cases it was held that the court exercised reasonable control over the proceedings, and that the order was justified by reason of the special circumstances presented.
In Carlson v. Superior Court, supra, footnote 3, page 438, of 56 Cal.2d, page 136 of 15 Cal.Rptr., page 312 of 354 P.2d, it is stated by the court: 'Prior to the enactment of the present discovery statutes it was consistently held, under the then existing statutes that a party had a vested right to take depositions, and that any order of the trial court which operated in conflict with that right constituted an abuse of discretion unless based upon good cause. [Citations.] While it may be argued that the current statutes grant to the trial court a wider discretion than it had when those opinions were rendered, it can also be shown that the necessity for creating that discretion arose from a distinct change in the manner prescribed for taking depositions. Under the new system, for the first time, a party (and certain other deponents) may be required to appear for a deposition without the service of a subpoena. It was therefore necessary to create a safeguard against abuses of this new method. A wider discretion having been vested in the trial court for that purpose it may not be utilized to defeat the statutory purpose.'
Defendant Turner did not seek to be relieved of the stipulation pursuant to which his deposition was to be taken on October 24. Rather, he sought immediate inspection to the end that the recordings would be available to him prior to that date. The court indicated its awareness of the situation when it made this observation in its memorandum: 'Having stipulated with plaintiff without qualification that his deposition might be taken, Turner now takes the position that he does not want to testify until he has had a chance to examine the recordings made by plaintiff of conversations plaintiff had with him and others.'
We think that the burden was upon defendants to show good cause for, or that justice required, an order for the immediate inspection of the recordings, or, conversely stated, that plaintiff's right to take Turner's deposition be limited or conditioned upon the prior production of the recordings. After consideration of the showing made by defendants, the trial court appears to have shifted the burden to plaintiff. The court states in its memorandum: 'To obtain inspection of the recordings it Suezaki v. Superior Court,
'In the face of this showing, the burden would seem to be on plaintiff to show that to allow defendants to inspect and copy the recordings at this time would do violence to equity and justice and to plaintiff's inherent rights.' (Emphasis added.)
The court then discusses the showing made by plaintiff: 'The sum of plaintiff's arguments in support of his motion for a protective order seems to be this: that Turner, and presumably all other witnesses who participated in the recorded conversations, should be forced to testify as to the conversations before hearing the recordings, in order that plaintiff may impeach any such witness who does fully and correctly recall the whole of each conversation in which he participated, and that neither Turner nor any other witness is entitled to hear these recordings in advance in order to avoid 'surprise'. If, says plaintiff, 'all recordings must be produced prior to Turner's deposition he may with impunity deny the existence of conversations where recordings do not exist. If however, the recordings are not available until after the deposition, and being uncertain of the extent thereof, he will have to tell the truth as to all conversations, whether covered by recordings or not.' In short, says counsel, 'it is only in the case where he positively denies such a conversation that he may then be surprised at a later time by a production of the recording. But such an affirmative denial by him must be based upon his positive recollection of the time, place and circumstances involved. The only 'surprise' which he will involve himself in will be in the case where he knows about the conversation and falsely denies that it took place. We do not believe that the discovery statutes protect him against this kind of surprise, which protection would be based upon his own wilful violation of his duty to tell the truth.'' The court further states that there is no merit to arguments of plaintiff's counsel that defendant's 'manifest purpose in forcing production of the recordings at this time is to tailor his testimony'; that the granting of defendant's motion 'would give an unconscionable advantage to defendants, [and] would foment perjury in this case'; that to allow defendants to hear these recordings before Turner's deposition is taken 'would be an unreasonable hardship on plaintiff's diligent pursuit of his case.'
The recordings are of conversations which took place beginning September 8, 1960, and ending October 31, 1960. They, therefore, are not the conversations which constitute the oral contract allegedly entered into in 1957 and reaffirmed in 1959. As respondent court states in this respect, 'both sides must rely on the best recollections of their several witnesses as to what conversations took place before September 8, 1960, and as to what was said without benefit of any recording.'
Defendants have made no claim or showing of 'annoyance, embarrassment or oppression' as a ground for the postponement of the deposition to a time other than that Clark v. Superior Court,
Dowell v. Superior Court,The record before us does not indicate that plaintiff has served notice, or that there is a stipulation, as to the taking of depositions of the 'other persons' mentioned in the court's order. We are of the opinion that depositions and discovery proceedings should ordinarily be taken in the order in which they are demanded and that the order for production should be complied with promptly after the taking of Turner's deposition.
Let a peremptory writ of prohibition issue prohibiting respondent court from giving effect to its order of March 27, 1963, insofar as it requires production of the recordings prior to the completion and signing of the deposition of defendant Charles Turner. In all other respects the alternative writ is discharged and the peremptory writ is denied.