1 EDMUND G. BROWN JR. 4 MARK -...

1 EDMUND G. BROWN JR. Attorney General of the State of California

2 CHRISTOPHER E. KRUEGER Senior Assistant Attorney General

3 STEPHEN ACQUISTO Supervising Deputy Attorney General

4 MARK R. BECKINGTON, State Bar No. 126009 Deputy Attorney General

5 300 South Spring Street, Suite 1702 Los Angeles, CA 90013

6 Telephone: (213) 897-1096 Fax: (213) 897-1071

7 E-mail: [email protected] Attorneys for Defendants

Exempt from Filing Fees -Govt. Code § 6103

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF FRESNO

12 EDWARD W. HUNT, in his official capacity as District Attorney of Fresno County, and in his

13 personal capacity as a citizen and taxpayer, et aI.,

14 Plaintiffs,

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v.

STATE OF CALIFORNIA, et aI.,

Defendants.

Case No. 01CECG03182

NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time: Dept: Judge: Trial Date: Action Filed:

January 23,2008 3:30 p.m. 72 Hon. Alan Simpson March 10, 2008 September 18, 2001

22 PLEASE TAKE NOTICE THAT on January 23,2008, at 3:30 p.m. in Department 72 of the

23 above entitled court, located at 1100 Van Ness Ave., Fresno, California 93724, Defendants State

24 of California, et. aI., shall move, and hereby do move, for a protective order directing that the

25 depositions of the following Department of Justice employees, noticed by plaintiff Edward W.

26 Hunt, not take place: (1) Alison Merrilees, (2) Dale Ferranto, (3) Jim Biscailuz, (4) Steve

27 Bufford, (5) Mike Giusto, (6) Brent George, (7) Mike Small, and (8) Jeff Amador.

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1 Notice of Motion and Motion for Protective Order;. Memorandum of Points and Authorities

1 This motion is made pursuant to Code of Civil Procedure section 2025.420 on the following

2 grounds:

3 (1) A protective order is necessary to protect the Department and its employees "from

4 unwarranted mIDoyance, embarrassment, or oppression, or undue burden or expense." (Code

5 Civ. Proc., § 2025.420, subd. (b).) This case involves a/adal challenge to the constitutionality

6 of select provisions of California's Assault Weapons Control Act (Penal Code, § 12775, et. seq.)

7 and regulatory definitions adopted in 2000. None of the eight employees subject to this motion

8 would provide plaintiffs with discoverable deposition testimony material to the narrow issues

9 framed by this action. And, in addition to these witnesses, plaintiffs have identified other

10 Depmiment employees for deposition and have indicated they may seek to depose as many as 24

11 employees. To avoid the undue burden and expense that would be caused by a large number of

12 unnecessary depositions, a protective order should be issued by this court.

13 (2) Deputy Attorney General Alison Merrilees serves as counsel to the Bureau of Fireanns

14 of the Division of Law Enforcement in the California Department of Justice. In that capacity,

15 Merrilees has been involved in the defense of this action. Plaintiff Hunt should not allowed to

16 proceed with Merrilees' s deposition because (1) plaintiffs have other practicable means to obtain

17 discoverable inforn1ation, (2) the deposition is not crucial to the preparation of the case, and

18 (3) the deposition would infringe on the attorney-client privilege and attorney work product

19 privilege. Under appellate decisions governing depositions of opposing counsel, the deposition

20 would be improper and should not be taken. (See e.g. Carehouse Convalescent Hospital v.

21 Superior Court (2006) 143 Cal.App.4th 1558.)

22 (3) Dale Ferranto, Assistant Chief of the Department's Bureau ofFireanns, and Steve

23 Bufford, Program Manager of the Bureau, are the second and third highest ranking Bureau

24 executives. Under settled authority, "agency heads and other top governmental executives are

25 not subject to deposition absent compelling reasons." (Westly v. Superior Court (2005) 125

26 Ca1.App.4th 907,910.) No compelling reasons for the Ferranto and Bufford depositions are

27 present, and the depositions of these individuals would be improper for this additional reason.

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2 Notice of Motion and Motion for Protective Order; Memorandum of Points and Authorities

1 This motion shall be based on this notice of motion and the motion herein, on the

2 accompanying memorandum of points and authorities, on the declarations of Mark R.

3 Beckington, Alison Merrilees and Patty Westerinen and exhibits thereto, and on such further

4 evidence, both oral and documentary, as may be offered at the time of the heming.

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Dated: December 17,2007

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Respectfully submitted,

EDMUND G. BROWN JR. Attorney General of the State of California

CHRISTOPHER E. KRUEGER Senior Assistant Attorney General

STEFf}EN ACQUISTO /lSileputy Jtome·· G ne MA~ BECKlNGTON Deputy Attorney General Attorneys for Defendants

Notice of Motion and Motion for Protective Order; Memorandum of Points and Authorities

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TABLE OF CONTENTS

Page

3 MEMORANDUM OF POINTS AND AUTHORITIES .............................. 4

4 I. INTRODUCTION .................................................. 4

5 II. STATEMENT OF FACTS ........................................... 5

6 III. LAW GOVERNING MOTIONS FOR PROTECTIVE ORDER .............. 7

7 IV. A PROTECTIVE ORDER SHOULD ISSUE PRECLUDING DEPOSITIONS THAT WOULD NOT LEAD TO THE DISCOVERY

8 OF ADMISSIBLE EVIDENCE ........................................ 7

9 V. PLAINTIFFS CANNOT ESTABLISH GOOD CAUSE FOR TAKING THE DEPOSITION THE DEPARTMENT'S

10 LEGAL COUNSEL IN THIS MATTER ................................ 10

11 VI. PLAINTIFFS CANNOT ESTABLISH GOOD CAUSE FOR TAKING THE DEPOSITIONS OF SENIOR EXECUTIVES

12 OF THE BUREAU OF FIREARMS ................................... 13

" 13 VII. CONCLUSION ................................................... 14

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1 TABLE OF AUTHORITIES

2 Page

3 Cases

4 Carehouse Convalescent Hospital v. Superior Court

5 (2006) 143 Cal.AppAth 1558 ..................................... 2,4, 11, 13

6 Church of Scientology (D. Mass 1990) 138 F.R.D. 9 ............................................ 13

7 Coalition Against Police Abuse v. Superior Court

8 (1985) 170 Cal.App.3d 888 ~ .............................................. 7

9 Covell v. Superior Court (1984) 159 Cal.App.3d 39 ................................................ 8

10 Fuller v. Superior Court

11 (2001) 87 Cal.App.4th 299 ............................................... 7

12 Han'ott v. County of Kings (2001) 25 Ca1.4th 1138 .................................................. 9

13 Nagle v. Superior Court

14 (1994) 28 Cal.App.4th 1465 ............................................. 13

15 Seattle Times v. Rhinehart (1984) 467 U.S. 20 ..................................................... 7

16 Shaffer v. Superior Court

17 (1995) 33 Cal.App.4th 993 ............................................... 8

18 Union Savings Bank of Patchogue, New York v. Saxon (D.D.C. 1962) 209 F.Supp. 319 ........................................... 13

19 Village of Hoffinan Estates v. Flipside, Hoffinan Estates

20 (1982) 455 U.S. 489 .................................................... 9

21 Westly v. Superior Court (2005) 125 Cal.App.4th 907 ......................................... 2,4, 13

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23 Statutes

24 Code of Civil Procedure § 2025.420 ............................................... 4

25 Code of Civil Procedure § 2025.420, subd. (a) ....................................... 7

26 Code of Civil Procedure, § 2017.020, subd. (a) ....................................... 8

27 Code of Civil Procedure, § 2025.420, subd. (b) .................................... 2, 7

28 Evidence Code, § 954 ......................................................... 12

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2 Statutes (Continued)

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TABLE OF AUTHORITIES (c, -inued)

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4 Penal Code § 12276.1, subd. (d)(2)(3) ............................................. 5

5 Penal Code, § 12276.1, subd. (a)(1)(E) & (a)(4)(A) ................................... 5

6 Penal Code, § 12775 ........................................................... 2

7 Penal Code, § 12020, subd. (c )(25)(A) .............................................. 5

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1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I.

3 INTRODUCTION

4 In this action involving a/adal challenge to Califomia's Assault Weapons Control Act

5 ("A WCA"), plaintiffs seek to depose a significant number of Department of Justice employees,

6 including the Deputy Attomey General assigned to provide legal counsel to the Department's

7 Bureau of Fireanns and two ofthe Bureau's senior executives. These depositions would serve

8 no legitimate purpose and do nothing to assist the pmiies in preparing for trial. Plaintiffs should

9 be precluded D.-om taking these depositions as well as additional employee depositions they have

10 said will soon be noticed.

11 Because the employees' testimony would have no bearing on the facial validity of statutes

12 or regulations, the depositions would not lead to the discovery of admissible evidence relevant to

13 the issues frmned by this action. Yet, the Department and its employees would be subjected to

14 considerable burden, expense and inconvenience. The depositions represent the type of abusive

15 discovery that is subject to an appropriate protective order. (See Code Civ. Proc., § 2025.420.)

16 Further, Califomia courts have long recognized that depositions of opposing counsel may be

17 allowed only in the most compelling of circumstances. (See Carehouse Convalescent Hospital v.

18 Superior Court (2006) 143 Cal.App.4th 1558.) No such circumstances are present here.

19 Therefore, plaintiffs should not be allowed to proceed with the deposition of Deputy Attomey

20 General Alison MelTilees.

21 Finally, two of the deponents, Dale Fenanto m1d Steve Bufford, are senior executives with

22 the Bureau ofFireanns. Just as cOUlis have restricted depositions of opposing counsel, they have

23 allowed depositions of high-ranking govemment officials only on a showing of compelling

24 reasons. (Westly v. Superior Court (2005) 125 Cal.AppAth 907,910.) Plaintiffs CaImot make

25 this showing.

26 Under these circumstances, a protective order is warranted to prevent the taking of

27 unnecessary and abusive depositions. The Department requests that the court issue an

28 appropriate order directing that the noticed depositions not be taken.


1 U

2 STATEMENT OF FACTS

3 Originally filed September 18, 2001, this case has been ongoing for more than six years.

4 After extensive law and motion proceedings, including opposing motions for summary judgment,

5 three claims remain for trial: (1) a challenge to the facial validity of the Department's regulatory

6 definition of "flash suppressor" as that tenn is used in the AWCA (Penal Code, § 12276.1, subd.

7 (a)(1)(E) &(a)(4)(A); Cal. Code Regs., tit. 11, § 5469(b»; (2) a claim that the Department abused

8 its discretion in not issuing a regulatory definition of the term "pennanently altered" as used in

9 the AWCA (Penal Code, §§ 12020, subd. (c)(25)(A) & 12276.1, subd. (d)(2»; and (3) a

1 0 challenge to detern1inations by the Department that the "Browning Boss" and the "Springfield

11 Muzzle Brake" are not flash suppressors within the meaning of the AWCA,!! ..

12 On November 14,2007, plaintiffs served notices setting the depositions of three DepaIiment

13 employees: Cris Abad, Mike Small, and Jeff Amador.l! (Mark Beckington Deposition, Exh. 2.)

14 A letter accompanying the notices requested available deposition dates for nine additional

15 Department employees.}! (Ibid.) Two weeks later, on November 28, 2007, plaintiffs served an

16 additional set of deposition notices for eight Department employees: Alison Merrilees, Ignatius

17 Chinn. Dale Ferranto, Wilfredo Cid, Jim Biscailuz, Steve Bufford, Mike Giusto, and Brent

18 George. (Id., Exh. 3.) Two of the employees, Merrilees and Cid, had been identified as potential

19 deponents in counsel's November 14, 2007 letter; the remaining additional deponents had not

20 been among those listed in that letter. (Id., Exh. 2.)

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22 1. In response to the motions for summaI-Y judgment, the court issued a detailed order discussing plaintiffs' claims and the causes of action remaining for trial. A copy of the order is

23 submitted with this motion. (See Mark Beckington Declaration, Exh. 1.)

24 2. Although the plaintiffs in this action are represented by the SaIne attorneys, the deposition notices were issued solely in name of plaintiff Edward W. Hunt, who is a plaintiff in his official

25 capacity as District Attorney of Fresno County and in his personal capacity as a taxpayer. (Mark 26 Beckington Declaration, Exh. 2.) For convenience, defendants will refer to the notices as having

been served on behalf of all plaintiffs. 27

3. The employees listed in the letter were Bob Belihold, Eric Maher, Karen Milami, Alison 28 Menilees, Brent George, Kathy Quinn, Wilfredo Cid, Vicki Lyman and Dana McKennon. (Mark

Beckington Declaration, Exh. 2.) 5


1 Of the employees whose depositions were noticed, Alison Merrilees is the Deputy Attorney

2 General assigned to provide legal counsel to the Fireanns Bureau. (Alison Merrilees

3 Declaration, ~ 2.) Wilfredo Cid is Chief of the Bureau, and Dale Ferranto and Steve Bufford are

4 the Bureau's second and third ranking executives. (Peggy Westerinen Declaration, ~~ 3-4.)

5 Buscailuz, George, and Amador hold other positions in the Bureau. (Id., ~ 5.) Small is a fonner

6 Bureau employee who is now assigned to the Criminal Investigations Bureau. (Id., ~ 6.) Giusto

7 is not employed in the Bureau, but is assigned to the Bureau of Forensic Services. (Id., ~ 7.)

8 Defendants agreed to produce ChilID and Abad, who are Supervising Special Agents with

9 assault weapons experience, for their depositions.~ (Mark Beckington Declaration, ~ 10.) In

10 response to the November 14 letter and notices, however, the Department objected to the Small

11 and Amador depositions and to the depositions of the nine persons named in the letter. (Id., Exh.

12 4.) Additionally, the Department objected to proceeding with all of the depositions noticed

13 November 28 other than the Chinn deposition. (Id., Exh. 5.)

14 In correspondence with plaintiffs' counsel, the Department explained why the depositions of

15 employees other than Chinn and Abad should not be taken. (Mark Beckington Declaration,

16 Exhs. 5, 7.) Although plaintiffs agreed to withdraw the deposition of Wi If redo Cid, they refused

17 to withdraw any other depositions, including the deposition of Deputy Attorney General Alison

18 Merrilees. (Id., ~ 10, Exh. 6.) Therefore, the Department represented that it would move for a

19 protective order as to the deponents other than Chinn and Abad. (Id., Exh. 7.)

20 During the course of these communications, plaintiffs' counsel indicated he had prepared

21 additional deposition notices and that he had identified up to 24 Department employees whom he

22 might seek to depose. (Mark Beckington, ~ 9.) Thus, given the total of 18 persons identified in

23 the November 14 and 28 letters and notices, and the additional deponents that plaintiffs are

24 apparently considering, defendants face the prospect of a large number of disruptive

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28 4. The Chinn deposition was taken December 11,2007, and the Abad deposition has been set for December 19,2007. (Mark Beckington Declaration, ~ 10.)


1 depositions.2£ (ld., Exhs. 2-5, 7, ~ 9.)

2 III.

3 LAW GOVERNING MOTIONS FOR PROTECTIVE ORDER

4 "Before, during, or after a deposition, any party, any deponent, or any other affected natural

5 person or organization may promptly move for a protective order." (Code Civ. Proc.,

6 § 2025.420, subd. (a).) For good cause shown, the court "may make any order that justice

7 requires to protect any party, deponent, or other natural person or organization from unwarranted

8 annoyance, embarrassment, or oppression, or undue burden and expense." (Code Civ. Proc.,

9 § 2025.420, subd. (b).) A protective order may direct "that the deposition not be taken at all."

10 (Code Civ. Proc., § 2025.420, subd. (b)(1).)

11 The power of the court to issue protective orders rests on the need to protect litigants from

12 discovery abuse: "'Because of the liberality of pretrial discovery ... it is necessary for the trial

13 cOUli to have the authority to issue protective orders.'" (Coalition Against Police Abuse v.

14 Superior Court (1985) 170 Cal.App.3d 888, 894, quoting Seattle Times v. Rhinehart (1984) 467

15 U.S. 20, 34.) "'The prevention of the abuse that can attend the coerced production of

16 information under a state's discovery rule is sufficient justification for the authorization of

17 protective orders. '" (Id., quoting Seattle Times, 467 U.S. at pp. 35-36.)

18 IV.

19 A PROTECTIVE ORDER SHOULD ISSUE PRECLUDING DEPOSITIONS

20 THAT WOULD NOT LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE

21 "Courts have broad discretion in controlling the course of discovery." (Fuller v. Superior

22 Court (2001) 87 Cal.App.4th 299,307.) Under the Discovery Act, courts may limit discovery as

23 needed to protect parties from abuse: "The court shall limit the scope of discovery if it

24 detem1ines that the burden, expense, or intrusiveness of that discovery clearly outweighs the

25 likelihood that the information sought will lead to the discovery of admissible evidence. The

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27 5. The 18 employees were the 11 persons named in deposition notices served on November 14 and 28 and the seven persons named in the November 14 letter for whom notices had not yet been

28 received. (See Mark Beckington Declaration, Exhs. 2-3.) The projection of24 deponents indicates that plaintiffs contemplate additional deponents not yet identified in wliting.


1 court may make this detennination pursuant to a motion for protective order by a party or other

2 affected person." (Code Civ. Proc., § 2017.020, subd. (a).)

3 Here, a discovery order is needed to protect the Department and the deponents because the

4 large number of depositions that have been noticed or proposed by plaintiffs would not lead to

5 the discovery of admissible evidence. The areas of inquiry suggested by plaintiffs would have no

6 bealing on the narrow issues remaining in this action relating to the facial validity of portions of

7 the A WCA and Department regulations.

8 "Relevancy to subject matter must be detennined in each case according to the teachings of

9 reason and judicial experience." (Covell v. Superior Court (1984) 159 Cal.App.3d 39, 42.) "[I]f

1 0 the infonnation sought to be elicited relates to matters of little or no practical benefit to the party

11 seeking disclosure, a timely objection on the grounds that the question asked is not relevant to the

12 subject matter in the pending action and not reasonably calculated to lead to admissible evidence

13 should be sustained by a trial judge." (Id. at pp. 42-43.)

14 For example, in Covell the COUli of Appeal issued a writ of mandate directing the trial court

15 to set aside an order requiring a paliy in a malicious prosecution lawsuit to disclose settlement

16 offers made in a prior lawsuit. The proponent of the discovery argued that the evidence was

17 relevant to the party's state of mind. But since that party's state of mind as to prior settlement

18 offers was irrelevant to any issues in the present action and would not lead to the discovery of

19 admissible evidence, the COUli of Appeal held that the party could not be compelled to answer

20 questions about the offers at a deposition. (Id., at p. 43.)

21 Similarly, in Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, the Court of Appeal

22 issued a writ to prevent the disclosure of the hourly rate paid to a contract attol11ey by a law finn.

23 The plaintiff contended that he was entitled to leal11 the contract attorney's hourly rate in order to

24 establish that the fees charged by the finn were unconscionable. (Id. at p. 999.) Without

25 deciding whether the infonnation was protected by the right of privacy, the cOUli held that it was

26 irrelevant to the issues in the case: "[I]t is [plaintiffs] position that the issue of whether an

27 attol11ey has charged an unconscionable fee justifies an inquiry into the attol11ey's cost of doing

28 business and margin of profit. We disagree." (Ibid.)


1 In correspondence, plaintiffs' counsel represented that plaintiffs would seek to question

2 deponents Small and Amador about "the DOJ's outward representations to the public of how

3 relevant terms are defined in practice to afford citizens and businesses the ability to comply with

4 provisions of the A WCA."§i. (Mark Beckington Declaration, Exh. 6, p. 1.) With respect to the

5 depositions of additional persons identified in the November 14, 2007 letter, plaintiffs' counsel

6 represented that he would inquire into similar subject matter. (Jd. at p. 3.) And, in telephonic

7 conununications, plaintiffs' counsel suggested that he would also ask the employees about their

8 opinions regarding assault weapons and the definitions at issue. (Jd., Exhs. 5, 7.)

9 These areas of inquiry, however, would not produce testimony relevant to plaintiffs' facial

10 challenge to statutes and regulations. As proposed by plaintiffs' counsel, the depositions would

11 lack any cOlU1ection to the standard for reviewing the constitutionality of statutes on their face.

12 In its ruling on the motions for summary judgment, this court summarized authority on facial (as

13 opposed to "as applied") constitutional challenges in pmi as follows:

14 "A law failing to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited violates due process under both the federal and California

15 Constitutions." (Han-ott v. County of Kings (2001) 25 Ca1.4th 1138, 1151.) "A law that does not reach constitutionally protected conduct and therefore satisfies the

16 overbreadth test may nevertheless be challenged on its face as unduly vague, in violation of due process. To succeed, however, the complainant must demonstrate that

17 the law is impermissibly vague in all of its applications." (Village of Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 498.)

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19 (Mark Beckington Declaration, Exh. 1, p. 3, emphasis added.)

20 Even under the high standard of certainty applicable to criminal provisions, a party making

21 a facial vagueness challenge to a statute or regulation must meet the "impennissibly vague in all

22 applications" test. For example, in rejecting a facial vagueness challenge to a criminal ordinance

23 in Village ofHoffinan Estates, the Supreme Court stated: "Flipside's facial challenge fails

24 because, under the test appropriate to either a quasi-criminal or a criminal law, the ordinance is

25 sufficiently clear as applied to Flipside." (Village ofHoffinan Estates v. Flipside, Hoffman

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27 6. After initially suggesting otherwise, plaintiffs' counsel confinned in writing that he "did not intend to inquire into the thought processes or deliberations in promulgating the' assault weapon'

28 regulations at issue." (Mark Beckington Declaration, Exh. 6, p. 1.) Such an inquiry would, of course, be improper. (See Evid. Code, § 1040; County of Los Angeles (1975) 13 Ca1.3d 721, 723.)


1 Estates, supra, 455 U.S. at 499-500., emphasis added.)

2 Here, testimony about communications with the public about assault weapons by

3 Department personnel would not demonstrate whether provisions of the A WCA or regulations

4 thereunder are vague in all applications. This case is not about particular communications or

5 decisions, but about a challenge to the facial validity ofthe challenged provisions . .Z! Regardless

6 of whether Department persOlmel are correctly or incorrectly interpreting the A WCA in such

7 communications, their testimony would be irrelevant to the issue actually before the court. This

8 would also be true, ifnot more so, with testimony purporting to render an opinion about whether

9 particular devices are "flash suppressors" or "pennanently altered" ammunition feeding devices.

10 The personal opinions of Department employees would not demonstrate one way or the other

11 whether the statutory or regulatory provisions on these subjects are impermissibly vague.

12 This concern is underscored by the large number of depositions noticed by plaintiffs and

13 large number of additional depositions that plaintiffs indicate may be forthcoming. Plaintiffs

14 appear to be randomly selecting deponents, first identifying one list of persons in a letter, then

15 issuing notices for a different set of persons, and then suggesting that a large number of

16 additional notices are likely to be served. Under these circumstances, a protective order is

17 appropriate to protect the Department and its employees from unnecessary and abusive

18 depositions.

19 V.

20 PLAINTIFFS CANNOT ESTABLISH GOOD CAUSE FOR TAKING

21 THE DEPOSITION THE DEPARTMENT'S LEGAL COUNSEL IN THIS MATTER

22 In addition to being improper for the reasons discussed above, the deposition of Deputy

23 Attorney General Alison Merrilees should not be taken because it would amount to an improper

24 deposition of opposing counsel. Plaintiffs cannot make the showing necessary to proceed with

25 this deposition.

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27 7. For example, no plaintiff has sought a writ of mandate or prohibition seeking to compel

28 perfonnance of a ministe11al duty relating to registration or denial of registration as to a particular assault weapon.


1 Merrilees is assigned to provide legal counsel and representation to the Bureau of Fireanns,

2 which is part of the Department's Division of Law Enforcement. (Alison Merrilees Declaration,

3 ~ 2.) She has held this position since July 2005. (Ibid.) In that capacity, she has been involved

4 in the defense ofthis action. (Id. at 3.) This has included interaction with the Deputy Attorneys

5 General assigned to represent the defendants and with Fireanns Bureau personnel. (Ibid.)

6 "Depositions of opposing counsel are presumptively improper, severely restricted, and

7 require 'extremely' good cause - a high standard." (Carehouse Convalescent Hosp. v. Superior

8 Court, supra, 143 Cal.AppAth at p. 1562.) The practice of taking opposing counsel depositions

9 "mns counter to the adversmial process and to the state's public policy to '[p]revent attorneys

10 from taking undue advantage of their adversary's industry and effOlis.'" (Ibid., quoting Code

11 Civ. Proc., § 2018.020, subd. (b).) Further, "[a]ttorney depositions are dismptive, and add to the

12 length and expense oflitigation." (Ibid.) Moreover, they "chill the attorney-client relationship,

13 impede civility and easily lend themselves to gamesmanship and abuse." (Ibid.)

14 In Carehouse, the Court of Appeal articulated a three-prong test for considering the

15 propriety of attorney depositions:

16 First, does the proponent have other practicable means to obtain the infonnation? Secon<J, is the infonnation cmcial to the preparation ofthe case? Third, is the

17 infonnation subject to a privilege? .... Each of these prongs poses an independent hurdle to deposing an adversary's counsel;

18 anyone of them may be sufficient to defeat the attempted attorney deposition.

19 (Carehouse Convalescent Hosp. v. Superior Court, supra, 143 Cal.AppAth at p. 1563.)

20 Here, each ofthe three prongs ofthe Carehouse test weigh against the taking of the

21 Merrilees deposition. In correspondence, plaintiffs' counsel asserted that Merrilees could be

22 deposed about her alleged role as "public advisor regarding the DOJ's enforcement and

23 interpretation of existing regulations." (Mark Beckington Declaration, Exh. 6, p. 2.) FUliher, he

24 indicated that plaintiffs would question Merrilees about communications "with the public,

25 dealers, and other law enforcement agencies regarding the subject matter of this litigation."

26 (Ibid.) But even if the Department's enforcement and interpretation were relevant to thefacial

27 validity of statutes and regulations, plaintiffs do not need to depose the Bureau's legal counsel to

28 obtain this infOlmation. And, for the reasons discussed above, such testimony cmUlot by any


1 stretch be described as crucial to plaintiffs' preparation for trial.

2 Moreover, such testimony would inevitably infringe on the attomey-client and attomey

3 work product privileges. (Evid. Code, § 954 [client has privilege to prevent another from

4 disclosing a confidential communication between client and lawyer]; Code Civ. Proc., 2018.030,

5 subd. (b) [attomey work product not discoverable unless court finds that denial of discovery

6 would cause unfair prejudice or result in an injustice].) Deposing Merrilees about "enforcement"

7 of regulations would inevitably mean asking her about privileged communications with Bureau

8 persomlel. How else could Merrilees describe the Bureau's enforcement efforts than by relating

9 what she has been told in her capacity as a Deputy Attomey General by Bureau agents and

10 employees? As for "interpretation" of regulations, this would mean asking Merrilees either for

11 her interpretation of the regulations or her communications with Bureau personnel about such

12 matters. Thus, this topic would infringe on both the att0111ey-client and the att0111ey work

13 product privileges. (See Alison Merrilees Declaration, ~ 4.)

14 Similarly, questions about communications with "the public, dealers, and other law

15 enforcement agencies" would inevitably infringe on the att0111ey-client and att0111ey work product

16 privileges. Although direct communications with the public and dealers would not necessarily be

17 privileged in and ofthemselves, plaintiffs presumably would be seeking testimony about the

18 reasons behind such communications. This would mean intruding on Merrilees's confidential

19 inte111al communications and thought processes relating to such communications. And,

20 depending on the context, communications with "other law enforcement agencies" could infringe

21 directly on privileged communications given that the Department of Justice oversees certain law

22 enforcement activities in the state. (See Gov. Code, § 12550 [supervision over district att0111eys];

23 Gov. Code, § 12560 [supervision over county sheriffs].)

24 In correspondence, plaintiffs sought to circumvent the Carehouse doctrine by contending

25 that Merrilees is not the official attomey of record for defendants in this action. But her

26 involvement in the defense of this action is sufficient to invoke the tlu'ee-prong test. (See Alison

27 Merrilees Declaration, ~~ 2-4.) Further, in the absence of compelling reasons to proceed, the

28 intrusion that such a deposition would impose on the attomey-client relationship is sufficient to


1 prevent the taking of such needless and abusive discovery. (See Carehouse Convalescent Hosp.

2 v. Superior Court, supra, 143 Cal.App.4th at p. 1562.)

3 VI.

4 PLAINTIFFS CANNOT ESTABLISH GOOD CAUSE FOR TAKING THE

5 DEPOSITIONS OF SENIOR EXECUTIVES OF THE BUREAU OF FIREARMS

6 "The general rule in California and federal court is that agency heads and other top

7 governmental executives are not subject to deposition absent compelling reasons." (Westly v.

8 Superior Court (2004) 125 Cal.App.4th 907,910.) "This rule applies to officials summoned to

9 testify as third parties as well as those who are named defendants." (Ibid.)

10 "The general rule is based upon the recognition that' ... an official's time and the exigencies

11 of his everyday business would be severely impeded if every plaintiff filing a complaint against

12 an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure

13 would be contrary to the public interest, plus the fact that ordinarily the head of an agency has

14 little or no knowledge of the facts of the case.'" (Nagle v. Superior Court (1994) 28 Cal.App.4th

15 1465,1468, quoting Union Savings Bank of Patchogue, New Yorkv. Saxon (D.D.C. 1962) 209

16 F.Supp. 319.) "'An exception to this general rule exists concerning top officials who have direct

17 personal factual information pertaining to material issues in an action. . . . A top governmental

18 official may, however, only be deposed upon a showing that the infonnation to be gained from

19 such a deposition is not available through any other source.'" (Ibid., quoting Church of

20 Scientology (D. Mass 1990) 138 F.R.D. 9,10.)

21 For example, in Westly v. Superior Court, the Court of Appeal held that the State Controller

22 and the State Attorney General fell "squarely within the general rule" when they did not have

23 personal factual knowledge relevant to the action. (Westly v. Superior Court, supra, 125

24 Cal.App.4th at 911.) Similarly in Nagle v. Superior Court, the COUli of Appeal directed that a

25 protective order should issue to prevent a plaintiff from taking the depositions of the Directors of

26 the California Employment Development Department and Califomia Department of Health

27 Services. (Nagle v. Superior Court, supra, 28 Cal.App.4th at 1467.) The plaintiff failed to show

28 that the Directors "had any personal involvement in the actions which gave rise to the law suit


1 and made no showing that real party had exhausted less intrusive means of discovery." (Ibid.)

2 Here, deponent Dale Ferranto is the Assistant Chief of the Bureau of FiremIDs and deponent

3 Steve Bufford is the Bureau's Program Manager. (Peggy Westerinen Declaration, ~~ 3-4.) They

4 are the second and third ranking executives of the Bureau. (Ibid.) Allowing a party to depose

5 such senior executives every time a regulation is challenged in a lawsuit would inevitably impose

6 significant burdens on management of the organization. Plaintiffs should not be allowed depose

7 such witnesses absent a compelling reason and unless they identify the particular factual

8 information that only these witnesses can provide. Plaintiffs have not, and cannot, meet this

9 burden.

10 VII.

11 CONCLUSION

12 For the foregoing reasons, the COUli is requested to issue a protective order providing that

13 the depositions of the Department employees identified in the notice of motion not be taken.

14 Dated: December 17,2007

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SA200l CV1744

Respectfully submitted,

EDMUND G. BROWN JR. Att011ley General of the State of Calif011lia

CHRISTOPHER E. KRUEGER Senior Assistant Att011ley General

STEPIl'EN ACQUISTO n,;6enJ\ nry;:2J1

14

MARK R. BECKINGTON Deputy Attorney General Att011leys for Defendants


DECLARATION OF SERVICE BY MAIL

Case Name: Hunt, et al. v. State of California, et al.

No.: 01CECG03182

I declare:

I am employed in the Office ofthe Attorney General, which is the office of a member ofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of conespondence for mailing with the United States Postal Service. In accordance with that practice, conespondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.

On December 18,2007, I served the attached NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office ofthe Attorney General at 300 South Spring Street, Suite 1702, Los Angeles, CA 90013, addressed as follows:

Don B. Kates BENENSON & KATES 22608 North East 269th Avenue Battleground, W A 98604

C.D. Michel, Esq. Trutanich Michel, LLP TUYET T. TRAN BRUCE E. BARTRAM 180 E. Ocean Boulevard, Suite 200 Long Beach, CA 90802 (562) 216-4445

Stephen P. Halbrook Law Offices of Stephen P. Halbrook 10560 Main Street, Suite 404 Fairfax, VA 22030

I declare under penalty of perjury under the laws of the State of California the foregoing is true and conect and that this declaration was executed on December 18, 2007, at Los Angeles, California.

Betty Rodriguez Declarant ( Signature /--\

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