Nonparty Group’s Motion For Protective Order Was Actually A Nonappealable Motion For Reconsideration Of A Discovery Ruling, But 4/3 DCA Treated Appeal As A Writ Petition To Stop The Harm Caused By Delaying Litigation In This Case.
In Roe 1 v. Doe 2, Case No. G057684 (4th Dist., Div. 3 June 29, 2020) (unpublished), plaintiffs brought an action alleging they were molested as children during Bible study sessions in an Orange County congregation of the Jehovah’s Witness Church. Through discovery, plaintiffs sought production of files related to child molestations by church members that had been compiled the highest level of Jehovah’s Witness’s governing body (Watchtower). To resolve a dispute over the production of the molestation files, the trial court ordered they be produced with specific redactions and under a protective order regarding the use of the files. In violation of the trial court’s order, Watchtower instead produced documents using a pseudonym procedure that redacted all victims and third party identifying information (including names of congregations, victims, elders, witnesses, and alleged perpetrators) and replaced it with pseudonyms composed of letters and numbers. Plaintiffs’ counsel notified Watchtower of the noncompliant production, and moved for sanctions. The day after plaintiffs’ counsel notified Watchtower of non-compliance, a nonparty group of congregation members, who feared information in the documents would harm their families, filed a federal complaint unsuccessfully seeking to enjoin the superior court from enforcing its discovery order.
Meanwhile, the nonparty group also filed a motion for a protective order requesting that the trial court modify its discovery order “to exempt and recall from production documents mentioning [them] or their family members” or “to exempt all documents with clergy-penitent communications from production and permit complete redaction of all information that could lead to the identification” of the nonparty group. The trial court denied the motion as untimely, and concluded the motion was actually a motion for reconsideration of the discovery ruling – one that failed to set forth new or different facts, circumstances, or law as required under Code Civ. Proc. section 1008(a). The trial court then continued plaintiffs’ motion for sanctions – ordered plaintiffs’ counsel to file an updated supplemental declaration setting forth the fees and costs incurred in bringing the motion, and stating it was inclined to grant if Watchtower failed to comply with the discovery order by nine days before the continued hearing. As this deadline approached, the nonparty group appealed and requested a stay enforcement of the discovery order – with the trial court imposing a partial stay and vacating the hearing on plaintiffs’ motion for sanctions.
The 4/3 DCA agreed with the trial court’s assessment that nonparty group’s motion was one for reconsideration of a discovery order, and that it was nonappealable. However, based on the circumstances of the case, the panel treated the appeal as a writ petition on a motion for protective order because it “perceive[d] the need to put an end to this matter so the case can get back on track in the lower court.” To that end, the 4/3 DCA found no abuse of discretion – concluding the trial court had properly found the motion untimely. However, the panel was not quit finished and – finding the appeal, taken from a nonappealable order, to be frivolous and supported with meritless arguments – imposed appeal sanctions of $25,452 against nonparty group’s counsel. In a 3-0 decision authored by Justice O’Leary, the 4/3 DCA opined on the possible motivation behind this appeal. “It is difficult to imagine how an attorney could be unaware of the large body of legal authority, including Supreme Court decisions, holding discovery orders are not appealable. It appears counsel may have been aware the appeal could be dismissed, but by filing the appeal, he achieved a one year stay of the May 2018 discovery order, and postponed a sanctions hearing.”
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