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IAR Systems Software v. Superior Court CA1/3

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IAR Systems Software v. Superior Court CA1/3
By
12:31:2018

Filed 10/31/18 IAR Systems Software v. Superior Court CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

IAR SYSTEMS SOFTWARE, INC.,

Petitioner,

v.

THE SUPERIOR COURT OF SAN MATEO COUNTY,

Respondent;

NADIM SHEHAYED et al.,

Real Parties in Interest.

A154415

(San Mateo County

Super. Ct. No. SC083255A)

Petitioner IAR Systems Software, Inc. (IAR), on behalf of itself and its retained counsel Valla & Associates, Inc., P.C. (Valla), seeks a writ of mandate directing the superior court to set aside May 11, 2018 orders denying their motions to quash subpoenas duces tecum and grant a protective order and to submit separate statements and privilege logs. The background of these proceedings is set forth in this court’s prior opinion in IAR Systems Software, Inc. v. Superior Court (2017) 12 Cal.App.5th 503, in which we set aside a prior order finding Valla to be part of the prosecution team in criminal proceedings pending against real party in interest Nadim Shehayed and imposing a duty on Valla to comply with the production obligations imposed on the prosecution under Brady v. Maryland (1963) 373 U.S. 83. Although in these and related civil proceedings IAR and its counsel have produced substantial documentation requested by Shehayed, they have declined to produce documents they claim are confidential and protected by the attorney-client privilege for the pretrial production of which Shehayed has served the subpoenas. In moving to quash the subpoenas, IAR and its counsel have asserted their rights under the California Victims’ Bill of Rights (Cal. Const., art. I, § 28, subds. (b)(1), (4), (5) & (c)(1)) to refuse discovery requests. The superior court denied the motions to quash the subpoenas for failure to have produced separate statements and privilege logs and directed IAR and its counsel to produce privilege logs by a specified date. In response to this court’s alternative writ of mandate directing the superior court to set aside its orders without prejudice to the issuance of subpoenas duces tecum to produce the disputed documents at trial or to show cause why such a peremptory writ of mandate should not be granted, the superior court declined to set aside its orders. Shehayed has filed a return to the petition arguing that the petition should be denied, but fails to address the constitutional ground on which the petition is based. Because IAR and its counsel are entitled to the protection of the constitutional provisions, we shall issue a peremptory writ of mandate as specified in the alternative writ.

The relevant provisions of article I, section 28 of the California Constitution provide as follows: “(b) In order to preserve and protect a victim’s rights to justice and due process, a victim shall be entitled to the following rights: [¶] (1) To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process. [¶] . . . [¶] (4) To prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, . . . which are otherwise privileged or confidential by law. [¶] (5) To refuse an interview, deposition, or discovery request by the defendant, the defendant’s attorney, or any other person acting on behalf of the defendant, and to set reasonable conditions on the conduct of any such interview to which the victim consents. [¶] . . . [¶] (c)(1) A victim, the retained attorney of a victim, a lawful representative of the victim, or the prosecuting attorney upon request of the victim, may enforce the rights enumerated in subsection (b) in any trial or appellate court with jurisdiction over the case as a matter of right. The court shall act promptly on such a request.” These provisions provide IAR, the victim of Shehayed’s alleged offenses, and Valla, as IAR’s retained attorney, the right to refuse to comply with pretrial discovery requests. The constitutional right is not conditioned on the production of a separate statement or a privilege log. Therefore, the motions to quash Shehayed’s subpoenas should have been granted.

The superior court judge who denied the motions to quash indicated he would not be the one to review the disputed documents and determine the claims of privilege and confidentiality, and this would be done by the judge to whom the case is assigned for trial. The superior court judge required the submission of privilege logs “just to have the case move forward,” undoubtedly considering that the logs would expedite the trial judge’s review of the disputed documents. While the constitutional provisions do not bar the compulsory production by the victim and its counsel of documents at trial, they had been ordered to produce the documents well before trial and the privilege logs were ordered to be submitted before the case has been assigned to a trial court. Therefore, at this time IAR and its counsel are entitled to the relief requested, although Shehayed may properly subpoena the disputed documents for production at trial. We do not preclude the trial judge from ordering the submission of a privilege log or from ruling on the claims of privilege and confidentiality in a manner and on a schedule designed to avoid delay or interruption of the trial proceedings. Nor do we intimate any view as to the validity of the claims of privilege and confidentiality.

Disposition

Let a peremptory writ of mandate issue directing respondent San Mateo Superior Court, in People v. Nadim Shehayed, case No. SC083255A, to set aside its orders of May 11, 2018, denying motions of IAR Systems Software, Inc., and Valla & Associates, Inc., to quash subpoenas duces tecum and for a protective order and directing the filing of privilege logs, and enter new orders granting the motions to quash subpoenas duces tecum, without prejudice to reissuance of the subpoenas duces tecum at the time of trial.

_________________________

Pollak, J.

We concur:

_________________________

Siggins, P.J.

_________________________

Jenkins, J.

A154415





Description Petitioner IAR Systems Software, Inc. (IAR), on behalf of itself and its retained counsel Valla & Associates, Inc., P.C. (Valla), seeks a writ of mandate directing the superior court to set aside May 11, 2018 orders denying their motions to quash subpoenas duces tecum and grant a protective order and to submit separate statements and privilege logs. The background of these proceedings is set forth in this court’s prior opinion in IAR Systems Software, Inc. v. Superior Court (2017) 12 Cal.App.5th 503, in which we set aside a prior order finding Valla to be part of the prosecution team in criminal proceedings pending against real party in interest Nadim Shehayed and imposing a duty on Valla to comply with the production obligations imposed on the prosecution under Brady v. Maryland (1963) 373 U.S. 83. Although in these and related civil proceedings IAR and its counsel have produced substantial documentation requested by Shehayed, they have declined to produce documents they claim are c
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