Poeschl v. Superior Court

THE COURT.

Petitioner seeks a writ of mandate to compel the Superior Court of Ventura County, Oxnard Branch, to grant his motion for an order directing the real party in interest to produce certain tape recordings for his inspection.

The real party in interest, David L. Pair, is the plaintiff in a pending action for damages for alleged breach of an employment contract. Petitioner and Robert J. Poeschl Pord, Inc., are defendants. The taking of the depositions of petitioner and the real party in interest were separately noticed for April 27, 1964. By both priority of notice and by stipulation of counsel, the taking of the deposition of petitioner was first in order. On April 21, 1964, petitioner noticed a motion for an order directing the real party in interest to produce all recordings taken or possessed by him of conversations between himself and petitioner or any employee or agent of petitioner relating to his employment or discharge by petitioner.

In support of the motion, petitioner filed declarations of his counsel and another individual. The declaration of counsel stated: He was informed that the real party in interest had stated that he had made recordings of conversations relating to the subject matter in litigation; the taking of depositions had been scheduled as stated above; petitioner should be entitled to refresh his recollection from any recordings possessed by the real party prior to the taking of his deposition. The declaration of the individual states: He is an employee of Robert J. Poeschl, Inc.

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during the employment of the real party in interest by said firm, the real party indicated to him that he had recorded certain conversations and statements by and between himself and agents and employees of the firm.

The motion was denied after hearing on April 30. The

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present petition alleges that the court orally indicated that petitioner could not succeed in the motion in view of the stipulation of his counsel that his deposition precede that of the real party in interest. The taking of depositions was continued until May 16. In the interim, petitioner moved to be released from the stipulation and for an order that he take the deposition of the real party in interest before giving his own to the extent of inquiring into the facts and circumstances in respect to the tape recordings. He moved, in the alternative, for an order requiring the production of the recordings for his inspection. An additional declaration of his counsel was submitted in support thereof. It states: On April 21,1964, he received information that the real party in interest had a recording device and very likely had recorded conversations between himself and petitioner; he immediately filed notice of motion to produce recordings or, alternatively, for stay of the taking of petitioner’s deposition; on April 30, in a hearing in chambers, counsel for the real party in interest admitted, in the presence of the court, that his client possessed tapes wherein conversations of petitioner were recorded, but declined to state more specifically the exact nature of the tapes, the date of taking, by whom the tapes were taken or between whom the conversations were held.