Judge: Craig Griffin, Case: "Vazquez v. Future Motion, Inc.", Date: 2022-09-29 Tentative Ruling
Before the Court is the motion by plaintiff Jeffrey S. Vazquez (“plaintiff”) to compel defendant Future Motion, Inc. (“defendant”) to provide further supplemental responses to plaintiff’s Request for Production of Documents, Set One.
CCP § 2031.310 allows a party to file a motion compelling further answers to document requests, if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP § 2031.310(c).) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (CCP §§ 2016.040, 2031.310(b)(2).) The motion must also be accompanied by a separate statement. (CRC 3.1345.)
A motion for order compelling further responses to request for documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (CCP § 2031.310(b)(1); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95 Cal.App.4th 92, 98.) If “good cause” is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure. (Kirkland v. Sup.Ct. (Guess?, Inc.), supra, 95 Cal.App.4th at 98.)
The notice of the motion was timely given on 6/16/2022, within 45 days after defendant served its second supplemental responses on 5/20/2022. (See Motion, Declaration of Abdalla J. Innabi (“Innabi Decl.”), ¶ 11, Exh. M.) The motion is also accompanied a separate statement and a declaration from moving counsel demonstrating reasonable and good faith attempts to meet and confer. (Id., ¶ 11, Exh. N.)
Plaintiff moves to compel defendant to serve a privilege log as to the requests it objected to on the basis of privilege, i.e., RFPD Nos. 5-8, 9-20, 41-46, and 48-49.
When asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.” (CCP § 2031.240(c)(1); Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 596-597—burden to show preliminary facts supporting application of privilege not met where defendant failed to produce privilege log or identify any specific confidential communications.) “The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not [in] fact privileged.” (Wellpoint Health Networks, Inc. v. Sup.Ct. (McCombs) (1997) 59 Cal.App.4th 110, 130; see Catalina Island Yacht Club v. Sup.Ct. (Beatty) (2015) 242 Cal.App.4th 1116, 1130 & fn. 5—privilege log deficient due to failure to describe documents or contents [other than noting they were emails with counsel] since not all communications with attorneys are privileged.)
Although defendant asserted objection based on privilege, defendant responded that it is not withholding any documents based on privilege. (See e.g., defendant’s second supplemental response to Nos. 5-8, 9-20, 48-49 [“By way of further response, it states that no responsive documents have been withheld based upon privilege.”] and Nos. 41-42, 45 [“No responsive documents have been withheld based upon privilege.”])
While plaintiff contends that the objections based on privilege should then be stricken (since responsive documents have not been withheld), defendant represents that the objections were asserted to preserve them in the event that further responsive documents are later discovered. Given defendant’s response that no responsive documents have been withheld based on privilege, defendant may still be able to assert the objection to preserve them. (See Catalina Island Yacht Club v Superior Court (2015) 242 Cal.App.4th 1116, 1125 – “[A] responding party preserves its objections based on the attorney-client privilege and work product doctrine by serving a timely written response asserting those objections. It is irrelevant that the objections are asserted as part of a generic or boilerplate response, or that the responding party failed to serve a timely and proper privilege log.”)
While defendant objected to RFPD Nos. 43, 44 and 46, based on attorney-client and/or work product doctrine, these requests sought all discovery (including deposition transcripts) from lawsuits alleging claims of injury involving the one wheel electric skateboard within the past 10 years. Defense counsel represents that counsel met and conferred on 8/29/2022 [after the instant motion was filed], and agreed that defendant “would initially only provide information regarding other lawsuits and that an exhaustive manual search regarding communications reporting potential other claims would not take place at this time. Mr. Innabi agreed that Plaintiff would defer discovery regarding other claims pending his review of other lawsuit information provided by [defendant].” (Opposition, Declaration of Michael S. Sutton, Par. 2.(a).) Thus, it appears that privilege log will not be necessary for these responses.
Accordingly, plaintiff’s motion to compel privilege log in response to defendant’s responses to RFPD Nos. 5-8, 9-20, 41-46, and 48-49 is DENIED.
Plaintiff moves to compel defendant’s responses as to
documents related to the product’s design and manufacture (RFPD Nos. 9-20),
specifically documents, within the past ten years that relate or refer to:
No. 9: the design of Onewheel Electric Skateboard (“Onewheel”)
No. 10: the design of the subject electric skateboard (“skateboard”)
No. 11: the reason for any changes in the design of the Onewheel
No. 12: the reason for any changes in the design of the skateboard
No. 13: manufacturing specification for the Onewheel
No. 14: manufacturing specification for the skateboard
No. 15: the reason for any changes in the manufacturing specification for the Onewheel
No. 16: the reason for any changes in the manufacturing specification for the skateboard
No. 17: the software for the Onewheel
No. 18: the software for the skateboard
No. 19: the reasons for any changes in the software for the Onewheel
No. 20: the reasons for any changes in the software for the skateboard
The Civil Discovery Act provides litigants the right to broad discovery. (CCP § 2017.010.) However, a party seeking discovery of trade secret information, “must make a prima facie, particularized showing that the information sought is relevant and necessary ... and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. It is then up to the holder of the privilege to demonstrate any claimed disadvantages of a protective order. Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret, but the burden is on the trade secret claimant to demonstrate that an alternative to disclosure will not be unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation that would have been achieved by disclosure.” (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393 (Bridgestone).)
In Bridgestone, the plaintiffs sought the confidential rubber formulas for tires alleged to be defective. (Bridgestone, supra, 7 Cal.App.4th at pp. 1388-1389.) The trial court ordered disclosure of the formulas, subject to a protective order, but the Court of Appeal vacated the order, holding that while the plaintiffs had “plainly establish[ed] that the trade secret formulas would be helpful to the analysis of the case,” they had not demonstrated the necessity of the information to carry their burden of proof. (Id. at p. 1397.)
The responsive documents relate to the design, manufacturing specification and software for the subject product. Although the documents are relevant to the issues involved in this product liability case, they are the confidential trade secret of defendant. (See Opposition, Declaration of Kyle Doerksen, ¶¶ 6-10.) Plaintiff, in REPLY, submits a letter from their technical consultant David Rondinone, Ph. D., P.E. “setting forth the requirements for a proper inspection of the product’s software and what would be necessary to properly assess the software materials at issue. Further, Dr. Rondinone explains the need for such an inspection given the facts related to the incident involving Plaintiff and the Onewheel at issue.” (Reply, Innabi Decl., ¶ 3, Exh. A.) Defendant, however, has not had the chance to respond to this new information submitted with the reply. If requested, the Court will allow Defendant an opportunity to file a surreply in response.
Moreover, it appears defendant has offered to produce design and drawings and specifications after entry of a protective order. The parties, however, have yet to come to an agreement on the terms of the protective order.
Defense counsel also represents the parties met and conferred on 8/29/2022 [after the instant motion was filed], and have agreed to supplement a number of its discovery responses now that it had an opportunity to inspect the board and depose the plaintiff. (Opposition, Declaration of Kathleen K. Curtis, ¶ 24.) Counsel represents defendant agreed to provide supplemental discovery responses by 9/19/2022. (Ibid.) Counsel also represents that defendant served its THIRD supplemental responses 9/16/2022 and the response is attached to the opposing papers as Exhibit 14, but none was attached to the papers filed with the court. (Id., ¶ 27.)
The Court will discuss these requests at the hearing, and see if a further meet and confer may be fruitful, and how the impasse on a proposed protective order may be resolved. The bottom line is that the Onewheel software is a trade secret, but also may be key to whether a design defect caused the alleged nosedive. Given the valuable nature of the software, a protective order preventing misuse or wrongful disclosure is vital; but the protective order must not prevent Plaintiff’s consultants from having sufficient access to properly assess whether a defect exists.
Plaintiff also moves to compel defendant’s responses as to documents concerning other claims and customer complaints relating to the product’s alleged defective condition (RFPD Nos. 33-35, 37 and 41-46).
However, as noted above, defense counsel represents counsel met and conferred on 8/29/2022 [after the instant motion was filed], and agreed that defendant “would initially only provide information regarding other lawsuits and that an exhaustive manual search regarding communications reporting potential other claims would not take place at this time. Mr. Innabi agreed that Plaintiff would defer discovery regarding other claims pending his review of other lawsuit information provided by [defendant].” (Opposition, Declaration of Michael S. Sutton, Par. 2.(a).) Thus, it appear these requests are MOOT at this time.
Monetary sanction “shall” be imposed unless the court finds that party made or opposed the motion “with substantial justification” or other circumstances make the sanction “unjust.” (CCP §§ 2031.310(h) (document production statute), 2023.030(a) (general sanctions statute); see Kravitz v. Sup.Ct. (Milner) (2001) 91 Cal.App.4th 1015, 1021.)
The Court finds that defendant opposed the motion with substantial justification. Thus, monetary sanctions are not warranted.
Plaintiff to give Notice of Ruling.