Judge: Curtis A. Kin, Case: 21STCV12151, Date: 2023-01-31 Tentative Ruling

Case Number: 21STCV12151    Hearing Date: January 31, 2023    Dept: 72

MOTION FOR PROTECTIVE ORDER

Date:               1/31/23 (8:30 AM)                             

Case:                La-Keeya Monique Loman et al. v. American Honda, Inc.. (21STCV12151)

TENTATIVE RULING:

Defendant American Honda Motor Co., Inc.’s Motion for Protective Order is DENIED.

Defendant American Honda Motor Co., Inc. moves for a protective order with respect to Request for Production, Set One, Nos. 18-20, 24, and 25. On October 11, 2022, the Court ordered defendant to serve further responses, without objection, to these requests.

Defendant maintains that 13,069 emails may be responsive to the requests. (Anim-Appiah Decl. ¶ 6.) Defendant maintains that, to comply with the order, 217 hours of attorney time at an hourly rate of $325 are necessary to review the emails. (Anim-Appiah Decl. ¶ 8.) 163 hours of paralegal time at an hourly rate of $130 are purportedly necessary to redact private and/or privileged information from the emails. (Anim-Appiah Decl. ¶ 8.) Defendant also newly asserts for the first time in the Reply that it will incur $19,975 in one-time data processing fees and $5,320 in data hosting fees to review the documents. (Anim-Appiah Reply Decl. ¶¶ 5, 6.) The cost to comply with the October 11, 2022 order is purportedly approximately $117,010. (Anim-Appiah Reply Decl. ¶ 8.)

Defendant requests 75 days to comply with the order and a shifting of the costs for production to plaintiffs.

The Court finds that the motion is untimely filed.

CCP § 2031.060(a) states: “When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.”  Invoking CCP § 2031.060(d), defendant contends that the emails are “from a source that is not reasonably accessible because of undue burden or expense….” Pursuant to CCP § 2031.060(e), defendant seeks to allocate the cost of compliance with the discovery order to plaintiff.

The time to demonstrate that production of the requested emails would be unduly burdensome was in connection with the underlying motion to compel further responses. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Coy v. Superior Court (1962) 58 Cal.2d 210, 220-21 [“[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection”].) Notably, in connection with the underlying motion to compel further responses, the Court expressly overruled defendant’s objection based on undue burden. (10/11/22 Minute Order at 3-4.)

Defendant states that it performed a search for responsive emails after the hearing. (Adim-Appiah Decl. ¶ 5.) Only then did defendant ascertain the number of responsive emails and the purported costs in reviewing those emails. (Adim-Appiah Decl. ¶¶ 6-8.) This concession is problematic for defendant, because, in objecting to the subject discovery based on undue burden, defendant implied that it had reviewed such responsive emails before plaintiff filed the underlying motion to compel further response—and certainly before opposing that motion before this Court. (See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991, disapproved of on other grounds by Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644 [finding that objecting to discovery based on privacy and relevancy implied that responding party had reviewed responsive document].) In short, defendant cannot assert boilerplate objections based on burden, attempt to justify those objections without any showing of actual burden, and then subsequently assert that it only learned how burdensome the discovery might be after the Court has overruled defendant’s objection and ordered a response.  Defendants untimely attempt to now assert and quantify the burden posed by the subject discovery does not merit a protective order.

Under the circumstances, the Court finds that the instant motion was not promptly filed, as required by CCP § 2031.060(a).

The motion is DENIED.