Judge: Daniel S. Murphy, Case: 20STCV44829, Date: 2023-03-22 Tentative Ruling

Case Number: 20STCV44829    Hearing Date: March 22, 2023    Dept: 32

BACKGROUND

            On November 23, 2020, Plaintiff Kontakt International, Inc. filed this action against Defendants Scosi Orthopedics, Dr. Allen Lu, and Scott Weissman, alleging breach of contract and conversion. The complaint arises from a transaction where Plaintiff delivered facemasks to Defendants, who have failed to pay. On December 24, 2020, Defendants filed a cross-complaint, alleging that Plaintiff misrepresented the medical grade of the masks.  

            On February 4, 2022, Plaintiff filed a motion to compel responses to Requests for Production propounded to Defendants Scosi Orthopedics and Dr. Allen Lu. Defendants had served unverified responses and had not produced all of the documents that they indicated they would produce. Defendants did not respond to meet and confer and did not oppose the motion. As a result, the Court granted Plaintiff’s motion on March 4, 2022, ordering Defendants to produce responses within 15 days and to pay $5,000 in sanctions within 30 days.

            On February 24, 2023, Plaintiff filed the instant motion to compel against Defendant Weissman on the grounds that Weissman’s production is incomplete and not code-compliant.

LEGAL STANDARD

On receipt of a response to a request for inspection, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to

comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).)

“If a party filing a response to a demand for inspection, copying, testing, or sampling . . . thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320(a).)

DISCUSSION

Weissman responded to the subject RFPs by stating that he would produce all nonprivileged responsive documents in his possession. (Jacobson Decl., Ex. F.) Plaintiff contends in this motion that Weissman failed to produce all responsive documents and instead reproduced the prior production by codefendants Scosi and Lu that the Court found insufficient. Defendants were previously represented by Michael Bowse, who was responsible for Scosi and Lu’s prior production. However, correspondence between the parties indicates that Plaintiff requested Weissman produce “the full production that previous counsel had in his possession on January 19.” (Id., Ex. E.) Therefore, to the extent that Weissman’s production repeats the documents produced by Scosi and Lu through Bowse, Plaintiff specifically asked for such a production. Weissman is not required to correct deficiencies in the production of his codefendants.

Weissman avers that he has provided all responsive documents in his possession. (Weissman Decl. ¶ 12; Kasendorf Decl. ¶ 7.) Weissman cannot be compelled to produce documents that he does not have, but if there are any RFPs for which Weissman does not have responsive documents, he must provide a code-compliant response to that effect. (See Code Civ. Proc., § 2031.230.) This includes an explanation of why Weissman does not have the documents—i.e., lost, destroyed, never existed, etc. (Ibid.) Additionally, Weissman concedes that the production does not comply with Code of Civil Procedure section 2031.280(a), requiring all produced documents to be “identified with the specific request number to which the documents respond.”

Weissman does not address Plaintiff’s contention that the production is missing metadata revealing the author, date, and other information regarding the subject communications, which is pertinent to claims being asserted against multiple defendants. To the extent Weissman is in possession of metadata, his production must include it.

CONCLUSION

            Plaintiff’s motion to compel is GRANTED. Within 10 days, Defendant Scott Weissman is to provide further code-compliant responses and properly-labeled document production with metadata. Sanctions are denied as the parties acted with substantial justification.