Judge: Daniel S. Murphy, Case: 21STCV23557, Date: 2023-03-15 Tentative Ruling

Case Number: 21STCV23557    Hearing Date: March 15, 2023    Dept: 32

BACKGROUND

            On June 24, 2021, Plaintiff Daphna Alush filed this employment discrimination action against Defendant Deanco Healthcare, LLC dba Mission Community Hospital. The complaint alleges FEHA violations, wrongful termination in violation of public policy, breach of contract, and failure to pay wages. Plaintiff was allegedly mistreated based on her disability and denied bonuses owed to her.

             On December 12, 2022, the Court granted Plaintiff’s motion to compel and ordered Defendant to provide further responses and documents within 10 days. With regards to document production, Plaintiff sought email communications between herself and 44 named supervisors or colleagues which purportedly demonstrate Plaintiff’s protected activity. Defendant produced documents on December 22, 2022, but none were emails from Plaintiff to the 44 named individuals, nor did they show Plaintiff engaging in protected activity.

            On February 17, 2022, Plaintiff filed the instant motion for terminating sanctions based on Defendant’s purportedly inadequate document production. Plaintiff is confident that the emails exist because she herself is in possession of some of the emails. Plaintiff contends that Defendant either deleted the emails or is withholding them in violation of the Court’s December 12, 2022 order.

LEGAL STANDARD

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Wilson v. Jefferson (1985) 163 Cal.App.3d 952, 959.)

DISCUSSION

            In connection with the requests for production, Defendant’s IT department provided defense counsel with “Plaintiff’s entire email box.” (Gilbert Decl. ¶ 2.) Defendant denies that any emails were deleted. (Id., ¶ 3.) Defendant avers that it is currently working on collecting the email boxes of the 44 named individuals to determine if further documents can be found. (Id., ¶ 4.)

            The record does not indicate any intentional destruction or withholding of documents. Sanctions are not warranted just because the documents produced were not what Plaintiff expected. Though Plaintiff is confident that the emails exist, she has no evidence to contradict that her entire email box was produced. Plaintiff has no evidence to contradict Defendant’s IT department confirming that no emails were deleted.

Sanctions must be incremental and proportionate. (See Doppes, supra, 174 Cal.App.4th at p. 992; Wilson, supra, 163 Cal.App.3d at p. 959.) Therefore, terminating sanctions would be overly harsh at this stage, where Defendant produced Plaintiff’s emails within the deadline imposed by the Court. Even if Defendant disobeyed the Court’s order, this would be the first time it did so, and terminating sanctions would still be disproportionate. Plaintiff’s alternative request for issue and evidentiary sanctions to preclude Defendant from contesting liability is tantamount to a request for terminating sanctions and is therefore equally unwarranted.  

CONCLUSION

            Plaintiff’s motion for sanctions is DENIED. If necessary, the Court will grant a reasonable trial continuance to allow the parties sufficient time to produce and review additional documents.