Judge: Donald F. Gaffney, Case: "Fine Consulting Services, Inc. v. Alvarez", Date: 2022-08-31 Tentative Ruling

TENTATIVE RULING: 

Motion to Compel Inspection

Defendant Manley’s Boiler LLC moves to compel inspection pursuant to Defendant’s Request for Inspection and Testing of Tangible Things (Set One). For the following reasons, the motion is DENIED.

If a responding party fails to permit inspection in accordance with its agreement to comply with an inspection demand, the demanding party’s remedy is to file a motion compelling compliance as agreed. (See Code Civ. Proc., § 2031.320.)  Section 2031.320 authorizes the court to compel compliance to the extent a responding party “fails to permit inspection . . . in accordance with that party’s statement of compliance.”  There is no meet and confer requirement (see Code Civ. Proc., § 2031.320), and no deadline for bringing a motion to compel compliance with an agreement to produce (Code Civ. Proc., § 2031.320(a); Standon Co., Inc. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903).

The requests for inspection and testing of tangible things asks Plaintiff to: “[P]roduce for inspection, testing, sampling, photographing and copying those tangible items that include electronically-stored information in Responding Party’s possession, custody or control, including but not limited to, such electronically-stored information which is in the possession, custody or control of Ellen Manley, Stephen Manley and/or Katie Charleston (the ‘Forensic Examination’).” The Requests also include 10 requests for specific information. The parties appear to understand these Requests to define the scope of the forensic investigation. The court will assume that mutual understanding for the purposes of ruling on this motion

In response, Plaintiff agreed to produce for inspection certain electronic devices, subject to objections and conditioned upon the issuance of a protective order and a detailed written protocol governing the inspection.

Attorney Charleston’s Devices. Plaintiff justifies its objection that Defendant’s requests are not reasonably calculated to lead to the discovery of admissible evidence as it relates to Attorney Charleston’s devices. Attorney Charleston declared under penalty of perjury that she received the relevant “undeliverable” messages. (ROA 377 [Charleston Decl.] ¶¶ 53-54.) The “undeliverable” notices produced match Attorney Charleston’s earlier declaration. (Cf. id.; Cohen Decl., Ex. D.) Attorney Charleston is an attorney in private practice, and her electronic devices contain confidential and privileged information from hundreds of clients. (Charleston Decl. ¶ 14.) There is no allegation that Attorney Charleston, an officer of this court, perjured herself or falsified the “undeliverable” notices such that a forensic inspection of her devices is reasonably calculated to lead to the discovery of admissible evidence.

The Manleys’ Devices. Plaintiff fails to justify its asserted objections regarding the request to inspect the electronic devices of Stephen and Ellen Manley. Nevertheless, Defendant concedes that there has been no protective order regarding information collected or viewed during the forensic inspection, and the parties have yet to agree to a written protocol. Plaintiff’s statement of compliance is conditioned on those two agreements, and those conditions for compliance have not yet been met. 

The court encourages the parties to continue meeting and conferring in good faith regarding the protective order and inspection protocol.

The court finds the circumstances here make the imposition of sanctions unjust and, therefore, denies Plaintiff’s request for monetary sanctions.  (Code Civ. Proc., §§ 2031.320(b); 2023.030(a).)

Plaintiff to give notice.