Judge: Gregory Keosian, Case: 21STCV03392, Date: 2023-04-11 Tentative Ruling

Case Number: 21STCV03392    Hearing Date: April 11, 2023    Dept: 61

Plaintiff Note E-Filed, Inc.’s Motion to Compel Deposition of Defendant Newton Isaac is DENIED.

I.       MOTION TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. § 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1), (2).)

Plaintiff Note E-Filed (Plaintiff) moves to compel the deposition of Defendant Newton Isaac (Defendant). Plaintiff claims that it has sought dates of availability for deposition since October 2022, and that Defendant in November 2022 indicated he would be available at the end of February 2023. (Miller Decl. ¶¶ 3–4.) When Plaintiff indicated that such a date would place depositions too close to trial, the parties conferred about taking depositions in January 2023 and continuing trial. (Miller Decl. ¶¶ 5–13.) Although the parties stipulated to continue trial, Defendant provided no dates for deposition in January. (Miller Decl. ¶¶ 14–16.) Plaintiff served a notice of deposition on January 20, 2023, with the deposition set for February 15, 2023. (Miller Decl. ¶ 17.) Defendant served objections on February 6, 2023. (Miller Decl. ¶ 6.) Defendant did not appear for deposition on February 15, 2023. (Miller Decl. ¶ 21.)

Defendant in opposition contends that the deposition ought not to proceed because Plaintiff has not identified the trade secrets at issue in its claims with reasonable particularity as required under Code of Civil Procedure § 2019.210. (Opposition at pp. 4–5.) Defendant also argues that the motion does not include a separate statement which would support Plaintiff’s request for production of documents at a deposition as required under CRC Rule 3.1345. (Opposition at pp. 3–4.) Defendant also argues that Plaintiff has failed to meet and confer before filing this motion. (Opposition at pp. 5–6.)

Plaintiff’s motion fails on a number of levels. A motion to compel deposition must show good cause for the discovery sought. (Code Civ. Proc. § 2025.450, subd. (b)(1).) Neither Plaintiff’s motion nor notice of deposition identifies the categories of examination for deposition or why good cause supports any such categories or the documents sought therewith. (Motion Exh. E, N.) The motion comes with no separate statement to justify the production of any documents sought in the deposition notice, as required in a motion “[t]o compel or to quash the production of documents or tangible things at a deposition.” (CRC Rule 3.1345, subd. (a)(5).) What’s more, this is an action for misappropriation of trade secrets, and Defendant’s counsel states that no identification of trade secrets has been provided under Code of Civil Procedure § 2019.210, which means no “discovery relating to the trade secret” may take place. (Yu Decl. ¶ 3.) Plaintiff in reply argues only that any objections under Code of Civil Procedure § 2019.210 have been waived, as discussed in this court’s order of March 8, 2023, granting Plaintiff’s motions to compel (Reply at pp. 2–3), Defendant’s objections were waived to the discovery at issue in those motions by virtue of the failure to serve a timely response. Defendant served objections to the present deposition notice, containing objections based on Code of Civil Procedure § 2019.210. (Motion Exh. O.) Plaintiff does not contend that it has complied with the section at issue.

The motion is therefore DENIED.