Judge: Gregory Keosian, Case: 21STCV35126, Date: 2022-07-28 Tentative Ruling

Case Number: 21STCV35126    Hearing Date: July 28, 2022    Dept: 61

Cross-Complainant My Life Foundation, Inc.’s Motion to Compel Further Responses to Requests for Production, Set One, from Cross-Defendants Tim DeHaven, Erik Duzell, and 3D Supports LLC is GRANTED as to Requests No. 2–7 and 9–18. The motion is GRANTED as to Request No. 8, but limited to service agreements executed by present or former clients of Cross-Complainant. Request No. 19 is also GRANTED, but only as to communications with Cross-Complainant’s clients up until the time that client executed a services agreement with 3D Supports, and no further communications post-dating that client’s execution of the agreement need be produced. To be produced within 30 days.

No sanctions are awarded.

I.                   MOTION TO COMPEL FURTHER – PRODUCTION OF DOCUMENTS

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response 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(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

A motion to compel a further response to an inspection demand must set forth specific facts showing “good cause” justifying the discovery sought by the inspection demand. (Code Civ. Proc., § 2031.310(b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance. (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 444.) Once the moving party demonstrates good cause for the discovery, the burden is on the responding party to justify any objection or failure to fully respond to the inspection demand.  (Coy v Superior Court (1962) 58 Cal.2d 210, 220.)

Cross-Complainant moves to compel further responses to Requests for Production No. 2–19. These requests seek documents related to Cross-Defendant 3D Supports’ corporate structure and capitalization (No. 2, 3, 5–7, 9, and 10), communications with and regarding specific people and entities (No. 4, 11–18), and 3D Supports’ services agreements and communications with Cross-Complainant’s clients (Requests No. 8 and 19).

Cross-Defendants’ responses to these requests are varied. All of them offer objections, but in some responses, Cross-Defendants state that responses will be offered subject to those objections and with an “acceptable” protective order (Requests No. 2, 5, 8–16). Cross-Defendants sometimes offer statements of inability to comply, also without waiving objections (Requests No. 3, 4, 6, 7, 18). In response to Request No. 8, Cross-Defendants offer compliance with respect to contracts with institutional clients, but object to providing service contracts for individuals. And Cross-Defendants offer compliance with Request No. 17, concerning communications with Westside Regional Center regarding Cross-Complainant, provided that personally identifying information in such communications are redacted. Only objections are offered with respect Request No. 18, seeking communications to Cross-Defendants clients concerning Cross-Complainant.

Cross-Complainant objects that each of Cross-Defendants’ purported statements of compliance are offered “without waiving” the numerous objections set out before them. (Motion at pp. 7–8.) Cross-Defendants argue, meanwhile, that there is no rule prohibiting objections in conjunction with substantive discovery responses, such as statements of compliance or inability to comply. (Opposition at pp. 3–5.)

Cross-Defendants are partially correct. Objections may be raised in discovery responses in order to prevent their waiver, and if provided in conjunction with substantive statements of compliance or inability to comply, leave the court with little to compel. (See American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 268 [holding that denials subject to objections “addressed the requests in their entirety, leaving no aspect of the requests for admission unresolved and nothing to be addressed by the trial court in a motion to compel further responses. This is so, despite the Local's boilerplate statement ‘w]ithout waiving these objections,’ because the Local then went on to flatly ‘Deny’ each request at issue. The MWD properly construed such responses as unequivocal denials and expended time and effort proving the truth of the matters to the trial court.”).) Thus if objections are accompanied by a straightforward statement of compliance or inability to comply in full, the propounding party generally has no basis for seeking further response on the grounds that such statements are made “without waiving” objections.

But Cross-Defendants’ opposition casts serious doubt on whether these statements are as full as they are made to seem. Although a party that withholds documents on the grounds that their production is objectionable generally must “identify with particularity” any material being withheld, including if necessary a privilege log (Code Civ. Proc. § 2031.240, subd. (b), (c)), Cross-Defendants here acknowledge that they are withholding responsive documents, but have not identified them, as doing so would be burdensome. (Opposition at pp. 13–14.) Cross-Defendants offer no evidence to support their burden objection, but the objection itself indicates that Cross-Defendants are withholding substantial responsive materials, and have not identified them to the propounding party. Thus the motion is properly GRANTED as to Requests No. 2–7 and 9–18.

This leaves Reqeusts No. 8 and 19. The first of these sought Cross-Defendants’ agreements for supported living services with other individuals and entities. The second seeks Cross-Defendnats’ communications with Western Regional Center concerning Cross-Complainant. And the last seeks all communications between Cross-Defendants and Cross-Complainants’ clients. Cross-Defendants object to each of these on the grounds of patient privacy and privilege. Cross-Complainant argues that any privacy concerns, or concerns arising from the Health Insurance Portability and Accountability Act (HIPAA) are addressed by the protective order already entered in this case and the good cause that supports the requests at issue. (Motion at pp. 9–10.)

Cross-Complainant points to 45 CFR § 164.512, which permits disclosure of HIPAA protected information subject to a qualified protective order that “[p]rohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested” and “[r]equires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.” (45 C.F.R. § 164.512, subd. (e)(1)(v).) The protective order entered here complies with this regulation. Cross-Defendants in opposition raise no argument addressing this point, and the court concludes that HIPAA is not an obstacle to the requests presently at issue.

Cross-Defendants also point to Welfare & Institutions Code § 4514, which prohibits the disclosure of “information and records obtained in the course of providing intake, assessment, and services  . . . to persons with developmental disabilities,” save for certain enumerated circumstances. (Welf. & Inst. Code § 4514, subd. (a).) However, one of those circumstances is “[t]o the courts, as necessary to the administration of justice.” (Welf. & Inst. Code § 4514, subd. (f).) Accordingly, the statute does not prevent disclosure pursuant to a court order that disclosure is necessary to the administration of justice in a given case, following a determination related to the privacy and good cause supporting the disclosure of the information sought.

This leaves Cross-Defendants’ arguments based on privacy. In determining whether privacy interests warrant restricting discovery, the court must perform a balancing of interests: “If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251.)

Individuals certainly have a privacy interest in their medical records. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198.) Cross-Defendants present the declaration of Erik Duzell, 3D Supports’ director of programs, who states supported living services agreements would include protected health information, including diagnoses and treatment, as would communications with Cross-Complainant’s clients (Duzell Decl. ¶ 7.) Cross-Defendants also present the declaration of Ibrahim K. Saab, a former customer of Cross-Complainant’s and one of the persons whose service agreements and communications are sought, who objects to the disclosure of this information. (Saab Decl. ¶¶ 25–28.) The existence of a privacy interest is also supported by the robust statutory protections surrounding such information, as discussed above. Weighing against these privacy interests in this case are three factors. First is the relevance of the information to Cross-Complainant’s claims, which directly concern the theft of patient information for the creation of another competing business. (Complaint ¶¶ 30–39.) Second is the fact that the propounding party is itself a covered organization with substantial access to private medical information for the individuals concerned. Third, the protective order entered in this case also ensures that any information obtained will be used strictly within this litigation.

Considering these factors, further responses to Requests No. 8 and 19 are warranted, albeit in a narrower scope than Cross-Complainant asks for. Request No. 8, for instance, asks for all of the services agreements that 3D Supports has with any person or individual, without regard to whether the individual concerned is a former patient or client of Cross-Complainant. This request is therefore properly limited to former clients of Cross-Complainant, and the motion is GRANTED as to that request, so limited.

Request No. 19, is also overbroad as framed, in that it seeks all communications with Cross-Complainant’s former clients, full stop. Such a request will include relevant information, to be sure, but also includes a broad swath of protected medical information of uncertain utility to this action. Because this action concerns the alleged poaching of Cross-Complainant’s clients, the most relevant communications are those that solicited the clients’ business. This request is therefore properly narrowed to seek communications with Cross-Complainant’s clients up until the time that client executed a services agreement with 3D Supports, and no further communications with any client post-dating that client’s execution of the agreement need be produced. Narrowing the request in this way is likely to capture the most relevant communications and to exclude the most sensitive. Accordingly, the motion is GRANTED as to the Request No. 19, subject to the above restriction.

II.                SANCTIONS

Statute provides that the court shall impose sanctions upon a party who unsuccessfully makes or opposes a motion to compel further response to interrogatories or requests for production of documents, absent substantial justification otherwise. (Code Civ. Proc. §§ 2030.300, subd. (d); 2031.310, subd. (h).)

Cross-Complainant seeks $18,700.00 in sanctions against Cross-Defendants, representing 46.6 hours of attorney work at $400 per hour, plus a $60 filing fee. (Parnes Decl. ¶ 28.) Cross-Defendants seek $8,409.27 in sanctions, representing 24 hours of attorney work at $350 per hour, plus a $9.27 e-filing fee. (Kron Decl. ¶ 13.)

Cross-Complainant has largely prevailed on this motion, but not completely. Moreover, Cross-Defendants opposed the motion with substantial justification. As such, no sanctions are appropriate.