Judge: James L. Crandall, Case: 20-1171109, Date: 2022-12-01 Tentative Ruling

1.    Motion for Protective Order

Plaintiff Massoud Kaabinejadian’s Motion for Protective Order is GRANTED in part and DENIED in part.

Pursuant to the relevant discovery statutes, “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2031.060(b)(5) [re RFPs].) This includes orders that: “a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way.” (Code Civ. Proc., §§ 2025.420(b)(13) [depos], 2030.090(b)(6) [rogs], 2031.060(b)(5) [RFPs], 2033.080(b)(4) [RFAs].)

Any motion for protective order “shall be” accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2017.020(a).) Section 2016.040, in turn, requires a supporting meet and confer declaration to “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

The burden is on the party seeking the protective order to show “good cause” for whatever order is sought. (Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255; Stadish v. Super. Ct. (1999) 71 Cal.App.4th 1130, 1145.) “The concept of good cause . . . calls for a factual exposition of a reasonable ground for the sought order.” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) Proof on the question of good cause is presented through declarations and counter-declarations. (Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 389.)

Plaintiff has shown “good cause” for a general protective order to protect private and confidential documents. Furthermore, Defendants agree that there should be a protective order in place.

Defendants recommend that the parties agree on a Stipulation similar to one recognized by the Los Angeles Superior Court. Plaintiff recommends an alternative protective order but does not show “good cause” as to each provision that differs from the normal LASC Model Protective Order.

1.       Definition of Confidential Information

The LASC protective order provides:

c. “Confidential” means any information which is in the possession of a Designating Party who believes in good faith that such information is entitled to confidential treatment under applicable law.

d. “Confidential Materials” means any Documents, Testimony or Information as defined below designated as “Confidential” pursuant to the provisions of this Stipulation and Protective Order.

(IJams Decl. Ex. G.)

Alternatively, Plaintiff proposes the following definition:

Confidential Information: Confidential information ("Confidential Information") shall mean any confidential business or commercial information, including, but not limited to, trade secrets and other confidential and proprietary research, development, and commercial information, as well as non-public financial information and/or medical information protected by the right to privacy under any state or federal low, of a Party or a third party, in the possession of a Party, and shall include all discovery responses provided by any Party to this action, including without limitation any document produced, any interrogatory answered, any response to a request for admission, or any deposition testimony given by a Party or a third party witness, as such information is specifically marked, labeled, stamped or otherwise designated as "Confidential" or "Confidential-Attorneys' Eyes Onl by the producing Party. Confidential Information shall also include any document attached as an exhibit to a pleading filed with or otherwise submitted to the Court which has been specifically marked, labeled, stamped or otherwise designated as "Confidential" by the submitting Party. The Parties anticipate that certain third-party witnesses may be required to produce documents and provide testimony under subpoena in this case ("Producing Witnesses"). They may also be required to produce documents in this case which the Producing Witnesses, in good faith, regard as trade secret, confidential, sensitive, proprietary or private.

(Kaabinejadian Decl., Ex. 5; Emphasis supplied)

It appears that Plaintiff seeks to have “all discovery responses provided by any Party to this action, including without limitation any document produced, any interrogatory answered, any response to a request for admission, or any deposition testimony given by a Party or a third party witness” designated as “Confidential.” Plaintiff does not provide good cause to do so and this would be extremely burdensome to the parties and the Court. A “Confidential” designation should be used for documents and information for which the party has good cause to protect. A party should not make a blanket designation like this and Plaintiff does not provide any authority for this position.

For example, a protective order is not proper for responses to Form Interrogatories 6.1, 6.2, and 6.3. These interrogatories seek basic information about Plaintiff’s damages and the amount sought. This is information that Defendants need to be able to discuss within the context of this litigation and at trial. 

Plaintiff also argues that the LASC definition does not specifically include his medical records and the protective order is not meant to encompass his medical records. However, parties utilize the LASC model protective order for medical records all the time.  The parties are able to designate medical records as “Confidential.”

The definition provided by the LASC protective order allows for the parties to designate information and documents “Confidential” that warrant the “Confidential” designation. A more specific definition is unnecessary.

2.       Requiring Plaintiff’s Prior Written Consent to Furnish “Confidential Information” to Any Person or Entity Retained by Defendants

Plaintiff’s proposed protective order states:

a.       The Parties and Parties' counsel of record and their co-counsel, if any, as well as their direct respective support staff, with prior written notice to Plaintiff, informing him of the names of counsels and their direct respective support staff all of whom will agree to abide by the terms as set forth in this Agreement by each executing the Non-Disclosure Agreement in the form attached hereto as "Exhibit A" to the Protective Order in advance of being authorized to have access to said confidential information, copy of which executed Non-Disclosure Agreement Exhibit As will be produced to Plaintiff upon signing and execution by said individuals; …

c. Any person who is expressly retained by a Party, or such Party's counsel for the sole purpose of providing expert consultation of testimony in this action, only after approved in writing by Parties of those persons, which approval shall not be unreasonably withheld; outside experts or expert consultants consulted by the undersigned Parties or their counsel in connection with the Proceeding, whether or not retained to testify at any oral hearing; provided, however, that prior to the Disclosure of Confidential Materials to any such expert or expert consultant, counsel for the Party making the Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall explain its terms to such person, and shall secure the signature of such person on a statement in the form attached hereto as Exhibit A. It shall be the obligation of counsel, upon learning of any breach or threatened breach of this Stipulation and Protective Order by any such expert or expert consultant, to promptly notify counsel for the Designating Party of such breach or threatened breach;

d. Any person or entity who is expressly retained by a Party, or such Party's counsel to provide investigative services in connection with this action, only after approved in writing by Plaintiff of those persons and entities, subject to section "a" requirements above;

(Kaabinejadian Decl., Ex. 5.) In contrast, the LASC model only requires that parties have expert consultants and investigators that come in contact with “Confidential Information” agree to abide by the protective order.

Plaintiff does not establish “good cause” for requiring his approval prior to the transmission of information. Defendants correctly contend such requirement invades the attorney-work product privilege, and calls for premature disclosure of potential witnesses.

Here, the protective measures put in place by the LASC model protective order for expert consultants and investigators is sufficient.

3.       Mandatory Fines

Plaintiff’s proposed stipulation also provides for:

15. Defendants and their legal counsel, their attorneys, as well as their respective support staff, clerical and/or administrative personnel, secretaries and paralegals, expressly agree not to access, read, share, disseminate, post on any web site even for access by other authorized parties, Plaintiffs Confidential Medical Information and other Confidential Documents without prior written consent of Plaintiff and agree to pay a mandatory fine of $100 per day for each violation and infraction to Plaintiff, without showing of harm, after Plaintiffs filing a request with the Court, which may be in the form of Ex Parte for Court approval, within 10 days.

(Kaabinejadian Decl., Ex. 5.) Plaintiff claims that the LASC protective order does not have any remedy mechanism. Defendants contend that the Court can award sanctions for violations of the Discovery Act after each party has an opportunity to be heard.

Indeed, once the protective order is executed by the parties and the court, any violation could be brought to the court as violating a court order (i.e. contempt). Therefore, sanctions can be awarded in the Court’s discretion.

Thus, Plaintiff has not shown a need for a one-sided imposition of a mandatory penalty without any showing of harm.

4.       Periodic Declaration

Plaintiff’s proposed protective order requires:

16. Parties and their legal counsel agree to have their general counsel provide periodic notifications to Parties, upon request, in writing declaring that no violation of the Parties' Confidential Information and Documents has occurred by either improper access and/or breach of security by their attorneys, as well as their respective support staff, clerical and/or administrative personnel, secretaries and paralegals, as well as external bad actors who attempted to hack or have hacked into the system of Parties' legal counsel.

(Kaabinejadian Decl., Ex. 5.) In contrast the LASC Model Protective Order requires:

15. If, after execution of this Stipulation and Protective Order, any Confidential Materials submitted by a Designating Party under the terms of this Stipulation and Protective Order is Disclosed by a non-Designating Party to any person other than in the manner authorized by this Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure shall bring all pertinent facts relating to the Disclosure of such Confidential Materials to the immediate attention of the Designating Party.

Plaintiff does not establish “good cause” as to why a periodic declaration of compliance is necessary. The LASC Model Protective Order provides sufficient protections.

5.       HIPAA Requirements

Plaintiff’s proposed protective order provides:

18. Parties and their legal counsel agree to provide and submit into the record their official literature regarding its “Certified HIPAA-Compliant” storage facilities, proposed to hold Plaintiff’s Confidential records, for the record and future compliance reference, evidencing of their capability to provide Certified HIPAA Compliant storage facilities with two-step verification, a login authentication feature, to store Plaintiff’s Confidential Medical [sic] and Parties’ other Confidential Documents, for both Parties and Court’s review and approval, prior to receiving any such Confidential Medical Information from Plaintiff or any other source . . . (Kaabinejadian Decl., Ex. 5.)

Defendants correctly contends that they are not “covered entities” subject to HIPAA. HIPAA applies to the following entities: a health plan, a health care clearinghouse, and a health care provider who transmits any health information in electronic form in connection with a transaction covered by HIPAA. (45 CFR § 160.102, subd. (a).) Thus, Defendants do not need to comply with HIPAA.

Plaintiff does not establish “good cause” as to why Defendants needs to provide “provide Certified HIPAA Compliant storage facilities.” Security measures law firms take to maintain confidential information for their clients and their firms are sufficient.

6.       Electronic Storage of Medical Records

Paragraph 19 of Plaintiff’s proposed protective order requires that Defendants only maintain Plaintiff’s medical records in paper format. Plaintiff does not establish “good cause” for this impractical measure.

Based on the foregoing, Plaintiff’s request for a protective order is GRANTED. However, the Court does not order the parties to enter into Plaintiff’s protective order because Plaintiff has not established good cause. This request is DENIED. The parties are ordered to enter into Defendants’ protective order within 15 days of this order.

Accordingly, Plaintiff Massoud Kaabinejadian’s Motion for Protective Order is GRANTED in part and DENIED in part.

Defendants to give notice.

2.    Motion to Compel Production

Plaintiff Massoud Kaabinejadian’s Motion to Compel Production is GRANTED in part and DENIED in part.

It is a central precept to the Civil Discovery Act of 1986 . . . that civil discovery be essentially self-executing” (See Townsend v. Superior Court, (1998) 61 Cal.App.4th 1431, 1434-35). “Conduct frustrates the goal of a self-executing discovery system when it requires the trial court to become involved in discovery because a dispute leads a party to move for an order compelling [compliance with a discovery mechanism].” (See Clement v. Alegre, (2009) 177 Cal.App.4th 1277, 1291.)

“Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence . . .” (Code Civ. Proc. § 2017.010.) “Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Ibid.)

“For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ . . . Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. . . .The phrase ‘reasonably calculated to lead to the discovery of admissible evidence’ makes it clear that the scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. ‘Thus, the scope of permissible discovery is one of reason, logic and common sense.’. . . These rules are applied liberally in favor of discovery.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611–1612, emphasis removed.)

Code Civ. Proc. section 2017.010 provides in relevant part that “[u]nless otherwise limited by order of the court … any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence …”

Code Civ. Proc. § 2031.210 states: “(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: ¶ (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. ¶ (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

¶ (3) An objection to the particular demand for inspection, copying, testing, or sampling. ¶  (b) In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding party. ¶ (c) Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated.

¶ (d) If a party objects to the discovery of electronically stored information on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense and that the responding party will not search the source in the absence of an agreement with the demanding party or court order, the responding party shall identify in its response the types or categories of sources of electronically stored information that it asserts are not reasonably accessible. By objecting and identifying information of a type or category of source or sources that are not reasonably accessible, the responding party preserves any objections it may have relating to that electronically stored information.”

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc. § 2031.220)

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)

Code Civ. Proc. § 2031.310 provides: “On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] A representation of inability to comply is inadequate, incomplete, or evasive. [¶] An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with both of the following: [¶] (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”

“To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v. Superior Ct., (2014) 226 Cal. App. 4th 216, 224, disapproved of on other grounds by Williams v. Superior Ct., (2017) 3 Cal. 5th 531.)

“Once good cause [is] shown, the burden shift[s] to [responding party] to justify his objection. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221, 23 Cal.Rptr. 393, 373 P.2d 457.)” (Kirkland v. Superior Ct., (2002) 95 Cal. App. 4th 92, 98.)

Plaintiff served propounded to Defendant EQR Toscana. (See Ex. 1, Declaration of Massoud Kaabinejadian (Kaabinejadian Decl.) ¶ 2.) Defendant served responses on 6-24-22 (Ex. 2 to Kaabinejadian Decl.) Defendant did not serve any documents. Plaintiff met and conferred but the efforts were unsuccessful. The parties met and conferred regarding a protective order but were unsuccessful. Defendant provided Plaintiff a signed verification for the responses on 7-18-22. (See Kaabinejadian Decl. ¶ 3,.)

Defendant’s responses to Nos. 1, 2, 3, 5, 7, 8, 9, 11, 12, 13, 17, 18, 19, 32, 33, 34, 41, 42, 43, 44, 45, 46, 47, 48, 51, 52, 53, 57, 58, 59, 72, 73, 75, 76, 77, 78, 79, 80, and 86, either improperly states that Responding Party already produced documents when another defendant produced the documents or refers to another defendant’s responses. This is improper and does not comply with Code Civ. Proc. § 2031.210. Thus, Defendant is compelled to provide a further response to these Requests.

Defendant’s responses to Nos. 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 36, 38, 40, 102, 103, 104, and 105, state that Defendant will comply after the parties enter into a protective order. Given the concurrent ruling on the Motion for Protective Order, the parties are ordered to enter into an order. Thus, Defendant is compelled to provide a further response to these Requests that comply with Code Civ. Proc. § 2031.210.

Defendant’s responses to Nos. 60, 61, 62, 63, 66, 67, 68, 69, 70, 71, 74, 85, 87, and 94 are part evasive because they refer to documents produced by another party. Furthermore, they state that Defendant will comply after the parties enter into a protective order. Given the concurrent ruling on the Motion for Protective Order, the parties are ordered to enter into an order. Thus, Defendant is compelled to provide a further response to these Requests that comply with Code Civ. Proc. § 2031.210.

Defendant’s responses to Nos. 50, 54, 55, 56, 64, 65, 95, and 96 are statements of inability to comply. Defendant does not need to provide a further response to these Requests because the current response is sufficient.

Defendant’s responses to Nos. 81, 82, 83, and 84, do not comply with Code Civ. Proc. § 2031.210 because they fail to provide a statement of compliance. Furthermore, the responses implicate the attorney-client privilege. Code Civ. Proc. § 2031.240(c)(1) provides: “If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” Here, there is sufficient information in the response for Plaintiff to evaluate the merits of the privilege.

Defendant objects to Requests Nos. 4, 6, 88, and 89 which seek other tenant complaints, on the basis that they are overbroad and violate third-party privacy rights. Plaintiff has agreed that Defendant can redact the tenant’s names. Furthermore, given the concurrent ruling on the Motion for Protective Order, the parties are ordered to enter into an order. This should assuage any privacy concerns. Thus, Defendant is compelled to provide a further response to these Requests that comply with Code Civ. Proc. § 2031.210.

Defendant objects to Request No. 49, which seeks documents related to the annual performance goals of the Toscana, on the basis that it is overbroad, burdensome, and harassing. “Oppression must not be equated with burden. The objection based upon burden must be sustained by evidence of showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417.) Here, Defendant does not provide any evidence regarding the burden.

Defendant also argues in the Separate Statement that responsive documents might contain proprietary information. However, this objection was not made in the responses and was, therefore, waived.

Thus, Defendant is compelled to provide a further response to this Request that complies with Code Civ. Proc. § 2031.210.

Defendant objects to Requests Nos. 10, 14, 15, and 16, on the grounds that the requests are overbroad, vague, not reasonably calculated to lead to the discovery of admissible evidence, and seek documents protected by the work-product doctrine and attorney-client privilege. The Court agrees with Defendant’s objections. Thus, Defendant is not ordered to provide a further response to these Requests. 

Defendant objects to Requests Nos. 35, 37, 39, 106 which seek personnel documents of Defendant’s employees including all documents related to their job titles and employment status, on the basis that they are overbroad, burdensome, harassing, not relevant to any issue in this case nor reasonably calculated to lead to the discovery of admissible evidence, and violate privacy rights of third parties. Defendant states in the response: “California law favors privacy for confidential information in third party personnel files unless the litigant can show a compelling need for the particular documents and that the information cannot reasonably be obtained through depositions or from non-confidential sources. (Harding Lawson Associates v. Superior Court (1992) 10 Cal. App. 4th 7, 10.)” Plaintiff has not done so here.” Plaintiff does not provide a compelling need as to why he need these personnel documents.  Thus, Defendant is not ordered to provide a further response to these Requests. 

Requests Nos. 90, 91, 92, and 93, seek documents with complete listings of lawsuits or administrative charges filed against Defendant. Defendant only provides objections in response. Defendant only attempts to justify the overbroad objection. While Plaintiff may discover some lawsuits and charges that are not similarly situated to his lawsuit, the Requests are not overbroad. Furthermore, lawsuits are public information. Thus, Defendant is compelled to provide a further response to this Request that complies with Code Civ. Proc. § 2031.210.

Requests Nos. 97, 98, 99, 100, 101, 107, 108 seek full and complete documentation of the ownership structure the entities. Plaintiff does not provide good cause as to why he needs all of these documents regarding the entity ownership and structure. Should Plaintiff need information regarding company ownership at certain points in time, he can obtain that information by less intrusive means such as interrogatory or deposition. Thus, Defendant is not ordered to provide a further response to these Requests. 

Based on the foregoing, Plaintiff Massoud Kaabinejadian’s Motion to Compel Production is GRANTED in part and DENIED in part. Plaintiff is awarded $60.00 in sanctions to compensate him for the filing fee.

Defendant to give notice.