Judge: James L. Crandall, Case: 21-1185998, Date: 2022-11-03 Tentative Ruling

1.    Motion to Compel Production

Plaintiff Lance Jackson’s motion to compel Defendant Collectors Universe, Inc. to provide further supplemental responses to Plaintiff’s requests for production, set one (RFPs) is GRANTED in part and DENIED in part as set out below.

Plaintiff’s objections to the Ward declaration are overruled.

Plaintiff’s objections to the Curiel declaration are overruled.

Plaintiff’s notice of motion fails to identify the specific RFPS in dispute. Page two of Plaintiff’s memorandum states, “Plaintiff requests the Court to order Defendant to comply with this Court’s December Order by providing full, complete, and truthful code-complaint non evasive responses to RFP Nos. 5, 9, 13, 14, and 30-31 and producing all responsive documents without objections.” (Motion, p. 2:12.)

However, Plaintiff’s separate statement of discovery in dispute encompasses additional RFPs including RFPs 2, 4, 21, and 23. The memorandum also discusses other RFPs which aren’t included in Plaintiff’s separate statement. (Motion, pp. 9-10.)

The Court will only address the RFPs identified at page two of the motion - RFPs 5, 9, 13, 14, and 30-31. In future, Plaintiff shall clearly identify each of the discovery requests in dispute in the notice of motion. (See Cal. Rules of Court, Rule 3.1110(a).)

On 12/23/21, the Court granted a motion to compel further responses to the RFPs. The minute order stated in part, “the motion is granted as to requests for production 1-14, 21-25, 29-31, and 39.”

Defendant served supplemental responses and a privilege log on 1/12/22; produced documents on 1/13/22; produced amended supplemental responses on 2/25/22; and apparently produced additional documents on a rolling basis (although the declaration of Plaintiff’s counsel states in an apparent typo that “Plaintiff” has produced additional documents on a rolling basis). (Tobi Decl., ¶¶ 10-21.)

Code of Civil Procedure section 2031.220 provides, “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 of Civil Procedure section 2031.230 provides, “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.”

Here, Defendant’s supplemental responses to RFPs 5, 9, 13, 14, and 30-31, set out in Plaintiff’s separate statement of discovery in dispute, contain Code-compliant statements of compliance or inability to comply.

Plaintiff contends that Defendant’s production of documents appears to be incomplete, but Defendant has provided Code-compliant responses to the disputed discovery responses and Plaintiff has not shown that Defendant has failed to produce any specific responsive documents. Therefore, Plaintiff has not demonstrated specific facts showing good cause to require Defendant to produce additional documents under Code of Civil Procedure section 2031.310(b)(1).

However, in certain of Defendant’s responses (e.g., response to RFP 5), Defendant states, “Responding Party has complied in whole with this request and all documents or things in the demanded category that are in Responding Party’s possession, custody, or control were included in the production, excepting those documents identified in the privilege log served with these supplemental responses.” Therefore, the Court must determine whether Defendant’s privilege log is sufficient.

Plaintiff contends that the Court’s 12/23/21 order precluded Defendant from asserting objections including those raised in the privilege log. However, the 12/23/21 minute order didn’t state that Defendant had waived its objections to the RFPs and Defendant was entitled to assert objections in a privilege log.

The privilege log is attached as Exhibit 5 to the declaration of Plaintiff’s counsel. The Exhibit 5 privilege log adequately identifies the author, recipient, and date of the specified communications as well as the objection being asserted as to items #1-14.

However, item #15 in the privilege log broadly identifies, “All privileged and confidential customer information and communications,” without identifying any particular communication, author, or recipient.

In the 1/31/22 letter attached as Exhibit 7 to the motion, Defendant’s counsel explains, “We asserted item 15 in the privilege log out of an abundance of caution, to the extent that any demand could be construed to ask for every document related to every Kobe card that CU has graded since its inception. We have no particular documents in mind, since we did not undertake that search, nor are we required to. We also put item 15 in the privilege log since we were producing a list of all of the subject Kobe cards graded since 2020 to the present, as requested by Jackson, with the private customer information redacted.”

“A privilege log must identify with particularity each document the responding party claims is protected from disclosure by a privilege and provide sufficient factual information for the propounding party and court to evaluate whether the claim has merit.” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130.)

Here, item #15 in the Exhibit 5 privilege log is insufficient to allow the court to evaluate Defendant’s claim of privilege. If, as Defendant’s counsel asserts, the category of documents identified in item #15 is not responsive to any pending RFP, then item #15 need not be included in the privilege log. However, if item #15 encompasses responsive documents that are being withheld on the basis of privacy or privilege, Defendant must specifically identify such documents in the amended privilege log.

Therefore, Defendant is ordered to produce an amended privilege log within ten days of this order consistent with Catalina Island Yacht Club, supra, 242 Cal.App.4th at 1130.

Plaintiff may move to compel further responses to the RFPs, limited to documents encompassed by item #15 of the privilege log, within 30 days of service of Defendant’s amended privilege log.

The motion is denied as to the remaining issues raised in the motion. Both parties’ requests for sanctions are denied. (Code Civ. Proc. § 2031.310(h).)

     2.Motion to Compel Depositions

Plaintiff’s motion to compel the depositions of 23 witnesses is DENIED without prejudice.

Plaintiff’s objections to the Ward declaration are overruled.

Plaintiff’s objections to the Curiel declaration are overruled.

Code of Civil Procedure section 2025.450(a) states,

“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”

Here, Plaintiff hasn’t shown that a party deponent failed to appear for examination under section 2025.450(a).

Plaintiff’s counsel declares a deposition subpoena was served on Defendant’s former employee Mr. Bush on 11/19/21 and his deposition was scheduled for 10/6/22. (Tobi Decl., ¶¶ 6-16.)

Prior to the deposition, a dispute arose as to whether the deposition would be confidential. (Id. at ¶¶ 14-15.)

Plaintiff’s counsel declares, “As the parties could not resolve their dispute and as Mr. Bush refused to confirm an agreeable date for a continued deposition, Mr. Bush’s October 6 deposition was never continued or canceled.”

However, no certificate of non-appearance is filed with the motion.

Defendant’s counsel asserts that Plaintiff, not Defendant, cancelled the deposition.

The correspondence between Plaintiff’s counsel and Defendant’s counsel shows an apparent agreement to reschedule the deposition. (Exhibits 4 and 5 to 10/21/22 Opposition.)

Therefore, Plaintiff hasn’t shown that Mr. Bush was a party witness who “failed to appear for examination” under Code of Civil Procedure section 2025.450.

As to the remaining 22 witnesses, Plaintiff’s counsel declares that deposition notices for these witnesses were issued on 10/7/22, six days before the motion was filed. Plaintiff hasn’t shown that any of the 22 remaining witnesses have failed to appear for deposition.

The parties are ordered to engage in further attempts to meet and confer before any additional motions to compel depositions are filed.

Both parties shall comply with the 7/22/21 Stipulation and Protective Order with regard to designation of confidential materials and motions disputing such designations. Sanctions may be imposed against any party or attorney who fails to engage in good faith meet and confer efforts or comply with the Stipulation and Protective Order.

The motion is denied without prejudice to Plaintiff’s ability to move to compel depositions if a witness fails to appear for their deposition.

The Court declines to award sanctions as to this motion.

Future hearing dates

2/23/23 – MSJ (Reserved)

3/16/23 – Motion for Protective Order

3/24/23 – MSC

4/24/23 – Jury Trial