Judge Jill Feeney, Case 21STCV03206 2022-08-19 Tentative Ruling

On January 26, 2021, Plaintiffs Michael Garcia (“Garcia”) and Pedro Cala (“Cala”) (collectively “Plaintiffs”) filed a complaint against Defendants Isidro Davila (“Davila”); Uber Technologies, Inc. (“Uber”); Rasier-CA, LLC; and Rasier, LLC for (1) negligence – motor vehicle, (2) negligence, (3) negligence per se, and (4) negligent hiring, retention, and supervision.

Plaintiff Garcia moves for terminating sanctions striking Uber Defendants’ pleadings and entering judgment against them, as well as co-Defendant Davila. Plaintiff seeks monetary sanctions in the amount of $5,000. Alternatively, Plaintiff requests an issuance of other appropriate sanctions, including (1) granting Plaintiff access to Uber Defendants’ database to procure the requested native source GPS data, (2) cause Defendants to admit complete liability for causing the collision at issue and be prohibited from introducing evidence to dispute liability in causing the collision, and (3) additional monetary sanctions in the amount of $5,000. Plaintiff Garcia asserts Uber Defendants have violated the April 11, 2022, May 2, 2022, and June 10, 2022 court orders by failing to produce verified further responses to Plaintiff’s document demands; failing to prepare a privilege log consistent with the Court’s May 5, 2022 and June 10, 2022 court orders; redacting all or part of roughly 1,400 of a total of 1,513 pages of documents produced and subject to this Court’s June 10, 2022 order absent reason or explanation; refusing to produce all GPS data, including native GPS data; and failing to provide further responses to special interrogatories consistent with the Court’s April 12, 2022 order. Plaintiff asserts Uber Defendants have been actively interfering with Plaintiff’s ability to depose their PMQs.

Uber Defendants argue they did not violate the court orders. Uber Defendants argue they provided further responses to special interrogatories on May 2, 2022 without objections and paid the sanctions and that Plaintiff’s ability to challenge the validity of those responses expired on June 18, 2022, more than 15 days before this motion was filed. Uber Defendants argue they complied with the May 2, 2022 order as modified by the June 10, 2022 order and also paid monetary sanctions. Uber argues the verification issue is moot because verifications were provided on July 1, 2022. Uber asserts the privilege log complies with the court order and CCP. Uber argues the issue regarding the redactions in the documents is moot now that all documents have been produced unredacted after Davila authorized their release. Uber Defendants argue Plaintiff’s counsel knew the documents were temporarily redacted to protect Davila’s constitutional right to privacy until he approved the release of his financial information. Uber provides that GPS data have been provided in three separate formats, including native format; that Plaintiff’s counsel never specific what he was looking for; and that a declaration from its GPS PMQ was provided verifying that the information is a true representation of the data in the database. Uber argues Plaintiff’s request for access to their database is extreme and not supported by any authority or court order. Uber Defendants contend that even if they were not currently in compliance with the orders, terminating, issue or evidentiary sanctions would be unnecessarily severe. Uber Defendants argue Plaintiff only asked for Uber’s PMQ during discussions for July 27, 2022 and not their GPS PMQ and that the July 14, 2022 date was provided for the GPS PMQ to appease Plaintiff.

Plaintiff argues Uber Defendants have still failed to produce a code-compliant privilege log consistent with the Court’s June 10, 2022 order. Plaintiff argues the non-compliant privilege log makes it impossible to determine whether the attorney-client or work product privileges apply. Plaintiff contends that he has no way to challenge Uber Defendants’ claimed privileges unless Defendant identifies the allegedly privileged documents on a document-by-document basis, consistent with the Court’s ruling. Plaintiff argues Uber Defendants have still failed to produce the requested GPS log files, source tables, and/or sequel or similar search statements. Plaintiff argues Uber Defendants have failed to produce any GPS data in a way that enables Plaintiff to verify its authenticity as the original source material for the GPS data at issue in this case. Plaintiff asserts Uber Defendants failed to produce all documents and continued to make objections that were overruled by the court, including privacy objections, and did not remove the redactions until after this motion was filed. Plaintiff contends Document Demand number 9 required Uber Defendants to produce any training program Uber has ever created, offered, required, recommended, or suggested to California Uber drivers, but none of Uber Defendants’ documents make reference to the creation of any training program. Plaintiff reiterates Defendants did not provide verifications by the deadline.

CCP section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Id. (citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491 (disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n 4) (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).)

Plaintiff Garcia seeks a court order imposing terminating sanctions by striking the pleadings of and entering judgment against Uber Defendants and co-defendant Davila. Alternatively, Plaintiff requests the Court issue other appropriate sanctions such as, but not limited to (1) granting Plaintiff access to Uber Defendants’ database to procure the requested native source GPS data and (2) cause Defendants to admit complete liability for causing the collision at issue and be prohibited from introducing evidence to dispute liability in causing the collision. Plaintiff Garcia also seeks additional monetary sanctions in the amount of $5,000.

Plaintiff argues Uber Defendants violated the Court’s April 11, 2022, May 2, 2022, and June 10, 2022 court orders. Specifically, Plaintiff argues Uber Defendants violated the April 11, 2022 court order by failing to provide further responses to Special Interrogatories without objections. Plaintiff further contends that Uber Defendant violated the May 2, 2022 and June 10, 2022 court orders by (1) failing to verify the further responses, (2) redacting information absent explanation or justification when the redactions were clearly not based on attorney-client or work product privileges and otherwise failing to produce all responsive documents to Document Demand number 9, (3) failing to produce all native GPS data and continuing to obstruct Plaintiff’s ability to procure testimony related to the GPS data, and (4) failing and refusing to provide a code-compliant privilege log consistent with the June 10, 2022 court order. Plaintiff also argues Uber Defendants have continued to shield its GPS PMQ deposition in defiance of the Court’s orders.

On April 11, 2022, the Court granted Plaintiff Garcia’s motion to compel Uber Defendants to provide further responses without objection to Plaintiff Garcia’s special interrogatories 5-7, 10, 31-34, 35-38, 61-64, 65-67. (4/11/22 Order; Koppelman Decl., ¶ 3, Ex. A, Notice of Ruling.) Uber Defendants were ordered to provide further verified responses without objections within 20 days. (Koppelman Decl., ¶ 3, Ex. A, Notice of Ruling.) Uber Defendants were allowed to include a preliminary statement at the beginning of the further responses stating that the answering party does not concede Defendant Davila was an employee of answering party. (Id.) Uber Defendants were also ordered to pay sanctions in the amount of $2,500. (Id.)

On May 2, 2022, the Court granted Plaintiff Garcia’s motion to compel Uber Defendants to provide further responses without objection to Plaintiff Garcia’s document demands 1-4, 7, 9, 43, 49, 62, 65, 69, 70, 71, 72, 76, 78-81. (5/2/22 Order; Koppelman Decl., ¶ 6, Ex. D, Notice of Ruling.) Uber Defendants were ordered to provide further verified responses without objections and to produce all requested documents within 20 days. (Koppelman Decl., ¶ 6, Ex. D, Notice of Ruling.) Uber Defendants were also ordered to pay sanctions in the amount of $2,500. (Id.)

On June 10, 2022, the Court denied Uber Defendants’ motion for reconsideration of the Court’s May 2, 2022 order granting Plaintiff Garcia’s motion to compel Uber Defendants’ further responses to Plaintiff’s request for production of documents. (6/10/22 Order.) However, because Uber Defendants expressed concern over its valid objections based on attorney-client privilege and attorney work product privilege, the Court, on its own motion, reviewed Uber Defendants’ responses again. (Id.) The Court indicated that the motion to compel further responses to Plaintiff’s request for production of documents remained granted and ordered Uber Defendants to provide verified responses without objections, except as to attorney-client and attorney work product privileges, and all responsive documents within 15 days of the date of the order. (Id.) The Court stated that Uber Defendants may not assert attorney-client privilege and attorney work product privilege in a blanket manner without a privilege log; that, to the extent Uber Defendants were asserting these privileges, Uber Defendants must serve the privilege log within 15 days after the date of the order with sufficient information for Plaintiff to challenge the assertion of either privilege; and that the privilege log must be organized by request number and must provide document by document information. (Id.)

Plaintiff requests terminating sanctions striking the pleadings of and entering judgment against Uber Defendants and co-defendant Davila. The court orders and alleged misconduct at issue involve Uber Defendants, not Davila. There is thus no basis to impose terminating sanctions or other sanctions against Davila. Plaintiff’s request to impose such sanctions against Davila is thus denied.

On April 11, 2022, the Court granted Plaintiff’s motion to compel further responses to Special Interrogatories numbers 5-7, 10, 31-38 and 61-67 and ordered Uber Defendants to serve further verified responses without objections. (Koppelman Decl., ¶ 3, Ex. A; 4/11/22 Order.) A review of Uber Defendants’ supplemental responses to Plaintiff’s Special Interrogatories served on May 2, 2022 shows that the preliminary statement includes objections. (Koppelman Decl., ¶ 4, Ex. B.) As Uber Defendants were ordered to serve further responses without objections, the inclusion of these objections is improper.

The Court notes that Plaintiff also indicates in the moving papers that Uber Defendants’ answers to Special Interrogatory numbers 7, 10, 31-34, and 65-67 are non-responsive and evasive. (Motion, p. 6: 1-2.) Plaintiff makes no mention of this in the reply. It is unclear whether Plaintiff is also contending the purported non-responsive and evasive answers are a violation of the April 11, 2022 court order. In any case, the Court notes that if the supplemental answers were still insufficient, Plaintiff should have brought another motion to compel further responses based on those answers being non-responsive and evasive rather than mention it in this motion. Even if it were proper to mention such answers in this motion, Plaintiff has not demonstrated how the answers are non-responsive and evasive.

Plaintiff indicates that, pursuant to the June 10, 2022 court order, Uber Defendants were ordered to serve verified further responses and documents by June 25, 2022, but failed to provide verifications until July 7, 2022. Plaintiff clarifies on reply that this motion is not based on Uber Defendants’ failure to provide timely verifications, but on Uber Defendants’ disingenuous reasons for being unable to procure the verifications and requesting an extension to do so. (Reply, p. 8, fn. 8.) Plaintiff provides that Uber Defendants asked Plaintiff for an extension to provide verifications because the person responsible to execute the verifications, Ms. Chow, was apparently on sabbatical until July 7, 2022; that Plaintiff granted the extension; and that the verifications provided were executed by a different person named Megan Robledo Jensen. (Id., p. 8: 15-20.) Plaintiff indicates that a Google search reflects Ms. Chow currently works for Angie’s List and has not worked for Uber since December 2021. (Id., p. 8, fn. 7; Koppelman Suppl. Decl., ¶¶ 8-9, Exs. 8, 9.)

It is unclear why Uber Defendants requested the extension based on Ms. Chow being on sabbatical when it appears she no longer worked at Uber at the time. Given the lack of clarity, the Court cannot find that Uber Defendants’ reasons for requesting the extension were in fact disingenuous. Even if they were, Plaintiff has conceded that Uber Defendants served verifications prior to the filing of this motion. Uber Defendants thus cannot be said to have violated the May 2, 2022 court order, as modified by the June 10, 2022 court order, based on a failure to serve verified responses.

Plaintiff is correct that the June 10, 2022 court order specifically provided that the only objections that may be raised with respect to all requests for production of documents at issue are the attorney-client privilege and attorney work produce privilege. (6/10/22 Order; Opposition, La Vorgna Decl., ¶ 18, Ex. 7.) To this extent, Uber Defendants should not have produced redacted documents on grounds that they were protecting Davila’s privacy interests. However, the Court acknowledges Uber Defendants were being cautious in ensuring they had Davila’s authorization before releasing all information. In any case, all unredacted documents have now been produced. Under these circumstances, the Court cannot find a willful violation of the May 2, 2022/June 10, 2022 court order.

Plaintiff also indicates in his reply that Uber Defendants have failed to produce all responsive documents to Document Demand number 9, which required Uber Defendants to produce “any training program” that they have “ever created, offered, required, recommended, or suggested” to California Uber drivers. (Reply, p. 8: 3-12.) Uber Defendants’ counsel’s supplemental declaration indicates that Uber Defendants have responded and supplemented Document Demand number 9 with verified responses multiple times and that all responsive documentation has been produced. (La Vorgna Suppl. Decl., ¶ 8.)

It is unclear from Uber Defendants’ counsel’s supplemental declaration whether the responsive documents were produced after Plaintiff filed and served his reply, if Uber Defendants are contending all responsive documents had already been served as part of the supplemental responses and documents served prior to the filing of this motion, or even both. It is thus unclear whether Plaintiff is still contending Uber Defendants have failed to produce the training program materials that were created, offered, required, recommended, or suggested.

If it is still an issue, the Court orders Uber Defendants to state by Bates number, what documents are responsive to Document Request number 9. The Court notes that, based on Uber Defendants’ responses to Special Interrogatories, it appears Uber Defendants should have at least produced “CPUC-mandated documents and information.” (Koppelman Decl., ¶ 4, Ex. B, Supplemental Responses to Special Interrogatories, Supplemental Response to Special Interrogatory No. 7.)

Plaintiff asserts that it requested Uber’s source data/native GPS data related to this incident, which is responsive to Document Demand number 81, and that Uber has e-mailed the same Excel spreadsheet in excel format again, refusing and failing to produce native source data. Plaintiff provides that when the parties met and conferred over this issue, Plaintiff specifically identified the documents and information sought on May 11, 2022.

In opposition, Uber Defendants assert they have produced the GPS data in three formats, as well as a declaration from the GPS PMQ verifying that the information is a true representation of the data in the database. Uber Defendants further argue that no defendant is disputing the location of the accident or that the vehicle driven by Davila was not in the location of the accident at the time of the accident, rendering the GPS data irrelevant and not likely to lead to admissible evidence in this matter.

In reply, Plaintiff reiterates that Uber Defendants never produced the original native file of any GPS data because the document properties for the Excel file that Uber Defendants produced as created on June 24, 2022 at 1:52 p.m. and the document properties for the Comma Separated Value format (.csv) were altered or protected in a way that prevents Plaintiff from determining the date of creation. Plaintiff contends Uber Defendants failed to produce any GPS data in a way that enables Plaintiff to verify its authenticity as the original source material for the GPS data at issue in his case.

Whether Uber Defendants have complied with the Court’s order to produce further responses regarding the GPS data depends on what Plaintiff requested in his Request for Production of Documents. A review of Request for Production No. 81, the request to which Plaintiff asserts the GPS data is responsive, shows that Plaintiff requested “[e]ach and every DOCUMENT and/or WRITING which refers, reflects, memorializes, or otherwise evidences GPS data from Defendant Isidro Davila’s vehicle related to this INCIDENT.” (Koppelman Decl. in Support of Motion to Compel Defendants’ Further Responses without Objection to Plaintiff’s Document Demands filed 3/25/22, ¶ 2, Ex. A, Plaintiff Garcia’s Demand for Production of Documents, Set One, Request for Production (“RPD”) No. 81.) Plaintiff’s Request for Production of Documents defined “DOCUMENT(S)” or “WRITING(S)” to include, without limitation, the following:

[A]ll written materials such as letters, memoranda, reports, studies, minutes, diary entries (including calendar entries indicating dates and participants to any meetings), all drafts; two writings of any kind; tapes; computer discs, CD Rom, CD-R, CD-RW, DVD, microfilm, microfiche, raster bitmaps, magneto optical (MO) disks, electronic images and associated indexing data, Write Once Read Many (WORM) laser disks; or any other form of photographically or electronically, digitally, magnetically impulse, or otherwise recorded or represented information, image or document storage, including but not limited to word processor document resource information (e.g. MS Word, Corel WordPerfect “properties” tabs) drafts and redlined versions of documents, compound documents (e.g. documents where the image is one file and the text is in another); e-mail and voice-mail archives; e-mail and voice-mail messages and back ups; databases; document management databases; Internet service provider’s records, including user account information and identification of firewalls, caches and cookies; network router traffic indicia; world wide web pages, including HTML, XML, SGML, XGML, VRML, Adobe Acrobat, Corel Envoy, MIF, RTF, EPS, prepress formats. Additionally, ‘document’ or ‘documents’ shall specifically include transcripts of testimony, depositions, depositions de bene esse, or otherwise distinguished evidentiary testimony, in any recorded form; notes or records of telephone conversations, conferences or other oral communications and appointment records, time records, ledgers, journals, financial or accounting records, personnel records, annual reports, trial balances, work papers, schedules, photographs, videos, recordings, charts, graphs, transcriptions, tapes, discs, printouts, and other electronic data processing materials.

The Court finds Plaintiff’s RPD No. 81 does not specifically request native GPS data. To this extent, the Court cannot find Uber Defendants failed to comply with the court order by failing to produce native GPS data. Uber Defendants have produced GPS data in excel, .csv, and pdf formats, along with a declaration from its GPS PMQ attesting to the accuracy of the GPS/speed data as being representative of the electronic records kept, created, and stored by Uber’s systems in the regular course of business. (Opposition, La Vorgna Decl., ¶ 21, Exs. 12, 13.) This is sufficient.

Plaintiff takes issue with being unable to verify the authenticity of the GPS data as the original source material for the GPS data at issue in this case, relying on the document properties for the excel and .csv files as support. As discussed, Plaintiff’s RPD does not specifically ask for native or original source material. Plaintiff has also not demonstrated that the original source material, as opposed to documents accurately reflecting the GPS data, is in fact pertinent in this action when there is no evidence Uber Defendants have altered the GPS data provided to Plaintiff. Uber Defendants have provided a declaration from their GPS PMQ attesting to the accuracy of the data provided. The Court notes that Plaintiff is also deposing Uber Defendants’ GPS PMQ and any such questions as to accuracy of the data provided could be brought up at the deposition.

Plaintiff also asserts Uber Defendants have not produced documents reflecting the following information: (1) the schema of all data columns/source tables that the Uber App tracks; (2) the query/sequel search terms Uber used to get the data reflected on the PDF; (3) the log files during the period of 11:00 p.m. 2/22/20 through 1:00 a.m. 2/23/20; and (4) all documents that reflect how the data is generated during the Driver’s trip, moves to the database, and then is ultimately converted in the form of a PDF. A review of Plaintiff’s May 11, 2022 email setting forth this information shows that provision of this information and documents was an option Uber Defendants could have taken to satisfy Plaintiff’s purported request for native GPS data. (Koppelman Decl.,, ¶ 13, Ex. H.) This information and documents were not specifically requested under RPD No. 81. Uber Defendants were thus not required to produce this information and documents to be compliant with the court order.

Plaintiff argues Uber Defendants have failed to provide a code-compliant privilege log that is consistent with CCP section 2031.240 and the Court’s June 10, 2022 court order. Plaintiff argues that Uber Defendants’ privilege log fails to identify each document to which Uber Defendants are asserting privileges and, while it appears the privilege log applies to RPD numbers 78 and 81, fails to identify which document description applies to the demanded category. Plaintiff asserts these failures make it impossible for Plaintiff to challenge the assertion of either privilege.

In opposition, Uber Defendants assert the privilege log complies with the Court’s order and the purpose of the privilege log as it is classified by request to RPD numbers 78 and 81 and provides a description of the types of documents such that Plaintiff and the Court should be able to determine the applicability of the attorney-client privilege and work product privilege. Uber Defendants contend it is not necessary to itemize hundreds of communications between client and counsel when the privilege log provides sufficient information to evaluate the merits of the asserted privilege.

Uber Defendants’ counsel’s supplemental declaration filed on August 2, 2022 provides that “[a] privilege log was produced with the following: demand numbers at issue for entries, the range dates of communications between counsel and client, recipient of communication, custodian, and privilege asserted.” (La Vorgna Suppl. Decl., ¶ 5a.) Uber Defendants’ counsel further provides that they misunderstood the order if the Court intended for the June 10, 2022 order to mean for Uber Defendants to itemize every single communication with the client and requests direction from the Court on whether their interpretation is inaccurate. (Id., ¶ 5c.)

CCP section 2031.240(c)(1) provides that, “[i]f 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.” (Code Civ. Proc., § 2031.240(c)(1).) “‘’ The purpose of a ‘privilege log’ is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. [Citation.] The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege.’’” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125 (quoting Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-89).)

A review of the privilege log served by Uber Defendants as part of their supplemental responses shows that the privilege log indicates it is as to RPD numbers 78 and 81 and only provides a broad description of communications between Uber Defendants and Progressive Insurance; communications between Progressive Insurance and counsel; communications between Uber Defendants and counsel; Uber Defendants’ litigation file; Progressive Insurance’s litigation file; and communications between Uber Defendants’ personnel and a range of dates. (Koppelman Decl., ¶ 10, Ex. F.) There are no descriptions regarding what each subject of the communications was about and no identifying information as to what documents are in the litigation files. Without more specific descriptions, neither the Court nor Plaintiff can determine whether the attorney-client or attorney work product privileges apply to each of the communications or documents in the litigation files.

As stated in Catalina, a privilege log should include: (1) the identity and capacity of all individuals who authored, sent or received each allegedly privileged document, the document’s date, a brief description of the document’s contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. (242 Cal.App.4th 1116 at 1130.)

Additionally, as pointed out by Plaintiff, the June 10, 2022 order specifically provided that the privilege log must be organized by request number and must provide document by document information. (6/10/22 Order.) Uber Defendants have only provided broad categories of communications and files. Uber Defendants have not provided document by document information. The privilege log is also not organized by request number. Rather, Uber Defendants only generally identify the privilege log as being applicable to RPD numbers 78 and 81. The privilege log is thus not compliant with the June 10, 2022 court order.

Because it appears Uber Defendants misunderstood what needed to be included in the privilege log, the Court will allow another opportunity for Uber Defendants to provide a privilege log in compliance with the June 10, 2022 order. Uber Defendants must itemize each communication and file on a document by document basis, indicate which request the communication or document is responsive to, and provide more specific descriptions of the subject matter of each communication and document. The description provided must be sufficient to allow both Plaintiff and the Court to determine whether the attorney-client and/or work product privileges apply to the item. To the extent any of the communications are email chains regarding the same topic, Uber Defendants may provide one description for that particular email chain with the specific dates of the emails within the chain. In short, the Uber Defendants should provide the information required by Catalina.

Plaintiff contends Uber Defendants have continued to shield its GPS PMQ deposition in defiance of the Court’s orders. Plaintiff provides that, at the hearing on Uber Defendants’ motion for protective order on June 1, 2022, the Court ordered the parties to meet and confer about the setting of the PMQ deposition dates and indicated the June 3, 2022 hearing on the motion to continue trial would also be a status conference on setting deposition dates for Uber’s PMQ witnesses. Plaintiff states that the parties met and conferred and, during the June 3, 2022 court appearance, Uber Defendants’ counsel represented that the parties had agreed on two dates at the end of July for PMQ depositions. According to Plaintiff, Plaintiff continued the hearing on the motion to compel PMQ deposition to October 5, 2022 after the parties agreed to a stipulation that Plaintiff could advance the hearing on the motion to compel PMQ in the event of a dispute related to the PMQ. Plaintiff indicates that, on June 29, 2022, Uber Defendants’ counsel advised Plaintiff’s counsel that Uber Defendants never confirmed a date for its GPS PMQ and that the GPS PMQ would be present for deposition on July 26th or July 27th. Plaintiff provides Uber Defendants then demanded Plaintiff take the GPS PMQ on July 14th, a date on which Plaintiff was unavailable.

In opposition, Uber Defendants assert that the June 1, 2022 order only referred to the deposition of one PMQ and not the additional deposition of a GPS PMQ, which Plaintiff did not explicitly request at the June 1, 2022 hearing and did not mention until June 29, 2022. Uber Defendants argue they have made every effort to accommodate Plaintiff’s request to depose a GPS PMQ, including offering the PMQ for deposition on July 14, 2022. Uber Defendants further argue it is premature to claim a violation of the order when the depositions had yet to take place.

In reply, Plaintiff asserts that the Court ordered the parties to meet and confer on setting deposition dates for Uber’s PMQ witnesses. Plaintiff argues Uber Defendants have also failed to produce all responsive documents at the PMQ deposition on July 27, 2022 and produced a PMQ deponent unable to verify documents identified and/or produced for the deposition and unable to answer questions relevant to certain designated categories.

The Court notes that, after reviewing the transcripts from the June 1, 2022 and June 3, 2022 hearings and the communications between the parties, it appears there was a misunderstanding on Uber Defendants’ part regarding the depositions the parties were ordered to meet and confer over. (Koppelman Decl., ¶¶ 15-20, 23, Exs. I, J, K, L, M, N.) It appears Plaintiff and the Court were contemplating deposition dates for Uber Defendants’ PMQs responsive to all categories Plaintiff was seeking PMQ depositions for that the Court allowed in ruling on Uber Defendants’ motion for protective order, while Uber Defendants appear to have been only discussing availability for their PMQ for categories besides the GPS PMQ. (Id.) It is unclear why Uber Defendants were only focused on the PMQ for other categories and failed to also consider dates for the GPS PMQ. Uber Defendants claim Plaintiff only mentioned the GPS PMQ on June 29, 2022. However, according to the June 1, 2022 court order on Uber Defendants’ motion for protective order, Uber Defendants agreed to produce a PMQ for category 41 on GPS data. (6/1/22 Order; Opposition, La Vorgna Decl., ¶ 14, Ex. 6.) Based on this, Uber Defendants should have known that the discussion regarding PMQ deposition dates would necessarily include discussion of deposition dates for the GPS PMQ even when Plaintiff did not specifically bring up the GPS PMQ during the parties’ meet and confer over dates of availability. Despite what Uber Defendants should have known, it appears Uber Defendants’ representation of July 26th and July 27th as dates of availability were only meant to include dates for their PMQ in non-GPS categories. To this extent, it does not appear Uber Defendants were engaged in gamesmanship regarding deposition dates for the GPS PMQ.

The foregoing discussion shows that while Uber Defendants initially failed to comply with the court orders by producing redacted documents without verifications, Uber Defendants have since corrected those issues and produced verified unredacted documents. Uber Defendants’ production of GPS data is also sufficient and they did not willfully violate any orders with respect to deposition dates for their PMQs. While Uber Defendants are not in compliance regarding the April 11, 2022 order to serve further responses to Special Interrogatories without objections and June 10, 2022 order regarding the privilege log, the Court finds that terminating sanctions are not appropriate at this time when the failures to comply appear to be based on inadvertent errors and misunderstandings rather than willful violations.

The Court also finds the request for the Court to cause Defendants to admit complete liability for causing the collision at issue and be prohibited from introducing evidence to dispute liability in causing the collision is not appropriate at this time, given the Court is ordering Uber Defendants to serve an amended response and privilege log in compliance with the orders. Additionally, a sanctions order cannot go further than is necessary to accomplish the purpose of discovery. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Plaintiff has not demonstrated that the proposed sanction is proportional to Uber Defendants’ failure to serve supplemental responses to Special Interrogatories without objections and failure to produce a privilege log in compliance with the June 10, 2022 order. Plaintiff has also failed to file a separate statement with respect to these requested issue and evidentiary sanctions. (Cal. Rules of Court, rule 3.1345(a)(7).)

While terminating sanctions and the proposed issue and evidence sanctions are not appropriate, the Court finds that additional monetary sanctions are appropriate as Uber Defendants are not in full compliance with the court orders, which resulted in Plaintiff having to file this motion. Plaintiff requests sanctions in the amount of $5,000. The Court finds this request is reasonable. The Court imposes monetary sanctions in the amount of $5,000 against Uber Defendants and their counsel of record.