Judge: John C. Gastelum, Case: 20-01125066, Date: 2022-07-26 Tentative Ruling
(1-2) Motion to Compel Depsotiion (Oral or Written) (3-4) Motion to Compel Production
Tentative Ruling: (1) Defendants Getac, Inc. and Getac Technology Corporation’s (“Defendants”) move to compel Plaintiff Scott Shainman (“Plaintiff”) to answer certain unanswered questions at deposition, as well as for monetary sanctions.
Code of Civil Procedure section 2025.480(a) provides: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”
Defendants moves to compel answers to 12 questions. Plaintiff’s counsel instructed Plaintiff not to answer Questions 1-11 based on an assertion of attorney-client privilege, and Question 12 based on an assertion of third-party privacy.
Questions 3, 4, 6, 7, and 8
Plaintiff’s “Errata Sheet” served on February 1, 2022, withdraws the privilege objections as to the above five questions at issue and provides answers to those questions. (Declaration of James A. Unger ¶¶ 11, 12; Ex. C.)
Defendants argue written responses are insufficient to remedy an improper refusal to answer questions at a deposition.
Plaintiff argues that Code of Civil Procedure section 2025.520(b) allows him to “change the form or substance of the answer to a question” within the deposition transcript in an Errata Sheet, such that the Motion is moot.
Responses to Question Nos. 3 and 4 were revised to “no” on Plaintiff’s Errata Sheet. Responses to Question Nos. 7 and 8 were revised to “[o]n or about December 28, 2019” and “[o]n or about November 5, 2020,” respectively. These revised responses also answer Question 6 substantively.
Defendants’ Motion does not only seek to compel Plaintiff’s responses to the stated unanswered questions, but also seeks leave to ask follow up questions, which they were unable to ask at the deposition because Plaintiff refused to answer. Therefore, the Motion is GRANTED to allow Defendants to ask follow up questions related to Plaintiff’s responses to Questions 3, 4, 6, 7, and 8.
Questions 1, 2, 5
Defendants contend the number of attorneys Plaintiff consulted, the identity of such attorneys, and the dates of consultation are relevant to Plaintiff’s bias and credibility as a witness and his motivations for filing this lawsuit.
Plaintiff contends that Questions 1, 2, and 5 are not relevant to the subject matter of this action which has nothing to do with any workplace conduct he engaged in prior to his termination and are not relevant to any other legitimate issue in this litigation, and that the questions are not reasonably calculated to lead to the discovery of admissible evidence because any lawyer Plaintiff consulted with cannot be subpoenaed or called to testify for any reason as the lawyer is not a witness to any relevant topic and prohibited from testifying due to attorney-client privilege and work product considerations.
Plaintiff was instructed not to answer these questions on the basis of privilege and relevancy. “[I]rrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.) As the party asserting a privilege, it is Plaintiff’s burden to establish that the matter objected to is privileged. (San Diego Professional Ass’n v. Superior Court of San Diego County (1962) 58 Cal.2d 194, 199.) Plaintiff has made no showing in support of his claim that these questions seek privileged information. Thus, the objections to these questions are improper and Plaintiff should provide further answers.
Therefore, the Motion is GRANTED as to Questions 1, 2, and 5.
Questions 9, 10, 11
These questions ask Plaintiff how his counsel knew that Panasonic wanted to take his deposition, whether his counsel has met or spoken with a Panasonic representative since his last deposition, and how Panasonic’s counsel obtained his counsel’s name and address.
Plaintiff contends that the answer to Question 9 is protected from disclosure by the attorney-client privilege, the attorney work-product doctrine based upon the context of the question and is irrelevant to the subject matter of this action, is not admissible, and is not reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff makes the same contentions as to Questions 10 and 11, but also contends these questions seek confidential attorney-client privileged communications because they seek Plaintiff’s knowledge of his attorneys’ activities.
The Court agrees with Plaintiff. Each of these three questions seeks information that Plaintiff would most likely have learned from his counsel, if he has any knowledge at all in response. They seek information on what Plaintiff’s counsel knew and how. Defendants contend these questions seek testimony regarding communications between Plaintiff or his counsel and a third party. However, the questions as phrased are not limited to communications with third parties. Therefore, the Motion is DENIED as to Questions 9, 10, and 11.
Question 12
As to Question 12, which asked for a rough estimate of Plaintiff’s wife’s salary, Plaintiff objected that this question invades the rights to privacy of Plaintiff and his wife, a third party to the lawsuit.
Plaintiff cites no authority in support of his claim of third-party privacy. This is not a request for financial records, bank statements, or similar financial information. Any intrusion into privacy by Plaintiff’s answer would be slight. Therefore, the Motion is GRANTED as to Question 12.
Both parties request monetary sanctions against each other. As the Motion is GRANTED, in part, and DENIED, in part, no sanctions will be awarded.
Defendants to give notice.
(2) Plaintiff Scott Shainman (“Plaintiff”) moves to compel Third Party Panasonic Corporation of North America’s (“Panasonic”) compliance with Plaintiff’s Deposition Subpoena for the Production of Business Records. The proof of service attached to the motion provides that Getac’s counsel, the Custodian of Records for Panasonic c/o CT Corporation System, and the attorney for Panasonic, Kenneth Parker at Haynes & Boone were served with the motion by electronic transmission via DDS LEGAL. (ROA 238.)
“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (California Rules of Court, Rule 3.1346.)
There is no indication the instant notice of motion and all moving papers were personally served on Panasonic, or that Panasonic agreed to accept service by electronic service at an address.
Therefore, the Motion is CONTINUED to 11-8-2022, at 2:00 p.m. in Department C11. Plaintiff is ordered to file a proof of service showing the Motion was personally served on Panasonic in accordance with the California Rules of Court. If no proof of service is filed at least nine court days before the continued hearing date, the Motion will be taken off calendar.
Plaintiff to give notice.
(3-4) Plaintiff Scott Shainman (“Plaintiff”) has filed two Motions to Compel seeking the following: (1) an order compelling Defendant Getac, Inc.’s (“Getac”) further responses to Requests for Production (“RFPs”) Sets One and Two through a supplemental privilege log and further production, as well as monetary sanctions in the amount of $13,810.00; and (2) an order compelling Defendant Getac Technology Corporation’s (“GTC”) further responses to RFPs Set One and service of a privilege log, as well as monetary sanctions in the amount of $10,510.00.
(3) Motion to Compel Further as to Getac (ROA 233)
Any motion to compel further responses requests for production must be accompanied by a meet and confer declaration demonstrating a good faith attempt to reach an informal resolution. (Code Civ. Proc., § 2031.310(b)(2).)
Plaintiff sent a meet and confer letter regarding Defendant’s claims of privilege on February 15, 2022. (Declaration of Geoffrey C. Chackel, ¶ 36.) On February 18, 2022, Getac served the third privilege log. (Id., ¶ 38.) On March 18, 2022, Getac sent a meet and confer letter addressing the contents of the privilege logs and stating Getac would not be revising its privilege log in certain respects. (Id., Ex. 17.) The letter states that Getac would be willing to confer regarding certain issues if Plaintiff had any remaining questions or concerns. Though it appears that the parties did not meet and confer further after the March 18 letter, the parties engaged in numerous meet and confer efforts between the time the first privilege log and third privilege log were served. Thus, the Court finds that the meet and confer requirement has been satisfied.
Plaintiff contends Item Nos. 3, 5, and 11 identified on the May 12, 2021 privilege log served by Getac (“First Privilege Log”) were deleted from the privilege log served on February 18, 2022 (“Third Privilege Log”). Getac’s counsel states that those disputed items are, in fact, included on the Third Privilege Log. (Declaration of Cheryl A. Sabnis, ¶ 3.) Because the format of the First Privilege Log and Third Privilege Log is slightly different (the former having been prepared by Getac’s prior counsel), it is understandable that Plaintiff may have mistakenly believed Item Nos. 3, 5, and 11 were deleted.
Plaintiff contends the Third Privilege Log is insufficient for several reasons. First, he argues it is lacking because it does not identify to which request for production each privileged document relates or is responsive. Plaintiff cites to Code of Civil Procedure section 2031.240(b), which provides:
“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:
(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”
Nothing in section 2031.240(b) requires a privilege log to identify each request for production to which the withheld document relates, as Plaintiff contends. Thus, the Motion is DENIED as to this issue.
Second, Plaintiff argues the Third Privilege Log fails to identify the corporate capacity of all senders and recipients. He states that, while some names are recognizable to him, many are not. “In general, [] a privilege log typically should provide 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 and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted.” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130.) Defendant identified all legal personnel with a “Legal” parenthetical after their names. However, many of the names have no “Legal” parenthetical and there is no further information on the corporate capacity of those individuals. Thus, the Court finds that a further privilege log should be produced that identifies the capacity of all individuals included on the privileged communications. The Motion is therefore GRANTED as to this issue.
Plaintiff’s next contention that the Third Privilege Log does not identify each participant’s role as a sender, primary recipient, “CC” or “BCC” recipient is false. The Third Privilege Log identifies each sender and recipient of all communications, along with each individual who was added by “CC” or “BCC,” if any. (See generally Exhibit 15.) Thus, the Motion is DENIED as to this issue.
Lastly, Plaintiff contends the Third Privilege Log does not provide sufficient information regarding the nature, purpose, or extent of communications to determine if the claimed privilege is valid.
A review of the Items disputed in the Motion show that the Third Privilege Log adequately describes each communication being withheld. For example, Item No. 6 is an email from Rowina Lee to legal personnel, with three other legal personnel copied. The description reads: “Privileged and confidential communications reflecting legal analysis, advice, and strategy of in-house and outside counsel regarding compliance issues.” Item No. 15 is described as “Privileged and confidential communications reflecting legal advice of in-house counsel regarding federal regulatory issues.” Descriptions of the other disputed Items are similar. These descriptions satisfy the requirement of “a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies[.]” (Catalina, 242 Cal.App.4th at p. 1130.) Thus, the Motion is DENIED as to this issue.
As for Plaintiff’s contention that Getac should be compelled to produce redacted portions of the withheld documents so Plaintiff may evaluate whether the attorney-client privilege applies and/or has been waived, Plaintiff cites no authority in support, and the Court is not aware of any authority that would compel such production. Catalina is instructive. In Catalina, the trial court ordered the petitioners to produce 167 emails identified on their privilege log because the information in the log was insufficient. The appellate court held that the trial court exceeded its authority by ordering production of the emails. Instead, the trial court should have ordered the petitioners to provide a supplemental privilege log. (Id., at pp. 1129-1130.) This demonstrates that determinations of the attorney-client privilege should be made based on the privilege log and, where such determinations cannot be made, a supplemental privilege log should be ordered, rather than any document production. The Motion is therefore DENIED as to Plaintiff’s request for further production.
Both parties request monetary sanctions against each other. As the Motion is GRANTED, in part, and DENIED, in part, no sanctions will be awarded.
(4) Motion to Compel Further as to GTC (ROA 247)
The parties met and conferred by telephone on 3/28/22 regarding GTC’s discovery responses. GTC agreed to provide further responses to certain requests, but not the RFPs at issue in this Motion. (Declaration of Geoffrey C. Chackel, ¶ 11.) The Court finds that the meet and confer requirement has been satisfied.
RFP Nos. 17, 19-23, and 44
These RFPs seek all documents that constitute or evidence annual “Scorecards,” annual sales revenue, Profit and Loss Statements, sales reports, balance sheets, net profits, and annual sales budgets or annual sales quotas for each “GRO” managed by Rick Hwang from 2015 through 2020, 2022, or the present.
The RFPs define “GRO” as follows: “any wholly-owned, or partially owned, subsidiary of GTC (either direct or indirectly subsidiary) that functions as a sales arm of GTC in a particular geographic region and/or is considered a “Getac regional office” that was overseen by Rick Hwang . . . .”
As GTC points out, Plaintiff’s reliance on case law regarding “comparative evidence” is misplaced. That case law relates to claims under FEHA and Title VII discrimination cases. Here, Plaintiff makes no allegations that he was discriminated against based on race or any other protected class. Moreover, Plaintiff’s argument that these documents could show that Plaintiff was fired under the pretext of poor job performance is unpersuasive. It is not clear where GTC’s other GROs operate but given that Getac is the United States arm of GTC, the other GROs must operate outside of the country in different market conditions. GTC states its other subsidiaries operate in other parts of the world and are much smaller than Getac, which accounts for over 50% of GTC’s global revenue. Thus, evidence of the performance and sales of these other GROs, for which Plaintiff never worked, are not relevant here. The Motion is DENIED as to RFP Nos. 17, 19-23, and 44.
RFP Nos. 37-39
These RFPs seek documents evidencing the date GTC shipped product to AT&T in 2020, reasons for any delays in shipment, and the date the revenue for the sale to AT&T was recognized.
Plaintiff claims he finalized this sale and should have been given credit for it, but credit was given to Mike McMahon. Plaintiff argues the requested documents support Plaintiff’s claims that Mr. Hwang ignored Plaintiff’s achievements and created a pretext of poor performance for his termination. GTC opposes production, arguing Plaintiff admitted at his deposition that Mr. McMahon was the point person for the AT&T bid. However, the fact that Mr. McMahon was the point person for the bid does not negate Plaintiff’s assertion that he should have been awarded the revenue for the sale, as GTC does not provide further details into the responsibilities of a point person. It could be true that Mr. McMahon was the point person but that Plaintiff, as President at the time, was still the main driving force behind the sale. And, if it is true that Plaintiff should have been rewarded revenue of the sale and did not, that would corroborate Plaintiff’s claims that his positive performance went unnoticed or ignored by his supervisor or that his firing for poor performance was done under pretext. Thus, further responses should be compelled as to these requests. The Motion is therefore GRANTED as to RFP Nos. 37-39.
RFP No. 42
This request seeks GTC’s annual reports from 2013 to 2020, which Plaintiff argues are relevant to determining GTC’s financial performance during Plaintiff’s employment and Plaintiff’s unpaid wage claim for GTC stock. However, Plaintiff never worked for GTC. He worked for GTC’s subsidiary, Getac. Thus, the annual reports of GTC are not relevant here.
Further, Plaintiff’s argument regarding unpaid GTC stock is unavailing. The Complaint alleges Plaintiff was promised compensation of Getac stock, not GTC stock. Thus, GTC’s annual reports are irrelevant to Plaintiff’s unpaid stock claims. The Motion is therefore DENIED as to RFP No. 42.
RFP Nos. 50-53
Lastly, these RFPs seek communications between Mr. Hwang, Joe Akrotirianakis, and Chris Campbell, that mention either Plaintiff or Mr. McMahon from June 1, 2019 to December 31, 2019. Akrotirianakis and Campbell are attorneys with Defendants’ counsel’s law firm. Plaintiff believes Mr. Hwang communicated with Getac’s attorneys about Plaintiff’s refusal to testify and his termination and argues these communications will show the true motivation and intent with regard to Plaintiff’s termination. Plaintiff concedes that these communications are subject to the attorney-client privilege but states he will challenge whether the privilege applies under potential exceptions.
These requests seek communications that mention Plaintiff or Mr. McMahon “for any reason.” Aside from seeking communications that would undeniably be protected under the attorney-client privilege, they are also overbroad and not reasonably tailored to seek information relevant to Plaintiff’s claims. Thus, the Motion is DENIED as to RFPs 50-53.
Both parties request monetary sanctions against each other. As the Motion is GRANTED, in part, and DENIED, in part, no sanctions will be awarded.
Plaintiff to give notice.