Judge: Joseph Lipner, Case: 22STCV29253, Date: 2024-01-16 Tentative Ruling

Case Number: 22STCV29253    Hearing Date: April 16, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant All California Title and Escrow Company (“Defendant”) moves for an order compelling Plaintiff Ebony Elaine Moss (“Plaintiff”) to permit forensic inspection of electronic devices in her possession, custody, or control since July 8, 2021 and have been used to access certain email accounts. The specific discovery items at issue are Request for Production Nos. 7-10.

The Court GRANTS Defendant’s motion. Plaintiff shall make the laptop available within ten days of this order.  Defendant may instruct the third-party to conduct searches limited to the search terms proposed by Defendant on March 29, 2024. 

The Court DENIES Defendant’s request for sanctions.

Background

Plaintiff filed this action on September 8, 2022 against Defendant, her former employer, alleging (1) discrimination under FEHA; (2) retaliation under FEHA; (3) failure to prevent discrimination, harassment, and retaliation; and (4) wrongful termination.

On October 26, 2023, Defendant answered and filed a Cross-Complaint, raising cross-claims for (1) breach of fiduciary duty of loyalty; and (2) violation of Comprehensive Computer Data and Access Fraud Act.

On October 27, 2023, Defendant served discovery requests seeking, among other things, the inspection of Plaintiff’s devices in order to determine whether Plaintiff had forwarded any emails from Defendant’s computers to her own devices. A lengthy meet and confer process ensued.

On February 20, 2024, the parties attended an Informal Discovery Conference (“IDC”) with the Court. At the IDC, Plaintiff’s counsel agreed to produce Plaintiff’s devices for inspection by a neutral third party with computer forensics credentials. (Aina Decl. ¶ 6.) The parties dispute whether this agreement limited the third-party’s investigation to emails forwarded from Defendant’s electronic devices to Plaintiff’s electronic devices. Plaintiff’s counsel contends that the parties agreed to this limitation and opposes the motion on that basis. (Meyer Opposition Decl. ¶ 3.)

The parties met and conferred further, but reached an impasse.  Plaintiff argues that Plaintiff’s counsel demanded that Defendant’s counsel provide the specific search terms that would be provided to the third-party, and Defendant’s counsel refused to do so.  Defendant states in the reply brief that Defendant’s counsel proposed search terms (tracking Defendant’s prior document requests) on March 29, 2024, which was after the filing of this motion.  (Corpuz Decl., ¶ 4, Exhibit 12.)

Defendant filed this motion on March 5, 2024. Plaintiff’s counsel filed a declaration in opposition to the motion. Defendant filed a reply.

Legal Standard

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, 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 relate to the claim or defense of the party seeking discovery or of any other party to the action. (Code Civ. Proc. § 2017.010.)

“Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts. The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence.”  (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 148 [internal quotations and citations omitted].)

Requests for Production

“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.)

“(a) 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.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

            (3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with each 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 under Section 2016.040.

(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.

(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.

… (h) Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

(Code Civ. Proc., § 2031.310.)

            The burden is on the moving party to show both relevance to the subject matter and specific facts justifying discovery. (Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)  Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)

Discussion

            Plaintiff’s argument in opposition to the motion to compel is that Defendant refused to provide Plaintiff’s counsel with clear limitations on the searches that it would ask the third-party to conduct on Plaintiff’s devices. Plaintiff preserved this objection by raising a privacy objection to the initial discovery requests.

            Defendant is entitled to obtain discovery and has in fact proposed search terms.  Defendant may only instruct the third-party to conduct searches pursuant to those search terms. 

Sanctions

            The Court does not award sanctions because it finds that Plaintiff’s opposition is substantially justified. The Court has not issued a previous order on this discovery request. Although the use of a neutral-party to search Plaintiff’s devices is adequate to protect Plaintiff’s privacy, the search of a physical laptop does pose serious privacy issues that Plaintiff is entitled to protect.  The agreements at the IDC were not confirmed by any party with enough clarity or neutrality to document what specifically was agreed to.  The confirmations in Defendant’s post-IDC letters (Aina Decl. Exs. 4-6) were made in the context of already contentious discovery disputes and do not provide sufficient clarity.  Moreover, Defendant provided search terms only after it filed this motion.  For those reasons, the Court denies sanctions.