Judge: Kenneth J. Medel, Case: 37-2021-00028563-CU-BT-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Business Tort Motion Hearing (Civil) 37-2021-00028563-CU-BT-CTL DIAKON LOGISTICS DELAWARE INC VS ARAM LOGISTICS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Subpoena, 02/09/2024

Non-Party, JEROME'S FURNITURE WAREHOUSE's Motion to Quash Deposition Subpoena is DENIED.

Discovery may be obtained from a nonparty through an oral deposition, a written deposition, or a deposition for the production of business records and things. (Code Civ. Proc., § 2020.010, subd. (a).) To pursue the deposition of a nonparty, a party must generally serve a deposition subpoena. (Id., § 2020.010, subd. (b).) 'A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.' (Id., § 2020.410, subd. (a).) Jerome's cites Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 218 in which the court held that a subpoena duces tecum at issue placed an unreasonable burden on the responding party by making what amounted to a '[g]eneralized demand[ ].' Calcor arose out of a contract between the defendant and the plaintiff for the plaintiff to manufacture gun mount systems. (Id. at p. 219.) The defendant claimed the gun mounts manufactured by the plaintiff did not meet the designated specifications, refused to accept the gun mounts, and contracted with a third party to supply them. (Ibid.) The plaintiff sued the defendant on various theories and in the course of the litigation served a third party with a subpoena duces tecum that included 32 requests for production of documents, 'expanded by 6 pages of 'definitions' and 'instructions.' ' (Id. at pp. 219–220.) The Court of Appeal concluded that the requests for production, '[a]lthough facially detailed and particularized' (id. at p. 220), in effect required the third party to produce everything in its possession which had anything to do with gun mounts for the previous 10 years (id. at p. 219, 61 Cal.Rptr.2d 567.) In addition, the definitions and instructions were 'particularly obnoxious' and turned each of the 32 requests 'into a complicated 'category' described in more than 6 pages.' (Id. at p. 223.) The problem noted in Calcor was the overbreadth of the categories requested or the failure to specifically describing each individual item or by reasonably particularizing each category of item. The holding of the case did not even turn on whether the subpoena was to a non-party or not. The issue is common to all deposition subpoenas for documents: records sought to be produced from non-parties or parties are required to be designated 'either by specifically describing each individual item or by reasonably particularizing each category of item.' (Compare CCP 2020.410(a) and CCP 2031, dealing with demands on parties.) Contrary to the position taken by Jerome's, there is no requirement in the Discovery Act that the party seeking discovery from a non-party show that the material cannot be obtained from a party. The question is whether the discovery sought is 'calculated to the discovery of admissible evidence', is sufficiently detailed and particularized and then whether any specific privileges apply or other legal barriers prevent discovery.

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3093309  37 CASE NUMBER: CASE TITLE:  DIAKON LOGISTICS DELAWARE INC VS ARAM LOGISTICS INC  37-2021-00028563-CU-BT-CTL Relevance The issues in this case relate to issues of conflict of interest and the treatment of confidential information in regard to Jerome's contractors Aram and Diakon. The Defendants are Aram (a contractor of Jerome's) and the two individuals who owned and managed Aram. The Plaintiff was also a Jerome's contractor during this time. The 'subject matter relevance' of the information sought is apparent. See CCP §2017.010.

Reasonable Particularity As summarized by the moving party, Diakon's January 24, 2024 amended subpoena requests documents from non-party Jerome's, including: 1. All documents that include 'scores' or 'assessments' regarding the 'quality of services' provided by third-party logistics companies ('3PLs') 2. All emails transmitted from or to any @jeromes.com email address to or from any @aramtransport.com email address, or the specific email addresses of srubio@aramlogistics.com and/or ahernandez@aramlogistics.com (See Document Category Nos. 2-6, 11-13.) 3. All documents made available to Independent Contractors and/or 3PLs considered to be 'confidential,' or as to which access was to be restricted in any way. (See Document Category No. 9.) 4. All documents stating any policies of (1) 'conflicts of interest', and (2) the manner in which furniture deliveries were assigned to any Independent Contractors and/or 3PLs (See Document Category Nos.

7-8, 10.) Unlike the broad generalized discovery at issue in the case of Calcor, these requests are sufficiently particular for production. Jerome's has not made a sufficient showing that the discovery sought is overly burdensome.

Privacy Corporations still may protect confidential information, but not information that they have chosen to willingly disclose as part of their business practices. See Amgen Inc. v. Calif. Correctional Health Care Servs. (2020) 47 Cal.App.5th 716, 734 ( 'self-evident ... that a trade secret must, in fact, be secret').

The subpoenaed 'policy' documents [Categories 7-10] are limited to the time period between Jan. 1, 2020 and Dec. 31, 2021 and require production only of the following: A) Documents stating Jerome's policies in effect regarding 'conflicts of interest' involving furniture delivery contractors of the same type as Aram and Diakon, or the ICC carriers hired by companies like Aram and Diakon. [Categories 7 and 8]; B) Documents which Jerome's published, posted, distributed, or made available to ICCs and/or 3PLs which describe documents or information Jerome's required to be treated as 'confidential,' or 'restricted access' information [Category 9]; C) Documents stating Jerome's policies regarding the manner in which furniture deliveries were, and/or were allowed to be, assigned to any ICCs and/or 3PLs. [Category 10].

These are ordinary business policy documents, stating rules relating to other companies working with Jerome's. There does not seem to be basis to conclude that they are confidential or 'private.' Diakon has only asked for documents reflecting such policies that Jerome's published to its third-party logistics contractors.

No Separate Statement Further, CRC 3.1345(a) requires a separate statement to 'to compel or to quash the production of documents or tangible things at a deposition.' No separate statement has been provided. This is significant because Jerome's has not been clear as to specific objections to the specific categories of documents sought.

Plaintiffs' Motion for Leave to Amend Complaint is GRANTED. Plaintiff is to file the First Amended Complaint within 5 days of this order.

Defendants' Motion for Leave to File Amended Answer is GRANTED. Defendants are to file the First Amended Answer within 5 days of this order.

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