Judge Latrice A. G. Byrdsong, Case Number: 23STCP04428, Date: 2024-04-10 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STCP04428, Date: 2024-04-10 Tentative Ruling

Motion: Petition to Enforce Respondent Smith Emery Laboratories, Inc.’s Compliance with Subpoena for Production of Business Records

Tentative Ruling: Petitioner Clark/Lewis’s Petition to Enforce Respondent’s Compliance with Subpoena for Production of Business Records is GRANTED.

Respondent Smith Emery Laboratories, Inc. is ordered to produce documents responding to the Subpoena as discussed herein within twenty (20) days from notice of this Court’s Order.

On December 06, 2023, Petitioner Clark/Lewis, a Joint Venture (“Petitioner”) filed the instant Petition to Enforce Respondent’s Compliance with Subpoena for Production of Business Records against the Respondent Smith Emery Laboratories, Inc. (“Respondent”).

Petitioner moves the Court to issue an order compelling Respondent’s compliance with Petitioner’s deposition subpoena for production of Business records served on October 17, 2023, (“Subpoena”) under Code of Civil Procedure §§ 1987.1(a), 2020.030, and 2020.410. Petitioner asserts that Respondent has failed to produce documents responsive to the Subpoena. Petitioner argues that the Subpoena seeks critical information directly relevant to the multi-billion-dollar Washington State Convention Center addition project, including the offshore steel fabrication performed in China, shipment and transportation of steel, steel erection, quality assurance and quality control required by Smith Emery’s contract, and correspondence between Smith Emery and the litigants, or other third parties, related to the Convention Center project.

A deposition subpoena may command only the production of business records without attendance at a deposition from a nonparty. (Code Civ. Proc., § 2020.020, subd. (b).) A deposition subpoena that requires only the production of documents “shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item…” (Code Civ. Proc., § 2020.410, subd. (a).) A deposition subpoena for the production of business documents need not be accompanied by an affidavit of good cause and must be directed at the custodian of records or other person qualified to certify those documents. (Code Civ. Proc., § 2020.410, subd. (c).) The responding party must comply with a deposition subpoena on a date that is no earlier than 20 days after the issuance or 15 days after service of the subpoena, whichever is later. (Id.)

A deposition subpoena is enforceable under Code of Civil Procedure section 1987.1. (Code Civ. Proc., § 2020.030.) After notice and opportunity to be heard, the Court may issue an order quashing the subpoena entirely, modifying it, or directing compliance with it upon terms and conditions as the Court may declare. (Code Civ. Proc., § 1987.1, subd. (a).) Courts also have the authority to protect the responding person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (Id.)

A nonparty’s failure to comply with a deposition subpoena may be punished for contempt under Chapter 7 (commencing with Section 2023.010) and may be subject to the forfeiture and payment of damages set forth in Section 1992. (Code Civ. Proc., § 2020.240.)

The petition arises from an out of state breach of contract litigation between the Petitioner and its structural steel subcontractor American Bridge Company (“American Bridge”). (Pet. p. 3:7-11.) Petitioner alleges that Respondent was subcontracted by American Bridge to perform inspections and quality control on the fabricated steel for the Project and possess business records and communications relevant to its quality assurance and quality control obligations. (Id. p. 4:9-11.) Petitioner asserts that to “gather critical evidence relevant to the offshore steel fabrication performed in China, shipment and transportation, steel erection, quality assurance, quality control, and related correspondence, [Petitioner] served [Respondent]with a subpoena for the production of business records on October 17, 2023.” (Id. p. 3:13-16.)

Petitioner provides the declaration of its counsel who states that on June 21, 2023, Petitioner subpoenaed the Respondent for business records under the jurisdiction of the Los Angeles County Superior Court (“June Subpoena”). (Gillian Kuhlmann Decl. ¶ 2; Exh. 1.) Petitioner’s subpoena demanded the production of business records related to the project which Respondent performed inspections and quality control of steel that American Bridge fabricated in China and transported to the Project for erection.[1] (Id.)

Counsel declares that out of an abundance of caution, in noting an inadvertent error in the production date noted on the June Subpoena, and to demonstrate Petitioner’s commitment to informally working through the dispute with Respondent, Petitioner issued a new subpoena for the production of business records on October 17, 2023 (“Subpoena”). (Id. ¶ 5; Exh. 4.) The Subpoena listed a production date of November 10, 2023, at 12 p.m. (Id. Exh. 5.) Counsel avers that the production deadline passed with no acknowledgement from the Respondent. (Id. ¶ 5.) Counsel states that he “again wrote to Smith Emery demanding immediate production in order to avoid enforcement proceedings” after the production deadline had passed with no acknowledgement from Respondent. (Id. ¶ 6; Exh. 5.) After counsel sent the email, Joe Kingston of Smith Emery called counsel to discuss the Subpoena to which Mr. Kingston represented that he had forgotten to send the links to Respondent’s production and would send those emails along that day. Mr. Kingston forwarded counsel two emails on November 10 with links to download Respondent’s production. Mr. Kingston additionally sent a third email stating that “‘[m]any of the items requested do not apply to Smith Emery Laboratories, Inc. and the requested items would be better suited to obtained from American Bridge . . . .’” (Id. ¶¶ 7-9; Exh. 8.). Counsel declares that after reviewing Respondent’s production, counsel and his colleagues determined that the production was still missing critical categories of documents.[2] (Id.¶ 10.) Petitioner’s counsel subsequently responded to Mr. Kingston’s email explaining that Respondent’s latest production remained incomplete and reminding Respondent that “‘the fact that another party may possess the requested documents does not relieve Smith Emery of its legal obligation to comply with the subpoena and produce all documents in its custody responsive to the document requests.’” (Id.; Exh. 8)

Counsel later states that on November 17, 2023, he would receive a telephone call from Siobhan Ruck in regard to supplementing Respondent’s production. (Id. 11.) Counsel swears that Ms. Ruck represented that Respondent’s production of responsive emails was forthcoming, and that after the call, Ms. Ruck emailed a supplemental production that included additional responsive documents with certain previously unproduced Project records. (Id.; Exh. 9.) However, Respondent’s November 17 supplemental production did not include Smith Emery’s email correspondence related to the Project. (Id. ¶ 12.) Counsel called Ms. Ruck to follow up on the remaining outstanding Project records. On that call, Ms. Ruck did not provide a date certain by which production would be completed but did follow up via email the next morning on the status of each document request in the Subpoena. (Id.; Exh. 8.) Counsel declares that after reviewing Respondent’s email production, counsel and his colleagues discovered that Respondent had only produced documents that contained the search term “Josh Ishibashi.” (Id. ¶ 14; Exh 8.) Counsel called Ms. Ruck on December 01, 2023, to discuss the deficient email production and followed that telephone call with an email expressing Petitioner’s concerns. Counsel avers that Respondent did not respond to his December 01 email regarding its insufficient production of responsive emails. (Id. ¶¶ 14-15.)

Petitioner argues that the Subpoena is likely to lead to the discovery of relevant evidence because it concerns the offshore steel fabrication performed in China, shipment and transportation, steel erection, quality assurance, quality control, and related correspondence, issues that are all directly relevant to American Bridge’s performance of its subcontract with the Petitioner. (Pet. p. 8: 2-6.) Petitioner further argues that Mr. Ishibashi’s email correspondence is deficient because it is unlikely to capture the numerous categories of responsive documents as Mr. Ishibashi is unlikely to be on every record or communication related to the $2 billion Project spanning more than 6 years. Petitioner asserts that Respondent’s incomplete responses does not meet its obligation under CCP §§ 2020.410(c) and 2020.430 because despite being given multiple accommodations, it has failed to produce responsive records or served objections to the Subpoena.

The Court finds good cause in compelling the production of the requested documents. Here Petitioner provides evidence that the requested documents will lead to discovery of relevant evidence related to Petitioner’s active litigation for breach of contract against American Bridge. Specifically, the requested documents seek the productions that are relevant to American Bridge’s performance under the contract. Moreover, based on the moving papers, Respondent’s responses to date do not fully comply with the Subpoena and Respondent has not indicated any objections to producing all the relevant documents requested. Thus, the Court GRANTS Petitioner’s Petition to Enforce Respondent’s Compliance with Subpoena for Production of Business Records.

Petitioner Clark Lewis’s Petition to Enforce Respondent’s Compliance with Subpoena for Production of Business Records is GRANTED. Respondent Smith Emery Laboratories, Inc. is ordered to produce documents responding to the Subpoena as discussed herein within twenty (20) days from notice of this Court’s Order.

[1] Petitioner’s counsel explains that the Respondent did provide production to the June Subpoena but upon inspection Petitioner noted that Respondent did not provide all of the documents requested. Counsel further states that both he and his colleague sent several follow up emails seeking specific documents that were not provided in Respondent’s production but received no response from the Respondent. (Kuhlmann Decl. ¶¶ 2-4; Exhs. 2,3.)

[2] Counsel avers that the missing documents included, “Smith Emery’s email correspondence (both externally with American Bridge and internally among Smith Emery’s personnel) and certain categories of Project records” (Id. ¶ 10.)