Judge Lisa R. Jaskol, Case Number: 21STCV40339, Date: 2023-08-24 Tentative Ruling

Having considered the moving, opposing and reply papers, the Court rules as follows.

On November 2, 2021, Plaintiff Amanda Worley (“Plaintiff”) filed this action against Defendant Kobi Vaknin (“Defendant”) for sexual battery and trespass.

On June 26, 2023, Defendant filed a motion to compel production of documents and supplemental testimony of third-party Harlee Dickerson to be heard on August 24, 2023. The Court continued the hearing on the motion to September 14, 2023. On August 11, 2023, Plaintiff filed an opposition. On September 7, 2023, Defendant filed a reply.

Defendant requests that the Court order third-party Harlee Dickerson (“Dickerson”) to produce all documents requested in Defendant’s notice of deposition and subpoena and appear for a supplemental deposition. Defendant also requests that the Court impose $4,873.75 in sanctions on Plaintiff.

Plaintiff requests that the Court deny the motion and impose sanctions on Defendant.

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records. (Code Civ. Proc., § 2020.010.) A deposition subpoena may command the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) The Court may order a third party to comply with a deposition subpoena upon any terms or condition that the court declares. (Code Civ. Proc., § 1987.1.)

“(a) 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.

“(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

“(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.

“(h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.

“(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.

“(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 an answer or production, 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.

“(l) (1) Notwithstanding subdivisions (j) and (k), absent exceptional circumstances, the court shall not impose sanctions on a deponent or any attorney of a deponent for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.”

California Rules of Court, rule 3.1346, provides: “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.”

Code of Civil Procedure section 2023.030, subdivision (a), provides that “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.” Code of Civil Procedure section 2023.010, subdivision (d), provides that misuse of the discovery process includes “making . . . unsuccessfully and without substantial justification, a motion to compel or to limit discovery.”

On May 30, 2023, Dickerson appeared for her deposition. She did not produce documents in response to the deposition subpoena’s document request. She stated that she had not checked her iCloud or Instagram for responsive documents and she agreed that her search for responsive materials was not completed. She stated that she had replaced a phone which could have contained responsive materials. In addition, as instructed by Plaintiff’s counsel, Dickerson refused to provide copies of her email correspondence with Plaintiff’s counsel. Dickerson said Plaintiff's counsel represented her.

Defendant argues that Plaintiff and Dickerson have waived any objections to the document request by failing to serve objections before the deposition. Defendant also disputes the existence of an attorney-client relationship between Dickerson and Plaintiff’s counsel. Defendant asks the Court to order Dickerson to (1) search for and produce documents responsive to the document request, (2) produce copies of her communications with Plaintiff’s counsel, and (3) attend a second day of her deposition and respond to questions related to the documents. Defendant also asks the Court to impose sanctions of $4,873.75 on Plaintiff and Plaintiff’s counsel for misuse of the discovery process.

In response, Plaintiff argues (1) the motion is unnecessary because the parties had already agreed that Dickerson would attend a second deposition and Dickerson said she would continue to look for responsive documents, (2) Defendant did not file a separate statement as required by California Rules of Court, rule 3.1345,^{^[1]} (3) Defendant failed to personally serve Dickerson as required by California Rules of Court, rule 3.1346.

Defendant asserts that he complied with rule 3.1346 because Plaintiff’s counsel accepted service of the deposition notice on Dickerson’s behalf after Dickerson said she did not receive it. Then, during the deposition, when Dickerson was asked for her current address, she responded: “I could provide that at a later date; but as of now, I was going to opt out in providing any personal information.” Defendant’s counsel explained that he needed Dickerson’s address to serve a subpoena on her, but if Plaintiff’s counsel agreed to produce Dickerson then Defendant’s counsel did not need the address. Plaintiff’s counsel confirmed that “we will produce Miss Dickerson, if necessary, in the future so she doesn’t need to provide her current address.” The Court finds that these facts show that Dickerson “agree[d] to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” (Cal. Rules of Court, rule 3.1346.) Therefore, Defendant properly served the motion on Dickerson.

The Court concludes that Defendant’s motion is premature. The Court denies the motion without prejudice to give Defendant an opportunity to work with Plaintiff and Dickerson to (1) follow up on Dickerson’s agreement to search for documents responsive to the deposition subpoena and (2) schedule a second session of Dickerson’s deposition. With respect to the assertion of attorney-client privilege, the Court is not persuaded, on this record, that the attorney-client relationship between Dickerson and Plaintiff’s counsel is fraudulent or improper as Plaintiff suggests. If Defendant chooses to raise this issue in a subsequent motion, the Court expects to see a legal analysis supporting Defendant’s argument that the Court may disregard Dickerson’s statement that Plaintiff’s counsel represents her. The Court denies both parties’ requests for sanctions.

The Court DENIES without prejudice Defendant Kobi Vaknin’s motion to compel production of documents and supplemental testimony of third-party Harlee Dickerson.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.

[1] As Defendant notes, however, “[a] separate statement is not required . . . (1) [w]hen no response has been provided to the request for discovery . . . .” (Cal. Rules of Court, rule 3.1345(b)(1).)