Judge: Mark H. Epstein, Case: 20SMCV00596, Date: 2023-02-15 Tentative Ruling

The Court generally uploads tentative rulings the morning of the hearing.  Because of that, the parties cannot submit on the tentative the night before and not appear.  However, if after reviewing the tentative ruling ALL COUNSEL submit, they should tell the Court's judicial assistant when checking in and the Court will endeavor to either not hear the case in light of the submission or, if the Court believes that a hearing is still needed for some other reason, then the Court will be inclined to give priority.

In some cases, tentative rulings may be given by email the morning of the hearing rather than on the tentative ruling site.  Please check your email if you have not seen the tentative.  The email is generally sent to the persons who have signed up for a remote hearing.

For those appearing in the courtroom, the Court will provide a hard copy of the tentative ruling. 

Case Number: 20SMCV00596    Hearing Date: February 15, 2023    Dept: R

The court is not sure about what more, if anything, is required for items 1 and 3.  Defendants state that they have provided full responses and turned over all responsive documents and that nothing was withheld as to category 1.  As to category 3, defendants state that there are no documents to turn over because no such documents ever existed.  The Bleifer declaration is not properly verified, but the court assumes that this problem has been solved or will be solved in the immediate future.  In its January 11, 2023 order, the court had, as guidance, suggested that a motion to compel further to require proper verification and to confirm that no information was withheld based on the objections would have been appropriate and the court hoped that the parties would, instead, simply get that done.  Defendants later confirmed that no information had been withheld on the basis of any objection as to these categories.  However, plaintiff states that although defendants claim to have produced documents responsive to category 1, they in fact have not done so.  The court is at a loss on this.  Plaintiff, one would think, would say as much to defendants.  Defendants, one would think, would respond by listing the bates numbers or other identifying information as to the documents already provided.  It seems impossible in this day and age that we are debating whether or not documents have been produced.  It might be, though, that the log attached to the document response is the extent of the production and somehow plaintiff does not know that.  If so, he ought to ask before filing these papers and further he ought to be more careful about claiming that nothing was produced if something was.  As to category 3, if there are no documents, then there are no documents.  Defendants have stated none have ever existed and have confirmed that no documents are being withheld on the basis of any of their objections.  That is all they need do.  For clarity, however, defendants must verify their statement that nothing is being withheld.  Without a verified statement to that effect, Virk cannot effectively hold a witness to account if the statement is false.

Category 2 are the bank accounts.  The court had earlier told the parties to meet and confer on this.  Plaintiff has not made a showing that it is entitled to the bank records as set forth in its demand.  Bank records have an aspect of privacy protection and there will be a lot of information in those records that pertains to non-parties.  Plaintiff states that the records will show collusion with the Pisnoy-Dobrin family.  However, the defense says that it asked plaintiff to explain exactly how the bank records will or even could lead to the discovery of admissible evidence in this respect but plaintiff never attempted to do so.  The fact is that the court is having some trouble seeing the discoverability of these documents as well, and the burden is on plaintiff to establish good cause for production.  If there is good cause, then the court will consider ordering some sort of production, but we are a ways away from that at this time.  More troubling is the meet and confer.  Plaintiff stated that defendants ignored his meet and confer efforts.  Defendants attached 3 emails they sent responding to plaintiff’s request and explaining that they felt that written exchanges were better than oral ones so that there was no dispute as to what was said.  Plaintiff did not attach any of those emails to his motion.  Defendants attached the metadata showing that the documents were in fact delivered (although not that they were opened).  Before plaintiff makes accusations that there were no responses, he needs to be sure that he is correct.  His failure to do so does warrant sanctions.  However, defendants’ failure to verify their confirmation that no information was withheld provides Virk with substantial justification for that aspect of his motion.  Accordingly, while sanctions are imposed, the court reduces them and limits them to category 2 only.  The amount of sanctions awarded is $1000 and it is payable within 30 days. 

The motion is DENIED WITHOUT PREJUDICE as to this category to allow the parties to meet and confer.  Plaintiff may renew his motion after meeting and conferring (and that may be done in writing) within 30 days.