Judge: Mark H. Epstein, Case: 20SMCV01331, Date: 2023-01-09 Tentative Ruling
Case Number: 20SMCV01331 Hearing Date: January 9, 2023 Dept: R
The motion to appoint a referee is DENIED.
Plaintiff sues defendants claiming an unpaid debt. What ought to be a relatively straightforward case has spawned a number of discovery motions and disputes, and, as a result, plaintiff asks for the appointment of a discovery referee, the costs of which are to be borne equally (at least in the first instance). Defendants oppose, claiming that they cannot afford a referee and that the discovery disputes are essentially being manufactured by plaintiff anyway. (The court gathers that defendants would not oppose a referee if the cost were borne by plaintiff and not subject to reallocation.)
Code of Civil Procedure section 639 allows the court to appoint a discovery referee, but only where there are “exceptional circumstances requiring the reference.” Unlike federal courts—where discovery motions are routinely heard by magistrates rather than by federal judges—the Legislature determined that discovery motions should not be sent out to referees as a matter of routine, but rather only in the rare case where it is necessary—at least over objection.
The court begins by agreeing with defendants that the motion is untimely in that insufficient notice was given. However, defendants were able to file an opposition and thus denial on that basis seems a waste of time. Plaintiffs will just refile and the matter will be heard at a later date. No purpose is served by denying on that basis.
Turning, then, to the merits, plaintiff claims that defendants’ actions in discovery have been the cause of the discovery motions (one of which is set for tomorrow) and that the court’s resources are better spent elsewhere. Maybe, maybe not. The real problem is that the court has not seen a showing of exceptional circumstances here. While the court is well aware that both sides have claimed unhappiness with the other side, the court is still of the view that a modicum of cooperation ought to solve the problem. For example, the debate over the deposition could likely have been solved by reasonable counsel acting reasonably. (The debate was over certain issues related to COVID protections.) There is another dispute concerning ESI. Plaintiff asserts that she went to a third party to obtain pertinent emails and the like (her copy of which had been lost when a computer was stolen) and was able to obtain those documents. Plaintiff’s counsel states that those documents were turned over to defendants in exactly the same manner as they were received. Thus, plaintiff made no effort to sort through the material or state what part of the production might apply to what discovery requests. Defendants assert that they cannot open the file and that it is a data dump. As to whether it is a data dump, it is not really pertinent to this particular motion. As to whether the file can be opened, in this day and age the court just does not believe that the parties, working together, cannot solve this problem. Plaintiff obviously has the software to open the files; it is beyond belief that the software is proprietary to plaintiff. It must be some kind of software available for purchase or download. It is hard to believe that defendants cannot download the program and open the file. And if that does not work, a discovery referee won’t solve the problem—that is a job for some kind of IT expert working with plaintiff’s IT person.
The real problem here is that counsel seem unwilling to meet and confer in a meaningful way. The court has warned the parties about this and has even set forth its guidelines on meeting and conferring. That requires an in person (or at least virtual) meeting between the right people—those who have the authority to resolve the issue. It requires a discussion that is meaningful and a desire to reach a resolution rather than a desire to make the other side understand the purported bankruptcy of its position. The requirement is not satisfied by throwing emails and letters at one another and declaring impasse.
While the parties’ behavior thus far is troubling, it is not the sort of thing that the Legislature had in mind in terms of imposing a discovery referee over a party’s objection. Sadly, if this continues, the court will need to take action. Eventually, the court will figure out which party is the one being unreasonable. That party may find it difficult to prevail on any motion that requires the court to exercise discretion based on the court’s confidence in counsel’s assertions. And if that behavior continues, the failure to meet and confer in good faith is itself a reason to deny or grant a motion to compel. (In terms of granting, the court would still, of course, need to look at the discovery to determine it is appropriate; but in an all-or-nothing scenario, the party forcing the issue often comes out the worse.)
The take home message is that the request is DENIED. However, the parties ought to commit to themselves and their clients that they will engage in a good faith, professional practice of meeting and conferring to resolve differences. This case is not one that ought to generate the kind of heat that is being generated here on the discovery front. A good start would be to resolve the matter set for tomorrow without a hearing.