Judge: Mark H. Epstein, Case: 20SMCV01331, Date: 2023-01-10 Tentative Ruling
Case Number: 20SMCV01331 Hearing Date: January 10, 2023 Dept: R
The court re-issues its thoughts delivered at the last
hearing for the parties’ reference.
The matter was continued last time to allow the parties to meet and confer (which the court did not believe had been done adequately before).
Below is the prior tentative, which the court withdrew at the end of the last hearing.
The motion to compel is GRANTED IN PART AND DENIED IN PART.
This is a case about the collection of an alleged debt. Plaintiff contends that defendants owe her money. Defendants contend that legally, they do not. At issue here is a motion to compel further responses to certain special interrogatories and requests for production brought by defendants.
Preliminarily, plaintiff contends that the meet and confer process was inadequate and she reiterates her request for a discovery referee. (Defendants have no objection to a referee, but they state that they do oppose paying for one or partially paying for one.) The Court agrees that the efforts here were substandard. Sending letters over the transom is generally not sufficient. (For the parties’ guidance, the Court appends its guidelines on discovery responses and meet and confer to this order.) At some point, there needs to be a face to face (in person or video) meeting between counsel on each side empowered to agree to the other side’s position then and there without the need for further permission. That is not to say that an agreement must be reached, but the practice of delegating the process to a more junior attorney who must take all proposals to a more senior attorney is a waste of everyone’s time. The Court believes that had the parties had a meaningful discussion about what defendant really needed and what plaintiff could really provide, there was a deal to be had. And defendant has been less than clear here. Even after reading the papers, the Court is not sure what defendants are demanding plaintiff do with regard to ESI. Sadly, this is par for the course. The parties and their counsel seem more interested in confrontation than resolution. The Court STRONGLY urges the parties to take a different tack and take it now. Fighting the good fight is necessary and appropriate on the merits and the Court expects no less. But the rules of discovery are hardly new and the guideposts are fairly well established. If the parties are interested in getting and providing what is needed rather than insisting on a position, there will be few further motions.
While the Court views the meet and confer as less than proper, little purpose would be served at this point in not discussing the motion. In the future, though, the failure of the propounding party to meet and confer adequately will likely lead to a denial of the motion to compel outright. The failure of the responding party to meet and confer adequately will mean that the Court infers that the responding party is standing on all of its positions and if any of those positions are unreasonable, the Court will be inclined to strike the position associated therewith, including any objections, and grant the motion, with sanctions if appropriate.
Turning, then, to the actual motions, and starting with documents. The parties debate whether a motion to compel further responses requires a separate statement. Plaintiff states that the instant motion is precisely that, and as such, a separate statement is required. Defendant contends (in reply) that this is really a motion to compel initial responses, which does not require a separate statement. The Court believes that this could also be a motion to compel compliance, which does not require a separate statement. (That would be, in its purest sense, a motion to compel a party to produce the documents that it said in its response that it would produce.) Defendants also contend that the responses and production do not specify which documents pertain to which requests and that the privilege log is inadequate. There also seems to be a complaint that defendant cannot open the zip file used to produce the documents.
As to the ability to open the zip file, the Court is nothing short of aghast that the parties cannot work this out. They need to do so and do so immediately if it is still an issue. Plaintiff needs to provide defendants with whatever information defendants need to know in order to open the zip file. If defendants still cannot open the file, then plaintiff should endeavor to produce them another way, such as unzipped.
Defendant also contends that the documents need to be produced in an organized manner. That kind of depends. The Code does require that the responding party identify which documents relate to which requests. But beyond that, the responding party need not organize the documents for the propounding party so long as they are produced in the format and manner in which they are regularly kept. However, even as to that, it somewhat depends. At one point, it appears from the papers like the parties might be talking about 500 documents. If so, the Court must really wonder why we are all spending time on this. True, the responding party still has a duty. But come on. Attorneys eat 500 documents before breakfast. If that is really all that is under discussion, it would seem to be a pretty easy task for defendant to just organize the documents. On the other hand, if there are 50,000 documents, the story is different. And if the documents were produced such that it is impossible to tell which documents go with which (for example, if there is no way to tell if a document is part of an email chain), that, too is different. On the other hand, on the other hand, if (as it appears may be the case) plaintiff got these documents from a third party and is simply producing them in the unvarnished way she got them, that might be sufficient. Defendant also accuses plaintiff of a data dump. Even if it is, where the total is 500 documents, the “dump” is more like a home office waste basket and it is hard to get too worked up about it. If there are 50,000 documents the vast bulk of which are not really responsive to anything, then defendant has more of a point. And the issue is murkier if plaintiff got the documents from a third party not within plaintiff’s control. Where that is the case, the production is more akin to a voluntary one, and the rules are different.
The data dump issue has another dimension. It appears that defendant worked out an agreement with prior counsel for plaintiff that plaintiff would use certain search terms to narrow the scope of the document request and then plaintiff’s counsel would review the documents returned by the search for responsiveness. That is completely appropriate. The use of search terms does not mean that all documents with the term are produced. Rather (absent agreement to the contrary) the terms limit the universe of potentially responsive documents to one that is not unduly burdensome. But the propounding party still has an obligation to go through the documents to determine which are responsive and which are not. That seems to have been the understanding with prior counsel, but current counsel for plaintiff seems unwilling to go through the documents.
As to the actual responses, then, the Court agrees that plaintiff must identify with specificity which documents are responsive to which requests. That is especially so because the requests here were fairly carefully crafted and not the blunderbuss requests so often seen.
As to the privilege log, it is not code compliant. Plaintiff must produce a compliant log. That means it must identify (through bates number) the document in question, identify the date it was created and communicated (or both if they are different), the author, each recipient (both initial and subsequent), the general subject matter (but not in such detail as to breach the privilege), and the privilege being asserted. In other words, the log itself must be sufficient to make out the prima facie basis for the privilege. If it does not, then the privilege will be deemed waived; the motion to compel is not the place to add a bunch of additional information to establish the privilege that was omitted from the log. (The information set forth above need not be provided to the extent that doing so would in essence waive the privilege, but that ought not be the case as a general proposition.)
The request for sanctions is DENIED. There was enough confusion here such that the Court cannot say that there was a lack of substantial justification, even though the motion is largely granted. The Court also does not believe that defendants fully exhausted the meet and confer process before bringing this motion. The Court appreciates plaintiff’s decision not to seek sanctions.
To recap. The Court views this as a motion to compel compliance with the prior responses, and as such, no separate statement is needed. The production is insufficient. Plaintiff will produce the documents in a format that defendant can open. Plaintiff will identify which documents are responsive to which requests. Plaintiff will not include in the production documents that are not responsive to any request. Plaintiff will produce a code-compliant log. Plaintiff will produce the documents in the same format in which plaintiff kept them or in which plaintiff received them if they were received from a third party for purposes of the format (Excel, Word, et cetera) including metadata. Plaintiff will do all of these things within 20 days of the date of this order and provide a verified statement that it has been completed.
As to the special interrogatories, the motion is GRANTED. Plaintiff’s responses refer to other interrogatory responses, which means that each answer is not full and complete. Further, in some cases, plaintiff refers to documents rather than respond. While that is appropriate in some cases, it is not appropriate in all cases here. Plaintiff will have 20 days from the date of this order to provide supplemental verified responses without objection other than privilege.
Defendants’ request for sanctions is DENIED. First, the meet and confer effort was not sufficient. Second, at least in some cases where reference was made to other discovery responses, there was substantial enough justification to believe that such responses were sufficient to avoid sanctions.
Discovery Responses
The Court provides the following
guidance concerning its general views on some common issues regarding responses
to written objections. The Court has noticed that many attorneys view
objections and the manner of making them in a way different than does the
Court. To avoid these common pitfalls, the Court offers the following.
First, “General
Objections” are not permitted. The Code of Civil Procedure does not
provide for them, and therefore they are disregarded by the Court. Any
response that “incorporates” the “General Objections” is improper by
definition.
Second, the Court often
views boilerplate objections as being in bad faith. A bad faith response
is no response at all in the Court’s view. Therefore, making boilerplate
objections does not preserve those objections nor does it constitute a good
faith response to written discovery. A bad faith response is viewed by
the Court for what it is: bad faith. The objections will be stricken and
deemed waived. In the context of a Request for Admission, such objections
may lead to a finding that the request is deemed admitted, although that will
depend on the facts of the particular case and the specific discovery at hand.
Objections should be tailored to
each specific request. If a request truly is overbroad, then an objection
to that effect is proper. But such an objection is best accompanied by
some reasonable limitation by the responding party that will narrow the request
appropriately and (as narrowed) provide a substantive response rather than a
mere statement that the request is overbroad. The same is true as to an
objection that a request is unduly burdensome. The Court also notes that
the party asserting that a request is unduly burdensome has the obligation at
some point to provide an evidentiary basis for the objection, including
evidence as to what the burden of compliance would be. (West Pico
Furniture Co. v. Superior Court (1961) 56 Cal.2d 407.) Often such an
objection will include a statement by the responding party as to a narrower
request that would not be unduly burdensome and provide substantive responses
as so limited. Objections that a request is “vague and ambiguous” must
set forth the vague and ambiguous term as well as the responding party’s
reasonable interpretation of that term as well as a statement that, so
interpreted, the response will provide the discovery requested. If there
is no reasonable interpretation possible (which is a rare situation), then the
responding party must so state. Objections as to privilege must set forth
the basis explaining why the information sought is in fact privileged.
Where a privilege is asserted in the context of a document request, a privilege
log must accompany the answer or be provided within a short and reasonable time
after the answer. Where the objection is made in the context of an
interrogatory, it must be clear from the objection the scope of the information
being withheld. If there is no log, there should be no privilege
objection to a document request (meaning that a prophylactic privilege
objection is the equivalent of no objection; it preserves nothing). There
are some rare exceptions, such as where the entire point of the discovery is to
get allegedly privileged information or where compliance would require a log
that is in essence an index of counsel’s file. In that situation, the log
is unnecessary, but the assertion should be made that the request is in that
rare context.
Third, if an objection is
made to the discovery but a response is being given, it must be clear whether
information or documents are in fact being withheld on the basis of the
objections. If the objections are clear and done in the manner set forth
above, with statements in the objection as to a narrowing that will make the
request proper, this is usually a simple task. The objections themselves
state the limit and the response will be full and complete as limited.
But where the objections are not so clear, the response must clearly state
whether any information or document is being withheld on the basis of the
objection and, if so, the extent of the withholding. Accordingly, in
those situations, phrases like “Notwithstanding and subject to the foregoing
objections, responding party states as follows” are improper. Those sorts
of phrases make the verification useless, as the verifier can always fall back
on the ”objections” as the reason why a document was not produced or
information was not disclosed. On the other hand, where the line of
demarcation is clear, the verification will still serve its purpose.
Fourth, for document
requests, the substantive response must conform to the Code. There are
relatively tight rules as to what the response must say, and the response must
say it. For example, where a responding party is not producing documents
because they are not in the party’s possession, custody, or control, the
responding party must verify that a diligent search has been made and must
further provide the information set forth in the Code of Civil Procedure in
such cases. In the case of interrogatories, the responses must also
conform to the Code of Civil Procedure and must be made after diligent
inquiry. It is not proper to refuse to respond because the responding
party has no personal knowledge. If the knowledge is hearsay, it must
still be disclosed, although it can be qualified to make it clear that it is
not based on the verifier’s personal knowledge.
Fifth, the Court frowns
on responses that do not conform to the foregoing rules being served with the
view that the responses will moot themselves out in the meet and confer
process. That is not how the process works. A good faith response
is required before the meet and confer process begins. The meet and confer
process will (hopefully) bridge the gaps between the parties’ respective
positions. Further, where a response to a request for documents is made
and documents are to be produced subject to certain objections (with the
documents withheld properly delineated), the documents should be turned over
irrespective of the meet and confer. The documents are to be produced
with alacrity to the extent that there is no objection to them.
What this means is that the
response to a discovery request is not a trivial undertaking. Nabbing the
response from the form file is a generally bad idea and can lead to all
objections being waived. The point is that the boilerplate often renders
the remainder of the response useless. The only exception is where it is
clear that the substantive response is not in any way limited by the
objections. In that case, the objections do no harm, although they also
do no good.
The
Code of Civil Procedure requires that before a motion to compel further
responses or a motion for a protective order is filed, the parties engage in a
good faith attempt to resolve their differences. They are to “meet and
confer” for that purpose. Only if that effort fails can a motion be
brought.
Sadly,
many litigants view the meet and confer process as just another procedural hoop
through which they must jump in order to bring the motion, similar to the need
to include an actual demurrer with the demurrer papers. The Code requires
it, so they do it, but no one’s heart is really in it. That is not
sufficient.
Given
that, the Court believes it appropriate to set forth how the Court views the
meet and confer requirement. Failure to abide by the guidelines below may
well justify denial of the motion or a continuance of it to allow the process
to take place. If one party but not the other refuses to participate as
set forth, more likely than not the party refusing to participate will find
itself on the losing end of the motion. The following quotation fairly
sums up the Court’s own view.
“[W]e feel compelled
to observe that resort to the courts easily could have been avoided here
had both parties actually taken to heart Justice Stone's
admonitions in Townsend that ‘the statute requires that there
be a serious effort at negotiation and informal resolution.’ (Townsend,
supra, 61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is
necessary to remind trial counsel and the bar once again that ‘[a]rgument is not the
same as informal negotiation’ (id at p. 1437); that attempting
informal resolution means more than the mere attempt by the discovery proponent
‘to persuade the objector of the error of his ways’ (id. at p.
1435); and that ‘a reasonable and good faith attempt at informal resolution
entails something more than bickering with [opposing] counsel.... Rather,
the law requires that counsel attempt to talk the matter over, compare their
views, consult, and deliberate.’ (Id. at p. 1439.)” (Clement v.
Alegre (2009) 177 Cal.App.4th 1277, 1294, emphasis in original,
parallel citations omitted.)
In practical terms, it
means as follows. It is entirely appropriate to begin the process with a
letter or other correspondence. The letter should not include a demand in
the form of an ultimatum, but it can certainly include the relief that is being
sought with an invitation to meet and confer. It is also entirely
appropriate for the other party to respond with a letter or other
correspondence to set forth its position on the issues. Such an initial
exchange can often be helpful to narrow the dispute. Whether further
exchanges make sense will depend on each case and each dispute.
However, at some point,
before impasse is reached the process must include an actual “meet.” The
letters might well suffice to “confer,” but an exchange of correspondence is
not a meeting. In the COVID-19 era, the “meeting” can be virtual or
telephonic, but a meeting there must be. The meeting must be attended by
a person from each side with the authority to agree to the other side’s
position without getting further permission from anyone, including the
client. If only the client can give the needed authority, then the client
must be available instantaneously at all times during the meeting. This
does not mean that one side or the other must concede, but it does mean that
the people meeting have the ability in real and practical terms to strike a
deal then and there.
The parties should
approach the meet and confer process as a problem-solving exercise. The
purpose of the meet and confer is not to convince the other side of the
bankruptcy of its position; rather the purpose is to reach an agreement by
which the party seeking discovery is able to obtain the information that it
reasonably needs and the party providing discovery is not put to an undue
burden or forced to provide unnecessary information that might infringe on a
privacy interest or disclose a competitive trade secret or the like.
At the conclusion of the
meet and confer, the parties should have an agreed statement as to the
outcome. If the outcome is a total impasse, then they should agree on
that. If they have resolved some or all of their differences, then they
should state—in writing—what that agreement is so that there will be no
confusion later. Often, an agreement will be without prejudice to a further
request by the propounding party for more information after that party receives
the responses.
If a motion is still
required, the declaration in support should describe with some detail the meet
and confer process. While the Court is not interested in the back and
forth, the Court is interested in when the meeting took place, who was there,
and how long it lasted.
All communications—in
writing or oral—must be civil, polite, and professional. Name-calling and
accusations are devices that undermine the process; they do not further
it. A party engaging in such activity generally is not acting in a good
faith effort to reach an agreement.