Judge: Mark H. Epstein, Case: 20SMCV01766, Date: 2022-12-16 Tentative Ruling
Case Number: 20SMCV01766 Hearing Date: December 16, 2022 Dept: R
The motions to compel are both GRANTED. The motions are brought by KKE Brands against
plaintiffs. In one of the motions, KKE
Brands seeks to compel plaintiffs to produce the documents it had already
agreed to produce. According to KKE
Brands, the documents were promised to be produced by June 30, July 28, August
1, September 23, and then September 26.
But none were produced. New
counsel stated that documents would be produced by October 7, October 14, and
then November 4. But none were
produced. The motion was brought on
November 22, 2022. Plaintiffs contend
that the motion should be denied because KKE Brands did not meet and
confer. KKE Brands was under no
obligation to do so. Plaintiffs will
produce the promised documents no later than noon on December 22, 2022. Plaintiffs have suggested that the production
will be made by December 31, 2022. The
court frankly thinks plaintiffs have already given themselves a unilateral six
month extension; that is long enough.
The other motion also involves documents. Plaintiffs responded to the document request but failed to verify the responses. The court is not sure whether the verification was ever received. If not, it is to be sent by 3:00 pm today. If it is not received by then, the court will deem all objections waived other than privilege. Plaintiffs also unilaterally decided not to produce documents created after February 15, 2019. Plaintiffs’ theory is that they did nothing relevant to the case after that date. That, however, is not the test. First, it is not for plaintiffs to so decide; defendants are the masters of their defense. Second, even were that true, that does not prove that there were not documents created after that date that shed light on events before that date. Of course, if there are no responsive documents because nothing relevant happened after February 2019, then so be it. However, plaintiffs are not relieved of the obligation to produce what documents there might be. Plaintiffs also contend that every document after February 2019 is privileged. The court doubts that is true, but if it is, then plaintiffs need not produce the document; they are is free to log the document on a privilege log instead. Plaintiffs also claim undue burden, but the court does not believe that plaintiffs have made the required showing of burden to establish that objection.
The bottom line is that defendants’ position is well taken on both motions and the court has little trouble granting the motions.
The promised documents will be produced by noon on December 23, 2022. If the prior responses were not verified, the verification will be produced by 3:00 pm today and if not received, then all objections other than privilege will be deemed waived. Plaintiffs will provide further verified responses, without objection as to date, no later than December 23, 2022. The documents will be produced no later than January 6, 2023 at 5:00 pm. If any documents are withheld based on privilege, a log will be produced at that time. If (assuming a timely verification was provided regarding the original responses) plaintiffs have any objection unrelated to time (which means that any burden objection due to time is NOT to be asserted), and the objection was already made, it may be re-asserted. However, plaintiffs should take care to avoid boiler-plate objections. Further, plaintiffs must clearly set forth whether it is withholding any document based on the objection and, if so, must clearly state what is being produced and what is being withheld. All “general objections” (if any) are waived as they are improper.
For the parties’ guidance, the court appends its guidelines on discovery responses and the meet and confer process.
Defendant did not seek sanctions. That was a showing of good faith by the defense, which might well have received sanctions had it requested them. Plaintiff should take that as a courtesy given to plaintiffs.
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.