Judge: Mark H. Epstein, Case: 21SMCV01029, Date: 2023-12-15 Tentative Ruling

Case Number: 21SMCV01029    Hearing Date: December 15, 2023    Dept: I

This is a motion to compel further responses to certain requests for production.  The requests were propounded by defendant Cyberline, which brings the motion.  Cross-defendant Safady opposes.

Initially, the court agrees with Cyberline that it has justified the requests for production.  The question, then, is whether the responses are code-compliant.  There are four requests at issue.  RFP 1 asks for documents relating to “efforts by [Safady] to SOLICIT investments in CYBERLINE.”  RFP 2 seeks communications with any “PERSON [Safady] SOLICTED to invest in CYBERLINE regarding a potential or actual investment in CYBERLINE.”  RFP 3 seeks documents relating to efforts by Safady “to recommend that any PERSON invest in CYBERLINE.”  RFP 4 seeks communications relating to Cyberline “with any person to whom [Safady] recommended investing in CYBERLINE.”

The response to each is the same.  “Objection.  Responding Party did not ask for or try to obtain something from any person in connection with Cyberline.  Subject to and without waiving the foregoing objection, Responding party states: After a diligent search and reasonable inquiry was made, Responding Party cannot comply with this Request because responsive documents do not exist.”  Safady did not supplement this response following the meet and confer.  (There is some debate about whether Safady had agreed to supplement.  Cyberline says he did agree to supplement, Safady says he only agreed that he “may” supplement.)

Whether or not there was an agreement to supplement, the court looks to the response as given in light of the fact that all agree no supplement has been provided.  Cyberline contends that part of the problem is that Safady is using a cramped definition of “SOLICIT,” a term that is only used in two of the four requests.  But the court does not see it that way.  Safady states that he never tried to obtain “something from any person in connection with Cyberline.”  Whether that means a solicitation of money or a recommendation for an investment, either way it means Safady never tried to get anyone to participate with Cyberline.  That said, though, this is oddly worded.  Further, the substantive statement is in the form of an objection.  But that makes no sense.  It is not an objection; it is a substantive statement.  The concern is that by phrasing it as an objection, Safady is not signing on to it under penalty of perjury.  The court is also a bit worried because Safady does not parrot the language in the RFP.  The RFP uses the defined term “SOLICIT” or “recommend” in the context of investing in Cyberline.  If Safady recommended that someone invest in Cyberline, that would be responsive, whether Safady views that as an effort to “ask for or try to obtain something from any person.”  Given the level of distrust here, the court understands why Cyberline would like the responses to be clean and leave no wiggle room.  Similarly, Cyberline states that it has an actual document where Safady did try to solicit someone to invest in Cyberline (among other entities).  Plainly, Cyberline plans to use the sworn verified response that there are no responsive documents in conjunction with the document that Cyberline claims is responsive to impeach Safady—and the impeachment could be effective.  Cyberline is entitled to do that, and Safady is not entitled to use odd language and objections to try and defeat the impeachment.  (Alternatively, Safady may have a good explanation for the document or, on reflection, Safady might change the answer.)

The bottom line is that Safady needs to respond (with verification) without objection to the request as the request is phrased.  Safady will have 15 days to do so and, if the response leads to the need to produce documents, the documents will be produced at the same time.  As such, the motion is GRANTED.  That said, because the court cannot be sure that this is truly an effort to dodge the discovery as opposed to a debate as to how many angels can dance on the head of a pin, the court believes that there was substantial enough justification to oppose the motion.  The request for sanctions is DENIED.