Judge: Mark H. Epstein, Case: 21SMCV01883, Date: 2022-12-08 Tentative Ruling

Case Number: 21SMCV01883    Hearing Date: December 8, 2022    Dept: R

This motion has had a long history.  It began with discovery propounded in January 2022.  Initial responses were eventually served, but plaintiff concluded that the responses were inadequate.  What ensued was a series of promises by defendant to provide supplemental responses and deadlines by which defendant agreed  to provide them, which deadlines were missed again and again.  Plaintiff ultimately brought a motion to compel, but the court did not believe that the meet and confer process was adequate under the circumstances so the matter was continued.  The court extended the 45 day period to move to compel so that an additional 45 days from the hearing were given with the understanding that if new responses were provided the 45 day clock would (of course) re-start.  That led to more promises and eventually an IDC at which time an agreement was reached.  That was on October 28, 2022.  The time to bring the motion apparently still was set to expire on November 14, 2022.  However, further responses were not quickly forthcoming.  Plaintiff told defendant that it would have to bring its motion if it did not receive further responses, but still no responses were served.  Plaintiff brought the instant motion on November 8, 2022.  At 8:30 pm on Friday, November 11, 2022 (a holiday), defendant finally served supplemental responses.  Defendant then opposed the instant motion, attacking plaintiff for not waiting longer before bringing the instant motion and not withdrawing it but rather insisting on monetary sanctions.  Defendant seeks monetary sanctions of its own. 

The court has to agree with plaintiff here that defendant’s conduct was not proper, although the court attributes this more to a lack of attention and poor delegation than to ill intent.  The effect, though, is that defendant gave itself a nine month unilateral extension.  This was in part due to defendant’s delegation practice.  At least until recently, defendant had a tendency to have someone at the meet and confer who (at least according to plaintiff) did not have the authority to make a substantive binding commitment.  That is poor delegation, as it undercuts the meet and confer process and extends the time to resolve discovery disputes. 

Finally, defendant hardly gets points for waiting until the Friday night before the Monday motion deadline to submit its supplemental responses—which had been first promised.  It would have been reckless for plaintiff to have relied on defendant’s promises by that point and therefore it had to incur the expense of preparing the instant motion because had the supplemental responses not been forthcoming plaintiff would not have been able to draft and file the motion in time.  (That is especially true given the amount of discovery involved.)  Defendant could have mitigated somewhat, perhaps, by offering to continue the deadline by two weeks and agreeing to carry the load to get the extra time from the court and agreeing to some form of sanction if that deadline were missed, but no such offer was made.)  Given the history of the case and the fast-approaching filing deadline, plaintiff was well within its rights to prepare and file the motion a few days before the deadline. 

While the motion is MOOT as to the merits, plaintiff is right that sanctions remain at issue.  (In the prior motion to compel, the court held the sanctions aspect in abeyance.)  Plaintiff seeks $18,903.50 in sanctions (the amount requested in the moving papers).  Given the fact that this discovery has gone through two motions and an IDC, the request is reasonable.  Sanctions are GRANTED in the amount of $18,903.50 are awarded against defendants and their counsel, jointly and severally.  This would be an excellent opportunity for the parties to meet and confer on the sanctions issue to see if there is a way to avoid a formal sanctioning order.  The court does notes that the amount set forth in the motion is considerably less than plaintiff seeks by the time of the reply.  Needless to say (but the court will say it anyway), defendant’s motion for sanctions is DENIED. 

To allow the parties to attempt to resolve the sanctions issue informally, the court will hold its ruling for a week.  If the court receives word from plaintiff that the motion has been resolved prior to that time (which the court assumes means that money will actually have changed hands), the court will deem the motion moot entirely and the order involving sanctions will not issue.  Unless the court receives such a statement, though, the order will issue a week from today.  If the order issues, sanctions are be paid no later than January 7, 2023. 

Plaintiff claims that even the supplemental responses are inadequate.  The court does not know.  But defendant would be well advised to meet and confer, address any legitimate issues that arise, and provide supplemental responses very quickly (and keep to any deadlines to which it agrees).  On the other hand, defendant is under no obligation to do more than the Code requires or that it has previously agreed to do.