Judge: Mark H. Epstein, Case: 22SMCV00510, Date: 2023-09-13 Tentative Ruling

Case Number: 22SMCV00510    Hearing Date: March 29, 2024    Dept: I

The court will discuss this with the parties.  Obviously, defendants are right that if there are no further documents to produce then they cannot be ordered to produce them.  And if the reason is that no such additional documents ever existed, then there is not much more that can be done other than to assure that defendants complied with 2031.230.  But Guthrie suggests that such is not the case.  Guthrie attaches evidence that suggests that there are additional responsive documents that just have not been produced.  If that is the case, then the court needs to understand why Shiri declared under oath to the contrary.  The court is also puzzled by Shiri’s declaration stating that the project was self-financed when considered against the emails he sent discussing a financing cost.  The court understood “self financed” to mean that the money was coming from existing and available assets—not a loan (from anyone anywhere) or the like.  If that is the case it is hard to see how the statements in the emails could be true.  Similarly, Shiri stated that he was the only member of the entity, but there is an email where he says his brother owns half.  Of course, the emails are not under oath and it could well be that Shiri was just not being honest in them but he is being truthful now.  But the court will at least inquire.  To the extent that the opposition is based on the notion that the requests are beyond the proper scope of discovery, the court simply disagrees (to the extent that the objection was properly raised in the responses).

The court’s order will depend in part on Shiri’s answers to these questions.  The court also notes that plaintiff has the ability to take Shiri’s deposition in an effort to get to the bottom of at least some of this.  The court would not anticipate Shiri being able to assert the privilege with any credibility and the court doubts he would attempt to do so.  That means that he will give substantive answers and that might put this matter to bed. 

The court’s general inclination is to GRANT the motion but hold the issue of sanctions in abeyance.  If Shiri is confident that he has already complied fully, he can so state under oath.  If it turns out he is wrong, then a motion to compel compliance (for which there is no 45 day rule) can be brought and, if granted, sanctions beyond monetary would be on the table.  This would allow Guthrie to do proper discovery to dig deeper and to hear from an appropriate party whether there is an innocent explanation for the seeming problem.