Judge: Mark H. Epstein, Case: 22SMCV00743, Date: 2024-01-25 Tentative Ruling

Case Number: 22SMCV00743    Hearing Date: February 16, 2024    Dept: I

This is here for discovery motions, this time filed by plaintiff.  The motion to compel further responses to the request to produce documents is NOT ON CALENDAR.  Apparently, the motion was never filed.  It might have been served, but the court does not have the moving papers.  Accordingly, the court will not address that motion.

That leaves the motions relating to the special interrogatories and form interrogatories.  There is an argument that the court lacks jurisdiction to hear those motions because they are untimely.  Such motions must be served within 45 days of receipt of the responses (plus additional time depending on the manner of service).  Here, Hamer served unverified responses on November 16, 2023.  That does not start the clock.  Unverified responses are the equivalent of no responses at all.  However, the verifications (or at least some of them) were served on November 22, 2023, and that did start the clock.  Hamer contends that the verifications were served by mail, and the court will take that as the case.  The motions were served on January 4, 2024, which is timely.  While they were not filed until January 25, 2024, which would be untimely, the statute speaks of service, not filing.  As such, the court views the motions to be timely.

Turning, then, to the merits, the court notes that the reply is untimely.  Given the serious accusations in the opposition, the court will consider it anyway.  Hamer’s counsel, though, seems to have a tendency to file late papers.  That ought to stop.  It is sloppy and potentially prejudicial to the client.

On the merits, the court tends to agree largely with plaintiff.  The responses to form interrogatories 4.1 and 4.2 (which concern insurance) are not proper.  The objections are invalid and without merit.  The same is true as to special interrogatories 6, 7, 9, 14, 18, and 19.  The court is troubled by this in that defendant has taken plaintiff to task for improper discovery responses many times in the past.  It is one thing to say that objections were well thought out but ultimately the court disagrees.  These are beyond that point.  True, in some cases the defense objects but provides some information (such as special interrogatory 9, which names the witnesses), but the responses are problematic in the sense that it is not clear whether any information is being withheld based on the objections and further the responses are not complete (such as special interrogatory 9, which fails to provide contact information for the witnesses, such as an address).  Plaintiff requests sanctions in the amount of $6120 plus filing fees of $120 for a total of $6240.  The court believes that the responses were without substantial justification and is inclined to GRANT the sanctions as requested against defendant and defense counsel.  The court is especially troubled because defense counsel has been unrelenting in its motions and sanctions request against plaintiffs—most of which the court has granted.  The court under those circumstances expected better of the defense.

Defendant contends, however, that the meet and confer was insufficient.  The court disagrees, at least at the beginning.  The initial responses were served on August 8, 2023.  After an oral meet and confer in September, further responses were served on November 16, 2023.  The problem is that the further responses were (according to plaintiff) no better.  At that point, it is not clear to the court that plaintiff had a further obligation.  Having gone through the meet and confer process only to receive responses that were not improved, it is not clear that more was necessary.  Having said that, to the extent that the court is mistaken as to the supplemental responses, the court will hear argument.  In other words, right now there are two form interrogatories and six special interrogatories at issue.  If prior to receiving the supplemental responses there were (and the court is making these numbers up) 10 form interrogatories and 20 special interrogatories at issue, then the court might feel differently.  At least it would give rise to the inference that meet and confers were working and another run should have been made.  Further, at least according to the reply, there are still no verifications as to four of the special interrogatories.  In any event, thereafter, plaintiff sought to meet and confer again.  Defendant contends that the request was vague and general and that no clarification was forthcoming, and defendant finds fault with that.

And that leads to what is potentially a very significant problem.  In the moving papers, plaintiffs attached a letter dated December 20, 2023, which the plaintiffs accurately describe as a detailed meet and confer letter.  It is nine pages.  If that letter was sent on December 20, 2023, and ignored by the defense, that would give rise to an adequate meet and confer attempt under any circumstances.  However, defendant contends that the December 20, 2023, letter was never sent; that the first time it was transmitted to the defense was in the motion to compel further, which was served on January 4, 2024.  Defendant then parses carefully the language in the Shiri declaration to suggest that it was artfully worded so as not to say it was sent on or about December 20, 2023, but rather just that it was sent (with no specification of date) and that it was dated December 20, 2023.  The Shiri declaration states “I served Defense Counsel with yet another meet and confer letter dated December 20, 2023, attached as exhibit F is a true and correct copy of this second ‘meet and confer’ attempt . . . .”  Defendant contrasts that language with other paragraphs in the declaration where, for example, Shiri states “On September 15, 2023, Plaintiff sent a lengthy ‘meet and confer’ letter . . . .”  The difference, defendant notes, is that in the other paragraphs, Shiri sets forth unambiguously the date the letter was sent, but with regard to the December 20, 2023, letter, he only says he “served” counsel with a letter “dated” December 20, 2023, but he does not say when service was made.  According to the defense, that is because the actual service was made with the motion, filed on January 4, 2024.  Frankly, the court views that as kind of far-fetched.  It is awfully careful parsing of language and the court doubts that Shiri intended the phrasing to avoid an actual statement that the letter was sent on or about its date.  Defendant goes further and submits declarations from counsel’s staff stating that they went through the firm’s electronic communication system and no such document was received.

In reply, the court expected Shiri to respond substantively; either to provide the electronic proof that the document was in fact sent on December 20, 2023, through the system’s metadata, or to explain that there was some kind of typographic error in the email address and that it was somehow sent but to the wrong address (thereby suggesting that the problem was accidental).  Of course, if sent to a bad address, usually the system sends a notification to that effect, so Shiri would have to explain that as well.  But the reply simply goes on the attack.  Shiri misses the point.  If what defense counsel is staying is true, then the court feels Shiri affirmatively misled the court.  It could be that (as defense counsel suggests) Shiri’s declaration is artfully worded such that it is not perjury; but whether or not that is the case it is inescapable that the court was meant to believe that the letter was sent on or about the date it was dated—December 20, 2023.  If that was not the case and Shiri knew it, the conduct was unethical, or at least the court would view it that way.  Shiri needs to address that before any ruling is actually made on this motion.  The court ORDERS Shiri to provide the metadata from his computer system showing information about the December 20, 2023 email, including that it was sent, the address of the recipient, when it was sent (data and time), when it was received, and when it was viewed.  That information will be filed today.  Upon receipt, the court will review it and decide what action, if any, is appropriate.  The court cannot overstate how important it believes this issue to be.  If the letter was in fact sent, then defendant will need to explain that fact.  If it was mis-addressed, Shiri will need to explain what happened when he received the notification to that effect, if he did.  If it was never sent, Shiri will need to explain why he believes it is ethical for him to file the declaration he filed in the moving papers.  These are serious accusations and the court takes them seriously.