Judge: Mark H. Epstein, Case: 23SMCV00743, Date: 2024-01-31 Tentative Ruling

Case Number: 23SMCV00743    Hearing Date: January 31, 2024    Dept: I

This is yet another in a seemingly never-ending series of discovery motions.  This one is brought by defendant to compel further responses to requests for production.  Plaintiff opposes on the ground that there was an inadequate meet and confer following the supplemental responses.

The motion to compel is GRANTED.  Defendant propounded a series of requests for production to plaintiff.  The court has looked at the requests and they appear proper; defendant has met its burden of justification.

As to requests 1-51, plaintiff has not filed any response at all.  Even the supplemental responses fail to address the first fifty-one requests.  The motion is therefore GRANTED as to those requests.

Request 52 seeks documents relative to the location of the funds plaintiff received from Housing is Key.  Defendant asserts that this money should have been paid to it because the money was for rental assistance, but instead of turning it over, plaintiff kept it.  The responses, even the supplemental ones, are wholly inadequate.  Among other things, they suggest that there are no responsive documents.  But that is simply inconsistent with the previous (inadequate) special interrogatory responses.  Plaintiff admits that the money was placed in an account.  Last time the court checked, one cannot open an account without filling out paperwork, not to mention the receipt of periodic statements from the financial institution.  Request 54 is for plaintiff’s resume.  Plaintiff responded by saying that there were no such documents.  But defendant points out that there is a resume on plaintiff’s LinkedIn page.  Although the court does not have access to that page, the court notes that the response (following objections) is that there are no responsive documents because it was believed none ever existed, which would not be true if the LinkedIn comment is correct.  Further, the response is limited to “possession or control,” rather than “possession, custody, or control,” which is what the statute requires.  The court agrees that more is needed here.  If there truly are no responsive documents because none ever existed, that is fine, although the court envisions more motion practice if defendant can make good on its claim that it has an exemplar of at least one.  Finally, RFP 57 seeks documents referred to in the responses to Special Interrogatories.  Plaintiff must respond (but the court is aware that further interrogatory responses are forthcoming.  Therefore, the response to this RFP ought to await the response ordered as to the special interrogatories.

Defendant also complains about an email that would be responsive to RFPs 39 and 40, upon which defendant wants a special ruling.  Plaintiff’s counsel attached the email to other papers, but defendant asserts that the attachment looks like an obvious cut-and-paste job with portions omitted even though the declaration to which it is attached attests that it is a true and correct copy.  The court will take no separate action on that at this time, but the court has looked at the document and it does not look like a true and correct copy.  The court notes that a “true and correct copy” means a copy that is in all respects identical to the entire original—nothing deleted, nothing added, nothing changed.  (If an alteration is required, then the proper language would be, for example, “attached as exhibit A is a true and correct copy of an email chain between DOE and ROE except that the second paragraph, which concerns settlement, has been redacted.”)  Plaintiff’s counsel should ensure that such is the case here.  The above ruling ought to apply to these RFPs, and the court does not see the need for a special ruling. 

Other than RFP 57, plaintiff has 30 days to respond to the RFP’s with verified responses without objection other than privilege.  The documents and any privilege log must be provided at the same time.  As to RFP 57, it must be responded to no later than 7 calendar days after the responses to the special interrogatories recently compelled by the court.  The response will be verified and without objection and the documents will be provided at that time.

Plaintiff’s concern about the meet and confer is without merit.  Given that plaintiff still has not responded at all to RFP’s 1-51, there is no reason for defendant to believe that plaintiff had any intention of acting in good faith here.

Defendant also seeks sanctions.  This would be the fourth time that plaintiff’s counsel has acted without substantial justification.  Sanctions are awarded against plaintiff and plaintiff’s counsel in the amount of $1320, payable within 30 days.  Plaintiff and plaintiff’s counsel will need to re-configure they way they are approaching this matter.