Judge: Mark H. Epstein, Case: 23SMCV01895, Date: 2024-01-26 Tentative Ruling

Case Number: 23SMCV01895    Hearing Date: February 7, 2024    Dept: I

Sadly, the court’s “reset” speech did not do the trick.  Surgical Center says that it is willing to do a reset, but first it wants its pound of flesh here.  The court cannot force the parties to reset; it can only ask and note that in the long run the approach being taken will be costly to the parties.  But that may be a cost the parties are willing to bear given the level of animosity that they seem to have toward one another. 

With that, the court looks to the law.  Assuming that no timely motion to be relieved from waiver has NOT been filed (none appears on the court’s docket), the following is the court’s tentative.  (The court notes that Surgical Center filed three motions combined as one.  That is not proper.  Three separate motions need to be filed.  The court is not opposed to a creative approach to use one “omnibus” memorandum of points and authorities and set of supporting papers, but there ought to be three motions and three separate statements at a minimum.  The court will overlook that defect this time, but likely not again.)

If the motion has not been filed, then the ex parte application to continue is DENIED.

As to the motion to compel, Surgical Center served written discovery on Strom in late September 2023.  There were no responses served.  In response to an inquiry, Strom’s counsel said it was an administrative error and he would get to the discovery soon.  However, various deadlines (many self-imposed by Strom) came and went without responses.  Strom complains that the volume was “ridiculous,” and the court agrees that it was high.  But that is par for this particular course.  The court cannot say that it was, on its face, an improper volume and it seems to be consistent with the amount of discovery Strom propounded (after which, according to Surgical Center, Strom insisted on various deadlines it imposed without regard to Surgical Center’s requests).  Eventually, Surgical Center filed a motion to compel as to special interrogatories and requests for production.  Strom opposed, saying he had served responses (albeit untimely) and wanted to be relieved of the waiver because this was all a mistake.  Strom also noted that there were many difficulties because of the volume of discovery and the difficulty consolidating electronic files.  And it is true that after the motion was filed, Strom served responses as to all but the requests for admission and FI 17.1.  Those responses were served with verifications to follow, but the court understands that the verifications did come.  In opposition, Strom also notes that Surgical Center has not criticized the responses.  That was true at the time the opposition was filed (about a month after responses were served).  In reply, though, Surgical Center does state that the responses are inadequate.

The court knows that the trial remains a while off.  But even so, this case is generating more than its fair share of discovery conflicts.  Because the parties were not able to resolve their differences, the court must resolve them.

The motion to compel is therefore GRANTED.  The court declines to find the motion moot.  Strom is to file verified, code-compliant responses without objection other than a statutory privilege.  As to documents, the response will include a privilege log that is sufficient to establish the privilege on a prima facie basis.  Thus, if the privilege is challenged, Strom will not be allowed to submit evidence to establish the privilege as a prima facie matter beyond that asserted in the log itself.  Evidence to shore up the privilege if a prima facie case has been made will be allowed.  If Strom has a legitimate question of a word’s meaning (and the court emphasizes “legitimate”), Strom may define the term reasonably and respond accordingly.  Documents will also be produced within 30 days.  If Strom elects to use 2030.230 to respond to interrogatories, he must specify the documents, by production number, that are responsive.  A range may be used, but only if every document in the range is responsive.  If Strom believes that his current responses comport with this order, he may stand on them.  But if they do not, standing on the prior responses will be viewed as a violation of this order. 

Surgical Center seems to suggest that privilege is waived as a matter of course when responses are filed late, but that is not how the court understands the law.  While the statute states expressly that even privileges are waived, case law suggests a more lenient approach.  This case is a good example as to why.  Surgical Center flooded Strom with a deluge of discovery.  While the court is not saying the discovery was improper, the 30 day statutory deadline was not intended to be enforced strictly under such circumstances.  True, Strom could have sought a protective order, but the meet and confer process is the preferred way of dealing with that.  While the court agrees that Strom missed deadline after deadline, none of it seemed like it was deliberate or bad faith.  The conduct might nonetheless warrant a waiver of complaints going to whether Strom agrees that the discovery could lead to the discovery of admissible evidence, or maybe even undue burden.  But suddenly opening up Strom’s communications with counsel is a punishment that is far beyond the so-called crime.  Surgical Center’s strong insistence that the privilege—including attorney client privilege—be deemed waived shows just how deaf the ears were upon which the court’s reset request fell.  Simply put, waiver of privilege is not accomplished generally due only to a late-filed response and the court is not inclined to impose such a waiver here under these circumstances.  Surgical Center’s position is unfortunate, and the court (and likely Strom) will remember it when the time comes.

As to sanctions, the court agrees that sanctions are appropriate.  However, given that a motion to compel (as opposed to a motion to compel further) is an easy motion, the court will allow only Fisher’s time in the preparation.  In light of the opposition, the total estimated time is allowed on the reply.  They are imposed on Strom only; not counsel.  They are payable within 30 days.

The court very much hopes that this is nearing the end of discovery motions.

If a motion for relief WAS timely filed, the ex parte application is GRANTED and this motion will be CONTINUED to February 20, 2024, at 9 am..  There will be no further briefing on this motion, but of course Surgical Center may oppose the motion for relief and Strom may reply, both per Code.

On a different note, given the unusual volume of discovery conflict here and the parties’ seeming inability to work things out reasonably with one another, the court is considering whether a referee is appropriate here.  Doing so will allow the parties to bring motions to their hearts’ content without over-burdening the court or the taxpayer.  The court will discuss setting an OSC to that effect with counsel.