Judge: Martha K. Gooding, Case: 2019-01077577, Date: 2022-08-29 Tentative Ruling

Motion for Protective Order

Plaintiff/Cross-Defendant John McWilliams (“Plaintiff”) seeks a protective order relieving him of the obligation to respond to a set of 543 Special Interrogatories, 60 Requests for Admission (and the accompanying form Interrogatory 17.1) and 277 Request for Production of Documents served by Defendant James Benedetto DBA Benedetto Law Group, erroneously sued as James Benedetto, Esq. and Benedetto Law Group (“Defendant”). 

Plaintiff seeks the protective order on the ground that these massive discovery requests are “excessive, irrelevant and/or outside the scope of permissible discover in terms of time and place and are otherwise duplicative and result in unwarranted annoyance, oppression, and undue burden and expense to Plaintiff.”  Plaintiff’s MPA at 1.

For the reasons set forth below, the Motion is GRANTED in part and DENIED in part.

Plaintiff argues there is “no justification for such excessive discovery in this simply legal malpractice case, in which the underlying matter was a non-catastrophic auto accident with soft tissue injuries and medical specials totaling approximately $20,000.”  Plaintiff’s MPA at 1.

Legal authority regarding protective orders for interrogatories

“When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2030.090, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc., § 2030.090, subd. (b).)

Pursuant to Code of Civil Procedure section 2030.090, subdivision (b), the protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

(4) That the response be made only on specified terms and conditions.

(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

(7) That some or all of the answers to interrogatories be sealed and thereafter opened only on order of the court.

If the Court denies a motion for a protective order in whole or in part, the Court “may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.”  (Code Civ. Proc., § 2030.090, subd. (c).)

Legal authority regarding protective orders for requests for production

A person to whom a demand for inspection has been directed “may promptly move for a protective order.  This motion shall be accompanied by a meet and confer declaration.”  (Code Civ. Proc., § 2031.060, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

(2) That the time specified in Section 2030.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

(3) That the place of production be other than that specified in the demand.

(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

(6) That the items produced be sealed and thereafter opened only on order of the court.”

(Code Civ. Proc., § 2031.060, subd. (b).) 

“If the motion for a protective order is denied in whole or in part, the court may order that the party to whom the demand was directed provide or permit the discovery against which protection was sought on terms and conditions that are just.  (Code Civ. Proc., § 2031.060, subd. (g).)

Legal authority regarding protective orders for requests for admission

“When requests for admission have been made, the responding party may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2033.080, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of admission requests, or particular requests in the set, need not be answered at all.

(2) That, contrary to the representations made in a declaration submitted under Section 2033.050, the number of admission requests is unwarranted.

(3) That the time specified in Section 2033.250 to respond to the set of admission requests, or to particular requests in the set, be extended.

(4) That a trade secret or other confidential research, development, or commercial information not be admitted or be admitted only in a certain way.

(5) That some or all of the answers to requests for admission be sealed and thereafter opened only on order of the court.”

(Code Civ. Proc., § 2033.080, subd. (b).)

If a motion for a protective order is denied in whole or in part, the Court “may order that the responding party provide or permit the discovery against which protection was sought on terms and conditions that are just.”  (Code Civ. Proc., § 2033.080, subd. (c).)

Legal authority regarding protective orders in general

“The burden is on the party seeking the protective order to show good cause” for the order sought.  (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.App.2d 807, 819.)  To establish good cause, the moving party must provide “a factual exposition of a reasonable ground for the sought order.”  (Goodman Citizens Life and Casualty Insurance Company, 253 Cal.App.2d at 819.)

In determining whether to issue a protective order, the Court “may fashion an order in light of the equities of the case and the interests of justice.”  (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1588 [disapproved of on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973].)

However, if the responding party seeks a protective order on the ground that the number of specially prepared interrogatories and/or requests for admission is unwarranted, the propounding party shall have the burden of justifying the number of interrogatories and/or number of requests for admission.  (Code Civ. Proc., §§ 2030.040, subd. (b) & 2033.040, subd. (b); see, Cal. Judges Benchbook Civ. Proc. Discovery § 18.14 [“To meet that burden of proof, the propounding party must establish facts that specifically support the reasons given in the declaration, e.g., that the potential issues in the case are unusually complex or numerous.].) 

Analysis

There is no dispute the motion is timely.  The discovery at issue was electronically served on 4/27/2022.  (Weinreb Decl., ¶ 4, Exhibits C, D, and E.)  Plaintiff timely served and filed this motion on 5/27/2022, before the date on which responses were due.

There also is no dispute the parties met and conferred regarding the issues raised in this motion.  (Weinreb Decl., ¶¶ 5-6, Exhibits G and H.) 

Plaintiff’s motion is made on the ground that Defendant’s discovery is “excessive and in bad faith,” “duplicative in many areas, unduly burdensome, inappropriate and propounded for the improper purpose to harass my client,” and the declaration for additional discovery failed to conform to the Code and was conclusory.  (Weinreb Decl., ¶ 5, Exhibit G.) 

The Court agrees that this propounded discovery is excessive; indeed, the sheer number of requests is so excessive (and the requests are so overlapping and duplicative) as to reasonably support an inference that they were propounded to harass and oppress Plaintiff, rather than for a legitimate purpose.  Given the nature of the claim asserted by Plaintiff against Defendants – and the nature of the underlying personal injury action – there is no reasonable, legitimate justification for this barrage of written discovery.  The issues are not particularly voluminous or unusually complex. The nature of the injuries are not severe.  The alleged acts of professional negligence are not complicated. 

The amount of time that would be required to respond to this mountain of discovery would be enormous and severely disproportionate to the nature and scope of the case.  Together, the RFAs, special interrogatories, and requests for production of documents total 880 requests – not counting any responses that would be required to form interrogatory 17.1 relating to the RFAs.   If counsel spent just 10 minutes preparing the responses to each, that would amount to at least 8,800 minutes – or 146 hours. 

The Court GRANTS the motion for a protective order as to the special interrogatories and the requests for production of documents.  Plaintiff need not respond to them.  This is without prejudice to Defendant’s ability to propound new special interrogatories and new requests for production of documents after receiving and evaluating Plaintiff’s responses to the 60 requests for admission (and Form Interrogatory 17.1), so as to ensure that any new sets of special interrogatories and/or requests for production are properly tailored to avoid duplication and to reasonably reflect the legitimate needs of the case.

Accordingly, the Court DENIES the motion as to the Requests for Admission.  Plaintiff shall respond to them – and to Form Interrogatory 17.1 as it relates to them – within 30 days.

Plaintiff is ordered to give notice.