Judge: Martha K. Gooding, Case: 22-01247703, Date: 2023-07-24 Tentative Ruling

Motion to Compel Production

The Motion by Defendant Microvention, Inc. (“Defendant”) to Compel Further Response to Its Request For Production of Documents, Set Two, is GRANTED.

CCP section 2031.310 provides that a demanding party may move for an order compelling further response to the demand if a “representation of inability to comply is inadequate, incomplete, or evasive.” (Code Civ. Proc., § 2031.310, subd. (a)(2).)

Here, Defendant requested “[Plaintiff’s] itemized cellular telephone(s) records including, but not limited to, call detail records evidencing or tending to show activity related to telephone calls, text messages, or SMS messages made by or received by [Plaintiff] on [her] cellular phone(s) from June 15, 2020 to the present.” (ROA 90 [Elkrief Decl. at ¶ 3, Exh. B].) The reason for this request is “to assess whether she made personal calls or engaged in personal conversations while clocked in at Microvention, including during times she claimed she was working off the clock.” (Id. at ¶ 4.)

After meet and confer efforts, Plaintiff provided a supplemental response stating she has “no documents in her custody or control responsive to this Request” because she “believes that no such documents exist” and to the extent that they do exist, that they “would in the custody or control of Defendant.” (Id. at ¶¶ 6-7, Exh. D.)

Plaintiff’s supplemental response amounts to a representation of inability to comply. However, it is not clear why Plaintiff asserts (presumably in verified responses) that Defendant has custody and control over Plaintiff’s own phone records.  Common sense would suggest that if anyone has “control” or “custody” over Plaintiff’s own telephone records it would be Plaintiff herself, not her employer. 

Indeed, Plaintiff does not deny that it is within her control to obtain the documents from her cell phone provider simply by signing the written consent or by demanding the records directly. Although stated in the context of interrogatories, a responding party “cannot plead ignorance to information which can be obtained from sources under his control.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.)

Rule 34 of the Federal Rules of Civil Procedure has the same “possession, custody, or control” language, which federal courts have interpreted to include the “legal right to obtain [the documents] on demand.” (See  Mintz v. Mark Bartelstein & Associates, Inc. (C.D. Cal. 2012) 885 F.Supp.2d 987, 994, citing United States v. Int'l Union of Petroleum & Indus. Workers (9th Cir.1989) 870 F.2d 1450, 1452; Duran v. Cisco Systems, Inc. (C.D. Cal. 2009) 258 F.R.D. 375, 379. [defendant could request plaintiff to produce text messages where plaintiff had “control” of his text messages because he had legal right to obtain them on demand from AT&T].) Section 2031 was “modeled” after Rule 34; “[f]ederal decisions are compelling where the California law is based upon a federal statute or the federal rules.” (See Toshiba America Electronic Components v. Superior Court (2004) 124 Cal.App.4th 762, 770.)  The Court finds these federal cases persuasive.

Thus, the Court finds Plaintiff’s purported inability to comply is, at the very least, an evasive and inadequate response and, at worst, an untrue statement.

Additionally, the Court finds Defendant’s interest in obtaining this discovery outweighs any protected privacy interest Plaintiff has in the records. (Hill v. National Collegiate Athletic Ass’n (1994) 7 Cal.4th 1, 38; see, e.g., Kamalu v. Walmart Stores, Inc. (E.D. Cal., Aug. 15, 2013, No. 1:13-CV-00627-SAB) 2013 WL 4403903, at *4 [where plaintiff was suing her former employer for discrimination and wrongful termination, former employer’s request for records of “all incoming and outgoing calls and data usage for Plaintiff's cell phone for the period of time that she was employed by them” did not invade a protected privacy interest where former employer was “not attempting to obtain the content of any communications, but rather the amount of time that Plaintiff spent on her personal cell phone during work hours”].) 

Although production of the records would, as a practical matter, also include call information and data usage for period outside of Plaintiff’s working hours, it is unclear how the records could be produced in any other form than in their regular form. Plaintiff can hardly complain about the “overbreadth” of the disclosure when she could have requested the documents herself directly from her provider and then redacted the non-working hour entries before producing them. In any event, Plaintiff does not show that any sensitive information would be disclosed, as Defendant is not seeking the content of any of her communications.

Accordingly, within 10 days of the notice of ruling, Plaintiff is ordered to serve a further verified response and to provide to Defendant’s counsel the written consent for release of the requested records by her cell phone provider.

In connection with the motion, Defendant Microvention, Inc. is awarded sanctions in the reasonable amount of $4,620 against Plaintiff Antonia Rodriguez. (CCP §§ 2023.010, subd. (d), 2023.030.) The sanctions are payable to Defendant’s counsel, Reed Smith LLP, within 30 days.

Defendant is ordered to give notice.