Judge: Nathan Vu, Case: 2021-01233896, Date: 2022-10-10 Tentative Ruling
Please Note: The hearing on this matter has been changed to 8:30 A.M.
Motion to Compel
Plaintiff/Cross-Defendant Jin Guo’s motion to compel Defendant/Cross-Complainant Jiangxi Cooper International Trading N.A., Inc.’s person most knowledgeable to produce documents is DENIED.
Plaintiff/Cross-Defendant Jin Guo’s motion to compel Defendant/Cross-Complainant Jiangxi Cooper International Trading N.A., Inc.’s person most knowledgeable to appear at deposition and testify is GRANTED.
Defendant/Cross-Complainant Jiangxi Cooper International Trading N.A., Inc. shall produce its person most knowledgeable in the categories listed in the notice of deposition electronically served on 09/07/2022. The deposition shall occur on a date and at a time selected by Defendant that is within 10 days of this ruling and is reasonable.
Both Plaintiff/Cross-Defendant Jin Guo’s and Defendant/Cross-Complainant Jiangxi Cooper International Trading N.A., Inc.’s requests for sanctions are DENIED.
Plaintiff/Cross-Defendant Jin Guo moves to compel Defendant/Cross-Complainant Jiangxi Cooper International Trading N.A., Inc.’s person most knowledgeable to appear at deposition and to testify and produce documents pursuant to the notice of deposition electronically served on 09/07/2022.
Timeliness
Defendant argues that Plaintiff’s notice of deposition and this motion are untimely. However, both are timely.
The notice of deposition was served on 09/06/2022 and it scheduled the deposition for 09/21/2022.
The discovery cut-off deadline in this case is 09/24/2022 – 30 days prior to the 10/24/2022 trial date. (See Civil Proc. Code, § 2024.020, subd. (a).) Thus, the notice of deposition was served and the deposition was set before the discovery cut-off deadline.
Further, the notice of deposition gave 15 days notice of the deposition. This is sufficient. (See Civil Proc. Code, § 2025.270, subd. (a) [requiring that notice be given 10 days prior to date of deposition].)
Defendant objected to the notice of deposition on the basis of Civil Procedure Code section 2025.270(c), which requires 20 days notice. However, that provision only applies when the deponent is required to bring personal records of a consumer or employment records of an employee to a deposition. (See Civil Proc. Code, § 2025.270, subd. (c).) For the reasons stated below, the deponent will not be required to bring such records to the deposition.
Finally, the court granted Plaintiff’s request that the motion be served and heard on shortened notice on 10/10/2022. The motion is thus timely under Civil Procedure Code section 2024.020(a). (See Civil Proc. Code, § 2024.020, subd. (a) [“[A]ny party shall be entitled as a matter of right . . . to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”].)
Document Requests
The notice of deposition requests the Defendant’s person most knowledgeable to produce, at the deposition, documents that fall within 35 broadly worded categories. For example, Request Number 3 demands “All payroll records for plaintiff/cross defendant” while Request Number 9 seeks production of “All documents that support cross complainant’s allegation that cross defendant GUO improperly acquired, used, and disclosed cross-complainant’s trade secrets.” (Mousseau Decl., Exh. 1 at pp. 7-8.) The other 33 requests are similarly broad. (See id., Exh. 1 at pp. 7-11.)
Defendant properly objected to these requests for production as “unduly burdensome, oppressive, and unreasonable.” (Id., Exh. 3 at pp. 2-3.) The court agrees, especially as Defendant was only given 15 days notice and the production would have occurred about 1 month before trial. The requests would have required Defendant and Defendant’s counsel to go through potentially hundreds, if not thousands, of pages of documents searching for and organizing document that are responsive to 35 broadly worded categories, just as they should be preparing for trial. Normally, a party would be given at least 30 days to respond to such a document request. (See Civil Proc. Code, § 2031.260, subd. (a).)
While Plaintiff is entitled to serve discovery requests prior to the discovery cut-off deadline, by waiting until the last minute to serve wide-ranging and expansive document requests, Plaintiff risked that responsive documents could not be produced, without undue burden and oppression, prior to the discovery cut-off deadline (or prior to trial). That is precisely what occurred here.
Further, as Defendant notes, some of the document requests implicate employment records of an employee. For example, Plaintiff demanded:
16. All documents that support cross complainant's allegation that in or near May 2019 cross defendant GUO refused to respond to work related inquiries from other employees of cross complainant.
17. All documents that support cross complainant's allegation that cross defendant GUO intentionally caused cross complainant to default or become late on its payroll payments to cross complainant's employees.
(Mousseau Decl., Exh. 1 at p. 9.) In that case, notice of the deposition and document production must be given at least 20 days prior to the deposition date. (See Civil Proc. Code, § 2025.270, subd. (c).)
Plaintiff argues that the document requests should not be read so broadly as to implicate employment records. However, having worded its document requests expansively, Plaintiff cannot reasonably argue that the requests should be interpreted narrowly, now that it is inconvenient for Plaintiff.
The court will therefore deny the motion to compel production of the documents described in the notice of deposition.
Deposition of Person Most-Knowledgeable
The notice of deposition also sought the deposition testimony of Defendant’s person most knowledgeable in 28 categories. (Mousseau Decl., Exh. 1 at pp. 4-7.)
Defendant’s only objection to the person most knowledgeable deposition was that the notice of deposition was untimely; the remainder of the objections were made to the requests for production. (See Mousseau Decl., Exh. 3 at pp. 2-3.) The court has addressed the untimeliness objection as stated above.
Defendant also argues in the Supplemental Opposition that allowing the person most knowledgeable deposition would require the reopening of discovery, since the discovery cut-off deadline has passed.
The reopening of discovery is a matter that is committed to the trial court’s sound discretion. (Civil Proc. Code, § 2024.050 subds. (a) & (b).) In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:
(1) The necessity and the reasons for the discovery.
(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.
(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.
(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.
(Civil Proc. Code, § 2024.050, subd. (b).)
A trial court abuses its discretion by granting a motion to compel after the discovery cut-off “without first deciding whether discovery should be reopened for that purposes under all the relevant circumstances.” (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.)
Here, the discovery sought is necessary as it is the deposition of the named Defendant on issues critical to the claims in the Complaint and Cross-Complaint. In addition, while Plaintiff may not have been diligent in propounding discovery in general, it did notice this specific deposition in a timely manner. The only reason the deposition will be held after the discovery cut-off deadline is because Defendant refused to produce a deponent on the scheduled deposition date. Further, Defendant’s only objection to the deposition (as opposed to the document requests) was that the notice of deposition was untimely, which objection the court has rejected. The deposition can be scheduled in a manner that will not interfere with the trial date or will not require that the trial date be continued. Finally, there are no trial dates that were previously set; this is the first setting of the trial.
The court will exercise its discretion to reopen discovery only for the limited purpose of conducting the deposition of Defendant’s person most knowledgeable. In light of the breadth of categories of testimony and the burden this will place on Defendant, the court will allow Defendant to select a reasonable time and date for the deposition, within 10 days of this ruling.
Sanctions
The Civil Procedure Code requires the court to impose monetary sanctions against a deponent when a motion to compel deposition is granted or against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel the production of documents at a deposition “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Civil Proc. Code, §§ 2025.450, subd. (g)(1), & 2025.480, subd. (j).)
In this case, Defendant failed appear at the deposition without substantial justification and Plaintiff made the motion to compel the production of documents at deposition without substantial justification. However, the imposition of sanctions would be unjust as each party caused part of the problem. Plaintiff waited until the last minute to serve its notice of deposition regarding basic, fundamental issues of this case and Defendant failed to appear for the deposition even though its objections were unfounded. The court will deny sanctions to both parties.
The court overrules Plaintiff’s evidentiary objection number 16. The court declines to rule on Plaintiff’s other evidentiary objections as the court did not need to consider the portions of the Liu Declaration to which Plaintiff objected.
The court overrules Defendant’s evidentiary objections as it is improper to interpose evidentiary objections to arguments made in a reply (as opposed to statements made in a declaration).
Plaintiff shall give notice of this ruling.