Judge Randolph M. Hammock, Case 20STCV19228 2023-03-27 Tentative Ruling

This is a corporate dispute over the management of Freshtech, a food packaging distributor. Joseph Ross, a director and former officer of Freshtech, alleges that he was sidelined and forced out by Nazir Mir and Scott Keller, Freshtech’s other officers and directors, because they were engaging in improper conduct. Mir and Keller allege in their cross-claims that Ross was engaging in improper conduct himself by competing with Freshtech through rPlanet Earth (“RPE”), a separate company he was involved with.

Plaintiff Ross now moves for an order compelling Defendant and Cross-complainant Scott M. Keller (“Keller”) to produce unredacted text messages between himself and co-defendant and co-cross complainant Nazir Mir (“Mir”). Keller opposed.

As a preliminary matter, Cross-Defendants Robert Daviduk, rPlanet Earth Los Angeles, LLC, and rPlanet Earth Los Angeles Holdings, LLC, filed a “Notice of Joinder” to the motion on February 27, 2023. That joinder states, in full, that the Cross-Defendants “hereby join in Plaintiff Joseph Ross’s Motion to Compel Production of Unredacted Text Messages Between Defendants and Cross-Complainants Scott M. Keller and Nazir Mir.”

A party can generally join another party’s motion by filing a notice of joinder. To be effective, the joinder generally must (1) be timely, (2) establish the necessary factual foundation to support the motion, and (3) request affirmative relief on behalf of the joining party. (See, e.g., Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661; Decker v. U.D. Registry, Inc. (2003) 105 Cal. App. 4th 1382, 1391 [joinder is insufficient where it “is not in the form of a motion and does not present any evidence or argument”].)

Here, Cross-Defendant’s bare bones joinder does not contain any argument or facts showing the Cross-Defendants are similar situated to the moving party. The joinder is therefore ineffective.

Plaintiff Ross now moves for an order requiring Cross-Complainants to produce unredacted text messages at Bates pages KELLER 000148 – KELLER 000412.

Ross represents that in response to his requests for communications between Mir and Keller, Cross-Complainants produced a 266-page pdf document containing self-selected text messages between Mir and Keller from May 2017 to May 2020. Of these 266 pages, Ross contends “120 pages have large blocks of redactions that make it difficult for Ross to evaluate his claims and defenses and obscure the context of the remaining texts.” (Mtn. 1: 7-13.) Ross contends the redactions “raise suspicion about the material that has been redacted, and obscure the remaining information.” (Mtn. 1: 18-19.) Ross cites no authority in support of this motion, and has not identified any request to which Keller agreed to but then failed to comply.

In opposition, Keller contends the redactions are not based on privilege, but purely for non-responsiveness. Keller asserts this is unremarkable, as parties always hold back documents that are nonresponsive. “The fact that Keller produced his text messages in one continuous chain with the nonresponsive text messages redacted, instead of separating responsive and non-responsive text messages and only producing responsive text messages, does not change that fundamental premise.” (Opp. 1: 17-20.)

Here, Ross correctly notes there is no legal authority in California expressly permitting a litigant “to unilaterally redact from responsive documents information that the litigant simply deems non-responsive with no other justification.” (Mtn. 4: 22-24.) On the other hand, there likewise appears to be no authority forbidding that approach. How Keller chooses to produce responsive documents is generally his prerogative. This court cannot say that his approach is improper, although it could facially give the appearance of concealment or impropriety. [FN 1]

Be that as it may, this court expects that the responding party has and continues to produce all documents that are responsive to the discovery sought, as consistent with the Discovery Act and with counsel’s ethical obligations to this court.

Finally, the parties are reminded going forward that “[i]n the absence of privilege, the right to discovery in this state is a broad one, to be construed liberally so that parties may ascertain the strength of their case and at trial the truth may be determined.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 538.)

The court declines to award sanctions, as it finds that the motion was made and opposed with substantial justification or that other circumstances make the imposition of sanction unjust.

Judge of the Superior Court

FN 1 - Indeed, perhaps it could be proper at any trial in this case for moving party’s counsel to question Keller as to the truthfulness of his unilateral redactions in an attempt to impeach his credibility. Additionally, counsel may also be allowed to make “fair comments” about these facts in a closing argument.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.