Vivian Ortiz v. MUFG Union Bank, N.A.

MOTION TO COMPEL DEPOSITION OF DEFENDANT’S PERSON MOST QUALIFIED AND AWARD SANCTIONS AGAINST DEFENDANT MUFG UNION BANK, N.A.

 

MOVING PARTY: Plaintiff Vivian Ortiz

RESPONDING PARTY(S): Defendant MUFG Union Bank, N.A.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Vivian Ortiz worked for Defendant MUFG Union Bank, N.A., as a Customer Service Specialist. Despite her positive performance, Plaintiff alleges Defendant terminated her employment after Plaintiff complained that Defendants refused to reimburse her for wifi and phone while working remotely.

Plaintiff now moves to compel the deposition attendance of Defendant’s PMK. Defendant opposed.

TENTATIVE RULING:

Plaintiff’s Motion to Compel the Deposition of Defendant’s PMK is GRANTED IN PART and DENIED IN PART, as expressly stated herein. Defendant’s PMK(s) is/are ordered to appear for deposition within 45-days of this ruling.

Plaintiff is ordered to give notice, unless waived.

DISCUSSION:

Motion to Compel Deposition

I. Legal Standard

Where, as here, a party deponent has not appeared for his or her deposition, CCP § 2025.450 applies:

(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

(CCP § 2025.450(a),(b) [emphasis added].)

II. Analysis

Plaintiff Vivian Ortiz moves to compel the deposition of Defendant’s person most knowledgeable (“PMK”). Plaintiff seeks to depose the PMK on 39 different “topics.” (Saad Decl., Exh. K.) Prior to and through the filing of this motion, the parties engaged in several meet and confer efforts. Topics 1, 2, 3, 6, 8-10, 12-14, 18-20, 23, 27-31, and 34-36 are apparently not at issue as the parties have reached an agreement as to those topics.

Based on the opposition and reply, it appears the following topics remain at issue: 4, 5, 7, 11, 15-17, 21, 22, 24-26, 32-33, 37-39. Defendant argues these topics are “overbroad, seek irrelevant information, violate third party privacy rights, and are oppressive.” (Opp. 10: 15-16.) 

In Reply, Plaintiff confirms that topics 4, 5, 7, 11, 15-17, 21, 22, 24-26, 32-33, and 37-39 “have not been agreed to.” However, the only topics specifically addressed or analyzed in Plaintiff’s motion or reply are topics 4, 37, 38, and 39. (See Reply 2: 21-28.) While Plaintiff may have developed arguments to the other topics more in its meet and confer correspondence, those arguments are not before the court. Therefore, the court focuses its analysis on topics 4, 37, 38, and 39. The court issues no ruling at this time as to the remaining “at issue” topics because Plaintiff, as the moving party, has effectively conceded them by not addressing them. 

#4: Communications regarding PLAINTIFF’S hiring process from the beginning of her employment. (Saad Decl., Exh. K.) 

Defendant argues this topic is irrelevant and unintelligible. In reply, Plaintiff indicates it is “amenable to limiting the topic to communications regarding Plaintiff’s employment status for her final year of employment.” (Reply 2: 21-22.) 

While this information would seem to be encompassed by other topics agreed to and therefore largely a moot point, the court agrees that the limited topic is nonetheless proper.

Therefore, Topic 4 is hereby modified to only communications regarding Plaintiff’s employment status in the last year of her employment. 

#37: All allegations in paragraphs 16 through 25 of PLAINTIFF’S Complaint (Saad Decl., Exh. K; #38: All denials and affirmative defenses in DEFENDANT’S Answer to PLAINTIFF’S Complaint (id.)

Defendant argues that topics 37 and 38 are vague and overbroad. Plaintiff argues the topics are not vague, and she should be entitled to the discovery.

Beyond reference generally to the Complaint or Answer, these topics fail to specifically state what information is sought and are therefore overbroad. 

The court would also venture to say they are unnecessary, as any relevant information to be uncovered by this topic would already be encompassed by the other dozens of topics. Therefore, they are unnecessary and/or overbroad. 

Defendant’s objections to topics 37 and 38 are SUSTAINED.  Defendant need not produce a PMK on Topic #37 and Topic #38.

#39: DEFENDANT’S Search for Documents in its Responses to Requests for Production of Documents, Set One (Id.)

Finally, Defendant argues this category is vague, overbroad, and may require the disclosure of attorney-client communications and/or attorney work product. 

In Reply, Plaintiff argues that Plaintiff is “entitled to a PMQ to testify as to what parameters were for MUFG’s search for documents in response to Plaintiff’s document requests in this litigation. Plaintiff wants to know where MUFG searched for documents, if MUFG did a search for ESI, what the search terms were, etc.” (Reply 2: 28.) 

The court agrees with Plaintiff that the topic is appropriate and relevant. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 538 [“In 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.”].) Additionally, the topic does not necessarily require disclosure of attorney-client communications or attorney work product. 

Therefore, Defendant’s objections to topic 39 are OVERRULED.   Defendant must produce a PMK of this topic.

III. Sanctions

Code of Civil Procedure section 2025.450(g)(1), provides that, “[i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction . . . in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to sanction acted with substantial justification or that other circumstances make the imposition of sanction unjust.” 

Here, the court declines a sanction, finding the parties acted with substantial justification or that other circumstances make the imposition of sanction unjust.

IT IS SO ORDERED.

Dated:   July 2, 2024 ___________________________________