Judge Theresa M. Traber, Case 20STCV36225 2022-09-20 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV36225, Date: 2022-09-20 Tentative Ruling

Case Number: 20STCV36225 Hearing Date: September 20, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 20, 2022 TRIAL DATE: December 1, 2022

CASE: Jessica Magee v. Cast Parts, Inc. et al.

CASE NO.: 20STCV36225

(1) MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR INSPECTION

(2) MOTION TO QUASH OR MODIFY DEPOSITION SUBPOENAS TO PROVIDENCE ST. JUDE MEDICAL CENTER

MOVING PARTY: (1)(2) Plaintiff Jessica Magee

RESPONDING PARTY(S): (1) Defendant Robert Benson; (2) Defendants Cast Parts, Inc., Consolidated Precision Products Corp., and Freddy Jimenez

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

In the Complaint she filed on September 22, 2020, Plaintiff alleges that Defendants retaliated against her for reporting their discrimination and harassment of her based on race. She also alleges discrimination, harassment, Labor Code violations, and wrongful termination in violation of public policy.

Plaintiff moves to compel further responses to a request for inspection of Defendant Robert Benson’s cell phone. Plaintiff also moves to quash a pair of identical deposition subpoenas to Providence St. Jude Medical Center on the grounds that they violate the privacy rights of Plaintiff.

TENTATIVE RULING:

Plaintiff’s Motion to Compel Further Response to Request for Inspection is GRANTED. Defendant is to produce his cellphone or a complete digital image of his cell phone for inspection within 10 days of the date of this order.

ArcherHall shall produce the complete image of any secured data to Defendant and his counsel for review. Defendant and his counsel shall complete review of this material within 60 days of receipt of the image and designate any material to be withheld. Any information so designated shall be accompanied by a description of that information sufficiently detailed to permit Plaintiff to identify what it is and shall state the reason for withholding it. All material not withheld shall be produced to Plaintiff on or before the last day of the review period.

Plaintiff is to bear all costs associated with the inspection of Defendant’s phone.

Plaintiff’s Request for Sanctions is DENIED.

With respect to respect to documents received from Providence St. Jude Medical Center relating to Plaintiff’s cancer treatment from the year 2017 through the present, Plaintiff’s Motion to Quash or Modify the Subpoena is DENIED AS MOOT

DISCUSSION:

Motion to Compel Further Responses to Request for Inspection

Plaintiff moves to compel further responses to Plaintiff’s request for inspection of Defendant Benson’s cell phone and the data stored within.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Meet and Confer

A party making a motion to compel further responses must also include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

The parties met and conferred extensively between June 6 and 17, 2022 in an effort to resolve this dispute. Plaintiff has provided true and correct copies of the email correspondence regarding this issue. (See Declaration of Samuel P. Nielson ISO Mot. ¶¶ 3-10; Exhs. 3-7.) Furthermore, pursuant to the Court’s August 26, 2022 Minute Order, the Parties filed a joint statement detailing the results of their meet and confer efforts to resolve this dispute. (See Joint Statement.) Plaintiff has offered sufficient evidence to show that she attempted to informally resolve this dispute before filing this motion.

Timeliness

A motion to compel further responses to interrogatories must be served “within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Defendant served his response on June 1, 2022. (Nielson Decl. ¶ 3, Exh. 2.) The motion to compel further responses was served and filed on July 18, 2022. 45 days after June 1, 2022 is July 16, 2022 a Saturday. Therefore, under Code of Civil Procedure section 12, the last day to file this motion was the following Monday, July 18, 2022, the date this motion was served and filed. This motion is therefore timely.

Good Cause

Plaintiff requested that Defendant permit Plaintiff and her attorneys, expert consultants, and representatives to inspect and copy all data on Defendant’s personal cell phone from September 1 2019 to the present, specifically by making the phone physically available and the data accessible so as to permit third party ArcherHall to make a copy of the phone’s stored data. (Nielson Decl. Exh. 1.) ArcherHall would first share any data and documents requested by Plaintiff with Defendant’s counsel before providing it to Plaintiff. (Id.) Defendant refused to comply, raising numerous objections to the request. (Id. Exh. 2.)

Plaintiff, in the Joint Statement filed pursuant to the Court’s August 26, 2022 Minute Order, states that the request for inspection seeks electronically stored information regarding workplace messages between Defendant Benson and other defendants or employees of defendants. Defendant conceded that he used his personal phone for workplace communications. (Declaration of Robert Benson ISO Opp. ¶ 4.) Plaintiff contends that the proposed procedure would entail third-party ArcherHall imaging Defendant’s Phone, securing data based on general categories provided by Plaintiff, and then producing that secured data to Defendant and his counsel to review. (Joint Statement p.5:11-18.) Defendant would then be entitled to designate documents that should be withheld provided Defendant identifies the documents and states the reasons for withholding, with any documents not so withheld then produced to Plaintiff for review. (Id. p.5:18-24.)

Plaintiff argues that spoliation of evidence occurred on Defendant Benson’s phone and that, as a result, the request is justified, but his argument is ground on the Court’s conclusion that spoliation occurred with respect to the cell phone of a different individual. (See July 8, 2022 Minute Order.). Plaintiff has offered no evidence, either in connection with this motion or with any other motion or filing, that Defendant Benson specifically has engaged in any spoliation of evidence. The Court’s July 8, 2022 order concluding that the corporate defendants engaged in or permitted spoliation of evidence with respect to the phones of other Defendants is not sufficient to establish that spoliation of evidence has occurred here. However, as Plaintiff has established that the documents sought are relevant to this dispute, the failure to establish spoliation of evidence is not fatal to Plaintiff’s request.

Defendant, in the Joint Statement, argues that good cause does not exist for the request because Defendant has already had his cell phone imaged by iDiscovery Solutions. Defendant contends that requiring ArcherHall to image Defendant’s phone is unnecessary, since Defendant has already provided responsive text messages in an Excel spreadsheet and is willing to provide the missing image files sought by Plaintiff in a separate container file. (Joint Statement p.7:6-16.) This argument is not well-taken. A party “is entitled to discover any non-privileged information, cumulative or not, that may reasonably assist” preparation for trial. (TBG Ins. Services Corp. v. Superior Court, 96 Cal.App.4th 443, 448.) The mere fact that this discovery may be duplicative of Defendant’s efforts is not sufficient to preclude a finding of good cause when the requested documents are shown to be relevant. The Court therefore finds that Plaintiff has established good cause for this request, based on Plaintiff’s showing of relevance.

Defendant’s Privacy Objection

Defendant’s principal outstanding objection to the requested discovery is that it is an improper intrusion into Defendant’s privacy interests.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Here, there is no question that Defendant has a legally protected privacy interest in the contents of his personal cell phone, and a reasonable expectation of privacy in those contents. (See, e.g., Riley v. California (2014) 573 U.S. 373 [reasonable expectation of privacy in contents of cell phone]; Goodall’s Charter Bus Service, Inc. v. San Diego Unified School Dist. (1981) 125 Cal.App.3d 194, 201 [protected privacy interest in personal communications].)

However, based on Plaintiff’s proposed method of examination, the Court cannot say that the threatened intrusion is serious. Plaintiff’s proposal does not require ArcherHall to review the secured data for its content, instead requiring ArcherHall to present the entirety of the production to Defendant and his counsel, who are then free to review and withhold any documents that are privileged, such as medical information or other deeply personal and privileged material that is not relevant to this dispute. Defendant’s only obligation in withholding data is to state with sufficient specificity what is being withheld, and the basis for doing so, to allow Plaintiff to evaluate whether the withholding is proper, as would be required for any other kind of discovery in which a privilege objection is asserted. (See Joint Statement p.5:18-24; Code Civ. Proc. § 2031.240(b), (c).) Plaintiff does not purport to seek any documents other than workplace communications and bases this request on concerns of incomplete production. (See Joint Statement p.4:5-5:6.) Importantly, Plaintiff expresses no desire to seek personal communications, medical records, or any other privileged information, and this Court would be reluctant to grant such a request were it made. Based on the proposed procedure, in which privileged and irrelevant information can be protected by Defendant’s review, the Court does not find that the threatened intrusion is serious. The Court therefore does not proceed to balancing competing interests.

Defendant’s Cost Objection

Defendant’s final objection is that this additional production will require Defendant to unfairly bear additional unnecessary costs from what Defendant contends is duplicative discovery. As Plaintiff does not dispute that the additional discovery may be duplicative, and as Plaintiff is the party seeking this information, it seems appropriate to the Court to require that Plaintiff bear the costs of this additional production.

Sanctions

Plaintiff also requests sanctions against Defendant Benson and his counsel in the amount of $2,410 in attorney’s fees and costs.

Code of Civil Procedure section 2023.030 authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. Code of Civil Procedure section 2030.300(d) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further response, 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.

Here, the Court finds that Defendant acted with substantial justification in opposing this request, based on the nature of the dispute, the type of disclosure sought, and the nature of the objections raised. The Court therefore declines to award sanctions in this instance.

Motion to Quash Deposition Subpoenas for Production of Business Records

Plaintiff moves to quash a pair of identical deposition subpoenas to Providence St. Jude Medical Center on the grounds that they violate the privacy rights of Plaintiff.

On September 1, 2022, this Court granted Plaintiff’s motion in part, as follows:

Providence St. Jude Medical Center is directed to produce all responsive documents to Plaintiff’s counsel.

Plaintiff’s counsel shall produce to Defendants’ counsel all documents received from Providence St. Jude Medical Center relating to Plaintiff’s mental state from the year 2012 through the present.

Plaintiff’s counsel shall produce these documents within 10 court days of the date of receipt of the documents from Providence St. Jude Medical Center. Plaintiff’s counsel shall also produce simultaneously to Defendants’ counsel an index and log of any and all documents withheld from Defendants, which shall identify any withheld documents with sufficient particularity to evaluate whether the withheld documents should be produced.

With respect to documents received from Providence St. Jude Medical Center relating to Plaintiff’s cancer treatment from the year 2017 through the present, the Court continues the hearing on this issue to September 19, 2022 at 1:45 p.m. and orders the parties to meet and confer about the possible dismissal of Plaintiff’s claim for failure to engage in the interactive process regarding Plaintiff’s cancer treatment.

(September 1, 2022 Minute Order). Plaintiff filed a request for dismissal with prejudice as to these Defendants with respect to her claim for failure to engage in the interactive process regarding Plaintiff’s cancer treatment. (September 13, 2022 Request for Dismissal as to Second Cause of Action.)

Accordingly, with respect to respect to documents received from Providence St. Jude Medical Center relating to Plaintiff’s cancer treatment from the year 2017 through the present, Plaintiff’s Motion to Quash or Modify the Subpoena is DENIED AS MOOT.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Compel Further Response to Request for Inspection is GRANTED. Defendant is to produce his cellphone or a complete digital image of his cell phone for inspection within 10 days of the date of this order.

ArcherHall shall produce the complete image of any secured data to Defendant and his counsel for review. Defendant and his counsel shall complete review of this material within 60 days of receipt of the image and designate any material to be withheld. Any information so designated shall be accompanied by a description of that information sufficiently detailed to permit Plaintiff to identify what it is, and shall state the reason for withholding. All material not withheld shall be produced to Plaintiff on or before the last day of the review period.

Plaintiff is to bear all costs associated with the inspection of Defendant’s phone.

Plaintiff’s Request for Sanctions is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 20, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.