Judge: Upinder S. Kalra, Case: 19STCV35714, Date: 2022-08-30 Tentative Ruling

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Case Number: 19STCV35714    Hearing Date: August 30, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   August 30, 2022                                             

CASE NAME:            Endanicha Bragg, et al. v. Pacific Maritime Association, et al.

CASE NO.:                19STCV35714

PLAINTIFF’S MOTION TO ENFORCE DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS  

MOVING PARTY: Plaintiffs Endanicha Bragg, et al.

RESPONDING PARTY(S): Third Party Everport Terminal Services, Inc.

REQUESTED RELIEF:

1.      An order enforcing the deposition subpoena for production of business records

TENTATIVE RULING:

1.      Motion to Enforce Deposition Subpoena for Production of Documents is GRANTED.

STATEMENT OF MATERIAL FACTS AND PROCEEDINGS:

Plaintiffs Endanicha Bragg, Tracy Plummer, and Marisol Romero (“Plaintiffs”) filed an initial Complaint on October 7, 2019, and the operative First Amended Complaint on April 16, 2020. The FAC alleges that the Plaintiffs all became pregnant during the course of their work, and were unable to obtain necessary accommodations related to their pregnancies.  Plaintiffs allege the failure to accommodate resulted in violation of California law, lost pay, and loss of seniority needed to acquire union membership.

Defendants Pacific Maritime Association, International Longshore and Warehouse Union, and International Longshore and Warehouse Union Local 13 (“Defendants”) filed Answers to the FAC on May 18, 2020, and discovery ensued.

On September 28, 2021, Plaintiffs propounded a subpoena to “Eerport Erminal Services, Inc.” [sic][1] with a production date of October 6, 2021. (Decl. Gil, Exhibit 1.)

On June 27, 2022, Plaintiffs filed the current Motion to Enforce Deposition Subpoena for Production of Documents. Third Party Everport Terminal Services, Inc., filed an Opposition on August 18, 2022. Plaintiffs reply was filed on August 23, 2022.

LEGAL STANDARD:

CCP § 2020.410 provides:

(a) A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.

(b) Notwithstanding subdivision (a), specific information identifiable only to the deponent's records system, like a policy number or the date when a consumer interacted with the witness, is not required.

(c) A deposition subpoena that commands only the production of business records for copying need not be accompanied by an affidavit or declaration showing good cause for the production of the business records designated in it. It shall be directed to the custodian of those records or another person qualified to certify the records. It shall command compliance in accordance with Section 2020.430 on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.

CCP § 2025.480 provides:

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.

ANALYSIS:

Plaintiffs move to have the Court enforce the deposition subpoena for production of business records to Third Party Everport Terminal Services, Inc.

Factual and Procedural Background:

Plaintiffs sent a deposition subpoena for production of business records on September 28, 2021, which they characterize as falling under four broad categories of information: (a) Everport’s relationship with PMA and ILWU including Defendants’ employer status (Nos. 4-6, 9, 12, and 15); (b) Everport’s accommodation policies and practices (No. 7-10); (c) application of relevant anti-discrimination and reasonable accommodation policies including, the application of accommodation policies to non-pregnant comparators (Nos. 11, 16, and 17); (d) communications about the named Plaintiffs. (June 27, 2022 Separate Statement at p.11.)

On November 2, 2021, Everport produced four documents. On January 13, 2022, Plaintiffs then initiated meet and confer efforts requesting that Everport confirm that a “diligent search” was conducted for the documents. These efforts continued into through March and April, where Everport indicated that it would not supplement the production, despite indicating that Everport Manager, Brian [LNU] would have information related to lactation accommodation. (Motion 8: 8-17.) This motion was then filed on June 27, 2022, after Everport continued to indicate that it would not be supplementing the information.

Plaintiffs contend that the subpoena was procedurally proper, as required under CCP § 2020.410. Additionally, the requested documents are relevant as they are central to the claims of discrimination and reasonable accommodations.

In opposition, Everport contends that the entire motion to enforce the subpoena is moot. On July 27, 2022, Everport produced over five hundred and fifty pages of documents that were responsive to Plaintiff’s requests. Citing to Swift v. Superior Court (2009) 172 Cal.App.4^th 878, 880-881, Everport contends that because the further responses were produced prior to the hearing, the motion is moot. Additionally, any other materials that Plaintiffs seek require the parties to meet and confer; the parties only met and conferred over the four categories of documents. Assuming the procedural problems were not present, Everport contends that these new requests are overbroad, irrelevant, and are not in Everport’s possession, custody, or control. Further, Everport contends that Plaintiffs provided a new list of documents that need to be produced, one day before the opposition was due. (Opp. 4: 11-25.)

Plaintiffs now seek confirmation that Everport conducted a reasonable and diligent search. On August 18, 2022, Plaintiffs requested Everport indicate that such a search had been completed. Specifically, that what terms were used, and which email was searched as it relates to lactation accommodations, light duty work, and meeting minutes. Plaintiffs request that Everport provide a list of search terms and individuals searched may not be unreasonable in light of shifting responses,[2] however, the demand has no authority. 

CCP § 2020.430(a)(2) mandates any response related to business records comply with the requirements of Evidence Code section 1561. In relevant part, section 1561 requires the custodian to declare that the records are “true cop[ies] of all records described in the subpoena duces tecum” and a description of the “mode of preparation of the records.” (Ev. Code § 1561(a).) That is all that is required for a response to a deposition subpoena duces tecum. In that regard, there was no evidence that such a supporting affidavit was included in Everport’s responses. Accordingly, the response was deficient.

As to Everport’s additional objections, they are procedurally deficient. First, while complete responses make a discovery motion moot, incomplete answers do not. As set forth above, the responses were incomplete. Second, no additional meet and confer was required because, as set forth in counsel’s supplemental declaration, as late as August 15, 2022, Everport indicated that no additional responses were coming.  (Gil Supp. Decl. Exh. 10.) Third, as to Everport’s remaining objections as overbroad and not in Everport’s possession and control, the Court directs Everport to CCP § 2020.220 (e)-(i) for appropriate objections.

It appears that Plaintiffs may have prevailed in this battle but ultimately may not have achieved the result desired. Perhaps an informal discovery conference can lead to a better outcome?

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Enforce Deposition Subpoena for Production of Documents is GRANTED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             August 30, 2022                      __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court