Tentative Ruling

 

Judge Upinder S. Kalra, Department 51

 

HEARING DATE:   August 8, 2022                                               

 

CASE NAME:            Chris Stout v. Barton Brands of California, Inc., et al.

 

CASE NO.:                20STCV24978

 

PLAINTIFF’S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES – Request for Production of Documents (9828)

 

MOVING PARTY: Plaintiff Chris Stout

 

RESPONDING PARTY(S): Defendant Barton Brands of California, Inc.

 

REQUESTED RELIEF:

 

1.      An order compelling Defendant to provide further responses to the Request for Production of Documents 36, 49 58 and court modified No.’s  3, 5, 35, 43, 59-64, 66-67 and 72

2.      Request for Monetary Sanctions against Sheppard Mullin Richter & Hampton LLP, Paul S. Cowie, Esq., Brian S. Fong, Esq., Peter Y. Lee, Esq., and Defendant, Barton Brands of California, Inc., jointly, in the sum of $1,400.00

TENTATIVE RULING:

 

            Motion to Compel Further is GRANTED.

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Chris Stout (“Plaintiff”) filed a complaint against Defendant Barton Brands of California, Inc., Sazerac North America Inc., Sazerac Company Inc., Sazerac Distillers LLC, and Does 1 through 50 (“Defendants”) on July 2, 2020. The complaint alleged three causes of action based on discrimination. Plaintiff alleges that Defendant discriminated against him based on age; he was replaced by younger individuals and eventually terminated, where his position was placed by someone who was around 30 years old.

 

Defendant Barton Brands of California, Inc., filed an Answer on August 24, 2020.

 

Defendants Sazerac North America Inc., Sazerac Company Inc., Sazerac Distillers LLC filed an Answer on November 24, 2020.

 

The current Motion to Compel Further was filed on May 17, 2022. Defendants’ opposition was filed on July 27, 2022. Plaintiff’s reply was filed on August 1, 2022. 

 

LEGAL STANDARD

 

The propounding party may bring a motion to compel further responses to a demand for production if the propounding party deems that production is deficient, incomplete, or contains meritless objections.  CCP § 2031.310(a).  The legal burden to justify refusing or failing to provide discovery lies with the objecting party.  (Coy v. Superior Court (1962) 58 Cal.2d 210, 220). 

 

The motion must be accompanied by a good-faith meet-and-confer declaration. CCP § 2031.310(b). “A determination of whether an attempt at informal resolution is adequate . . . involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016).  “The history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and other similar factors can be relevant.  Judges have broad powers and responsibility to determine what measure and procedures are appropriate in varying circumstances.”  Id. 

 

CCP § 2031.310 provides the court shall apposes monetary sanctions against a person, party, or attorney that unsuccessfully makes or opposes a motion to compel further response, unless that subject to sanction acted “with substantial justification or other circumstances make the imposition of sanctions unjust.”  CCP § 2023.010(h).  The court “may impose a monetary sanction” against any attorney or party, or both, to pay the reasonable expenses, including attorney fees, if there has been a “misuse of the discovery process.  CCP § 2023.030(a).  “A trial court has broad discretion when imposing a discovery sanction.”  (Lee v. Lee (2009) 175 Cal.App.4th 1553, 1559). 

 

 

Procedural Matters:

 

Service:

Proofs of Service indicate that the parties served the documents via email.

 

Meet and Confer:

The Declarations of Christopher E. Gabriliuc and Brian S. Fong both indicate that the parties were meet and conferring regarding the issues. The emails indicate that the parties discussed the issues.

 

Separate Statement

Under Rule 3.1345, a Separate Statement must include the request, the response, and why a further response is provided. The Separate Statement contains this information.

 

ANALYSIS:

 

Procedural Issues:

 

Timely:

Under CCP § 2030.300, a party has 45 days after service of the verified responses to file a motion to compel further. After the court order in December 2021, the parties agreed to extensions. On March 31, 2022, Defendant provided supplemental responses. Neither declaration states how service was accomplished.[1] The motion was filed on May 17, 2022. 45 days after March 31, 2022 is May 16, 2022. Additionally, Defendant’s Opposition was filed on July 27, 2022, but oppositions are required 9 court days before the hearing, which would have required the opposition to be filed on July 26, 2022.

 

Additionally, Defendant’s Opposition was filed on July 27, 2022, but oppositions are required 9 court days before the hearing, which would have required the opposition to be filed on July 26, 2022.

 

Discussion:

 

Plaintiff moves to compel further responses to the Requests for Production of Documents, Nos. 36, 49, 58, and modified Nos. 3, 5, 35, 59, 60, 61, 62, 63, 64, 66, 67, 72.

 

Plaintiff initially contended that the responses provided were deficient and not code compliant. The responses did not indicate if the Defendant would comply in part or in whole, did not identify any documents to these requests, and asserted inappropriate privilege objected and stated that only non-privileged documents would be produced. Plaintiff argues that privilege does not apply, and Defendant did not provide a privilege log, as stated under CCP § 2031.240(b)(J). Additionally, Plaintiff argues that good cause exists because these documents are relevant, and the court already ordered that code compliant responses be provided. Lastly, Plaintiff asserts that the objections are inappropriate. These documents are directly relevant to prove discriminatory animus; the attorney-client privilege does not apply as these requests do not seek any attorney-client communications; the requests are not overbroad as they are limited in scope; the requests are not vague as the requests are not unintelligible; and the privacy objection because these requests seek information about Plaintiff.   

 

Defendant contends that the motion should be denied because responsive documents have been provided. The responses provided are compliant; Defendant indicated that documents that were nonprivileged and responsive in Defendant’s custody, possession or control would be provided. Responses were provided on February 11, 2022, and supplemental responses in March 2022. An excel sheet was provided on July 26, 2022, which indicated and identified the specific request the document responded to. As for the privilege objections, Defendant asserts that a privilege log has been provided. Lastly, Defendant asserts that no documents are being withheld because of any other objections.

 

In Reply, Plaintiff contends that supplemental responses do not comply with the December 29, 2021 court order. The search conducted by Defendant only included two individuals, Jake Wentz and Jeff Conder, but failed to include four other individuals involved in the decision to terminate Plaintiff. The ESI was deficient in so far as the search terms included words like “discrimination,” “harassment,” “retaliation,” which as Plaintiff argues, would unlikely be contained in email. Even searching Plaintiff’s name would unlikely produce emails that discussed replacing older managers with young leadership; the term “legacy” was used when discussing older employees.  (Reply 4: 17 – 26). Moreover, Plaintiff argues that the meet and confer efforts regarding ESI were not done in good faith. Specifically, Defendant is refusing to search emails of other individuals, such as Joe Bongiovi – Vice President Human Resources, Matt Maimone – an individual who communicated via email about Plaintiff, Josh McMullough. (Reply 6: 7-10). The responses provided are evasive and not code compliant because Defendant did not indicate the reason as to why it is unable to comply or identify where the responsive documents exist, as required under CCP § 2031.230. Lastly, the privilege log is inadequate. On July 26, 2022, Defendant provided a privilege log, but it was for a different case – Cedric Thompson v. Barton Brands of California, Inc., et al., and includes different bate stamps.

 

            The Court agrees with Plaintiff. The responses were incomplete and inadequate and not code compliant. Moreover, if a synonym used for a prior court ordered search term is discovered to be used i.e. “legacy”, then it seems that a legitimate meet and confer, held in good faith, would add such a synonym without a further court order. In addition, adding creative, qualifying language to a code complaint response is not a code compliant response.  A response is either code compliant or it is not.  Lastly, the privilege logs must be sufficiently detailed to allow parties to evaluate the merits of the claim.[2]

 

Sanctions:

Under CCP § 2023.030, the court can impose monetary sanctions for the misuse of discovery. Additionally, the court can also impose sanctions under CCP § 2023.010. The Plaintiff’s Notice of Motion indicates that they are seeking monetary sanctions totaling $1,400 against Sheppard Mullin Richter & Hampton LLP, Paul S. Cowie, Esq., Brian S. Fong, Esq., Peter Y. Lee, Esq., and Defendant, Barton Brands of California, Inc., jointly. This is based on an hourly rate of $350 based on 4 hours of work for this matter. As the Motion is untimely, the request for Sanctions is GRANTED.

 

Conclusion:

 

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

 

            Motion to Compel Further is GRANTED.  Defendant is ordered to file code complaint responses without objection, other than privilege and then only with an appropriately detailed privilege log to comply with the code, within 30 days of this order.

 

Request for Sanctions is GRANTED in the amount of $1,400 payable by counsel and Defendant jointly within 30 days of service of this order.

.          

 

Moving party is to give notice.

 

IT IS SO ORDERED.

 

Dated:             August 8, 2022                        _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court

 

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