Judge William A. Crowfoot, Case Number: 19BBCV00346, Date: 2023-11-16 Tentative Ruling

Judge: William A. Crowfoot, Case: 19BBCV00346, Date: 2023-11-16 Tentative Ruling

On April 24, 2019, plaintiff David Lillie (“Plaintiff”) filed this action against defendant California Institute of Technology – Jet Propulsion Laboratory (“Defendant”). The operative First Amended Complaint (“FAC”) was filed on August 5, 2019; Plaintiff asserts the following causes of action: (1) defamation; (2) negligence; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) negligent misrepresentation; and (6) intentional misrepresentation.

As alleged in the FAC, Plaintiff was employed by ManTech International Corporation (“ManTech”) as a Reliability Engineer Analyst and provided engineering support in fulfillment of ManTech’s NASA Jet Propulsion Laboratory and California Institute of Technology Reliability Engineering Support Services (“RESS”) contract. (FAC at ¶ 8.) Plaintiff was laid off on October 15, 2012, and was later rehired on July 21, 2014. (Id. at ¶ 16.)

Plaintiff informed JPL Reliability Lead Chau Brown that he needed access to third-party government contractor’s MathCAD files relating to the High Efficiency Power Supply (“HEPS”) in order to assist in his assigned tasks. When Chau Brown requested the MathCAD files from the third-party government contractor, the request was denied. Nevertheless, on September 1, 2014, JPL’s Ernest Fierheller found MathCAD files for the HEPS and placed the file on a shared server. Plaintiff was told that he could use the files. (Id. at ¶¶ 20-22.) As directed, Plaintiff used the MathCAD files to prepare his report and forwarded the draft to Chau Brown. However, in or about October 2014, Plaintiff discovered that he was not authorized to access the MathCAD files when Chau Brown demanded Plaintiff remove references to HEPS MathCAD files from the written report. Plaintiff was concerned that Chau Brown was attempting to cover up the fact that Plaintiff/ManTech was given unauthorized access to proprietary documents and notified JPL’s Ethics Enforcement Department. (Id., at ¶22, 27.) On or about October 8, 2014, Plaintiff shared his concerns with his superior at ManTech. (Id. at ¶ 23.)

On October 17, 2014, Plaintiff was sent home and instructed to use a floating holiday or a paid vacation day. (Id. at ¶ 29.) Plaintiff was then furloughed from October 17, 2014, through November 7, 2014, and then indefinitely beginning December 22, 2014. (Id. at ¶¶ 30, 32.) On January 23, 2015, ManTech informed Plaintiff that his employment would be terminated on February 6, 2015. (Id. at ¶ 34.) On or about February 10, 2015, JPL sent Plaintiff a Separation Notification requesting that he return his NASA badge and/or return and/or turn off his PIV Smart Card. (Id. at ¶ 44.) On or about April 13, 2015, Plaintiff returned his badge, PIV Card, and a CD-ROM containing the MathCAD files to JPL. (Id. at ¶¶ 47-48.)

On or about April 13, 2015, JPL stated in an email to ManTech that Plaintiff had advised JPL that he was currently in possession of third-party data taken from JPL (the “April 13 Email”). (Id. at ¶ 50.) It is purported that this statement was false because Plaintiff had delivered the only copy of the MathCAD files in his possession to JPL. (Id. at ¶ 51.) Further, JPL stated that Plaintiff violated a non-disclosure agreement by his conduct, but it is alleged that this statement is also false because the pertinent NDA had expired in October 2009. (Id. at ¶ 52.)

On or about April 3, 2017, Plaintiff filed a lawsuit against ManTech. (Id. at 54.) During discovery, Plaintiff learned that on or about April 16, 2015, during a phone call between JPL and ManTech, JPL advised ManTech that Plaintiff had copies of the CD-ROM with the MathCAD files on his own personal computer, that Plaintiff was a disgruntled employee, and that Plaintiff had been discredited by his own actions. (Id. at ¶¶ 60-61.) On or about April 15, 2015, JPL advised ManTech that the April 13 Email was sent at the request of the JPL Ethics Department and JPL Human Resources. (Id. at ¶ 62.) On or about April 14, 2015, another JPL employee emailed ManTech and stated that “Lillie is playing really dirty.” (Id. at ¶ 65.) As a result of these statements by JPL, on or about April 23, 2015, ManTech changed Plaintiff’s rehire eligibility from eligible to ineligible. (Id. at ¶¶ 64, 67.)

On November 8, 2019, the Court with Judge John J. Kralik presiding granted Defendant’s Special Motion to Strike under Code of Civil Procedure § 425.16. Thereafter, Plaintiff appealed the Court’s November 8, 2019, decision.

On April 23, 2021, the Court of Appeal issued its decision in Plaintiff’s favor. This decision became final on June 25, 2021.

On September 17, 2021, a Notice of Case Reassignment was issued, assigning this action to Department 3 in the Alhambra Courthouse.

On November 5, 2021, the Court, with Judge Colin Leis presiding, overruled Defendant’s demurrer to the FAC.

Now, Defendant moves for discovery sanctions against Plaintiff and his attorney of record pursuant to Code of Civil Procedure § 2023.030. Plaintiff opposes.

Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) There are a broad range of sanctions available against anyone engaging in conduct that is a misuse of the discovery process, including the issuance of monetary, evidentiary, issue, and terminating sanctions. (Code Civ. Proc., § 2023.030.)

The imposition of specific sanctions typically depends on the severity of the party’s transgression. “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal. App. 4th 967, 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36 (superseded by statute on other grounds).) This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.) “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Doppes, supra, 174 Cal. App. 4th at 992.)

Defendant objects to various portions of the evidence Plaintiff relies on in his opposition to the instant motion. The Court rules as follows: (1) Objection Nos. 1-3, 8-9, and 11 are sustained on the basis that the statements mischaracterize the evidence; (2) Objection Nos. 4-7 are sustained because the statements lack personal knowledge; (3) Objection No. 10 is sustained because the statement is not relevant; (4) Objection No. 12 is overruled; and (5) Objection No. 13 is sustained on the ground of vagueness.

Defendant requests the Court to impose monetary and/or issue sanctions against Plaintiff and his attorney of record based on the assertion that Plaintiff willfully abused the discovery process by failing to produce pertinent documents that had existed on his personal computer and by falsely claiming to have produced all responsive documents. (Motion at pg. 7.) The Court shall address each request in turn.

Defendant first seeks monetary sanctions in the amount of $42,245 for attorney fees and costs incurred due to Plaintiff’s discovery abuses and issue sanctions.

Under Section 2023.030(a), “monetary sanctions, in an amount incurred, including attorney fees, by anyone as a result of the offending conduct, must be imposed unless the trial court finds the sanctioned party acted with substantial justification or the sanction is otherwise unjust.”

Here, Defendant argues that it is entitled to monetary sanctions because Plaintiff abused the discovery process in several ways. First, Defendant asserts that Plaintiff failed to submit to an authorized method of discovery. (Motion at pg. 16.) Despite having received a discovery request for all documents to support or refute the contention of Plaintiff retained possession of MathCAD files or other third party and International Traffic in Arms Regulation (“ITAR”) controlled data after returning the CD to JPL in April 2015, Defendant asserts that Plaintiff did not produce relevant and responsive email attachments within Exhibit 17. (Ibid.; Estes Decl. ¶ 4, Exh. 2.)

In opposition, Plaintiff asserts that he acted in good faith and produced documents in an organized manner where the electronic documents were accessible. As to this alleged discovery abuse, the Court finds that Plaintiff acted with substantial justification and sanctions would be otherwise unjust. This is because, while Defendant’s counsel asserts that it is common practice for attachments to be produced alongside their respective emails (Estes Decl. ¶ 21), Defendant has not cited to any legal authority that would support this position. Rather, pursuant to Code of Civil Procedure § 2031.280, a demand for production of electronically store information can specify the form in which the documents are meant to be produced, and where no form has been specified, the responding party merely needs to state how the documents shall be produced. Upon review of the relevant discovery request, Defendant did not specify a form of production. (Estes Decl. ¶ 4, Exh. 2.) In turn, Plaintiff’s counsel indicated that Exhibit 17 was being produced in a similar manner as the “Lockheed Martin document production.” (Opposition, Exh. G.) Furthermore, Defendant has failed to show the parties agreed to an ESI protocol that directed how electronically stored information was meant to be stored. Moreover, Defendant concedes that the hyperlinks of the attachments found within Exhibit 17 were ultimately accessible via Adobe Acrobat. (Motion at pg. 15; Estes Decl. ¶ 18, Exh. 11.) Thus, because the attachments were accessible, the Court declines to find that Plaintiff failed to submit to an authorized method of discovery.

Second, Defendant contends Plaintiff made an evasive response to discovery because Plaintiff misrepresented that all responsive documents had been produced when in fact Plaintiff failed to produce the attachments found within Exhibit 17 and to inform Defendant of their existence. (Motion at pg. 16.) In this regard, the Court finds Plaintiff’s good faith argument lacks merit. While Exhibit 17 was produced in a similar manner as had been previously done, Plaintiff fails to show that the Lockheed Martin production also included hyperlinked attachments that could only be accessed via Adobe Acrobat and that Defendant was informed of their existence. Furthermore, because the Exhibit 17 production consisted of thousands of pages, Plaintiff’s failure to inform Defendant of the existence of hyperlinked attachments is even more glaring.

Third, Defendant contends that Plaintiff’s discovery tactic caused it undue burden and expense, and Defendant reasons that, if it discovered the email attachments in or around August 2022, then Defendant would have been able to move for summary judgment sooner and avoid any unnecessary discovery related expenses. (Motion at pg. 17.) The Court agrees, and for the same reasons stated previously, Plaintiff’s good faith argument lacks substantial justification. Therefore, because Plaintiff has abused the discovery process as prescribed under Code of Civil Procedure § 2023.010(c) and (f), monetary sanctions are warranted.

As a result of Plaintiff’s discovery abuses, Defendant claims that it unnecessarily incurred $42,245 in attorney fees, consisting of 71 hours expended at a rate of $595 per hour, and this amount consists of time expended on the taking of both volumes of Plaintiff’s deposition, on compelling the production of Plaintiff’s laptop, and on moving for the instant motion. (Estes Decl. ¶¶ 22-26.) While monetary sanctions are warranted, the amount requested is excessive. This is because a large portion of the requested amount stems from the attorney fees incurred with preparing for and taking Plaintiff’s first deposition. (Estes Decl. ¶¶ 22.) However, Defendant fails to convincingly explain in its motion that this deposition, which occurred on December 22, 2022, would not have been necessary but for Plaintiff’s discovery abuse. After all, this would have been an opportunity for Defendant to question Plaintiff regarding the attachments within Exhibit 17. In contrast, hours expended in taking Plaintiff’s second deposition, compelling the production of Plaintiff’s computer, and drafting the instant motion, were related to Plaintiff’s discovery abuse. (Id. at ¶¶ 23-26.) Therefore, sanctions are warranted against Plaintiff and his attorney of record, jointly and severally, in the amount of $27,370, consisting of 46 hours at an hourly rate of $595.

Accordingly, Defendant’s request for monetary sanctions is granted in the reduced amount of $27,370 against Plaintiff and his attorney of record, jointly and severally.

With regard to the request for issue sanctions, Defendant seeks an order establishing the following fact: “Since Plaintiff exported his JPL email in December 2014, he has maintained possession on his personal electronic devices certain files from the CD that he returned to JPL in Spring 2015, including MathCAD files, proprietary JPL data, proprietary Lockheed Martin data, and U.S Export controlled data.” (Motion at pp. 8, 21.)

While Plaintiff’s discovery abuse warrants the imposition of monetary sanctions, it cannot be found that issue sanctions are warranted. This is because Defendant has not shown that Plaintiff’s conduct was willful. Unlike in Doppes, this is not a case where Plaintiff failed to turn over the pertinent documents. (See Doppes, supra, 174 Cal.App.4th at 976-978.) Rather, Plaintiff’s counsel indicated that the emails produced in Exhibit 17 contained ITAR data. (See Estes Decl., Exh. 4; Opposition, Aune Decl. ¶ 11, Exh. G.) As stated above, because Plaintiff’s counsel did not explain that the attachments imbedded within Exhibit 17 were accessible and not separately produced, this created an undue burden on Defendant and amounted to an evasive response. Thus, because of the voluminous nature of Exhibit 17’s production, the failure appears to have been a significant oversight on Plaintiff and his counsel’s part. Nevertheless, the imposition of the requested issue sanction would operate as a punishment. (See Parker, supra, 149 Cal. App. 4th at 301.) Thus, to the extent that the evidence marshaled from discovery is contradictory and detrimental to Plaintiff’s case, Defendant may so argue at trial or in a motion for summary judgment.

Based on the foregoing, Defendant’s Motion for Sanctions is GRANTED in part as to the request for monetary sanctions in the reduced amount of $27,370 against Plaintiff and his counsel of record, jointly and severally, and DENIED in part as to the request for issue sanctions.

Plaintiff and his attorney of record are ordered to tender payment to Defendant’s attorney of record within 30 days of notice of this Order.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.