Judge Yolanda Orozco, Case 21STCV15500 2023-02-15 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV15500, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV15500 Hearing Date: February 15, 2023 Dept: 31

MOTION TO COMPEL FURTHER RESPONSE TO

DEPOSITION SUBPOENA FROM ILWU LOCAL 13

TENTATIVE RULING

Plaintiff’s request for further response to Request Nos. 1, 5, 6, 7, 8, 11, 12, 13, and 14 is GRANTED IN PART.

BACKGROUND

On April 23, 2021, Plaintiff Harbor Performance Enhancement Center, LLC (“Plaintiff”) filed the instant action against Defendants City of Los Angeles Harbor Department (“LA Harbor”) and City of Los Angeles (“City”). The Complaint asserts causes of action for:

1. Breach of Contract;

2. Breach of the Implied Covenant of Good Faith and Fair Dealing; and

3. Declaratory Relief.

It is noted that the parties have engaged in protracted litigation in state and federal court that arise from a series of agreements that detail the development of Plaintiff’s project at the Port of Los Angeles and for providing the framework for final leases. This included an exclusivity agreement that was purported amended to extend through the completion of the project. During the course of the project, Plaintiff learned that the Defendants failed to submit that amendment to the Board for further approval, and that they gave entitlement to the project site to the International Longshore and Warehouse Union (“ILWU”). In May 2019, Plaintiff’s rights in the project were terminated. On June 17, 2019, Plaintiff filed a petition for writ of mandate in the Los Angeles Superior Court for a determination that the termination was invalid. Thereafter, on April 7, 2020, Plaintiff filed a complaint in federal court in order to bring a claim for damages against the Defendants, the ILWU, and its local chapter and dismissed the writ proceedings. In the federal proceedings, Plaintiff alleged claims arising under the federal antitrust and labor law as well as breach of several of the parties’ agreements. However, without ever reaching the merits, the federal district court dismissed the action and declined to take supplement jurisdiction over Plaintiff’s state law claims. In response, Plaintiff appealed the dismissal orders to the Ninth Circuit and filed a complaint for its state law claims in state court.

On November 17, 2022, Plaintiff filed a Motion to Compel Further Responses to Deposition Subpoena for Personal Appearance and Production of Documents and Things to Custodian of Records for International Longshore and Warehouse Union Local 13 (Local 13) and for sanctions.

Nonparty Local 13 filed opposing papers on January 23, 2023.

Plaintiff filed a reply on January 26, 2023

LEGAL STANDARD

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿

Code of Civil Procedure section 2025.480 provides, in the relevant party:

“(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.”

(Code Civ. Proc., § 2025.480)

REQUEST FOR JUDICIAL NOTICE

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code t § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Plaintiff requests Judicial Notice of the Complaint for Violation of Sherman Act, Unfair Labor Practice, Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, and Declaratory Relief filed on April 7, 2020, in Harbor Performance Enhancement Center, LLC v. City of Los Angeles Harbor Department, et al., United States District Court for Central District of California Case No. 2:20-CV-03251, a true and correct copy of which without the exhibits is attached hereto as Exhibit A.

Plaintiff’s request for Judicial Notice is GRANTED.

EVIDENTIARY OBJECTIONS

Plaintiff submitted evidentiary objections to the Declaration of Michael Kunkel submitted in Opposition to this Motion.

Objection Nos. 1, 2, 3, 4, 5, 6, 7, and 8 are OVERRUELD.

DISCUSSION

I. Motion to Compel Local 13 to Produce Further Documents

Plaintiff seeks an order compelling nonparty Local 13 to

1) Produce all electronic documents and messages in native format with metadata that are responsive to requests for production contained in the Deposition Subpoena for Personal Appearance and Production of Documents and Things Plaintiff personally served on the Custodian of Records for ILWU Local 13 on June 10, 2021 (the “Subpoena”) by conducting searches of all devices used to conduct ILWU Local 13 business, including but not limited to business and personal email accounts and cell phones, by the custodians Mark Mendoza, Ray Familathe, Ramon Ponce De Leon, Gary Herrera, Jesse Enriquez, Mark Williams, Victor Hudak, Irene Huerta, Mondo Porras and Bobby Olvera, Jr. (the “Custodians”) using the search terms “HPEC” OR “HPAC” OR “Harbor Performance” OR “Rosenthal” OR “Pilot Study” OR “Pilot Project” OR (dray! /10 LAXT OR Customs OR Custom) OR (chassis /10 LAXT or Customs or Custom) OR (board OR Arian OR Seroka OR drayage OR LAXT OR Sharma /10 strike or picket or slowdown or war) and provide a privilege log listing any privileged communications withheld from production;

2) Amend its written response to the Subpoena to affirm that all documents in the demanded category that are in the ILWU Local 13’spossession, custody or control will be included in the production (except as to those Requests that are not the subject of this motion);

3) Produce unredacted versions of its documents and a privilege log for any redactions of material subject to the attorney-client privilege and/or attorney work product doctrine;

4) Produce any cell phones, laptops, cloud storage repositories, iCloud accounts, and any devices in use by the Custodians for the period June 2015 to June 2021 for forensic examination;

5) Produce the Custodian of Records of ILWU Local 13 to appear for a deposition within 30 days of the production of documents pursuant to the Court’s order; and

6) Pay Plaintiff $10,000 for its reasonable attorneys’ fees within 10 days of this order.

On July 09, 2021, Local 13 served written responses to the subpoena and objected to producing any documents in response to certain requests but stated it would “conduct a reasonable search for and produce responsive, non-privileged documents.” (Balabat Decl. ¶ 6, Ex. B; Kesselman Decl. ¶ 6.) The documents were produced in November of 2021. (Kesselman Decl. ¶ 11.) Through meet and confer efforts, Local 13 then agreed to conduct an additional search of two individuals in April of 2022. (Id. ¶ 12.) Local 13 produced additional documents in May of 2022. (Id. ¶ 13.)

David Kesselman on behalf of ILWU and ILWU Local 13 concedes that he agreed to allow Plaintiff to extend the deadline for Plaintiff to file a motion to compel.

Discovery against Nonparties is Limited

Plaintiff erred in assuming that the discovery methods available against party litigants is the same for nonparties like ILWU. (See Board of Registered Nursing v. Superior Court of Orange County¿(2021) 59 Cal.App.5th 1011, 1039.)

“The discovery methods available against¿nonparties¿are more limited, and their procedures more streamlined. ‘While all discovery devices are available against a party, only deposition subpoenas can be directed to a¿nonparty.... [¶] The distinction between parties and nonparties reflects the notion that, by engaging in litigation, the parties should be subject to the full panoply of discovery devices, while nonparty witnesses should be somewhat protected from the burdensome demands of litigation.’”

(Board of Registered Nursing v. Superior Court of Orange County¿(2021) 59 Cal.App.5th 1011, 1033, citing Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290 [italics original].)

As explained by the Appeal Court in Board of Registered Nursing:

“The¿nonparty¿discovery statutes establish a one-step process for a nonparty responding to a business records subpoena. Upon receipt of the subpoena, a nonparty must make the production on the date and in the manner specified, unless grounds exist to object or disregard the subpoena. The nonparty's compliance with the subpoena is clear on the date specified for production. It has either produced documents as requested in the subpoena, or not. On that date, the subpoenaing party has all of the information it needs to meet and confer regarding the nonparty's compliance and, if unsatisfied, prepare a motion to compel.

This one-step process minimizes the burden on the nonparty. It may comply (or not) with the subpoena, and it can be confident that its obligations under the subpoena will be swiftly addressed and adjudicated. The one-step process also reflects the reality that the discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party.”

(Board of Registered Nursing, supra, Cal.App.5th at 1033.)

The one-step process for discovery of nonparties is in contrast to the two-step discovery process permitted on parties to the litigation that allows for motions to compel further. (See Board of Registered Nursing, supra, Cal.App.5th at 1033.) Accordingly, there is no motion to compel further for a business records subpoena on a nonparty.

Timeliness of Motion

Code of Civil Procedure section 2020.010 permits discovery to be obtained from a nonparty through an oral deposition, written deposition, or deposition for the production of business records and things. “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.” (Code Civ. Proc., § 2025.480, subd. (a).) Section 2025.480 also establishes a 60-day deadline to file a motion to compel an answer or production. (Code Civ. Proc., 2025.480, subd. (b); see also Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

It is unclear when the 60-day deadline to file a motion to compel began to accrue, since Eleanor Morton on behalf of ILWU offered to make a further discovery production on October 03, 2022. (Morton Decl. Ex. A.) “[D]iscovery deadlines are mandatory and we have treated them as jurisdictional (Citation), even though a trial court may grant relief from deadlines to file motions to compel. Where a party does not obtain trial court relief from the statutory deadline, ‘failure to move for further answers within the statutory time forecloses further relief ....’ (Citation).” (Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, 322.)

Nevertheless, Weinstein v. Blumberg (2018) does not foreclose the possibility of applying for relief from statutory deadlines and O'Brien v. Superior Court for Alameda County (1965) suggests that circumstances may exist to relieve a party of its failure to timely file a motion to compel. If such circumstances exist, they are present here where Plaintiff relied on ILWU’s and Local 13’s representations that they would agree to extend the deadline to file a Motion to Compel so that the parties could continue to meet and confer in an effort to resolve the discovery issues. Plaintiff would be gravely prejudiced if the motion is not heard.

Accordingly, the Court will address and rule upon Plaintiff’s Motion on the merits.

The Discovery at Issue

On April 7, 2020, Plaintiff filed a federal district case against Defendants and ILWU and ILWU Local 13 for claims arising under federal antitrust and labor law. (Balabat Decl. ¶ 4.) On March 24, 2021, the federal court dismissed the federal claims against the ILWU and ILWU Local 13 on Noerr-Pennington immunity grounds, declined to exercise supplemental jurisdiction over the state law claims against Defendants, and dismissed the action. (Id.) The Ninth Circuit affirmed the dismissal on April 27, 2022. (Balabat Decl. ¶ 4.)

On April 23, 2021, Plaintiff filed a Complaint against the City of Los Angeles Harbor Department and the City of Los Angeles. Plaintiff alleges a breach of the Exclusive Negotiating Agreement (“ENA”) and the pilot study permit (the “Permit”); (2) breach of the implied covenant of good faith and fair dealing regarding the ENA and the Permit; and (3) declaratory relief. (See Complaint.)

Before those agreements, in October of 2015, the Port selected Plaintiff to develop a container terminal support facility after Plaintiff spent million so dollars to bring the Project to fruition. In November 2017, the Port issued a permit to Plaintiff to run a year-long pilot study to determine the feasibility of the Project. Plaintiff asserts that ILWU and ILWU Local 13 interfered with Plaintiff’s development of the Project at the Port by pressuring the Port and the City to agree to grant ILWU exclusive jurisdiction over drayage jobs and to boycott the project if Plaintiff did not agree to the ILWU’s demands. (Compl. ¶¶ 2, 8, 14, 24, 59, 60, 64, 85.) Plaintiff asserts that Local 13’s document may reveal information otherwise unavailable to Plaintiff and provide evidence that Defendants breached their express obligation to act in good faith under the ENA and their implied obligation in all their agreements with Plaintiff.

Plaintiff now moves for further responses to Request Nos. 1, 5, 6, 7, 8, 11, 12, 13, and 14.

Relevance of Plaintiff’s Request

Plaintiff asserts that Local 13’s communications are relevant to prove its claim for the implied breach of the covenant of good faith and fair dealing. “Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract.¿The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885; see also Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349–350.) Simply stated, the burden imposed is “‘that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.’” [Citations.] Or, to put it another way, the “implied covenant imposes upon each party the obligation to do everything that the contract presupposes they will do to accomplish its purpose.” [Citation.] This rule was developed ‘in the contract arena and is aimed at making effective the agreement's promises.’ [Citation.]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393.)

Plaintiff asserts that Local 13’s documents are relevant to show that Defendants conditioned Plaintiff’s pilot study on Plaintiff’s use of ILWU labor, despite ILWU labor or labor peace not being a condition of the ENA. Plaintiff asserts that Local 13’s responses are relevant to Defendants’ sworn discovery responses and pertain to the credibility of Defendants’ witnesses who deny that the Port’s Executive Director Gene Seroka, conditioned Plaintiff’s Project on the use of ILWU labor and agreed with ILWU to kill the project. (Balabat Decl. ¶ 19; Supp. Balabat Decl. Ex. A [at 12:17-18 (Response to RFA No. 9)].) Plaintiff asserts that a note by Local 13’s president shows a meeting between Seroka and the union was scheduled, but the nature and contents of the meeting are not reflected on the note. (Balabat Decl. Ex. T.)

Local 13 argues that under the Noerr-Pennington Doctrine, it had a right to engage in petitioning behavior. Furthermore, Local 13 maintains that the only relevant information is not what petition activity was discussed between its local members, but whether threats of a work stoppage were communicated to the named Defendants in this action. Such information should be produced by Defendants rather than nonparty Local 13. Furthermore, a search of Local 13 records for “HPEC” and “Harbor Performance” along with the 10 other search terms was sufficient to capture any documents responsive to Plaintiff’s subpoena and Local 13 has already complied with Plaintiff’s request.

The Court finds that Local 13’s internal communications are relevant to the extent they may contain evidence of internal discussions about how to approach Defendants on these issues, who discussed with whom and did any Local 13 member or representative met or conferred with Defendants regarding Plaintiff’s Project.

Local 13’s Efforts to Search and Produce Responsive Documents to the Subpoena

Local 13 asserts it conducted an electronic search of its email repositories and documents as described to Plaintiff in the Declaration of Jim Torii, Local 13’s IT Director, on May 2022. (See Balabat Decl. Ex. J.)

The electronic mailboxes of the 10 custodians were searched to see if any of their mailboxes contained the following terms: “HPEC”, “Harbor Performance Enhancement Center”, “Custom House Site”, “LAXT”, “Pilot Study”, “chassis AND terminal” and/or “drayage”. (Balabat Decl. Ex. J [Torri Decl. ¶¶ 12, 17].) In order for the document to be responsive, the connector term “AND” was added to the terms above so that the document contained both terms, such as both “chassis” AND “Terminal.” (Balabat Decl. Ex. J [Torri Decl. ¶ 13].) A document was not considered responsive if it contained only one of the above search terms rather than two, such that a document containing both “HPEC” or “LAXT” was considered responsive. (Id.)

For Category No. 8, the search terms in the mailboxes of the custodians were extended to include “Rosenthal”, “Seroka”, “Arian”, “Garcetti” and/or “Gregoria.” (Balabat Decl. Ex. J [Torri Decl. ¶ 20].) Torri asserts that the emails searched in category 8 included emails to and from any of the identified custodians during the relevant time period, including internal and external emails. (Supp. Torri Decl. ¶ 3.)

“In other words, every single email or document in Local 13’s network of electronic mailboxes that contained any one (or more) of the 12 search terms was captured by this search, provided it was sent to or from any of the custodians at any time during the relevant time period (i.e., 2015 to the date of the search), whether it was sent to or from an internal or external mailbox.” (Opp. at 12:9-13.)

In total, 30,914 responsive documents were found. (Balabat Decl. Ex. J [Torri Decl. ¶ 20]; Kesselman Decl. ¶ 8.) To reduce the time and money to individually review the 30,914 responsive documents, Local 13 contracted with DISCO, a data management company specializing in litigation services to help store, organize, and manage the documents. (Kesselman Decl. ¶ 8.) DISCO’s software helped eliminated duplicates that limited the number of responsive documents to 10,500. (Id. ¶ 9.)

Of the 10,5000 responsive documents, about 4,000 were reviewed individually while the rest, about 7,000, were searched using DISCO’s search functions to locate every instance the following terms were found in the documents: “HPEC, Harbor Performance, H-PAC, HPAC, H-Pack, HPack, Rosenthal, Saybrook, LAXT, Custom House, chassis yard, chassis, and drayage.” (Puluch Decl. ¶ 6.) Local 13’s counsel then individually reviewed any document in the set of 7,000 documents containing one or more of the afore-listed terms. (Id. ¶ 6.) “Put another away, all of the de-duplicated documents in the DISCO database – about 10,500 in total – received some level of review, either an individual document-by-document analysis or a review based upon key search terms with an individual review of documents hitting on key terms.” (Id. ¶ 7.)

By May 2022, Local 13 had produced 1,638 pages responsive to the subpoena or approximately 260 documents. (Id. ¶ 12.) “Only five documents were withheld on the basis of attorney-client privilege. No document identified as responsive to the subpoena has been withheld on any basis other than the five listed on the privilege log.” (Id; see also Kesselman Decl. ¶ 13.)

Nevertheless, Local 13 admits that redactions were made to some of the responsive documents regarding various meetings conducted by Local 13. (Supp. Torri Decl. ¶ 13.) Local 13 asserts that the reductions do not relate to Plaintiff or its Project, including the minutes to an April 05, 2018 meeting. (Id; see also Kesselman Decl. ¶ 14.) Local 13 asserts that its meetings are not open to the public and Local 13 “treats the contents of its meetings as confidential.” (Holguin Decl. ¶ 11.) However, just because Local 13 considers its meetings to be confidential, does not mean that its meetings are privileged and not subject to discovery. The Court declines to review unredacted copies of the redacted material in camera. (Kesselman Decl. ¶ 14.)

Local 13 is ordered to produce unredacted versions of the meetings. Local 13 may move for a protective order if the redacted versions pertain to privileged matters. If the redactions are based on the attorney or work-product privileges, they are to be added to the privilege log with sufficient detail so they can be tested, if necessary.

Plaintiff also asserts that Local 13’s responses are not code compliant because despite stating that it would comply in whole with the request, Plaintiff believes not all responsive documents were produced and no text messages were searched.

The Search Terms used by Local 13

The parties do not dispute the 10 custodians whose documents should be searched are Mark Mendoza, Ray Familathe, Ramon Ponce De Leon, Gray Herrera, Jesse Enriquez, Mark Williams, Victor Hudack, Irene Huerta, Bobby Olivera Jr. and Mondo Porras. (Holuguin Decl. ¶¶ 3, 4.)

What Plaintiff disputes are search terms used by Local 13, which it asserts are inadequate.

For example, regarding Request No. 6, the request seeks:

“Any and all DOCUMENTS which constitute, refer or relate to any communications with the ILWU, including but not limited to any of its officers, board members, committeemen, agents, employees or contractors or anyone acting on its behalf, for the period June 2015 to the present concerning:

a. The assignment of the work of drayage of containers in the Port of Los Angeles;

b. The LAXT SITE;

c. The CUSTOMS HOUSE SITE;

d. HPEC;

e. The PROJECT;

f. The PILOT STUDY;

g. The PILOT STUDY PERMIT;

h. Development of a chassis yard at Terminal Island; and

i. Litigation in the United States District Court, Central District of California in which the ILWU, ILWU Local 13 and the Los Angeles Harbor Department were named as defendants by plaintiff HPEC.”

(See Separate Statement Request No. 6.)

Plaintiff asserts that the search for request No. 6 was inadequate because Local 13 only considered a document responsive to Request No. 6 if it was a communication to or from one of the named custodians. Plaintiff asserts Local 13 only produced communications from a handful of ILWU members. However, Torri’s supplemental declaration filed in opposition to this motion, confirms that emails were captured using the search terms that captured “any email meeting those characteristics, whether internal to Local 13 (i.e. sent to or from one of the custodians to another Local 13 mailbox) or external to Local 13 (i.e. originating from or destined for an outside email network).” (Supp. Torri Decl. ¶ 3.)

Accordingly, all internal and external emails were captured by the search using Local 13 search terms. If Local 13’s representations are correct that internal and external email communications were captured by the searches, then it should explicitly all documents responsive to the request were produced or will be produced.

Plaintiff also asserts that Local 13 did not run any searches responsive to request No. 11.

Request No. 11 seeks:

“Any and all DOCUMENTS, including communications, notes, memoranda, or reports, that refer or relate to the actions or efforts of the ILWU or any of its constituent locals to seek or obtain the drayage work for the PROJECT for the period August 2015 to present.”

(See Separate Statement Request No. 11.)

Torri’s original declaration to Plaintiff explained that all files are stored in Microsoft Office 365 and all searches were completed by October 7, 2021. (Balabat Decl. Ex. J [Torri Decl. ¶¶ 9, 21].) Torri asserts he also searched all electronic non-email files using the search terms “HPEC”, “harbor Performance Enhancement Center”, “slowdown and HPEC”, “work stoppage and HPEC”, and/or “Picket and HPEC” on Sharepoint and OneDrive, Desktop and Picture folder with the OneDrive cloud-based Office 365 service. (Balabat Decl. Ex. J [Torri Decl. ¶¶ 21].)

According to Local 13, the facts do not support Plaintiff’s assertion that request No. 11 was not searched. Plaintiff also asserts that ILWU would conduct a reasonable search for and produce non-prevailed responsive documents. (See Response to Separate Statement.)

Plaintiff also asserts Local 13’s searches with the subject search terms are inadequate because the use of the search term “and” as a connecter term in conjunction with HPEC does not capture any documents not already captured by the term HPEC. (See Kunke Decl. ¶ 9.) Although the search for HPEC may have been redundant when used with the connector term “and”, other search terms such as “Harbor Performance Enhancement Center”, “Custom House Site”, “LAXT”, “Pilot Study”, “chassis AND terminal” and/or “drayage” were also searched without the connector term “and.” (See Balabat Decl. Ex. J [Torri Decl. ¶¶ 12].)

Plaintiff also asserts that Local 13 has offered no valid objections to producing documents responsive to Request Nos. 12, 13, and 14.

Request Nos. 12 seeks:

“Any and all DOCUMENTS, including communications, notes, memoranda, or reports, that refer or relate to the actions or efforts of the ILWU or any of its constituent locals to delay, block, stop, prevent or otherwise interfere with the PROJECT for the period August 2015 to present.”

Request Nos. 13 seeks:

“Any and all DOCUMENTS, including communications, notes, memoranda, or reports, that relate to the actions or efforts of the ILWU or any of its constituent locals to delay, block, stop, prevent or otherwise interfere with the PILOT STUDY for the period January 2017 to present.”

Request No. 14 seeks:

“Any and all DOCUMENTS which constitute, relate to or refer to any communications with any members of the ILWU relating to slowdowns, work stoppages or picketing at the Port of Los Angeles for the period August 2015 to the present.”

Local 13 objected to Request No. 13 because the request was overbroad since it seeks documents about the activities of ILWU and other ILWU local organizations, not just Local 13. Plaintiff’s request includes communications with Local 13’s rank-and-file members, despite the fact that Local 13 acts through its elected officers. Furthermore, the requests seek all documents, regardless of whether they were shared with any of the Defendants. Plaintiff asserts the documents are relevant to its breach of contract and breach of the impliedcovenant of good faith and fair dealing. The Court agrees.

Local 13 also asserts that it searched broadly within its electronic repositories for any documents related to Plaintiff or its Project, including internal and external communications sent to or from any of the 10 custodians using any of the key search terms: including Plaintiff (“HPEC” or “Harbor Performance Enhancement Center”), the location of Plaintiff’s proposed Project (“LAXT” or “Custom House Site”), the identity of key individuals of Plaintiff, the Port, the Harbor, the City and PCMC (“Rosenthal”, “Garcetti”, “Seroka”, “Arian” and “Gregorio”), and additional key terms such as (“Pilot Study”, “chassis AND terminal”, and “drayage”). (See Balabat Decl. Ex. J [Torri Decl. ¶¶ 3, 19].)

“As a result of this search process, Local 13 has already identified over 32,000 documents potentially responsive to the subpoena, hired a data management company to remove the duplicates reducing the number of responsive documents to 11,500, individually reviewed more than 4,000 of the “core” documents in that set, and then reviewed the rest for responsiveness to particular search terms. (Torii 1, ¶¶ 23-24, Paluch, ¶¶ 3-12). Local 13 has produced all documents found to be responsive, except for a mere five withheld based on privilege. (Paluch, ¶ 5).”

(See Responses to Separate Statement.)

Accordingly, Local 13 maintains that documents responsive to Requests Nos. 12, 13, and 14 were already produced in its initial search of the 10 custodians and 12 search terms.

Plaintiff wants the terms searched to be: “HPEC” OR “HPAC” OR “Harbor Performance” OR “Rosenthal” OR “Pilot Study” OR “Pilot Project” (dray! /10 LAXT OR Customs OR Custom) OR (chassis /10 LAXT or Customs or Custom) OR (board OR Arian OR Seroka OR drayage OR LAXT OR Sharma /10 strike or picket or slowdown or war)

The terms that were searched were: “HPEC” or “Harbor Performance Enhancement Center”, “LAXT” or “Custom House Site”, the identity of key individuals of Plaintiff, the Port, the Harbor, the City and PCMC (“Rosenthal”, “Garcetti”, “Seroka”, “Arian” and “Gregorio”), and additional key terms such as (“Pilot Study”, “chassis AND terminal”, and “drayage”). (See Balabat Decl. Ex. J [Torri Decl. ¶¶ 3, 19].)

Local 13 maintains that responding to Plaintiff’s subpoena resulted in 280 hours of work. (Holguin Decl. ¶ 12.) Local 13 also incurred $87,365.00 in attorney’s fees and $5,000.00 in fees for DISCO to store and help manage the responsive documents. (Kesselman Decl. ¶ 17.)

Plaintiff maintains that Local 13’s search was deficient because instead of “Custom House Site” it should have searched “Custom” or “Customs” and “Pilot Study” or “Pilot Project” rather than just “Pilot Study”, making Local 13 search more restrictive. Plaintiff also objects to Local 13’s search because it is not reasonably clear if the terms searched were case-sensitive. Consequently, Plaintiff maintains that the search was not reasonably tailored to capture all documents responsive to the request.

Plaintiff also objects to Local 13 not searching the second set of 7,000 documents using the broader 12 search terms and instead searched only for “HPEC, Harbor Performance, H-PAC, HPAC, H-Pack, HPack, Rosenthal, Saybrook, LAXT, Custom House, chassis yard, chassis, and drayage.” (Pulach Decl.¶ 6.) However, Defendants argue the search of 7,000 was sufficient because the documents were individually reviewed if they contained one or more of the following broad terms: “HPEC, Harbor Performance, H-PAC, HPAC, H-Pack, HPack, Rosenthal, Saybrook, LAXT, Custom House, chassis yard, chassis, and drayage.” (Paluch Decl. ¶ 6.) The Court finds this was sufficient.

Local 13 asserts its search was reasonable and diligent and that it is unlikely more relevant documents will be found that are responsive to the subpoena. More importantly, Local 13 maintains that the burden of conducting an additional search outweighs the potential relevance of the documents. If a party asserts a “burdensome” objection, that party bears the burden of “showing the quantum of work required” to respond to discovery and articulate that burden that is being imposed on that party. (West Pico Furniture Co. v. Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, 417-418.)

Local 13 sufficiently explained the quantum of work required to respond to Plaintiff’s subpoena. Its search found 30,914 potentially responsive documents. (Balabat Decl. Ex. J [Torri Decl. ¶ 20]; Kesselman Decl. ¶ 8.) Local 13 hired and paid $5,000.00 for DISCO, a data management company, to store, organize and manage documents and eliminated duplicates. (Kesselman Decl. ¶¶ 8, 9, 17.) After DISCO eliminated duplicates, 10,500 documents remained. (Id. ¶ 9.)

Thereafter, 3,415 were reviewed individually and 7,000 were reviewed if they contained one or more of seven search terms: “HPEC, Harbor Performance, H-PAC, HPAC, H-Pack, HPack, Rosenthal, Saybrook, LAXT, Custom House, chassis yard, chassis, and drayage.” (Pulach Decl. ¶ 6.) 196 documents, totaling 1,492 pages were produced in November 2021. (Id. ¶ 8.) An additional search was conducted in May 2022, because two custodians were added to the search, and 932 new documents were produced. (Id. ¶ 9.) The 932 documents were added to the DISCO database bringing the total number of responsive documents, minus duplicates, to 11,500. (Id. ¶ 9.) Local 13’s counsel personally reviewed all 932 documents and only two documents were found to responsive and were produced in April 2022. (Id. ¶ 10.) Ultimately 1,638 pages or about 260 documents responsive to the subpoena were produced and only 5 were withheld as listed on the privilege log. (Id. ¶ 12.)

Defendants state that 280 hours were dedicated to responding to Plaintiff’s subpoena. (Hoguin Decl. ¶ 12.) Local 13 also incurred $87,365 in attorney’s fees responding to, reviewing, producing documents, and communicating with Plaintiff regarding the subpoena. (Kesselman Decl. ¶ 17.)

The Court finds that Local 13 has shown that responding to the subpoena and its search of responsive documents was significantly burdensome. While Plaintiff may argue its need for discovery is great, Plaintiff fails to acknowledge that Local 13 is not a party to the case, and that discovery most relevant to its breach of contract and breach of the implied covenant and fair dealing claims arise from emails and text messages to officials in the Port and the City.

Accordingly, a case for additional discovery from Local 13 has not been made considering that responsive documents have already been produced. The time and expenses to conduct an additional search do not justify imposing an obligation on Local 13 to conduct more searches.

“Courts must insist¿discovery¿devices be used as tools¿to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledgehammer.” (Calcor Space Facility, Inc. v. Superior Court¿(1997) 53 Cal.App.4th 216, 221. Although “fishing expeditions” are permissible, there is a limit when the fishing expedition pertains to a nonparty. (See Id. at 790.)

“‘The method of ‘fishing’ may be, in a particular case, entirely improper (i.e., insufficient identification of the requested information to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of ‘fishing’ may be (and should be) controlled by the trial court under the powers granted to it by the statute. (Citation.)’ The concerns for avoiding undue burdens on the ‘adversary’ in the litigation expressed in Greyhound apply with even more weight to a nonparty.”

(Id. at 225 citing Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 384-385.)

The Court finds that Local 13 has shown that an additional search with additional search terms similar to the ones already searched will be disproportionately burdensome given the needs of the case and the fact that Local 13 has already produced documents responsive to the request. Any other responsive documents should be sought from Defendants or the Port.

Failure to Produce Text Messages

Regarding the search of text messages in cell phone records, only the custodian Mark Williams used a personal cell phone for Local 13 business. (Balabat Decl. Ex. J [Torri Decl. ¶ 25].) When an officer leaves office, the cell phone is either wiped clean and given to the officer’s successor or recycled as e-waste. (Balabat Decl. Ex. J [Torri Decl. ¶ 26].) Local 13 asserts that it never had the policy or practice of systematically downloading texts or other information from a cell phone before it is wiped or recycled. (Balabat Decl. Ex. J [Torri Decl. ¶ 27].) Accordingly, there is no repository of cell phone data to search for information responsive to HPEC’s subpoena or for any other purpose.” (Id.)

Plaintiff maintains that under federal law, Local 13 had a duty to preserve the text messages once it reasonably anticipated litigation. By April 07, 2020, Local 13 was under an obligation to preserve evidence because it had been sued in federal court. Furthermore, Plaintiff asserts that when it filed its Writ of Mandate on June 17, 2019, and a copy of the writ proceedings was circulated, Local 13 should have anticipated litigation and taken efforts to preserve the cell phones.

Defendants argue that under the Noerr-Pennington¿doctrine, Local 13 could not have known that its petitioning activity would result in litigation. Moreover, ILWU and ILWU Local 13 were not involved in the contract with the Port and City. The earliest Local 13 could have anticipated it would need to preserve the text messages was on April 7, 2020, when the federal case against it and the Defendants was filed.

Since Mark Williams, the Secretary-Treasurer from 2018 to 2021, chose to use his personal cell phone for Union business, Local 13 only had access to nine cell phones. (See Holugin Decl. ¶ 8.)

Of the nine cell phones, four were removed from service by either being recycled or sent to e-waste prior to 2020. (Holguin Decl. ¶ 8; Balatbat Decl. Ex. J [Torri Decl. ¶ 8].)

The cell phone of Vice President Jesse Enriquez was removed from service in April of 2021, after the federal district court had dismissed the lawsuit. (Holguin Decl. ¶ 8, Kesselman Decl. ¶ 4.) The cellphones of President Ray Familathe and Vice President Gary Herrera were removed in April 2020. (Holguin Decl. ¶ 8.) Local 13 maintains that their successors were scheduled to be sworn in on Tuesday, April 7, 2020, but due to COVID-19, the swearing-in was delayed for later in the month of April. (Holguin Decll. ¶¶ 7-8.) Accordingly, Local 13 does not know when Mr. Familathe and Mr. Herrara’s cell phones were decommissioned or whether the cell phones were destroyed before or shortly after the federal case was filed.

Accordingly, Local 13 admits that Mr. Familathe and Mr. Herrara’s cell phones may have been decommissioned during the time the federal suit was pending. Local 13 maintains that because the suit was dismissed at the pleading stage, no discovery had occurred.

Plaintiff is asking the court to sanction a nonparty for conduct that occurred in federal court and outside this Court’s jurisdiction. At the time this lawsuit was filed, Familathe and Herrar’s cellphones had already been destroyed and Local 13 had substantial justification not to produce cell phones since it lacked access to them. (Code Civ. Proc. § 2025.480.)

California courts have been hesitant to impose sanctions on third-party spoliation of evidence without the existence of some statutory obligation imposing such a duty on a third party. (See Cooper v. State Farm Mutual Automobile Ins. Co. (2009) 177 Cal.App.4th 876, 894.) Accordingly, the Court declines to sanction Local 13 for failing to keep backups of the cell phones.

Two of the nine cellphones remain in service, that of Local 13 current President, Ramon Ponce De Leon, who took office in April of 2020 and his Executive Assistant. It is unclear if the Executive Assistant is Irene Huerta, who is a named custodian along with Ramon Ponce De Leon.

Local 13 refuses to search the two cellphones on the basis that the current officers were not in office when Plaintiff’s Project was pending and are likely to have little relevant evidence. The Court finds that since Ramon Ponce De Leon is a named custodian his cellphone should be searched for responsive text messages during the relative time period. If the Executive Assistant is a named custodian, then that cellphone should also be searched.

The Court declines Plaintiff’s request to search the personal cellphones and personal electronic devices of the ten custodians. As Local 13 explains, it has no ability to search the personal phones and personal devices of its former officers nor does Local 13 have legal control of the personal cell phones and personal devices of the named custodians who are currently with Local 13. Apart from Mark Williams’ cellphone, which Local 13 no longer has access to, Plaintiff fails to produce any evidence that the personal cellphones or emails of the other named custodians were used to conduct Local 13 business.

Plaintiff may subpoena the custodians individually if it wishes to search their personal emails accounts and cellphones.

Plaintiff’s Request for a Forensic Examination

Local 13 has sufficiently explained that there is no policy or practice to systematically download tests or other information from a cell phone before it is either wiped clean or recycled. (Balabat Decl. Ex. J [Torii Decl. ¶ 27].) Accordingly, there is no repository of cell phone date to search. (Id.)

Plaintiff asserts that backup data may exist on the cloud or other devices that use the same Apple ID as the destroyed devices. If such a backup exists, then the text messages may be recoverable. (Kunkel Decl. ¶ 12.)

The Court orders that Local 13 submit a declaration within 30 days confirming that no backup or cloud storage or other devices that contain cell phone data exist if that is in fact the case.

If such a device exists, Local 13 is ordered to conduct the search using the 12 search terms in its original search. If the backup data cannot be searched, then Plaintiff may file a motion requesting a forensic examination and its own cost.

Plaintiff’s Request for Sanctions

Local 13 has been ordered to conduct a cellphone search of the two cellphones that remain accessible to Local 13.

The Court finds that Local 13’s search of responsive documents to the subpoena was sufficient; Local 13 acted with substantial justification in not conducting a further search; and that its objections to the subpoena had merit.

Accordingly, no sanctions will be awarded.

CONCLUSION

Plaintiff’s request for further response to Request Nos. 1, 5, 6, 7, 8, 11, 12, 13, and 14 is GRANTED IN PART.

Local 13 is ordered to:

1) Search the 11,500 documents in the DISCO database for the additional terms: “Pilot Project”, (dray! /10 LAXT OR Customs OR Custom), “Sharma /10 strike or picket or slowdown or war) and provide a privilege log listing any privileged communications withheld from production.

Search the cellphones it continues to have access too, including custodian Ramon Ponce De Leon and his Executive Assistant (if the assistant if a named custodian) from the period June 2015 to the present. The search terms to be used are: “HPEC” or “Harbor Performance Enhancement Center”, the location of Plaintiff’s proposed project (“LAXT” or “Custom House Site”), the identity of key individuals of Plaintiff, the Port, the Harbor, the City and PCMC (“Rosenthal”, “Garcetti”, “Seroka”, “Arian”,“Gregorio” and “Sharma”), and additional key terms such as “Pilot Study”, “Pilot Project”, “chassis AND terminal”, and (dray! /10 LAXT OR Customs OR Custom)

Search electronic non-email files of the 10 custodians, from June 2015 to the present with the search terms above.

2) Amend its written response to the Subpoena to affirm that all documents responsive to the search terms: “HPEC” or “Harbor Performance Enhancement Center”, the location of Plaintiff’s proposed project (“LAXT” or “Custom House Site”), the identity of key individuals of Plaintiff, the Port, the Harbor, the City and PCMC (“Rosenthal”, “Garcetti”, “Seroka”, “Arian” and “Gregorio”), and additional key terms such as “Pilot Study”, “chassis AND terminal”, and “drayage” that are in Local 13’s possession, custody or control are included in the production (except as to those Requests that are not the subject of this motion);

3) Produce unredacted versions of its documents and a privilege log for any redactions of material subject to the attorney-client privilege and/or attorney work product doctrine;

4) Submit a declaration confirming that no backup or cloud or other devices exist for the cellphones used by the Custodians Mark Mendoza, Ray Familathe, Ramon Ponce De Leon, Gary Herrera, Jesse Enriquez, Mark Williams, Victor Hudak, Irene Huerta, Mondo Porras and Bobby Olvera, Jr. (the “Custodians”) for the period June 2015 to June 2021.

5) Produce the Custodian of Records of Local 13 to appear for a deposition within 30 days of the production of documents pursuant to the Court’s order.

Plaintiff to give notice.
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MOTION TO COMPEL FURTHER RESPONSES TO

DEPOSITION SUBPOENA FROM ILWU

TENTATIVE RULING

Plaintiff’s request for further responses to request Nos. 1, 5, 6,7, 10, 11, 12 and 13 is GRANTED IN PART.

BACKGROUND

1. Breach of Contract;

2. Breach of the Implied Covenant of Good Faith and Fair Dealing; and

3. Declaratory Relief.

On November 10, 2022, Plaintiff filed a Motion to Compel Further Responses to Deposition Subpoena for Personal Appearance and Production of Documents and Things to Custodian of Records for International Longshore and Warehouse Union (ILWU) and for Sanctions.

Nonparty ILWU filed opposing papers on January 23, 2023.

Plaintiff replied on January 26, 2023.

LEGAL STANDARD

Code of Civil Procedure section 2025.480 provides, in the relevant party:

(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.”

(Code Civ. Proc., § 2025.480)

REQUEST FOR JUDICIAL NOTICE

Plaintiff’s request for Judicial Notice is GRANTED.

EVIDENTIARY OBJECTIONS

Plaintiff submitted evidentiary objections to the Declaration of Kirsten Donovan submitted in Opposition to this Motion.

Objection Nos. 1 and 2 are OVERRUELD.

DISCUSSION

I. Motion to Compel ILWU to Produce Further Documents

Plaintiff seeks an order compelling nonparty ILWU to:

1) Produce all electronic documents and messages in native format with metadata that are responsive to requests for production contained in the Deposition Subpoena for Personal Appearance and Production of Documents and Things Plaintiff personally served on the Custodian of Records for ILWU on June 10, 2021 (the “Subpoena”) by conducting searches of all devices used to conduct ILWU business, including but not limited to business and personal email accounts and cell phones, by the custodians William Adams, Bobby Olvera, Jr., and Frank Ponce De Leon (the “Original Custodians”) as well as Ray Familathe, Robert McEllrath, Russ Bargmann, Kirsten Donovan, Ed Ferris, Alexandra Jurczak, Craig Merrilees, Robin Walker and Cam Williams (the “New Custodians”) using the search terms “HPEC” OR “HPAC” OR “Harbor Performance” OR “Rosenthal” OR “Pilot Study” OR “Pilot Project” OR (dray! /10 LAXT OR Customs OR Custom) OR (chassis /10 LAXT or Customs or Custom) OR (board OR Arian OR Seroka OR dray! OR LAXT /10 strike or picket or slowdown or war) and provide a privilege log listing any privileged communications withheld from production;

2) Amend its written response to the Subpoena to affirm that all documents in the demanded category that are in the ILWU’s possession, custody or control will be included in the production (except as to those Requests that are not the subject of this motion);

3) Produce for forensic examination whatever computer, hard drive or data system containing the mailboxes of Robert McEllrath and Ray Familathe which the ILWU chose not to rebuild;

4) Produce any cell phones, laptops, cloud storage repositories, iCloud accounts, and any devices in use by Ray Familathe for the period June 2015 to June 2021 for forensic examination;

5) Produce the Custodian of Records of ILWU to appear for a deposition within 30 days of the production of documents pursuant to the Court’s order; and

6) Pay Plaintiff $10,000 for its reasonable attorneys’ fees within 10 days of this order.

On July 09, 2021, ILWU served written responses to the subpoena and objected to producing any documents in response to certain requests but stated it would “conduct a reasonable search for and produce responsive, non-privileged documents.” (Balabat Decl. ¶ 6, Ex. B.) David Kesselman on behalf of ILWU and ILWU Local 13 concedes he agreed to allow Plaintiff to extend the deadline for Plaintiff to file a motion to compel. On October 03, 2022, on behalf of ILWU, Eleanor Morton reached out to Plaintiff to offer a compromise regarding the subpoena, which Plaintiff refused. (Morton Decl. Ex. A.)

Discovery against Nonparties is Limited

(Board of Registered Nursing v. Superior Court of Orange County¿(2021) 59 Cal.App.5th 1011, 1033, citing Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1290 [italics original].)

As explained by the Court of Appeal in Board of Registered Nursing:

(Board of Registered Nursing, supra, Cal.App.5th at 1033.)

The one-step process for discovery of nonparties is in contrast to the two-step discovery process permitted on parties to the litigation that allows for motions to compel further discovery responses. (See Board of Registered Nursing, supra, Cal.App.5th at 1033.) Accordingly, there is no motion to compel further for a business records subpoena on a nonparty.

Timeliness of Motion

Code of Civil Procedure section 2020.010 permits discovery to be obtained from a nonparty through an oral deposition, written deposition, or a deposition for the production of business records and things. “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.” (Code Civ. Proc., § 2025.480, subd. (a).) Section 2025.480 also establishes a 60-day deadline to file a motion to compel an answer or production. (Code Civ. Proc., 2025.480, subd. (b); see also Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1192.)

Nevertheless, Weinstein v. Blumberg (2018) does not foreclose the possibility of applying for relief from statutory deadlines and O'Brien v. Superior Court for Alameda County (1965) suggests that circumstances may exist to relieve a party of its failure to timely file a motion to compel. If such circumstances exist, they are present here where Plaintiff relied on ILWU’s and ILWU’s Local 13’s representations that they would agree to extend the deadline to file a Motion to Compel so that the parties could continue to meet and confer in an effort to resolve the discovery issues. Plaintiff would be gravely prejudiced if the motion is not heard.

Accordingly, the Court will address and rule upon Plaintiff’s Motion on the merits.

The Discovery at Issue

On April 23, 2021, Plaintiff filed a Complaint against the City of Los Angeles Harbor Department and the City of Los Angeles in state court. Plaintiff alleges a breach of the Exclusive Negotiating Agreement (“ENA”) and the pilot study permit (the “Permit”); (2) breach of the implied covenant of good faith and fair dealing regarding the ENA and the Permit; and (3) declaratory relief. (Balabat Decl. ¶ 4.)

Before those agreements, in October of 2015, the Port selected Plaintiff to develop a container terminal support facility after Plaintiff spent million of dollars to bring the Project to fruition. In November 2017, the Port issued a permit to Plaintiff to run a year-long pilot study to determine the feasibility of the Project. Plaintiff asserts that ILWU and ILWU Local 13 interfered with Plaintiff’s development of the Project at the Port by pressuring the Port and the City to agree to grant ILWU exclusive jurisdiction over drayage jobs and to boycott the project if Plaintiff did not agree to the ILWU’s demands. (Compl. ¶¶ 2, 8, 14, 24, 59, 60, 64, 85.) Plaintiff asserts that ILWU’s documents may reveal information otherwise unavailable to Plaintiff and provide evidence that Defendants breached their express obligation to act in good faith under the ENA and their implied obligation in all their agreements with HPEC.

For example, Plaintiff asserts that subpoenas of nonparty ILWU Local 13 have revealed a note taken by ILWU Local 13’s President Mark Mendoza in June of 2018 regarding a meeting with ILWU’s Ray Familathe and Frank Ponce De Leon and the Port’s Executive Director Gene Seroka. (Balabat Decl. Ex. T.) The note reveals Seroka met with the union to discuss how they would control drayage at Plaintiff’s Project at a time when the Port was blocking Plaintiff from running its pilot study because of the union’s objections. Plaintiff asserts that the parties’ agreement did not condition the Project or the pilot study on ILWU’s consent, ILWU labor, or even labor peace. Nevertheless, Seroka refused to submit the ENA Amendment to the Board for further approval in open session, allow Plaintiff to operate the permitted pilot study, or go forward with the project without the ILWU’s consent.

Plaintiff asserts that subpoenaing ILWU records will fill the evidentiary gaps from Local 13’s production and help prove a breach of the implied covenant of good faith and fair dealing because it will show that the Defendants’ conditioning the operation of the pilot study on ILWU approval frustrated HPEC’s rights to the benefits of the permit. The Port’s failure to seek further Board approval of the ENA Amendment and City Council approval deprived HPEC of the benefit of the ENA.

Plaintiff now moves for further responses to Request Nos. 1, 5, 6, 7, 11, 12, and 13.

Relevance of ILWU’s Internal Communications

Plaintiff argues that ILWU’s internal communications are relevant to prove that the Defendants negotiated with ILWU in violation of the ENA by improperly conditioning the continuation of Plaintiff’s Project on giving ILWU exclusive jurisdiction over drayage jobs at the project site to ILWU. The subpoena seeks documents relating to ILWU’s internal communications on these subjects and communications with ILWU’s largest employer Pacific Crane Maintenance Center (“PCMC”), and its local unions about the assignment of work of drayage of containers at the Port. (Balatbat Decl. Ex. A.)

Plaintiff argues that ILWU’s internal communications are relevant to prove that the Defendants negotiated with ILWU in violation of the ENA by improperly conditioning the continuation of Plaintiff’s project on giving ILWU exclusive jurisdiction over drayage jobs at the Project site to ILWU. The subpoena seeks documents relating to ILWU’s internal communication and communications with ILWU’s largest employer Pacific Crane Maintenance Center (“PCMC”), or its local unions about the assignment of work of drayage of containers at the Port. (Balabat Decl. Ex. A.)

Plaintiff asserts internal ILWU’s communications regarding drayage assignment and work stoppages are relevant to prove its claim for the implied breach of the covenant of good faith and fair dealing. “Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract.¿The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885; see also Guz v. Bechtel Nat. Inc.(2000) 24 Cal.4th 317, 349–350.) Simply stated, the burden imposed is “‘that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.’” [Citations.] Or, to put it another way, the “implied covenant imposes upon each party the obligation to do everything that the contract presupposes they will do to accomplish its purpose.” [Citation.] This rule was developed ‘in the contract arena and is aimed at making effective the agreement's promises.’ [Citation.]” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393.)

To prove that Defendants breached the contract and breached the covenant of good faith and fair dealing, Plaintiff must prove that Defendants were influenced in some manner, or threatened by ILWU. Internal ILWU’s communications may reveal or confirm that there we internal discussions at the union about how, when, if etc. to deal with Defendants on those issues. Internal ILWU’s communications that reference or relate to meetings or discussions with Defendants’ officers or agents are manifestly relevant. Thus, the Court finds the information sought from ILWU to be relevant. More importantly, the Court finds that due to ILWU’s ransomware attack, a search of ILWU’s internal communications is necessary to ensure that Plaintiff obtains the responsive documents that confirm ILWU’s communications or attempts to influence Defendants to which it is properly entitled.

Nevertheless, the Court finds that Plaintiff has failed to provide sufficient justification as to why the personal emails of ILWU’s custodians of records should be searched. (See Opp. at 11:11-28-12:1-10.)

Specific Discovery Disputes

Plaintiff asserts ILWU’s initial search was inadequate and the inadequacy of the search was exacerbated by ILWU’s alleged ransomware attack in December of 2020 that resulted in the loss of data. Plaintiff asserts that the loss of data and ILWU’s refusal to restore lost email servers is a spoliation of evidence. On the other hand, ILWU asserts its initial search was adequate and they are not responsible for the loss of data and any relevant documents that can be accessed from Defendants.

2020 Ransomware Attack

ILWU asserts that in December of 2020, before Plaintiff served its subpoena, ILWU was the victim of a ransomware attack that led to a loss of access to all ILWU computer systems, electronically-stored files including all email boxes, and historical email records of ILWU’s current and former officers and staff. (Donnovan Decl. ¶ 11.) “ILWU on advice of cyber experts must not disclose any details of the breach such as the name of the virus, the exact date of breach, nor any other details to ensure the past breach is not exploited and no further breaches occur.” (Id.)

Throughout 2021, ILWU worked with technology experts and third-party software providers to rebuild data systems, email boxes for current officers and staff were recreated, and the focus was on restoring and rebuilding historical email records of current users of ILWU’s Microsoft Outlook System. (Donovan Decl. ¶ 12.) Given the time and expense, ILWU has no business need to rebuild the historical email boxes of former officers and staff, such as Robert McEllrath and Ray Familathe because they had been out of the ILWU office for more than four years. (Id.)

Plaintiff asserts that ILWU had an obligation to preserve evidence because ILWU was a defendant in Plaintiff’s federal case at the time it decided not to restore the emails of Robert McEllrath and Ray Familathe. Plaintiff also argues that ILWU was untruthful in responding to the subpoena because it represented that it would comply but failed to state it could not comply with the request because data had been lost or destroyed or was not reasonably accessible. ILWU’s written responses in July 2021 failed to mention the ransomware attack and Plaintiff was not informed of the attack until August 2021. (Balabat Decl. Ex. D.) Plaintiff asserts that in November of 2021, ILWU had represented that Familathe’s and McEllrath’s emails had been searched. (Balabat Decl. Ex. G.) ILWU states that Plaintiff represented that its motion to compel would be based only on issues raised in Plaintiff’s February 1, 2021 letter which made no mention of ILWU’s defective responses. (Id. Ex. J [see April 29, 2022 email of Balabat]; H.)

Email communications between Plaintiff and ILWU revealed that the ransomware attack had been disclosed and ILWU expanded the search parameters, document production, and deadlines to accommodate Plaintiff’s request.

Since the data lost by ILWU was either destroyed or is made inaccessible, the Court finds, as explained below, that ILWU did not engage in the spoliation of evidence, and sanctions are not warranted.

Initial Subpoena Search

Plaintiff initially agreed to the following custodians, identified by ILWU as the custodians most likely to have responsive documents, William Adams, Robert McEllrath, Ray Familathe, Robert (Bobby) Olvera, Jr. and Frank Ponce De Leon. (Donovan Decl ¶ 13.) Documents were produced and then screened by Plaintiff’s counsel for duplication or non-responsiveness to the subpoena. (Donovan Decl. ¶ 14.) No documents from the email boxes of Robert McEllrath and Ray Familathe were produced since there was no historical data due to the ransomware. (Donovan Decl. ¶ 15.)

ILWU’s counsel submitted to Plaintiff a declaration describing the search and the search terms used. (Donovan Decl. ¶ 10.) The search is described as follows:

Search No. 1

All responsive documents relating to HPEC

Time Period: July 1, 2015, to August 13, 2021.

Custodians: William Adams (current International President), Bobby Olvera, Jr. (current International Vice President), Frank Ponce De Leon (current Coast Committee Representative). These custodians were or are elected officers of the ILWU during the relevant time.

Communications to or from: Jonathan Rosenthal (CEO of HPEC)

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Rosenthal"

Search No. 2

Custodians: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Communications to or from: Michael Di Bernardo (Port of Los Angeles) and/or Gene Seroka (Port of Los Angeles)

Time Period: June 1, 2015, to August 13, 2021

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit"

Search No. 3
Custodians: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Communications to or from: Dave Arian (Port of Los Angeles Harbor Commissioner)

Time Period: June 1, 2015, to August 13, 2021.

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Jonathan Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit" OR "Harbor Commissioners AND HPEC" OR "Harbor Commissioners AND Harbor Performance Enhancement Center"

Search No. 4

Custodians: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Communications to or from: Eric Garcetti (the Mayor of Los Angeles) or Ana Guerrero from the Mayor of Los Angeles' office.

Time Period: June 1, 2015, to August 13, 2021

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Jonathan Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit"

Search No. 5

Custodians: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Communications to or from: Joe Gregorio (CEO of Pacific Crane Maintenance Company)

Time Period: June 1, 2015, to August 13, 2021.

Search Terms: HPEC" OR "Harbor Performance Enhancement Center" OR "Jonathan Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit" OR "HPEC AND chassis yard"

Search No. 6

Custodians: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Communications to or from: Mark Mendoza (former President of ILWU Local 13) or Ramon Ponce De Leon (current President of ILWU, Local 13)

Time Period: June 1, 2015, to August 13, 2021

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Jonathan Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit"

Search No. 7

Custodians: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Communications to or from: William Adams, Bobby Olvera, and Frank Ponce De Leon

Time Period: June, 2015, to August 13, 2021

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Jonathan Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit"

Search No. 8

Searched for calendar entries for: William Adams, Bobby Olvera, Jr., Frank Ponce De Leon

Time Period: June 1, 2015, to August 13, 2021.

Search Terms: "HPEC" OR "Harbor Performance Enhancement Center" OR "Jonathan Rosenthal" OR "HPEC AND Pilot Study" OR "HPEC AND Pilot Study Permit."

(Id; see also Balabat Decl. Ex. K.)

ILWU asserts the search amongst the custodians combined with the search terms were sufficient to capture communications involving Ray Familathe and Robert McEllrath. (Donovan Decl. ¶ 17.) ILWU also asserts that search and terms were sufficient to encompass both internal communications between and among ILWU officers and between and among ILWU officers and representatives of other ILWU affiliates. (Id.) All responsive documents were produced and given to Plaintiff. (Id.)

Plaintiff maintains that ILWU’s search was not reasonable or diligent. First, Plaintiff asserts that only three of the initial five custodians’ emails were searched. Plaintiff also asserts that the search contained only three words: “HPEC, Harbor Performance Enhancement Center, or Jonathan Rosenthal.” According to, to Plaintiff’s expert, the use of the “HPEC” with a connector term “and” and another search term such as “HPEC AND chassis yard” does not capture any additional documents beyond those captured using the single search term “HPEC.” (Kunkel Decl. ¶ 7)

In other words, Plaintiff asserts that the terms—“HPEC” OR “HPAC” OR “Harbor Performance” OR “Rosenthal”—should be used without restriction as to sender or recipient. Plaintiff asserts that the additional terms—(dray! /10 LAXT OR Customs OR Custom) OR (chassis /10 LAXT or Customs or Custom) OR (board OR Arian OR Seroka OR dray! OR LAXT /10 strike or picket or slowdown or war)—should be used to search without restriction.

The results from the searches would then be narrowed down to internal communications or communications ILWU local chapters or Pacific Crane Maintenance Center (“PCMC”), the entity developing a chassis yard at the Port and ILWU’s largest employer.

Plaintiff asserts the search was further restricted because the search was limited to direct communications with Plaintiff’s CEO Jonathan Rosenthal that contained the terms “HPEC” or “Harbor Performance Enhancement Center” or Rosenthal or searching email in which one of the custodians was also a recipient. Therefore, ILWU’s internal communications regarding Plaintiff’s Project were excluded. For this reason, Plaintiff asserts the emails should be searched without restriction as to the sender or recipient.

Plaintiff also asserts that ILWU conducted no search for text messages or electronic non-email files or paper files. To the extent that ILWU has access to text messages of the custodians and other non-email and paper files of the custodians, those should be searched as well, and any responsive documents should be produced.

a. Limitations to the Search Term “dray” or “drayage”

ILWU asserts that “drayage” refers to the transport of cargo or equipment often within a port or port complex. (Donovan Decl. ¶ 18.) Certain drayage work is assigned to ILWU workers across numerous ports and facilities in the West Coast, under a collective bargaining agreement. (Donovan Decl. ¶ 18.) Consequently, searching for “drayage” or “dray” would result in an unduly burdensome number of documents, most of which will have nothing to do with Plaintiff. (Donovan Decl. ¶ 18.) ILWU asserts that the search as conducted is sufficient to identify drayage-related documents relevant to Plaintiff. (Id.)

Plaintiff asserts that the use of the term dray with the “/10” operates to filter out unrelated terms and minimize the burden on ILWU. The “!” is used to indicate a wild card search meaning “dray” and “drayage” will be used. The use of the “/” and “10” will limit the search for “dray” or “drayage” within ten words of the words LAXT, Customs, and Custom.

The Court finds that the search of the word “dray!” within 10 words of the words “LAXT or Customs or Custom” is sufficiently specific to identify relevant documents and not unduly burdensome on ILWU.

b. Opposition to Search for Additional Custodians

ILWU asserts that Plaintiff never raised the issue of expanding the search to include new custodians. (Donovan Decl. ¶ 23.) ILWU asserts the new custodians are not likely to have responsive documents because they were not involved in communicating with or about Plaintiff. (Id.) “At all relevant times, Alexandra Jurczak was the Executive Assistant to the President. Edwin Ferris was the Secretary-Treasurer of the ILWU. Craig Merrilees handled media relations for ILWU. Robin Walker is the ILWU Librarian and Archivist and was, temporarily for a period in and around 2019, the Interim Executive Assistant to the President. Russ Bargmann was the ILWU Research Director. Cameron Williams is a Coast Committee Member from and with principal responsibility for the ILWU's work in the Pacific Northwest.” (Id.)

Plaintiff asserts that ILWU failed to explain how it identified which ILWU custodians were likely to have responsive information and that ILWU’s counsel lacks personal knowledge to claim that the additional custodians do not have responsive documents. Plaintiff asserts that job title alone does not justify ILWU’s refusal to search their records. Plaintiff argues that due to the limited production by ILWU, the emails of executive assistants of ILWU’s president should be searched for responsive documents. Plaintiff also asserts that Cameron Williams in his capacity as a Coast Committee Member attended ILWU meetings related to Plaintiff.

To the extent that Plaintiff asserts Cameron Williams assisted Ray Familathe with union efforts, Cameron Williams’ internal and external communications should be searched. Since the emails of Robert McEllrath and Ray Familathe remain inaccessible, the emails of Alexandra Jurczak, Edwin Ferris, and Robin Walker’s emails (from 2019 only) should be searched.

Furthermore, Plaintiff has failed to provide sufficient evidence of the relevance and probative value of searching the emails and non-email documents of custodians Craig Merrilees, Russ Bargmann, Kirsten Donovan, and Ed Ferris is warranted. Accordingly, these custodians will not be added to the search.

c. Loss of Cellphone and Email Access Re: Robert McEllrath & Ray Familathe’s

ILWU asserts that in response to Plaintiff’s subpoena, it searched email boxes of all ILWU officers, identified by ILWU’s counsel, to be the most likely to have responsive documents relating to Plaintiff and its Exclusive Negotiating Agreement with the City of Los Angeles Harbor Department. (Donovan Decl. ¶ 5.) Due to ILWU elections, Robert McEllrath’s term of office as ILWU President and Ray Familathe’s term as ILWU Vice President came to an end in November 2018 and they ceased to be officers and employees of ILWU. (Donovan Decl. ¶ 6.) ILWU’s counsel asserts that ILWU provided McEllrath and Familathe with cell phones and that it was a regular practice of ILWU to allow officers to take their cell phone with them when they left office. (Donovan Decl. ¶ 7.)

ILWU’s counsel asserts that in November 2018, Plaintiff had no pending action against ILWU, the City of Los Angeles Harbor Department, or the City of Los Angeles. (Donovan Decl. ¶ 8.) McEllrath is retired and Familathe ran for President of ILWU Local 13. (Donovan Decl. ¶ 10.) Local 13 is an independent labor organization that operates independently from ILWU. (Id.) ILWU has no access to, custody, or control over the records or files of Local 13 and has no control over Local 13’s officers or employees. (Id.)

Plaintiff asserts that ILWU produced two emails showing that ILWU and Kirsten Donovan, Frank Ponce De Leon, and Cam Williams were aware that on June 20, 2019, Plaintiff had filed a writ petition seeking to contest the termination of the Project against current Defendants the City of Los Angeles Harbor Department and the City of Los Angeles. (Balabat Decl. ¶ 2.) ILWU was not yet a party to the case.

Regardless of when ILWU should have known Plaintiff would subpoena their documents, ILWU fails to explain why it did not search the text messages of the other custodians. Moreover, ILWU fails to explain what electronic non-email files, such as word documents or paper files were not searched or were not accessible. Plaintiff points out that ILWU fails to explain if there are cellphone or cloud backups of any data relevant to the subpoena.

For this reason, the internal and external emails, documents, and text messages of the custodians, to the extent that they are accessible, should be searched.

Request for a Forensic Examination

Plaintiff asserts it is entitled to a forensic examination of ILWU’s computers, hard drive, and electronic storage media where Ray Familathe’s mailbox is stored and any backup systems or other storage devices that would have Familathe’s cell phone or email data.

ILWU asserts that it already spent time and money to rebuild its data systems, email boxes for current officers and staff and that the time and cost do not justify rebuilding the historical email records of Robert McEllrath and Ray Familathe because they had been out of the ILWU office for more than four years. (Donovan Decl. ¶ 12.) According to ILWU, attempting to rebuild the historical email boxes of Robert McEllrath and Ray Familathe would be unduly burdensome for ILWU in terms of time and money. (Donovan Decl. ¶ 20.) It would take approximately two weeks, including approximately 20 hours of labor for an IT professional and would require ILWU to spend additional money to pay the professional to perform this work on top of their regular duties, or sacrifice the regular IT work ILWU needs done in order to maintain and support ILWU' s technology infrastructure and secure it against future cyber-attacks. (Id.)

Plaintiff asserts the cost of doing the email search “is only a few thousand dollars” because the out-of-pocket expenses to hire an IT professional ranges between $3,000 to $5,00 for 20 hours of labor, assuming the per hour pay is $150,00 to $250.00 per hour. Plaintiff’s expert asserts that a forensic examination of the impacted computers may recover unrecovered data. (Kunkel Decl. ¶ 6.) Plaintiff’s expert asserts that the forensic examination would entail knowing details about ILWU’s email infrastructures, including on-premise exchange and cloud-based email, previous recovery efforts, and a detailed description of the breach. (Id.) The Court is uncertain as to the scope of the forensic examination. Plaintiff’s moving papers suggest that the forensic examination would be limited to Ray Familathe’s electronically stored information (ESI), while Plaintiff’s expert suggests the examination pertains to all of ILWU’s ESI.

To the extent that Plaintiff wants to conduct a forensic examination of the emails or ESI of Robert McEllrath and Ray Familathe, the forensic examination is allowed so long as Plaintiff pays for all the costs of the examination. The cases cited by Plaintiff involve circumstances where the information was purposefully destroyed, which clearly did not happen here.

Regarding the ESI, the federal court noted “[t]he only restriction in this discovery is that the producing party be protected against undue burden and expense and/or invasion of privileged matter.” (Playboy Enterprises, Inc. v. Welles (S.D. Cal. 1999) 60 F.Supp.2d 1050, 1053.) In Disability Rights Council of Greater Washington the District Court found that defendant WMATA for two years had failed to instruct employees to retain potentially responsive documents and create backup dates since the time the lawsuit against WMATA had been filed. (Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority (D.D.C. 2007) 242 F.R.D. 139, 145.) The district court found that WMATA’s failure to prevent the automatic feature that obliterated all emails after sixty days during course of the litigation was “indefensible.” (Id. at 146.) For this reason, the district court ordered that the backup tapes be restored and search at WMATA’s expense. (Id. at 147.)

Here, Plaintiff has not shown that ILWU intentionally destroyed documents, such that ILWU should bear the expense of trying to restore the lost ESI. Plaintiff has also failed to show that the lost ESI from a nonparty led to loss of ESI data that is highly probative and inaccessible from the named Defendants in this case. To the extent Plaintiff seeks restoration of the ESI that was lost due to the ransomware, the Court finds that such costs should be borne by Plaintiff. Moreover, the two cases referenced by Plaintiff, Playboy Enterprises, Inc. and Disability Rights Council of Greater Washington did not involve discovery against a nonparty.

Plaintiff asserts that ILWU failed to report the ransomware to the Office of the California Attorney General where the Attorney General publishes breach notices by a business or state agency when unencrypted personal information was acquired by an unauthorized third person. (Supp. Balatbat Decl. ¶ 4, Ex. C.) This contention was raised for the first time on reply. Moreover, the Court does not know if the breach involved unencrypted personal information that required the ransomware to be reported to the Attorney General.

Accordingly, to the extent that ILWU has hard drives or backup drives, those records should be searched using Plaintiff’s search terms. ILWU should provide a detailed declaration asserting if hard drives or backup of the ESI exist, if the data is accessible, and that a search was done according to Plaintiff’s specifications on the ESI that was accessible.

Plaintiff’s Request for Sanctions

Section 2025.480 subdivision (l) states:

“(1) Notwithstanding subdivisions (j) and (k), absent exceptional circumstances, the court shall not impose sanctions on a deponent or any attorney of a deponent for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.”

The ransomware shut down ILWU’s access to the information and made it inaccessible. ILWU already spent time and money trying to recover its systems and did not intentionally engage in the spoliation of evidence. Accordingly, the Court finds that sanctions are not warranted.

CONCLUSION

Plaintiff’s request for further responses to request Nos. 1, 5, 6,7, 10, 11, 12 and 13 is GRANTED IN PART.

To the extent the electronically stored information is accessible to ILWU, ILWU is ordered to:

a) William Adams, Bobby Olvera, Jr., and Frank Ponce De Leon (the “Original Custodians”) as well as Ray Familathe, Robert McEllrath, Alexandra Jurczak, Robin Walker and Cam Williams (the “New Custodians”);

b) The following search terms will be used: “HPEC” OR “HPAC” OR “Harbor Performance” OR “Rosenthal” OR “Pilot Study” OR “Pilot Project” OR (dray! /10 LAXT OR Customs OR Custom) OR (chassis /10 LAXT or Customs or Custom) OR (board OR Arian OR Seroka OR dray! OR LAXT /10 strike or picket or slowdown or war);

c) Provide a privilege log listing any privileged communications withheld from production;

3) Any cell phones, laptops, cloud storage repositories, iCloud accounts, and any devices in use by Ray Familathe for the period June 2015 to June 2021, if they exist. Defendant is ordered to confirm their existence or non-existence, and search those records to the extent possible.

4) To produce the Custodian of Records of ILWU to appear for a deposition within 30 days of the production of documents pursuant to the Court’s order.

If Plaintiff desires a forensic examination of the computer, hard drive or data system containing the mailboxes of Robert McEllrath and Ray Familathe, the costs of the forensic examination shall be borne by Plaintiff.

Plaintiff to give notice.