This case involves claims of misappropriation and client poaching.? Before the Court this day are three defense motions to compel further responses to form interrogatories, special interrogatories and RPDs.
Request for Production of Documents
The party serving requests for production of documents must have good cause for the documents sought, and must describe them with reasonably particularity.? CCP ?? 2031.030(c), 2031.310(b).? Thereafter, the recipient is obligated to provide one of three responses: (1) a statement of compliance, which includes the actual documents (organized and labeled or as they are kept in the usual course of business) or a clear indication as to when and how the documents will be provided; (2) a statement of noncompliance based on inability, confirming a ?diligent search and reasonable inquiry? and the reason for the inability, to wit: the documents never existed, were lost/destroyed, or in the possession of someone inaccessible; or (3) A statement of noncompliance based on objection, which must describe responsive documents and set forth ?clearly? the specific grounds for the objection.? CCP ?? 2031.210-2031.280.
Plaintiff initially objected to RPD Nos. 18 and 40, and failed to provide any response to RPD No. 63 (the latter appearing to be an innocent oversight).? In the intervening two years, there were attorney substitutions, an appeal, and a discovery stay ? all delaying a timely and effective resolution.? Once the dust settled, plaintiff agreed to provide a supplemental response to Nos. 18, 40, and 63.? Rather than take plaintiff at its word and withdraw the motion, defendants request sanctions for the time associated with bringing the motion to compel.? As the presumptive prevailing party, defendants would be entitled to sanctions unless plaintiff has acted with substantial justification.? For this, we look to the original answers to see if plaintiff was justified in objecting.
RPD No. 18 sought documents relating to plaintiff?s efforts to staff its Mountain View office after defendants left.? Plaintiff objected on breadth, relevance and proprietaries.? Defendants claim that such documents would either impugn plaintiff, or establish a failure to mitigate.? This is quite the stretch, even with liberal discovery policies.? Plaintiff was justified in objecting to the request, even if that objection would ultimately be overruled.
RPD No. 40 sought documents relating to plaintiff?s policies/procedures since 2009 ?to ensure the confidentiality of the identity of its vendors.?? Plaintiff objected on relevance grounds.? ?To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.?? Williams v. Superior Court (2015) 236 Cal.App.4th 1151, 1156.? Here, defendants contend that plaintiff lists vendor contacts as part of the allegedly stolen trade secrets, and so it must show how that information was safeguarded.? There is no clear reference in the operative pleading to vendor contacts being trade secrets, so the objection was not frivolous (even if it would have been overruled).
RPD No. 63 sought documents establishing defendant Shih?s classification as plaintiff?s agent/employee.? As noted, the failure to respond to this seems to have been an innocent oversight, not sanctionable conduct.
Because plaintiff has agreed to supplement all of the challenged RPDs herein, and since the original responses were to some degree substantially justified (or at least not abusive), this Court declines to award sanctions on this motion.
Special Interrogatories
Pursuant to CRC 3.1345(c), every motion seeking a further response to discovery must include a separate statement setting out the request, the response, and a statement of legal reasons for further response or production.? Failure to include a separate statement with a motion to compel further responses is presumptive grounds for denying the motion.? See St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778-779; Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.? Here, the motion ? at least that which was actually filed with the Court ? does not include a separate statement.? This is fatal to the motion.
Even if this Court were to forgive the absence of a separate statement, the motion is moot ? with the exception of Rogs 19, 27 and 28.? As to those:
? So long as plaintiff?s response does not identify by name any particular individual, a general description of the firm?s compensation schedule is fair game for discovery.? A substantive response to Rog. No. 19 is required within 20 days.
?? Although the firm?s response to a client complaint might not necessarily invade the attorney-client privilege, compelling a response to Rogs 27 and 28 is not feasible given that those interrogatories depend on responses to several other interrogatories, which plaintiff has already agreed to supplement.? To be clear, a response to Rog No. 27 depends on the response to Rog No. 24, which itself depends on a response to Rog No. 23 ? and a response to Rog No. 24 might invade the attorney-client privilege.? Plaintiff was well within its right to object to the convoluted and potentially violative nature of Rogs 27 and 28.
Since Rogs 19, 27 and 28 are a mixed bag, no sanctions will issue for those.? There remains the issue of sanctions for the Rogs plaintiff already to supplement.? Plaintiff responded to many of the ?trade secret? interrogatories ? defendants just wanted more.? As for the ?client communication? interrogatories, plaintiff had a legal obligation to protect client communications and has not waived those merely by claiming defendants stole sensitive information upon their departure.? Although supplementing the responses is proper, the original responses were not so gamey as to warrant sanctions.
Form Interrogatories
Plaintiff has agreed to provide a supplemental response to all form interrogatories except No. 8.4, to wit: plaintiff?s monthly income at the time of the incident (presumably Aug of 2014).? Plaintiff claims that it lost income as a result of defendants? departure, so naturally it must provide evidence of that loss (not just the potential for loss, but a provable loss).? Defendants seek discovery to compare income before and after the departure, which seems reasonable so long as client confidences are not disclosed.? The best way to show lost revenue is through monthly income (or profit/loss statements).? Defendants are entitled to this discovery within 20 days.
As for the original responses which plaintiff now agrees to supplement, this Court finds that those responses (mostly objections) were not made in good faith.? Plaintiff claims a loss of revenue, but refused to provide any information as to that loss, including insurance coverage, calculations or the like.? Plaintiff also failed to provide details for many of the 17.1 responses.? The original responses was not substantially justified, and as such defendants are entitled to recover the costs incurred in having to bring this to this Court?s attention for judicial intervention.
Based on the supporting declaration, and accounting for only the form rogs, this Court awards the defense $875 (1 hour for Friedland, 2 hours for Spivey, and filing fee), payable in 20 days.
Moving party to prepare order and provide notice.