Case Number: BC593965 Hearing Date: May 09, 2016 Dept: 40

THE RACK, LLC v. WESTFIELD CORPORATION, INC., et al.

MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION (SET ONE)

Case No: BC593965
Hearing Date: May 9, 2016
Tentative Ruling: The moiton to compel further responses to requests for production (set one) is GRANTED in part and DENIED in part. The request for sanctions is DENIED.

RFP Nos. 9 and 11

At issue with respect to these requests for production is Defendant’s refusal to produce all leases it has with other tenants for the last eight years. Plaintiff argues that these leases are necessary in order to show whether Defendant had a secret plan not to replace vacating tenants and to enter into to shorter leases. Defendant, on the other hand, contends that these documents are unnecessary and contain confidential proprietary information that could be damaging to its business if made public. Request for production 11 seeks documents evidencing or describing any efforts to lease space in THE PROMENADE after January 2, 2008, not just the leases.

Here, the Court agrees with Defendant that the leases pertaining to other tenants need not be produced. As an initial matter, Plaintiff’s argument that the leases are relevant is directly tied to whether or not Defendant is purposefully avoiding filling vacancies at the mall and/or is refusing to enter into long-term leases in an effort to drive tenants away. However, obtaining the leases themselves is not necessary in order to determine this information. Rather, all that is needed is a listing of the tenancies over the years, including the names of the tenants, the length of the leases, and the status of the leases. Defendant has already produced such information in its occupancy reports. See Korman Decl., Ex. 7 and 8. Any additional information, such as the rental rates and other lease terms are irrelevant to Plaintiff’s claims. Next, Defendant has asserted that certain aspects of its leases contain proprietary information, such as the amount of rent, calculation of rent, and lease-specific terms. It is well-taken that such information contains proprietary information that could be damaging to Defendant if made public. Specifically, such information falling into the hands of Plaintiff, one of Defendant’s own tenants, could have a detrimental impact on Defendant’s ability to negotiate future lease terms with Plaintiff.

To the extent that RFP 11 requests non-lease documents that do not contain financial information, such documents are relevant to the issue of whether Defendant was seeking to replace tenants.

The motion to compel further responses to RFP No. 9 is DENIED and 11 is DENIED IN PART and GRANTED as to non-lease documents that evidence or describe efforts to lease space in THE PROMENADE after January 1, 2008.

RFP No. 24

This request for production requests Defendant to produce “[a]ll reports prepared after January 1, 2008 describing or memorializing the operations, performance and/or financial condition of THE PROMENADE.” Plaintiff again argues that such documents may show how Defendant planned to close the mall despite its representations to the contrary. Defendant objects to this RFP on the grounds that it is vastly overbroad, that certain relevant documents have been or will be produced, and that any information regarding Defendant’s financial condition is not discoverable.

Defendant’s arguments, for the most part, are well-taken. As an initial matter, Plaintiff’s request for “[a]ll reports” related to “operations, performance and/or financial condition” is incredibly overbroad and could encompass virtually any type of document. That being said, it is undeniable that certain documents, such as those reports related to the operation and physical condition of the mall, would be directly relevant to Plaintiff’s claims. Such documents should be produced if they have not been already. However, documents related to Defendant’s financial condition are not discoverable and Plaintiff has not established any overriding need for the production of such documents.

Based on the foregoing, the motion to compel further responses to request for production No. 24 is GRANTED in part and DENIED in part. Plaintiff is entitled to document production relating to the operation and physical condition of the mall, but not to documents pertaining to Defendant’s financial condition. The parties are ordered to further meet and confer to identify the reports that may be responsive and which should be produced.

RFP Nos. 30 and 31

Lastly, these requests for production request documents that show the personal contact information for former managers of Defendant’s mall. Plaintiff argues that such information is necessary in order to allow it to contact potential percipient witnesses. Defendant opposes this production on the grounds that the personal contact information of its former employees is privacy protected. Defendant asserts that it has already named the former employees and that this should be enough.

The Court agrees that Plaintiff is entitled to discover the contact information of these percipient witness. Defendant has already acknowledged producing documents with the names of the various managers of the Westfield malls, so its argument that it would be burdensome to identify the employees in question is inaccurate. Next, the contact information of percipient witnesses who worked at the mall and implemented Defendant’s policies is clearly relevant in this litigation. Finally, while it is true that Defendant’s “former employees unquestionably have a legitimate expectation of privacy in their addresses and telephone numbers,” the relative lack of seriousness of the invasion of this privacy right militates in favor of requiring production of this information. See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1252-55. Here, “the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information.” Id. at 1253. Such information “ is basic civil discovery” and is “ ‘routinely produced during discovery.’ ” Id. at 1254. There are no extenuating circumstances here, such as danger to the witnesses, which would favor the limiting of production. Thus, to the extent that former managers are current Westfield employees, the current business address and telephone information in lieu of personal contact information suffices. However, to the extent that former managers are no longer employees of Westfield, Defendant must product their personal contact information.

As such, the motion to compel further responses to RFP Nos. 30 and 31 is GRANTED. Defendant is ordered to produce further documents showing the contact information for its former managers as have already been identified. Any additional sensitive information contained on such documents, such as social security numbers, must be redacted.

Sanctions

Both parties acted with substantial justification in bringing and opposing the motion to compel. On this basis, no sanctions are awarded.