Case Name: Savi Technologies, Inc. v. WackPro, Inc., et al.

Case No.: 2014-1-CV-268149

Savi Technologies, Inc.’s Motion to Compel Further Responses to Request for Production, Set 6, Numbers 71 – 77, 79 – 80, and 83 – 95 and Sanctions in the Amount of $3,897 Against WackPro, Inc.

Factual and Procedural Background

This action arises out of a commercial relationship between Savi and WackPro that spans several years. On March 22, 2012, the parties entered into an Independent Contractor Agreement (the “Agreement”), under which Savi agreed to provide SAP consulting services to WackPro by assisting in software development for its clients at WackPro’s facilities or those belonging to the clients. (First Amended Complaint (“FAC”), ¶ 6 and Exhibit A.) Independent contractors were assigned to each WackPro client project and Savi would issue a series of invoices, by contractor and client, to WackPro for payment for work completed. (Id., ¶ 10 and Exhibit B.) Savi alleges that WackPro breached the Agreement by failing to remit payment for the required invoices with a total outstanding balance of no less than $111,429.64. (Id., ¶ 11.) Savi further alleges that WackPro breached separate oral agreements for the payment of referral fees and management services by failing to completely pay outstanding amounts due. (Id., ¶¶ 12-13.)

In September 2016, Savi filed the FAC asserting the following causes of action: (1) breach of written contract; (2) breach of oral contract for referral fees; (3) breach of oral contract for management fees; (4) common count- open account; (5) common count- account stated; (6) common count- services rendered; (7) unjust enrichment; and (8) quantum meruit. Savi filed its initial complaint on July 18, 2014.

WackPro filed its Cross-Complaint on August 10, 2015, asserting claims against Savi for: (1) breach of contract; (2) breach of contract; (3) misappropriation of trade secrets; and (4) intentional interference with prospective economic advantage. The thrust of this pleading is that WackPro shared confidential information with Savi pursuant to the written agreement between the parties and Savi then breached the confidentiality and non-disclosure provisions of that agreement and used the information obtained to wrongfully interfere with WackPro’s client relationships. (Cross-Complaint, ¶¶4-11.) WackPro further alleges that Savi breached a non-compete provision of the written contract by “deliberately and unlawfully circumventing WackPro to solicit WackPro’s’ clients Riverpoint Solutions and SBP Consulting.” (Id., ¶ 20.)

Discovery Dispute

Savi propounded Request for Production of Documents (“RPD”), set six, numbers 71 – 93 upon WackPro seeking documents related to WackPro’s accounting practices.

On September 8, 2017, WackPro served Savi with a Response to RPD, set six.

Unsatisfied with WackPro’s response, Savi’s counsel sent a meet and confer letter to WackPro’s counsel on or about October 16, 2017 regarding purported deficiencies with WackPro’s response.

WackPro responded by letter dated October 19, 2017 refusing to amend its responses.

On October 30, 2017, Savi filed the motion now before the court, a motion to compel WackPro’s further response to RPD, set six, numbers 71 – 77, 79 – 80, and 83 – 95, and a request for monetary sanctions.

I. Request for judicial notice.

In opposition to Savi’s motion to compel further responses, WackPro requests judicial notice of various court records from the instant action. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.) Accordingly, the request for judicial notice in support of WackPro, Inc.’s opposition to Savi’s motion to compel further responses to requests for production, set six (nos. 71 – 77, 79 – 80, and 83 – 95) is GRANTED. The court takes judicial notice of the existence of the court records, not necessarily the truth of any matters asserted therein.

II. Savi’s motion to compel WackPro’s further responses to RPD, set six, numbers 71 – 77, 79 – 80, and 83 – 95 is GRANTED, in part, and DENIED, in part.

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

1. A statement of compliance with the demand is incomplete.
2. A representation of inability to comply is inadequate, incomplete, or evasive.
3. An objection in the response is without merit or too general.

(Code Civ. Proc., §2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., §2031.310, subd. (b)(1); see also Code Civ. Proc., §2025.450, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

In reviewing the separate statement submitted by plaintiff Savi, the court is satisfied that plaintiff Savi has established good cause justifying the discovery sought by RPD, set six, numbers 71 – 77, 79 – 80, and 83 – 95. Thus, the burden shifts to WackPro to justify its objections.

A. RPD, numbers 71 – 72.

With regard to RPD, set six, numbers 71 – 72, Savi requested Quickbooks accounting reports. Defendant WackPro responded by stating, “after a diligent search and reasonable inquiry, WackPro is unaware of any responsive documents in its possession, custody, or control.” Savi contends this representation of inability to comply is evasive and false. Savi proffers evidence to suggest that WackPro’s assertion that it did not have Quickbooks accounting software is false. In opposition, WackPro proffers evidence to affirm that it did not use Quickbooks accounting software until after its relationship with Savi terminated. As such, WackPro argues, “the materials sought literally do not exist.” The court does not find WackPro’s response to be demonstrably false. Nevertheless, the court finds WackPro’s response to be inadequate.

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., §2031.230.)

If the requested documents do not exist, the appropriate response is to represent that WackPro lacks the ability to comply and specify that the inability to comply “is because the particular item or category has never existed.” WackPro’s statement that it is “unaware” of any responsive documents is equivocal, if not evasive. Accordingly, plaintiff Savi’s motion to compel WackPro’s further response to RPD, set six, numbers 71 – 72 is GRANTED. Defendant WackPro shall provide a verified further written response, without objection, to RPD, set six, numbers 71 – 72 within 10 days from notice of this order.

B. RPD, numbers 73 – 75.

With regard to RPD, set six, numbers 73 – 75, Savi seeks accounting information. WackPro objects, in part, on the basis that it already produced responsive documents in PDF format and should not be required to produce responsive documents in their native format. WackPro cites Code of Civil Procedure section 2031.280, subdivision (d)(2) which states, “A party need not produce the same electronically stored information in more than one form.” WackPro maintains it already responded to a similar request, Savi’s RPD, set three, numbers 63 – 63 (misnumbered), with objections and Savi did not seek to compel a further response, thereby waiving its right to now compel any further response. The court does not find the current requests to be sufficiently identical to the earlier requests. Savi is not precluded from now seeking to compel a further response. WackPro has not submitted admissible evidence to substantiate its assertion that it has already produced, in a different format, documents responsive to these requests.

WackPro argues further that RPD, set six, numbers 73 – 75 seek, in part, Quickbooks reports which WackPro maintains do not exist. If so, then the appropriate response would be for WackPro to state an inability to comply, in part. (See Code Civ. Proc., §§2031.220 and 2031.240, subd. (a).)

WackPro fails to substantiate its assertion that RPD, set six, numbers 73 – 75 are unduly burdensome and oppressive. (See West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418 [because “some burden is inherent in all demands for discovery,” a party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship, including evidence showing the quantum of work required to respond].)

Accordingly, plaintiff Savi’s motion to compel WackPro’s further response to RPD, set six, numbers 73 – 75 is GRANTED. Defendant WackPro shall provide a verified further written response, without objection, to RPD, set six, numbers 73 – 75 and produce all responsive documents thereto within 10 days from notice of this order.

C. RPD, numbers 76, 79, 80, 84 – 91, and 93.

With regard to RPD, set six, numbers 76, 79, 80, 84 – 91, and 93, Savi seeks documents related to advance payments made by WackPro to Savi and emails regarding invoices, certain checks, and advance payments. WackPro objected to RPD, set six, numbers 76, 79, 80, 84 – 91, and 93 on the basis that it has already produced responsive documents. The court finds merit to the objection. Accordingly, plaintiff Savi’s motion to compel WackPro’s further response to RPD, set six, numbers 76, 79, 80, 84 – 91, and 93 is DENIED.

D. RPD, number 77.

With regard to RPD, set six, number 77, Savi seeks documents referring to accounting information for an invoice. WackPro objects, in part, on the basis that this request is duplicative. The court does not find RPD, number 77 to be duplicative or sufficiently identical to an earlier request. WackPro also fails to substantiate its assertion that the request is unduly burdensome or oppressive.

Accordingly, plaintiff Savi’s motion to compel WackPro’s further response to RPD, set six, number 77 is GRANTED. Defendant WackPro shall provide a verified further written response, without objection, to RPD, set six, number 77 and produce all responsive documents thereto within 10 days from notice of this order.

E. RPD, number 83.

RPD, number 83 seeks, “All COMMUNICATIONS sent or received by WackPro REFERRING to Checks Numbered 1208 and 1209 sent by WACKPRO to SAVI.” WackPro asserts is has previously conducted searches and collected materials pertaining to a number of checks. However, WackPro fails to provide the court with any evidence that it conducted searches or collected materials pertaining to checks numbered 1208 and 1209. WackPro also fails to substantiate its assertion that the request is unduly burdensome or oppressive.

Accordingly, plaintiff Savi’s motion to compel WackPro’s further response to RPD, set six, number 83 is GRANTED. Defendant WackPro shall provide a verified further written response, without objection, to RPD, set six, number 83 and produce all responsive documents thereto within 10 days from notice of this order.

F. RPD, numbers 92, 94, and 95.

RPD, set six, numbers 92, 94, and 95 seeks email communications related to certain invoices and checks. WackPro objected to RPD, set six, numbers 92, 94, and 95 on the basis that they are duplicative or other discovery propounded by Savi. WackPro cites to other discovery requests, but the court does not find the RPD, set six, numbers 92, 94, and 95 to be duplicative. WackPro also fails to substantiate its assertion that the request is unduly burdensome or oppressive.

Accordingly, plaintiff Savi’s motion to compel WackPro’s further response to RPD, set six, numbers 92, 94, and 95 is GRANTED. Defendant WackPro shall provide a verified further written response, without objection, to RPD, set six, numbers 92, 94, and 95 and produce all responsive documents thereto within 10 days from notice of this order.

III. Request for sanctions.

“Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.310, subd. (h).) Since plaintiff Savi did not prevail entirely, the court declines to award sanctions. Plaintiff Savi’s request for monetary sanctions is DENIED.