Michael Moser vs. David Celeste
Nature of Proceeding:
Filed By:
Motion to Compel 1. Production of Documents 2. Further Responses
Buckman, Mark F.

Defendant David Celeste’s motion for further responses to his inspection demands is ruled upon as follows.

On September 30, the Court granted Defendants motion to compel production of documents in accordance with his statement of compliance and for further responses to request for production. Specifically, the Court overruled Plaintiff’s objection to the requests on the grounds that documents related to the ownership of the properties at issue in this boundary dispute were not relevant. Plaintiff was ordered to provide further responses, to provide a privilege log if any documents were withheld on the basis of any privilege and also ordered plaintiff to produce the documents he stated he would produce in his responses.

Defendant now moves for further responses on the basis that Plaintiff has not produced a privilege log, and has failed to comply with CCP § 2031.230.

With respect to the privilege log, the motion is granted. The responses make clear that Plaintiff has withheld documents in response to numerous requests based upon his assertion that the requests seek privileged tax returns. Plaintiff argues that no privilege log is necessary because since such documents are privileged, Defendant will never be able to obtain them and thus no description of them is necessary. The Court disagrees. While it may be that Defendant may never be able to obtain such records, the authority cited by Plaintiff recognizes that “the privilege is not absolute.” (Schnabel v. Superior Court (1995) 5 Cal.4th 704, 721.) To fully evaluate a privilege, Defendant, must, as previously ordered by the Court, produce a privilege log describing the documents withheld based on the claimed privilege. §2031.240 now provides that, in response to an objection on a claim of privilege or attorney work product, the party withholding documents must provide sufficient factual information for other parties to evaluate the merits of that claim, including if necessary, a privilege log.

A privilege log providing no descriptors is not “sufficient factual information” to allow evaluation on the merits of the claim of privilege. Alternatively, Defendant may provide a further response sufficiently describing the withheld documents.

With respect to the remainder of the motion, the Court must admit that it is far from evident what exactly Defendant seeks, as the motion is not a model of clarity. First, as best the Court can tell, Defendant appears to argue that Plaintiff’s court ordered further responses, apparently to requests 1-3, 5, 6, 11, 12, 17 and 29 are deficient because Plaintiff has now responded that responsive documents were destroyed, but he does not indicate who or what destroyed them and he never revealed or acknowledged in his original responses that documents were destroyed. The motion is granted as to these responses in which Plaintiff responded that documents were destroyed. Plaintiff shall provide further responses indicating how the documents were destroyed. It appears from Plaintiff’s declaration in opposition to the motion that the documents were destroyed pursuant to his record keeping practices as an independent real estate developer and builder. (Plf.’s Decl. ¶ 3.) However, Plaintiff must include such information in his discovery responses.

Defendant also apparently takes issue with many of the Court ordered further responses which state that plaintiff is unable to comply with the particular request after making a “diligent search and reasonable inquiry” because he is “unaware at this time of any responsive documents.” The Court finds that these further responses are sufficient and comply with the requirements of CCP § 2031.230, contrary to Defendant’s suggestion. Defendant argues that Plaintiff should either say he is aware of such documents or not and not condition his response with “at this time.” Defendant is incorrect that the Court previously found that such response was improper when it granted the previous motion as Plaintiff’s initial responses did not contain any statement that Plaintiff was “unaware at this time of any responsive documents” after making a “diligent search and reasonable inquiry.” Though a few responses stated that Plaintiff was unaware at this time of any documents (e.g., Nos. 19, 21), none stated that he was unaware of any documents after making a diligent search. Indeed, Plaintiff is correct that he may learn of additional documents later in the litigation. To that end the Court notes that the Code allows the use of supplemental requests. (CCP § 2031.050.) These further responses are consistent with the Court’s previous order requiring further responses and the motion is denied to the extent it argues that responses indicating that Plaintiff is unaware at this time of documents after making a diligent search is insufficient.

Next, Defendant seems to take issue with Plaintiff’s response to request 29 which requested documents that relate to any damages and to which Plaintiff responded that he incorporated his prior responses to requests 1-28 and is “also unable to comply with this demand as to certain responsive documents.” The Court agrees that a further response is required which identifies what documents Plaintiff is referring to and why, with respect to those documents, he cannot comply.

Finally, the Court notes that Defendant seeks monetary sanctions based on the fact that with respect to some responses, Plaintiff initially interposed objections but in his further responses he claims that responsive documents never existed. Defendant reasons that Plaintiff failed to explain why he would object to a request for documents if no such documents ever existed. The Court declines to impose sanctions on this basis.

No later than January 29, 2014, Plaintiff shall provide further, verified responses to request for production nos. 1-3, 5, 6, 11, 12, 17 and 29 as set forth above. In addition, Plaintiff shall provide a privilege log as set forth above, or further responses sufficiently describing the documents based on the privilege for tax returns.

Defendant’s request for monetary sanctions is denied as both parties partially prevailed on this motion.

The minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.