17-CIV-01393 ARMANDO SOLORIO vs. XPO LOGISTICS, INC., et al.

ARMANDO SOLORIO CARLA J. HARTLEY

XPO LOGICTICS, INC. RYAN SABA

2. ARMANDO SOLORIO’S MOTION TO QUASH PER ORDER SIGNED 2/09/2018 IN DEPT. 3

TENTATIVE RULING:

The Motion of Plaintiff/Cross-Defendant Armando Solorio (“Solorio”) to Quash/Modify Subpoena Defendant/Cross-Complainant XPO GF America Inc.’s (“XPO”) Deposition Subpoena to JAS Forwarding Inc. (“JAS”), is GRANTED IN PART.

Although the deposition subpoena originally sought eleven categories of documents, XPO and JAS agreed to narrow the subpoena to four categories of documents. (See Hartley Decl., Exh. C, January 10, 2018 letter.) Further, as to one of the agreed upon categories, i.e. for documents/emails referring to Plaintiff’s compensation or benefits, XPO has agreed to narrow this category further to “documents evidencing any compensation, bonuses, incentives, commissions, or other types of benefits that are attached to the acquisition or maintenance of client accounts.”

Plaintiff opposes production of documents referring to Plaintiff’s compensation or benefits, objecting that the subpoena is overbroad, not reasonably calculated to lead to the discovery of admissible evidence, and violates Plaintiff’s right of privacy. The court finds Plaintiff’s two objections to be without merit as XPO has now narrowed down the subpoena, and is seeking documents relevant to XPO’s Cross-Complaint. As to Plaintiff’s claimed right of privacy, the court has applied a balancing test and finds that Defendant’s need for this information outweighs Plaintiff’s privacy right. Plaintiff’s privacy objection appears to be directed at having to disclose documents concerning Plaintiff’s customers that were not former or current customers of XPO. However, it seems that any confidentiality with respect to customers’ identities belongs to JAS, and JAS did not raise any objection on this ground.

Accordingly, JAS is to produce the following documents:

1. Only documents/emails after 1/1/16;

2. Documents evidencing any compensation, bonuses, incentives, commissions, or other types of benefits that are attached to the acquisition or maintenance of client accounts;

3. Documents/emails referring to XPO and Plaintiff; and

4. Documents/emails referring to ASUS and Plaintiff.

The remainder of the documents sought in the deposition subpoena are QUASHED.

JAS is to produce these documents by March 27, 2018.

Plaintiff’s and XPO’s requests for sanctions are DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

3. XPO GF AMERICA, INC.’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET TWO, AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,112.50

TENTATIVE RULING:

The motion is granted as to Categories 25, 26, and 27. The response is deficient for two reasons. First, the response fails to state whether any documents were ever in Plaintiff’s possession, but no longer are in his possession. (Code of Civ. Proc. sect. 2031.230.) Second, the response that Plaintiff has no “non-privileged” documents raises the possibility that privileged documents might exist. In that case, Plaintiff is required to provide a log that identifies every document, if any, that is being withheld. (Id. sect. 2031.240, subd. (b) & (c).) Plaintiff shall supplement his responses to comply with sections 2031.230 and 2031.240.

The motion is granted as to Categories 28, 29, 36, 37, 38, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 58, and 59. Plaintiff’s response that no documents exist that Plaintiff does not possess any responsive documents fails to meet the requirements of section 2031.230 (indicating that whether any documents were lost, destroyed, or never existed).

The motion is denied as to Categories 30, 31, 32, 34, and 35. The categories are not “reasonably particularized.” (Code of Civ. Proc. sect. 2031.030, subd. (c)(1).) Defendant’s relevance argument has partial merit, but these categories extend beyond the subject matter relevance of Defendant’s contention that Plaintiff used Defendant’s confidential information improperly.

The motion is denied as to Category 39, as not reasonably particularized.

The motion is granted as to Category 40. Plaintiff shall supplement his response to by identifying responsive documents, if any, that are withheld under objection. (Code of Civ. Proc. sect. 2031.230)

The motion is denied as to Category 54. Plaintiff’s compensation is not relevant to the subject matter of the Complaint or Cross-complaint.

As to documents that are proprietary or confidential to Plaintiff’s employers, the Court finds that the Protective Order in this matter does not justify requiring Plaintiff to produce those documents. The Order addresses confidential matter, but not the issue of documents that are property of a nonparty to this litigation.

Both parties’ requests for sanctions are denied.

Plaintiff shall serve verified supplemental responses no later than March 23, 2018. Any extension of the deadline shall be confirmed in writing by Defendant’s counsel.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

4. XPO GF AMERICA, INC.’S MOTION TO COMPEL ARMANDO SOLORIO TO ANSWER QUESTIONS IN DEPOSITION, REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $3,750.00

TENTATIVE RULING:

The motion is granted as to Questions 1 through 32, and 34 through 58. Plaintiff’s counsel interposed objections, many of which had merit. With the exception of an objection based on privilege, however, valid objections do not justify an instruction not to answer or a witness’s refusing to answer a question. The remedy for a continuing inquiry of objectionable matter is a motion for protective order. (Code of Civ. Proc. sect. 2025.460(b) & 2025.470.) Otherwise, the deponent must answer the question and the testimony will be received, subject to the objection. (Id. sect. 2025.460(b).) Instructing the witness not to answer is improper. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014, 1015.)

The motion is denied as to Question 33. Plaintiff answered the question. (See Transcript at 21:12.)

Defendant’s request for sanctions is granted in the amount of $2,625.00. Plaintiff’s objections mostly had merit, but the refusals to answer were not substantially justified.

Plaintiff shall answer questions 1 through 32, and 34 through 58.

Plaintiff Armando Solorio and his attorney Carla Hartley and the law office of Dillingham & Murphy shall jointly and severally pay a monetary sanction of $2,625.00 to Defendant XPO GF America, Inc., no later than 10 calendar days after service of written notice of this order.