Lawzilla Additional Information:
Per the Sacramento court records plaintiff is represented by attorney Sean Patrick and defendant is represented by attorney Cori Sarno. Republished below is a tentative ruling from the judge. It is our understanding this then became the final court ruling.

2017-00213901-CU-OE

Chen Li vs. Ca. Office of Statewide Health Planning and Dev.

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Sarno, Cori R.

The Motion to Compel Further Responses to Request for Production of Documents, filed by Defendant California Office of Statewide Health Planning and Development, is
GRANTED.

This case arises out of Plaintiff’s former employment as a structural engineer with Defendant. Plaintiff alleges that he was subjected to disparate treatment and harassment based on race/national origin and was the subject of retaliation for complaining about the purported discrimination. As part of his damages, Plaintiff seeks past and future wages, as well as compensation for pain and suffering, emotional distress and medical expenses. Plaintiff filed two complaints with the California Department of Fair Employment and Housing, and alleges that he was “constructively terminated” or took a “forced retirement” in December 2016.

Plaintiff filed this action on June 12, 2017. Following several demurrers, the operative Second Amended Complaint was filed February 16, 2018.

Defendant first noticed Plaintiff’s deposition for October 19, 2017. The notice of deposition contained a general request for production of documents, primarily addressed to documents supporting the allegations in Plaintiff’s complaint and his alleged damages. Due to Plaintiff’s unavailability, the deposition was rescheduled to November 2, 2017; Defendant served an amended notice of deposition containing the same document requests.

On October 19, Plaintiff served objections to all document requests. Despite the objections, defense counsel believed Plaintiff would bring documents to the deposition anyway and therefore did not pursue the matter. True to the objections, however, Plaintiff did not bring any documents to the deposition. During the deposition, defense counsel reviewed each of the requests with Plaintiff, who testified under oath that he had in his possession documents responsive to each of the requests. Plaintiff also testified that he had made notes on his computer, had emails regarding his complaints, as well as other unspecified documents pertaining to the alleged discrimination he suffered.

Following the deposition, Defendant sent a meet-and-confer letter on November 7, 2017. regarding the documents Plaintiff identified at deposition. Plaintiff’s counsel finally responded on December 4, 2017, stating that he was in the process of determining what documents Plaintiff was referring to during deposition and “if appropriate,” would produce them. In response, Defendant requested production of all responsive documents by December 8, 2017, along with a verification from Plaintiff that all responsive documents had been produced.

Defendant inquired regarding the status of the documents on December 29, 2017, because Plaintiff still had not produced any documents. On December 30, Plaintiff produced 16 pages of documents, indicating that they were the pages to which Plaintiff referred in his deposition. There was no information regarding harassment, witnesses, damages, Plaintiff’s personal notes, or emails. Defense counsel requested these remaining materials that Plaintiff had identified, as well as a verification of same. Finally, on January 5, 2018, Plaintiff’s counsel stated that no verification was necessary because it “was not a written RFP.”

To obtain a verified response from Plaintiff, Defendant then propounded the instant set of Requests for Production of Documents on January 12, 2018. The Request contained the 11 requests from the deposition notice, plus 25 additional requests. Plaintiff served responses on February 16, 2018, in which he objected to 14 of the requests on the grounds of attorney-client privilege and attorney work product doctrine. As to the remaining requests, Plaintiff indicated that responsive documents had already been produced. No additional documents were provided in response to the RFP.

On March 20, 2018, Defendant attempted to meet and confer via written correspondence regarding the responses. Defendant requests Plaintiff provide complete responses and a privilege log by March 26, 2018. Plaintiff did not respond. On April 3, 2018, with the deadline to file this motion looming, Defendant informed Plaintiff that the hearing for this motion would be in May and requested any specific dates that would not work on Plaintiff’s calendar. Only then did Plaintiff’s counsel respond that he had sent a response on April 2, 2018, and requested Defendant review it prior to filing a motion to compel. Defendant denies receiving any such communication. Defendant requested, and Plaintiff agreed, to a two-week extension to file the motion to compel to allow time to review Plaintiff’s April 2 correspondence. Over the ensuing weeks, defense counsel made several requests to Plaintiff’s counsel to re-send the April 2 correspondence but never received a response or the copy of the letter, at least as of the date of filing of this motion on April 20, 2018. (The Court notes that Plaintiff’s counsel claims to have re-sent the correspondence on April 12, 2018.)

In each of these requests for production of documents, Defendant seeks particular categories of documents that pertain to itemized facts/witnesses/documents as to the allegations contained in Plaintiff’s operative complaint as well as statements Plaintiff made in the course of his deposition. Plaintiff objected to these requests on the grounds that, among other things, they are vague, oppressive and burdensome, equally available, and are protected by the attorney-client privilege and/or attorney work product doctrine. As noted above, Plaintiff also responded that “responsive documents have previously been produced[.]” In some cases, only objections were provided, which is clearly inadequate.

These are not complicated requests. Plaintiff has testified to the existence of many of the documents in question. If, however, there are no documents supporting the allegations of the complaint or that match the documents Plaintiff described in his deposition, then the proper course of action for Plaintiff is to concede as much. If Plaintiff subsequently discovers documents tending to support a requests, and Defendant issues a request for supplemental responses, then Plaintiff may provide them at that time.

Based on the Court’s review, all of the documents that Defendant seeks are relevant. Absent privacy concerns, party seeking discovery need only show that the information is unprivileged and reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) More specifically, in the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) Here, the requested information is relevant to the allegations in Plaintiffs’ Complaint, to the issues to which Plaintiff testified in his deposition, written communications Plaintiff may have had with witnesses, and documents pertaining to medical issues and damages that Plaintiff claims. Thus, the information is indeed relevant.

The discovery system in California “is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations. … The right of privacy in California Constitution (art. I § 1), ‘protects the individual’s reasons expectation of privacy against a serious invasion.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250.)

As to the third-party privacy rights, the Court must examine whether there is a legally-protected privacy interest at issue based on established social norms, whether the claimant possesses a reasonable expectation of privacy under the circumstances, and if the invasion of privacy alleges is serious in nature, scope an and potential impact to constitute an egregious breach of social norms. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) If the claimant has met the test of an invasion of a privacy interest, the interest must then be measured against other competing or countervailing interests in a balancing test. (Id. at 371.) The Court would note, however, that relevancy in right of privacy cases seems to be governed by a more stringent standard of “direct relevance,” apparently to prevent a searching for only tangentially pertinent sensitive information. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 860-861, & fn. 4; Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (1987) § 8:320, p. 8C-50.) Nonetheless, here, Plaintiff has not provided the Court with any facts, information or argument regarding these potential third-party privacy interests for the Court to undertake this evaluation.

If Plaintiff legitimately claims that some portion of its response is subject to the attorney -client privilege or the attorney work product doctrine, or that there are real and legitimate third-party privacy interests that are implicated by the requests, then Plaintiff is obligated to so specify and prepare and provide to Defendant a sufficiently detailed privilege log so that Defendant may evaluate the assertion of the protections and privileges.

Based on the foregoing, Defendant’s Motion is GRANTED as to the following requests: 1-4, 6-12, 13 (pertaining to real estate appraisals conducted by Plaintiff in 2007 and identified in the requests and responses as an additional “Number 12”), 13-30, and 34. Plaintiff shall provide complete further responses to these requests.

The Court notes that with regard to Request Nos. 31-33, all of which pertain or relate to medical care Plaintiff received as a result of the claims at issue in this case, state only that the information is in the possession of the providers Plaintiff consulted. There is no indication that Plaintiff has attempted to obtain this information, nor does Plaintiff identify the providers. Defendant’s motion with regard to these Requests also is
GRANTED.

Based on the foregoing, Defendant’s motion to compel further responses to the identified documents requests is GRANTED. Plaintiff shall serve amended verified responses on or before May 29, 2018. Plaintiff’s responses shall comply with Code of Civil Procedure section 2031.220 (a responding party shall state that “all documents or things in the demanded category that are in the possession, custody or control of that party” shall be produced [emphasis added]), 2031.230 (a statement of inability to comply with a document request must specify whether a “responsible inquiry has been made in an effort to comply”; “whether the inability to comply with 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”; and 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”); 2031.240(b)(2) (“[i]f an objection is based on a claim of privilege, the particular privilege invoked shall be stated [and] if and objection is based on a claim that the information sought is protected work product…, that claim shall be expressly asserted”), and 2031.240(c)(1) (“[i]f an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including … a privilege log”).

Finally, the Court grants in part Defendant’s motion for sanctions. Defendant has long attempted to obtain responsive documents that, in the Court’s view, should have been provided. The responses that Plaintiff provided are hardly responses at all. Rather, they are primarily baseless objections and fail to indicate whether any documents beyond the 16 pages Plaintiff provided actually exist and whether Plaintiff will comply with the request as framed. While Plaintiff contends that Defendant did not sufficiently engage in meet-and-confer efforts, the Court disagrees. The Court concludes that Defendant has been quite patient, accommodating and diligent in attempting to obtain responses to which it was entitled.

For these reasons, the Court finds that sanctions are warranted. The Court disagrees, however, with Defendant’s claimed estimate of $6,000 in fees already incurred with an additional $1,700 to $2,550 to be incurred for further briefing and hearing attendance. Rather, the Court finds that $2,000 is an appropriate amount for sanctions to compensate Defendant for bringing this motion. Accordingly, the Court GRANTS IN PART Defendant’s motion for sanctions in the amount of $2,000.