Case Number: BC632950 Hearing Date: June 01, 2018 Dept: 73

6/1/18
Dept. 73
Rafael Ongkeko, Judge presiding

DULCE ROBLEDO v. PACIFIC CONTINENTAL TEXTILE (PCT), et al. (BC632950)

Counsel for plaintiff/opposing party: Robert Younger (Younger Law Firm)
Counsel for defendants/moving parties: Stacy Douglas (Collinson Law)

Defendants’ motion to compel plaintiff’s production of her cell phone for inspection along with her passcode; request for order awarding monetary sanctions in the amount of $2,810 (filed 5/2/18)

TENTATIVE RULING

Defendants Pacific Continental Textile (PCT), Pacific Continental Textiles, Inc., and Edmund Kim International, Inc.’s motion to compel Plaintiff Dulce Robledo’s production of her cell phones for inspection along with her passcode is GRANTED. The production date shall occur on or before ____________, for a ____ business-day period, at which time the cell phone(s) shall be returned.

Requests for sanctions are DENIED.

Discussion

On February 26, 2018, Employer Defendants served Plaintiff with a Notice of Inspection, asking Plaintiff to produce: (1) the cell phone on which Plaintiff received text messages from Defendant Choi which Plaintiff produced in discovery of this matter; and (2) all cell phones Plaintiff has owned since her employment ended. The notice expressly states that: “Compliance with this request may be accomplished by producing YOUR cellular telephone(s) for forensic evaluation to Data Triage located at 1021 Wilshire Blvd., #656, Los Angeles, CA 90027. The cellular telephone will be examined for data pertaining to the text messages related to this lawsuit and any other communications between DULCE ROBLEDO and CHRIS CHOI. If there is a password for accessing the cellular telephone, YOU will need to provide the password. YOU will also need to provide the compatible cellular telephone charger.” (Douglas Decl. ¶ 5, Ex. A.)

On March 20, 2018, Plaintiff served an objection. For both requests, Plaintiff stated: “Objection. Overbroad, invades right of privacy, violates the attorney work produce(sic) and attorney client privilege.” (Douglas Decl. ¶ 8, Ex. C.)

On May 2, 2018, Employer Defendants filed this motion to compel Plaintiff to produce her cell phone and passcode for inspection no later than June 15, 2018. Employer Defendants argue they have good cause for the request because: (1) Plaintiff has produced text messages she received from Defendant Choi, but failed to include her responses; and (2) they believe Plaintiff participated in romantic exchanges with Choi, which is relevant to the harassment causes of action. Employer Defendants request $2,810 award in sanctions against Plaintiff and her counsel.

On May 17, 2018, Plaintiff filed an opposition. Plaintiff contends the recent inspection demand is a continuation of Defendants’ previous attempts to obtain the same information to avoid the 45-day deadline to file a motion to compel. Plaintiff argues she has produced all text messages under her possession, custody, and control in both her discovery responses and at her deposition. Plaintiff argues Defendants have also failed to present a compelling interest for such an invasive request. Plaintiff requests $3,672 in sanctions be imposed against Defendants and their counsel.

Merits

“On receipt of a response to demand for inspection . . ., the demanding party may move for an order compelling further response if the demanding party deems that (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; [or] (3) An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

Meet and Confer & Separate Statement

California Rules of Court, rule 3.1345 requires that all motions or responses involving further discovery, including motions to compel further responses to a demand for inspection of documents contain a separate statement with the text of each request, the response, and a statement of factual and legal reasons for compelling further responses. (Cal. Rules of Court, rule 3.1345(a).) The motion must also be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.310, subd. (b)(2).) Here, Employer Defendants’ counsel has satisfied the procedural requirements. Defendants’ counsel attempted to meet and confer on multiple occasions (Douglas Decl., ¶¶ 10-13), and Employer Defendants filed a separate statement.

Timeliness

Plaintiff argues Employer Defendants’ motion is duplicative of previous discovery records and is an improper attempt to circumvent the 45-day deadline to file a motion to compel.

Notice of the motion must be given within 45 days of service of the verified response, or upon a later date agreed to in writing. Otherwise, the propounding party waives any right to compel a further response. (Code Civ. Proc., § 2031.310, subd. (c).) The deadline cannot be circumvented by asking the questions again. (Professional Career Colleges v. Superior Court (1989) 207 Cal.App.3d 490, 492.) But discovery is allowed even if it is duplicative of other information already obtained. (Tbg Ins. Servs. Corp. v. Sup. Ct. (2002) 96 Cal. App. 4th 443, 448; Carter v. Sup. Ct. (1990) 218 Cal.App.3d 994, 997 [allowing demands for documents and depositions notices requesting documents]; Irvington-Moore, Inc. v. Sup. Ct.(1993)14 Cal. App. 4th 733, 739 [A party is permitted to use multiple methods of obtaining discovery and the fact that information was disclosed under one method is not, standing alone, a proper basis for refusing to provide discovery under another method.”]; Bunnell v. Sup. Ct. (1967) 254 Cal. App. 2d 720, 723 [“plaintiff could not refuse to answer merely on the claim that the requested information had been given in previous depositions . . .”].)

Here, Employer Defendants have sought similar discovery through Requests for Production of Documents. On March 29, 2017, Plaintiff previously provided text messages and emails in response to Employer Defendants’ February 8, 2017 Request for Production of Documents, Set One, Request No. 29, which sought all cellular/mobile telephone records, bills, and/or other documents relating to Plaintiff’s communication with Defendant Choi. (Pl’s Exs. ISO Opp., Exs. 1, 2.) On August 28, 2017, Plaintiff again provided text messages and emails in response to Employer Defendants’ August 8, 2017 Request for Production of Documents, Set Two, which sought all documents that reference text messages between Plaintiff and Defendant Choi, including unredacted text messages between Plaintiff and Defendant Choi. (Pl’s Exs. ISO Opp., Exs. 3, 4.) On October 2, 2017, Plaintiff again provided text messages and emails in response to Employer Defendants’ August 31, 2017 Deposition Notice, and September 6, 2017 Amended Deposition Notice, which requested “[c]opies of all text messages exchanged between you and Chris Choi, including return text messages you sent to Mr. Choi which were excluded from your responses to Request for Production.” (Pl’s Exs. ISO Opp., Exs. 5, 6, 7.)

Although Plaintiff may have produced the same documents in response, Employer Defendants’ inspection demand is a different method of discovery, not duplicative of previous requests, and not burdensome or oppressive. Defendants’ motion is timely.

Merits

Plaintiff argues Employer Defendants’ motion must be denied because they do not establish good cause or the compelling interest requirement to discover private information.

As to motions to compel document requests, moving parties must file evidence, such as a declaration, showing good cause, based on specific facts, that the requested matter is admissible evidence, or appears reasonably calculated to lead to the discovery of such evidence. (Calcor Space Facility, Inc. v. Sup. Ct. (1997) 53 Cal.App.4th 216, 223-224.) If the moving party has shown good cause for the document production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup. Ct (2002) 95 Cal. App.4th 92, 98.) However, “[i]f an obvious invasion of interest fundamental to personal autonomy is involved, then the compelling interest test applies. If the invasion is less central, or is in bona fide dispute, then a general balancing test applies.” (Dept. of Fair Employment & Housing v. Sup. Ct. (2002) 99 Cal. App. 4th 896, 903.) The party seeking discovery has the “burden of making a threshold showing that the evidence sought is ‘directly relevant’ to the claim or defense.” (See Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.)

Defendant requests Plaintiff to produce the cell phone on which she received text messages from Choi, as well as produce all other cell phones Plaintiff has owned since Plaintiff’s employment ended. Although the demand explicitly states that the phone will be examined for data pertaining to the text messages related to this lawsuit and any other communications between Plaintiff and Defendant Choi, Defendants’ counsel has narrowed the inspection to communications and interactions between Plaintiff and Choi. (Douglas Decl. ¶ 10.) Employer Defendants request the inspection because Plaintiff has previously provided text messages, which Employer Defendants believe are incomplete. Employer Defendants believe the communications and interactions are directly relevant to Plaintiff’s workplace harassment complaint and will show whether she engaged in romantic communication with Defendant Choi. As such, Plaintiff’s right to privacy is outweighed by Employer Defendants’ right to discover relevant facts related to allegations of workplace harassment.

Employer Defendant’s motion to compel inspection is GRANTED on condition that the inspection is limited only to text messages and email communications with Defendant Choi.

The parties’ requests for monetary sanctions are DENIED. Both parties had substantial justification in bringing/opposing this motion.

Unless waived, notice of ruling by moving parties.