SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

SINCO TECHNOLOGIES PTE LTD,

Plaintiff,

vs.

LIEW YEW SOON AKA MARK LIEW; SINCO ELECTRONICS (DONGGUAN) CO., LTD., NG CHER YONG AKA CY NG, ML TJOA; AND DOES 3 THROUGH 20, INCLUSIVE,

Defendants.
Case No. 2016-1-CV-301867

TENTATIVE RULING RE: MOTION TO COMPEL PRODUCTION AND DEPOSITION OF LIEW YEW SOON AKA MARK LIEW; MOTION TO SEAL

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on December 14, 2018, at 3:00 p.m. in Department 5. The Court now issues its tentative ruling as follows:

XI. INTRODUCTION

This action arises out of alleged trade secret misappropriation. The First Amended Complaint, filed on January 19, 2018, sets forth the following causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) unfair business practices; (4) intentional interference with contractual relations; (5) misappropriation of trade secrets; and (6) civil conspiracy.

Plaintiff Sinco Technologies PTE Ltd. (“Plaintiff”) now moves to compel responses to requests for production of documents and to compel the further deposition of defendant Mark Liew (“Liew”). Plaintiff also moves to seal portions of the Order to Show Cause Re: Contempt Against Mark Liew, and supporting documents, filed on October 9, 2018

XII. MOTION TO COMPEL

A. Request for Production of Documents

Plaintiff moves to compel the production of responsive documents to Plaintiff’s Request for Production of Documents, Set Four, request nos. 82-172. Plaintiff asserts these requests were served on defendant Mark Liew on June 15, 2018 and no responses have been received. (Declaration of Michelle G. Trevino in Support of Plaintiff’s Motion to Compel Production and Deposition of Liew Yew Soon aka Mark Liew (“Trevino Decl.”), ¶ 7.) Plaintiff moves to compel production for request nos. 82-172 pursuant to Code of Civil Procedure section 2031.320, which allows the requesting party to move for an order compelling compliance.

It is somewhat unclear why Plaintiff relies on section 2031.320 instead of section 2031.300, which allows a party to move to compel an initial response, since there does not appear to have been any response to Request for Production of Documents, Set Four. Nevertheless, in an email on August 7, 2018, Liew’s counsel stated he would double-check with Liew to see if he had anything responsive. (Trevino Decl., Ex. K.) This statement could be construed as a statement of intent to comply with the discovery requests.

In opposing the motion, Liew’s counsel states Liew previously produced some emails without permission and is no longer allowed to access and produce such documents, so they are not within his possession, custody, or control. In the next paragraph, however, Liew’s counsel makes the contradictory statement that there might be some documents that are available to Liew that could be produced.

The Court notes Liew has not responded to the discovery requests and has asserted no objections. In addition, failure to serve a timely response to a request for production of documents results in waiver of any objection to the demand. (Code Civ. Proc., § 2031.300, subd. (a).) Therefore, Liew must provide complete, code-compliant responses to Request for Production of Documents, Set Four, request nos. 82-172.

B. Deposition of Mark Liew

Liew was first deposed on December 2, 2016, for approximately six hours and six minutes. (Trevino Decl., ¶ 15.) A second deposition of Liew took place on February 21, 2017, lasting approximately two hours and 19 minutes. (Id. at ¶ 16.) On August 29, 2018, Plaintiff served Liew with a new deposition notice, setting a deposition date of September 13, 2018. (Id. at ¶ 19 and Ex. Q.) Following correspondence between the parties, on October 10, 2018, Plaintiff served an amended deposition notice setting a new deposition date of November 9, 2018. (Id. at ¶ 24.) On October 12, 2018, counsel for Liew sent objections to the amended deposition notice to Plaintiff’s counsel by email. (Id. at ¶ 26 and Ex. X.)
The Court’s analysis begins with Code of Civil Procedure section 2025.450, subdivision (a), which states:

If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(Code Civ. Proc., § 2025.450, subd. (a).)

Liew did not object to the original deposition notice served on August 29, 2018. Rather, counsel for Liew initially stated he did not receive notice of the deposition, but then acknowledged he had received emails regarding the deposition, but had inadvertently missed them when they were first sent. (See Trevino Decl., Exs. R and S.) In the opposition to the motion to compel, Liew states he does not dispute that, if documents were produced after Liew’s prior deposition that should have been produced earlier, Plaintiff should be entitled to another deposition session. Liew asserts, however, he should not be compelled to attend a deposition in California, since he lives and works in China and has a home in Malaysia.

The Court notes Liew has not filed a motion for a protective order. Consequently, Liew must appear for deposition. Plaintiff requests an additional deposition of four hours, to be set on January 4, 2019, in California. Plaintiff asserts this date is based on Liew’s repeated travels to the U.S. and a hearing currently set for January 7, 2019. This request is reasonable and the motion will be granted with a deposition to be set no later than January 4, 2019 in California.

C. Sanctions

In its reply papers, Plaintiff requests monetary sanctions in the amount of $7,500 pursuant to Code of Civil Procedure section 2023.030, subdivision (a). Plaintiff’s request is not code-compliant because Plaintiff did not make the request in the notice of motion and has not identified against whom the sanction is sought. (Code Civ. Proc., § 2023.040.) Accordingly, the request for sanctions is DENIED.

D. Conclusion

Plaintiff’s motion is GRANTED. Liew must provide complete, code-compliant responses to Request for Production of Documents, Set Four, request nos. 82-172 no later than January 1, 2019. Liew must appear for a deposition of up to four hours in California no later than January 4, 2019. Plaintiff’s request for sanctions is DENIED.

XIII. MOTION TO SEAL

A. Legal Standard

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).) “A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) The court may order that a record be filed under seal only if it expressly finds facts that establish:

1. There exists an overriding interest that overcomes the right of public access to the record;

2. The overriding interest supports sealing the record;

3. A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

4. The proposed sealing is narrowly tailored; and

5. No less restrictive means exist to achieve the overriding interest.

(Cal. Rules of Court, rule 2.550(d).)

A party moving to seal a record must file a memorandum and a declaration containing facts sufficient to justify the sealing. (Cal. Rules of Court, rule 2.551(b)(1).) A declaration supporting a motion to seal should be specific, not conclusory, as to the facts supporting the overriding interest. If the court finds that the supporting declarations are conclusory or otherwise unpersuasive, it may conclude that the moving party has failed to demonstrate an overriding interest that overcomes the right of public access. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 305.)

Further, where some material within a document warrants sealing but other material does not, the document should be edited or redacted if possible, to accommodate the moving party’s overriding interest and the strong presumption in favor of public access. (See Cal. Rules of Court, rule 2.550(e)(1)(B); see also In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 309.) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (In re Providian Credit Card Cases, supra, 96 Cal.App.4th at p. 309.)

B. Discussion

Plaintiff moves to seal portions of the Order to Show Cause Re: Contempt Against Mark Liew and supporting documents filed on October 9, 2018. Plaintiff contends the information to be sealed includes trade secrets, and that it is subject to a contractual obligation to maintain the information, including names and the nature of the work, secret. (Declaration of Michelle G. Trevino in Support of Application for Order Sealing Documents Supporting Judge Kuhnle’s Order to Show Cause Re: Contempt Against Mark Liew, ¶¶ 8-9.)

The Court finds Plaintiff has sufficiently supported the motion to seal and that the request is narrowly tailored. (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1281 [protection of trade secrets and enforcement of binding contractual obligations not to disclose are overriding interests supporting a sealing request].) Accordingly, the motion to seal is GRANTED.

There is no need to call the Court, and notify other parties, if a party wishes to contest this tentative ruling. All parties should appear at 3:00 p.m. on December 14th to discuss this tentative ruling and other case-related issues.