Case Name: Andre Liao v. Intive, Inc.
Case No.: 18CV333817

This is a wrongful termination action. In his August 27, 2018 Complaint, Plaintiff Andre Liao (“Plaintiff”) alleges that Defendant Intive, Inc. (“Defendant”) terminated him from his employment on February 28, 2018 in breach of a written employment agreement (entered into while Defendant was doing business as BLStream, Inc.) and did so because of his Taiwanese national origin.

1. Plaintiff’s motion to compel further responses to request for productions of documents, set one

A. Background of the discovery dispute
On November 27, 2018 Plaintiff propounded the requests for production of documents (“RFPDs”) that are the subject of the current motion on Defendant via regular mail. (See Declaration of Plaintiff’s Counsel Frank Mayo (“Mayo Decl.”) at ¶2 & Ex.1.)

Defendant’s responses were sent to Plaintiff on January 16, 2019 via regular mail. Plaintiff responded by sending a meet and confer letter to Defendant on January 29, 2019. (See Mayo Decl. at ¶2 & ex. 2-3.)

Defendant’s initial production of documents took place on February 13, 2019 via regular mail. The documents were accompanied by a letter from Defense Counsel Abimael Bastida stating that additional documents were being reviewed and would be produced on a rolling basis and that a draft stipulated protective order was being prepared to allow of the production of responsive documents containing confidential information. (See Bastida Decl. at ¶2-3 & ex. A and Mayo Decl. at ¶2 & ex. 2.)

On March 5, 2019 Defense Counsel emailed the proposed protective order to Plaintiff’s Counsel and received no response. (See Bastida Decl. at ¶¶4-5 & ex. B.)

On March 7, 2019 Plaintiff filed the present motion to compel, making no mention of the proposed protective order.

On March 15, 2019 Defendant again emailed the proposed protective order to Plaintiff’s Counsel and again received no response. (See Bastida Decl. at ¶¶6-7 & ex. C.)

On March 19, 2019 Defense Counsel called Plaintiff’s counsel to discuss the additional documents Defendant would produce once a protective order was in place. Counsel could not come to an agreement on the protective order. (Bastida Decl. at ¶8.)

On March 29, 2019 Defendant’s second production of documents took place, including all responsive documents other than those Defendant believed could only be produced after a protective order was in place. (Bastida Decl. at ¶9.)

On April 4, 2019 Defense Counsel contacted Plaintiff’s counsel to advise that additional responsive documents were ready to be produced if a protective order were signed. Plaintiff’s counsel refused to sign the proposed order. (Bastida Decl. at ¶10.)

On April 10, 2019 Defendant sent Plaintiff a further meet and confer letter via email and regular mail, again inclosing a copy of the proposed protective order. (See Bastida Decl. at ¶¶11-12 & ex. D.)

On April 12, 2019 Plaintiff’s Counsel requested a modification to a single paragraph (paragraph 3(ii)) of the proposed protective order. A revised draft was sent to Plaintiff’s counsel via email that dame day but no response was received by Defendant. (See Bastida Decl. at ¶¶13-14 & ex. E.)

On April 15, 2019 Defense Counsel emailed Plaintiff’s Counsel to see if the revised draft of the protective order was agreeable and again received no response. (See Bastida Decl. at ¶¶15-16 & ex. F.)

On April 18, 2019 Defense Counsel sent Plaintiff’s Counsel a meet and confer letter via email and regular mail addressing the prior communications and asking Plaintiff’s Counsel to provide Defendant with a protective order agreeable to Plaintiff. (See Bastida Decl. at ¶¶17-18 & ex. G.)

On April 23, 2019 Plaintiff’s Counsel requested another copy of the revised proposed protective order previously sent April 12, and another copy was faxed to Plaintiff’s Counsel that day. (See Bastida Decl. at ¶¶19-20 & ex. H.)

On April 24, 2019, two days before the opposition to the present motion was due to be filed, Plaintiff’s Counsel provided Defense Counsel with a signed copy of the stipulated protective order. In a subsequent telephonic meet and confer discussion, Plaintiff’s Counsel refused Defendant’s request to take the present motion to compel off calendar unless, among other things, Defendant agreed to pay his attorney fees. (See Bastida Decl. at ¶¶21-22 & ex. I.)

B. Merits of the Motion
A motion to compel further responses to a request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code of Civil Procedure [“CCP”] §2031.310(b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (“Kirkland”).) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.) Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (Sinaiko).) Through this discretion, the court can deny the motion as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

Here Defendant provided further responsive documents on March 29, 2019, after the motion was filed, and expressed its willingness to produce all remaining responsive documents if a protective order were signed. By no later than April 12, 2019 Plaintiff’s counsel had received a draft protective order incorporating his requested changes and there was no reasonable basis for any further delay in signing the stipulated order. As Plaintiff either already has or will shortly receive all responsive documents (and the further delay was caused by Plaintiff’s unreasonable delay in signing the proposed order), the Court finds Plaintiff’s motion to be MOOT and it is therefore DENIED.

Even if the motion were not moot it would still be denied.

Motions to compel further responses to RPPDs require the filing of a separate statement. (Cal. Rules of Court, rule 3.1345(a)(3).) The separate statement must provide “all the information necessary to understand each discovery request and all the responses to it that are at issue.” (Cal. Rules of Court, rule 3.1345(c).) The separate statement must also be “full and complete so that no person is required to review any other document in order to determine the full request and the full response.” (Cal. Rules of Court, rule 3.1345(c).) Finally, separate statements must include: 1) the text of the discovery request, 2) the text of the response or objection and any supplemental responses if given, and 3) a statement of the factual and legal reasons for compelling further responses. (Cal. Rules of Court, rule 3.1345(c)(1)-(3).)

As Defendant points out, Plaintiff’s separate statement does not quote the full text of Defendant’s responses. A deficient separate statement provides a ground to deny a motion to compel further responses, even where the moving party provides the text of the discovery requests and responses in a separate document from the separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894.)

As the motion to compel is denied Defendant’s request for monetary sanctions is DENIED. The Court also notes that even if the motion were not denied the requests for sanctions still would be. Where sanctions are sought in conjunction with a motion to compel the notice of motion must name all parties and attorneys against whom sanctions are sought, specify the type of sanction sought, and cite the authority for such sanctions. (See CCP §2023.040.) Plaintiff’s notice of motion fails to mention sanctions at all.