2013-00148271-CU-MC

Morton & Pitalo, Inc. vs. Vincent Doyle

Nature of Proceeding: Motion for Protective Order

Filed By: Krogh, Shawn M.

Plaintiff Morton Pitalo, Inc.’s (“Morton”) Motion for Protective Order is granted/denied
as follows:

The evidentiary objections to the Declaration of attorney Barth are sustained. The declaration relies on “information and belief” which is not admissible evidence.

Morton’s Request for Judicial Notice is granted, however the Court is not taking judicial
notice as to the truth or falsity of any statements in the federal indictment. In taking
judicial notice of these documents, the Court accepts the fact of their existence, not the
truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15
th
Cal.4 543, 590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th
112, 120-121; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97,
th
113; 1 Witkin, Cal. Evid. (5 ed.) Judicial Notice, § 21 at p. 128 [“Judicial notice of the
authenticity and contents of an official document does not establish the truth of all
recitals therein”] [collecting authorities].)

This action involves the alleged conversion of $3.5 million from Morton by defendant
Vincent Doyle (“Doyle”) while he was the Chief Financial Officer of Morton. Doyle
served Form Interrogatories, 174 Special Interrogatories, and 129 Requests for
Production (which Morton contends is actually 189 Requests for Production) on
February 7, 2014.

The motion seeks the following forms of relief (in addition to monetary sanctions):

(1) That as to the Special Interrogatories, Set One, Plaintiff need not respond to any
interrogatories past number 35 because Defendant Doyle failed to justify the need for
174 special interrogatories and that they are overbroad and vague, thus making them
unduly burdensome to respond. See, e.g. CCP § 2030.090.

The Court denies the above request as it is concurrently granting the motion on the
merits as to Numbers 1 – 35. The Court is unable to identify which 35 interrogatories
would be responded to given that it has granted the motion on numerous other
grounds. Moreover, the Court finds that Interrogatories 67-174 were reasonably
necessary based on the allegations of the Complaint.

Morton further contends that it need not respond to Special Interrogatories numbers 1
to 66, inclusive, as they seek confidential financial and business information belonging
to Plaintiff well as third parties and the information sought is protected by the right of
privacy.

(2) That as to the Request for Production of Documents, Set One, Plaintiff need not
respond to or produce documents at all in response to requests number 1 to 13 and 36
to 123, inclusive, as these requests are so broad and unlimited as to cause
unwarranted annoyance, are oppressive and seek confidential financial and business
information belonging to Morton as well as third parties and the information sought is
protected by Morton’s right of privacy.

Morton also seeks a further order prohibiting the disclosure of confidential employee
information “throughout this case” as it is believed that Doyle will continue to seek this
information throughout the course of the litigation. This request for prospective relief is
denied as it was not set forth in the notice of motion and is otherwise improper in
seeking prospective relief regarding unknown information.

Pursuant to CCP § 2019.030, “(a) The court shall restrict the frequency or extent of
use of a discovery method provided in Section 2019.010 if it determines either of the
following: “(1) The discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive. “(2) The selected method of discovery is unduly
burdensome or expensive, taking into account the needs of the case, the amount in
controversy, and the importance of the issues at stake in the litigation. “(b) The court
may make these determinations pursuant to a motion for a protective order by a party
or other affected person. This motion shall be accompanied by a meet and confer
declaration under Section 2016.040. “(c) The court shall impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion for a protective order, unless
it finds that the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.” [See Cal. Code Civ.
Proc. § 2019.030.]

Special Interrogatories
The motion for protective order is granted as to No.s 1-30. Morton contends that it
need not respond to Special Interrogatories1 to 30 because they pertain to payments,
salary, money advances, income, bonuses and reimbursements made by MORTON to
Mr. Richard Morton from 1990 to 2000. Morton contends that the information is
protected by Richard Morton’s right to privacy and that Morton has a trade secret in the
salary paid to executives. Although the court rejects the trade secret argument, the
Court agrees that a protective order is necessary to protect the privacy rights of
Richard Morton. There is no admissible evidence showing direct relevance of this
private information to the issues in this case.

The motion for protective order is granted as to Nos. 31-39. Morton contends that it
should not be required to respond to Special Interrogatories 31 to 39, relating to the
reasons Morton retained consultant Michael Corrigan and any recommendations he
made to MORTON. Morton contends that these interrogatories seek private
confidential information and that Doyle has no reason to seek disclosure of such
private confidential business related information. There is no admissible evidence
showing the direct relevance of Morton’s financial information to the issues in this
case.

The motion for protective order is granted as to Special Interrogatories 40-43, which
seek information and documents related to any disputes of over $1,000 between
MORTON and its clients dating back to January I , 1992. The Court agrees with
Morton that this information will not lead to the discovery of admissible evidence. The
evidence offered in support of the relevance is inadmissible.

The motion for protective order is granted as to Nos. 47-56. Morton contends it should
not be required to answer Special Interrogatories 47-56, which seek information
pertaining to any “business arrangements” Morton entered into with other firms to
jointly bid on government contracts from January 1, 1992 to the present time. Morton
contends these requests are overbroad and unduly burdensome since they cover a
period of the last 12 years and that they are irrelevant to Doyle’s defense of this lawsuit
and seek confidential business and financial information regarding Morton’s business
dealings which is protected by Morton’s right of privacy. The Court agrees that a
protective order is necessary. There is no admissible evidence showing the relevance
of this information to the issues in this case.

The motion for protective order is granted as to Special Interrogatories 57 to 66, which
seek information related to agreements Morton had with other firms relating to bids on
government contracts at any time. The Court agrees that a protective order is
necessary. There is no admissible evidence showing the relevance of this information
to the issues in this case.

The motion for protective order is denied as to Special Interrogatories 67 – 174. These
interrogatories are essentially contention interrogatories seeking facts that form the
basis of plaintiff’s allegations against Doyle and are justified by the nature of the
allegations against defendant.

Requests for Production

The motion for protective order is denied as to Request for Production No. 1 seeking
documents related to special interrogatories 46, 69, 72, 75, 78, 80, 82, 85, 88, 91, 95,
96, 98, 101, 104, 106, 108, 111, 114, 117, 120, 123, 126, 129, 132, 135, 138, 141,
144, 147, 150, 153, 156, 159, 162, 164, 168, 171, and 174. The motion fails to
address the content of these requests so that the motion can be ruled upon. See Rule
3. 1345.

Motion for protective order re Request No. 1 granted as it pertains to documents
related to the special interrogatories covered by the protective order (2, 6, 9, 13, 16,
20, 23, 27, 30, 34, 35, 36, 37, 39, 42, 43, 50, 53, 56, 60, 63, and 66.) No documents
need to be produced as to the documents that are tied to the special interrogatories
subject to the protective order. .

The motion is denied as to No. 2 as the moving party did not discuss the form
interrogatories 9.2 and 15.1 that form the basis for this request, therefore Morton has
not met its burden on this request.

The motion for protective order is granted as to the remaining requests, Requests for
Production of Documents Nos. 3-13 (billing records for various individuals from
January 1, 2003 to present) and Request for Production of Documents No. 36-123
(documents related to partnership agreements, employment records,
performance evaluations, job duties, and related communications for Richard Morton,
John Pitalo, Marland Johnson, Kenneth James, Ronald Bowman, Richard Chavez,
Eddie Kho, Roger Henry, Greg Bardini, Chris Gorges, and Jim Boss. See, e.g. CCP §
2031.060(b), which provides, in pertinent part: (b) The court, for good cause shown,
may make any order that justice requires to protect any party or other person from
unwarranted annoyance, embarrassment, or oppression, or undue burden and
expense. This protective order may include, but is not limited to, one or more of the
following directions:

(1) That all or some of the items or categories of items in the demand need not be
produced or made available at all.
…..

(5) That a trade secret or other confidential research, development, or commercial
information not be disclosed, or be disclosed only to specified persons or only in a
specified way.

These records concern the financial privacy of the third parties and Morton, and the
evidence in support of defendant’s contentions of wholly unrelated financial
improprieties of Morton is inadmissible. (Declaration of Barth based on information and belief.)

Where denied, the Plaintiff is ordered to serve verified responses on or before May 1,
2014.

Sanctions are awarded in the reasonable amount of $1,500 (6 hours) in fees and $60
in costs for a total of $1,560. Morton seeks sanctions for meet and confer time as well
as drafting the motion and reply. The court ordinarily does not award sanctions for
meeting and conferring. Morton contends it spent 13.6 hours on the moving papers
and reply at a rate of $250 per hour. Morton also seeks the filing fee of $60.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.