2012-00121568-CU-OE

Austine U Eke vs. State of California

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Sommerdorf, Scott A.

**If any party requests oral argument, then at the time the request is made, the
requesting party shall inform the court and opposing counsel of the specific
requests or issues on which oral argument is sought.**

Defendant Department of Water Resources’ (“Defendant”) motion to compel further
responses to its first set of document request is GRANTED in part and DENIED in part
as follows:

This case involves an employment dispute. On March 21, 2013, Defendant
propounded the subject requests. Plaintiff Austine U. Eke (“Plaintiff”) served
responses and objections to most of the requests as follows:

“Plaintiff objects to this interrogatory [sic] as it calls for the disclosure of
attorney work product, or communications within the attorney/client
privilege or any other privileges, including but not limited to doctor/patient
privilege, psychotherapist/ patient privilege, confidentiality, proprietary
and privacy rights.

Plaintiff objects to producing information regarding any medical treatment
of him pursuant to HIPPA, doctor/patient privilege,
psychotherapist/patient privilege, confidentiality, and privacy rights.
However will produce such information for purposes of this litigation only
as long as there is a protective order in place which only allows such
documents to be utilized in this litigation, precludes dissemination of the
information outside the litigation, and does not allow any dissemination of
the medical information to named parties outside the presence of their
attorneys[.]”

(See Sommerdorf Decl., Exh. B.) Plaintiff also indicated that he would serve non-
privileged responsive documents, and he produced numerous documents.

Defendant commenced the meet-and-confer process and contended that Plaintiff’s
objections and assertions quoted above did not comply with the Discovery Act.
Counsel for the parties reached an impasse, and this motion followed.

Because Defendant challenges the merit of Plaintiff’s objections, the burden was on
Plaintiff to show his objections’ validity. (See Fairmont Ins. Co. v. Superior Court
th
(2000) 22 Cal.4 245, 255.) Instead of making such a showing, Plaintiff asserts that
he has remedied defects in his responses by serving post-motion amended responses
in which many of his original objections have been withdrawn. Plaintiff further argues
that his amended responses have rendered the motion moot.

First, the court rejects Plaintiff’s argument that the motion is moot. A motion is “made”
when it is filed and served. (CCP § 1005.5.) Because Plaintiff had not served any
amended responses before Defendant made the motion, Defendant is entitled to a ruling as to the sufficiency of the original responses.

Next, the court agrees with Defendant that Plaintiff has placed his physical well-being
(headaches and weight gain) and mental/emotional wellbeing. Hence, any contention
that he is entitled to withhold documents based on the doctor-patient privilege or
psychotherapist-patient privilege lacks merit. However, counsel are directed to meet
and confer in order to craft a stipulated protective order that appropriately limits the
dissemination of records of Plaintiff’s medical and psychological history. The
protective order shall contain a provision that named parties may only review such
records at their counsel’s offices or otherwise in counsel’s presence. The protective
order shall also contain a provision requiring compliance with CRC 2.550-2.551
regarding the sealing of records.

To the extent Plaintiff has withheld documents based on privileges other the doctor-
patient privilege or psychotherapist-patient privilege, he is directed to serve a privilege
log identifying each document withheld or redacted, the privilege(s) based upon which
the document is withheld or redacted, all author(s)/creator(s) and recipient(s) of the
document, and the date(s) on which the document was created. If it chooses,
Defendant may then challenge the assertions of privileges as they relate to specific
documents. If, after performing a diligent search and reasonable inquiry for
documents responsive to Defendant’s requests, Plaintiff determines that any of the
privileges asserted in his responses do not apply, then he shall serve further
responses in which those privileges have been withdrawn.

Plaintiff’s catch-all objections based on “any other privilege” and “confidentiality” are
OVERRULED and must be withdrawn. Furthermore, because HIPAA does not apply
to records in Plaintiff’s possession, his objections based on HIPAA are OVERRULED
as well.

Plaintiff’s relevance objection to Request No. 5 is OVERRULED.

To the extent Plaintiff objects to Requests Nos. 21-23 on grounds that the documents
are equally or more readily available to Defendant, the objections are OVERRULED.

Finally, the court orders Plaintiff to serve further responses to Requests Nos. 5 and 21-
23 such that strictly comply with CCP §§ 2031.210-3031.230.

The court expresses no opinion abut the sufficiency of any amended responses served
after the motion was filed.

Because the court finds that Plaintiff has produced responsive documents in
substantial compliance with CCP § 2031.280(a), it DENIES any request for an order
under that subdivision.

Although the results of the motion are somewhat mixed, given Plaintiff’s assertion of
certain meritless objections and his failure to serve substantive responses in full
compliance with CCP §§ 2031.210-3031.250, the court imposes a monetary sanction
against Plaintiff and his counsel, Kevin W. Harris, in the amount of $595 (3.5 hrs @
reasonable rate of $170/hr.)

Conclusion No later than November 27, 2013, Plaintiff shall serve further responses and a
privilege log as directed above.

Plaintiff and his counsel shall pay the monetary sanction to Defendant no later than
December 13, 2013. If Plaintiff and his counsel fail to pay the sanction by such date,
then Defendant may lodge for the court’s signature a formal order awarding sanctions,
which may be enforced as a separate judgment. (See Newland v. Superior Court
th
(1995) 40 Cal.App.4 608, 615.)

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

Item 8 2012-00121568-CU-OE

Austine U Eke vs. State of California

Nature of Proceeding: Motion to Compel Special Interrogatories

Filed By: Sommerdorf, Scott A.

**If any party requests oral argument, then at the time the request is made, the
requesting party shall inform the court and opposing counsel of the specific
interrogatories or issues on which oral argument is sought.**

Defendant Department of Water Resources’ (“Defendant”) motion to compel further
responses to its First Set of Special Interrogatories, Nos. 9, 11, 17, 28, 30 and 33, is
GRANTED in part and DENIED in part as follows:

This case involves an employment dispute. On March 21, 2013, Defendant
propounded the subject interrogatories. After receiving Plaintiff Austine U. Eke’s
(“Plaintiff”) responses, Defendant commenced the meet-and-confer process and
contended that Plaintiff’s objections and responses did not comply with the Discovery
Act. Counsel for the parties reached an impasse, and this motion followed.

Because Defendant challenges the merit of Plaintiff’s objections, the burden was on
Plaintiff to show his objections’ validity. (See Fairmont Ins. Co. v. Superior Court
th
(2000) 22 Cal.4 245, 255.) Instead of making such a showing, Plaintiff asserts that
he has remedied defects in his responses by serving post-motion amended responses
in which many of his original objections have been withdrawn. Plaintiff further argues
that his amended responses have rendered the motion moot.

The court rejects Plaintiff’s argument that the motion is moot. A motion is “made”
when it is filed and served. (CCP § 1005.5.) Because Plaintiff had not served any
amended responses before Defendant made the motion, Defendant is entitled to a
ruling as to the sufficiency of the original responses. The court expresses no opinion
abut the sufficiency of any amended responses served after the motion was filed.

Special Interrogatories Nos. 9, 11 and 17 seek identification of documents. Special
Interrogatory No. 33 seeks a statement of Plaintiff’s medical expenses to date. As to these four interrogatories, Plaintiff objected as follows:

“Plaintiff objects to this interrogatory on the grounds that it is compound,
duplicative, disjunctive, overly broad, and not complete in and of itself in
violation of California Code of Civil Procedure §2030.060(d) and/or (f).

Plaintiff objects to any discovery requests which calls [sic] for the
disclosure of attorney work product or communications within the
attorney/client privilege or any other privileges, including but not limited
to doctor/patient privilege, psychotherapist/patient privilege,
confidentiality, proprietary and privacy rights.

Plaintiff objects to producing information regarding any medical treatment
of him pursuant to HIPPA, doctor/patient privilege,
psychotherapist/patient privilege, confidentiality, and privacy rights.
However will produce such information for purposes of this litigation only
as long as there is a protective order in place which only allows such
documents to be utilized in this litigation, precludes dissemination of the
information outside the litigation, and does not allow any dissemination of
the medical information to named parties outside the presence of their
attorneys.

Plaintiff objects to this interrogatory as it is unduly burdensome and
would require the preparation of a compilation, abstract, audit, or
summary of the Memorandum of Points and Authorities in Support of
Motion to Compel (34-2012-00121568) documents of the party to whom
the interrogatory is directed, as such pursuant to California Code of Civil
Procedure §2030.230 Defendant is referred to the Documents contained
in Plaintiffs Response to Defendants Request for Production of
Documents which is being served concurrent with this response as if
incorporated herein.

Plaintiff alleges that further documents responsive to this request are in
the possession custody and control of defendants, and reserve my right
to utilize such further documents. Discovery is continuing. Plaintiff further
alleges that the “dossier” was destroyed by Defendant’s supervisory or
managerial employees, including but not limited to Dan Peterson.
Defendant DWR tape recorded interviews of plaintiff during internal
investigations which they conducted concerning his EEOC and DFEH
complaints, Plaintiff does not have copies of these documents which may
have been transcribed, but they are responsive to this request and in the
possession, custody and control of defendants.”

(See Moving Memo. at 2-3.)

The court OVERRULES all these objections, including objections based on privilege.
The court agrees with Defendant that Plaintiff has placed his physical and
mental/emotional well-being at issue and, therefore, that any contention that he is
entitled to withhold documents based on the doctor-patient privilege or psychotherapist
-patient privilege lacks merit. Moreover, Plaintiff’s catch-all objections based on “any
other privilege” and “confidentiality” are overruled and must be withdrawn. HIPAA
does not apply to records in Plaintiff’s possession, his objections based on HIPAA are
overruled as well.

The court also OVERRULES Plaintiff’s objections to Special Interrogatory No. 28.
That interrogatory seeks information about Plaintiff’s prior legal proceedings. The
court construes Special Interrogatory No. 28 as only seeking information about public
legal proceedings. Therefore, Plaintiff’s privacy objection lacks merit.

The court finds that, where Plaintiff has produced documents in lieu of providing
information responsive to an interrogatory, he has identified the documents with
sufficient specificity. (CCP § 2030.230.) Moreover, to the extent Plaintiff has
produced or will produce documents containing privileged material, the court has
ordered the parties to craft a protective order limiting dissemination of such material.
(See concurrent order re motion to compel further responses to document requests.)

The motion to compel a further response to Special Interrogatory No. 30 is DENIED.
That interrogatory solicits all of Plaintiffs email addresses. Plaintiff objected that the
addresses are private and are not calculated to lead to discover of admissible
evidence. Neither party has cited authority on the question whether email addresses
in themselves (as opposed to email account passwords or email communications)
implicate privacy rights. In the court’s view, Plaintiff has some privacy interest in his
personal email accounts and, therefore, that Defendant is required to demonstrate
some countervailing interest in the addresses. Defendant, however, has not cited any
facts supporting the contention that Plaintiff has sent or received email
communications relevant to this action. Accordingly, the court SUSTAINS Plaintiff’s
privacy objection and will not require Plaintiff to provide a further response.

Although the results of the motion are slightly mixed, given Plaintiff’s assertion of
meritless objections, the court imposes a monetary sanction against Plaintiff and his
counsel, Kevin W. Harris, in the amount of $935 (5.5 hrs @ reasonable rate of
$170/hr.)

Conclusion

Per the directions above, and no later than November 27, 2013, Plaintiff shall serve
further responses to Special Interrogatories Nos. 9, 11, 17, 28 and 33. The further
responses shall strictly comply with CCP §§ 2030.210-2030.250.

Plaintiff and his counsel shall pay the monetary sanction to Defendant no later than
December 13, 2013. If Plaintiff and his counsel fail to pay the sanction by such date,
then Defendant may lodge for the court’s signature a formal order awarding sanctions,
which may be enforced as a separate judgment. (See Newland v. Superior Court
th
(1995) 40 Cal.App.4 608, 615.)

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