Brightedge Technologies v. Martinez CASE NO. 113CV256794
DATE: 27 June 2014 TIME: 9:00 LINE NUMBER: 21
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 26 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 27June 2014, the Motion of Plaintiff BrightEdge Technologies, Inc. “to compel discovery” was argued and submitted.

Plaintiff is reminded that this Court favors the use of California Points and Authorities in discovery matters and refers to Federal and New York case law only as providing persuasive authority.

Searchmetrics Inc., a non-party, has filed an Objection to the Hearing Date for Plaintiff BrightEdge Technologies Inc.’s Motion to Compel Discovery from Defendant

Gabriel Martinez did not file formal opposition to the motion.

I. Statement of Facts

Defendant Gabriel Martinez (Mr. Martinez) is a former employee of Plaintiff BrightEdge Technologies Inc. (BrightEdge). While employed there, Mr. Martinez had access to BrightEdge’s sales database, which contains information about BrightEdge’s current and prospective customers. BrightEdge states that this information is a trade secret.

Mr. Martinez gave notice of termination of employment on 8 April 2013. He later began work at BrightEdge’s competitor Searchmetrics Inc. (Searchmetrics). BrightEdge alleges that before doing so, Mr. Martinez engaged in conduct to maintain access to and obtain confidential information to use in service of Searchmetrics.

Plaintiff BrightEdge brought a breach of contract and trade secrets action against Mr. Martinez in November of 2013.

BrightEdge served written discovery on Martinez on 21 February 2014.

This parties entered a Stipulated Confidentiality Order on 4 April 2014. The Court entered this agreement of 14 April 2014.

Mr. Martinez’s counsel provided notice of the documents requested by BrightEdge to Searchmetrics on 8 April 2014, and provided a copy of the protective order to Seachmetrics on 9 April 2014.

Mr. Martinez provided a timely initial response with objections, and later amended responses, to BrightEdge’s written discovery. Mr. Martinez later provided further amended responses to BrightEdge’s discovery requests on 11 April 2014. In these responses Martinez asserted new objections based on a confidentiality agreement with Searchmetrics.

In emails Mr. Martinez’s counsel have stated that they do not object to providing this discovery but believe they cannot produce it barring a court order due to Mr. Martinez’s confidentiality agreement with Searchmetric. (Ex. D).

BrightEdge is also suing Searchmetrics in a separate federal action for patent infringement filed 3 March 2014. Searchmetrics states that BrightEdge’s Motion to Compel Discovery seeks Searchmetrics’ confidential trade secret information. Searchmetrics states that they will oppose this motion via a protective order as required by the Stipulated Confidentiality Order entered in this case 14 April 2014. They request that BrightEdge’s motion be heard at the same time as their motion for a protective order.

II. Discovery Dispute

Plaintiff BrightEdge has filed a “motion to compel discovery,” ostensibly seeking to compel Defendant Mr. Martinez to provide more complete responses to BrightEdge’s Resquests for Production Nos. 4-7, 9-10, 14-15, 19, 22-26, 32 and Special Interrogatories Nos. 5-13.

Mr. Martinez’s employer Searchmetrics, a non-party in this action, has filed an Objection to the Hearing Date for Plaintiff BrightEdge Technologies Inc.’s Motion to Compel Discovery. Searchmetrics contends that an agreement to have this motion heard with Searchmetrics’s yet-to-be-filed a motion for a protective order. An agreement with Plaintiff to do so apparently fell apart.

A review of this Court’s calendar reveals that the motion of Searchmetrics is now set for 25 July 2014 at 9:00 a.m. in Department 19 of this Court.

In light of what now appear to be several deficiencies in the moving papers filed by Plaintiff, this Court finds good cause to continue, on this Court’s own motion, the hearing on this motion to 25 July 2014 at 9:00 a.m. in Department 19 of this Court to be heard along with the motion of Searchmetrics for a protective order.

SO ORDERED.

III. Additional Observations

In a gentle suggestion to Plaintiff to rethink this motion, this Court notes that the motion is problematic in many respects.

A. Notice of the Motion

“A motion shall (1) identify the party or parties bringing the motion; (2) name the parties to whom it is addressed; (3) briefly state the basis for the motion and the relief sought; and (4) if a pleading is challenged, state the specific portion challenged.. . .” Rule of Court 3.1112(b).A court may reject a motion because the notice is defective. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126-1127.)

In this matter, the notice of the motion does not identify the party against whom relief is sought and therefore does not comply with the foregoing Rule of Court.

However, an omission in the notice may be overlooked if the supporting papers make clear the grounds for the relief sought. (Id. at 1125; Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1008-1009.) The purpose of the notice requirements is to cause the moving party to “sufficiently define the issues for the information and attention of the adverse party and the court.” (Luri v. Greenwald 107 Cal.App.4th at 1125, citing Hernandez v. National Dairy Products (1954) 126 Cal.App.2d 490, 493.)

The memorandum of points and authorities filed by Plaintiff asks this Court to compel Defendant Gabriel Martinez to produce documents in response to certain requests for production and to provide further responses to certain special interrogatories. (Page 1, lines 2-3).

Where both parties appear and contest a motion, without objection in the trial court, such appearance is a waiver of a written notice, if none were given, or of the defect in the notice to specify all of the relief asked and given, if the motion and order went beyond the terms of the notice. (Hammond Lumber Co. v. Bloodgood (1929) 101 Cal.App.561, 563-564.)

B. Motion to Compel Discovery

First of all, some may argue that there is no such thing as a “motion to compel discovery.” Second, Rule of Court 3.1113 state: “A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial . . . . The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”

The Court is not required to find the legal authorities substantiating and unsupported legal argument. (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [indicating that court may deny motion that does not set forth the legal basis for the relief requested].)

The absence of the pertinent statutory citations from the Code of Civil Procedure which authorize this motion is somewhat troubling here.

Rule of Court 3.1345(d) states: “A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number.” It is preferable to use such description in the notice of the motion.

To prevail on a motion to compel responses, a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Super. Ct. (1980) 111 Cal.App.3d 902, 905-906.) A CCP § 2031.010 demand may be used to obtain inspection of “documents,” tangible things or land in the possession, custody or control of another party. Code Civ. Proc. § 2031.010(a). Inspection is limited to matters within the permissible scope of discovery (“relevant to subject matter”) and not protected by privilege, work product, right of privacy, etc. Code Civ. Proc. § 2031.010(a).

If a party to whom demand for inspection is directed fails to serve a timely response, the party propounding the inspection may move for an order compelling responses. Code Civ. Proc. § 2031.300(b) (request for production of documents).The party who fails to serve a timely response waives any right to object to the demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2031.300(a) (response to demand for production).

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. § 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

Plaintiff is advised that a code-compliant Motion to Compel Discovery must cite to the statutory authority above. Plaintiff is also advised that a Motion to Compel Discovery is proper where there is a failure or refusal to respond. Where Defendant has responded in a timely manner but their answers are incomplete or inadequate or an objection they raise is without merit or too general a Motion to Compel Further Discovery is the proper motion. (Code Civ. Proc. § 2030.300(a); 2031.310(a).)

Plaintiff is given leave, but is not required, to file new papers.

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Order

The hearing on this motion is continued to 25 July 2014 at 9:00 a.m. in Department 19 of this Court to be heard along with the motion of Searchmetrics for a protective order.