Case Number: KC065940    Hearing Date: August 01, 2014    Dept: J

Re: Partee Insurance Associates, Inc. v. Charles Jimison (KC065940)

(1) MOTION FOR PROTECTIVE ORDER AND TO QUASH DOCUMENT REQUEST AT DEPOSITION; (2) MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES

Moving Party: (1) and (2) Defendant Charles Jimison

Respondent: (1) and (2) Plaintiff Partee Insurance Associates, Inc.

POS: (1) and (2) Moving OK; (1) Opposing served by regular mail contrary to CCP § 1005(c); (2) Opposing filed just 5 court days prior to the hearing and served by regular mail contrary to CCP §§ 1005(b) and (c)

Plaintiff alleges that Defendant, who was formerly employed by Plaintiff as an insurance broker, misappropriated Plaintiff’s client and proprietary information, and also earned secret commissions. Plaintiff commenced this action on 4/12/13. The First Amended Complaint, filed on June 10, 2013, asserts causes of action for:

1. Breach of Contract
2. Conversion
3. Wrongful Use of Thing or Knowledge Acquired in Employment
4. Uniform Trade Secrets Acts Violation
5. Interference with Prospective Economic Advantage
6. Unfair Business Practices
7. Breach of Oral Contract
8. Fraud

FSC is set for 9/29/14. Jury trial is set for 10/7/14.

(1) MOTION FOR PROTECTIVE ORDER AND TO QUASH DOCUMENT REQUEST AT DEPOSITION:

Defendant Charles Jimison (“Defendant”) moves for a protective order to limit the inquiry of Defendant at his deposition so that it does not infringe upon the protection afforded by the Tax Privilege, Attorney-Client Privilege, Attorney-Work Product Privilege, and the right of privacy. Defendant also seeks a protective order to quash and/or otherwise limit the scope of the document request, categories 1-7 inclusive, in the deposition notice that are not only overbroad, but allegedly show an intent to infringe upon the above privileges.

Plaintiff Partee Insurance Associates, Inc. (“Plaintiff”) opposes the motion on the following grounds: (1) Defendant failed to comply with California Rule of Court, Rule 3.1345 in that there is no separate statement filed or served in support of the motion; (2) the motion is premised on the argument that Defendant was not an employee of Plaintiff but Defendant signed numerous documents, including employee handbooks, acknowledging that he was an employee; (3) the information sought pertains to the approximately 20-year period of time that Defendant was an employee of Plaintiff, and after Defendant quit his job, information was discovered that he was conducting secret insurance business at times using his computer at work; (4) the information sought has nothing to do with attorney work-product nor is it privileged under the attorney-client privilege; and (5) there is authority to compel even the production of tax returns in the event that Defendant refuses to provide financial information relevant to a determination of the issues.

Before, after or even during a deposition, “for good cause shown,” the court may grant a protective order to control the deposition proceedings or the information obtained thereby. (See CCP § 2025.420.) The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2025.420(b).) The burden is on the moving party to establish “good cause” for whatever relief is requested. Generally, this requires a showing that the burdens involved in the deposition proceeding clearly outweigh whatever benefits are sought to be obtained thereby. (See CCP § 2017.020(a).) “For good cause shown,” the court is empowered to make whatever orders are required, including excluding nonparties from the deposition and/or imposing terms and conditions on which the deposition may proceed. (CCP § 2025.420(b).) The motion for a protective order must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve the matter outside court. (CCP § 2025.420(a).)

Protective orders may be granted on motion of the deponent or any party, or any third person who could be affected by the disclosure (e.g., a nonparty whose privacy would be impaired). (CCP § 2025.420(a).) Ultimately the granting or denial of a protective order rests in the sound discretion of the court. If relief is denied, the court may nevertheless impose terms or conditions upon which the deposition may proceed. (CCP § 2025.420(c).)

SEPARATE STATEMENT:

The moving party has substantially complied with the requirements of California Rule of Court, Rule 3.1345, by setting forth the contents of the separate statement in counsel’s declaration.

PROTECTIVE ORDER RE DEPOSITION INQUIRIES:

Defendant seeks a protective order to limit the inquiry of Defendant at deposition that does not infringe upon protection by the Tax Privilege, Attorney-Client Privilege, Attorney-Work Product Privilege, and the right of privacy. However, it appears that a protective order is not necessary at this time to protect such privileges and/or the right of privacy since Defendant can simply object and assert the privilege(s) at the deposition, if applicable. Without knowing what questions will be asked, and in what context, Defendant is asking the court to issue evidentiary rulings in a vacuum.

PROTECTIVE ORDER RE DOCUMENTS SOUGHT:

Defendant also seeks a protective order to quash and/or otherwise limit the scope of the document request categories 1-7, inclusive, in the deposition notice on the grounds that the requests are not only overbroad, but clearly shown an intent to infringe upon the above privileges.

Courts generally do not sustain objections on the ground that the question is “ambiguous, confusing or overbroad” unless the question is totally unintelligible. The answering party owes a duty to respond in good faith as best he or she can. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 — verification of answers is “in effect a declaration that the party has disclosed all information available to him.”) Further, it appears that the requests are not overbroad as to the time frame since Defendant was employed by Plaintiff for approximately 20 years. While Defendant also contends that the requests are cumulative of earlier discovery requests, Plaintiff represents that Defendant’s responses to the prior requests were evasive and that in order to obtain the specific documents needed, Plaintiff narrowly tailored the subject requests. In addition, if the request calls for production of documents that are privileged, Defendant may assert the privilege and produce a privilege log. Thus, it appears that a protective order is not necessary at this time.

The motion is therefore denied.

SANCTIONS:

The court “shall” impose monetary sanctions against whichever party loses on the motion for protective order … unless it finds that party acted “with substantial justification“ or other circumstances render sanctions ”unjust.“ (CCP § 2025.420(d).) Under the circumstances, sanctions are not warranted.

(2) MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES:

Defendant also moves pursuant to CCP §§ 2023.010, et seq. for an order compelling Plaintiff to serve verified further responses to the first set of special interrogatories, nos. 1-10. Defendant seeks monetary sanctions in the amount of $1,110.00 against Plaintiff and its counsel.

CCP 2030.300 allows a party to file a motion compelling further answers to interrogatories if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP § 2030.300(b).) Each answer in the response must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(a),(b).)

TIMELINESS:

The motion was timely served on July 3, 2014; 36 days after Plaintiff served its responses by mail on May 28, 2014. (Motion, Mollis Decl. ¶ 4, Exh. 2.)

MEET AND CONFER:

The Declaration of Charles A. Mollis, Esq. demonstrates that counsel for Defendant attempted to resolve the issues informally with opposing counsel before the motion was filed. (Motion, Mollis Decl. ¶¶ 5-6, Exhs. 3-5.) Based upon the declaration of plaintiff’s counsel in his late opposition, however, it is questionable whether the meet and confer efforts were adequate.

The court also notes that the motion is not accompanied by a requisite Separate Statement.

SPECIAL INTERROGATORY NOS. 1-10:

Plaintiff responded to all of the interrogatories by asserting objections only. If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255.) Plaintiff did not oppose the motion and thus, failed to meet its burden.

Counsel for Defendant has advised the court’s staff that he has received supplemental responses to the interrogatories. If so, the motion is moot. Otherwise, the motion is granted and Plaintiff is ordered to serve further verified responses within 10 days.

SANCTIONS:

CCP § 2030.300(d) authorizes the court to impose a sanction against any party/attorney who unsuccessfully makes or opposes a motion to compel further responses, 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.

Defendant seeks $1,110.00 as monetary sanctions. (3.5 hours @ $300/hour + $60 filing fee.) It appears that the amount sought is reasonable. The court will hear from counsel however, as to whether sanctions are warranted in light of supplemental responses apparently having been served prior to the hearing, the inadequacy of the the meet and confer efforts, and the current personal circumstances of counsel for plaintiff.