Case Name:   Kleidman v. Shah, et al.

Case No.:       1-13-CV-247406

Motion by Plaintiff Peter Kleidman to Compel Further Responses from Defendant David Becker to Request for Production of Documents, Set One, and for Monetary Sanctions

It appears that Plaintiff filed the same motion twice: once on October 8, 2014, and again on October 10, 2014.  There is only one motion currently before the court.

Defendant David Becker was counsel to Defendants Feeva Technology, Inc, and Bridge and Post.  Plaintiff’s motion complains that Becker has failed to identify the documents sufficiently to comply with Code of Civil Procedure section 2031.240.  Plaintiff is not presently seeking production of these documents (Memorandum in Support, at 3:18-22), but rather argues that Becker has failed to identify documents within each category requested. Becker contends that, given the unusual character of Plaintiff’s requests, those requests together with his response, adequately address the statutory requirement.

Becker also raises the threshold question of compliance with section 1985.3 requiring that Plaintiff give notice to the clients whose records are requested.  Neither party has cited, nor is the court aware of, any case addressing whether the consumer’s rights under this section do or do not depend on the form of the request for specified “personal records”.  Plaintiff does not appear to contend that the procedure protecting such personal records has been satisfied.

Plaintiff has elected not to use declarations to meet his burden to establish good cause, but rather to rely on the allegations of his pleading.  However, a factual showing in support of a motion to compel must provide specific facts rather than conclusions, and must show in addition to relevance specific facts justifying discovery.  (Fireman’s Fund Ins. Co. v. Superior Court (1991) 233 Cal.App.3d 1138, 1141; Glenfed Develelopment Corp. v. Superior Court (1997) 53 Cal.App.4^th 1113, 1117.)  Moreover, even a showing of good cause is not sufficient to compel production of materials constituting attorney work product.  (Code of Civil Procedure 2018.030.)

Requests 2-17, 19, 21-25: Plaintiff offers as his showing of good cause the assertion that “nearly everything relating to B&P is relevant.”  (Memorandum in Support, at 9:5.)   That assertion does not satisfy the showing required.  As to Requests 2-13, 15-17, 19, and 21-25, the motion is denied because good cause has not been shown and the overbreadth objection is sustained.

The privilege belongs to the client not to disclose confidential communications with an attorney.  (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4^th 889, 911.)  Once it has been established that the communication in question is between attorney and client, it is presumed confidential.  (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 824-25.)   Becker has not provided sufficient information as to Requests No. 15, 26-27 and 39, for the court to determine that the request calls for confidential communications.  The motion is granted as to those requests to provide a further response.

The opposition was made with substantial justification, and the request for sanctions is denied.