19-UDU-00543 MARTIN M. EISNBERG VS. PROMAGIX, INC., ET AL.

MARTIN M. EISNBERG PROMAGIX, INC.
GEORGE W. WAILES RAJEEV K. MADNAWAT

PLAINTIFF MARTIN EISENBERG’S MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS, AND REQUEST FOR SANCTIONS TENTATIVE RULING:

Plaintiff Martin Eisenberg’s Motion to Compel Further Responses and Production of Documents, and request for sanctions, filed 9-5-19, is GRANTED-IN-PART, as set forth below.

Defendants’ Opposition brief

Defendants filed an Opposition brief on 10-18-19, and served it the same day by regular mail. See Code Civ. Proc. § 1005(b) (Opposition brief shall be served by means of next day delivery). Defendant’s service of the Opposition brief by regular mail deprived Plaintiff of the opportunity to meaningfully respond to it. The Court has, however, reviewed the Opposition brief.

Motion to Compel Further Responses to RFPs

Plaintiff filed this motion on 9-5-19. On 9-20-19, Defendants served further responses to the Request for Production (RFPs), and produced additional documents. See 10-18-19 Reply Decl. of George Wailes. Rather than forcing Plaintiff to file another motion to compel further responses, the Court treats this motion to compel further responses as directed to Defendants’ 9-20-19 supplemental responses.

Defendants Promagix, Inc.’s and Pankaj Gupta’s 9-20-19 Supplemental responses

Plaintiff’s motion to compel further responses is GRANTED as to RFP Nos. 1, 3, 5, 7, 11, 16, and 19. The responses are not code-compliant, because they only state that responsive documents do not exist. They do not state whether responsive documents ever existed, and if so, what happened to them, who currently has them, etc. See Code Civ. Proc. § 2031.230.

Plaintiff’s motion to compel further responses is GRANTED as to RFP Nos. 2, 4, 6, 8-10, 15, and 17-18. The objections are OVERRULED. The responses are not code-compliant because they do not state whether Defendants agree to produce all responsive documents. An agreement to produce “responsive documents” does not suffice, because it remains unclear whether the responding party has agreed to produce all responsive documents in its possession, custody or control. As to RFP No. 16, the fact that “the license is posted at the premises” does not excuse Defendant from producing it.

Defendants Meineke and FinderDirect’s 9-20-19 Supplemental responses

Plaintiff’s motion to compel further responses is GRANTED as to RFP Nos. 1, 2, 5, 10-11, and 13. The objections are OVERRULED. Again, the responses do not state whether Defendants agree to produce all responsive documents.

Plaintiff’s motion to compel further responses is GRANTED as to RFP Nos. 8 and 15-19. The objections are OVERRULED.

The motion is DENIED as to RFP Nos. 9. The RFP is overbroad in the financial information sought.

Defendant Sallaku’s 9-20-19 Supplemental responses

Plaintiff’s motion to compel further responses is GRANTED as to RFP Nos. 1, 2, 10-12, and 14. The objections are OVERRULED. Again, the responses do not state whether Defendants agree to produce all responsive documents.

Plaintiff’s motion to compel further responses is GRANTED as to RFP Nos. 8 and 15-19. The objections are OVERRULED.

All Defendants identified above shall serve further responses to Plaintiffs’ RFPs, consistent with this Order, within 14 days of this Order.

Privilege Log

To the extent Defendants have withheld documents based on privilege, the motion to compel a privilege log is GRANTED. If Defendants are withholding any responsive documents based on a claimed privilege, Defendant shall properly identify those documents on a privilege log and serve the privilege log on Plaintiff within 14 days of this Order.

Motion to Compel Production of Documents

This motion is GRANTED-IN-PART, only with respect to the native version of the requested “Management Agreement” and the Addendum thereto. Code Civ. Proc. § 2031.310. Given that Defendants have produced hard copies of these two documents, presumably they have and can produce the native versions.

The motion to compel production is otherwise DENIED, given Defendants’ Sept. 20, 2019 supplemental production. Plaintiffs’ counsel’s (Mr. Wailes’) 10-18-19 “Reply Declaration” argues that Defendants possess additional responsive documents that are being withheld, including additional “communications” between the Defendants, “licenses and applications,” financial documents, and insurance documents (applications and policies). While the Court agrees these categories of documents are discoverable, Defendants can only produce documents that are in their possession, custody or control. During the meet and confer, defense counsel argued the motion to compel production is “moot because Defendants … [have] produced everything in their possession.” 10-18-19 Wailes Decl. at 9. Mr. Wailes argues “Defendants have not produced all responsive documents under their control, no matter what they state in their responses.” Id., ¶12. As stated above, Defendants shall serve further verified responses to the RFPs. If Defendants contend they cannot comply to an RFP because they have no responsive documents, they shall serve a code-complaint response so stating. In such a situation, § 2031.310 does not authorize the Court to order Defendants to produce documents they have stated they do not possess.

Sanctions

The Court disagrees with Defendants’ contention that Plaintiff did not properly meet and confer prior to filing this motion. The Court has reviewed the attorneys’ correspondence and believes defense counsel, Mr. Madnawat, has exhibited extremely unprofessional conduct in the course of his communications with Plaintiff’s counsel, Mr. Wailes. 9-5-19 Wailes Decl., Ex. 6 at 9. The Court will not tolerate such behavior going forward. Further, Defendants only served the 9-2019 supplemental responses, together with a supplemental document production, after Plaintiff filed this motion. The Court GRANTS-IN-PART Plaintiff’s request for sanctions against Defendants and their counsel (Mr. Madnawat), jointly and severally, in the amount of $3,045, to be paid to Plaintiff’s counsel within 20 days of this Order.

This case is overly contentious. The parties and their counsel are admonished, going forward, to display courtesy and professionalism in their dealings with opposing counsel.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.