Case Name: Garden City, Inc. v. Eric Swallow, et al.

Case No.: 16CV295297

Plaintiffs Garden City, Inc. (“GCI”), Peter V. Lunardi III, and Jeanine Lunardi (collectively, “the Lunardis”), filed this action against defendants Eric Swallow (“Swallow”), Team View Player Associates, LLC (“Team View”), and others due to a dispute between business partners. According to the third amended complaint (“TAC”), GCI operates a licensed card room in San Jose, Casino M8trix. From 2007 to June 26, 2016, Swallow was a director and secretary of GCI. Until June 9, 2017, Swallow held 12,500 shares in GCI, equaling 50 percent of the outstanding shares. At that time, the Lunardis owned the remaining 50 percent of the shares on behalf of the Lunardi Family

Living Trust. In his position with GCI, Swallow was required to hold certain gaming licenses. On May 2, 2014, the Bureau of Gambling Control (“Bureau”) issued an “Accusation” against Swallow, GCI and the Lunardis. The Accusation alleged that Swallow committed acts that would result in revocation of his gaming license and that would prevent him from owning the shares. The Lunardis settled with the Bureau but Swallow proceeded to trial. The administrative law judge trying the case determined that Swallow received illegal kickbacks from multiple vendors, including Team View. The Lunardis believe that Swallow instructed GCI employees to falsify records to assist in his defense against the Accusation. As a result of the Accusation, the California Gambling Control Commission revoked Swallow’s gambling license and imposed a penalty of $13.6 million.

Prior to the Accusation, Swallow and the Lunardis entered into a “Buy-Sell Agreement,” which included a right of first refusal in the event a shareholder desired to sell their shares to a third party. Swallow, forced to sell his shares in light of the Gambling Control Commission’s ruling, entered into a stock purchase agreement with John Park. The parties went to arbitration where Swallow was ordered to sell his shares to the Lunardis. On October 6, 2017, GCI and the Lunardis filed the operative TAC against Swallow alleging causes of action for breach of fiduciary duty, indemnity and reimbursement, fraud, “tort of another,” declaratory relief, and breach of contract. Swallow filed an answer alleging various defenses. On February 19, 2019, Swallow filed his second amended cross-complaint alleging causes of action for breach of fiduciary duty, breach of contract, common count, fraud, indemnification, conversion, and accounting. GCI and the Lunardis filed an answer alleging their defenses.

Thereafter, Swallow issued two sets of requests for production of documents. The instant motion to compel requests this court order that GCI comply with the court’s order to produce a privilege log with respect to his first set of requests for production of documents, that GCI provide further responses to his second set of requests for production of documents, and that GCI provide responsive documents.

I. Motion to Compel Compliance with Court Order to Produce a Privilege Log
II.

Swallow requests that this court order GCI to comply with a previous order of the Court to provide a privilege log in response to Swallow’s first set of requests for production. GCI has provided a privilege log but Swallow contends that it remains deficient because it fails to adequately identify the subject matter of the documents listed.

“The precise information required for an adequate privilege log will vary from case to case based on the privileges asserted and the underlying circumstances. In general, however, a privilege log typically should provide the identity and capacity of all individuals who authored, sent, or received each allegedly privileged document, the document’s date, a brief description of the document and its contents or subject matter sufficient to determine whether the privilege applies, and the precise privilege or protection asserted. [Citations.]” (Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 (Catalina).)

Here, nearly all of the documents listed in the privilege log are emails. The sender and recipient are provided. But, only the subject line of the email is provided to explain the contents of the email. This is insufficient even where the sender or the recipient is an attorney because “not all communications with an attorney are privileged.” (Catalina, supra, 242 Cal.App.4th at p. 1130, fn. 5.) The court concludes that GCI’s privilege log remains deficient in that it fails to suitably identify the subject matter of the documents in question. Accordingly, GCI is ordered to prepare and serve on Swallow’s counsel a new privilege log, within 10 days of the date of this order, identifying the content of the documents listed with adequate particularity so that Swallow can determine whether the attorney-client and work product privileges GCI invokes actually apply.

Because insufficient detail is provided to describe the application of the attorney-client privilege and the attorney work product doctrine here, the Court is unable to rule on the merits of the objections based on attorney-client and work product privilege. (See Catalina, supra, 242 Ca1.App.4th at p. 1129 [court may not overrule privilege objection unless it receives sufficient information to decide whether it has merit].) As such, the objections based on attorney-client privilege and work product privilege are deemed preserved.

The court will now address GCI’s remaining objections below.

III. Motion to Compel Further Responses to Requests for Production of Documents (Set Two)
IV.

Swallow also requests that this court compel GCI to provide further responses to Swallow’s second set of requests for production of documents. The party propounding requests for production of documents may move for an order compelling further responses if that party deems: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and/or (3) an objection is without merit or too general. (Code Civ. Pro., § 2031.310, subd. (a).) A motion to compel further responses must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Pro., § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 (Kirkland).) If “good cause” is shown, the burden shifts to the responding party to justify any objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.) Additionally, if the responding party fails to produce documents in accordance with a statement of compliance, the propounding party may move for an order compelling compliance. (Code Civ. Pro., § 2031.320, subd. (a).)

A. Good Cause
B.

Swallow requests several categories of documents that appear to be relevant to the causes of action in the TAC and to Swallow’s potential defenses. A motion to compel further responses to a request for production of documents must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) The moving party establishes good cause by showing: (1) relevance to the subject matter of the case; and (2) specific facts justifying discovery. (Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98 [the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance].) Discovery is allowed for any matters that are not privileged and relevant to the subject matter, and a matter is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Sup. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

In light of the privacy concerns expressed by GCI, the items sought must be “directly relevant” and “essential to the fair resolution” of the lawsuit. (Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425.) To establish direct relevance, “[i]t is not enough that the information might lead to relevant evidence,” which could be sufficient to establish general relevance for discovery purposes absent a privacy objection. (Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901.) “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017.)

Here, with certain exceptions to be discussed below, all of the requests are directly relevant to claims made in the TAC or defenses to those claims. This court concludes that Swallow’s requests for production of documents are supported by good cause except where explicitly stated.

C. Requests to Which GCI Objects on Privilege Grounds in Addition to Other Grounds
D.

Garden City objects to the following requests on other grounds in addition to the attorney-client privilege and work product privilege grounds discussed above:

i. Miscellaneous Requests
ii.

Request for Production No. 30: Each document pertinent to GCI’s contention in its TAC that the Lunardi’s learned for the first time in the summer of 2015, that Swallow had instructed current and former employees of GCI to alter and falsify company records to assist Swallow in his defense of the Accusation.

GCI objects to request no. 30 as compound. Although GCI states in its opposition that request no. 54 is compound, it provides no authority or argument in support of that contention. It merely states that the contract upon which the claim in the TAC was based has already been produced. GCI does not justify these objections in its opposition and thus the objection is OVERRULED. (See Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220-221 (Coy) [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541 (Williams) [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].) Accordingly, the motion to compel a further response to request for production no. 30 is GRANTED.

Request for Production No. 39: Each document pertinent to GCI’s contention in its TAC that GCI held the sum of $12,521,580 as and for accrued distributions attributable to the shares held by Swallow pursuant to Subchapter S of Chapter 1 of Subtitle A of the Internal Revenue Code.

GCI initially objected to request no. 39. But, neither its opposition nor its separate statement provide any objection to this request. Accordingly, the motion to compel a further response to request for production no. 39 is GRANTED.

iii. Overbreadth Objections
iv.

Request for Production No. 26: Each document pertinent to GCI’s contention in its third amended complaint (“TAC”) that each Defendant was the agent, servant, partner or employee of each of the remaining Defendants and that each Defendant acted within the scope and course of such agency, service, employment or partnership with the express and/or implied knowledge, permission and consent of the remaining Defendants.

Request for Production No. 34: Each document pertinent to GCI’s contention in its TAC that falsified evidence was used by Swallow to buttress his claim that a company by the name of Secure Stone, LLC had provided software products to certain vendors of GCI, including Team View.

Request for Production No. 35: Each document pertinent to GCI’s contention in its TAC that falsified evidence was used by Swallow to buttress his claim that monies paid by GCI vendors to Secure Stone were paid in exchange for software products provided by Secure Stone.

Request for Production No. 36: Each document pertinent to GCI’s contention in its TAC that Secure Stone in fact sold no custom software products to anyone, including GCI vendors.

Request for Production No. 37: Each document pertinent to GCI’s contention in its TAC that Secure Stone was merely a sham designed to receive kickbacks demanded by Swallow.

Request for Production No. 38: Each document pertinent to GCI’s contention in its TAC that in order to conceal his misdeeds, Swallow set up Secure Stone as a company purportedly owned solely by his now estranged wife, Deborah Swallow.

Request for Production No. 43: Each document pertinent to GCI’s contention in its TAC that Swallow encouraged employees of GCI to fail to disclose agreements between M8trix vendors and Swallow.

Request for Production No. 44: Each document pertinent to GCI’s contention in its TAC that Swallow encouraged employees of GCI to fail to disclose agreements between M8trix vendors and casino general manager Scott Hayden.

Request for Production No. 45: Each document pertinent to GCI’s contention in its TAC that Swallow encouraged employees of GCI to fail to disclose agreements between M8trix vendors and casino general manager Scott Hayden for the purpose of avoiding discovery of Swallow’s breaches of fiduciary duty to GCI.

Request for Production No. 46: Each document pertinent to GCI’s contention in its TAC that as a direct and proximate result of the multiple breaches of fiduciary duty by Swallow, GCI has been injured in an amount in excess of $3,600,000.

Request for Production No. 47: Each document pertinent to GCI’s contention in its TAC that Swallow’s actions in breach of his fiduciary duties were intentional, deliberate, malicious, willful, fraudulent and committed with the intentional disregard for the consequences to GCI.

Request for Production No. 48: Each document pertinent to GCI’s contention in its TAC that as a direct and proximate result of the actions and inactions alleged in the Accusation against Swallow and his multiple breaches of fiduciary duty, GCI incurred legal fees in defense of the Accusation, and to indemnify the Lunardis for legal fees incurred in their own defense in excess of $1,000,000.

Request for Production No. 50: Each document pertinent to GCI’s contention in its TAC that former casino general manager Scott Hayden directly or through Creative Gaming Solutions, Inc., likewise received kickbacks from vendors at the casino premises.

Request for Production No. 53: Each document pertinent to GCI’s contention in its TAC that Swallow’s purported failures of disclosure were intentional, deliberate, malicious, willful, fraudulent and committed with intentional disregard for the consequences to GCI.

Request for Production No. 55: Each document pertinent to GCI’s contention in its TAC that Team View’s representation that it was aware of no disqualifying facts or conduct that would preclude it from being licensed to provide third party proposition player services to GCI and that it would comply with all applicable laws, including the laws regulating the operation of a gaming enterprise such as GCI were false when made.

Request for Production No. 56: Each document pertinent to GCI’s contention in its TAC that Team View knew its representations that it was aware of no disqualifying facts or conduct that would preclude it from being licensed to provide third party proposition player services to GCI and that it would comply with all applicable laws, including the laws regulating the operation of a gaming enterprise such as GCI were false when made.

Request for Production No. 57: Each document pertinent to GCI’s contention in its TAC that GCI did, in fact, rely upon Team View’s false statements.

Request for Production No. 58: Each document pertinent to GCI’s contention in its TAC that GCI relied on Team View’s false statements in entering into multiple contracts with Team View, including the Final Team View Contract.

Request for Production No. 59: Each document pertinent to GCI’s contention in its TAC that GCI did not discover and could not reasonably have discovered that the statements were false prior to the service of the Accusation.

Request for Production No. 60: Each document pertinent to GCI’s contention in its TAC that as a direct, proximate result of Team View’s fraudulent statements, GCI suffered damage in an amount in excess of $75,000.

Request for Production No. 67: All documents pertinent to GCI’s first cause of action in its TAC.

Request for Production No. 69: All documents pertinent to GCI’s second cause of action in its TAC.

Request for Production No. 71: All documents pertinent to GCI’s third cause of action in its TAC.

Request for Production No. 73: All documents pertinent to GCI’s fourth cause of action in its TAC.

Request for Production No. 75: All documents pertinent to GCI’s fifth cause of action in its TAC.

Request for Production No. 77: All documents pertinent to GCI’s sixth cause of action in its TAC.

GCI objects to requests for production nos. 26, 34-38, 43-48, 50-53, 55-60, 67, 69, 71, 73, 75, and 77 as overbroad, in addition to its attorney-client privilege and overbreadth objections. But, GCI does not support his overbreadth objection in either its opposition or its separate statement with respect to request nos. 34-38, 43-48, 53, and 55-60. Accordingly, the overbreadth objections to request nos. 34-38, 43-48, 53, and 55-60 are OVERRULED and the motion to compel a further response to request for production nos. 34-38, 43-48, 53, and 55-60 are GRANTED.

With respect to the remaining requests, nos. 26, 50, 51, 67, 69, 71, 73, 75, and 77, GCI contends that the requests are overbroad because they do not describe with particularity the categories of documents sought. (See Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 218-219 (Calcor).) Specifically, GCI objects to the use of the term “pertinent to,” which is defined in Swallow’s second set of requests for production of documents as meaning or referring to “anything . . . that tends to prove or disprove the contention referred to, i.e., a DOCUMENT is PERTINENT TO a contention if it either supports or refutes that contention).” GCI asserts that these requests are merely blanket demands for generalized categories of documents that do not adequately narrow the types of documents sought as required by Code Civ. Proc. §2031.030(c)(1) and Calcor, supra, 53 Cal.App.4th at 218.)

However, Swallow links the request for pertinent documents to specific allegations in the TAC. Requests nos. 26, 50, 67, 69, 71, 73, 75, and 77 are narrowly tailored to obtain production of materials relevant to the litigation in this case. Accordingly, the objections based on overbreadth are OVERRULED, and the motion to compel a further response to request for production nos. 26, 50, 67, 69, 71, 73, 75, and 77 are GRANTED.

Request for Production No. 51: Each document pertinent to GCI’s contention in its TAC that GCI was not aware that Swallow and Scott Hayden (or his wholly owned company) were receiving kickbacks until after the filing and service of the Accusation on or about May 2, 2014. Swallow was aware of these kickbacks prior to May 2, 2014 and was aware that vendors were being preyed upon by himself and other management and failed to disclose such activities to GCI.

With respect to request for production no. 51, GCI provides an additional argument for overbreadth that the request is not limited based on time or scope. It further contends that it is impossible to find documents that prove the negative proposition that GCI was not aware of the kickbacks. Neither objection has merit. The request is specifically limited temporally up to May 2, 2014. The second contention is similarly meritless because the request is specifically seeking documents relevant to an assertion in the TAC. Accordingly, the overbreadth objection is OVERRULED and the motion to compel a further response to request for production no. 51 is GRANTED.

Request for Production No. 52: Each document pertinent to GCI’s contention in its TAC that as a direct, proximate result of Swallow’s failure of disclosure, GCI suffered damage in an amount to be proven at trial, but in excess of $75,000.

GCI contends that request for production no. 52 is overbroad because it is not limited temporally or in scope because “[t]o produce ‘every document’ that is “PERTINENT” TO Mr. Hayden’s role at GCI and what actions he took as an agent of Mr. Swallow, a corporate officer, is patently overbroad since it is unlimited by time or scope.” (Response to Swallow’s Separate Statement at p. 209.) But, request no.52 does not request any documents relating to Hayden’s role at GCI or the actions he took as Swallow’s agent. Accordingly, the overbreadth objection is OVERRULED and the motion to compel a further response to request for production no. 52 is GRANTED.

v. Privacy Objections
vi.

Request for Production No. 26: Each document pertinent to GCI’s contention in its third amended complaint (“TAC”) that each Defendant was the agent, servant, partner or employee of each of the remaining Defendants and that each Defendant acted within the scope and course of such agency, service, employment or partnership with the express and/or implied knowledge, permission and consent of the remaining Defendants.

Request for Production No. 58: Each document pertinent to GCI’s contention in its TAC that GCI relied on Team View’s false statements in entering into multiple contracts with Team View, including the Final Team View Contract.

Request for Production No. 59: Each document pertinent to GCI’s contention in its TAC that GCI did not discover and could not reasonably have discovered that the statements were false prior to the service of the Accusation.

Request for Production No. 67: All documents pertinent to GCI’s first cause of action in its TAC.

Request for Production No. 69: All documents pertinent to GCI’s second cause of action in its TAC.

Request for Production No. 71: All documents pertinent to GCI’s third cause of action in its TAC.

Request for Production No. 73: All documents pertinent to GCI’s fourth cause of action in its TAC.

Request for Production No. 75: All documents pertinent to GCI’s fifth cause of action in its TAC.

Request for Production No. 77: All documents pertinent to GCI’s sixth cause of action in its TAC.

GCI objects to request nos. 26, 58, 59, 67, 69, 71, 73, 75, and 77 on the ground of privacy. In its opposition, it contends that it withheld five unspecified documents on the ground that production of the documents would violate the Lunardis’ right to financial privacy. In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, the California Supreme Court announced a test for evaluating privacy concerns. “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]” (Williams, supra, 3 Cal.5th at p. 552.)

“[C]onfidential financial affairs” are protected by the state constitution’s privacy provision. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 368.) “[D]etails regarding one’s personal finances or other financial information” may be considered “particularly sensitive.” (Id. at p.372.) “In civil cases courts must ‘indulge in a careful balancing of the right of civil litigants to discover relevant facts, on the one hand, with the right of [individuals] to maintain reasonable privacy regarding their financial affairs, on the other.’ [Citation.]” (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1428.)

With respect to the request for production no. 59, GCI failed to object on privacy grounds in its responses to Swallow’s request for production of documents. Accordingly, the objection is waived and the request for production no. 59 is GRANTED. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273 (Scottsdale) [waiver occurs where the responding party fails to timely raise an objection in its initial response].)

With respect to request for production no. 77, GCI also contends that the request is nonsensical because the term “you” is defined in the request as GCI. Because this objection was not raised in the initial response to the request for production it is waived. (See Scottsdale, supra, 59 Cal.App.4th at p. 273.)

With respect to request nos. 26, 58, 67, 69, 71, 73, 75, and 77, GCI does not explain the exact nature of the financial documents in question, merely stating that the documents are PDFs. Its privacy objections in connection with the specific requests to which they are made do not allow this court to conclude that a protected privacy interest exists with respect to the documents in question. Thus, this court finds that GCI has failed to establish a legally protected privacy interest and the objections based on privacy are OVERRULED. Accordingly, the motion to compel a further response to requests for production nos. 26, 58, 67, 69, 71, 73, 75, and 77 are GRANTED.

vii. Not Likely to Lead to Admissible Evidence
viii.

Request for Production No. 61: Each document pertinent to GCI’s contention in its TAC that under the Buy-Sell Agreement, Swallow was obligated to give the Lunardis proper notice of their opportunity to exercise their right of first refusal.

Request for Production No. 62: Each document pertinent to GCI’s contention in its TAC that the sending of the Bad Faith Notice constituted a breach of contract by Swallow.

Request for Production No. 63: Each document pertinent to GCI’s contention in its TAC that as a direct, proximate result of the sending of the Bad Faith Notice, the Lunardis were denied the opportunity to complete the purchase of Swallow’s shares at the earliest possible date, resulting in monetary damages.

Request for Production No. 65: Each document pertinent to GCI’s contention in its TAC that Swallow breached the Buy-Sell Agreement by refusing to honor the March 17 Notice in 2016 and instead forced them through an additional arbitration in order to purchase Swallow’s shares.

Request for Production No. 66: Each document pertinent to GCI’s contention in its TAC that as a direct, proximate result of that breach, the Lunardis were denied the opportunity to complete the purchase of Swallow’s shares at the earliest possible date resulting in monetary damages.

With respect to requests for production nos. 61-63 and 65-66, GCI contends that these requests are not likely to lead to admissible evidence as there is no dispute regarding this allegation in the TAC. This is because, GCI claims, that the parties are bound by rulings of other judges that occurred during arbitration and that these were confirmed by the superior court. This appears to be another way of stating that the documents requested are irrelevant because the facts at issue are already proven. But, the requests are related to items that GCI has put in issue by raising them in the complaint and the objections based on relevance are OVERRULED. Accordingly, this court finds that the requests are directly relevant to the litigation. The motion to compel a further response to requests for production nos. 61-63 and 65-66 are granted.

E. Requests to Which GCI Does Not Object on Privilege Grounds
F.

Garden City does not object to the following requests on any privilege ground:

Request for Production No. 54: Each document pertinent to GCI’s contention in its TAC that Team View, by and through its authorized agent and owner Timothy M. Gustin, represented to GCI that it was aware of no disqualifying facts or conduct that would preclude it from being licensed to provide third party proposition player services to GCI and that it would comply with all applicable laws, including the laws regulating the operation of a gaming enterprise such as GCI.

GCI objects to the request as compound but states that it will produce any non-privileged documents in response to the request. Swallow contends that no documents have been produced. GCI does not justify these objections in its opposition and thus the objections are overruled. (See Coy, supra, 58 Cal.2d at pp. 220-221 [if a timely motion to compel has been filed, the burden is on responding party to justify any objection]; see also Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541 [the burden of justifying any objection and failure to respond remains at all times with the party resisting discovery].) Although GCI states in its opposition that request no. 54 is compound, it provides no authority or argument in support of that contention. It merely states that the contract upon which the claim in the TAC was based has already been produced. Accordingly, the objection is OVERRULED and the motion to compel a further response to request for production no. 54 is GRANTED.

Request for Production No. 62: Each document pertinent to GCI’s contention in its TAC that the sending of the Bad Faith Notice constituted a breach of contract by Swallow.

GCI objects to this request stating that it is not likely to lead to admissible evidence because there is no dispute regarding this allegation in the TAC as the parties are bound by the final award in the arbitration that occurred in this case. GCI states that it will not produce any further documents in response to this request. Because it is likely that GCI has documents in its possession other than the final award in the arbitration proceedings, the objection based on relevance is OVERRULED and the motion to compel a further response to request no. 62 is GRANTED to the extent the documents have not yet been turned over.

Request for Production No. 68: All documents which show the name, address, phone number or other contact information for any witness to any of the facts pertinent to GCI’s first cause of action in its TAC.

Request for Production No. 70: All documents which show the name, address, phone number or other contact information for any witness to any of the facts pertinent to GCI’s second cause of action in its TAC.

Request for Production No. 72: All documents which show the name, address, phone number or other contact information for any witness to any of the facts pertinent to GCI’s third cause of action in its TAC.

Request for Production No. 74: All documents which show the name, address, phone number or other contact information for any witness to any of the facts pertinent to GCI’s fourth cause of action in its TAC.

Request for Production No. 76: All documents which show the name, address, phone number or other contact information for any witness to any of the facts pertinent to GCI’s fifth cause of action in its TAC.

Request for Production No. 78: All documents which show the name, address, phone number or other contact information for any witness to any of the facts pertinent to GCI’s sixth cause of action in its TAC.

GCI objects to requests for production nos. 68, 70, 72, 74, 76, and 78 as overbroad and in violation of the state and federal constitutional rights to privacy. GCI states that it will not produce any further documents with respect to these requests. Swallow has failed to show good cause for the production of all documents which show the contact information for the witnesses in question. It appears that these requests are calculated toward discovering the contact information for the witnesses but the form of the request is overbroad. Accordingly, the objection based on overbreadth is SUSTAINED and the motion to compel a further response to requests for production nos. 68, 70, 72, 74, 76, and 78 is DENIED.

V. Conclusion
VI.

GCI must provide further verified, code-compliant further responses, without objection (except for objections on the grounds of attorney-client privilege and attorney work product doctrine, which are preserved), and serve any responsive documents within 20 days of this Order as to requests for production nos. 26, 30, 34-39, 43-48, 50, 52-60, 63, 63, 65-67, 69, 71, 73, 75, 77. As mentioned above, GCI’s privilege log is insufficient and GCI must produce a new privilege log providing sufficient factual information to allow for a determination as to whether each document listed is privileged or not.

VII. Request for monetary sanctions
VIII.

Swallow requests $22,852.50 in sanctions against GCI for attorney’s fees incurred in the preparation of the instant motion under Code of Civil Procedure 2023.010 through 2023.040, 2031.300, and 2031.320. The request for sanction is code compliant. Here, the request for monetary sanctions is excessive, which is itself a basis to deny the request. Further, considering the import of the preservation of the attorney-client and work product privileges, GCI’s counsel acted with substantial justification in opposing the motion. Swallow’s request for monetary sanctions is DENIED.

The Court will prepare the Order.