Case Name: Clark v City of Santa Clara
Case Number: 111CV212814

I. Statement of Facts.
This case arises out of a pedestrian versus vehicle accident. Plaintiff Clarke was struck by a vehicle while crossing the intersection of Railroad and El Camino Real in Santa Clara.. The intersection is owned by the State of California. Plaintiff claims the accident occurred because of a dangerous condition of public property.

Plaintiff filed the complaint on November 9th, 2011.
II. Discovery Dispute.
On 29 October 2013, Plaintiff served Plaintiff’s Request for Production of Documents, Set Two, on Defendant State of California. (Plaint. Ex. A). After multiple extensions of time, Defendant’s responses were served on 6 January 2014. (Plaint. Ex. B.)
Plaintiff made a meet and confer attempts on 7 March 2014 and 21 March 2014. (Dell Decl. ¶ 4; Plaint. Ex. D). The parties agreed on an extension, and mediation commenced for several months. (Dell Decl. ¶ 4-7). Mediation was unsuccessful, and Plaintiff restarted efforts to obtain discovery with another meet and confer attempt on 9 December 2014, and requested the documents be produced within 2 weeks. (Dell Decl. ¶ 7-8).
Defendant faxed a response to Plaintiff on 23 December 2014, and mailed documents to Plaintiff via overnight mail. (Truax Decl. ¶ 4; Def. Ex. A).
Plaintiff filed this motion to compel on 23 December 2014.
On 24 December 2014, Defendant telephoned Plaintiff to ensure Plaintiff had received the documents, however, counsel’s office was closed. (Truax Decl. ¶ 5). Defendant received Plaintiff’s motion to compel on 29 December 2014. (Id.)
Trial has been set for April of 2015.
III. Analysis.
A. Meet and Confer
A code-compliant attempt to meet and confer is an explicit prerequisite in this situation. (Code Civ. Proc. § 2031.310(b)). Under California Code of Civil Procedure § 2016.040, “a meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The failure to attempt to meet and confer where required is an explicitly named misuse of the discovery process. (See Code Civ. Pro. § 2023.010(i)). Here, the Court finds that the Plaintiff has sufficiently met and conferred. (Plaint. Ex. D-E; Def. Ex. A).
B. Plaintiff’s Motion to Compel Further Responses to Document Requests
Pursuant to Code of Civil Procedure section 2031.310: “on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.”
1. Boilerplate Objections
In all of their initial responses to Plaintiff’s discovery requests, Defendant includes clearly copy-pasted objections on the grounds of vagueness, ambiguous, overbreadth, burden, attorney-client privilege, work-product privilege, and “protected by 23 U.S.C 148 and 409. These are inappropriate boilerplate objections. Generally, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 and may result in a waivers of privileges in the 9th Circuit per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142,, 2005 WL 1175922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.] See also Bob Barker Company, Inc.. v. Ferguson Safety Products, Inc, 2006 WL 648674 (N.D.Ca.2006). [The trial court noted the failure to respond to a document request in accord with the discovery rules which necessitated granting the motion for further responses: “responses are too ambiguous to … determine the extent to which [responding party] may be withholding responsive documents based on its other objections rather than asserting that no responsive documents exist. While … responses were not “boilerplate” in the sense of containing only generalized objections of a sort that might be found in any case, Ferguson did repeat the same long paragraph of objections and explanations in all of its responses, regardless of the applicability of that recitation to the particular request.”]
Here, as Defendant has included supplemental responses in their objections to this motion, this Court will not outright deem Defendant’s responses to be a waiver of privilege. However, this Court will not consider any of Defendant’s initial boilerplate objections in making a determination.
2. Relevance.
Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.010; Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216, 223.) 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. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790).
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)

3. Burden.
“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship e.g., specific facts as to how much work, time, and expense would be required to respond and/or produce responsive documents. (Id. at p. 417-418; Contra, Mead Reinsurance Co. v. Super. Ct. (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters, working full time for six weeks each].)
In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (West Pico Furniture Co. v. Super. Ct., supra, 56 Cal.2d at p. 418.) Generally, the party or deponent seeking a protective order must show that the burden, expense, or intrusiveness due to the discovery request clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-111
4. Vague and Ambiguous
A “vague and ambiguous” objection is invalid unless the question is wholly unintelligible and the question must be answered if the nature of the information sought is apparent. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783.)
A responding party must provide non-evasive answers to interrogatories that are “as complete and straightforward…to the extent possible,” and, if after a reasonable and good faith effort to obtain the information they still cannot respond fully to an interrogatory, the responding party must so state in its response. (Code Civ. Proc. § 2030.220.)
5. Burden and Overbreadth
In short, as Justice Murphy said for the court in Hickman v. Taylor, 329 U.S. 495, 507, ‘discovery, like all matters of procedure, has ultimate and necessary boundaries.’” (Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal. App. 2d 12, 19.)

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship e.g., specific facts as to how much work, time, and expense would be required to respond and/or produce responsive documents. (Id. at p. 417-418; Contra, Mead Reinsurance Co. v. Super. Ct. (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters, working full time for six weeks each].)
In ruling on a burden objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (West Pico Furniture Co. v. Super. Ct., supra, 56 Cal.2d at p. 418.) Generally, the party or deponent seeking a protective order must show that the burden, expense, or intrusiveness due to the discovery request clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-111 ).

“[I]f interrogatories are reasonably subject to objection as calling for the disclosure of matters so remote from the subject matter of the action as disclosed by the issues framed by the pleadings as to make their disclosure of little or no practical benefit to the party seeking the disclosure or if to answer them would place a burden and expense upon the parties to whom the interrogatories are propounded which should be equitably borne by the propounder or if the interrogatories are so framed as to require the disclosure of relevant as well as irrelevant matter, the trial court in the exercise of its discretion may refuse to order such interrogatories answered.” (Columbia Broadcasting System, Inc. v. Superior Court of Los Angeles County (1968) 263 Cal. App. 2d 12, 19.)

A discovery request has been held “oppressive” where uncontradicted declarations showed that response would require review of over 13,000 insurance claims files, requiring 5 claims adjusters working full time for 6 weeks each. (Mead Reinsurance Co. v. Sup.Ct. (City of Laguna Beach) (1986) 188 Cal.App.3d 313, 318–involving document demand; see Weil & Brown, ¶8:1475.1]

6. Privilege.
In Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, the Court stated: “[A] responding party may object to an interrogatory that seeks privileged information by clearly stating the objection and the particular privilege invoked. But the existence of a document containing privileged information is not privileged. [Citations.] Interrogatories may be used to discover the existence of documents in the other party’s possession. [Citation.] If an interrogatory asks the responding party to identify a document, an adequate response must include a description of the document. [Citation.] [Consequently,] a ‘privilege log’ is unnecessary with regard to answering interrogatories seeking the identification of documents. [Citation.]” (Id. at p. 293, last italics added.) A party has “no right to refuse to identify documents in response to interrogatories, even if [it] may properly refuse to produce them later, based upon a claim of privilege. [Citation.]” (Id. at p. 294.)
A record log should be prepared that sufficiently allows a determination of whether each withheld document is or is not (in) fact privileged. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App. 4th 110, 130.)
The common method of identifying documents and things claimed to be privileged by the responding party is by submitting a privilege log to the propounding party. However, California courts have noted that the “expression ‘privilege log,’ does not appear in section 2031 or anywhere else in the Code of Civil Procedure[.] … The expression is jargon, commonly used by courts and attorneys to express the requirements of subdivision (g)(3) of section 2031. [Citations.] The purpose of a ‘privilege log’ is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. [Citation.] The purpose of providing a specific factual description of documents is to permit a judicial evaluation of the claim of privilege. [Citations.]” Best Products, Inc. v. Superior Court, (2004) 119 Cal. App. 4th 1181, 1188-1189 (quoting Hernandez v. Superior Court, 112 Cal. App. 4th 285, 292). The main purpose of a privilege log is to allow the trial court to determine whether or not withheld documents are or are not privileged. Therefore, a privilege log needs to be specific enough to allow the trial court to make such a decision.
7. Specific Objections to Requests for Production of Documents, Set Two
Here, Plaintiff is requesting further responses to Request Numbers 74-133.
Defendant objects to request numbers 86-9, 97-8, 100-1, 103-5, 108-9, 111, 115, 119-128, and 130-33 on the grounds that they are vague and ambiguous. However, none of the requests Defendant objects to are so vague as to be unintelligible as to what they are requesting. Therefore, these objections are inappropriate.
Defendant objects to request numbers 74-5, 81-2, 96-98, 100-105, 120-8, and 131-3 on the grounds of overbreadth. Overbreadth is essentially a determination of relevancy in that an overbroad request is so irrelevant that it constitutes harassment. However, in making this determination it is important to keep in mind the breadth of information available to Defendant. A responding party has a duty to respond in good faith as best they can. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d. 771, 783). Here, although some of Defendant’s objections (which will be discussed below) could carry weight, Defendant still has an obligation to respond with all reasonably relevant information within their possession. Alternatively, Defendant may respond with a code-compliant response indicating Defendant does not possess relevant information and has made a diligent search for such information. (CCP 2030.220(c)). A proper response would object on overbreadth but nevertheless respond with all responsive documents within a reasonable breadth. Defendant has not done this.
Defendant objects to request numbers 123-28 on the grounds of privilege rooted in the statutory protections of 23 U.S.C. 148 and 409. There is insufficient information as of now for this Court to make a determination as to whether these statutory protections apply. However, it is the burden of the producing party to provide specific facts in support of an assertion of privilege. These facts could be provided via a privilege log. Therefore, this Court will order Defendant to produce a privilege log within 20 court days in support of all claims of privilege. If Defendant does not do so, such claims of privilege will be deemed waived.
Defendant objects to request numbers 96-104, 111, 115, 120-28, and 130-33 on the grounds that Plaintiff failed to meet and confer. This is not a valid objection to a specific document request. This could be a valid objection to the motion generally, which Defendant does make. (Code Civ. Proc. § 2031.310(b)). However, it is clear from the documentation provided by Plaintiff that they have fulfilled their meet and confer requirements. (Plaint. Ex. D-E; Def. Ex. A).
Defendant objects to request number 108 and 131 on the grounds of “repetitiveness.” This is not a valid objection. If Defendant was intending to object on the basis that the production request was asked and answered they would need to point to a specific previous request that makes this duplicative.
As discussed above, responses must be both code-compliant and conform with the requirements of Deyo v. Kilbourne. Defendant has failed to properly reply, inasmuch as they do not include a certification of a diligent search or a full good faith response as required by Deyo, to request numbers 76-80, 83-95, 99, 102-4, 106-10, 112-14, 116-19, and 121-132.
Accordingly, Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents, Set Two, is GRANTED as to request numbers 74-95, 105-110, 112-114, 116-119, and 129.
Defendant shall submit to the Court a privilege log for all requests on which they claim privilege detailing the specific privilege they are claiming on any given documents within 20 court days of the filing of this Order. If Defendant fails to do this, Plaintiff’s Motion to Compel Further Responses to Document Requests is GRANTED as to production request numbers 96-104, 111, 115, 120-28, and 130-33. Defendant shall respond to the discovery without objection within 20 days of the date of the filing of this Order. If a privilege log is filed, Defendant must respond to all production requests either with all non-privileged documents responsive to the requests or with a certification of their failure to find documents responsive to the request and—if they are no longer in possession of responsive documents—the name and address of the person or organization known or believed to have custody or control of that item or category of item.
B. Monetary Sanctions
Plaintiff makes a request for monetary sanctions in their motion in the amount of $5,500. The request is code-compliant.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (See Rule of Court 2.30). The party’s motion must also state the applicable rule that has been violated. (Id.). Plaintiff cites CCP § 2031.310(h) in support of their request for sanctions. This is appropriate authority for the grant of monetary sanctions where a party fails in opposing a Motion to Compel Further Responses to a Request for Document Production. Here, where Defendant has initially responded with primarily boilerplate objections, monetary sanctions are appropriate.
Accordingly, Plaintiff’s shall recover monetary sanctions in the amount $3,500.