Johnson, et al. v. Berger Lewis Accountancy Corp., et al.		CASE NO. 112CV233793
DATE: 3 October 2014	TIME: 9:00	LINE NUMBER: 4

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 2 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 3 October 2014, the following two motions were argued and submitted: (1) plaintiff/cross-defendant TempCFO, Inc.’s motion to compel further responses to its second set of special interrogatories served on defendant/cross-complainant Berger Lewis Accountancy Corporation (“Berger Lewis”); and (2) plaintiff/cross-defendant David Johnson’s motion to compel further responses to its second set of special interrogatories served on Berger Lewis. Berger Lewis filed a combined opposition to the motions.

I.       Statement of Facts

This action and related cross-action, both of which raise claims for breach of contract and various business torts, arise from the merger of two accounting firms and their subsequent separation. Plaintiff David Johnson is a certified public accountant and the principal shareholder of TempCFO, Inc. (“TempCFO”), which is a professional corporation engaged in the business of providing accounting outsourcing services. In 2009, Mr. Johnson and Berger Lewis, which is also an accounting firm, executed various agreements whereby Mr. Johnson would join Berger Lewis—and TempCFO would become a division of the company—in return for Mr. Johnson receiving shares in Berger Lewis.

On 31 October 2011, Mr. Johnson resigned as a shareholder of Berger Lewis and left the company.

In October 2012, Mr. Johnson and TempCFO (collectively “Plaintiffs”) initiated this action against Berger Lewis and two of its shareholders—Randy Peterson and Roberto Maragoni. Plaintiffs filed the operative First Amended Complaint on 13 October 2013, alleging the following: that Berger Lewis failed to pay Mr. Johnson for his shares in the company when he voluntarily resigned pursuant to a buy-out clause in the parties’ agreements; that Berger Lewis wrongfully accessed Mr. Johnson’s and TempCFO’s tax returns; and that Berger Lewis interfered with Plaintiffs’ relationships with its clients in an effort to destroy TempCFO’s business after Mr. Johnson left Berger Lewis. Based upon these allegations, Plaintiffs assert claims for breach of contract, intentional and negligent interference with prospective economic advantage, breach of fiduciary duty, breach of the duty of confidentiality, and invasion of privacy.

Berger Lewis then filed a cross-complaint against Mr. Johnson and others alleging, inter alia, that Mr. Johnson performed outside work during his employment at Berger Lewis.

II.      Discovery Dispute

TempCFO and Mr. Johnson each served their second set of special interrogatories (“SI”) on Berger Lewis in February 2014. (Decl. of Douglas Drayton in Support of Motions to Compel (“Drayton Decl.”) Ex. A and C.) The interrogatories generally sought information concerning Plaintiffs’ tax returns that were saved on Berger Lewis’ computers and the defendants’ alleged unlawful inspection of the tax returns. More specifically, the interrogatories sought facts relating to the identities of persons at Berger Lewis that “circumvented” computer passwords to gain access to the tax returns, the identities of persons at Berger Lewis who “inspected” the tax returns, the means by which the tax returns were accessed, and the identities of the persons to whom the tax return information was disclosed.

Berger Lewis served Plaintiffs with initial responses to the SI in March 2014. (Drayton Decl., Ex. F and G.) The initial responses were hybrid in nature, setting forth objections to the interrogatories on various grounds and, notwithstanding the objections, providing substantive answers. Concerning the objections, Berger Lewis objected on the grounds of relevance and that some of the specially defined terms in the interrogatories were improper.

On 7 May 2014, counsel for Plaintiffs sent a meet and confer letter to counsel for Berger Lewis concerning the initial responses to Mr. Johnson’s second set of SI. (Drayton Decl., Ex. I.)

On 8 May 2014, counsel for Plaintiffs sent a meet and confer letter to counsel for Berger Lewis concerning the initial responses to TempCFO’s second set of SI. (Id.)

On 13 May 2014, counsel for Berger Lewis responded via email to Plaintiffs’ counsel’s meet and confer letters. In the email, counsel for Berger Lewis stated, among other things, as follows:

As an initial issue, you demand that [Berger Lewis] withdraw or remove its objections to our definitions of specially defined words. We request that you provide authority that supports your demand. We can work with you on your special definition of the word SHAREHOLDER. However, unless you can cite relevant authority otherwise, our objections to your definitions of INSPECT and CIRCUMVENT stand.

Your decision to devise new definitions of the words INSPECT and CIRCUMVENT creates problems for your interrogatories that use or relate to those terms. Regarding your definition for the word INSPECT, we are agreeable to work with you on an alternative word. . . . Your definition for the word CIRCUMVENT is even more problematic – please explain what you are really wanting to know. (Id.)

Counsel for Plaintiffs responded via email on 21 May 2014, explaining the information being sought by the interrogatories and stating that “I disagree that the definitions of ‘INSPECT’ and ‘CIRCUMVENT’ in the interrogatories give the words ‘significantly different and contorted definitions of [my] choice[,]’ [and] I think that the special definitions of those terms in the interrogatories are entirely appropriate and straightforward in the context of this case.” (Id., quoting defense counsel’s earlier email.)

On 10 June 2014, Berger Lewis served first amended responses to Mr. Johnson’s second set of SI. (Drayton Decl., Ex. J.) Approximately two weeks later, Berger Lewis served first amended responses to TempCFO’s second set of SI. (Id., Ex. K.)

On 14 July 2014, counsel for Plaintiffs sent a meet and confer letter to counsel for Berger Lewis concerning the amended responses and asserting that the responses remained deficient. (Id., Ex. L.) On 28 July 2014, counsel for Berger Lewis responded to Plaintiffs’ counsel’s meet and confer letter, disagreeing with Plaintiffs’ counsel’s contention that the amended responses were deficient. (Id.) Counsel for the parties continued to meet and confer on the SI through the month of August 2014, and agreed to extend the deadline for any motion to compel further responses to the interrogatories to 29 August 2014. (Id.)

On 29 August 2014, after counsel for the parties could not resolve their discovery dispute, Mr. Johnson and TempCFO filed separate motions to compel further responses to each of their second sets of SI. Berger Lewis filed a combined opposition to the motions on 22 September 2014, and Plaintiffs filed a combined reply on 26 September 2014.

III.     Discussion

TempCFO moves to compel further responses to SI Nos. 29, 32, 38, 44, 54-56, 60-62, 69-108, 116-117, and 125-126 from its second set of SI served on Berger Lewis. Mr. Johnson moves to compel further responses to SI Nos. 78-94 and 96-117 from his second set of SI served on Berger Lewis. Plaintiffs contend that Berger Lewis’ responses to the SI are evasive, incomplete, and that the objections contained in the responses lack merit.

A.  Legal Standard

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that any of the following apply: (1) the answer to a particular interrogatory is evasive or incomplete; (2) the exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate; or (3) the objection to an interrogatory is without merit or too general. (Code Civ. Proc. [“CCP”], § 2030.300, subd. (a)(1) – (3).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255, citing Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221.)

         B.  SI Nos. 29, 32, 38, 44, 54-56, and 60-62 (Served by TempCFO)

The first category of interrogatories at issue, SI Nos. 29, 32, 38, 44, 54-56, and 60-62 served by TempCFO on Berger Lewis, collectively seek information concerning whether certain Berger Lewis shareholders “INSPECTED” TempCFO’s tax returns, whether the contents of any of TempCFO’s tax returns were communicated to the shareholders, and if so, when and by whom. The shareholders identified by the interrogatories are Todd Robinson (SI Nos. 29 and 32), Frank A. Minuti, Jr. (SI No. 38), Dan Moors (SI No. 44), Robert Smiley (SI Nos. 54-56), and Lawrence Kuechler (SI Nos. 60-62).

SI No. 29 is illustrative of the remainder of interrogatories in this category. In SI No. 29, TempCFO asked Berger Lewis to respond to the following question:

For each of the TEMPCFO TAX RETURNS identified in YOUR answer to Special Interrogatory No. 28, state each date during THE RELEVANT TIME PERIOD that Todd Robinson INSPECTED the tax return. (Berger Lewis’ Separate Statement, p. 2.)

Berger Lewis initially responded as follows:

Responding Party objects to this interrogatory on the grounds that the term INSPECT as Propounding Party has specially defined that term is vague, ambiguous, argumentative, and compound, and is defined by Propounding Party in a manner that is misleading and incorrect. Without waiving and subject to those objections, Responding Party responds as follows: not applicable. (Id.)

Berger Lewis’ amended response to SI No. 29 maintains the objection to the term “inspect” and then provides the following amended substantive response: “Todd Robinson did not INSPECT any of the TEMPCFO TAX RETURNS. Todd Robinson recalls that he saw a copy or parts of a copy of the TempCFO, Inc. tax return one time.” (Id., at p. 3.)

In its opposition to TempCFO’s motion to compel further responses, Berger Lewis maintains its objections to the term “inspect” and further asserts that its substantive response is code-compliant. Both of these contentions lack merit.

TempCFO defined “INSPECT” and “INSPECTED” as “to inspect, examine, view, read, review, or copy the referenced document or any duplicate of the referenced document, or the contents thereof.” (Id., at p. 2.) Berger Lewis objected to the term “INSPECT” as vague, ambiguous, argumentative, compound, and as misleading and incorrect. (Id.) According to Berger Lewis, the words “’view,’ ‘read,’ ‘review,’ and ‘copy’ simply are not the same as ‘inspect.’” (Id., at p. 4.)

As to the contention that the specially defined term renders the interrogatory vague, ambiguous, argumentative, compound, and misleading, the Court disagrees. As an initial matter, CCP section 2030.060 permits the use of “specially defined” terms in interrogatories so long as they are capitalized whenever the term appears. (CCP, § 2030.060, subd. (e).) The fact that TempCFO specially defined the term “inspect” is in accordance with CCP section 2030.060, subdivision (e). Moreover, the special definition does not depart significantly from the ordinary dictionary definition of the term inspect,[1] which is defined as “to look at,” “to view closely in critical appraisal,” and “to examine officially.” (Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/inspect.) Given that TempCFO’s chosen definition comports with the dictionary definition of the term, the Court is not inclined to find the specially defined term misleading. Along the same lines, while the term “copy” does not fall within the ordinary definition of “inspect,” the Court agrees with TempCFO that, in the context of this case, defining “inspect” to include “copy” makes sense and does not render the interrogatory objectionable. Finally, in order to justify a vagueness objection, the responding party must demonstrate that the request at issue is totally unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Here, it is clear what TempCFO is seeking through SI No. 29—whether Todd Robinson viewed TempCFO’s tax returns. Even if the special definition did render the interrogatory somewhat ambiguous, it has been held that, “where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Deyo, supra, 84 Cal.App.3d at p. 782.)

In light of the above discussion, Berger Lewis’ objections to SI Nos. 29, 32, 38, 44, 54-56, and 60-62 served by TempCFO are overruled.

As to the substantive response, Berger Lewis argues that the response is adequate and otherwise code-compliant. The Court disagrees. SI No. 29 asked Berger Lewis to “state each date . . . that Todd Robinson INSPECTED the tax return. (Berger Lewis’ Separate Statement, at p. 2.) In response, Berger Lewis stated, in pertinent part, that  “Todd Robinson recalls that he saw a copy or parts of a copy of the TempCFO, Inc. tax return one time.” (Id., at p. 3.) In responding to interrogatories, each answer in the response must be “as complete and straightforward as the information reasonably available to the responding party permits.” (CCP, § 2030.220, subd. (a).) Moreover, “[w]here the question is specific and explicit, an answer which supplies only a portion of the information sought is wholly insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) Because Berger Lewis failed to answer the call of the question (i.e., what date Todd Robinson viewed the tax return), the answer is not “complete and straightforward.”

Each of Berger Lewis’ responses to the interrogatories in this category is substantially similar to its response to SI No. 29. Thus, the Court finds that Berger Lewis has not justified its objections to the specially defined term “inspect” and that its substantive responses are not code-complaint. Accordingly, TempCFO’s motion to compel further responses to SI Nos. 29, 32, 38, 44, 54-56, and 60-62 is GRANTED.

C.  SI Nos. 69-79, 80-90, and 91-108 (Served by TempCFO)

The second category of interrogatories consists of SI Nos. 69-79, 80-90, 91-108, 116-117, and 125-126 served by TempCFO on Berger Lewis. The interrogatories collectively seek information concerning Berger Lewis’ alleged circumvention of computer passwords to gain access to Plaintiffs’ tax returns. For instance, SI No. 69 served by TempCFO asked whether any Berger Lewis shareholder “circumvented” any computer password on any of TempCFO’s tax returns. SI Nos. 70-79 then asked follow-up questions, such as the identity of the shareholder that circumvented the password (SI No. 70) and the date on which the password was circumvented (SI No. 71.) Following the same pattern, SI No. 80 asked whether any Berger Lewis shareholder instructed any employee to “circumvent” any password to gain access to TempCFO’s tax returns and SI Nos. 81-90 asked follow-up questions.

TempCFO’s SI No. 69 and Berger Lewis’ responses are illustrative of the interrogatories and responses in this category. SI No. 69 reads as follows:

Did any SHAREHOLDER CIRCUMVENT any computer password on any of the TEMPCFO TAX RETURNS? (As used in these interrogatories, the term “SHAREHOLDER” means and includes any PERSON who is currently a shareholder of defendant and cross-complainant Berger/Lewis Accountancy Corporation, and any other PERSON who is currently employed by Berger/LEWIS Accountancy Corporation having the title “shareholder” or “partner”, and includes, without limitation, each of the following individuals: Randy G. Peterson, Roberto M. Maragoni, Todd Robinson, Frank A. Minuti, Jr., Dan Moors, Thomas C. Bondi, Robert W. Smiley, Lawrence S. Kuechler, and David Sheets; the terms “CIRCUMVENT” and “CIRCUMVENTED” mean to circumvent, break, reset, decode, bypass, alter, modify, or take any similar action with respect to a password on a computer file containing any of the referenced tax returns, or to take any other action to permit the viewing of the contents of a computer file containing the referenced tax return.) (Berger Lewis’ Separate Statement, at p. 20-21.)

In response, Berger Lewis objected to the specially defined term “circumvent” as vague, ambiguous, argumentative, compound, and misleading. (Id., at p. 21.) Berger Lewis also provided the following substantive response:

In late December 2011, Randy Peterson was doing his normal housekeeping and cleaning of the Lacerte tax software system that he uses. The Lacerte tax software is on [Berger Lewis’] computer system. During the housekeeping Mr. Peterson came upon a line entry showing that there was a TempCFO, Inc. tax return on [Berger Lewis’] system. Mr. Peterson was surprised to see the return on [Berger Lewis’] system. He needed to see from the return if [Berger Lewis] was the return preparer. Mr. Peterson asked [Berger Lewis] employee Glenn Ulleseit to access the return. Mr. Ulleseit has administrator authority. Mr. Peterson also could have accessed the return himself. When Mr. Peterson viewed the return he saw that the return was prepared by [Berger Lewis] and that Terri Goddard who was a [Berger Lewis] employee was the return preparer. . . . (Id.)

Following the meet and confer process, Berger Lewis provided an amended response. In the amended response, Berger Lewis maintained its objections to the term “circumvent,” and provided the following substantive response: “no.” (Id., at p. 22.)

Plaintiffs argue that the objections to the term “circumvent” lack merit and that the operative amended substantive responses are evasive.

The analysis concerning the specially defined term “circumvent” is the same as the analysis concerning the specially defined term “inspect.” The Code authorizes specially defined terms in interrogatories. (CCP, § 2030.060, subd. (e).) Moreover, the meaning of the term circumvent, as it is used in this category of interrogatories, is relatively straightforward. As the interrogatories themselves indicate, “circumvent” means any “action to permit the viewing of the contents of a computer file containing the referenced tax return.” (Berger Lewis’ Separate Statement, at p. 21.) The Court does not agree with Berger Lewis that the word “circumvent” carries a negative connotation in the context it is used in Plaintiffs’ SI—it simply means “to get around [something].” (See Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/circumvent.) The “something” in this case is the password barring access to the tax returns. Additionally, like the specially defined term “inspect,” the use of the word “circumvent” does not render the interrogatories vague, ambiguous, compound, or misleading. Accordingly, Berger Lewis has failed to justify its objections to the interrogatories in this category and the objections are overruled.

As to the substantive responses, TempCFO argues that Berger Lewis’ amended substantive responses are incomplete and evasive. The Court agrees. Glenn Ulleseit, who is Berger Lewis’ IT Manager, testified at his deposition that he “decoded” a password to gain access to TempCFO’s tax return. (Drayton Decl., Ex. M, at p.94:2-18.) That testimony, combined with Berger Lewis’ initial response to SI No. 69, leads the Court to believe that, in its amended responses, Berger Lewis has deliberately misconstrued the term “circumvent” to provide an answer that is inconsistent with both its initial response and with the testimony of Mr. Ulleseit. This is not permissible. (See Dayo, supra, 84 Cal.App.3d at p. 783 [stating that a “party may not deliberately misconstrue a question for the purpose of supplying an evasive answer”].) As the court of appeal stated in Dayo v. Kilbourne, “where the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.” (Id.)

Here, it is clear from Berger Lewis’ initial response that it did in fact grasp the nature of the information sought by TempCFO. It is also clear from the deposition testimony of Berger Lewis’ IT Manager that the amended response to SI No. 69 is not a “complete and straightforward” answer as the information available to Berger Lewis would permit. Accordingly, the amended response to SI No. 69 is not code-compliant.

Because Berger Lewis’ responses to the remainder of the SI in this category suffer from the same defects, TempCFO’s motion to compel further responses to SI Nos. 69-79, 80-90, and 91-108 is GRANTED.

D.  SI Nos. 78-88, 89-94, and 96-99 (Served by Mr. Johnson) and SI Nos. 116-117 and 125-126 (Served                by TempCFO)

SI Nos. 78-88, 89-94, and 96-99 served by Mr. Johnson on Berger Lewis follow the same pattern as the interrogatories discussed in the preceding section. They seek information concerning whether any Berger Lewis shareholder “circumvented” the password to gain access to his personal tax returns. Similarly, SI Nos. 116-117 and 125-126 served by TempCFO on Berger Lewis asked whether Berger Lewis “circumvented” the passwords to gain access to the tax returns of cross-defendants Anthony Matusich and Terri Goddard (both of whom are associated with Plaintiffs and worked at Berger Lewis during the relevant time period).

Berger Lewis objected to these interrogatories on the ground that the specially defined term “circumvent” is vague, ambiguous, argumentative, compound, and misleading. For the same reasons set forth in the preceding section, these objections are overruled.

The analysis concerning the substantive responses, however, is different from the analysis of the interrogatories discussed in the preceding section. In its initial substantive response to SI No. 78, Berger Lewis answered the question of whether anyone circumvented a password to gain access to Mr. Johnson’s tax return as follows: “no, not to Responding Party’s knowledge.” (Berger Lewis’ Separate Statement in Opposition to David Johnson’s Mot. to Compel Further Responses, at p. 2.) In its amended response, after maintaining the objection to the term “circumvent,” Berger Lewis responded with the one-word answer of “no.” (Id.) The same responses were given to the interrogatories concerning Messrs. Matusich and Goddard.

Unlike, the amended substantive responses to TempCFO’s “circumvention” interrogatories, there is nothing in the parties’ papers indicating that Berger Lewis’ one-word response to Mr. Johnson’s “circumvention” interrogatory is incomplete or evasive. Indeed, Berger Lewis affirmatively represents in its opposition to Plaintiffs’ motions that no tax returns of Messrs. Johnson, Matusich, or Goddard were ever circumvented or accessed.

The remaining interrogatories in this category are either follow-up questions to SI No. 78 or ask other questions concerning the circumvention of a computer password to gain access to Mr. Johnson’s personal tax returns. For instance, SI No. 79 asked Berger Lewis to respond to the following question: “If YOUR answer to Special Interrogatory No. 78 is anything other than an unqualified ‘no,’ identify each SHAREHOLDER who CIRCUMVENTED the computer password on any of the JOHNSON TAX RETURNS.” (Id., at p. 7.) Similarly, SI No. 89 asked whether “any SHAREHOLDER instruct[ed] any EMPLOYEE to CIRCUMVENT any password on any of the JOHNSON TAX RETURNS.” (Id., at p. 37.) Berger Lewis answered SI No. 79 with “not applicable” (id., at p. 8) and SI No. 89 with “no” (id., at p. 37). As with the response to SI No. 78, these responses fully answer the interrogatories and are code-compliant.

Accordingly, Mr. Johnson’s motion to compel further responses to SI Nos. 78-88, 89-94, and 96-99 is DENIED.

For the same reasons, TempCFO’s motion to compel further responses to SI Nos. 116-117 and 125-126 is DENIED.

         E.   SI Nos. 100-117 (Served by Mr. Johnson)

SI Nos. 100-117 served by Mr. Johnson on Berger Lewis ask whether the Berger Lewis shareholders identified in the interrogatories (Randy Peterson, Roberto Maragoni, Todd Robinson, Frank Minuti, Jr., Dan Moors, Thomas Bondi, Robert Smiley, Lawrence Kuechler, and David Sheets) have prepared their personal tax returns on a computer owned by Berger Lewis, and, if so, whether they were password-protected. (Berger Lewis’ Separate Statement in Opposition to David Johnson’s Mot. to Compel Further Responses, at pp. 68-116.)

In its initial and amended responses, Berger Lewis objected to these interrogatories on the basis of relevance and provided no substantive responses. In support of this argument, Berger Lewis states that:

The tax returns of the people who Mr. Johnson lists are not at issue in this case. . . . Even if any of the individuals listed did in fact prepare one of their personal tax returns on the [Berger Lewis] software system and then password protected the return, those facts wouldn’t establish that [Berger Lewis] was prohibited from accessing that return which was on the [Berger Lewis] system, or that the individual was of the view that [Berger Lewis] did not have authority to access the return, or that the individual would bring suit against [Berger Lewis] and claim that his rights were in some manner violated.” (Id., at pp. 72-73.)

In their reply brief, Plaintiffs argue that the information sought by the interrogatories is relevant to several of Mr. Johnson’s causes of action. Plaintiffs point out that the fourth, fifth, and sixth causes of action in the First Amended Complaint all assert claims related to the defendants alleged access, inspection, use, disclosure, and copying of Plaintiffs’ tax returns. Based on these allegations, Plaintiffs have asserted causes of action for breach of fiduciary duty, breach of the duty of confidentiality, and invasion of privacy in violation of article I of the California Constitution. Plaintiffs argue that the information sought by the interrogatories “is relevant to Mr. Johnson’s expectation of privacy in his returns” as well as the assertion by Berger Lewis that it had the right to view any tax return on its computer system. (Reply, at p. 8.) The Court agrees that the information is relevant for the purposes of discovery.

CCP section 2017.010 provides, in pertinent part, that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” It is well-settled that, in the discovery context, relevance is to be construed liberally in favor of disclosure, (see Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4^th 1101, 1107), and the “relevancy of the subject matter” criterion is “a broader concept than ‘relevancy to the issues.’” (Pac. Tel. and Tel. Co. v. Super. Ct. (1970) 2 Cal.3d 161, 172, quoting Chronicle Publishing Co. v. Super. Ct. (1960) 54 Cal.2d 548, 560.)

Plaintiffs have made clear that they are not seeking any information from the tax returns themselves. Rather, they are only interested in learning whether other shareholders at Berger Lewis saved their returns on the company’s computer system and whether those returns were password protected. The Court agrees that such information is relevant to Mr. Johnson’s claim that Berger Lewis violated his right to privacy. To state a cause of action for a violation of privacy under California law, the plaintiff must allege, among other things, a reasonable expectation of privacy on the plaintiff’s part. (See Hill v. Nat’l Collegiate Athletic Ass’n (1994) 7 Cal.4^th 1, 32-37.) In the context of this case, information that other employees were saving and password protecting their personal tax returns on Berger Lewis’ computer system could support the conclusion that Mr. Johnson had a reasonable expectation of privacy. In any event, if some of Berger Lewis’ employees did save their personal tax returns on the company’s system, Plaintiffs could depose those witnesses to see whether they believed that Berger Lewis could access the documents without their permission. In other words, even if the information sought by the interrogatories is not directly relevant, it certainly could lead to the discovery of admissible evidence.

Based upon the above discussion, the Court finds that the interrogatories in this category are relevant to the subject matter of this case. Accordingly, Berger Lewis’ objections to the interrogatories on the basis of relevance are overruled and Mr. Johnson’s motion to compel further responses to SI Nos. 100-117 is GRANTED.

IV.     Conclusion and Order

TempCFO’s motion to compel further responses to its second set of SI is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to SI Nos. 29, 32, 38, 44, 54-56, 60-62, and 69-108. The motion is DENIED as to SI Nos. 116-117 and 125-126. Accordingly, Berger Lewis shall serve verified, code-compliant further responses, without objection, to SI Nos. 29, 32, 38, 44, 54-56, 60-62, and 69-108 within 20 calendar days of the filing of this Order.

Mr. Johnson’s motion to compel further responses to his second set of SI is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to SI Nos. 100-117. The motion is DENIED as to SI Nos. 78-88, 89-94, and 96-99. Accordingly, Berger Lewis shall serve verified, code-compliant further responses, without objection, to SI Nos. 100-117 within 20 calendar days of the filing of this Order.

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] According to the Weil & Brown, “[t]he Discovery Act does not prohibit terms being defined in an unusual manner.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:971, emphasis added.)