Case Number: BC509027    Hearing Date: August 12, 2014    Dept: J

Re: Donald Buckman, etc., et al. v. Southern California Specialty Care, Inc., etc., et al. (BC509027)

MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS RESPONSIVE TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

Moving Parties: Plaintiffs

Respondent: Defendant Kindred Healthcare Operating, Inc.

POS: Moving OK; Opposing OK

Plaintiffs allege that the decedent developed a severe pressure ulcer as a result of Defendants’ failure to follow his care plan. Plaintiff commenced this action on 5/16/13, asserting causes of action for:

1. Dependent Adult Abuse & Neglect
2. Wrongful Death

The trial is set for 3/24/15.

Plaintiffs move for an order compelling Defendant Kindred Healthcare Operating, Inc. (“Defendant”) to provide further responses and responsive documents to their Request for Production of Documents, Set One, Request No. 2.

CCP § 2031.310 allows a party to file a motion compelling further answers to document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP § 2031.310(b).) Unless notice of the motion is given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response. (CCP § 2031.310(c).)

MEET AND CONFER:

Counsel for Plaintiff represents that counsel attempted to resolve the issues informally before the motions were filed, but that they were unsuccessful. (Motion, Martinez-Schiferl Decl., Exhs. C-F.) It appears that the meet and confer efforts were adequate.

REQUEST NO. 2:

This request asked Defendant to produce all electronically stored information (“ESI”) pertaining to Plaintiff, including e-mail communications, but excluding communications to and from attorneys.

Defendant objected to the request on the grounds that it is overbroad, vague and ambiguous, and burdensome, the request seeks documents not reasonably accessible due to undue burden and expense, the request is not relevant and is subject to the protection of attorney-client privilege and attorney work product, CCP § 2018.030, and the Peer Review Doctrine.

OVERBROAD, VAGUE AND AMBIGUOUS:

Courts generally do not sustain objections that the question is ambiguous, confusing or overbroad unless the question is totally unintelligible. The answering party owes a duty to respond in good faith as best he or she can. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.)

For discovery purposes, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)

The request is not so unintelligible that Defendant cannot reasonably respond. Moreover, it appears that based on the contentions of the parties that the request is relevant and not overbroad.

Plaintiff contends that Defendant was the manager and operator of Southern California Specialty Care, Inc. dba Kindred Hospital San Gabriel Valley (“Kindred Hospital”). (Complaint ¶ 4.) Defendant, on the other hand, contends that through its subsidiaries, Defendant provides administrative and support services for hospitals, nursing centers, home health, hospice and non-medical home care locations and a contract rehabilitation services business across the entire United States (Opposition, Keith Decl. ¶¶ 11-12, Exh. 2), but that it is not involved in the day-to-day operations of Kindred Hospital (Motion, Martinez-Schiferl Decl. ¶ 8, Exh. G). Thus, if Defendant’s contentions are accurate, it appears that there should not be any ESI pertaining to the decedent in Defendant’s possession, and it may respond accordingly.

Thus, the objections on these bases are overruled.

BURDENSOME AND NOT REASONABLY ACCESSIBLE:

The responding party may object to discovery of electronically-stored information on the ground that the source is “not reasonably accessible” because of “undue burden or expense,” and may refuse to search for it in the absence of a court order. (CCP § 2031.210(d).) The statute provides no guidance for determining how much burden or expense is “undue.” As a result, this determination will have to be made by the court on a case-by-case basis in exercise of its power “to manage discovery and to prevent misuse of discovery procedures.” (See Toshiba America Electronic Components, Inc. v. Sup.Ct. (Lexar Media, Inc.) (2004) 124 Cal.App.4th 762, 768–772 (predating enactment of statute).)

While counsel for Defendant generally describes the process of obtaining ESI and submit evidence that Defendant provides administrative services to Kindred Hospital in 2,280 locations (Opposition, Keith Decl. ¶¶ 11-12, Exh. 2), Defendant fails to demonstrate specific “undue burden or expense” in connection with obtaining the ESI sought by Plaintiff. Defendant also fails to demonstrate that the ESI demanded is available from other more convenient sources; the ESI is cumulative or duplicative; the demanding party was dilatory; and/or that the burdens of producing the ESI outweigh any benefits. (CCP § 2031.060(f).)

However, based on Plaintiffs’ allegations, it appears that the request should be limited to the ESI pertaining to Plaintiff in connection with the facility that the decedent was at, i.e., 845 N. Lark Ellen Avenue, West Covina, CA 91797. (See Complaint ¶ 3.)

PRIVILEGES:

When asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.” (CCP § 2031.240(c)(1).) As the term is commonly used by courts and attorneys, a “privilege log” identifies each document for which a privilege or work product protection is claimed, its author, recipients, date of preparation, and the specific privilege or work product protection claimed. (Hernandez v. Sup.Ct. (Acheson Industries, Inc.) (2003) 112 Cal.App.4th 285, 291–292, fn. 6; see CCP § 2031.240(c)(2) — Legislative intent to codify the concept of a privilege log “as that term is used in California case law.”) “The information in the privilege log must be sufficiently specific to allow a determination of whether each withheld document is or is not (in) fact privileged.” (Wellpoint Health Networks, Inc. v. Sup.Ct. (McCombs) (1997) 59 Cal.App.4th 110, 130.)

Defendant fails to demonstrate that the ESI sought are in fact subject to any privileges. However, if they are, Defendant is ordered to serve a privilege log.

Further responses, as limited above, are ordered within 20 days. Sanctions have not been requested and are not ordered.