2018-00225426-CU-BT

Environmental Synectics, Inc. vs. Taylor Ziolkowski

Nature of Proceeding: Motion to Compel Special Interrogatories and Requests for Production

Filed By: Folsom, Monica Hans

** If any party requests oral argument, then at the time the request is made, the requesting party shall inform the court and opposing counsel of the specific discovery item(s) and issue(s) on which oral argument is sought. **

Plaintiff Environmental Synectics, Inc.’s (ESI) motion to compel further responses to special interrogatories and document requests is GRANTED in part, DENIED in part and DROPPED in part as moot.

ESI is advised in the future to include in separate statements filed to support discovery motions definitions of specially defined terms appearing the discovery. (See CRC 3.1345(c)(4).)

Defendant Taylor Ziolkowski (Ziolkowski) is advised in the future not to file or lodge volumes of exhibits without an exhibit tab extending below the first page of each exhibit. (CRC 3.1110(f)(3).)

This business dispute between a former employer and employee involves allegations that the employee misappropriated trade secrets. ESI alleges it employed Ziolkowski as an environmental scientist and/or sales representative from 2015 through May 2017. Ziolkowski ultimately joined one of ESI’s competitors. Before Ziolkowski left ESI, he allegedly emailed to his personal account confidential files containing ESI’s pricing information, client lists and other trade secrets that Ziolkowski had agreed not to misappropriate. In addition, Ziolkowski misappropriated government data that ESI had obtained by way of its government contracts. Under applicable federal regulations and contracts with governmental clients, ESI and its employees were prohibited for applying such information to uses other than those permitted under the contracts. When ESI discovered the misappropriation, Ziolkowski represented he had since deleted the information from his devices and had intended to use it only to negotiate terms of employment with ESI’s competitor. According to ESI, these representations were false, and Ziolkowski intended to exploit the private and governmental data for other, unauthorized purposes.

The complaint against Ziolkowski contains causes of action for misappropriation of trade secrets, interference with business and contractual relations, and fraud, among others. Ziolkowski denies liability and has raised numerous affirmative defenses. On 5/09/18, this court entered the parties’ stipulated protective order, which provides for “Confidential,” “Highly Confidential” and “Highly Confidential-Attorney’s Eyes Only” designations of material produced during discovery.

ESI filed this motion to compel further responses to its Special Interrogatories Nos. 3 and 19 as well as its Document Requests Nos. 1-5, 8-10, 18-20, 23, 25, 31-38 and 40-

43. The court continued the hearing and directed counsel to resume efforts at an

informal resolution. On 9/17/18, counsel filed their Joint Statement and disclosed that they have resolved their dispute except as to Document Request Nos. 36 through 38. The court commends counsel for their efforts.

Document Request No. 36 and Ziolkowski’s response read:

Request for Production No. 36

A true, correct and complete copy of all of YOUR telephone records, including but not limited to cell phones and landlines, from April 1, 2017 through the present.

Defendant’s Response to Request for Production No. 36

Defendant objects to this request on the grounds it seeks documents that are not relevant to the subject matter of the instant action or reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request on the grounds it seeks information protected by the privacy rights of Defendant and third parties under Article 1, Section 1, of the California Constitution and applicable law. Defendant further objects that this request does not meet the standard of reasonable particularity in CCP § 2031.030. Defendant further objects to this request on the grounds it is unduly burdensome, oppressive and harassing as it is overbroad as to time period and topic. Defendant further objects to this request on the grounds that it calls for the production of documents that are protected from production by the attorney client privilege and/or the work product doctrine.

Ziolkowski’s objections that the request is irrelevant and not reasonably calculated to lead to discovery of admissible evidence are overruled. The complaint contains allegations that Ziolkowski misused ESI’s trade secrets. Ziolkowski’s phone records could contain evidence of his communications with ESI’s current and prospective clients, and for that reason Request No. 36 is reasonably calculated to lead to discovery of admissible evidence.

Ziolkowski objects that the request infringes on privacy rights. He and others possess some interest in maintaining the confidentiality of their telephone records. (See Saunders v. Superior Court (2017) 12 Cal.App.5th Supp. 1, 22; see also People v. McKunes (1975) 51 Cal.App.3d 487 492 [“[A] subscriber has a reasonable expectation that records of his calls will be utilized only for the accounting functions of the telephone company in determining his bills”].) But ESI is not currently seeking the

content of any communication, and it possesses a countervailing interest in learning whether and why Ziolkowski may have contacted its clients and prospective clients shortly before, as well as after, he left its employ. Furthermore, the parties have a protective order in place, and dissemination of the telephone records may be limited appropriately. For these reasons, the court will require Ziolkowski to serve a further response despite privacy rights.

The balance of Ziolkowski’s objections are overruled.

The court makes final observation: it is undisputed that, before ESI commenced this lawsuit, Ziolkowski voluntarily surrendered his cell phone and laptop so that ESI could cause a third-party to examine it for trade secrets and other confidential materials Ziolkowski might have misappropriated. Ziolkowski argues that the examination renders Request No. 36 surplusage. He also asserts that he has not possessed his cell phone since July 2017, when he surrendered it. For its part, ESI counters that the forensic examination did not encompass all the cell phone records now sought.

Even if there is some overlap between Request No. 36 and the forensic examination of Ziolkowski’s cell phone, that alone does not relieve Ziolkowski of the obligation to serve a further response. At worst, he will be required to produce cell phone records that ESI already possesses. The court obviously expresses no opinion whether Ziolkowski might have a land line, or whether he might have obtained a new cell phone and cell phone number after he submitted to the forensic examination in July 2017. All he must do at this point is serve a further response pursuant to CCP §§ 2031.210-2031.250.

Request No. 37 and Ziolkowski’s response read:

Request for Production No. 37

A true, correct and complete copy of all telephone records, including but not limited to cell phones and landlines, evidencing COMMUNICATIONS RELATED TO SYNECTICS.

Defendant’s Response to Request for Production No. 37

Defendant objects to this request on the grounds that the phrase “evidencing COMMUNICATIONS RELATED TO SYNECTICS” is vague and ambiguous as used by Plaintiff and calls for speculation. Defendant further objects to this request on the grounds it seeks documents that are not relevant to the subject matter of the instant action or reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request on the grounds it seeks information protected by the privacy rights of Defendant and third parties under Article 1, Section 1, of the California Constitution and applicable law. Defendant further objects that this request does not meet the standard of reasonable particularity in CCP § 2031.030. Defendant further objects to this request on the grounds it is unduly burdensome, oppressive and harassing as it is overbroad as to time period and topic. Defendant further objects to this request on the grounds that it calls for the production of documents that are protected from production by the attorney client privilege and/or the work product doctrine.

Ziolkowski’s objection that the phrase “evidencing COMMUNICATIONS RELATED TO SYNETICS” is vague and ambiguous is sustained, and no further response is required.

Finally, Request No. 38 and Ziolkowski’s response read:

Request for Production No. 38

A true, correct and complete copy of all telephone records, including but not limited to cell phones and landlines, evidencing COMMUNICATIONS RELATED TO SYNECTICS’ clients or prospective clients.

Defendant’s Response to Request for Production No. 38

Defendant objects to this request on the grounds that the phrase “evidencing COMMUNICATIONS RELATED TO SYNECTICS’ clients or prospective clients” is vague and ambiguous as used by Plaintiff and calls for speculation. Defendant further objects to this request on the grounds it seeks documents that are not relevant to the subject matter of the instant action or reasonably calculated to lead to the discovery of admissible evidence. Defendant further objects to this request on the grounds it seeks information protected by the privacy rights of Defendant and third parties under Article 1, Section 1, of the California Constitution and applicable law. Defendant further objects that this request does not meet the standard of reasonable particularity in CCP § 2031.030. Defendant further objects to this request on the grounds it is unduly burdensome, oppressive and harassing as it is overbroad as to time period and topic. Defendant further objects to this request on the grounds that it calls for the production of documents that are protected from production by the attorney client privilege and/or the work product doctrine.

Ziolkowski’s objection that the phrase “evidencing COMMUNICATIONS RELATED TO SYNETICS’ clients or prospective clients” is vague and ambiguous is sustained, and no further response is required.

No monetary sanctions are imposed.

Disposition

No later than 10/11/18, Ziolkowski shall serve a further, Code-compliant response to Document Request No. 36. No objections may be raised, but any responsive documents produced may be placed under protective order to limit their dissemination.

No further responses are required as to Requests Nos. 37 and 38.

The balance of the motion is dropped as moot.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or further notice is required.