| Glenridge Pharmaceuticals v. Questcor Pharmaceuticals | CASE NO. 111CV203554 | |
| DATE: 25 September 2014 | TIME: 9:00 | LINE NUMBER: 2 |
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 Wednesday 24 September 2014. Please specify the issue to be contested when calling the Court and counsel.
On 25 September 2014, the motion of plaintiff/cross-defendant Glenridge Pharmaceuticals LLC (“Glenridge”) to compel answers at deposition and for monetary sanctions was argued and submitted. Defendant Questcor Pharmaceuticals, Inc. (“Questcor”) filed a formal opposition to the motion.
The same day, the motion of Glenridge and defendants Kenneth Greathouse (“Greathouse”), Stuart Rose (“Rose”), and Lloyd Glenn (“Glenn”) (collectively, “Defendants”) to compel deposition answers, the production of documents responsive to requests for production of documents set one (“RPD Set One”) and requests for production of documents set five (“RPD Set Five”) (collectively, “RPD”), and further responses to form interrogatories set six (“FI”), special interrogatories set eight (“SI”), and requests for admission set five (“RFA”) and for issue and evidence sanctions was argued and submitted. Questcor filed a formal opposition to the motion.
All parties are reminded that all papers must comply with California Rules of Court (“CRC”), rule 3.1110(f).[1]
Statement of Facts
This action arises from a contract dispute. Glenridge identified a product known as Acthar Gel (“Acthar”), the rights to which were owned by Aventis Pharmaceutical Products, Inc. (“Aventis”), and Glenridge and Aventis tentatively agreed that Glenridge would purchase the rights to Acthar. Glenridge and Questcor then agreed that Questcor would substitute for Glenridge in the agreement with Aventis, and Questcor would pay royalties to Glenridge. In July 2001, Questcor and Aventis entered into an agreement whereby Questcor acquired the rights to Acthar. In January 2002, Questcor and Glenridge entered into an agreement (“Royalty Agreement”) providing that Questcor would pay royalties to Glenridge based on Acthar’s net sales. Until December 2010, Questcor paid royalties to Glenridge using cash-basis accounting. In early 2011, Questcor told Glenridge that it intended to switch to accrual accounting.
Glenridge filed an action against Questcor (Santa Clara County Case No. 1-11-CV-203554), asserting that Questcor breached the Royalty Agreement by using accrual accounting, failing to timely make payments, and improperly deducting other payments when calculating net sales. Thereafter, Questcor filed an action against Defendants (Santa Clara County Case No. 1-12-CV-237225) that has been consolidated with Glenridge’s action, alleging that the Royalty Agreement is invalid because Greathouse, an owner of Glenridge and former Questcor officer, secretly assisted Glenridge in negotiations after representing to Questcor that he would recuse himself.
Discovery Disputes
I. Glenridge’s Motion to Compel Deposition Answers
Glenridge deposed Questcor’s general counsel, Michael H. Mulroy (“Mulroy”), in his individual capacity on 20 April 2012, and as Questcor’s person most qualified (“PMQ”) of matters described in two deposition notices (collectively, “PMQ Notices”) on 20 November 2013, 20 January 2014, and 8 August 2014.
Before Glenridge deposed Mulroy on 8 August 2014, the parties’ counsel agreed to limit the scope of Mulroy’s deposition to non-accounting related matters described in the PMQ Notices, and Questcor designated another person as its PMQ of accounting matters to appear for a deposition on 18 September 2014.
On 8 August 2014, Mulroy appeared for a deposition and provided testimony, but Questcor’s counsel asserted objections and instructed Mulroy not to answer questions pertaining to accounting issues, matters not described in the PMQ Notices, and a document that Glenridge withheld from discovery which is attached to Mulroy’s deposition transcript as Exhibit 39 (“Exhibit 39”). Mulroy followed counsel’s instructions and refused to answer those questions.
After Mulroy’s deposition, Glenridge’s counsel sent a meet and confer email to Questcor’s counsel on 9 August 2014, outlining the purported deficiencies with Mulroy’s deposition testimony. The parties’ counsel could not informally resolve the dispute as to whether Mulroy could refuse to answer six deposition questions.
On 3 September 2014, Glenridge filed this motion to compel Mulroy to answer those six deposition questions.
Questcor filed an opposition to the motion on 12 September 2014.
On 18 September 2014, Glenridge filed its reply.
II. Defendants’ Motion to Compel Deposition Answers, the Production of Documents Responsive to the RPD, and Further Responses to the FI, SI, & RFA
On 1 July 2011, Defendants served RPD Set One on Questcor, which contained RPD Nos. 1-42. Questor served responses to RPD Set One on or about September 2011.[2]
Sometime before 4 February 2014, Defendants served RPD Set Five, consisting of RPD Nos. 71-85, on Questcor.[3] Questcor served its responses to RPD Set Five on 4 February 2014, agreeing to produce non-privileged responsive documents, and objecting to certain requests on the grounds that the discovery sought is protected from disclosure by the attorney-client privilege and attorney work product doctrine. Questcor produced a verification for its response to RPD Set Five on 14 March 2014.
On 13 February 2014, Questcor produced a privilege log identifying documents responsive to the RPD that it withheld on the basis of privilege and/or the attorney work product doctrine and its factual basis for asserting the objections. On 14 April 2014, it produced a verification for the privilege log.
Defendants believe some of the documents identified in the privilege log are not protected from disclosure by the attorney-client privilege or attorney work product doctrine. On 27 February 2014, Defendants’ counsel sent a meet and confer letter to Questcor’s counsel, outlining deficiencies in the privilege log and demanding that Questcor produce some of the documents identified in the privilege log. Questcor’s counsel responded by stating that documents identified in the privilege log were properly withheld on the basis of privilege and/or the attorney work product doctrine.
Next, Don Bailey (“Bailey”), Questcor’s CEO, sat for deposition on 13 March 2014, but while the parties recessed for lunch, he was called away on urgent business. After Questcor filed a motion for a protective order to limit Bailey’s further deposition and Glenridge filed a motion to compel Bailey to appear for deposition and provide further testimony, this Court entered an order denying Questcor’s motion for a protective order and granting Glenridge’s motion to compel Bailey to appear for further deposition on 6 June 2014.
Bailey appeared for a deposition on 24 June 2014, but refused to answer certain questions on the ground that the discovery sought was protected by the attorney-client privilege and/or attorney work product doctrine.
On 24 July 2014, Defendants served the FI, SI, and RFA on Questcor. Questcor served objection-only responses to the FI, SI, and RFA on 25 August 2014.
Defendants found Questcor’s responses to the FI, SI, and RFA to be deficient. On 25 August 2014, at 7:09 p.m., Defendants’ counsel sent a meet and confer email to Questcor’s counsel, stating that Questcor’s assertion of the attorney-client privilege and attorney work product doctrine in response to some of the discovery requests was improper and Questcor’s other objections are “frivolous,” and demanding that Questcor serve supplemental responses. Counsel also advised that Defendants would move to compel further responses the FI, SI, and RFA, and that the parties’ counsel had previously met and conferred regarding Questcor’s assertion of the attorney-client privilege and attorney work product objections in response to other discovery requests.
On the morning of 27 August 2014, Defendants’ counsel sent a follow-up email to Questcor’s counsel, asking whether Questcor would serve supplemental responses to the FI, SI, and RFA, demanding that supplemental responses be served the same day, and stating that Defendants were “finalizing various other motions to compel.” Later that day, Questcor’s counsel advised Defendants’ counsel that Questcor would serve supplemental responses to some of its responses to the FI, SI, and RFA, including FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232.
On 3 September 2014, Defendants filed this motion to compel Bailey to answer deposition questions, the production of documents responsive to the RPD, and further responses to FI No. 17.1, SI Nos. 193-218, and RFA Nos. 158, 161-190, 196-205, 208-209, and 228-236.
On 11 September 2014, Questcor served supplemental responses to FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232.
Questcor filed papers in opposition to the motion on 12 September 2014.
On 18 September 2014, Defendants filed their reply.
Discussion
I. Glenridge’s Motion to Compel Deposition Answers
Glenridge moves to compel Mulroy to answer deposition questions and requests an award of monetary sanctions against Questcor’s counsel.
A. Motion to Compel
During Mulroy’s deposition on 8 August 2014, Questcor’s counsel objected to and instructed Mulroy not to respond to the following questions:
- “Of Questcor’s revenue since 2007, what percentage of its revenue has come from sales of Acthar?”
- “Is it consistent with the industry standard for a company to provide a payment to another company which persists for so long as the product is sold?”
- “Is [the royalty payment] arrangement between Questcor and Aventis consistent with the industry standard?”
- Referring to Exhibit 39, “[h]ow did Mr. Greathouse know on August 27, 2001, that Chuck was going to send a letter to Dr. Rose that contained specific financial terms?”
- “He goes on [quoting part of Exhibit 39]: ‘After talking with him this afternoon and running some numbers on this proposal, I believe that this is the best we are going to do.’ Does that lead you to believe that Mr. Greathouse and Mr. Casamento sat down and talked and ran some numbers on August 27, 2001, months before the [R]oyalty [A]greement was signed?”
- Referring to Exhibit 39, “[d]o you know if later in the day on Monday, August 27, 2001, Dr. – – Mr. Casamento did, in fact, send the letter to Dr. Rose that Dr. Greathouse discussed earlier that afternoon? Do you know if that happened?”
Glenridge argues that answers to these questions are warranted because Questcor’s objections lack merit and do not justify Mulroy’s refusal to respond.
1. Legal Standard
“If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer.” (Code Civ. Proc. [“CCP”], § 2025.480, subd. (a).) “If the court determines that the answer . . . sought is subject to discovery, it shall order that the answer be given . . . on the resumption of the deposition.” (Id., at subd. (i).) The party opposing discovery bears the burden of justifying why the requested discovery should not be allowed. (See Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 255 [“Fairmont”].)
2. Analysis
i. Question No. 1
Questcor’s counsel objected to Question No. 1 on the ground that it is beyond the scope of the topics described in the PMQ Notices, and instructed Mulroy not to answer that question.
Questcor asserts that a witness cannot be compelled to respond to deposition questions that are beyond the scope of matters described in the deposition notice, and cites several federal cases in support of its position. (Questcor’s Separate Statement, at p. 2:3-11, citing Bowoto v. ChevronTexaco Corp. (N.D. Cal., Feb. 7, 2006, Civ. A. No. C 99-02506 SI) 2006 U.S. Dist. LEXIS 36040, and State Farm Mut. Auto Ins. Co. v. New Horizon, Inc. (E.D. Pa. 2008) 250 F.R.D. 203, 216.) However, the federal cases cited by Questcor analyze Federal Rules of Civil Procedure (“FRCP”), rule 30(b)(6), which authorizes the deponent to “set out the matters on which each person designated will testify.” CCP section 2025.230, in contrast, does not permit the deponent to limit the scope of the deposition of its PMQ(s). Questcor’s reliance on the federal cases is therefore misguided.
CCP section 2025.230 states that “[i]f the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested,” and “the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” (CCP, § 2025.230.) The purpose of CCP section 2025.230 “is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking” and to avoid “I don’t know” responses to deposition inquires. (Maldonado v. Super. Ct. (2002) 94 Cal.App.4th 1390, 1395-1396.) CCP section 2025.230 does not indicate that the scope of a deposition is limited to the matters set forth in the notice. As a general rule, “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.” (CCP, § 2017.010.) Objections on the grounds of the competency of the deponent, or the relevancy, materiality, or admissibility at trial of the testimony are “unnecessary” and do not justify a deponent’s failure to answer a deposition question. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014 [“Stewart”]; see also CCP, § 2025.460, subd. (c).) Thus, even though Mulroy may not be the person most qualified to testify about accounting matters, he cannot refuse to answer deposition questions for that reason.
Accordingly, Questcor has not justified Mulroy’s refusal to respond to Question No. 1, and an answer to this question is warranted.
ii. Question Nos. 2 & 3
Questcor’s counsel objected to Question Nos. 2 and 3 on the grounds that they call for legal conclusions and call for expert opinions, and instructed Mulroy not to respond. Questcor’s counsel also objected to Question No. 3 on the ground that it is beyond the scope of the matters described in the PMQ Notices.
As discussed above, objecting to a deposition question on the ground that is beyond the scope of matters described in the deposition notice does not justify a deponent’s refusal to answer a deposition question. (See CCP, §§ 2017.010 & 2025.230; see also Maldonado, supra, at pp. 1395-1396, see also Stewart, supra, at p. 1014.) Thus, Questcor’s objection to Question No. 3 on the ground that it is beyond the scope of the matters described in the PMQ Notices does not justify Mulroy’s failure to answer.
With respect to the objection on the ground that the questions call for legal conclusions, legal “[c]ontention questions, while entirely appropriate for interrogatories, are not proper in the deposition of a party who is represented by counsel,” even if the deponent is an attorney. (See Rifkin v. Super. Ct. (1994) 22 Cal.App.4th 1255, 1263.) That being said, Question Nos. 2-3 do not call for legal interpretations or conclusions. Accordingly, Questcor’s legal conclusion objection lacks merit and does not justify Mulroy’s refusal to answer.
Turning to the objection on the ground that the questions call for expert opinions, this objection is essentially an objection based on Mulroy’s competency to testify about industry standards. Objections on the ground of a deponent’s competence are improper and do not justify a refusal to answer a deposition question. (Stewart, supra, at p. 1014.) Therefore, Questcor’s objection on the ground that the questions call for expert opinions does not justify Mulroy’s refusal to answer.
In sum, Questcor has not justified Mulroy’s failure to answer Question Nos. 2 and 3, and answers to these questions are warranted.
iii. Question Nos. 4-6
Questcor’s counsel objected to Question Nos. 4, 5, and 6 on the grounds that they call for speculation and pertain to a document that has not been produced in discovery and is not bates-stamped.
Essentially, it is Questcor’s position that Mulroy cannot be compelled to testify about Exhibit 39, which consists of two emails regarding royalty negotiations that refer to Questcor’s CEO Charles Casamento (“Casamento”) that were exchanged between Greathouse, Rose, and Lloyd in 2001,[4] because Defendants intentionally withheld this document from production in response to Questcor’s discovery requests until after Questcor had deposed Defendants, and now Glenridge seeks to “ambush” Questcor by demanding that Questcor’s PMQs respond to deposition questions about Exhibit 39 without knowing its source.
As discussed above, however, the permissible scope of deposition testimony is broad. (See CCP, § 2017.010.) Questcor’s objections are in effect objections based on the relevance of Exhibit 39 and Mulroy’s competency to testify about Exhibit 39. Such objections are “unnecessary” and do not justify a deponent’s refusal to answer deposition questions. (Stewart, supra, at p. 1014.) Thus, Mulroy cannot refuse to respond to these questions simply because he lacks personal knowledge about Exhibit 39. To the extent he lacks sufficient personal knowledge about Exhibit 39 to substantively respond, he could simply answer by stating that he lacks such information.
Questcor has therefore not justified Mulroy’s refusal to answer Question Nos. 4, 5, and 6, and answers to these questions are warranted.
3. Conclusion
In light of the foregoing, Glenridge’s motion to compel Mulroy to answer deposition questions is GRANTED.
B. Request for Monetary Sanctions
Glenridge makes a code-compliant request for an award of monetary sanctions against Questcor’s counsel in the amount of $1,500.
The court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel an answer at deposition, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP, § 2025.480, subd. (j).)
Here, Questcor’s opposition was unsuccessful, and Questcor did not act with substantial justification. The Court finds no other circumstances that would make the imposition of the sanction unjust, and therefore, an award of monetary sanctions against Questcor’s counsel is warranted.
The court may award monetary sanctions for reasonable expenses, including attorney’s fees, incurred by anyone as a result of the misuse of the discovery process. (CCP, § 2023.030, subd. (a).)
Glenridge’s counsel declares that he spent one hour meeting and conferring with Questcor about issues raised in the motion. (Wallerstein decl., at ¶ 7.) However, the Court does not award monetary sanctions for meeting and conferring as required because such expenses are not “incurred” within the meaning of CCP section 2023.030. (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)
Glenridge’s counsel further declares that he “spent several hours preparing this motion,” his associates “have each also spent several hours assisting,” and their “hourly rates are all in excess of $300,” and thus, “Glenridge has been billed and has paid at least several thousand dollars in legal fees attempting to resolve the issues raised in this motion.” (Wallerstein decl., at ¶ 7.) From these vague statements, the Court cannot ascertain whether the amount of monetary sanctions requested is based on reasonable expenses incurred as a result of the misuse of the discovery process. (See CCP, § 2023.040 [a request for a monetary sanction shall be “accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought”].)
Accordingly, Glenridge’s request for an award of monetary sanctions is DENIED.
II. Defendants’ Motion to Compel Deposition Answers, the Production of Documents Responsive to the RPD, and Further Responses to the FI, SI, & RFA
Defendants move to compel Bailey to answer depositions questions, to compel Questcor to produce documents responsive to the RPD, and to compel Questcor to provide further responses to FI No. 17.1, SI Nos. 193-218, and RFA Nos. 158, 161-190, 196-205, 208-209, and 228-236. Defendants also request that the Court impose issue and evidence sanctions against Questcor.
A. Bailey’s Deposition
On 24 June 2014, Defendants deposed Bailey as Questcor’s PMQ. In response to questions about Greathouse’s involvement in royalty negotiations and Questcor’s decision to sue Defendants, Questcor objected on the grounds of attorney-client privilege and/or attorney work product, and instructed Bailey not to respond. Bailey then refused to answer those questions.
Defendants assert that Bailey should be compelled to answer because Questcor’s objections lack merit.
In opposition, Questcor argues that the motion to compel as to Bailey’s deposition is untimely.
A motion to compel answers at deposition “shall be made no later than 60 days after the completion of the record of the deposition.” (CCP, § 2025.480, subd. (b).) The statute does not define the word “completion,” and there is no case law interpreting the meaning of the term “completion of the record of deposition” as used in CCP section 2025.480. The common definition of the word “completion” is “the state of being complete or finished.” (Merriam-Webster Online Dictionary, at http://www.merriam-webster.com/dictionary/completion.) “Complete” is defined as “having all necessary parts: not lacking anything.” (Id., at http://www.merriam-webster.com/dictionary/complete.) CCP section 2025.540 requires the deposition officer to certify on the transcript (or in a writing accompanying the transcript) that the deponent was duly sworn and that the transcript is a true record of the testimony given. (CCP, § 2025.540, subd. (a).) The section further provides that, “[w]hen prepared as a rough draft transcript, the transcript of the deposition may not be certified and may not be used, cited, or transcribed as the certified transcript of the deposition proceedings.” (Id., at subd. (b).)
Given the definitions of “completion” and “complete” and the language of CCP section 2025.540, subdivisions (a) and (b), the Court finds that the “completion” of the deposition record within the meaning of CCP section 2025.480 occurs when the deposition officer certifies the transcript and makes it available for the deponent to review.[5]
The reporter certified Bailey’s deposition transcript on 3 July 2014, and Defendants filed the instant motion 62 days later on 3 September 2014. (Culp decl., at Ex. 5.) Therefore, the motion is untimely, and the Court lacks the authority to rule on the motion other than to deny it. (See Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410 [“Sexton”]; see also Vidal Sasoon, Inc. v. Super. Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685 [“Vidal Sasoon, Inc.”].)
Thus, Defendants’ motion to compel Bailey to answer deposition questions is DENIED.
B. Production of Documents Responsive to the RPD
Defendants move to compel the production of documents responsive to the RPD.
As an initial matter, Defendants do not identify which requests in the RPD are at issue in this motion. The Court presumes that they seek an order compelling the production of documents responsive to RPD Nos. 22-23 and 82-83, since those are the only requests identified in the moving and reply papers.
RPD Nos. 22-23 seek the production of all documents, including communications, relating to Glenridge. RPD Nos. 82-83 seek all documents, including communications, relating to Questcor’s document collection in response to the New York Attorney General’s subpoena to Questcor.
Questcor objected to these requests on the grounds of attorney-client privilege and the attorney work product doctrine. Questcor substantively responded by stating that it would produce “all responsive, non-privileged documents in its possession, custody, or control.” Subsequently, Questcor produced a privilege log identifying each document withheld on the basis of its attorney-client privilege and attorney work product doctrine objections, and stating its factual basis for asserting those objections.
Defendants contend an order compelling compliance with Questcor’s responses to the RPD is warranted because Questcor’s objections lack merit, and Questcor has not produced documents which Questcor identified in the privilege log as being protected from disclosure by the attorney-client privilege and/or attorney work product doctrine.
Questcor asserts that Defendants’ motion is actually a motion to compel further responses to the RPD—as opposed to a motion to compel compliance with those responses—and it should be denied because it is untimely.
1. Nature of the Motion
Defendants assert that this motion is a motion to compel compliance pursuant to CCP section 2031.320, and Questcor contends that this motion is actually a motion to compel further responses under CCP section 2031.310.
CCP section 2031.320, subdivision (a) provides that where a party responding to requests for production “thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”
In contrast, CCP section 2031.310, subdivision (a)(1) and (3) states that, after receiving a response to a request for production, “the demanding party may move for an order compelling further response to the demand if the demanding party deems that” the “statement of compliance with the demand is incomplete,” or “[a]n objection in the response is without merit or too general.”
Here, Questcor substantively responded to RPD Nos. 22-23 and 82-83 by asserting objections on the grounds of the attorney-client privilege and the attorney work product doctrine, and stating it would produce “all responsive, non-privileged documents in its possession, custody, or control.”
Defendants do not assert that Questcor failed to comply with their statements of compliance. Rather, they insist that Questcor’s objections to RPD Nos. 22-23 and 82-83 are without merit, and thus, the Court should order Questcor to produce documents that it contends are protected from disclosure by the attorney-client privilege and attorney work product doctrine. Questcor’s argument that Defendants’ motion is actually a motion to compel further responses is therefore persuasive. (See Standon Co. v. Super. Ct. (1990) 225 Cal.App.3d 898, 903 [“Standon”] [“[a]lthough an actual refusal to produce the items promised may lead to a motion to compel compliance . . . , this cannot be substituted for the motion to compel a further response”].)
Thus, Defendants’ motion should be treated as a motion to compel a further response under CCP section 2031.310.
2. Timing of the Motion
Questcor maintains that this motion is untimely because it was filed more than 45-days after service of its responses to the RPD, and the parties did not otherwise agree to extend Defendants’ time to bring a motion to compel further responses.
Unless the parties have agreed to a specific later date in writing, a motion to compel further responses to requests for production of documents must be brought within 45 days of service of the responses to the requests for production or else the demanding party’s ability to bring such a motion is waived. (CCP, § 2031.310, subd. (c).)
Defendants assert that Questcor has not verified its responses to the RPD, and therefore, they have not waived their ability to bring a motion to compel further responses.
Contrary to Defendants’ assertion, Questcor served verified responses to RPD Set Five, which contains RPD Nos. 82-83, on 14 March 2014, which is more than 45 days before Defendants filed this motion to compel.
As for RPD Nos. 22-23, which are in RPD Set One, the only copy of RPD Set One that has been filed with the Court is not verified. Generally, an unverified substantive response is akin to no response at all. (Appleton v. Super. Ct. (1988) 206 Cal.App.3d 632, 635 -636.) However, a party is not required to verify its objections, even if the objection is in a “hybrid” response that also contains a substantive answer. (Food 4 Less Supermarkets, Inc. v. Super. Ct. (1995) 40 Cal.App.4th 651, 657-658; see also CCP, § 2031.250, subd. (c).) Most importantly, when Defendants served RPD Set One on Questcor in 2011, and when Questcor served their responses to RPD Set One on Defendants in 2011, the statute governing motions to compel further responses to requests for production of documents provided that “[u]nless notice of this 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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Former CCP, § 2031.310, subd. (c), as amended by Stats. 2009, ch. 5, § 21.) The Legislature amended this provision, effective 1 January 2014, to state that the demanding party has 45 days from the service of the verified response or verified supplemental response. (CCP, § 2031.310, subd. (c), as amended by Stats. 2013, ch. 18, § 2, emphasis in original.) Thus, under the law in effect at the time Defendants propounded RPD Set One and Questcor served its responses to those requests, Defendants had 45 days from the service of Questcor’s responses to RPD Set One—even though the responses were not verified—to bring a motion to compel further responses. By waiting approximately three years, Defendants waived their right to move to compel further responses to RPD Nos. 22-23.
In sum, Glenrdige Parties’ motion as to the RPD is untimely, and the Court lacks the authority to rule on the motion other than to deny it. (See Sexton, supra, at p. 1410; see also Vidal Sasoon, Inc., supra, at p. 685.)
3. Conclusion
Accordingly, the motion to compel further responses to the RPD is DENIED.
C. Further Responses to the FI, SI, & RFA
Defendants move to compel further responses to FI No. 17.1, SI Nos. 193-218, and RFA Nos. 158, 161-190, 196-205, 208-209, and 228-236.
After Defendants filed this motion, Questcor served supplemental responses to FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232. When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 [“Sinaiko”].) Here, the Court exercises its discretion to deny the motion to compel further responses as to FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232 as moot. (See id., at p. 409.)
The Court will next consider whether further responses to the remaining requests—SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236—are warranted.
SI Nos. 197-199, 204-208, and 210-218 ask for all facts supporting Questcor’s contention that it could not have discovered facts giving rise to its lawsuit against Defendants sooner. RFA Nos. 196-199 and 233-236 ask for Questcor to admit that it retained counsel to determine whether Defendants violated any agreement before the date when it alleges to have discovered facts underlying its causes of action against Defendants, and that it discovered those underlying facts before the date it alleges to have obtained such information.
Questcor provided objection-only responses to these requests.
Defendants argue further responses are warranted because Questcor’s objections lack merit.
Questcor asserts that its attorney-client privilege and attorney work product objections have merit, and therefore, no further responses are warranted.
1. Legal Standard
If a party demanding a response to an interrogatory or request for admission deems an objection to be without merit or too general, that party may move for an order compelling further response. (See CCP, §§ 2030.300, subd. (a)(3) & 2033.290, subd. (a)(2).) The objecting party bears the burden of explaining and justifying any objection to the request. (See Fairmont, supra, at p. 255.)
2. Analysis
Questcor objected to each discovery request at issue on the grounds of the attorney-client privilege and the attorney work product doctrine.
Questcor also asserted objections on the grounds of vagueness and ambiguity (to SI Nos. 197-199, 208, and 210-218), undue burden (to SI Nos. 197-199, 204, 206-207, and 213-218), relevance (to SI Nos. 198 and 205), compound (to SI Nos. 198-199, and 210-211), overbreadth (to SI Nos. 206-207), and duplicity (to RFA Nos. 196-197 and 199), but since Questcor does not attempt to justify those objections, they are overruled. (See Fairmont, supra, at p. 255.)
With respect to the attorney-client privilege objection, the objecting party has the initial burden of showing that the communication falls within the privilege, i.e. that it was made “in the course of the lawyer-client relationship.” (Wellpoint Health Networks, Inc. v. Super. Ct. (1997) 59 Cal.App.4th 110, 130, citation omitted.) If it meets this burden, the communication is presumed confidential, and the non-objecting party must show the privilege does not apply or has been waived. (Evid. Code, § 917.) Questcor does not argue that the documents sought are communications made within the course of the attorney-client relationship. Rather, it asserts that Defendants have not adequately demonstrated that the privilege has been waived. However, it is Questcor’s burden as the objecting party to first show that the communication falls within the privilege. While some of the discovery requests at issue indicate that the discovery sought was possibly included in a communication between Questcor and its counsel, a party “may not shield facts, as opposed to communications, from discovery” by asserting the privilege, and “[a]ny relevant fact may not be withheld merely because it was incorporated into a communication involving an attorney.” (See Zurich American Ins. Co. v. Super. Ct. (2007) 155 Cal.App.4th 1485, 1504.) Since Questcor does not argue that the documents sought are communications between it and its counsel, it has not met its initial burden. Accordingly, the attorney-client privilege objection is overruled.
Turning to the attorney work product objection, an attorney has an absolute protection in his or her “impressions, conclusions, opinions, or legal research or theories,” and a qualified protection for all other work product. (CCP, § 2018.030.) The party asserting the attorney work product doctrine has the initial burden of making a prima facie showing that the discovery sought is subject to the protection. (BP Alaska Exploration, Inc. v. Super. Ct. (1988) 199 Cal.App.3d 1240, 1252.) Questcor does not argue that the discovery sought is subject to the attorney work product doctrine protection, and therefore, it has therefore not met its initial burden. Moreover, the attorney-work product privilege only applies to a writing or work product of an attorney, not the underlying facts referenced by such work product. (See Code Civ. Proc., § 2018.030; see also Mack v. Superior Court (1968) 259 Cal.App.2d. 7, 10.) Accordingly, the fact that the discovery sought includes information that might have been referenced in Questcor’s counsel’s work product does not protect the underlying facts from discovery. The attorney work product objection is therefore overruled.
Since Questcor’s objections to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236, are overruled, Questcor is required to provide substantive responses to these discovery requests. (See CCP, §§ 2030.210, subd. (a) [each response to an interrogatory must contain an answer containing the information sought, an exercise of the party’s option to produce writings, or an objection] & 2033.210, subd. (b) [each response to a request for admission “shall answer the substance of the requested admission, or set forth an objection”].)
Thus, further responses to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236 are warranted.
3. Conclusion
In light of the foregoing, Defendants’ motion to compel further responses to the FI, SI, and RFA is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236. The motion is DENIED as to FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232.
D. Request for Evidence & Issue Sanctions
Defendants request that the Court impose evidence and issue sanctions against Questcor, but do not cite any legal basis authorizing the imposition of evidence and issue sanctions in connection with a motion to compel deposition answers and further responses to interrogatories, requests for production of documents, and requests for admission.
Moreover, two facts are generally prerequisite to the imposition of non-monetary sanctions: (1) there must be a failure to comply with a court order, and (2) the failure must be willful. (Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.) Here, Defendants do not assert that Questcor willfully failed to comply with any court order. The spoliation of evidence is also a misuse of the discovery process that may warrant the imposition of non-monetary sanctions. (Cedars-Sinai Med. Ctr. v. Super. Ct. (1998) 18 Cal.4th 1, 12.) To prevail on a motion for non-monetary sanctions based on spoliation of evidence, the “moving party must make an initial prima facie showing that the responding party in fact destroyed evidence.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.) Defendants also do not proffer evidence indicating that Questcor has destroyed evidence. Therefore, the imposition of non-monetary sanctions against Questcor is not warranted.
Defendants’ request for issue and evidence sanctions against Questcor is accordingly DENIED.
Conclusion and Order
Glenridge’s motion to compel Mulroy to answer deposition questions is GRANTED. Accordingly, within 20 days of the date of the filing of this Order, at a time mutually agreed upon by the parties, Questcor shall cause Mulroy to appear for a deposition and answer Questions 1-6.
Glenridge’s request for an award of monetary sanctions against Questcor’s counsel is DENIED.
Defendants’ motion to compel Bailey to answer deposition questions and to compel Questcor to provide further responses to the RPD, FI, SI, and RFA is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236. Accordingly, within 20 days of the date of the filing of this Order, Questcor shall serve verified code-compliant further responses to SI Nos. 197-199, 204-208, and 210-218, and RFA Nos. 196-199 and 233-236, without objection. The motion is DENIED as to Bailey’s deposition, the RPD, FI No. 17.1, SI Nos. 193-196, 200-203, and 209, and RFA Nos. 151-194, 200-205, 208-209, and 228-232.
Defendants’ request for evidence and issue sanctions against Questcor is DENIED.
| ____________________________
DATED: |
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HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara |
[1] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”
[2] Defendants filed a copy of Questcor’s responses to RPD Set One that does not include a verification or a proof of service.
[3] The parties do not state when Defendants served RPD Set Five.
[4] According to Defendants, Exhibit 39 disproves Questcor’s assertion that its causes of action are not barred by the applicable statute(s) of limitation because of the delayed discovery rule (i.e. the claims did not accrue until Questcor discovered the underlying facts). (Glenridge’s P&A, at p. 2:16-23.)
[5] The California Practice Guide: Civil Procedure Before Trial indicates that “[i]t is unclear whether the deposition record is ‘completed’ when the reporter sends notice that the transcript is available for review . . . or only after the expiration of time to sign or correct the transcript.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2014) at ¶ 8:801.) There is no suggestion that day of the deposition—when the reporter records the deposition testimony in short hand form—is the date of completion.
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