Case Name: James A. Phills, Jr. v. The Board of Trustees of Leland Stanford Junior University, et al.

Case No.: 1-14-CV-271891

Motion by Defendants The Board of Trustees of the Leland Stanford Junior University and Garth Saloner to Compel Compliance with Discovery Order and Request for Monetary and Non-Monetary Sanctions

An order was filed on October 20, 2014, granting Defendants’ motion to compel Plaintiff to respond to interrogatories and requests for production and compelling Plaintiff’s attendance at deposition. The order also imposed monetary sanctions in the amount of $10,500.

Plaintiff does not dispute that, following the October 20, 2014 order, his response to Set One advised that he will produce “all non-privileged responsive documents, if any, which have been located after a diligent search and reasonable inquiry” (Declaration of Christin Lawler, at Exhibit 5), and his response to Set Two stated that he will produce “all responsive documents” (id., at Exhibit 6).

By the time of Defendant Saloner’s deposition, Plaintiff had produced documents three times: the second production on the day before the hearing that led to the issuance of the October 20, 2014 order, and the third production on November 6, 2014, after that order was issued. (Declaration of Andrew Pierce, at para. 4-7.) Yet in none of those three productions did Plaintiff produce six emails between Deborah Gruenfeld and Defendant Saloner, which Plaintiff and counsel “always viewed as evidence for our case” (id., at para. 8). Counsel concedes that no effort was made to determine whether all documents had been produced (id.); however, even though many documents were produced more than once in Plaintiff’s various productions, these particular emails were not produced at all until after they were marked at Defendant Saloner’s deposition. (Lawler Declaration, at para. 6, 12.) Other documents were also purportedly “inadvertently” not produced and turned over only in January 2015. (Id., at Exhibit 11.) It is not plausible that this conduct was blameless.

Plaintiff argues that Defendants have presented no evidence of particular documents not produced. Generally, it would not be possible to prove the existence of a document not produced. Plaintiff also argues that certain documents should have been equally available to Defendants: that is not a proper basis to withhold a document.

Plaintiff’s amended responses to Set One in response to the October 20, 2014 order are not code-compliant. Plaintiff’s response that he will produce “all non-privileged responsive documents, if any, which have been located after a diligent search and reasonable inquiry”, violates the Discovery Act and fails to address the essential purpose of a request for production: to advise the opposing party if documents exist and if so, to ensure that they will be produced. (Code of Civil Procedure section 2031.210-230.) Request No. 58 asked Plaintiff to produce all documents relating to “any compensation you have received from ThinkFit, Inc.” Although Plaintiff states in his declaration in opposition to this motion that he “did not receive a salary from ThinkFit”, that is a narrower issue than addressed in the request.
Defendants have also requested information about Plaintiff’s employment at Apple. Plaintiff acknowledges the existence of responsive documents he has not produced (Memorandum in Opposition, at 6-7), and states that he has not produced documents he considers to be “Apple confidential documents that belong to apple [sic]” (Plaintiff’s Declaration, at para. 2). However, Plaintiff does not state what documents he is withholding or why he thinks they are “Apple confidential”. Although Plaintiff relies on Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal.App.4th 1279, that is not a discovery decision. There, the court of appeal affirmed the trial court’s preliminary injunction order requiring former law firm employees and their counsel to return certain documents to the firm after a finding that the documents were intended by the firm to be confidential and were understood by the employees to be confidential. There is no basis for such findings in this case.

I. Motion to Compel Compliance with the October 20, 2014 Order

Defendants on this motion first seek compliance with the October 20, 2014 order requiring Plaintiff to “produce all responsive documents” requested in Defendants’ Requests for Production, Sets One and Two. Generally, there is no purpose to be served by making a second order that directs compliance with a previous order, and none of the cited statutes authorizes such an order. That request is denied.

II. Non-monetary Sanctions

Defendants’ request that Plaintiff be ordered to withdraw his claims for wage loss and emotional distress is in effect a request for a terminating sanction. (Code of Civil Procedure section 2023.030(d).) As the notice of motion did not request terminating sanctions, that request is denied.

Based on the facts set forth above, a non-monetary sanction is in order: Plaintiff may not introduce at any future hearing, including trial, documents in support of his claims for wage loss or emotional distress unless such documents were produced by Plaintiff before March 4, 2015, or on a showing that the documents were never in Plaintiff’s possession, custody or control.

III. Monetary Sanctions

Defendants request monetary sanctions. Code of Civil Procedure section 2023.030 requires that such a request be supported by “a declaration setting forth facts supporting the amount of any monetary sanction sought.” The Lawler Declaration contains no billing rates and no information concerning counsel’s background or experience. This record is insufficient to allow the court to utilize its discretion in setting attorney fees. (Ajaxo, Inc. v. E*Trade Group (2005) 135 CA4th 21, 65.) Defendants are entitled to recover their costs in the amount of $60. Plaintiff shall pay that amount to Defendants within ten days of notice.

Plaintiff also seeks monetary sanctions, citing only Code of Civil Procedure section 2023.030(a). This is not an independent basis for an award of sanctions, as it only defines misuses of discovery. In any event, Plaintiff has not prevailed and is not entitled to an award of sanctions.