Joseph Riley v. LinkedIn[s1] , Jeff Weiner		CASE NO. 114CV261070
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 22

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 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, Defendant LinkedIn’s[s2]  Motion to Compel Plaintiff to make Further Responses to Request for Documents and Produce Documents[1]; Compel Plaintiff’s Attendance at Deposition; Enter Protective Order Against Plaintiff’s Discovery Request; and Award Attorney’s Fees and Costs was argued and submitted.

Plaintiff filed formal opposition to the motion. [s3]

All parties are reminded that all papers should comply with Rule of Court 3.1110(f).[2]

I.  Statement of Facts

Plaintiff filed this complaint on 21 February 2014 against Defendant LinkedIn for age discrimination, retaliation and wrongful termination[s4] .  Defendant Jeff Weiner is the CEO of LinkedIn.  (Complaint, ¶ 6).  Plaintiff alleges Plaintiff was fired for being over the age of 55.  Only 1% of Defendant LinkedIn’s employees were over the age of 50.  Defendant Weiner did not believe that older employees served LinkedIn well because of what he perceived to be an overall lack of potential and that they lacked energy and abilities.  Therefore, Defendant Weiner instituted and sanctioned a deliberate” review policy) leading to the deliberate ouster of older employees.  (Complaint, ¶¶ 14-17.)

II.  Discovery Dispute

This Court is less than impressed with the obvious gamesmanship manifested by both parties in what should be a relatively simple and uncomplicated and routine discovery matter.  Complicating the resolution of this matter apart from the mutual desires to not get along is the failure of the parties to comply with the Rules of Court concerning the formalities of motions.[3]

Finally, issues of priority arose.

               A.  Priority

               B.  Deposition of Plaintiff

On 17 March 2014, Defendant served on Plaintiff both a notice of deposition and a request for production of documents at deposition for 16 April 2014.  Plaintiff claims the date was unilateral, with no attempt to find a mutually agreeable date.  Defendant claims they were willing to accommodate Plaintiff’s schedule.

On 20 March 2014, Plaintiff indicated a desire to postpone said deposition twice; first to 21 April 2014, then to 5 May 2014.  Defendant was willing to postpone the deposition if Plaintiff agreed to postpone Plaintiff’s discovery requests against Defendant until after Plaintiff was deposed. Plaintiff refused to agree to Defendant’s condition.

On 24 March 2014 Plaintiff and Defendant further communicated over email and phone.  Plaintiff desired to postpone the deposition further, until June.  Defendant reiterated their proposed deal to delay Plaintiff’s discovery request.  The discussion became heated, and Plaintiff ended the conversation.

On 10 April 2014 the parties communicated further, and Plaintiff requested the deposition be scheduled 5 May 2014.  Defendant asked if 7-8 May 2014 would be acceptable.

On 7 May 2014 Plaintiff expressed confusion over the deposition dates[s5]  and could not attend a deposition in June.  Plaintiff requested the deposition be postponed to July 7.  Parties also had a telephone conference on 21 May 2014, where Plaintiff claimed Plaintiff could not attend the June deposition due to medical issues and the impending death of Plaintiff’s mother.  In the telephone conference, Plaintiff also requested a deposition against Defendant for 9 July 2014.  An agreement was not reached and the deposition remained noticed for 2-3 June 2014.  Defendant has not given any dates for depositions against Defendant for 65 days.

On 28 May 2014, Plaintiff filed a formal objection to the notice of deposition of Plaintiff on 2-3 June 2014, and offered the dates of 8-9 July 2014 as possible deposition dates.

This Court will order that the deposition of Plaintiff with the related document production will commence in a code compliant location within 20 days of the date of the filing of this Order.

               C.  Production of Documents

On 17 March 2014, Defendant served on Plaintiff a request for inspection of documents, set one, as well as the above deposition.  On 16 April 2014, Plaintiff served responses to Defendant.  The responses were not verified, and signed only by one attorney.  The responses to all 108 response categories were the same boilerplate objections based on over breadth, invasion of privacy, being beyond the scope of discovery, vague and ambiguous.  Plaintiff also noted that after a diligent search, no documents were found in possession of Plaintiff.  Plaintiff reserved the right to amend the response in the future.

On 23 April 2014, Defendant sent a “meet and confer” letter to Plaintiff explaining why the responses were deficient, and requesting supplemental responses by 9 May 2014.  On 28 May 2014, Plaintiff communicated with Defendant, saying that Plaintiff was impeded in making the prior responses due to medical issues and the impending death of Plaintiff’s mother.  Plaintiff planned to produce supplemental responses within the next week.

Defendant seeks an order compelling  Plaintiff to provide[s6]  further responses to their requests for production of documents as per CCP § 2031.310(a).

This Court believes it is appropriate to advise the parties what constitutes a “code compliant response” to a request for production of documents.

Code of Civil Procedure sections 2031.210, 2031.220, 2031.230, 2031.420, and 2031.280 address what constitutes a code-complaint response.

In the first paragraph of the response immediately below the title of the case, there shall appear the identity of the responding party, the set number, and the identity of the demanding party. Code of Civil Procedure, § 2031.210(b).  Each statement of compliance, each representation, and each objection in the response shall bear the same number and be in the same sequence as the corresponding item or category in the demand, but the text of that item or category need not be repeated.  Code of Civil Procedure, § 2031.210(c).

Code of Civil Procedure, § 2031.210(a) gives the responding party three options of responses.  “The party to whom an inspection demand has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection and any related activities

“A statement that the party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  Code of Civil Procedure, § 2031.220.

(2) A representation that the party lacks the ability to comply with the demand for inspection of a particular item or category of item.

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  Code of Civil Procedure § 2031.230.

(3) An objection to the particular demand.

“(a) If only part of an item or category of item in an inspection demand is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.  (b) If the responding party objects to the demand for inspection of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, or land falling within any category of item in the demand to which an objection is being made.  (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.  (c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.  (2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.  Code of Civil Procedure, § 20310.240.

The statute allows further responses to be compelled where: “A statement of compliance with the demand is incomplete…a representation of inability to comply is inadequate, incomplete, or evasive…[or] an objection in the response is without merit or too general.”

Plaintiff’s responses in this case were wholly insufficient boilerplate.  While the responses consisted entirely of objections and thus were not required to be verified,[4] the responses were clearly copied verbatim for all 108 responses.  Furthermore, even though the Plaintiff denied possession of document 108 times, they later request that a protective order be applied to some of those non-existent documents.

Courts have held that an objection contains “an implicit refusal to produce the items sought.”  Standon v. Superior Court (1990) 225 Cal.App.3d 898, 901.

It is a violation of an attorney’s duties under Business & Professions Code, § 6068(d) to assert objections to requests for documents when those documents do not exist or are not in the responding party’s possession.  Bihun v. AT&TInformations Systems (1993) 13 cal.app.4^th 976, 991 fn.5 (objecting when no documents exist is “bad faith”) (case disapproved on other grounds in Latkin v. Watkins Associated Industries (1993) 6 Cal.4^th 644, 664.)

Objecting to requests when documents do not exist makes it impossible for the party seeking documents and for the court to know whether documents actually exist, whether documents are being withheld, and it if so, for what reason.  Such conduct delays the discovery process and increases costs.  “Under these circumstances the court is fully justified in imposing severe sanctions on the responding party.”  Judges Perspective in 1 CEB California Civil Discovery practice (4th edition), § 8.80 at page 817.

On 13 May 2014, both parties filed a stipulated protective order with Judge Lucas regarding conditions and procedures for confidential documents.[5]

Plaintiff later delivered responsive documents to Plaintiff’s attorneys around 28 May 2014.  Plaintiff notified Defendant that the documents were confidential, and desired to delay producing them until the pending protective order was entered.  Defendant insisted that certain documents, such as emails, were Defendant’s property and must be produced.

Plaintiff produced those documents out of caution, but wishes to delay further production until the protective order is entered.  Therefore, prior to any contested hearing on this matter, the parties are to meet and confer on a proposed protective order to be executed by all parties.  If the parties are unable to agree, and in the absence of any other agreement signed by a Judge of this Court, this Court will resort to its standard model protective order to be executed in open court on the time and place for the hearing of these motions.

Accordingly, Defendant’s Motion to Compel Plaintiff to make Further Responses to Requests for Documents and Produce Documents is GRANTED.  Plaintiff shall comply with this Order within 20 days of the date of the filing of this Order.          

            D.  Defendant’s Request for a Protective Order

Defendant requests, pursuant to Code of Civil Procedure, §§ 2017.020 and 2019,020(b), that this Court issue a protective order in favor of Defendant so that it does not have to respond to Plaintiff’s requests for admissions, set one, special interrogatories, set one, and requests for production of documents, set one.  Defendant asks for a finding that it need not respond to these discovery requests until one week after Plaintiff is deposed.  Defendant also seeks an order precluding Plaintiff from propounding any other discovery that requires a response by Defendant before Plaintiff’s deposition was taken.

The Discovery Act does not recognize priority based on notice alone. Unless state or local court rules or local uniform written policy provide otherwise, “the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.”  Code of Civil Procedure, § 2019.020(a) (emphasis added).

In an email chain from 14-16 April 2014 parties further discussed timing of the deposition.  Defendant agreed to 2-3 June 2014.[6]  Defendant claims Plaintiff agreed to delay their discovery requests based on the word “Done.”  (Exhibit J).

Plaintiff claims in their declaration that “Done” meant that Plaintiff refused, and was done discussing the requested delay for Plaintiff’s discovery.  (Declaration of Orestes Cross).

To this Court, the context of the emails and correspondence hardly indicates agreement and the court will find that there was no agreement concerning priority.  From Exhibit H in the moving papers:

“However, you requested, as ‘consideration’ for the postponement of Plaintiff’s deposition, that Plaintiff not propound any discovery that would be due before Plaintiff’s deposition date.  This request is unreasonable and without legal or procedural basis.”

There is no valid authority for such a request.  Defendant’s request for a protective order is DENIED.  Defendant is to provide code compliant responses to said discovery within 20 days of the date of the filing of this Order.

III.  Monetary Sanctions[7]

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30).

The [s7] Code of Civil Procedure states that the Court shall impose monetary sanctions against a party who unsuccessfully makes or opposes a motion to compel further responses to inspection. See Code Civ. Pro. § 2031.310(h).  The CCP also states that the court shall grant monetary sanctions where a party fails to appear at a noticed deposition without having served a valid objection. (See Code Civ. Proc. § 2025.450(g)).  However, where the Court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust” no monetary sanctions shall be imposed. (Code Civ. Proc. § 2023.030(a)).

In determining the amount for monetary sanctions the determination of a reasonable attorney’s fee involves multiplying the time spent and reasonable hourly compensation of each attorney involved in the presentation of the case. (Serrano v. Priest (1977) 20 Cal.3d 25, 48-49).  Sanctions should be awarded only for expenses actually incurred. (See Tucker v. Pacific BellMobile Services (1st Dist. 2010) 186 Cal.App.4th 1548, 1551).

Defendant has provided in their declaration a summary of hours spent working on the present motion.  However, the hourly billing is shockingly excessive for routine discovery.  45 hours is substantially more than is appropriate for routine discovery, and this Court cannot recall a rate of compensation approaching $800 an hour.

In opposing the motion to compel Plaintiff to appear at a deposition and a motion to compel further production production in response to Defendant’s request for production of documents, set one, this Court will find that Plaintiff acted with substantial justification.  The request of Defendant for monetary sanctions is DENIED.

At the same time, Plaintiff has provided no legal authority in support of their request for monetary sanctions.  Additionally, in opposing any request of Plaintiff for a protective order, Defendant acted with substantial justification.  Accordingly, Plaintiff’s request for monetary sanctions in the amount of $9,875 is DENIED.

Both Defendant and Plaintiff make a request for monetary sanctions.  The Plaintiff’s request is not code-compliant due to lack of citation to authority.  The Defendant’s request is not code compliant due to an unreasonable amount of fees.

Order

Accordingly, Defendant’s Motion to Compel Plaintiff to make Further Responses to Request for Documents and Produce Documents is GRANTED. Plaintiff shall comply with this order within 20 days by providing code compliant responses.

Defendant’s Motion to Compel Plaintiff’s Attendance at Deposition is GRANTED. Plaintiff shall comply with this order within 20 days.

Defendant’s motion for a protective order concerning discovery priority is DENIED.

The mutual requests for monetary sanctions are DENIED.