On 21 February 2014, the motion of Plaintiff Alexander Kim (“Plaintiff”) to compel Defendant SolutionSet Holdings, LLC (“Defendant”) to provide further responses to requests for production and for an award of monetary sanctions, and the motion of Defendant for an award of monetary sanctions, were argued and submitted.
Defendant filed formal opposition to Plaintiff’s motion.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f).
I. Background
This case arises out of changes made to Plaintiff’s ownership interest and right of participation in Defendants SolutionSet, LLC and SolutionSet Holdings, LLC without his consent or knowledge. On 29 July 2013, Plaintiff filed a complaint for damages against Defendants SolutionSet, LLC, SolutionSet Holdings, LLC, and Alex Kaplinsky alleging claims for concealment, breach of fiduciary duty, unjust enrichment, and money had and received.
II. Discovery Dispute
On 3 September 2013, Plaintiff served Defendant with a Request for Production of Documents. Defendant served responses on 8 October 2013. Defendant produced documents relating to the corporate structure of SolutionSet, LLC and Defendant, deal documents relating to the 2009 transaction, and emails with attachments concerning how much members of Defendant would receive on the 2012 transaction. Plaintiff was dissatisfied with Defendant’s production.
On 14 November 2013, Plaintiff sent a meet and confer letter to Defendant indicating that Defendant’s responses were deficient. That same day, Defendant requested additional time to respond to the meet and confer correspondence. Plaintiff agreed to extend the deadline for Defendant to respond to the meet and confer correspondence in exchange for a corresponding extension of Plaintiff’s deadline to file a motion to compel. Per agreement, Defendant was to provide a response by 3 December 2013 and Plaintiff had until 13 December 2013 to file a Motion to Compel.
On 6 December 2013, Defendant sent Plaintiff an email with supplemental unidentified documents in PDF file format. On 10 December 2013, Plaintiff followed up with Defendant regarding the status of his response to the 14 November 2013 meet and confer letter. In response, Defendant resent the 6 December 2013 email.
On 10 December 2013, Plaintiff requested an extension of time for Plaintiff to file a Motion to Compel in order to permit sufficient time for the parties to continue to meet and confer regarding the document production. Defendant did not respond. On 12 December 2013, Plaintiff called Defendant and left a voicemail requesting an extension of time to file a Motion to Compel and permit the parties additional time to meet and confer. Defendant did not respond.
On 13 December 2013, Plaintiff filed the present motion. Defendant filed formal opposition on 10 February 2014. Plaintiff filed a reply to Defendant’s opposition on 13 February 2014.
III. Discussion
A. Legal Standard
A party may seek a motion to compel further responses to discovery if it deems that the responses received meet any of the following standards: 1) A statement of compliance is incomplete; 2) A representation of inability to comply is inadequate, incomplete, or evasive; or 3) An objection in the response is too general or without merit. (Code of Civil Procedure § 2031.310(a); See Korea Data Systems Co. Ltd. v. Superior Court. (1997) 51 Cal.App.4th 1513, 1516.) A motion to compel further production is code – compliant only if: 1) The motion sets forth specific facts showing good cause justifying the discovery sought by the demand; and 2) The motion is accompanied by a meet and confer declaration. (Code of Civil Procedure § 2031.310(b).)
Once good cause is demonstrated, the burden falls on the party resisting production to justify the objection. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) A meet and confer declaration must show a reasonable and good faith attempt at an informal resolution as to each issue addressed in the motion. (Code of Civil Procedure § 2016.040.) “The level of effort at informal resolution that satisfies the ‘reasonable and good faith attempt’ standard depends upon the circumstances.” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) In a simple case, a modest effort may suffice. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) This requirement may be satisfied through written communications, such as a single letter followed by a response which refuses concessions, might be an adequate attempt at informal resolution. (Id. at 432.)
B. Parties’ Contentions
Plaintiff contends that Defendant has not produced all responsive, non-privileged documents in its possession, custody, and/or control in response to Requests for Production Nos. 1, 2, 13, 27, and 28. Plaintiff also is dissatisfied with Defendant’s responses to Requests for Production Nos. 9, 11, 12, 18, 26, 36, 38, 44, in which Defendant states that “[they] have conducted a diligent search and reasonable inquiry and [have] not located any non-privileged documents responsive to [the request] in its possession, custody, and/or control.”
Plaintiff contends that he believes Defendant’s responses are disingenuous and that documents that Defendant produced thus far make reference to other documents which were not produced. Plaintiff also contends that if Defendant withheld any documents on the claim of privilege, Defendant must produce a privilege log. Finally, Plaintiff contends that this Court should refuse to consider Defendant’s opposition to the present motion because the opposition was filed and served late.
Defendant’s primary contention for opposing the present motion is that they do not have any other responsive documents to produce in response to Requests for Production Nos. 1, 2, 13, 27, and 28. Defendant also states that they conducted a good faith reasonable effort in trying to obtain documents in response to Requests for Production Nos. 9, 11, 12, 18, 26, 36, 38, and 44.
C. Opposition Filed and Served Late
California Rules of Court 3.1300(d) states that no paper may be rejected for filing on the ground that it was untimely submitted for filing. The rule further states that it is in the court’s discretion to refuse to consider a late filed paper. (California Rules of Court, rule 3.1300(d).)
In this case, while Defendant may have filed and served their opposition to the present motion late, there is nothing to suggest to this Court that Plaintiff was prejudiced by Defendant’s late filing and service of its opposition. Plaintiff was still able to file a reply in further support of the present motion on 13 February 2014. As such, this Court will judge the present motion on the merits.
D. Privilege Log
Pursuant to Code of Civil Procedure § 2031.240(c)(1), if an objection is based on the 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 the claim, including, if necessary, a privilege log.
If Defendant is withholding documents on the claim of privilege, Defendant should produce a privilege log. Defendant acknowledges within their opposition that they have redacted communications between Defendant and their counsel. The privilege log identifies each document for which a privilege is claimed, with its author, date of preparation, all recipients, and the specific privilege claimed. (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291-92, n. 6.) Defendant must produce a privilege log in regards to the redacted communications between Defendant and their counsel. As to the documents already produced by Defendant, this Court will accept Defendant’s objection on the claim of privilege so long as Defendant produces a privilege log identifying each redaction for which a privilege is claimed, with its author, date of preparation, all recipients, and the specific privilege claims.
E. Motion to Compel Further Responses
Pursuant to Code of Civil Procedure § 2031.310(b), A motion to compel further production is code-compliant if the motion sets forth specific facts showing good cause justifying the discovery sought by the demand. In addition, the separate statement must contain all the information necessary to understand each discovery request and related response. (California Rules of Court, rule 3.1345(c).) Neither the court nor any other party should be required to look at any other documents to understand the nature of the dispute. (Id.)
In this case, Plaintiff has not set forth specific facts showing good cause justifying why Defendant should produce further responses to Plaintiff’s request for production. In his separate statement, Plaintiff does not demonstrate as to why he should be entitled to the documents requested, just that he is entitled to such documents. This not only defeats the purpose for a separate statement but also fails to meets the burden for a motion to compel further production.
For example, in regards to Request for Production No. 1, Plaintiff states that he is entitled to prior versions of Defendant’s Operating Agreement and that Defendant only produced the Second Amended and Restated Operating Agreement. Defendant has made an objection based on relevance, amongst other boilerplate objections. While this Court frowns on the use of boilerplate objections, Plaintiff does not state as to why all of these Operating Agreements are relevant to the subject matter of the litigation. Similarly, Plaintiff’s justification for why he requires further responses for each of the other requests for production is also lacking.
As such, Plaintiff’s Motion to Compel Defendant to Provide Further Responses to the Requests for Production is DENIED WITHOUT PREJUDICE, barring a showing by Plaintiff as to why the documents requested are relevant to the subject matter of the litigation.
F. Plaintiff’s and Defendant’s Motion for Monetary Sanctions
Pursuant to Code of Civil Procedure § 2031.310(h), the Court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand to produce, unless the one subject to the sanction has acted with substantial justification.
Here, both parties have requested monetary sanctions. This Court finds that both parties have acted with substantial justification. All requests for monetary sanctions are DENIED.
IV. Conclusion
Plaintiff’s Motion to Compel Defendant to Provide Further Responses to the Requests for Production is DENIED WITHOUT PREJUDICE, barring a showing by Plaintiff as to why the documents requested are relevant to the subject matter of the litigation.
Plaintiff’s Motion for Monetary Sanctions is DENIED.
Defendant’s Motion for Monetary Sanctions is DENIED.