Lakshminarasimman Sankaran v. Cisco WebEx, LLC.		CASE NO. 113CV252409
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 10

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 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of defendant Cisco WebEx, LLC to compel further discovery responses from plaintiff Lakshminarasimman Sankaran was argued and submitted. Plaintiff Lakshminarasimman Sankaran filed a formal opposition to the motion and requests monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

1. Statement of Facts

This action involves a contractual dispute. Due to unavailability of the court file, a more detailed review of the factual allegations and procedural history is not set forth.

1. Discovery Dispute

On 6 June 2014, defendant Cisco WebEx, LLC (“Defendant”) served plaintiff Lakshminarasimman Sankaran (“Plaintiff”) with a first set of requests for production of documents (“RPD”), a first set of special interrogatories (“SI”), and a first set of requests for admission (“RFA”). (See ¶4, Declaration of Alvina Wong in Support of Cisco WebEx, LLC’s Motion to Compel Further Discovery Responses (“Declaration Wong”); see ¶2, Declaration of Krista M. Enns in Support of Cisco WebEx LLC’s Motion to Compel, etc. (“Declaration Enns”).)

[In opposition, Plaintiff’s counsel declares the above discovery was served in December 2013. (See ¶3, Declaration of Orlando F. Cabanday in Support of Opposition, etc. (“Declaration Cabanday”).) According to Plaintiff’s counsel, the parties mutually agreed to hold discovery responses in abeyance until the parties resolved pleading issues. (See ¶2, Declaration Cabanday.) Since the timing of the instant motion to compel is not at issue, the court need not resolve this factual dispute.]

On 30 June 2014, Plaintiff’s counsel requested a 30 day extension of time to respond which Defendant’s counsel granted the same day. (See ¶5, Declaration Wong.)

On 29 July 2014, Plaintiff served, by mail, written responses to Defendant’s first set of RPD, SI, and RFA. (See ¶6, Declaration Wong; see ¶2, Declaration of Declaration Enns; see ¶3, Declaration Cabanday.)

Defendant found Plaintiff’s responses to be deficient, in part, and on 8 August 2014, Defendant’s counsel sent a meet and confer e-mail to Plaintiff’s counsel regarding the production of responsive documents and perceived deficiencies with responses to RPD, Nos. 16 – 19 and SI, Nos. 1 – 7, 18, and 21 – 22. (See ¶13, Declaration Wong.) On 15 August 2014, Defendant’s counsel sent a further meet and confer e-mail to Plaintiff’s counsel regarding perceived deficiencies with responses to SI, Nos. 9, 10, 26, and 29. (See ¶15, Declaration Wong.)

On 17 August 2014, Defendant’s counsel and Plaintiff’s counsel met and conferred by phone and followed with a confirmation e-mail. Plaintiff’s counsel agreed to produce documents responsive to RPD, Nos. 1 – 15 and 20 – 25 by 22 August 2014. Plaintiff’s counsel agreed to provide amended responses to RPD, Nos. 16 – 19 by 1 September 2014. Plaintiff’s counsel agreed to provide supplemental responses to SI, Nos. 1 – 7, 18, and 21 – 22 by 1 September 2014. Defendant’s counsel was unclear whether Plaintiff’s counsel would provide supplemental responses to SI, Nos. 9, 10, 26, and 29 and sought Plaintiff’s confirmation. Plaintiff’s counsel agreed to extend the deadline for Defendant to bring a motion to compel until 17 October 2014. (See ¶¶17 – 18, Declaration Wong.)

On 26 and 28 August 2014, having received no supplemental or amended responses, Defendant’s counsel e-mailed Plaintiff’s counsel to inquire about the status. (See ¶¶20 – 21, Declaration Wong.) On 29 August 2014, Defendant’s counsel e-mailed Plaintiff’s counsel again asking whether Plaintiff would be supplementing his response to RPD, Nos. 9, 10, 26, and 29. (See ¶23, Declaration Wong.)

On 3 September 2014, Plaintiff produced documents responsive to Defendant’s first set of RPD by e-mail attachments. (See ¶4, Declaration Cabanday; see ¶25, Declaration Wong.)

On 4 September 2014, Defendant’s counsel e-mailed Plaintiff’s counsel to inquire whether production of documents was complete or whether there were additional responsive documents to be produced. (See ¶26, Declaration Wong.) In addition, Defendant’s counsel inquired about the status of supplemental responses to RPD, Nos. 16 – 19 and SI, Nos. 1 – 7, 18, and 21 – 22. Defendant’s counsel yet again sought confirmation of whether Plaintiff would be supplementing his response to RPD, Nos. 9, 10, 26, and 29. (Id.)

On 5 September 2014, Plaintiff’s counsel responded by e-mail stating he would confirm whether production of documents was complete, but did not follow up. (See ¶27, Declaration Wong.)

On 8 September 2014, Defendant’s counsel made another e-mail inquiry about the issues set forth above. (See ¶28, Declaration Wong.) That same day, Plaintiff’s counsel responded stating supplemental responses could not be addressed until the following week. (See ¶28, Declaration Wong.) On 9 September 2014, Defendant’s counsel imposed a deadline of 18 September 2014 for further responses. (See ¶29, Declaration Wong.)

On 18 September 2014, Plaintiff’s counsel requested another extension which Defendant’s counsel granted until 22 September 2014. (See ¶30, Declaration Wong; see ¶3, Declaration Enns.)

On 22 September 2014, Plaintiff served defendant with supplemental responses to RPD, Nos. 16 – 19 and SI, Nos. 1 – 7, 18, and 21 – 22. (See ¶4, Declaration Cabanday; see ¶5, Declaration Enns.)

Still finding the supplemental responses to be deficient, Defendant’s counsel sent a further meet and confer e-mail on 25 September 2014 seeking confirmation that production of responsive documents was complete, noting continued deficiencies with supplement responses to SI, Nos. 3, 5, 7, 18, 21, and 22, and seeking confirmation that supplemental responses would be provided for SI, Nos. 9, 10, 26, and 29. (See ¶¶4 and 6, Declaration Enns; see ¶5, Declaration Cabanday.)

Plaintiff’s counsel agreed to provide a further response by 30 September 2014. (See ¶6, Declaration Enns; see ¶5, Declaration Cabanday.)

On 30 September 2014, Plaintiff served Defendant with a second supplemental response to SI, Nos. 3, 5, 7, 18, and 21. (See ¶7, Declaration Enns; see ¶6, Declaration Cabanday.) Plaintiff also produced the same documents previously produced on 3 September 2014. (See ¶7, Declaration Enns.)

On 3 October 2014, Defendant filed the instant motion to compel seeking further responses to RPD, Nos. 1 – 25 and SI, Nos. 3, 9 – 10, 18, 22, 26, and 29.

On 16 October 2014, Plaintiff served Defendant with a second supplemental response to RPD, Nos. 1 – 25 and a third supplemental response to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29. (See ¶8, Declaration Cabanday.)

On 17 October 2014, Plaintiff filed an opposition to the motion.

On 24 October 2014, Defendant filed a reply brief.

III.     Discussion

1. Request for Judicial Notice

In support of its motion, Defendant requests judicial notice of (1) a judgment against TTS and for Innovative in the amount of $61,200, entered in Innovative Intelligent Solutions, LLC v. Teledata Technology Solutions, Inc., case no. C-13-00196, on November 13, 2013; and (2) the complaint and exhibit 1 in Innovative Intelligent Solutions, LLC v. Teledata Technology Solutions, Inc., case no. C-13-00196, filed in Superior Court of Contra Costa County on January 29, 2013. Defendant requests judicial notice of these documents to provide further factual background into the underlying dispute. However, these facts and documents are irrelevant to this court’s determination of the instant motion. Defendant’s request for judicial notice is DENIED. (See Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276 [stating that only relevant material may be judicially noticed].)

1. Motion to Compel Production and/or Further Response to RPD
2. 1.            Legal Standard

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

• A statement of compliance with the demand is incomplete.
• A representation of inability to comply is inadequate, incomplete, or evasive.
• An objection in the response is without merit or too general.

(Code Civ. Proc. [“CCP”], § 2031.310, subd. (a)(1) – (3).) The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)  Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

If a responding party agrees to comply with a Code of Civil Procedure section 2031.010 demand but then fails to do so, compliance may be compelled under Code of Civil Procedure section 2031.320. (See Code Civ. Proc., §2031.320 subd. (a); see also Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶¶ 8:1503 and 8:1508, p. 8H-50.) Unlike a motion to compel further responses made pursuant to Code of Civil Procedure section 2031.310, a motion to compel compliance does not require the moving party to set forth specific facts showing good cause justifying the discovery sought by the inspection demand. “All that has to be shown is the responding party’s failure to comply as agreed.” (See Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2014) ¶ 8:1508.1, p. 8H-50.)

Defendant apparently seeks to compel production of documents responsive to its RPD or, in the alternative, to compel a further response to its RPD from Plaintiff.

3. Meet and Confer

A motion to compel further responses to an inspection demand shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., §§ 2016.040 and 2031.300, subd. (b)(2).)

In opposition, Plaintiff contends Defendant did not meet and confer on this issue. The evidence before this court is that Defendant repeatedly requested confirmation whether production of documents was complete or whether Plaintiff would be producing additional documents. The court finds Defendant adequately met and conferred with regard to this issue.

4. Merits

It is Defendant’s contention that Plaintiff’s responses to RPD are deficient because it is unclear whether production is complete. “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, 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 Civ. Proc., §2031.220.)

In opposition, Plaintiff contends the matter has been made moot based on his service of a second supplemental response to RPD, Nos. 1 – 25. 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.  (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (“Sinaiko”).)  Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

In reply, Defendant contends the motion is not made moot because Plaintiff’s second supplemental responses to RPD, Nos. 1 – 25 are unverified. Defendant states, at footnote 1 of its reply brief, that it “is willing to accept as adequate, Mr. Sankaran’s remaining responses that were initially at issue in this motion, provided that he ultimately verifies such responses.” In reviewing Plaintiff’s second supplemental response to RPD, Nos. 1 – 25, each of Plaintiff’s second supplemental responses states, “As part of his document production, Plaintiff has produced all responsive documents in his possession.” Had Plaintiff provided a verification, Defendant’s motion to compel further responses and/or compel production of documents would have been moot. However, since Plaintiff failed to provide a verification, Defendant’s motion to compel further responses to RPD, Nos. 1 – 25 is GRANTED.

1. Motion to Compel Further Responses to SI
2. Legal Standard

After receiving responses to interrogatories, the propounding party may move for an order compelling further responses if the propounding party deems that any of the following apply:

(1)  An answer to a particular interrogatory is evasive or incomplete.

(2)  An exercise of the option to produce documents is unwarranted or the required specification of those documents is inadequate.

(3)  An objection to an interrogatory is without merit or too general.

(Code Civ. Proc., § 2030.300, subd. (a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255, citing Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221.)

2. Meet and Confer

A motion to compel further responses to an inspection demand shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., §§ 2016.040 and 2030.300, subd. (b).)[2]

In opposition, Plaintiff contends Defendant did not meet and confer with regard to SI, Nos. 9, 10, 26, or 29. The evidence before this court is that Defendant included these particular interrogatories in its meet and confer discussions.

The Court finds Defendant adequately met and conferred with regard to this issue.

3. Merits

Defendant contends further responses should be compelled because the responses provided by Plaintiff prior to the filing of this motion were non-responsive.

In opposition, Plaintiff contends the matter has been made moot based on his service of a third[3] supplemental response to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29. 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.  (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409 (“Sinaiko”).)  Through this discretion, the court might deny the motion to compel as moot and just impose sanctions, or examine the responses to determine if they are code-compliant. (Sinaiko, supra, 148 Cal.App.4th at p. 409.)

In reply, Defendant contends the motion is not made moot because Plaintiff’s third supplemental responses to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29 is unverified. Defendant states, at footnote 1 of its reply brief, that it “is willing to accept as adequate, Mr. Sankaran’s remaining responses that were initially at issue in this motion, provided that he ultimately verifies such responses.” In reviewing Plaintiff’s third supplemental response to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29, each of Plaintiff’s third supplemental responses to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29, provides a substantial response. Had Plaintiff provided a verification, Defendant’s motion to compel further responses would have been moot. However, since Plaintiff failed to provide a verification, Defendant’s motion to compel further responses to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29 is GRANTED.

1. Request for Sanctions

In opposition to the motion, Plaintiff requests monetary sanctions pursuant to Code of Civil Procedure section 2023.010, subdivisions (h) – (i), which states, “Misuses of the discovery process include, but are not limited to, the following: … Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery[;] Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” Plaintiff’s argument is premised, primarily, on the assertion that Defendant did not adequately meet and confer. As discussed above, the court finds Defendant adequately met and conferred with regard to the issues presented in this motion. Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

1. Conclusion and Order

Defendant’s motion to compel further responses to RPD, Nos. 1 – 25 is GRANTED. Plaintiff shall serve a verification to his second supplemental response to RPD, Nos. 1 – 25 within 20 calendar days of the filing of this Order.

Defendant’s motion to compel further responses to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29 is GRANTED. Plaintiff shall serve a verification to his third supplemental response to SI, Nos. 3, 9 – 10, 18, 22, 26, and 29 within 20 calendar days of the filing of this Order.

Plaintiff’s request for monetary sanctions is DENIED.

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “Each exhibit must be separated by a hard 81/2 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] “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”  Code of Civil Procedure, § 2023.020.  “Failing to make a ‘reasonable and good faith attempt’ to resolve the issues informally before a motion to compel is filed constitutes a ‘misuse of the discovery process.’  Monetary sanctions can be imposed against whichever party is guilty of such conduct . . . even if that party wins the motion to compel!”  (California Practice Guide, Civil Procedure before Trial, Weil & Brown, Section 8:1174.)

Although section 2023.020 authorizes an award of sanctions against a party or attorney for failure to satisfy a meet and confer obligation, the offending party must have been required to have the meet and confer obligation in the first place.  But even where no meet and confer is required for any particular discovery motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

[3] The Court notes Plaintiff incorrectly captioned the document as “Plaintiff’s Second Supplemental Responses to First Set of Special Interrogatories, Nos. 3, 9-10, 18, 22, 26 and 29.”