Longview International, Inc., et al. v. Mario Fausto, et al.		CASE NO. 113CV251541
DATE: 19 September 2014	TIME: 9:00	LINE NUMBER: 14

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 18 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 September 2014, the following motions were argued and submitted: (1) defendants Mario Fausto (“Mr. Fausto”) and Fausto Law, P.C.’s (“Fausto Law”) (collectively “Defendants”) motion to compel the depositions of plaintiff Longview International, Inc.’s (“LVI”) person most qualified (“PMQ”) and Dr. Patrick Barkhordarian (“Dr. Barkhordarian”) and production of documents, and for an award of monetary sanctions; and (2) LVI’s motion for a protective order or, in the alternative, to compel production of documents.  Defendants filed a formal opposition to LVI’s motion.  LVI filed a formal opposition to Defendants’ motion.

I.       Statement of Facts

Dr. Barkhordarian is the founder, majority owner, and chief executive officer of LVI, a technology company that assists clients in business intelligence, one-to-one marketing, and real time information delivering.  (See Complaint, ¶ 10.)  Dr. Barkhordarian hired Kyle Stirling (“Mr. Stirling”) to work for LVI as an independent contractor and consultant.  (See Complaint, ¶¶ 11-12.)  On behalf of LVI, Mr. Stirling hired Mr. Fausto and his law firm, defendant Sayar Fausto LLP (“Sayar Fausto LLP”), in March 2011 purportedly to work on LVI’s corporate matters.  (See Complaint, ¶ 15.)

LVI alleges that Mr. Stirling withdrew funds from LVI for his personal use without authorization, engaged in self-dealing, and created a competing business entity called Beyond Big Data and/or Sofia-Inman for the purpose of stealing LVI’s existing and prospective clients.  (See Complaint, ¶¶ 16-32.)   LVI further alleges that Defendants aided and abetted Mr. Stirling and were complicit in the scheme to steal LVI’s existing and prospective clients.  (See id.)

On 20 August 2013, LVI filed a complaint against various defendants, including Mr. Fausto and Fausto Law, alleging causes of action for: (1) legal malpractice; (2) breach of contract; (3) breach of fiduciary duty; (4) actual and constructive fraud; (5) aiding and abetting fiduciary breaches and wrongfulness; (6) possession of stolen property (Penal Code section 496); (7) negligence; (8) negligent failure to supervise; and (9) declaratory relief.

II.      Discovery Dispute

On 27 November 2013, LVI served Mr. Fausto with requests for production of documents, set one (“RPD”).  (See Sargent Dec., Ex. 1.)  Mr. Fausto served LVI with his responses to the RPD and produced responsive documents on 8 January 2014.  (See Sargent Dec., Ex. 2; see also Mem. Ps & As., p. 3:9-11.)

On 3 July 2014, Defendants’ counsel sent an email to LVI’s counsel requesting available deposition dates for Dr. Barkhordarian.  (See Johnson Dec., Ex. A.)  Defendants’ counsel did not receive a response.  (See Johnson Dec., ¶ 5.)  On 15 July 2014, Defendants served LVI with deposition notices, setting the deposition of LVI’s PMQ for 5 August 2014, and the deposition of Dr. Barkhordarian for 6 August 2014.  (See Johnson Dec., Exs. B, C.)  Each of the deposition notices requested the production of documents pertaining primarily to LVI’s alleged damages (i.e., expenditures of LVI’s funds, lost revenues, lost profits, payments to Mr. Stirling, and payments to Defendants for attorney’s fees).  (See id.)

LVI’s counsel, Ansel Halliburton (“Mr. Halliburton”), sent Defendants’ counsel an email on 31 July 2014, advising that LVI’s PMQ and Dr. Barkhordarian were not available for the depositions as noticed.  (See Johnson Dec., ¶ 9.)  Defendants’ counsel and Mr. Halliburton engaged in extensive meet and confer efforts regarding the depositions.  (See Johnson Dec., ¶¶ 10-13.)

On 1 August 2014, Mr. Halliburton sent Defendants’ counsel a meet and confer letter regarding Mr. Fausto’s responses to the RPD, stating that Mr. Fausto had waived any objection to RPD No. 5 based on the attorney-client privilege.  (See Sargent Dec., Ex. 5.)  Mr. Halliburton requested that Mr. Fausto supplement his response and produce a privilege log and all documents responsive to the request.  (See id.)

LVI’s PMQ and Dr. Barkhordarian did not attend their depositions on 5 August 2014 and 6 August 2014, as noticed.  (See Johnson Dec., ¶ 12.)

On 7 August 2014, Defendants’ counsel and Mr. Halliburton agreed that LVI would produce its PMQ for deposition on either 14 August 2014 or 15 August 2014, the deposition of Dr. Barkhordarian would be deferred to a later date to be determined following the completion of the PMQ deposition, and Defendants would not proceed with a motion to compel the depositions.  (See Johnson Dec., ¶ 14, Exs. D, E.)

LVI’s counsel, Christopher Sargent (“Mr. Sargent”), sent Defendants’ counsel a letter on 11 August 2014, advising that the deposition set for 14 August 2014 could not go forward.  (See Johnson Dec., Ex F.)  Mr. Sargent advised that Mr. Halliburton was no longer working on the case and another attorney in their office was out of the state attending to personal matters.  (See id.)  Mr. Sargent indicated that no one else from their firm was available for the deposition and, therefore, it would need to be rescheduled.  (See id.)  On the same day, LVI served Defendants with formal objections to the deposition notices issued to LVI’s PMQ and Dr. Barkhordarian.  (See Sargent Dec., Ex. 6.)  Defendants’ counsel sent Mr. Sargent an email later that day, requesting that Mr. Sargent provide alternative deposition dates no later than 14 August 2014, for LVI’s PMQ and Dr. Barkhordarian.  (See Johnson Dec., Ex. G.)

On 15 August 2014, Mr. Sargent sent an email to Defendants’ counsel, indicating that LVI believed that Mr. Fausto’s prior document production was incomplete and attaching a list of 50 categories of documents that had purportedly not been produced.  (See Johnson Dec., ¶ 20; see also Sargent Dec., Ex. 9.)  Mr. Sargent requested that Mr. Fausto provide an explanation as to why some documents were not produced and provide LVI with a privilege log.  (See Sargent Dec., Ex. 9.)  Mr. Sargent indicated that LVI recently learned of an alternate email address for Mr. Stirling and requested that Mr. Fausto confirm that his searches included all documents sent to and from that email address.  (See id.)  Mr. Sargent also indicated that the parties were to exchange audio recordings of conversations between Mr. Stirling and Dr. Barkhordarian.  (See id.)  Mr. Sargent proposed that Defendants take the depositions of LVI’s PMQ and Dr. Barkhordarian in November 2014, but only after LVI obtained the additional discovery from Defendants.  (See id.)

On 19 August 2014, Defendants filed the instant motion to compel the depositions of LVI’s PMQ and Dr. Barkhordarian and production of documents requested in the deposition notices.

Defendants’ counsel sent Mr. Sargent an email on 21 August 2014, regarding Mr. Fausto’s prior document production in response to the RPD.  (See Sargent Dec., Ex. 10.)  Defendants’ counsel indicated that, to respond to the RPD, Mr. Fausto compiled hard copies of documents and electronic files pertaining to LVI.  (See id.)  Defendants’ counsel advised that no documents pertaining to LVI or Beyond Big Data and/or Sofia-Inman were withheld from production on the basis of privilege, and the only documents withheld on that basis pertained to Mr. Stirling’s prior business venture—Adozu—and a contract dispute between Mr. Stirling and LG.  (See id.)  Defendants’ counsel indicated that Mr. Fausto would provide a declaration detailing the same, undertake an additional search of his computer hard-drive and produce any files pertaining to LVI, and prepare a privilege log.  (See id.)

Defendants’ counsel also confirmed that there did appear to be some emails that were missing from the prior production and, after making an inquiry, determined that the documents may have been missing because:  Mr. Fausto obliged informal document requests prior to the filing of the lawsuit, and may have produced original documents from his file materials to the parties without copying the documents; Mr. Fausto may have attached original documents to mediation briefs submitted in connection with a fee dispute between the parties, that was initiated prior to the filing of the lawsuit, without making copies of the same; and Mr. Fausto started his own law firm at the end of 2012, and it was possible that some documents were inadvertently lost as a result of the physical relocation to different premises.  (See id.)

Mr. Sargent sent Defendants’ counsel a reply email on 26 August 2014, proposing that the parties enter into a stipulation regarding the places to be searched, the types of searches to be conducted by Mr. Fausto, and the date for production of any additional documents that were located.  (See id.)

On 27 August 2014, LVI filed the instant “motion for protective order or, in the alternative, to compel.”  Defendants filed papers in opposition to LVI’s motion on 5 September 2014.  LVI filed papers in opposition to Defendants’ motion to compel the depositions of LVI’s PMQ and Dr. Barkhordarian on 8 September 2014.  LVI and Defendants filed replies in support of their respective motions on 12 September 2014.

III.     Discussion

         A.  Defendants’ Motion to Compel Depositions and Production of Documents

Pursuant to Code of Civil Procedure section 2025.450, Defendants move to compel the depositions of LVI’s PMQ and Dr. Barkhordarian and the production of documents requested in the deposition notices.

1.            Legal Standard

If, after service of a deposition notice, a party to the action, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for the examination or to produce documents for inspection, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document described in the deposition notice.  (See Code Civ. Proc., § 2025.450, subd. (a).)  The moving party is not required to demonstrate good cause for an order compelling a party to attend a deposition and provide testimony in accordance with a deposition notice.  (See Code Civ. Proc., § 2025.450, subd. (b)(1).)  The moving party need only show that he or she served the responding party with the deposition notice, the party failed to appear, and that he or she inquired as to the nonappearance.  (See Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124.)  In order to compel the production of documents requested in a deposition notice, Plaintiff is required to “set forth specific facts showing good cause justifying the production.”  (See Code Civ. Proc., § 2025.450, subd. (b)(1).)

2.            Attendance at Deposition

Defendants seek an order compelling LVI’s PMQ and Dr. Barkhordarian to attend their depositions.  Defendants assert the depositions of LVI’s PMQ and Dr. Barkhordarian are crucial to this case because Dr. Barkhordarian is a percipient witness and the PMQ will provide necessary information regarding damages.

LVI argues only that its PMQ and Dr. Barkhordarian should not have to attend their depositions until it has received additional documents responsive to the RPD.

Defendants have met all of the requirements to compel the depositions of LVI’s PMQ and Dr. Barkhordarian under Code of Civil Procedure section 2025.450.  As indicated above, the moving party need only show that he or she served the responding party with the deposition notice, that the party failed to appear, and that he or she contacted the deponent to inquire about the nonappearance.  (See Code Civ. Proc., § 2025.450, subd. (b)(2); see also Leko v. Cornerstone Bldg. Inspection Service, supra, 86 Cal.App.4th at p. 1124.)

Here, Defendants served LVI with the deposition notices on 15 July 2014.  LVI’s PMQ and Dr. Barkhordarian were legally obligated to attend their depositions on the dates specified in the notices.   After Defendants’ counsel was informed on 31 July 2014, that LVI’s PMQ and Dr. Barkhordarian would not attend their depositions as notice, he inquired as to their nonappearance and attempted to meet and confer regarding alternative deposition dates.  Moreover, even though LVI’s counsel advised Defendants on 31 July 2014, that LVI’s PMQ and Dr. Barkhordarian could not attend their depositions as noticed, LVI did not promptly serve objections to the deposition notices or file a motion for a protective order under Code of Civil Procedure section 2025.420, providing that the depositions did not need to go forward until Defendants produced additional documents.  (See Code Civ. Proc., § 2025.420, subd. (b).)  After LVI’s PMQ and Dr. Barkhordarain failed to appear for their duly noticed depositions, the parties agreed that LVI’s PMQ deposition would take place on 14 August 2014, and Dr. Barkhordarain’s deposition would be scheduled following the same.   Despite the parties’ agreement, Mr. Sargent indicated on 11 August 2014, that the 14 August 2014 deposition could not proceed as scheduled due to his firm’s personnel issues.  Mr. Sargent subsequently indicated that LVI’s PMQ and Dr. Barkhordarain would not appear at deposition until Mr. Fausto produced additional documents that LVI contended had been omitted from the prior 8 January 2014 document production.

Code of Civil Procedure section 2019.020 expressly states that “the methods of discovery may be used in any sequence, and 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 Civ. Proc., § 2019.020, subd. (a).)  Thus, LVI’s assertion that it is entitled to a further production of documents in response to its RPD before Defendants may depose its PMQ or Dr. Barkhordarian is without merit.

Moreover, LVI has not moved the Court for an order pursuant to Code Civil Procedure section 2019.020, subdivision (b) relieving it of its obligation to comply with Defendants’ deposition notices until after it receives further documents in response to its discovery requests.  While LVI has moved for a protective order under Code of Civil Procedure section 2025.420, LVI delayed filing its motion until 27 August 2014, long after LVI’s PMQ and Dr. Barkhordarian were obligated to attend their duly noticed depositions.  As addressed below, LVI’s motion for protective order was not promptly filed and is therefore untimely.  (See Code Civ. Proc., § 2025.420, subd. (a).)

Accordingly, Defendants’ motion to compel the attendance of LVI’s PMQ and Dr. Barkhordarian at deposition is GRANTED.

B.  Production of Documents

Defendants’ motion, as it pertains to the requested documents, is premature. As indicated above, the service of a deposition notice is effective to require any witness to appear and testify at a deposition at the location, date, and time specified in the notice “as well as to produce any document . . . or tangible thing for inspection.”  (See Code Civ. Proc., § 2025.280, subd. (a).)  The statute contemplates that a deponent asked to bring documents to the deposition for inspection may object to the production of such documents at the deposition itself.  (See Carter v. Super. Ct. (1990) 218 Cal.App.3d 994, 997 [noting that procedure relating to inspection demands “is quite different from a deposition at which a party is required to bring documents”].)

Once the party appears for the deposition and either objects to the document requests or simply fails to produce them, the requesting party then may file a motion to compel production.  (See Carter v. Super. Ct, supra, 218 Cal.App.3d at p. 997.)  This procedure is also consistent with California Rules of Court, rule 3.1345(a)(5), which requires a motion to compel production of documents or tangible things at a deposition to be accompanied by a separate statement setting forth the particular documents or demands at issue, the responses received, and the reasons why production should be compelled.  Given that the motion to compel production of documents is premature, it is not surprising that Defendants have not submitted a separate statement in compliance with rule 3.1345(a)(5) because they do not yet have the information that would have been included in the statement.

Based upon the above discussion, Defendants’ motion to compel the production of documents described in the deposition notice is DENIED, without prejudice.

C.  Defendants’ Request for Monetary Sanctions

Defendants request monetary sanctions against LVI in the amount of $1,620 under Code of Civil Procedure section 2025.450, subdivision (g).

Code of Civil Procedure section 2025.450, subdivision (g)(1) provides that if a motion to compel a deponent’s attendance and testimony is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless it finds that the one subject to the sanction acted with substantial justification or other circumstances make the imposition of the sanction unjust.

Here, Defendants were successful on their motion, LVI did not act with substantial justification, and there are no other circumstances making the imposition of sanctions unjust.

Defendants’ counsel declares that he spent 5 hours preparing the moving papers at his hourly rate of $195.  Defendants’ counsel also anticipates spending approximately 3 hours to review the opposition and prepare a reply.  Defendants also seek to recoup the $60 motion fee.

The Court does not award sanctions for expenses not yet incurred. (See Code Civ. Proc., §2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.)  Consequently, the 3 hours of anticipated attorney fees is not compensable.  The time spent by Defendants’ counsel, his hourly rate, and the motion fee are otherwise reasonable.

Accordingly, Defendants’ request for monetary sanctions against LVI is GRANTED IN PART in the amount of $1,035.

         B.  LVI’s Motion for a Protective Order or, in the Alternative, to Compel

               1.            Nature of the Motion

As a preliminary matter, the true nature of LVI’s alternative motion to compel is unclear from its papers.  LVI’s motion is titled, “Motion for Protective Order, or in the alternative, to Compel,” and the cover page indicates that the motion is brought under Code of Civil Procedure sections 2025.420 (pertaining to motions for protective orders), 2030.300 (pertaining to motions to compel further responses to interrogatories), and 2031.310 (pertaining to motions to compel further responses to requests for production of documents).

The notice of motion states that LVI is moving for a protective order under Code of Civil Procedure section 2025.420 “that any deposition of [LVI] and/or [Dr.] Barkhordarian not take place until Defendants … provide supplemental responses to Plaintiff’s [RPD], as well as a corresponding privilege log describing information withheld due to claimed privilege, and if necessary for an order compelling documents production of same documents by October 3, 2014.”  (Motion for Protective Order, p. 1:5-11 [emphasis added].)

LVI then argues in its papers that Mr. Fausto’s prior 8 January 2014 production of documents was incomplete and Mr. Fausto has not conducted a diligent search of his electronic records, produced all documents responsive to the RPD, or produced a privilege log.  LVI asserts a protective order is necessary because Defendants will have an unfair advantage if the depositions proceed prior to the production of all documents responsive to the RPD.  LVI further asserts that the Court should order a search of Mr. Fausto’s electronic records as described in a stipulation attached to Mr. Sargent’s declaration as exhibit 10, which outlines numerous types of keyword, subject line, and email address searches.  LVI also argues that the documents sought should be produced because they are relevant and objections to the RPD based on the attorney-client privilege have been waived.  Lastly, LVI asserts that at a minimum the Court should compel production of a privilege log and conduct an in camera review of any documents that are withheld.

In support of its motion, LVI provides a separate statement regarding RPD Nos. 5, 9, 11-12, and 27-28, stating that “[s]et forth below is a brief statement of the factual and legal reasons that further responses to the disputed requests should be compelled.”  (Sep. Stmt., p. 1:5-6 [emphasis added].)  Therein, LVI asserts that certain documents responsive to the requests were not previously produced, any attorney-client privilege has been waived, and Defendants should be ordered to conduct a search of their electronic information using specific search methods and keywords.

Defendants indicate in their opposition that it is their understanding that LVI is moving for a protective order postponing the depositions until further documents are produced or a search of Mr. Fausto’s electronic information is conducted or, in the alternative, to compel further responses to the RPD under Code of Civil Procedure section 2031.310.

In its reply papers, LVI requests that the Court “order not only the searches and production previously requested, but that all such searches of Mr. Fausto’s ESI be conducted by an independent forensic examiner,” under the terms described in its moving papers.  (See Reply, p. 2:20-22, 3:14-16.)  LVI also confirms that its “Motion to Compel” is brought under Code of Civil Procedure section 2031.310, which again applies to motions to compel further responses to requests for production of documents.  (See Reply Dec., p. 7:1.)  However, LVI then confusingly quotes portions of Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2014), pertaining to Code of Civil Procedure section 2031.320 for the proposition that there is no time limit to file its motion to compel.

Based on the foregoing, LVI’s motion to compel appears to be, on the one hand, a motion to compel further responses to the RPD given that LVI cites Code of Civil Procedure section 2031.310 as the statutory basis for its motion in both its moving and reply papers, states in its notice of motion that it is moving for an order compelling Defendants to provide supplemental responses, and provides a separate statement which is required for motions to compel further responses to requests for production of documents under California Rules of Court, rule 3.1345(a)(3).  On the other hand, it appears that LVI may have intended its motion to be one to compel compliance with Mr. Fausto’s responses to the RPD under Code of Civil Procedure section 2031.320 because LVI states that it seeks to compel the production of documents that are responsive to the RPD and, in its reply, cites to portions of Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2014) that pertain to Code of Civil Procedure section 2031.320.

In light of the fact that LVI cited Code of Civil Procedure section 2031.310 as the basis for its alternative motion to compel in its moving and reply papers, LVI submitted a separate statement, and Defendants reasonably treated the alternative motion as one to compel further responses under Code of Civil Procedure section 2031.310 and not a motion to compel compliance, the Court finds that it is appropriate to treat the alternative motion as one to compel further responses to RPD Nos. 5, 9, 11-12, and 27-28.

Accordingly, the Court construes LVI’s alternative motion as one to compel further responses under Code of Civil Procedure section 2031.310.

2.            Request for Judicial Notice

In connection with its moving papers, LVI requests that the Court take judicial notice of the following documents: the declaration of Mr. Fausto dated 23 June 2012, and filed on 23 June 2014, in the case of Longview International, Inc. v. Kyle Stirling (Santa Clara County Superior Court Case No. 1-12-CV-228043); the Final Judgment After Court Trial filed on 3 June 2014, in the case of Longview International, Inc. v. Kyle Stirling (Santa Clara County Superior Court Case No. 1-12-CV-228043); and the declaration of Mr. Fausto dated 2 June 2014, and filed on 3 June 2014, in the instant lawsuit.

In addition, in connection with its reply papers, LVI requests that the Court take judicial notice of a Joint Stipulation and Order filed on 6 December 2013 in the case of Patrick Barkhordarian v. Kyle Stirling (1-12-CV-237257).

A court may take judicial notice of court records that are relevant to a pending issue.  (See Evid. Code § 452, subd. (d) see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

LVI’s request for judicial notice is GRANTED as the documents are court records that are relevant to the pending motion.

C.  Protective Order

LVI moves for an order postponing the subject depositions until Mr. Fausto produces the documents that were purportedly omitted from the prior production or advises that he conducted a search of his electronic information that comports with the requirements set forth in the proposed stipulation attached to Mr. Sargent’s declaration as exhibit 10.

1.   Legal Standard

Before, during, or after, for good cause shown, a court may make any order that justice requires to protect any party, deponent, or other natural person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense relative to discovery matters. (See Code Civ. Proc., § 2025.420, subd. (b).)  Generally, the party or deponent seeking a protective order must show that the burden, expense, or intrusiveness involved in the taking of the deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.  (See Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4th 1101, 1110-1111.)

2.            Timeliness of Motion

As an initial matter, Defendants argue that the Court should deny the motion for protective order because LVI did not promptly file the same.  Defendants point out that LVI waited until one week after they filed their motion to compel the depositions of its PMQ and Dr. Barkhordarian to file the instant motion for protective order on 27 August 2014.  Defendants further point out that when it served LVI with the deposition notices on 3 July 2014, LVI did not object or complain that Mr. Fausto had not produced all documents responsive to the RPD.  In fact, LVI failed to file any such protective order prior to the 5 August 2014 and 6 August 2014 depositions, and LVI’s PMQ and Dr. Barkhordarian simply refused to attend.  Defendants also assert that LVI failed to file a protective order or make any objection pertaining to the completeness of Mr. Fausto’s document production when the parties agreed that LVI’s PMQ deposition should be rescheduled to 14 August 2014.

Conversely, LVI indicates that it promptly filed the instant motion because it first learned on 3 June 2014, that Mr. Fausto’s prior document production did not include all documents that were responsive to the RPD.  LVI asserts that Mr. Fausto’s declaration, filed in connection with his motion for leave to file a cross-compliant, contained information that was not previously produced and, after receiving the same, LVI worked diligently to determine what documents were and were not produced.

Code of Civil Procedure section 2025.420, subdivision (b) provides that a motion for a protective order must be filed “promptly,” but provides no specific statutory deadline by which such a motion must be filed.  (See Code. Civ. Proc., § 2025.420, subd. (b).)  The determination of whether a motion for a protective order has been promptly filed is a fact specific inquiry entrusted to the discretion of the Court.  (See Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316.)

The Court finds that LVI did not promptly file the instant motion for protective order.  On 3 July 2014, after attempting to obtain agreement on deposition dates from LVI’s counsel, Defendants duly noticed the depositions of LVI’s PMQ and Dr. Barkhordarian for 5 August 2014 and 6 August 2014.  According to LVI, it became aware that some documents were omitted from Mr. Fausto’s prior document production as of 3 June 2014.  However, when the depositions were noticed one month later on 3 July 2014, LVI did not file a motion for protective order or even serve Defendants with formal objections to the depositions.  LVI then waited until 31 July 2014, to advise Defendants’ counsel that LVI’s PMQ and Dr. Barkhordarain would not attend the depositions as noticed.  At that point in time, LVI did not indicate that it believed that Mr. Fausto’s prior document production was insufficient or that an additional production of documents would need to occur prior to the depositions going forward.  Additionally, LVI did not exercise its right to move for a protective order.  Moreover, LVI agreed on 7 August 2014, to go forward with the deposition of its PMQ on 14 August 2014, without any conditions pertaining to Mr. Fausto’s document production.  Even when LVI repudiated the parties’ agreement on 11 August 2014, and served formal objections to the deposition notices, LVI did not object to the deposition based on the completeness of Mr. Fausto’s document production or move for a protective order.   Instead, LVI waited until one week after Defendants filed their motion compel to move for a protective order.  In light of the foregoing, LVI did not promptly file its motion for protective order.

Accordingly, the motion is DENIED on this basis alone.

3.            Merits of the Motion

LVI argues that the Court should order a protective order postponing the depositions of its PMQ and Dr. Barkhordarian until Mr. Fausto has produced all documents responsive to the RPD or advises that he conducted a detailed keyword search of his electronic information because Defendants will have an unfair advantage if LVI does not receive the documents prior to the depositions, citing Poeschl v. Super. Ct. of Ventura County (“Poeschl”) (1964) 229 Cal. App. 2d 383.  LVI generally asserts that the primary purpose of the depositions is to address damages and the documents that have not been produced are highly relevant to the issue of damages.

LVI specifically indicates that there are some billing statements that indicate than an invoice was attached, but the invoice was not produced.  Similarly, LVI states that while the formation documents for Beyond Big Data were produced, it did not receive any communications that address the formation of Beyond Big Data.  LVI contends that its PMQ and Dr. Barkhordarian cannot testify meaningfully or completely with respect to the issue of damages without first inspecting all of the documents that are responsive to its discovery requests.

Conversely, Defendants argue that LVI has failed to establish good cause.  Defendants point out that Mr. Fausto produced approximately 1,267 documents on 8 January 2014, and LVI has also obtained discovery through related actions against Mr. Stirling such that LVI’s contention that its PMQ and Mr. Barkhordarian cannot testify meaningfully as to LVI’s damages is without merit.  Defendants state that Mr. Fausto has not withheld from his production any documents pertaining to LVI, Beyond Big Data, or Sofia-Inman, and that the only documents withheld under a claim of privilege were documents pertaining to Mr. Stirling’s prior business venture—Adozu—and a contract dispute between Mr. Stirling and LG.  Defendants further contend that while they have identified a handful of documents that were inadvertently omitted from the 8 January 2014 production, the originals of those documents were previously produced to LVI in connection with lawsuits brought by LVI against Mr. Stirling and a fee dispute between LVI and Defendants.   Defendants point out that they have offered to provide a declaration from Mr. Fausto stating the same.  Defendants argue that there is no unfair advantage in allowing the depositions of LVI’s PMQ and Mr. Barkhordarian to proceed as there is no evidence that Mr. Fausto intentionally withheld any documents sought by LVI or that LVI’s PMQ and Dr. Barkhordarain do not have sufficient information to testify competently as to the issue of damages.

In Poeschl, the Court of Appeal noted that:  “Since discovery proceedings can seldom if ever be conducted simultaneously, it is inherent in such proceedings that the party who secures discovery first may derive advantages by securing information from his adversary before he is required to reciprocate by divulging information to him. Parties should be encouraged to expedite discovery and should not needlessly be deprived of the advantages that normally flow from prompt action.  Accordingly, the existence of such advantages alone will ordinarily not constitute good cause for changing the normal timing of discovery or justify a conclusion that such timing will result in ‘annoyance, embarrassment, or oppression.’”  (See Poeschl, supra, at p. 386.)

Here, Defendants are not obtaining any unfair advantage by seeking to take the deposition of LVI’s PMQ and Dr. Barkhordarian.  Defendants have affirmed that any documents that were not included in the prior 8 January 2014 production were inadvertently omitted.  Defendants further state that they have produced all documents that they have pertaining to LVI, Beyond Big Data, and Sofia-Inman and that any documents that were not included in the 8 January 2014 production were produced to LVI as originals in connection with other matters.  Thus, further searches of Defendants’ electronic materials would not result in the production of any further information.[1]

Accordingly, LVI has not shown good cause for the protective order requested and its motion is DENIED on this basis.

Nonetheless, the Court orders Defendants to provide LVI with a sworn declaration affirming that it has produced all responsive documents pertaining to LVI, Beyond Big Data, and/or Sofia-Inman in its possession, custody, and/or control and explaining what happened to the documents that were inadvertently omitted from its prior production on 8 January 2014.  (See Code Civ. Proc., § 2025.420, subd. (b) [“[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense”].)

D.  Further Responses to the RPD

LVI moves to compel further responses from Mr. Fausto to RPD Nos. 5, 9, 11-12, and 27-28.

As a threshold matter, Defendants object to the motion on the ground that it is untimely.  Defendants point out that Mr. Fausto served LVI with his verified responses to the RPD and produced documents responsive to the requests on 8 January 2014.  Defendants assert that Mr. Fausto did not serve LVI with any further responses to the RPD and there was no agreement between the parties to extend LVI’s time to file a motion to compel further responses to the RPD.  Defendants contend that LVI was required to file any motion to compel further responses to the RPD within 45 days of 8 January 2014, and since LVI did not file the instant motion until 27 August 2014, it is untimely.

LVI contends that its motion is timely brought under Code of Civil Procedure section 2031.310 because there is no time limit to file the same, citing Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2014) p. 8H-50, section 8:1508.1.

As indicated above, the portions of Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2014) cited by LVI pertain to motions to compel compliance brought under Code of Civil Procedure section 2031.320, not motions to compel further responses to requests for production of documents under Code of Civil Procedure section 2031.310.  Motions to compel further responses to requests for production of documents must be filed within 45 days after the responses were served, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, or the requesting party waives any right to compel further responses. (See Code Civ. Proc. § 2031.310, subd. (c).)  The deadline by which a party must file a motion to compel further responses and is mandatory and quasi-jurisdictional, such that the court has no authority to grant a late motion.  (See Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1410.)

As Defendants persuasively argue, LVI’s motion to compel further responses to the RPD is untimely because Mr. Fausto served LVI with verified responses to the requests on 8 January 2014, and LVI did not file the instant motion until 27 August 2014, well past the 45-day deadline.

Accordingly, LVI’s motion to compel further responses to the RPD is DENIED.[2]

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IV.     Conclusion and Order

Defendants’ motion to compel the depositions of LVI’s PMQ and Dr. Barkhordarian is GRANTED IN PART and DENIED IN PART.  The motion is DENIED without prejudice as to the request for an order compelling the production of documents requested in the deposition notices.  The motion is GRANTED as to the request for an order compelling the attendance of LVI’s PMQ and Dr. Barkhordarian at their depositions.  Accordingly, LVI’s PMQ and Dr. Barkhordarian are required to submit to a deposition within 20 calendar days of the date of the filing of this order on a date and time mutually agreed upon by the parties.

LVI’s motion for protective order or, in the alternative, to compel further responses to the RPD is DENIED.

Defendants’ request for monetary sanctions against LVI is GRANTED IN PART in the amount of $1,035.  Accordingly, LVI shall pay $1,035 to Defendants’ counsel within 20 calendar days of the filing of this Order.

 

________________­­­____________ DATED:

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

 

[1] LVI states in its reply papers that the Court should order that an independent forensic examiner shall perform the various keyword searches of Defendants’ electronic information.  First, this request is not properly before the Court because it was made for the first time in LVI’s reply.  (See REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [“This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points”].)  Second, as indicated above, there is no evidence that further searches of Defendants’ electronic information would result in the production of any additional responsive information or that Defendants are withholding documents from LVI as Defendants stated that they have produced all documents pertaining to LVI, Beyond Big Data, and Sofia-Inman.

[2] This does not preclude LVI from bringing a duly noticed motion to compel compliance with Mr. Fausto’s responses to the RPD under Code of Civil Procedure section 2031.320.  It appears from the papers that the parties’ counsel had been working together to obtain copies of any documents that were inadvertently omitted from the prior 8 January 2014 production.  The Court encourages the parties to continue their meet and confer efforts in order to avoid any further motion practice.