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 24 April 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 April 2014, the motion of Plaintiff Malema Engineering Corp. to compel Defendant Kue Kim to provide further responses to form interrogatories, set one (12.1, 15.1, 50.1), form interrogatories, set two (12.1), form interrogatories, set three (12.1), form interrogatories, set four (12.1), special interrogatories, set one (12, 16 and 27), request for production of documents, set one (1-19, 21, 24-86, and 89-97) and for monetary sanctions was argued and submitted.  The notice of the motion, in bullet point number 4, refers to certain requests but does not otherwise referred to the discovery device surrounding those requests (notice of motion, page 2, lines 17-18.)

Defendant filed formal opposition to the motion.

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

Statement of Facts

Plaintiff Malema Engineering apparently claims that it was the owner and operator of Malema Korea.  Plaintiff claims that Defendant was formerly employed by Plaintiff as Country Manager/Sales Director for Korea with his employment located in Santa ClaraCounty.  Plaintiff contends that Defendant embezzled funds to the tune of $1.5 million and/or misappropriated corporate opportunities from Plaintiff.  Plaintiff terminated Defendant’s employment on or about 4 May 2012.

Plaintiff contends that, at the time this action was filed, Defendant was liquidating his assets in this county.  Moving papers also break down five different schemes by which the monies were embezzled or misappropriated.

On 19 September 2013, Judge Pierce issued a preliminary injunction ordering Defendant not to transfer certain assets.

Defendant claims that he has a right to maintain the privacy of business and financial records for a company entitled Malema Korea of which he was the sole owner and operator.   The opposition papers further state that Malema Korea was an independent distributor of Plaintiff’s products in Korea.  Malema Korea knew that Defendant was setting up and registering Malema Korea as a separate and sole proprietorship in his name.  Defendant reported and  paid all taxes.   In the five years that Malema Korea was in operation, Plaintiff never questioned or disagree with the status of Malema Korea as a separate entity registered and owned by Defendant.[2]      

Discovery Dispute

Certain discovery as described above was served on 7 August 2013 with additional discovery being served on 24 September 2013.  The parties met and conferred on the responses or lack thereof.  The parties agreed that Defendant would be allowed a period of time up to and including 28 January 2014 to serve supplemental responses and that Plaintiff would have up to and including 18 February 2014 within which to bring a motion to compel further responses.

The instant motion was filed on 18 February 2014 and was originally calendared for 4 April 2014.  By stipulation, the matter was continued to this date.  The motion is timely.

In the position papers, Defendant contends that he has a right of privacy to documents pertaining to the operation of Malema Korea.  Defendant contends that the mere allegation by Plaintiff, five years after the fact, that it is the owner of Malema Korea does not justify the production of the financial circumstances nor does it justify the disclosure of all financial details regarding Defendant’s acquisition of real estate in California.  Defendant asks that if any records are ordered to be produced, and requests that this Court issue protective order limiting disclosure to the parties to this litigation or to the experts and consultants.  When Defendant asked for this protective order, Plaintiff responded with this discovery motion.

In the reply papers, Plaintiff argues past this discussion about a protective order and asserts that the issue of a protective order was not raised beyond an initial discussion because it was not relevant.  Plaintiff instead focuses on mention of a communication problem between Defendant and his counsel.  This reference refers to ¶ 5 of defense counsel’s declaration in opposition to this motion as well as to Exhibit B of the opposition papers which is an e-mail from Molly Edgar to Plaintiff’s counsel.  In pertinent part, that document states:

“Without waiving any privilege, it is clear to me that my client does not understand some of the questions that are in discussion between us.  The problem is one of language and the inability to discuss the legal terminology in a way that he can’t understand.  For example, he has attempted to give me answers, but he doesn’t understand a lot of key specific terms.  Another example of this is that he refers me to documents, some of which are in Korean and others that don’t seem to relate to the question involves.  As a result, I am unable to provide an answer at this time to subparts (d) and (e) of Form Interrogatories Set No. 1, question 50.1.”[3]

Defense counsel does not otherwise contest the merits of the motion.

In the mind of this Court, it is curious how this matter proceeded as far as it has without a meaningful confidentiality order in place.

Good cause appearing, IT IS ORDERED that Defendant Kue Kim provide further responses to form interrogatories, set one (12.1, 15.1, 50.1), form interrogatories, set two (12.1), form interrogatories, set three (12.1), form interrogatories, set four (12.1), special interrogatories, set one (12, 16 and 27), request for production of documents, set one (1-19, 21, 24-86, and 89-97) within 20 days of the date of the filing of this Order.

This Court declines to order Defendant to respond to any further discovery to which this motion might refer, specifically including the material identified in the notice of the motion, in bullet point number 4, refers to certain requests but does not otherwise referred to the discovery device surrounding those requests (notice of motion, page 2, lines 17-18.)  However, having said that, this Court notes that the parties can mutually agree to the provision of further responses without the necessity of a further motion.

The request for monetary sanctions is DENIED on the basis that Plaintiff has not explained to the satisfaction of this Court why a confidentiality order was not negotiated at the outset of this litigation.  Additionally, the fees claimed appear to be a bit extravagant.