MDS Micro Inc. et al. v. Dennis D. Brown et al. CASE NO. 112CV229329
DATE: 01 May 2014 TIME: 9:00 LINE NUMBER: 5
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 Wednesday 30 April 2014. Please specify the issue to be contested when calling the Court and counsel.

Background

In these consolidated matters there are three Plaintiffs/Cross-Defendants and two Defendants/Cross-Complaintants.

Generally this is an action by former clients against their former attorney and law firm, for alleged negligent representation and breach of fiduciary duties. Attorney and law firm have filed a cross-complaint for alleged unpaid attorney’s fees.

Plaintiffs/Cross-Defendants are (1) Karriem Adams (“Adams”), Karriem Adams dba L1 Properties (“L1 Properties”), and MDS Micro, Inc. (“MDS”).

Defendants/Cross-Complaintants are Dennis D. Brown (“Brown”) and Law Office of Dennis D. Brown (“Law Offices”).

All Plaintiffs/Cross-Defendants (referred collectively as “Plaintiffs”)make motions to compel further responses to Form Interrogatories propounded on Defendants/Cross-Complaintants.

Defendants/Cross-Complaintants (referred collectively as “Defendants”) make motions to compel responses to Form Interrogatories propounded on Plaintiffs/Cross-Defendants.

Both sides seek monetary sanctions.

Discovery Dispute

All three Plaintiffs/Cross-Defendants Adams, L1 Properties, and MDS served General Form Interrogatories, Set One to both Defendants Brown and Law Offices. All Plaintiffs/Cross-Defendants also served General Form Interrogatories addressing issues with allegations contained in Defendants/Cross-Complaintants’ Cross-Complaint.

In total 11 or 12 sets of Form Interrogatories were propounded by Plaintiffs/Cross-Defendants to Defendants/Cross-Complaintants and are currently in contention for the motion to compel further responses.

Defendants Brown and Law Offices served responses raising a number of objections to the Form Interrogatories. Verifications for Responses by Brown and Law Offices are dated 17 December 2013. (See Declaration of Ujvala Singh, Exh. 13, 15, 17, 19, 21, and 23.)

Defendants/Cross-Complaintants sent further responses via email dated 29 January 2014. (Id. Exh. 24.)

On or about 25 July 2013, Defendants/Cross-Complaintants served Form Interrogatories on Plaintiffs/Cross-Complaintants. (See, Declaration of Michelle R. Cruz, ¶ 3, Exh. B.)

On 20 September 2013, Plaintiffs provided responses. (Id. Exh. C.)

The responses were purported served after the deadline for responses had passed. (See Plaintiffs/Cross-Defendants’ Separate Statement.)

Defendants/Cross-Complaints also propounded Form Interrogatories to Plaintiffs MDs and Adams. Plaintiffs served “further responses” on 09 December 2013. (See Defendants’/Cross-Complaintants Memo. of P’s and A’s, p. 2.)

Discussion

As a general matter this Court and others disfavor the use of boiler-plate objections as responses to discovery requests. The use of a “boiler plate” objections lacking the specificity as required by statute may warrant sanctions against the party asserting the objections. Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516.

Pursuant to Code of Civil Procedure § 2030.290(a), if a party to whom interrogatories are directed fails to serve a timely response, that party “waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product.” Plaintiffs argue that Defendants have waived the attorney-client privilege because the responses served were untimely.

In addition the Court notes that a party claiming attorney-client privilege in discovery matters must have a privilege log accompanying such claims of privilege.

Here, Plaintiffs have failed to specify the exact date when the Form Interrogatories were served. The date is not identified in Plaintiffs’ Statement of Facts or Declaration. Also, the Exhibits throughout Plaintiffs’ Declaration fail to include the Proofs of Service accompanying the Form Interrogatories.

As such Plaintiffs have failed to prove that the responses to Form Interrogatories were indeed served late.

Therefore, Plaintiffs’ motion to compel further responses to Form Interrogatories is DENIED WITHOUT PREJUDICE. Plaintiffs may re-file this motion with the requisite corroborating proofs of service.

Likewise, Defendants declare that on or about 25 July 2013, Form Interrogatories were served upon Plaintiffs. However, Defendants’ Exhibit B, fails to contain a proof of service. This Court, having to hold Defendants to the same standard as it held Plaintiffs, finds that there is insufficient evidence to support Defendants motion.

Therefore, Defendants motion to compel further responses to Form Interrogatories is DENIED WITHOUT PREJUDICE. Defendants may re-file this motion with the requisite corroborating proofs of service.

In the alternative, this Court will proceed on the merits of the motions should both parties stipulate to the factual basis between the parties in these discovery disputes or resolve this discovery dispute informally without Court intervention.

All requests for monetary sanctions are DENIED.

Conclusion

All motions are DENIED WITHOUT PREJUDICE. The respective requests for monetary sanctions are DENIED.