Shannon etc. v. Vimo, Inc. d.b.a GetInsured.com		CASE NO. 113CV253886
DATE: 10 July 2014	TIME: 9:00	LINE NUMBER: 16

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 9 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 10 July 2014, the motion of plaintiff/cross-defendant Patrick Shannon d.b.a. Government Relations Counsel (“Shannon”) to compel  further responses to requests for production of documents (“RPD”), requests for admission (“RFA”), form interrogatories (“FI”), and special interrogatories (“SI”), and for monetary sanctions was argued and submitted.  Defendant/cross-complainant Vimo, Inc. d.b.a. GetInsured.com (“Vimo”) filed a formal opposition to the motion.

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

Statement of Facts

This action arises from a contractual dispute.  In the complaint, Shannon alleges that he and Vimo entered into a written contract (“the Agreement”) whereby Shannon would perform general (i.e. not legal) services for Vimo as an independent contractor on a project-by-project basis, and in exchange, Vimo would pay him a percentage of the revenue it earned from the projects and a “kicker bonus” in connection with certain projects.  Shannon further alleges that Vimo breached the Agreement by refusing to pay him in full for his services.  Shannon asserts causes of action against Vimo for declaratory relief, breach of contract, breach of implied covenant of good faith and fair dealing, intentional misrepresentation, negligent misrepresentation, and promissory estoppel.

In the cross-complaint, Vimo alleges that an attorney-client relationship existed between it and Shannon, and the Agreement is an unlawful and unenforceable contingency fee agreement.  Vimo asserts causes of action against Shannon for breach of fiduciary duty, declaratory relief, imposition of a constructive trust, and a violation of Business and Professions Code section 17200 et seq.

Discovery Dispute

Shannon served the RPD, FI, SI, and RFA on Vimo on or about 24 December 2013.

On 6 February 2014, Vimo served its initial responses to the RPD, FI, SI, and RFA, consisting of objections and substantive answers.  Around that time, Vimo produced documents responsive to the RPD and a privilege log identifying responsive documents withheld on the basis of privilege.

Shannon found Vimo’s initial discovery responses and production of documents to be deficient, and his counsel initiated meet and confer discussions with Vimo’s counsel on 6 March 2014, outlining the purported deficiencies with Vimo’s initial responses and production of documents.  The parties’ counsel continued to meet and confer thereafter, and ultimately agreed that Vimo would serve amended responses to the RPD, FI, SI, and RFA and produce additional documents responsive to the RPD.

On 13 May 2014, Vimo served amended responses to RPD Nos. 7, 11-14, 17-19, 25, and 35-39, FI No. 17.1, SI Nos. 2, 5-7, 9, and 11, and RFA Nos. 3, 5-11, 15, and 19.  The amended responses contain objections and substantive answers.  Vimo also produced a second privilege log identifying documents responsive to the RPD withheld on the basis of privilege, but did not produce any additional documents.

Shannon found the amended discovery responses and second privilege log to be deficient.  At that point, meet and confer discussions had reached an impasse as to whether Vimo’s objections and substantive responses to the RPD, FI, SI, and RFA and production of documents responsive to the RPD were sufficient.

Shannon filed this motion to compel further responses to the RPD, FI, SI, and RFA, and to compel the production of documents responsive to the RPD, on 21 May 2014.

Vimo filed its opposition on 27 June 2014.

On 3 July 2014, Shannon filed his reply.

Discussion

Shannon brings this motion to compel further responses to the RPD, SI, FI, and RFA, and the production of documents responsive to the RPD.  Shannon also requests an award of monetary sanctions against Vimo.

Vimo opposes the motion, and requests an award of monetary sanctions against Shannon.

I.             RPD

Shannon moves to compel further responses to RPD Nos. 1-39 and the production of documents in conformity therewith.

RPD Nos. 1-6, 15, and 33 seek documents supporting Vimo’s allegation that an attorney-client relationship existed between it and Shannon.  RPD Nos. 7 and 38 ask for engagement letters or retention agreements with any attorney that provided legal services for Vimo and documents evincing Vimo’s payments for legal services.  RPD Nos. 8-10, 16, 25, and 28-31 seek documents pertaining to the Agreement, Shannon’s services, Vimo’s payments for those services, and Vimo’s termination of the Agreement.  RPD Nos. 11-14 and 32 seek contracts between Vimo and its other independent contractors that performed services on the same projects as Shannon, documents relating to the termination of other independent contractors “for convenience,” and documents pertaining to payments made to other independent contractors.  RPD Nos. 17-19, 26-27, and 33-37 seek documents concerning the projects for which Shannon had performed services.

Vimo responded to the RPD with objections and substantive responses.  Vimo produced some documents responsive to the RPD, and also produced two privilege logs identifying responsive documents withheld on the basis of the attorney-client privilege and attorney work product doctrine.

Shannon argues that further responses to the RPD and production of documents in conformity therewith are warranted because he has good cause for the discovery sought, Vimo’s objections lack merit, and Vimo’s substantive responses are incomplete and/or evasive.

Vimo opposes the motion on the ground that Shannon lacks good cause for the discovery sought and its attorney-client privilege and attorney work product doctrine objections have merit.

A.           Legal Standard

A party propounding a request for production may move for an order compelling a further response if it deems that a statement of compliance with the demand is incomplete, a representation of an inability to comply is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general.  (Code of Civ. Proc. [“CCP”], § 2031.310, subd. (a).)  The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.”  (Id., at subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [“Kirkland”].)  If good cause is shown, the burden shifts to the responding party to justify any objections. (Kirkland, supra, at p. 98.)

B.           Good Cause Requirement

Good cause is established by a fact-specific showing of relevance.  (Kirkland, supra, at p. 98.)  Discovery is allowed for any matters that are relevant to the subject matter involved in the action, reasonably calculated to lead to the discovery of admissible evidence, and not privileged.  (CCP, § 2017.010.)  The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery.  (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.)  Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.  (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

The discovery sought by RPD Nos. 1-6, 8-10, 15-16, 25, 28-31, and 33 pertains to the issue of whether Vimo retained Shannon as its attorney or whether Vimo hired Shannon to perform general services as an independent contractor, and the services Shannon performed and compensation he received.  Such discovery would reasonably assist Shannon in evaluating the case, preparing for trial, and facilitating settlement.  The discovery sought by RPD Nos. 17-19, 26-27, and 33-37 pertains to the projects that Shannon worked on, and therefore, it is reasonably calculated to lead to the discovery of admissible evidence with respect to whether Shannon performed legal services—as opposed to business services or other non-legal services—for Vimo.  Therefore, the discovery sought by RPD Nos. 1-6, 8-10, 15-19, 25-31, and 33 is relevant to this lawsuit.

The discovery sought by RPD Nos. 7, 11-14, 32, and 38 pertains to Vimo’s contractual relationships with its other attorneys and independent contractors.  Such documents would likely demonstrate the type of contracts that Vimo typically used to retain attorneys and services that Vimo typically hired attorneys to perform, as opposed to the types of contracts that Vimo typically used to hire independent contractors and services that Vimo typically hired non-attorneys to perform as independent contractors.  Thus, the discovery sought by RPD Nos. 7, 11-14, 32, and 38 is relevant to the issue of whether Shannon performed legal services for Vimo.  Since the issue of whether Vimo hired Shannon to perform legal services is central to this litigation, the discovery sought would likely reasonably assist Shannon in evaluating his case, preparing for trial, or facilitating settlement.  Therefore, the discovery sought by RPD Nos. 7, 11-14, 32, and 38 is relevant to this case.

Since the discovery sought by the RPD is relevant to this lawsuit, Shannon has good cause for the discovery sought.

C.           Defendant’s Objections

Vimo objected to the RPD on the grounds of attorney-client privilege and attorney work product doctrine (RPD Nos. 1-39), vagueness and ambiguity (RPD Nos. 2-3, 5, 10-15, 17-19, 25-27, 30, & 33-37), compound (RPD Nos. 4, 30, & 38), relevance (RPD Nos. 7, 11-14, 16-25, 32, & 38-39), privacy (RPD Nos. 11-14 & 32), overbreadth and undue burden (RPD Nos. 16-27 & 34-39), duplicity (RPD Nos. 21-24), and assumes facts not in evidence (RPD No. 29).

Vimo only presents arguments in an effort to justify its attorney-client privilege and attorney work product objections.  Since Vimo does not proffer arguments to justify its other objections, those objections are overruled.  (See Kirkland, supra, at p. 98.)

The merits of the attorney work product and attorney-client privilege objections are discussed in turn below.

                              1.            Attorney Work Product Doctrine

Shannon argues that the discovery sought is not protected by the attorney work product doctrine.

The attorney work product doctrine protects the work product of attorneys acting on a client’s behalf.  (See CCP, § 2018.030.)  The doctrine provides absolute protection for an attorney’s “impressions, conclusions, opinions, or legal research or theories,” and qualified protection for all other work product.  (Id., Fireman’s Fund Ins. Co. v. Super. Ct. (2011) 196 Cal.App.4th 1263, 1275.)

Vimo contends that it cannot be compelled to disclose the discovery sought because it contains Shannon’s attorney work product in relation to the work he performed for Vimo.

Shannon contends that the attorney work product doctrine objection lacks merit because the work product protection belongs to the attorney, not the client, and therefore, Vimo—who alleges to be Shannon’s former client—cannot refuse to disclose information to Shannon on the basis of an attorney work product objection.  This argument is well-taken.  The attorney—not the client—may claim or waive work product protection, since the protection is based on the policy of preserving the attorney’s rights to prepare for trial.  (Lohman v. Super. Ct. (1978) 81 Cal.App.3d 90, 100-101.)  Since Shannon seeks to discover information that is purportedly Shannon’s own work product, Vimo cannot refuse to disclose that information on the basis of the work product doctrine.

Therefore, Vimo’s attorney work product objection is overruled.

                              2.            Attorney-Client Privilege

Shannon asserts that the discovery sought is not protected by the attorney-client privilege.[2]

Communications between client and counsel are presumed to have been made in confidence and are broadly privileged against discovery.  (Evid. Code, § 954; Mitchell v. Super. Ct. (1984) 37 Cal.3d 591, 599.)  To establish a prima facie claim of privilege, the proponent need only show that the communications at issue contain legal advice provided in the course of an attorney-client relationship.  (Costco Wholesale Corp. v. Super. Ct. (2009) 47 Cal.4th 725, 733 [“Costco”].)  If the objecting party establishes a prima facie claim of privilege, the burden is on the opponent to show that the privilege does not apply, an exception exists, or waiver as been effectuated.  (Id.)

Vimo argues that the discovery sought is privileged because it consists of confidential communications exchanged between it and Shannon.  The privilege logs submitted by Vimo show that communications at issue are emails exchanged between Shannon and Vimo’s agents.  The subject matter of many of these emails pertains to business advice and negotiations (e.g., business presentations and meetings, “networking,” Vimo’s “corporate profile,” Vimo’s “relationship” with other businesses, and “healthcare political contacts”).  Since the attorney-client privilege only applies to communications between an attorney and a client when the attorney acts as an attorney—as opposed to as a negotiator or business advisor—such emails are not within the scope of the privilege.  (See Costco, supra, at pp. 735-736; see also Chicago Title Ins. Co. v. Super Ct. (1985) 174 Cal.App.3d 1142, 1151; see also Zurich American Ins. Co. v. Super. Ct. (2007) 155 Cal.App.4th 1485, 1504.)  Thus, Vimo cannot withhold those messages from production based on the attorney-client privilege objection.  However, the subject matter of other emails encompasses legal issues, such as legislative amendments, contract discussions, and judicial decisions.  Since those messages concern legal issues and were exchanged between Vimo and Shannon, Vimo has established a prima facie claim of privilege in those emails.

Shannon persuasively argues that the exception to the attorney-client privilege set forth in Evidence Code section 958 applies to the discovery sought.  Evidence Code section 958 provides an exception to the communication privilege where the subject communications are relevant to the issue of breach of a duty arising from a lawyer-client relationship.  (See Evid. Code, § 958 [“[t]here is no privilege . . . as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship”]; see also Calrson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 226-227 [Evidence Code section 958 typically applies where a client sues an attorney for breach of fiduciary duty].)  Vimo insists that Evidence Code section 958 does not apply because its breach of fiduciary duty claim is based on the allegation that the Agreement is an unenforceable contingency fee agreement, not on Shannon’s performance of services.  It is Vimo’s position that the discovery sought by the RPD would only be discoverable if Vimo asserted a malpractice or breach of fiduciary duty claim against Shannon for negligently performing legal services.

Contrary to Vimo’s assertion, Evidence Code section 958 provides that there is no privilege as to any “communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”  (Evid. Code, § 958.)  Therefore, the discovery sought is subject to the exception provided by Evidence Code section 958 so long as it is relevant to an issue of breach by either Shannon or Vimo.  Here, Vimo alleges that the Agreement is the basis for the attorney-client relationship between it and Shannon, and Shannon alleges that Vimo breached the Agreement by refusing to pay him in full after he performed certain services.  The discovery sought pertaining to Shannon’s performance of services and Vimo’s failure to fully compensate him for those services is relevant to Shannon’s claim that Vimo breached a duty owed to him arising out of the lawyer-client relationship.

Accordingly, an exception to the attorney-client privilege applies to the discovery sought, and Vimo’s attorney-client privilege objection is overruled.

Shannon also asserts that the doctrine of implied waiver precludes Vimo from asserting the privilege in this instance.  However, since an exception to the attorney-client privilege applies to the discovery sought, the Court does not need to consider whether the doctrine of implied waiver applies.

               D.           Substantive Responses

A substantive response to a request for production of documents must address each item or category of items separately with a statement of compliance or a statement of an inability to comply.  (CCP, § 2031.210, subd. (a).)

Vimo substantively responded to RPD Nos. 7 and 38-39 by stating that it “will produce all non-privileged, responsive documents in its possession, custody, or control.”  A statement of compliance must state that all responsive documents that are not objectionable will be produced.  (CCP, § 2031.220.)  Therefore, Vimo’s responses to RPD Nos. 7 and 38-39 are code-compliant, and no further responses to these requests are warranted.

Vimo substantively responded to RPD Nos. 1-6, 8-10, 15-16, 20-24, 26-28, 31, and  33 by stating that it “will produce all responsive, non-privileged documents requested within its possession, custody, or control,” and “[c]onfidential or proprietary documents will be produced subject to the entry of a protective order.”  These responses are incomplete because they are qualified on the occurrence of a certain event, but there is no legal basis authorizing a responding party to delay the production of responsive documents on the condition that a protective order is executed.  Accordingly, Vimo’s substantive responses to RPD Nos. 1-6, 8-10, 15-16, 20-24, 26-28, 31, and 33 are incomplete, and further responses are warranted.

Vimo substantively responded to RPD Nos. 11 and 17-18 by stating that it “will produce all non-privileged, responsive documents in its possession, custody, or control,” but it “may redact the name(s) of third parties” to protect their privacy rights.  As discussed above, the privacy objection is overruled.  Regardless, an individual’s privacy interest in his or her name and basic contact information is outweighed by a party’s interest in discovering the identities of potential witnesses.  (CCP, § 2017.010; Puerto v. Super. Ct. (2008) 158 Cal.App.4th 1242, 1249-1250 [disclosure of names and addresses of potential witnesses is a routine and essential part of discovery].)  Since Vimo’s responses to RPD Nos. 11 and 17-18 are qualified on the condition that it redacts discoverable information from the documents before producing them—despite the fact that there is no legal basis for Vimo to refuse to disclose such information—these responses are incomplete.  Therefore, further responses to RPD Nos. 11 and 17-18 are warranted.

Vimo substantively responded to RPD Nos. 12 and 14 by stating that it “has produced all non-privileged, responsive documents in its possession, custody or control.”  Vimo substantively responded to RPD No. 29 by stating that it “does not owe Plaintiff any compensation pursuant to the [Agreement],” and “[t]herefore, there are no non-privileged documents within the scope of discovery that [Vimo] understands to be responsive to this request, nor does [Vimo] believe that any such document exists.”  Vimo substantively responded to RPD No. 32 by stating that it “will not produce documents responsive to this request.”  Vimo substantively responded to RPD No. 34 by stating that it “offers to meet-and-confer with counsel for Plaintiff in order to narrow the scope of this Request to the relevant claims and time period at issue in this lawsuit.”  These responses are inadequate, incomplete, and evasive because they are neither statements of compliance nor statements of an inability to comply.  Furthermore, Vimo’s responses to RPD Nos. 12 and 14 are inadequate because they not specify which previously produced documents are responsive to these requests.  Therefore, further responses to RPD Nos. 12, 14, 29, 32, and 34 are warranted.

Vimo substantively responded to RPD No. 19 by stating that it “will produce all non-privileged responsive documents in its possession, custody or control,” but “[t]o the extent any drafts contain attorney comments, mark-ups prepared by attorney(s), or any other privileged or work product information, [Vimo] will not produce those documents.”  Vimo substantively responded to RPD No. 25—which asks for all documents relating to Shannon’s “role” on a certain project—by stating that it “will produce all non-privileged documents relating to Mr. Shannon’s performance of work on [the project at issue] in its custody, possession, or control.”  Vimo substantively responded to RPD No. 30 by stating that it “will produce all responsive, non-privileged documents relating to [Vimo]’s calculations of payments made to Plaintiff within its possession, custody, or control,” and “[c]onfidential or proprietary documents will be produced subject to the entry of a protective order.”  CCP section 2031.220 requires a statement of compliance to state that all non-objectionable documents will be produced.  These responses are incomplete because they indicate that only some responsive documents will be produced, since the scope of the requests is broader than the categories of documents that Vimo stated it will produce.  Accordingly, further responses to RPD Nos. 19, 25, and 30 are warranted.

Vimo substantively responded to RPD Nos. 35-37 by stating that it “will produce all non-privileged documents it understands to be responsive to this request in its custody, possession or control.”  These responses are incomplete because the use of the phrase “documents it understands to be responsive to this request” indicates that Vimo may be withholding responsive documents based on its meritless vagueness and ambiguity objection.  Further responses to RPD Nos. 35-37 are therefore warranted.

Vimo substantively responded to RPD No. 13 by stating that it “has conducted a diligent search for the requested documents,” and “there are no responsive documents in its possession, custody or control.”  However, a representation of an inability to comply must affirm that “a diligent search and a reasonable inquiry has been made in an effort to comply with the demand,” and must “specify whether the inability to comply is because the particular items or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party,” and if the item or category is no longer in the possession, custody, or control of the responding party, then the statement must also “set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”  (CCP, § 2031.230.)  Accordingly, Vimo’s statement of an inability to comply with RPD No. 13 is incomplete, and a further response to this request is warranted.

               E.            Conclusion

In sum, all of Vimo’s objections to the RPD are overruled.

Vimo’s substantive responses to RPD Nos. 7 and 38-39, however, are complete and straightforward in and of themselves.  Therefore, no further substantive responses to those requests are warranted, despite the overruling of the objections.  That being said, Vimo’s objections—including its objections on the grounds of attorney-client privilege and the attorney work product doctrine—are overruled.  Therefore, to the extent any documents responsive to RPD Nos. 7 and 38-39 are being withheld on the basis of privilege, Vimo must produce responsive documents.

In addition, Vimo’s substantive responses to RPD Nos. 1-6 and 8-37 are incomplete and/or evasive.  Accordingly further responses to RPD Nos. 1-6 and 8-37 and production in conformity therewith are warranted.

Therefore, to the extent Shannon moves to compel Vimo to provide further responses to the RPD and produce documents in conformity therewith, the motion is GRANTED IN PART and DENIED IN PART.  The motion is GRANTED as to RPD Nos. 1-6 and 8-37.[3]  The motion is DENIED as to RPD Nos. 7 and 38-39.

II.            RFA, SI, and FI

Shannon moves to compel further responses to SI Nos. 1-12, FI Nos. 1.1, 3.1-3.7, 14.1, 17.1, and 50.1-50.6, and RFA Nos. 1-22.

RFA Nos. 1-4, 6-7, 11-15, and 19-22 ask for Vimo to admit to the truth of certain matters related to the Agreement.  RFA Nos. 5, 8-10, and 16-18 ask for Vimo to admit to the truth of certain matters related to the lack of an attorney-client relationship between Vimo and Shannon.

FI No. 1.1 asks for the name, contact information, and relation of persons who prepared or assisted in the preparation of Vimo’s FI responses.  FI Nos. 3.1-3.7 seek general information about Vimo, its current and former name(s), licenses, and registration.  FI No. 14.1 asks if Vimo contends that anyone involved in the dispute at issue in this lawsuit violated any law.  FI No. 17.1 asks for facts supporting any response to the RFA other than an unqualified admission.  FI Nos. 50.1-50.6 seek information about any agreement alleged in the pleadings.

SI Nos. 1-4 seek information supporting Vimo’s allegation that an attorney-client relationship existed between it and Shannon. SI No. 5 asks for information regarding other attorneys who performed legal services for Vimo.  SI Nos. 6-7, 9-10, and 12 ask for the identities of certain individuals.  SI No. 8 seeks information about damages.  SI No. 11 seeks information about Plaintiff’s termination.

Vimo responded to the RFA, FI, and SI with objections and substantive responses.

Shannon argues that further responses to the RFA, FI, and SI are warranted because Vimo’s objections lack merit and its substantive responses are incomplete and/or evasive.

Vimo opposes the motion, arguing that its attorney-client privilege and attorney work product objections have merit.

               A.           Legal Standard

If a party demanding a response to an interrogatory or request for admission deems an answer to a particular interrogatory or request for admission as incomplete or evasive, or an objection in the response to be without merit or too general, that party may move for an order compelling further response.  (CCP, §§ 2030.300, subd. (a) & 2033.290, subd. (a).)  The objecting party bears the burden of explaining and justifying the objection.  (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221 [“Coy”].)

               B.           Vimo’s Objections

Vimos objected to the RFA, FI, and SI on the grounds of vagueness and ambiguity (RFA Nos. 1-5, 7-8, 10, & 16-17, FI No. 14.1, 17.1, & 50.1-50.6, and SI Nos. 2 & 8), attorney-client privilege and/or attorney work product doctrine (RFA Nos. 2-4, 8, 12-14, & 18, FI No. 14.1, 17.1, & 50.1-50.6, and SI Nos. 1-22), relevance (RFA Nos. 3, 5, 8, 10, 12-14, & 16-18, FI No. 3.7, and SI Nos. 1-22), assumes facts not in evidence (RFA Nos. 4 & 20-22, and FI No. 50.3-50.6), privacy (RFA No. 4), “improperly seeks to authenticate a portion of a writing without providing a copy of the writing itself” and “seeks to require [Vimo] to make a line by line comparison of the quoted text with another document” (RFA Nos. 6-7, 9, & 11), “the document speaks for itself” (RFA Nos. 6-7, 9, 11, 14, & 19), calls for a legal conclusion (RFA Nos. 8 & 19-22, and FI No. 50.1-50.6), compound (RFA No. 10 and SI Nos. 1-22), duplicity (RFA No. 13 and FI No. 17.1), and undue burden (RFA No. 18, FI Nos. 3.7 & 17.1, and SI Nos. 1-22).

The only objections that Vimo attempts to justify are the attorney client privilege and attorney work product doctrine objections.  Since Vimos does not attempt to justify the other objections, those objections are overruled.  (See Coy, supra, at pp. 220-221.)

Turning to the attorney work product doctrine objection, by the RFA, FI, and SI, Shannon seeks to discover information that Vimo asserts is Shannon’s own work product.  As set forth in detail above, the attorney—not the client—may claim or waive work product protection.  (See Lohman v. Super. Ct., supra, 1 Cal.App.3d, at pp. 100-101.)  Accordingly, Vimo cannot refuse to disclose information to Shannon on the basis of the attorney work product doctrine.  Therefore, the attorney work product doctrine objection is overruled.

As for the attorney-client privilege objection, Vimo bears the initial burden to demonstrate that the discovery sought encompasses confidential communications between it and its counsel.  (See Costco, supra, at p. 733.)  However, Vimo proffers no preliminary facts to demonstrate that the discovery seeks communications made in the course of an attorney-client relationship.  Further, the RFA, FI, and SI do not ask for information regarding communications between Vimo and its counsel.  At most, the discovery sought may encompass facts referenced in communications between Vimo and its attorney.  The attorney-client privilege only protects confidential communications between an attorney and a client, and a party “may not shield facts, as opposed to communications, from discovery” by asserting the privilege, and “[a]ny relevant fact may not be withheld merely because it was incorporated into a communication involving an attorney.”  (Zurich American Ins. Co. v. Super. Ct., supra, 155 Cal.App.4th, at p. 1504.)  Therefore, Vimo has not met is initial burden to demonstrate that the discovery sought by the RFA, FI, and SI is subject to the attorney-client privilege.  Thus, the attorney-client privilege objection is overruled.

In sum, each of Vimo’s objections to the RFA, FI, and SI are overruled.

               C.           Vimos’s Substantive Responses

                              1.            Responses to the RFA

Responses to requests for admission must be as complete and straightforward as the information reasonably available to the responding party permits.  (CCP, § 2033.220.)  A response to a request for admission must admit so much of the matter as is true, either as expressed in the request or as reasonably and clearly qualified by the responding party, deny so much of the matter that is untrue, or specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.  (CCP, § 2033.220, subd. (b).)  A denial, however, must be unequivocal.  (See American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern Calif. (2005) 126 Cal.App.4th 247, 268.)

Vimo substantively responded to RFA Nos. 1, 8, 13-15, and 17 by either admitting the truth of a portion of the matter and stating a narrative, or by admitting the truth of a different matter.  These responses are incomplete and evasive because they do not admit the truth of the matter either as stated in the request or contain a reasonable and clear qualification by Vimo.  Accordingly, further responses to RFA Nos. 1, 8, 13-15, and 17 are warranted.

Vimo substantively responded to RFA Nos. 2, 4, 6-7, 9, and 11 by stating that it “lacks the ability to either admit or deny this request,” and stating that “if [Shannon] would like [Vimo] to admit the genuineness of a document, then [Shannon] should use the procedure set forth in [CCP] section 2033.060(g).”  However, where “the responding party gives lack of information or knowledge as a reason for failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable the party to admit the matter.”  (CCP, § 2033.220, subd. (c).)  Since Vimo did not state that it lacks information or knowledge as a reason for failing to admit all or part of RFA Nos. 2, 4, 6-7, 9, and 11, and since Vimo did not state that it made a reasonable inquiry regarding the matters described in these requests, Vimo’s responses to RFA Nos. 2, 4, 6-7, 9, and 11 are incomplete, and further responses are warranted.

Vimo substantively responded to RFA Nos. 3, 10, and 19 by stating that it “neither admits nor denies this request.”
Since these responses are not admissions, denials, or statements that Vimo lacks sufficient information or knowledge to admit to the truth of the matters described in these requests, they are incomplete.  Therefore, further responses to RFA Nos. 3, 10, and 19 are warranted.

Vimo substantively responded to RFA No. 5 by denying a portion of the request, and stating a narrative.  Since Vimo’s substantive response to RFA No. 5 leaves a portion of the request unanswered, this response is incomplete.  (See American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. of Southern Calif., supra, 126 Cal.App.4th, at p. 268 [a response to a request for admission is incomplete if denies a portion of the request and leaves the remaining portion unanswered].)  Accordingly, a further response to RFA No. 5 is warranted.

Vimo substantively responded to RFA No. 12 by admitting the truth of the matter, and making a reasonable and clear qualification about the scope of the response.  Vimo substantively responded to RFA Nos. 16, 18, and 20-22 by denying the truth of the matter.  Since an unqualified denial is a complete response to a request for admission, Vimo’s responses to these requests are code-compliant and further responses to RFA Nos. 12, 16, 18, and 20-22 are not warranted.

Thus, Vimo’s responses to RFA Nos. 12, 16, 18, and 20-22 are complete and straightforward, but its responses to RFA Nos. 1-11, 13-15, 17, and 19 are incomplete and/or evasive.  Accordingly, further responses to RFA Nos. 1-11, 13-15, 17, and 19 are warranted.

                              2.            Responses to the FI and SI

Responses to interrogatories must be as complete and straightforward as the information reasonably available to the responding party permits.  (CCP, § 2030.210.)  A substantive response to an interrogatory must either provide the information sought by the interrogatory, or make a statement of an inability to comply.  (CCP, § 2030.210, subd. (a).)

Vimo substantively responded to SI Nos. 1-12 and FI Nos. 1.1, 3.1-3.6, 14.1, and 50.1-50.6 by providing the information sought by the request.  Since these responses provide the information sought, they are complete, and no further responses to SI Nos. 1-12 and FI Nos. 1.1, 3.1-3.6, 14.1, and 50.1-50.6 are warranted.

In response to FI No. 3.7, Vimo stated that it would be unduly burdensome and oppressive for it to provide the information sought.  Even though Vimo characterizes this statement as a substantive response, it is nothing more than objection.  As discussed above, the undue burden and oppressive objection is overruled.  Since this response does not provide the information sought by the interrogatory or make a statement of an inability to comply with the request, a further response to FI No. 3.7 is warranted.

Vimo substantively responded to FI No. 17.1 by providing some factual information regarding RFA Nos. 2, 4, 8, 10, 16, and 18.  Since Vimo did not respond to RFA Nos. 1-22 with an unqualified admission, a complete response to FI No. 17.1 necessarily requires Vimo to provide supporting factual information (i.e. (a) the number of the RFA request at issue, (b) all facts upon which Vimo’s response is based, (c) the name, address, and telephone numbers of all persons with knowledge of those facts, and (d) the identity of any document and tangible thing that supports the response, and the name, address, and telephone number of the person who has each document or thing) with respect to each of its RFA responses.  However, Vimo did not provide any information to support its response to RFA Nos. 1, 3, 5-7, 9, 11-15, 17, and 19-22, and therefore, its response to FI No. 17.1 is incomplete.  Furthermore, the information that Vimo provided with respect to RFA Nos. 2, 4, 8, 10, 16, and 18 does not include the names and contact information of persons with knowledge of the facts or identity persons who possess supporting documents.  Therefore, Vimo’s response to FI No. 17.1 with respect to RFA Nos. 2, 4, 8, 10, 16, and 18 is also incomplete.  Moreover, as discussed above, further responses to RFA Nos. 1-11, 13-15, 17, and 19 are warranted.  If Vimo’s further responses to those requests are responses other than unqualified admissions, then Vimo must also provide a further response to FI No. 17.1 with respect to those RFA requests.  Therefore, a further response to FI No. 17.1 is warranted.

Accordingly, Vimo’s responses to SI Nos. 1-12 and FI Nos. 1.1, 3.1-3.6, 14.1, and 50.1-50.6 are complete, and no further responses are warranted.  However, Vimo’s responses to FI Nos. 3.7 and 17.1 are incomplete, and further responses to those interrogatories are warranted.

D.           Conclusion

All of Vimo’s objections to the RFA, FI, and SI are overruled.

Vimo’s substantive responses to RFA Nos. 12, 16, 18, and 20-22, SI Nos. 1-12, and FI Nos. 1.1, 3.1-3.6, 14.1, and 50.1-50.6 however, are complete and straightforward in and of themselves.  Therefore, no further substantive responses to those requests are warranted, despite the overruling of the objections.

Vimo’s substantive responses to RFA Nos. 1-11, 13-15, 17, and 19, and FI Nos. 3.7 and 17.1 are incomplete and/or evasive.  Accordingly, further responses to these discovery requests are warranted.

Therefore, to the extent Shannon moves to compel further responses to the RFA, SI, and FI, the motion to compel is GRANTED IN PART and DENIED IN PART.  The motion is GRANTED as to RFA Nos. 1-11, 13-15, 17, and 19, and FI Nos. 3.7 and 17.1.  The motion is DENIED as to RFA Nos. 12, 16, 18, and 20-22, SI Nos. 1-12, and FI Nos. 1.1, 3.1-3.6, 14.1, and 50.1-50.6.

III.           Requests for Monetary Sanctions

               A.           Shannon’s Request

Shannon requests an award of monetary sanctions against Vimo in the amount of $14,175, and cites CCP section 2031.310, subdivision (h) as authorizing such an award.  That provision only authorizes monetary sanctions in connection with a motion to compel further responses to requests for production of documents.

Since Shannon does not provide a legal basis for the Court to award monetary sanctions in connection with the motion to compel to the extent he seeks further responses to the RFA, FI, and/or SI, an award of monetary sanctions in connection with the RFA, FI, and SI is unwarranted.

As for the request for an award of monetary sanctions in connection with the motion to compel further responses to the RPD, a court must impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel a further response to requests for production of documents, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (See CCP, § 2031.310, subd. (h).)

Here, Vimo’s opposition to the motion to compel further responses to the RPD is largely unsuccessful, since the motion is granted with respect to 36 of the 39 discovery requests at issue.  Therefore, Vimo did not act with substantial justification in opposing the motion.  The Court finds no other circumstances exist that would make the imposition of a monetary sanction unjust.  Accordingly, an award of monetary sanctions is warranted.

Shannon submits declarations from two attorneys in support of its request for monetary sanctions.  In the first declaration, Shannon’s attorney Brian D. Berry (“Berry”) declares that his regular hourly rate is $375, and that he has spent “more than 7 hours ($2,765) in assisting with the preparation of this motion to compel and supporting papers,” and “estimate[s] that [he] will spend an additional 8 hours ($3,160) in reviewing Vimo’s opposition, assisting with the preparation of a reply, and appearing at the hearing on this motion.”  (Berry Decl., ¶ 17.)  Shannon’s other counsel, Ellyn Nesbit (“Nesbit”), declares to bill at a rate of $250 per hour, and states that she has “expended more than 25 hours ($6,250) in preparing this motion to compel,” and “estimate[s] that [she] will expend at least an additional 8 hours ($2,000) in reviewing Vimo’s opposition, preparing a reply, and appearing at the hearing on this motion.”  (Nesbit Decl., ¶ 2.)

Courts will only award monetary sanctions in the amount of “reasonable expenses . . . incurred by anyone as a result of [the sanctionable] conduct.”  (CCP, § 2023.030, subd. (a).)  While the Court finds counsels’ hourly rates to be reasonable, the amount of time spent preparing the motion is not.  Furthermore, the time the attorneys anticipate spending to review the opposing papers, prepare the reply papers, and appear at the hearing on this motion have not been “incurred,” and therefore, will not be included in the award of monetary sanctions.  (See Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551 [courts only award sanctions for expenses actually incurred, not anticipated expenses].)  The Court finds 1 hour to be a reasonable amount of time for Berry to have spent ($375 x 1 hour = $375), and 5 hours to be a reasonable amount of time for Nesbit to have spent ($250 x 5 hours = $1,250), in connection with the motion to compel further responses to the RPD.

Accordingly, Shannon’s request for an award of monetary sanctions against Vimo is GRANTED IN PART in the amount of $1,625.

B.           Vimo’s Request

Vimo requests an award of monetary sanctions against Shannon in the amount of $3,750, and cites CCP section 2031.310, subdivision (h) as authorizing such an award.

Since Shannon’s motion—to the extent he seeks further responses to the RPD—is largely successful, an award of monetary sanctions against Shannon in connection with the motion to compel further responses to the RPD is not warranted.  (See CCP, § 2031.310, subd. (h) [authorizing an award of monetary sanctions against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to requests for production of documents].)

Furthermore, since Vimo does not cite any legal basis for the Court to award monetary sanctions in connection with the motion to compel further responses to the RFA, FI, and SI, the Court finds an award of monetary sanctions against Shannon in connection with the motion to compel further responses to the RFA, FI, and SI is not warranted.

Therefore, Vimo’s request for an award of monetary sanctions against Shannon is DENIED.

 

 

 

Conclusion and Order

Shannon’s motion to compel further responses to the RPD, RFA, FI, and SI is GRANTED IN PART and DENIED IN PART.

The motion is DENIED to the extent Shannon seeks an order compelling Vimo to provide further responses to RPD Nos. 7 and 38-39, RFA Nos. 12, 16, 18, and 20-22, SI Nos. 1-12, and FI Nos. 1.1, 3.1-3.6, 14.1, and 50.1-50.6.

The motion is GRANTED to the extent Shannon seeks an order compelling Vimo to provide further responses to RPD Nos. 1-6 and 8-37, RFA Nos. 1-11, 13-15, 17, and 19, and FI Nos. 3.7 and 17.1, without objection, and to produce all documents responsive to the RPD, without objection.  Accordingly, within 20 days of the date of the filing of this Order, Vimo shall provide verified code-compliant further responses to RPD Nos. 1-6 and 8-37, RFA Nos. 1-11, 13-15, 17, and 19, and FI Nos. 3.7 and 17.1, without objection, and produce all documents in conformity with the responses to the RPD.  Vimo shall also produce documents responsive to RPD Nos. 7 and 38-39 that it withheld on the basis of privilege within 20 days of the date of the filing of this Order.

Shannon’s request for an award of monetary sanctions against Vimo is GRANTED IN PART in the amount of $1,625.  Accordingly, within 20 days of the date of the filing of this Order, Vimo shall pay $1,625 to Shannon’s counsel.

Vimo’s request for an award of monetary sanctions against Shannon is DENIED.