2012-00133622-CU-CO

Pengjen Chen vs. Kevin Chang

Nature of Proceeding:    Motion to Compel Compliance with Demand for Production

Filed By:  Wayland, Gregory P.
**If any party requests oral argument, then at the time the request is made, the
requesting party must inform the court and opposing counsel of the specific
issue(s) for which oral argument is sought.**

Defendant Kevin Chang’s (“Chang”) motion to compel production of documents is
GRANTED in part and DENIED in part as follows:

This case arises from a real estate deal that went awry.  The deal was negotiated in
2006 and 2007.  Plaintiff Pengjen Chen (“Chen”) is suing Chang for fraud and breach
of contract.

On March 19, 2014, Chang propounded document requests seeking, among other
things, e-mail communications about the deal and bank records evidencing Chen’s
payment vel non pursuant to the deal.  Chen did not serve timely responses and thus
waived all objections.  After Chang’s counsel commenced the meet-and-confer
process, Chen served responses and produced some responsive documents in
piecemeal fashion.  Absent from the production, however, were e-mails dated between
2006 and 2008 as well as any cancelled checks.  Counsel continued the meet-and
confer process.  Chen asserted that his computer consultant had performed a search
for the e-mails in question, but the search did not reveal and e-mails related to the
deal.

Chang filed the instant motion on May 29, 2014.  Since then, Chen has produced the
cancelled checks.  He purports to object that the checks were equally available to
Chang.  The court rejects that position because all objections were waived.  Chen
further asserts that he was diligent in searching for the documents because he
requested them from his bank but the bank’s search took time.  According to Chen, the
bank initially represented that the records were unavailable given their age, but the
bank subsequently located the records.  Chang acknowledges receipt of the checks
but seeks monetary sanctions on grounds that only the filing of this motion induced
Chen to produce the checks.

With respect to the e-mails, Chen maintains his position that he complied with the
Discovery Act by causing his computer consultant to perform a search for e-mails
related to the deal.  (The consultant performed a search on Chen’s business e-mail
account under the term “Elko,” which is the name of the property.)  Chang counters
that additional searches should be performed on other accounts that Chen used during
the relevant period.  Chang also asserts that Chen should be required to use additional
search terms in an effort to locate any e-mails between 2006 and 2008.

With respect to the e-mails, the court agrees with Chang.  Chen waived all objections,
and it appears reasonably likely that communications related to the deal were made on
e-mail accounts other than Chen’s business account.  It also appears reasonably likely
that such e-mails were created without the term “Elko” and, therefore, that additional
search terms should be used to locate responsive e-mails.

No later than July 11, 2014, Chen shall search each of his e-mail accounts or cause to
be them to be searched in an effort to locate e-mails regarding the deal.  (See Chang
Decl., ¶ 3 for a non-exhaustive list of e-mail accounts used by Chen.)  In searching
these accounts, Chen and/or his agents shall use all the search terms listed on the first
page of defense counsel’s meet-and-confer letter dated May 8, 2014.  (See Wayland
Decl., Exh. 5.)  Chen shall produce all responsive e-mails no later than July 18, 2014.
At the time Chen produces the e-mails, if any, he and/or his agents performing the
search(es) shall serve one or more declarations explaining exactly what search(es)
was/were performed and the results of the search(es).

The court DENIES Chang’s request for monetary sanctions in conjunction with Chen’s
delayed production of cancelled checks.  Contrary to Chang’s assertion, Chen
attempted to obtain these records from his bank before this motion was filed.  (See
Wayland Decl., Exh. 4.)

The court does impose a monetary sanction, however, in connection with Chen’s
opposition to the portion of the motion aimed at obtaining additional e-mails.  Chen did
not perform a reasonably diligent search for responsive e-mails, and his Opposition to
the contrary lacks substantial justification.  The fact that he hired a computer expert to
search a single account with a single search term does not alter the court’s conclusion,
and thus the circumstances do not make the imposition of a monetary sanction unjust.

No later than July 25, 2014, Chen shall pay a monetary sanction to Chang in the
amount of $360 (1.5 hrs @ reasonable rate of $200/hr + $60 filing fee.)  If Chen fails to
pay the sanction by such date, then Chang may lodge for the court’s signature a formal
order awarding sanctions, which may be enforced as a separate judgment.  (See
th
Newland v. Superior Court (1995) 40 Cal.App.4    608, 615.)

Chang’s request for judicial notice is UNOPPOSED and GRANTED.

The court disregards all documents filed subsequent to the Reply, as the Code of Civil
Procedure does not expressly permit such documents to be filed.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.