2015-00185641-CU-PO

Rebecca Hammons vs. Sunrise of Carmichael

Nature of Proceeding: Motion for Reconsideration

Filed By: Jay, Daniel

Plaintiff Rebecca Hammons, et al.’s motion for “reconsideration, reallocation of costs and motion for protective order” is denied.

On February 9, 2018, this Court issued an order granting Plaintiffs’ motion to compel the deposition of Defendants Sunrise Senior Living Management, Inc.’s (“SSLMI”) PMK re: Resident and Employee Surveys and Reports. The Court issued an order on SSLMI’s motion for protective order and ruled that while Plaintiff was entitled to obtain the documents from SSLMI, the data needed to be translated from back-up tapes and Plaintiff was required to bear the costs associated with the translation pursuant to CCP

§ 2031.280(e). The Court ordered the parties to meet and confer on the translation process. After oral argument, the Court affirmed the rulings without prejudice to Plaintiff filing a motion to re-allocate costs.

In the instant motion Plaintiffs argue that Defendants have failed to provide the necessary information which would allow them to obtain estimates from vendors for the translation. They also request a protective order allowing a neutral third party to restore the back-up tapes and to conduct the search for responsive electronic stored information “ESI” once the tapes have been restored.

SSLMI is correct in opposition that, technically, Plaintiffs have not met the requirements under CCP § 1008 for a motion for reconsideration, but this does not require denial of the motion outright. Indeed, the Court’s previous ruling specifically authorized Plaintiff to bring a motion to reallocate costs.

Plaintiffs’ request that costs be reallocated pursuant to this Court’s “inherent” power under CCP §§ 128 and 187 is denied. Plaintiffs’ sole basis for this request is their contention that Defendants delayed in responding to seven questions that vendors asked regarding the translation process which prevented them from timely obtaining estimates. This is not a basis to reallocate the translations costs to Defendants. Indeed, the subject order regarding translation costs was issued on February 9, 2018. Plaintiffs’ counsel posed the questions to Defendants’ counsel by way of a letter dated February 13, 2018. The papers reveal that Defendants provided all the required information by February 23, 2018, ten days later. This 10 day delay is not the “significant delay” that Plaintiffs make it out to be. The information was provided in a reasonable time. The fact that the discovery cut-off is March 23, 2018 or that trial is set for April 23, 2018, does not change the result. Nothing prevents Plaintiffs from seeking a trial continuance in the event more time is needed to conduct discovery. Moreover, where, as this Court has already found, that translation of the data is necessary, the Court has no discretion to reallocate costs pursuant to its inherent authority under CCP §§ 128 and 187. (Toshiba American Electronic Components v. Superior Court (2004) 124 Cal.App.4th 762, 772.)

As the Court previously noted, in Toshiba, the propounding party argued that the cost-shifting was discretionary, and the Court stated that “the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state. By enacting the cost-shifting clause of section [2031.280(e)] our Legislature has identified the expense of translating data compilations into usable form as one that, in the public’s interest, should be placed on the demanding party. That is, [§ 2031.280(e)] is a legislatively determined exception to the general rule that the responding party should bear the cost of responding to discovery.” (Id. at 772.) The Court only has the power to determine only whether translation is necessary and whether the translation costs are reasonable. The Court has already found that translation is necessary and no argument is presented here to the contrary nor is there any argument that translations costs are unreasonable. Contrary to Plaintiffs’ suggestion in reply, CCP § 2031.060(b)(4) which provides that a protective order may state that inspection may be made on specific terms and conditions, does not somehow trump the more specific provision requiring they bear translation costs in CCP § 2031.280(e). The motion to reallocate is denied.

Plaintiffs’ additional request for a “protective order allowing a neutral third-party to not only restore the back-up tapes but to also to [sic] conduct the search for [ESI] once the back-up tapes have been restored” is denied. Plaintiffs argue that this is the only way in which they can be assured that the search is correctly done and that all responsive documents produced. The Court rejects this argument. First, with respect to this

portion of the motion, it is an improper request for reconsideration pursuant to CCP § 1008. With respect to the Court’s previous orders regarding this matter, the Court only provided that Plaintiff could file a motion to reallocate costs. Yet, Plaintiffs now request that the Court modify the previous orders to include a requirement that a neutral third party conduct the search from the translated information. The previous order made clear that Plaintiffs were required to bear the costs associated with translation of the requested information pursuant to CCP § 2031.280(e). The order dealt simply with translation, not searching the data once translated. The Court must also note that the order addresses Plaintiffs’ suggestion that Defendants could just submit the information to Plaintiffs in PST format and that they would take responsibility for translating, searching and retrieving relevant emails. The Court rejected that proposal because it would prevent Defendants from searching the emails for private/privileged information. There are no new or different facts, circumstances or law which would allow this Court to modify the February 9, 2018, order to include a provision that the third party that translates the data also conduct the search. Plaintiffs’ suggestion that Defendants have changed their position regarding searching the information is rejected. Defendants have never indicated that it would not be responsible for the search process. While they indicated that they did not have the capacity to conduct the search in house, this does not mean that they were indicating that a neutral third party would conduct the search. A court “acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

In any event, even if the request for a protective order was not an improper request for reconsideration, if would be denied on the merits. Plaintiffs essentially ask the Court to require Defendants to enter a “triangle agreement” where the vendor acts as a neutral and conducts the search of the documents and then returns the results to Defendants for review and potential redaction while at the same time providing a report to Plaintiffs’ counsel as to the number of documents produced as a result of the search. Plaintiffs assert that the vendor acts as a neutral so the parties can determine the amount of documents generated by the search in comparison to what was ultimately produced to ensure that the search was done correctly. Where, as is the case here, the Court found that translation of data was necessary, the statute only requires that the demanding party bear the costs for the translation. (CCP § 2031.280(e).) There is no provision in the statute for the demanding party to be involved in the search process once the data has been translated and Plaintiffs provide no authority for such an order. Again, the Court only ordered Plaintiffs to bear translation costs. Plaintiffs’ arguments regarding the fact that Defendants’ initial cost estimates for translating the data included search costs are irrelevant as Plaintiffs have not been ordered to pay search costs and as set forth above, Defendants are in control of the search of their own documents once translated into readily usable form. There is no authority which allows Plaintiffs to interject themselves or a neutral into the search process. If there were, then every document request could potentially be subject to such a process based on the fear that the responding party would never actually produce the requested information. Further, as mentioned above, the Court already addressed the problems with allowing Plaintiffs (or for that matter anyone other than Defendants) to conduct the search as it would preclude Defendants from identifying potentially privileged information. Allowing even a neutral to search Defendants’ documents could potentially breach attorney-client privilege.

In reply, Plaintiffs cite to an unpublished non-binding federal case from New York discussing the possibility that searches for email by way of keyword searching does

not necessarily guarantee a sufficient search will be run. (National Day Laborer Organizing Network v. U.S. Immigration & Customs Enforcement Agency (S.D. NY 2012) 877 F.Supp.2d 87, 108-110.) Of course, lower federal court decisions on federal questions are persuasive authority, but they are not binding on the court. ( Credit Managers Assn. of California v. Countrywide Home Loans, Inc. (2006) 144 Cal.App.4th 590, 598.) The non-binding case from New York has no application here and in any event did not involve a proposed neutral conducting a search. Further, this Court must note that the decision discussed the parties discussing and agreeing upon search terms which the parties here are encouraged to do.

The motion is denied in its entirety.