17-CIV-03086 REBECCA SNELL vs. PATRICIA FRANCO-BROWN, et al.

REBECCA SNELL PATRICK BALDWIN

PATRICIA FRANCO-BROWN timothy mcfarlin

Motion of Plaintiff and Cross-Defendant Rebecca Snell (“Plaintiff”) to Compel Further Responses to Requests for Production of Documents and Monetary Sanctions from Defendant and Cross-Complainant Ralph David Brown

TENTATIVE RULING:

Plaintiff/Cross-Defendant Rebecca Snell’s Motion to Compel Further Responses to Requests for Production of Documents, served on Defendant Ralph Brown, is GRANTED-IN-PART and DENIED-IN-PART, as set forth below.

The Court notes that Snell has not filed a proper Notice of Motion. Although the Court has ruled on this motion on the merits, Snell is admonished to comply with the strictly Notice of Motion requirement going forward.

As to Request Nos. 2-3, which seek tax-related documents, the motion is GRANTED-IN-PART. Privacy rights pertaining to personal financial information, including tax returns, are not absolute; the Court balances them against the need for the discovery. See, generally, Valley Bank of Nevada v. Superior Court, (1975) 15 Cal. 3d 652, 657. Here, any evidence that the gold bars exist or ever existed, including any reference to them in tax-related documents, is directly relevant to the case. Thus, the privacy objection is SUSTAINED-IN-PART and OVERRULED-IN-PART. To the extent any responsive documents exist, Brown’s privacy concerns are adequately addressed by (a) producing only responsive documents that reference the gold bars, or otherwise shed light on the existence or non-existence of the gold bars, (b) as to any responsive documents that are produced, Brown may redact any sensitive information that does not pertain to, or reference, the gold bars, and (c) if Brown chooses, documents may be produced pursuant to a protective order.

Browns appears to contend, however, that he has no responsive documents in his possession, custody or control. Brown is correct that he cannot produce documents that do not exist, or that are not within his control. Even if that is the case, however, Brown’s responses are not code compliant. Code Civ. Proc. Sect. 2031.230 states that “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item 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. The statement shall 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.”

Brown shall serve further responses to Request Nos. 2-3 that fully comply with Sect. 2031.230. In addition to the required statement regarding conducting a diligent search, the responses must state whether any responsive documents ever existed, what happened to them, who has them, etc. See Sect. 2031.230.

As to Request Nos. 4, 6-9, 24, 35-36, and 52, the motion is GRANTED-IN-PART. The objections lack merit and are OVERRULED. The requested documents are relevant to establishing whether the gold bars exist or ever existed. The same analysis discussed above with respect to Sect. 2031.230 applies. The responses are not code-compliant. Brown shall serve further responses that fully comply with Sect. 2031.230 (the responses must state whether any responsive documents ever existed, what happened to them, who has them, etc.).

As to Request Nos. 5, the motion is GRANTED-IN-PART. The objections lack merit and are OVERRULED. The requested documents are relevant. The same analysis discussed above with respect to Sect. 2031.230 applies. The response is not code-compliant. Browns shall serve further responses that fully comply with Sect. 2031.230.

As to Request Nos. 10-16, the motion is GRANTED-IN-PART. The same discussed above as to Request Nos. 2-3 applies. To the extent any responsive documents exist, privacy concerns are adequately addressed by (a) producing only responsive documents that reference the gold bars, or otherwise shed light on the existence or non-existence of the gold bars, (b) as to any documents produced, Brown may redact any sensitive information that does not pertain to, or reference, the gold bars, and (c) if Browns chooses, documents may be produced pursuant to a protective order.

Even if Brown contends that no responsive documents exist, or are not within his possession, custody, or control, Brown’s responses do not comply with Sect. 2031.230, for the same reasons discussed above. Brown shall serve further responses to Request Nos. 10-16 that fully comply with Sect. 2031.230.

As to Request Nos. 40-42, the motion is GRANTED-IN-PART. The requested documents are relevant. The objections are OVERRULED. For the same reasons discussed above, the responses do not code-compliant. Brown shall serve further responses that fully comply with Sect. 2031.230.

As to Request No. 1, the motion is GRANTED. Brown shall serve a further response that fully complies with Sect. 2031.230.

As to Request Nos. 23, 32-33, the motion is GRANTED-IN-PART. The requested documents are relevant. The objections are OVERRULED. For the same reasons discussed above, the responses are not code-compliant. Brown shall serve a further response that fully complies with Sect. 2031.230.

As to all of the document requests at issue, if Brown contends any responsive documents exist that are attorney-client privileged or work product, they must be identified on a privilege log, and the log produced to Snell.

Snell’s request that the Court compel production of the documents (including Snell’s request that any documents produced after 1-22-18 be barred from use at trial), as distinguished from compelling further responses to the Requests, is DENIED. The motion is characterized as a motion to compel further responses (see Code Civ. Proc. Sect. 2031.310), not a motion to compel compliance (see Code Civ. Proc. Sect. 2031.320). If Brown fails to produce documents that he promised to produce, Snell’s remedy is a motion to compel compliance under Sect. 2031.320.

Consistent with this Order, Brown shall serve further responses within 10 days of this Order.

Snell’s Request for Judicial Notice is GRANTED. Evid. Code Sect. 452(d).

All requests for sanctions are DENIED.