Case Name: Rutherford Holdings, LLC v. Plaza Del Rey, et al.
Case No.: 1-10-CV-175989

Currently before the Court are the following motions: (1) the motion of defendant Plaza Del Rey (“PDR”) to compel compliance with plaintiff Rutherford Holdings, LLC’s (“Rutherford”) responses to requests for production of documents (“RPD”), set one; (2) Rutherford’s motion to compel defendant Shereen Caswell (“Caswell”) and PDR (collectively, “Defendants”) to comply with a demand for documents pursuant to a deposition notice; (3) Rutherford’s motion to seal portions of its memorandum of points and authority and exhibits filed in support of the motion to compel Defendants to comply with a demand for documents; and (4) Rutherford’s motion to compel PDR to provide further responses to RPD, set one and compliance with its responses.

This is a breach of contract action. In the operative third amended complaint (“TAC”), Rutherford alleges the following: PDR is the owner of a mobile home park located in Sunnyvale, CA. (See TAC, ¶ 6.) Caswell is the alter ego of PDR. (See TAC, ¶ 14.) On May 23, 2008, PDR and Rutherford entered into a written purchase and sale agreement (the “Agreement”) of the mobile home park (the “Property”). (See TAC, ¶ 8.) The Agreement was amended on two separate occasions to extend the closing date of the transaction to January 15, 2009 and then to March 31, 2009. (See TAC, ¶ 8.) Under the terms of the Agreement, Rutherford was required to provide PDR with a $3 million deposit (the “Deposit”), which Rutherford delivered on May 27, 2008. (See TAC, ¶¶ 9-10.) If Rutherford breached any of the terms of the Agreement, PDR was entitled to retain the Deposit as liquidated damages. (See TAC, ¶ 11.) In the event that PDR failed or refused to close escrow, the Deposit was to be refunded to Rutherford. (See TAC, ¶ 11.) In January 2009, Rutherford approached PDR to inquire whether PDR would provide seller financing for the transaction, and PDR indicated that it was open to such financing. (See TAC, ¶ 27.) A few months later, in March 2009, PDR informed Rutherford that it did not want to close before March 31, 2009 due to certain tax issues concerning the estate of Michelle Weiser, a shareholder of PDR and Caswell’s mother, and represented that it would complete the sale at a later date. (See TAC, ¶ 29.) In reliance on this representation, Rutherford did not deliver the purchase price into escrow. (See TAC, ¶ 29.) At a meeting between the representatives of the parties on April 6, 2009, Caswell confirmed that the Agreement was still in effect and represented that Defendants would sell the Property within a reasonable time after they filed their tax returns. (See TAC, ¶ 51.) On October 26, 2009, PDR informed Rutherford that it had breached the terms of the Agreement and stated that it would retain the Deposit as liquidated damages. (See TAC, ¶ 30.) Rutherford asserts causes of action against Defendants for: (1) breach of contract; (2) money had and received; and (3) unjust enrichment.

I. PDR’s Motion to Compel Compliance with Responses to the RPD

PDR moves to compel Rutherford to produce all documents in compliance with its responses to RPD Nos. 1-10, 12-27, 29-31, 33-35 and 39. Pursuant to Code of Civil Procedure section 2031.320, “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling … thereafter fails to permit the inspection, copying, testing or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (Code Civ. Proc., § 2031.320.) All that has to be shown is that the responding party failed to comply with an agreement to produce. (See Code Civ. Proc., § 2031.320, subd. (a); Standon Co., Inc. v. Sup. Ct. (1990) 225 Cal.App.3d 898, 903.)

The RPD at issue seek all documents related to: the Agreement, Deposit, Property, and this action (RPD Nos. 1-6); the financing of the purchase of the Property (RPD Nos. 7-10, 12); the estate tax issues concerning the sale of the Property (RPD No. 13); communications with any governmental entity concerning PDR or the Property (RPD No. 14); the deed of trust encumbering the Property (RPD No. 15); the issuance of title insurance policy to Rutherford for the Property (RPD No. 16); the escrow (RPD No. 17); the reasons the sale of the Property did not close (RPD No. 18); the extensions of the closing date (RPD Nos. 19-20); the April 6, 2009 meeting (RPD No. 21); any oral agreements with Defendants (RPD No. 22); all communications to or from Defendants (RPD No. 23); all communications with any person related to the Agreement, Property, Deposit, PDR or this action (RPD Nos. 24-27, 29-31, 33-35); and any tours attended by Caswell and Patrick Rockler, a managing member of Rutherford, of properties owned by Rutherford (RPD No. 39). Rutherford responded to each of the RPD at issue by objecting on several grounds and stating the following: “With the exception of documents protected by the attorney-client privilege and/or the work product doctrine, if any and [the] tax return[] [privilege], Responding Party will produce all documents responsive to the request[s]….”

PDR claims that through third-party discovery it discovered nine e-mails responsive to the RPD that were never produced. The e-mails concern the drafting of a letter by Verne Murray, Rutherford’s real estate broker, to give to PDR to justify Rutherford’s request for an extension of the closing date of the transaction. (See Withers Decl., Exs. V- CC.) After realizing that Rutherford withheld such documents from the production, PDR reexamined Rutherford’s production and determined that additional responsive documents were likely improperly withheld, including internal e-mails between Rutherford employees in March 2009, e-mails with Mr. Murray between February 1, 2009 and April 1, 2009, e-mails with Mr. Murray regarding the April 6, 2009 meeting, e-mails regarding PDR’s October 26, 2009 letter informing Rutherford of its breach of the terms of the Agreement, and documents concerning the Deposit.

In opposition to the motion, Rutherford first argues that the motion should be stricken because PDR purportedly violated the parties’ stipulated protective order by filing several documents marked confidential in the public record. While the documents at issue were initially designated as confidential by non-party Credit Suisse (USA) Inc. (“Credit Suisse”), Credit Suisse has withdrawn the designation. As such, the filing of the documents does not constitute a violation of the stipulated protected order. Furthermore, even if PDR did file confidential documents in violation of the order, the striking of the motion would not be an appropriate remedy. Accordingly, the Court will not strike the motion on this basis.

Next, Rutherford asserts that it fully complied with its responses to the RPD because it objected on the ground of overbreadth and did not consider the nine e-mails to be directly relevant to the subject matter of this action. This argument lacks merit. While Rutherford’s responses to the RPD contained a number of objections, including one based on overbreadth, its statements of compliance indicated that the only documents it would not produce were documents protected by the attorney-client privilege, the tax return privilege or the work-product doctrine. Here, Rutherford acknowledges that the nine e-mails were not withheld on any of those bases. In addition, Rutherford does not deny that it has withheld other documents it considered not directly relevant to this case. Accordingly, the Court finds that Rutherford has not produced all responsive documents in accordance with its statements of compliance. As such, PDR’s motion to compel Rutherford to comply with its responses to RPD Nos. 1-10, 12-27, 29-31, 33-35 and 39 is GRANTED. Accordingly, within 20 calendar days of the filing of the Court’s order, Rutherford shall produce all documents responsive to RPD Nos. 1-10, 12-27, 29-31, 33-35 and 39 in accordance with its statements of compliance.

Finally, PDR moves the Court for an order permitting its computer-forensics consultant to inspect and search all of Rutherford’s electronic servers and laptops in order to discover all documents that Rutherford may have deleted prior to the commencement of this litigation. In support of this request, PDR principally relies upon Ellis v. Toshiba America Info. Sys., Inc. (2013) 218 Cal.App.4th 853 for the position that a court may order the inspection of an attorney or party’s electronic data when there is evidence of concealment. In Ellis, supra, after preliminary approval of a class action settlement, the defendant served deposition subpoenas on plaintiff’s attorney, Lori Sklar (“Sklar”), for computer data and files relating to her request for attorney’s fees in connection with the settlement. (Id. at p. 858.) Sklar objected and, after a hearing concerning the dispute, the trial court ordered her to attend the deposition and produce the records sought. (Id.) At her deposition, Sklar testified that she could not produce the electronic records sought because she intentionally deleted them. (Id. at p. 859.) The defendant subsequently filed a motion for sanctions, requesting that the trial court permit the defendant’s expert to inspect Sklar’s computer to determine whether the records sought could be recovered. (Id. at p. 860.) The trial court ordered the inspection of the computer and the Court of Appeal affirmed, finding that the order was not an abuse of discretion because Sklar affirmatively represented that she deleted the electronic records sought. (Id. at pp. 861, 881.) Here, an order permitting a forensic inspection of Rutherford’s electronic servers is not warranted. In contrast to Toshiba, supra, PDR has not demonstrated that Rutherford destroyed or deleted any of the documents sought by the RPD. As such, PDR’s request to inspect Rutherford’s electronic servers and laptops is DENIED.

II. Rutherford’s Motion to Compel Defendants to Comply with Document Demand

Rutherford moves to compel Defendants to produce documents requested in a deposition notice served on Caswell. If a deponent fails to produce any document under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that production. (See Code Civ. Proc., § 2025.480, subd. (a).) The party objecting to discovery bears the burden of defending its objections. (See Fairmont Ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.)

On November 26, 2014, Rutherford served the second amended notice of deposition on Caswell, requiring her to produce eight separate categories of documents (the “Demands”). The Demands sought the tax returns for the estate of Michelle Weiser between 2008 and 2011 (Demand Nos. 1-3), all documents relating to the appraisal of the value of the Property (Demand Nos. 4-5), all documents relating to the valuation of the Property for the purposes of the estate tax returns (Demand No. 7), and PDR’s tax returns between 2008 and 2011 (Demand No. 8.) Defendants responded to the Demands with both objections and substantive responses. In its motion, Rutherford expressly narrows its requests to the following categories of documents: the estate tax returns pertaining to Michelle Weiser to the extent they show the valuation of the Property used to calculate the estate taxes and all appraisal reports and related documents concerning the value of the Property.

As a threshold matter, the subject deposition notice is directed solely and exclusively to Caswell. Although PDR interposed objections since some of its records are being sought, the Court may not compel a different party to comply with the deposition notice. Thus, the motion is improper to the extent Rutherford seeks to compel PDR to comply with the deposition notice.

A. Objections

While Defendants asserted a number of objections to the Demands, they only attempt to justify their objections on the grounds of overbreadth, vagueness and ambiguity, the right to privacy, and the tax return privilege. All other objections to the Demands are therefore overruled with the exception of the attorney-client privilege, which is preserved. (See Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221 [burden on responding party to justify objections]; Best Products, Inc. v. Sup. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189 [holding that where a defendant asserted attorney-client privilege in timely manner, albeit in a boilerplate fashion, trial court erred in finding a waiver of privilege].)

1. Overbreath

Defendants contend that the Demands are overbroad as to time because they seek documents that postdate the filing of the litigation in July 2010. Apparently to address this concern, during the meet and confer process, Rutherford narrowed the scope of its requests to the estate tax returns and appraisals between 2008 and June 2009. As currently framed, Defendants do not demonstrate that the Demands are overbroad as to time. Documents relating to the sale and value of the Property between 2008 and 2009 may allow Rutherford to demonstrate that PDR was unwilling to close the transaction until the tax issues with Ms. Weiser’s estate were completed. As such, these documents could assist Rutherford in establishing that PDR made an oral agreement to extend the closing date of the transaction until the resolution of these issues. Accordingly, Defendants’ objections to the Demands on the ground of overbreadth are overruled.

2. Vagueness and Ambiguity

Defendants assert that the Demands are vague and ambiguous. To justify a vague and ambiguous objection, the objecting party must demonstrate that the discovery request is totally unintelligible (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; see also Standon v. Sup. Ct. (1990) 225 Cal.App.3d 898, 903 [vague and ambiguous objection considered nuisance objection].) As the Demands are not totally unintelligible, the objections on the ground of ambiguity are overruled.

3. Right to Privacy

Defendants contend that the Demands intrude upon PDR and Caswell’s right to privacy. The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Sup. Ct. (2007) 40 Cal.4th 360, 370.) It is well established that the right to privacy extends to a person’s financial affairs. (See Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 658.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 850; see also Binder v. Sup. Ct. (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been shown, the proponent of discovery must demonstrate that the information sought is not available through less intrusive means. (See Allen v. Sup. Ct. (1984) 151 Cal.App.3d 447, 449.) The court must then carefully balance the right to privacy on the one hand and the right of civil litigants to discover facts on the other. (See Pioneer Electronics, Inc., supra, 40 Cal.4th at p. 371.)

While there is no dispute that the right to privacy is implicated with regard to Caswell, Rutherford contends that the estate tax and appraisal information is nonetheless essential to rebut Defendants’ contention that PDR was ready, willing and able to close the transaction. Rutherford reasons that the tax documents and appraisals might show that Caswell secured an unreasonably low appraisal of the Property, which would support Rutherford’s theory that PDR was unwilling to close the transaction until after the revaluation of the Property for tax purposes in June 2009. This argument lacks merit. While the tax returns and appraisals might lead to admissible evidence, they will not prove or disprove that Defendants were not ready, willing and able to close the transaction in March 2009. (See Binder v. Sup. Ct., supra, 196 Cal.App.3d at p. 901; Evid. Code, § 210 [party seeking discovery that intrudes upon an individual’s right to privacy must make a particularized showing that the information sought has a tendency in reason to prove or disprove any fact of consequence to the determination of the action].) As such, this information is not directly relevant to a claim or defense in this action and Caswell’s objections on this ground are sustained.

With regard to PDR, the right to privacy does not generally apply to corporations. (See Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 775 [holding that corporations have no right to privacy under the California Constitution].) However, under certain circumstances, a corporation may have a protectable privacy interest depending on the strength of the nexus between the intrusion into the corporation’s affairs and any ancillary intrusion into the privacy rights of the members of the corporation. (Id. at pp. 796-797 [finding corporation had no privacy interest in financial documents related to tax assessment].) Here, PDR makes no showing that there is a particularly strong nexus between the alleged intrusion into its affairs and a concomitant intrusion into the privacy rights of the members of the corporation. As such, it does not establish a protectable privacy interest under the present circumstances and PDR’s objections on the basis of the right to privacy are therefore overruled.

4. Tax Return Privilege

Taxpayers are privileged to withhold copies of their federal and state tax returns from disclosure. (See Webb v. Standard Oil Co. (1957) 49 Cal.2d 509, 513.) The purpose of the tax return privilege “is to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes.” (Id.) The privilege extends to the tax return and specific entries therein, as well as documents that must be attached to, and constitute an integral part of, the return. (See Sav-On Drugs, Inc. v. Sup. Ct. (1975) 15 Cal.3d 1, 4-5.) While the tax return privilege is not absolute, it is waived or does not apply only in the following three situations: (1) there is an intentional relinquishment of the privilege; (2) the gravamen of the lawsuit is so inconsistent with the continued assertion of the taxpayer’s privilege as to compel the conclusion that the privilege has in fact been waived; or (3) a public policy greater than that of confidentiality of the tax returns is involved. (See Schnabel v. Sup. Ct. (1993) 5 Cal.4th 704, 721.)

First, while Rutherford acknowledges that the documents requested by the Demands constitute an integral part of the return, it contends that the relevance of the discovery requested overcomes the privilege. This argument is not persuasive. A mere showing of relevance, on its own, is insufficient to overcome the privilege. (See Schnabel, supra, 5 Cal.4th at p. 721.) Second, Rutherford contends that PDR waived the privilege because it did not object on this ground to another discovery request. A waiver of the tax return privilege may only be accomplished by the holder of the privilege. (See Coate v. Sup. Ct. (1978) 81 Cal.App.3d 113, 115.) Here, Caswell, as the administrator of her mother’s estate, is the holder of the privilege and, as such, the lack of an objection by PDR does not waive the privilege. Finally, Rutherford argues that PDR waived the tax return privilege by producing a 2008 appraisal of the Property that relied upon the valuation of the estate. Once again, PDR may not waive the privilege on behalf of Caswell. (See id.) In any event, Rutherford fails to demonstrate that this appraisal discloses a significant part of the contents of the estate tax return. (See Southern Cal. Gas Co. v. Public Utilities Comm’n (1990) 50 Cal.3d 31, 49 [statutory privilege waived only if holder of privilege voluntarily discloses significant part of communication].) Accordingly, Defendants’ objections to the Demands on the basis of the tax return privilege are justified and therefore sustained.

C. Conclusion

Based on the foregoing, the motion to compel Defendants to produce documents requested in the deposition notice served on Caswell is DENIED.

III. Rutherford’s Motion to Seal

Rutherford seeks an order sealing pages 13:26-26 and 14:1-8 of its memorandum of points and authorities in support of its motion to compel documents requested pursuant to the deposition notice and Exhibits 6 and 9 to the declaration of James M. Pazos. The pages of the memorandum and the Exhibits refer to the tax consequences of the Agreement and the Exhibits have been designated as confidential under the parties’ stipulated protective order.

A party may not file a record under seal without a court order. (Cal. Rules of Court, rule 2.551(a).) A court may not permit a record to be filed under seal based solely on the agreement or stipulation of the parties. (Id.) California Rules of Court, rule 2.551(b) requires that the party seeking to file documents under seal must file a motion that contains a notice of motion, memorandum of points and authorities, and a declaration containing facts sufficient to justify the sealing. A court has the authority to order that a record be filed under seal only if it expressly finds facts that establish (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.551(d).)

While those rules apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery motions or proceedings, they do not apply to “discovery motions” or “records filed or lodged in connection with discovery motions or proceedings.” (Cal. Rules of Court, rule 2.550(a)(3); see also H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 893 [given policy favoring broad disclosure during discovery and fact that discovered materials are not part of the court record until filed in connection with a motion or trial, right of public access is “favored neither by tradition nor by functional analysis”]; Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 100 [rationale behind right of public access to civil proceedings does not support generalized presumption of access to all court-filed discovery material].)
Although the sealing rules do not apply to materials filed in connection with discovery motions, the Sixth Appellate District, in dicta, interpreted that exemption as imposing a less stringent standard for sealing in the discovery context, and not as implying an utter lack of limitations. (H.B. Fuller Co. v. Doe, supra, 151 Cal.App.4th at p. 894.) Specifically, a “reasoned decision” regarding the sealing of records must: (1) identify specific information claimed to be entitled to such treatment; (2) identify the nature of the harm threatened by disclosure; and (3) identify and account for any countervailing considerations. (Id.)
Having reviewed the documents conditionally lodged under seal, the Court finds that Rutherford complied with the requirements of the sealing rules to the extent required by the holding in Fuller, supra, – Rutherford lodged the documents at issue conditionally under seal, filed redacted documents to be included in the public record, and explained the confidential nature of the documents sought to be sealed. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3 [courts have found privacy interests, when properly asserted and not waived, support sealing of records].) The Court further finds that the documents at issue contain confidential information and the proposed sealing is narrowly tailored. Accordingly, Rutherford’s motion to seal is GRANTED.
Rutherford shall provide a separate order to seal and an appropriate label for the sealed records that contains all of the information and statements required by Rules of Court, Rule 2.551(e) to place on the envelope containing the documents to be sealed.

IV. Rutherford’s Motion to Compel with Regard to the RPD

Rutherford moves for an order compelling PDR to provide further responses, without objection, to RPD Nos. 1-23 and compliance with PDR’s responses to the RPD. In addition, Rutherford makes a “qualified motion for forensic inspection.”

A. Evidentiary Objections

As a threshold matter, PDR raises a number of evidentiary objections to the declarations filed in support of Rutherford’s motion. There is no authority holding that the Court must rule on an evidentiary objection in connection with a discovery motion. Accordingly, the Court declines to rule on PDR’s evidentiary objections.

B. Motion to Compel Further Responses to the RPD

The requests at issue seek documents relating to communications, meetings, and agreements between PDR and Rutherford (RPD Nos. 1-4), efforts to remove encumbrances from the Property before the closing date of the Agreement (RPD Nos. 5-10), efforts to procure a title insurance policy for the Property (RPD No. 11-14), Rutherford’s breach of the Agreement (RPD No. 15), PDR’s contention that it is entitled to keep the Deposit (RPD No. 16), the Agreement (RPD Nos. 17, 19), attempts to sell or purchase the Property from May 23, 2008 to the present (RPD No. 18), the Property (RPD No. 20), and PDR’s corporate minutes, bylaws and articles of incorporation (RPD Nos. 21-23).

1. Good Cause

A party moving to compel further responses to requests for production of documents must set forth specific facts showing good cause justifying the discovery sought by the demand. (See Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (See Kirkland, supra, 95 Cal.App.4th at p. 98.)

Here, it is readily apparent that the documents sought are relevant to the present action. Documents responsive to RPD Nos. 1-4, 17-19 might assist Rutherford in establishing the existence and interpreting the terms of the alleged agreements between the parties. Documents responsive to RPD Nos. 5-14, 20-23 might allow Rutherford to prove that PDR was unprepared to close the transaction, and thus, under its interpretation of the Agreement, that PDR was required to return the Deposit. Documents concerning Rutherford’s breach of the agreement (RPD No. 15) could disclose information concerning its defense of Rutherford’s breach of contract cause of action. Accordingly, good cause exists for the discovery sought.

2. Objections

While PDR interposed a number of objections to the RPD, in its opposition, PDR only attempts to justify its objections on the grounds of relevance (as to RPD No. 21), overbreadth (as to RPD No. 20), undue burden (as to RPD No. 20), the right to privacy (as to RPD No. 21), and the attorney-client privilege (as to all the RPD). All other objections are therefore overruled, except for the attorney work product doctrine which is preserved. (See Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221 [burden on responding party to justify objections]; Best Products, Inc. v. Sup. Ct. (2004) 119 Cal.App.4th 1181, 1188-1189.) In its opposition, PDR, for the first time, raises an objection to RPD No. 20 on the ground of the tax return privilege. As PDR did not raise this objection in its initial response to RPD No. 20, the objection has been waived. (See Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 Cal.App.4th 263, 273 [objections must be asserted in the initial response to discovery to avoid waiver].)

a. Relevance and Right to Privacy Objections as to RPD No. 21

RPD No. 21 sought PDR’s corporate minutes from January 2008 through the present. With regard to its relevance objection, PDR asserts that portions of the minutes of its Board meetings are not relevant to the subject matter of this action. PDR, however, does not provide any argument or facts demonstrating that the minutes at issue are, in fact, not relevant to the subject matter of the action. Thus, PDR fails to meet its burden to justify this objection and, as such, its relevance objection to RPD No. 21 is overruled.

With regard to its objection on the basis of the right to privacy, PDR contends that portions of the minutes of its Board meetings are protected by the right to privacy. As previously discussed, the right to privacy does not generally apply to corporations, such as PDR. (See Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 775, 796-797 [corporation has protectable privacy interest only if strong nexus between the intrusion into the corporation’s affairs and any ancillary intrusion into the privacy rights of the members of the corporation].) As PDR makes no showing that there is a particularly strong nexus between the alleged intrusion into its affairs and a concomitant intrusion into the privacy rights of its board members, it does not establish a protectable privacy interest under the present circumstances and the objection to RPD No. 21 on the basis of the right to privacy is overruled.

b. Overbreadth and Undue Burden as to RPD No. 20

RPD No. 20 sought all documents relating to the Property. PDR asserts that the demand is overbroad and unduly burdensome because it would require it to produce countless numbers of documents that have no relevance to the instant action, including every lease, rent check, and bill over its several decades of ownership of the Property. Apparently to address these concerns, during the meet and confer process, Rutherford agreed to narrow the demand to only the documents that relate to any sale of the Property or the value of the Property between May 2008 and December 2010. As currently framed, PDR does not demonstrate that RPD No. 20 is overbroad as to time and scope. Documents relating to the sale and value of the Property between 2008 and 2010 may allow Rutherford to demonstrate that PDR was unprepared to close the transaction and thus was required to return the Deposit. Accordingly, PDR’s objection to RPD No. 20 on the ground of overbreadth is overruled, with the proviso that the Court limits the request to documents that relate to any sale of the Property or the value of the Property between May 2008 and December 2010.

With regard to the undue burden objection, “some burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Sup. Ct. (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating the hardship. (Id. at pp. 417-418.) Here, PDR makes no particularized showing of facts demonstrating the hardship that responding to this request would entail. Accordingly, the objection to RPD No. 20 on the ground of undue burden is overruled.

c. Attorney-Client Privilege

Rutherford contends that PDR improperly redacted the following Bates-stamped documents on the ground of the attorney-client privilege: PDR 65-66, 90, 141-142, 155-156, 248, 894, and 965-966. In addition, Rutherford asserts that PDR improperly withheld documents containing communications between PDR shareholders and family members based on the attorney-client privilege.

As a threshold matter, Rutherford argues that PDR’s objections on the basis of the attorney-client privilege should be overruled because its privilege log does not identify with particularity the objectionable documents at issue. The information in a privilege log need only be sufficiently specific to allow a determination of whether each withheld document is, in fact, privileged. (See Wellpoint Health Networks, Inc. v. Sup. Ct. (1997) 59 Cal.App.4th 110, 130.) PDR’s amended privilege log meets this standard as it includes the date each document was created, the parties to the communication and a factual description of the basis for the privilege. Accordingly, the amended privilege log permits the determination of whether the documents at issue are privileged and PDR’s objections will not be overruled on this basis.

Communications between client and counsel are presumed to have been made in confidence and are broadly privileged against discovery. (See Evid. Code, § 954; Mitchell v. Sup. Ct. (1984) 37 Cal.3d 591, 599.) To establish a prima facie claim of privilege, the objecting party need only show that the communications at issue contain legal advice provided in the course of the attorney-client relationship. (See Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733.) 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 has been effectuated. (Id.)

i. Redactions

PDR 65-66, 141-142, 155-156, and 248 constitute e-mails sent by Caswell in 2008 to other PDR officers, describing legal advice she received from counsel. PDR 90 is an e-mail to a PDR board member by her personal attorney concerning tax and estate issues. PDR 894 is a document containing handwritten notes of a telephone conversation between PDR’s counsel and Caswell. PDR 965-966 are e-mails between PDR officers concerning legal advice provided by PDR’s counsel. Here, each of the documents appears to contain legal advice provided in the course of the attorney-client relationship. Accordingly, the burden shifts to Rutherford to show that the privilege does not apply, an exception exists, or the privilege has been waived.

Rutherford first contends that the privilege is inapplicable because several of the purportedly privileged communications were distributed among PDR’s board members and officers. The attorney-client privilege is not waived when the information is disclosed to corporate officers or employees who need to know the information in order to perform their duties. (See Zurich American Ins. Co. v. Sup. Ct. (2007) 155 Cal.App.4th 1485, 1498.) Rutherford does not demonstrate that PDR’s board members did not need this information in order to perform their duties and such information was presumably necessary for the officers and board members to oversee the proposed sale of the Property. Accordingly, Rutherford fails to establish that the communications are not privileged on this basis.

Second, Rutherford asserts that the communications demonstrate that PDR’s attorney was merely acting as its business agent and thus, its attorney’s communications are not privileged. It is well established that the “attorney-client privilege is inapplicable where the attorney merely acts as a negotiator for the client, gives business advice or otherwise acts as a business agent.” (Chicago Title Ins. Co. v. Sup. Ct. (1985) 174 Cal.App.3d 1142, 1151.) However, to demonstrate that this exception applies, the opposing party must establish that the client’s dominant purpose in retaining the attorney was something other than a request for a legal opinion or legal advice. (See Aetna Casualty & Surety Co. v. Sup. Ct. (1984) 153 Cal.App.3d 467, 475.) Here, Rutherford provides no evidence suggesting that PDR’s dominant purpose in retaining their attorney was for something other than legal advice. As such, Rutherford fails to establish that the communications are not privileged on this basis.

Third, Rutherford contends that PDR waived the privilege by failing to withhold the redacted documents in their entirety. Evidence Code section 912 specifically provides that the waiver of the attorney-client privilege occurs when any holder of the privilege has disclosed a significant part of the communication. (See Southern Cal. Gas Co., supra, 50 Cal.3d 31 at p. 49 [statutory privilege waived if holder of privilege voluntarily discloses significant part of communication].) However, Rutherford provides no evidence indicating that the unredacted portions of the e-mails contain privileged information. As such, Rutherford fails to establish that the privilege was waived on this basis.

Finally, Rutherford claims that PDR impliedly waived the privilege by placing the interpretation of the Agreement and the anticipatory breach defense at issue. The attorney-client privilege may be impliedly waived where a party to a lawsuit places into issue a matter that is normally privileged. (See Transamerica Title Ins. Co. v. Sup. Ct. (1987) 188 Cal.App.3d 1047, 1052.) “It is said that in that case[,] the gravamen of the lawsuit is so inconsistent with the continued assertion of the privilege as to compel the conclusion that the privilege has in fact been waived.” (Id., citing Wilson v. Sup. Ct. (1976) 63 Cal.App.3d 825.) However, the scope of an implied waiver must be “narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver.” (Id.) As a practical matter, a party is deemed to have put a matter into issue if “success in the instant action depends upon a showing” of the matter claimed to have been waived. (See id.) Here, Rutherford provides no evidence supporting its assertion that PDR’s success in the action is dependent upon its use of attorney-client communications. As such, Rutherford fails to establish that the privilege was waived on this basis.

In sum, PDR has established a prima facie claim of privilege as to PDR 65-66, 90, 141-142, 155-156, 248, 894, and 965-966 and Rutherford has failed to show that the privilege does not apply or waiver has been effectuated. Accordingly, PDR’s objections to the production of unredacted versions of these documents on the ground of the attorney-client privilege are sustained.

ii. Withheld Documents

Rutherford identifies eight documents that it contends were improperly withheld on the basis of privilege. Seven of the documents constitute e-mails between PDR board members conveying and commenting on legal advice provided by counsel. The eighth document is an e-mail from a PDR board member to her husband conveying legal advice provided by counsel. Each of these documents appears to contain legal advice provided in the course of the attorney-client relationship. (See Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 735, 733.) Accordingly, the burden shifts to Rutherford to show that the privilege does not apply, an exception exists, or the privilege has been waived.

With regard to the e-mails exchanged between PDR board members, Rutherford again contends that the privilege is inapplicable because the communications were not distributed directly from the attorney to each shareholder. As previously discussed, the attorney-client privilege is not waived when the privileged information is conveyed to corporate officers who need to know the information in order to perform their duties. (See Zurich American Ins. Co. v. Sup. Ct. (2007) 155 Cal.App.4th 1485, 1498.) As Rutherford does not demonstrate that PDR’s board members did not need this information in order to perform their duties, Rutherford fails to establish that the privilege was waived.

With regard to the e-mail from a PDR board member to her husband conveying legal advice provided by counsel, the privilege extends to communications which are intended to be confidential, “if they are made to attorneys, family members, business associates, or agents of the party or his attorneys on matters of joint concern, when the disclosure of the communication is reasonably necessary to further the interest of the litigant.” (Cooke v. Sup. Ct. (1978) 83 Cal.App.3d 582, 588.) As Rutherford does not demonstrate that the disclosure to the board member’s husband was not reasonably necessary to further PDR’s interests, Rutherford fails to establish that the communications are not privileged.

In sum, PDR has established a prima facie claim of privilege as to the withheld documents and Rutherford has failed to show that the privilege does not apply or waiver has been effectuated. Accordingly, PDR’s objections to the production of the withheld documents on the ground of the attorney-client privilege are sustained.

3. Substantive Responses

In each of its responses, PDR stated the following: “Subject to these objections, Plaza Del Rey will produce any responsive, non-privileged documents in its possession, custody or control.” Rutherford asserts that PDR’s statement of compliance as to each request is evasive because each statement is “subject to” its objections. This argument is well-taken. The “subject to” language suggests that the substantive responses only include matters that PDR did not find objectionable. (See also Standon Co. v. Sup. Ct. (1990) 225 Cal.App.3d 898, 901 [objections constitute an implicit refusal to produce items sought].) Accordingly, the substantive responses are evasive.

4. Conclusion

Given that some of PDR’s objections have been overruled and/or waived and its substantive responses are evasive, further responses to RPD Nos. 1-23 are warranted. As such, Rutherford’s motion to compel further responses to the RPD is GRANTED. Accordingly, within 20 calendar days of the Court’s filing of the order, PDR shall serve verified, code-compliant further responses to RPD Nos. 1-23, without objections, except for the attorney-client privilege and the attorney work product doctrine, and produce documents in accordance with those responses, with the proviso that the Court limits RPD No. 20 to documents that relate to any sale of the Property or the value of the Property between May 2008 and December 2010.

C. Motion to Compel Compliance

Rutherford moves to compel PDR to comply with its responses to RPD Nos. 1-23. (See Code Civ. Proc., § 2031.320, subd. (a) [“[i]f a party filing a response to a demand for inspection, copying, testing, or sampling … thereafter fails to permit the inspection, copying, testing or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”].)

Rutherford asserts that PDR intentionally concealed over 3,000 pages of non-privileged documents responsive to the RPD. It indicates that each of the e-mail chains PDR produced in response to the RPD is missing hundreds of pages. In support of this contention, Rutherford directs the Court’s attention to PDR00208-00215. While PDR 00208-0210 is a three-page document, the next document in the sequence, PDR 00211-00215, is an unrelated e-mail chain. The first page of PDR 00211-00215 is labeled at the bottom of the piece of paper as page 81. Thus, Rutherford claims that PDR must have improperly withheld pages 1-80. In opposition, PDR persuasively asserts that the discrepancy in the page numbers at the bottom of the e-mail chains are due to the document collection process. PDR’s counsel explains that the e-mails were printed in batches to be reviewed by counsel before they were turned over. (See Sommers Decl., ¶ 8.) During the printing process, the e-mails were automatically assigned consecutive page numbers by Microsoft Outlook, even though they were not the same e-mail or from the same e-mail chain. (See Sommers Decl., ¶¶ 8-10.) Thus, the discrepancy in the page numbers does not establish that PDR withheld any documents. In addition, PDR’s counsel affirmatively states, under penalty of perjury, that all responsive, non-privileged e-mails were produced and no documents were withheld other than those identified in PDR’s privilege log. (See Sommers Decl., ¶ 12.) Accordingly, Rutherford has not shown any failure to comply with respect to the production of documents responsive to the RPD.

Next, Rutherford contends that PDR did not produce the responsive documents as they were kept in the ordinary course of business because it removed hundreds of pages from the e-mail chains. Thus, it requests that the Court order PDR to re-produce the documents to correspond to the categories in the document demands. (See Code Civ. Proc., § 2031.280, subd. (a) [in response to document demand, documents must be produced either as they are kept in the usual course of business or sorted and labeled to correspond with the categories of the document demand].) In opposition, PDR persuasively contends that it produced all of the documents requested as they were kept in the usual course of business and did not remove any documents. Accordingly, Rutherford fails to demonstrate that the PDR’s production of documents did not comply with section 2031.280.

In light of the foregoing, Rutherford’s motion to compel compliance with PDR’s responses to the RPD is DENIED.

D. Qualified Motion for Forensic Inspection

Rutherford requests that, in the event that the Court orders a forensic inspection of its computer servers, it be permitted to inspect PDR’s servers to determine if PDR is concealing documents. As previously discussed in connection with PDR’s request for a forensic inspection, such an inspection is only permissible to the extent that a party establishes that the opposing party destroyed or deleted electronic records sought by a particular discovery request. (See Ellis v. Toshiba America Info. Sys., Inc. (2013) 218 Cal.App.4th 853, 881.) As Rutherford makes no showing that PDR destroyed or deleted any of the documents sought by the RPD, Rutherford’s motion for a forensic inspection of PDR’s computer servers is DENIED.

V. Requests for Monetary Sanctions

PDR requests $18,820 in monetary sanctions against Rutherford for unsuccessfully opposing its motion to compel Rutherford to comply with its responses to the RPD. An award of monetary sanctions is not warranted because PDR was only partially successful on its motion and Rutherford was justified in opposing the motion with respect to the request for a forensic inspection of its electronic servers and laptops. (See Code Civ. Proc., § 2031.320, subd. (b).) Accordingly, PDR’s request for monetary sanctions is DENIED.

In turn, Rutherford requests $11,200 in monetary sanctions against PDR and its counsel for unsuccessfully making its motion to compel compliance. An award of monetary sanctions is not warranted because PDR was partially successful on its motion. (See Code Civ. Proc., § 2031.320, subd. (b).) Accordingly, Rutherford’s request for monetary sanctions is DENIED.

Defendants request $13,107 in monetary sanctions against Rutherford and its counsel for unsuccessfully making its motion to compel Defendants to comply with the demand for documents. However, Defendants provide no statutory basis for the request. As such, Defendants’ request for monetary sanctions is DENIED.

Rutherford requests $12,000 in monetary sanctions against PDR and its counsel in connection with its motion to compel PDR to provide further responses to the RPD and compliance with its responses. An award of monetary sanctions is not warranted because Rutherford was only partially successful on its motion and PDR was justified in opposing the motion with respect to the request for a forensic inspection of its electronic servers, its objections on the basis of the attorney-client privilege, and the motion to compel compliance with PDR’s responses to the RPD. (See Code Civ. Proc., §§ 2031.320, subd. (b), 2031.310, subd. (h).)

Finally, PDR requests $15,066 in monetary sanctions against Rutherford and its counsel for unsuccessfully making the motion to compel further responses and compliance with PDR’s responses to the RPD. An award of monetary sanctions is not warranted because Rutherford was partially successful on its motion. (See Code Civ. Proc., §§ 2031.320, subd. (b), 2031.310, subd. (h).) Accordingly, PDR’s request for monetary sanctions is DENIED.

The Court will prepare the order.