Pott, et al. v. John B., et al.		CASE NO. 113CV244689
DATE: 24 Oct. 2014	TIME: 9:00	LINE NUMBER: 5

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 Thursday 23 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 24 October 2014, the motions of defendants Doe 7 and Doe 8 to (1) compel the production of verifications and further responses to requests for production of documents (“RPD”) served on plaintiff Sheila Pott (“S. Pott”), (2) compel the production of verifications and further responses to RPD served on plaintiff Lawrence Pott (“L. Pott”), and (3) file documents related to the two motions to compel further responses under seal were argued and submitted. Plaintiffs S. Pott and L. Pott (collectively “Plaintiffs”) filed formal oppositions to each of the motions to compel further responses. In their oppositions, Plaintiffs each seek the imposition of monetary sanctions against Does 7 and 8 for having to respond to the motions to compel. Plaintiffs do not oppose the application of Does 7 and 8 to file documents under seal.

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

1. Statement of Facts

This wrongful death action arises from the untimely death of Plaintiffs’ 15 year old daughter, Audrie Pott. According to the allegations of the compliant, Plaintiffs’ daughter took her life as a result of a sexual assault incident that took place during a party in Saratoga, California on 2 September 2012. The incident involved Plaintiffs’ daughter, John B., John R., John G., and Jane C., all of whom are minors. Based upon the incident, Plaintiffs’ daughter attempted suicide on 10 September 2012. She was hospitalized and died two days later.

Following Plaintiffs’ daughter’s death, the Sheriff’s Department conducted an investigation of the incident, resulting in charges against three of the defendants filed in juvenile justice court. The incident has garnered a great deal of media attention, including articles published by the New York Daily News and Rolling Stone Magazine.

On 21 June 2013, Plaintiffs instituted the present action, individually and as successors in interest to the Estate of Audrie Pott, against John B., John R., John G., Jane C., Michael Penuen, Sheila Penuen, and Does 1-110. The complaint raises claims for negligence, negligent infliction of emotional distress, defamation, invasion of privacy, false imprisonment, battery, sexual battery, intentional infliction of emotional distress, false imprisonment and/or assault with intent to capture visual image, and conspiracy.

 

1. Discovery Dispute

On 20 May 2014, Does 7 and 8, who are the parents of John G., served L. Pott with their first set of RPD. At the same time, Does 7 and 8 served their second set of RPD on S. Pott. Both sets of requests generally sought the same categories of information, including communications between L. Pott and S. Pott with law enforcement about their daughter and the events surrounding the September 2012 party, which led to the underlying juvenile justice proceedings and which Plaintiffs allege led to their daughter’s attempt to take her life.

On 23 July 2014, after two extensions to provide initial responses were granted by the defendants, L. Pott and S. Pott served Does 7 and 8 with responses to the RPD. The responses were hybrid in nature, asserting objections and then providing limited substantive responses. Neither response was verified.

On 20 August 2014, counsel for Does 7 and 8 sent a meet and confer letter to Plaintiffs’ counsel concerning the responses to the discovery requests. (Decl. of Davis Reilly in Support of Does 7 and 8’s Mot. to Compel (“Decl. of Reilly”), Ex. A.) In the letter, counsel for Does 7 and 8 asserted that Plaintiffs’ objections lacked merit and that the responses were otherwise deficient. (Id.)

On 2 September 2014, counsel for Plaintiffs responded via email, indicating that it was Plaintiffs’ position that the requests were overly broad and not reasonably particularized in compliance with the Code of Civil Procedure, and that the information concerning the underlying juvenile justice proceedings was confidential. (Id., Ex. B.)

Counsel for the parties continued to exchange meet and confer correspondence through the month of September and counsel for Plaintiffs agreed to an extension of time for Does 7 and 8 to file a motion to compel. (Id., Ex. C.)

On 30 September 2014, after it became clear that counsel for the parties could not resolve the discovery dispute informally, Does 7 and 8 filed the two motions to compel presently before the Court—the first directed at L. Pott and the second directed at S. Pott. Plaintiffs filed oppositions to the motions on 10 October 2014, and Does 7 and 8 filed their reply briefs on 17 October 2014.

III.     Discussion

1. Application to File Documents Under Seal

The only documents filed by Does 7 and 8 in connection with the two motions presently before the Court that have not been conditionally lodged under seal are the notices of the motions. All of the documents supporting the motions—the memoranda, separate statements, etc.—have been conditionally lodged under seal and Does 7 and 8 have requested that the Court seal these documents.[2] More specifically, Does 7 and 8 request that the Court allow the following documents to be filed under seal: (1) the memorandum in support of their motion to compel plaintiff L. Pott to produce documents; (2) the separate statement in support of their motion to compel L. Pott to produce documents; (3) the memorandum in support of their motion to compel plaintiff S. Pott to produce documents; (4) the separate statement in support of their motion to compel S. Pott to produce documents; (5) the declaration of Davis Reilly in support of their motion to compel L. Pott to produce documents; and (6) the declaration of Davis Reilly in support of their motion to compel S. Pott to produce documents.

In support of their application, Does 7 and 8 rely upon the Protective Order entered by the Court on 6 June 2014. (Decl. of Davis Reilly in Support of Application to Seal, Ex. B.) In the Protective Order, the Court acknowledged that “[d]isclosure and discovery activity in this [action] are likely to involve production of confidential or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted.” (Id., at p. 1.) More specifically, the Court recognized that this action may require the production of Plaintiffs’ medical records, as well as investigative files of the Santa Clara County Sheriff’s Office, both of which are protected from dissemination. (Order Granting in Part Parties’ Motions for Protective Orders, dated 19 May 2014, attached to Decl. of Davis Reilly in Support of Application to Seal, Ex. A.) Given the Court’s recognition that this case will likely require the disclosure of confidential and private information, the Protective Order provides that the parties may conditionally lodge materials under seal in connection with discovery proceedings pursuant to California Rules of Court, rules 2.550 and 2.551. (Decl. of Davis Reilly in Support of Application to Seal, Ex. B, ¶¶ 6, 12, 13.)

1. 1. Relevant Law

A party may not file a record under seal without a court order. (Cal. Rules of Court, rule 2.551(a).) 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).)

The California Rules of Court expressly indicate that the sealing rules do not apply to discovery motions, or records filed and lodged in connection with discovery motions. (Cal. Rules of Court, rule 2.550(a)(3).) The rules do apply to discovery materials that are used at trial or submitted as a basis for adjudication of matters other than discovery proceedings. (Id.)

However, the Sixth Appellate District, in dicta, has interpreted the discovery exemption contained in the California Rules of Court as not precluding all discovery motions from the sealing requirements, but imposing a less strict set of requirements than those in the rules of court. (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 891-894 (“Fuller”).) The plaintiff in Fuller asserted that the rules of court did not apply, because the motion at issue was a discovery proceeding and was expressly exempted. (Id. at p. 892.) The court addressed the dangers of applying a categorical exemption of the sealing rules to all discovery motions. The court found it “absurd” to require “the moving party to expose the materials to public view, or to prove that there is an overriding interest against their disclosure” for routine discovery motions involving the “quintessentially procedural question of whether and under what conditions the materials must be produced in discovery.” (Id. at p. 893.) The court found that the strict sealing rules were more appropriate for discovery motions that were “not merely ancillary or preliminary to some larger litigation, but [are] the whole end and purpose of the case,” and that involved questions of great significance to the public. (Ibid.) The Fuller court ultimately did not decide the discovery exemption issue because the court found no substantial basis for maintaining the documents at issue under seal. (Id. at p. 894.)

2. 2. Analysis

Does 7 and 8 contend that the documents sought to be sealed contain confidential information. Based upon the confidential nature of the information, Does 7 and 8 assert that there is an overriding interest in protecting this information and that the interest outweighs the right of public access to these records.

Having reviewed the documents conditionally lodged under seal, the Court finds that the documents sought to be sealed contain private information and that the parties have an overriding interest in the non-disclosure of this information. The Court further finds that a substantial probability exists that the overriding interest will be prejudiced if the information is not sealed. However, the memoranda in support of Does 7 and 8’s motions, their separate statements in support of the motions, and the other documents sought to be sealed also contain a plethora of information that is not private or confidential and should be part of the public record.

The Protective Order entered on 6 June 2014, expressly provides that “[t]his Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.” (Order of 6 June 2014, at p. 2.) The Protective Order further provides that it “does not entitle  the Parties to file confidential information under seal; California Rules of Court, rules 2.550, 2.551 and 8.46 set forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the Court to file material under seal.” (Id.)

Rule 2.551 of the California Rules of Court expressly provides that a party seeking to file a document under seal must conditionally lodge the materials under seal and file redacted copies of the documents. Does 7 and 8 have not filed redacted versions of the documents in violation of rule 2.551.

Based upon the above discussion, because the Court finds that the documents conditionally lodged under seal contain private information, the application of Does 7 and 8 to file the documents under seal is GRANTED on the following condition: Does 7 and 8 shall file publically accessible redacted versions of the documents within 10 days of the issuance of this Order. If Does 7 and 8 do not file redacted versions of the documents, the application to file the documents under seal will be deemed denied and the documents will be made part of the public record.

1. Motions to Compel Further Responses[3]

Does 7 and 8 seek further responses to RPD Nos. 19-23, 65, and 82 served on L. Pott, and RPD Nos. 5, 22-26, 67-68, and 85 served on S. Pott. Does 7 and 8 contend that the objections to the requests lack merit, that the responses were not verified, and that Plaintiffs should be required to produce verified responses, as well as documents responsive to the requests. Because both sets of requests largely seek the same categories of information, both motions will be addressed together below.

1. 1. Legal Standard

Upon receipt of a response to a demand for inspection, including requests for the production of documents, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

• A statement of compliance with the demand is incomplete.
• A representation of inability to comply is inadequate, incomplete, or evasive.
• An objection in the response is without merit or too general. (Code Civ. Proc. (“CCP”), § 2031.310, subd. (a)(1) – (3).)

The motion for order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (CCP, § 2031.310, subd. (b)(1); Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98.) To establish “good cause,” the burden is on the moving party to show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying the discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Sup. Ct. (1997) 53 Cal.4th 1113, 1117.)  Where the moving party establishes “good cause,” the burden shifts to the responding party to justify its objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.)

2. 2.            Verifications

It is undisputed that Plaintiffs’ responses to the RPD were unverified. Does 7 and 8 move the Court for an order requiring Plaintiffs to provide verifications.

Substantive responses to document demands must be verified. (CCP, § 2031.250, subd. (a).) The Code authorizes unverified responses only in instances where the responses consist of nothing but objections. (Id.) Because Plaintiffs provided hybrid responses to some of the requests—objections and substantive responses—verifications were required. Accordingly, the motion of Does 7 and 8 for an order requiring Plaintiffs to provide verifications for the responses is GRANTED.

3. 3. RPD 5 Served on Sheila Pott

RPD No. 5 served on S. Pott seeks the following information: “A complete copy of the ELECTRONIC DOWNLOAD of the Audrie Pott Foundation Facebook page.” (Def.s’ Separate Statement in Support of Mot. to Compel Responses from Sheila Pott, at p. 2.) The Audrie Pott Foundation is a non-profit charitable organization that provides art and music scholarships, as well as counseling and support services for South Bay high school and college students. (Decl. of Reilly, Ex. F.) The foundation hosts a Facebook page with S. Pott listed as one of the page administrators. (Id.)

1. Pott responded as follows:

Plaintiff objects to this request as being overbroad, and because it seeks information that is irrelevant and not reasonable [sic] calculated to lead to discovery of admissible evidence. [¶] Without waiving the foregoing objection, Plaintiff responds as follows: After a diligent search and reasonable inquiry, plaintiff affirms that she is not presently aware of any such documents in her possession, custody, or control responsive to this demand because an ELECTRONIC DOWNLOAD of the Audrie Pott foundation page is not possible. Plaintiff attempted to do so and it was not possible to download. (Def.s’ Separate Statement in Support of Mot. to Compel Responses from Sheila Pott, at p. 2.)

As indicated above, the first question the Court must address in evaluating a motion to compel a further response to a document request is whether the moving party has established good cause. (CCP, § 2031.310, subd. (b)(1); Kirkland, supra, 95 Cal.App.4^th at p. 98.) Concerning good cause, Does 7 and 8 state the following:

Plaintiff Sheila Pott is identified on the Audrie Pott Foundation as a Page Administrator. [citation] The Audrie Pott Foundation Facebook Page specifically cites the alleged “events” of the September 2, 2014 party. [citation] As such, it is reasonable to assume the Foundation’s Facebook page contains information and communications directly related to the party and events occurring at the same. Defendants’ request is [therefore] relevant as it [is] reasonably calculated to lead to the discovery of admissible evidence . . . . [¶] Although Defendants can view news stories and updates which are publically posted, they are not able to seek messages sent between the Foundation and others which undoubtedly relate to the issues at the heart of this matter. (Def.s’ Separate Statement in Support of Mot. to Compel Responses from Sheila Pott, at p. 2-3.)

The Court agrees with Does 7 and 8 that the information sought by RPD No. 5 is relevant. The Code of Civil Procedure authorizes discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . [and] appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP, § 2017.010.) For purposes of discovery, relevance is construed liberally in favor of disclosure. (See Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4^th 1101, 1107.) The standard is relevancy to the “subject matter” of the case, which is “a broader concept than “relevancy to the issues.” (Pac. Tel. and Tel. Co. v. Super. Ct. (1970) 2 Cal.3d 161, 172, quoting Chronicle Publishing Co. v. Super. Ct. (1960) 54 Cal.2d 548, 560.) “In the context of discovery, evidence is ‘relevant’ if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating settlement.” (Glenfed Development v. Super. Ct. (1977) 53 Cal.App.4^th 1113, 1116.)

Here, as Does 7 and 8 point out, Plaintiffs’ theory of the case is that Audrie Pott attempted to take her life—and eventually died—as a result of the events that took place at the party in September of 2012. Does 7 and 8 believe that Audrie Pott may have attempted to take her life for other reasons. Does 7 and 8 further believe that, because the website refers to the events that allegedly took place at the party, S. Pott and others may have corresponded on the website concerning these events (and potentially others) that led to Audrie Pott’s death. Given these assertions, the Court agrees that the information contained on the website is relevant to the subject matter of this case. Accordingly, the Court finds that Does 7 and 8 have demonstrated good cause.

Because Does 7 and 8 have demonstrated good cause, the burden shifts to S. Pott to justify her objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.) As indicated above, S. Pott objected to RPD No. 5 on the grounds of overbreadth and relevance. In her opposition, S. Pott now claims that the information is also private. However, because S. Pott failed to raise the privacy objection in her initial response, the objection is waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4^th 263, 273 [waiver occurs where the responding party fails to timely raise an objection in his or her initial response]; see also CCP, § 2031.240, subd. (b)(2) [responses shall set forth any objections].) As to the relevance objection, for the reasons set forth in the good cause analysis, the relevance objection is overruled. Finally, as to the overbreadth objection, S. Pott’s entire justification of the objection is as follows: “It was defendant’s duty to ‘designate’ the documents sought ‘either by specifically describing each individual item or by reasonably particularizing each category of item.’ [citation] This edict is not met by any of defendants’ document demands at issue in this motion.” (Opp. of Sheila Pott, at p. 4.) This argument is conclusory in nature and not sufficient to justify the objection. In other words, S. Pott has failed to articulate why the request is overly broad, i.e., why the request would require the production of information outside the scope of permissible discovery. Accordingly, the objection is overruled.

Does 7 and 8 also take issue with S. Pott’s substantive response that “she is not presently aware of any such documents in her possession, custody, or control responsive to this demand because an ELECTRONIC DOWNLOAD of the Audrie Pott foundation page is not possible.” (Def.s’ Separate Statement in Support of Mot. to Compel Responses from Sheila Pott, at p. 2.) From the parties’ papers, it is clear that S. Pott originally construed RPD No. 5 as only requiring the production of publically available information. Once Does 7 and 8 made clear that they were seeking Facebook communications that were not publically available, S. Pott asserted her privacy objection which, as discussed above, was waived. It also appears that, contrary to her substantive response, because she initially misconstrued the request, S. Pott may in fact be in possession of documents responsive to the request. If S. Pott is in possession of responsive documents, her representation of an inability to comply is non-responsive.

Based upon the above discussion, Does 7 and 8 have demonstrated good cause, S. Pott has failed to justify her objections, and the substantive response is incomplete. Accordingly, the motion to compel S. Pott to provide a further verified response to RPD No. 5 is GRANTED.

4. RPD Nos. 19-23 and 82 Served on L. Pott and RPD Nos. 22-26 and 85 Served on S. Pott

RPD Nos. 19-23 and 82 served on L. Pott and RPD Nos. 22-26 and 85 served on S. Pott seek documents in Plaintiffs’ possession related to communications between Plaintiffs and law enforcement about Audrie Pott, the September 2012 party, the events that occurred in the week between the party and Audrie Pott’s death, and about the alleged taking and distribution of photographs at the party. For example, RPD No. 22 served on S. Pott seeks the following information:

Any and all DOCUMENTS in YOUR possession, custody and control containing, reflecting, or memorializing any communication between YOU and any law enforcement or public investigative agency CONCERNING the events which took place at the PARTY. (Def.s’ Separate Statement in Support of Mot. to Compel Responses from Sheila Pott, at p. 3.)

The remainder of the requests in this category are substantially similar. Plaintiffs responded to each of the requests as follows: “Plaintiff objects to this Request because it is vague, ambiguous, overly broad and requests documents which relate to the juvenile proceedings which are confidential.” (Id.)

Does 7 and 8 assert, and the Court agrees, that the information sought by this category of documents is facially relevant to the subject matter of this case. As stated above, Plaintiffs’ theory of the case is that their daughter attempted to take her life as a result of the events that took place at the September 2012 party. Statements made by the Potts to law enforcement indicating their belief that the events of the party led to their daughter taking her life would support this theory. In contrast, statements to law enforcement indicating that their daughter may have attempted to take her life for other reasons would support Does 7 and 8’s defense. Thus, the information goes to the heart of the parties’ theories in this case and the Court finds that Does 7 and 8 have demonstrated good cause for the discovery.

Because good cause has been established, the burden shifts to Plaintiffs to justify their objections. (Kirkland, supra, 95 Cal.App.4th at p. 98.) Plaintiffs do not attempt to justify their objections on the grounds of vagueness and ambiguity. Those objections are therefore overruled. (Scottsdale Ins. Co., supra, 59 Cal.App.4^th at p. 273.)

As to the overbreadth objections, Plaintiffs assert that the requests are not reasonably limited in scope as to subject matter and time. They cite Code of Civil Procedure section 2031.030, subdivision (c) as the basis for the objection. That provision provides that the demanding party must “[d]esignate the documents [being sought] . . . either by specifically describing each individual item or by reasonably particularizing each category of item.” (CCP, § 2031.030, subd. (c)(1).) It is Plaintiffs’ contention that the requests in this category are not reasonably particularized. For the reasons outlined below, the Court disagrees.

Explaining the nature of the reasonable particularity requirement, Weil and Brown states the following:

The demanding party is often seeking documents he or she has never seen, and which may or may not exist, out of files with which he or she has no familiarity. Therefore, the demand is sufficient if the documents or things to be produced are of a category described with ‘reasonable particularity’ in the demand. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:1439, italics in original.)

Moreover, reasonable particularity is judged from the standpoint of the party on whom the demand is made. (See Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4^th 216, 222.) Further explaining this requirement, Weil and Brown indicates that “requests for ‘all financial records’ or ‘all correspondence’ or ‘all documents relating to liability’ may be objectionable for inadequate description[,]” “[b]ut requests for ‘all correspondence relating to (a particular subject matter)’ or ‘all correspondence between (specific parties or specific dates)’ would require response.” (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2012) at 8:1443 and 8:1444.)

Here, the requests are reasonably particularized. Each of the requests in the category concern a particular subject matter, i.e., communications to law enforcement concerning the party, the events which took place in the week following the party, etc. These subject matters are far more limited than a request for all documents concerning “liability,” which Weil and Brown indicates would be improper. Moreover, while the requests do not contain an express time limitation, the nature of the requests and the underlying events leading to this lawsuit supply the applicable time frame. For instance, Plaintiffs would not have had communications concerning the party until after the party took place. Similarly, while the requests do not identify specific law enforcement personnel, it is not unreasonable to assume that the law enforcement personnel that Plaintiffs did speak with are limited and that Plaintiffs know whether they possess documentation of such communications. In other words, the requests are reasonably particularized from the standpoint of the party receiving the demand.

Based upon the above discussion, the Court finds that Plaintiffs have not justified their overbreadth objections to this category of requests. The objections are therefore overruled.

Plaintiffs’ final objection to the requests is that the requests seek information from the underlying juvenile justice proceedings, which are confidential. In an effort to justify this objection, Plaintiffs direct the Court to Welfare and Institutions Code section 827, which provides that juvenile case files are confidential. The section defines “juvenile case file” as “a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer.”[4] (Welf. & Inst. Code, § 827, subd. (e).)

Does 7 and 8 contend that, by definition, records of a juvenile case file are records in the possession of an official involved with a juvenile justice proceeding, i.e., the court, the probation officer, a hearing officer, etc. Along the same lines, Does 7 and 8 argue that, because section 827 enumerates specific persons to whom records of a juvenile case file may be disclosed, and Plaintiffs are not among those enumerated individuals, the records held by Plaintiffs cannot—by definition—be records of a “juvenile case file.”

These arguments are based upon a hyper-technical reading of section 827 and, if accepted by the Court, would effectively eviscerate the protections provided for by the statute. Does 7 and 8 have made clear that the type of documents sought from Plaintiffs through this category of requests includes e-mails from Plaintiffs to law enforcement concerning the September 2012 party. Such communications necessarily would have been generated in response to the investigation into the events and cause of Audrie Pott’s death. Indeed, that is precisely why Does 7 and 8 want the documents—they believe that such statements may shed light on an alternative explanation for Audrie Pott’s motivation for attempting to take her own life. It is safe to assume that these communications (e-mails and other written communications to or from the Potts to law enforcements) made their way into the law enforcement files concerning the case, which unquestionably constitute records of “a juvenile case file” within the meaning of section 827. (See T.N.G. v. Super. Ct. (1971) 4 Cal.3d 767, 780 [holding that police records are the equivalent to court records for the purposes of the confidentiality provisions contained in the Welfare and Institutions Code].) Does 7 and 8 recognize that they could not seek those communications from law enforcement directly because they would be protected from disclosure by section 827. The assertion that they should be able to seek the same documents from the persons who supplied the documents to law enforcement belies logic and would defeat the purpose of section 827. The Court therefore rejects the argument and finds that Plaintiffs have justified their objections to the requests in this category on the ground that the information sought by the requests is protected from disclosure under Welfare and Institutions Code section 827. The motion of Does 7 and 8 to compel further responses to the requests is therefore DENIED, subject to the caveat discussed directly below.

Notwithstanding the above ruling, in light of the fact that this Court has found the information sought by the requests to be relevant to the subject matter of this case, the Court agrees with Does 7 and 8 that Plaintiffs should be required to produce a privilege log that sets forth sufficient information for the defendants (and the Court if necessary) to evaluate the nature of the documents being withheld. Thus, Plaintiffs shall produce a privilege log identifying all documents in their possession responsive to the requests in this category.

Because the juvenile court has “exclusive authority to determine whether, and to what extent, to grant access to confidential juvenile records,” (R.S. v. Super. Ct. (2009) 172 Cal.App.4^th 1049, 1055), if Does 7 and 8 wish to pursue the matter further after reviewing the privilege log, they may file a petition(s) with the juvenile court to grant inspection and use of the documents identified in the privilege log. If Does 7 and 8 file a petition with the juvenile court, they shall notify Plaintiffs of the petition (but not provide a copy of the petition itself, which is confidential). If Plaintiffs receive such notification, they shall lodge with this Court all of the responsive documents under seal within 10 days of receiving the notification. This Court will not review the documents and forward them to the juvenile court for in camera review. The juvenile court will then be in possession of the documents and may release them (or not) to Does 7 and 8 depending upon its ruling.

In sum, Does 7 and 8 have demonstrated good cause for the discovery, but Plaintiffs have justified their objections that the information sought by the requests is confidential under Welfare and Institutions Code section 827. Accordingly, the motion to compel L. Pott to produce further responses to RPD Nos. 19-23 and 82 is DENIED subject to the caveat that L. Pott shall produce a privilege log. Similarly, the motion to compel S. Pott to produce further responses to RPD Nos. 22-26 and 85 is DENIED subject to the caveat that S. Pott shall produce a privilege log.

5. 5.            RPD 65 Served on L. Pott and RPD Nos. 67 and 68 Served on S. Pott

RPD No. 65 served on L. Pott and RPD Nos. 67 and 68 served on S. Pott demand that Plaintiffs produce “Any and all DOCUMENTS in YOUR possession, custody and control containing, reflecting, or memorializing any communication between [L. Pott and S. Pott and between S. Pott and Lisa Pott (Audrie Pott’s step-mother)] including but not limited to electronic communications, emails, test messages and/or social media communications.” (Does 7 and 8 Separate Statement in Support of Mot. to Compel L. Pott to Produce Further Responses, at p. 9; Does 7 and 8 Separate Statement in Support of Mot. to Compel S. Pott to Produce Further Responses, at pp. 11-12.)

Plaintiffs objected to each of these requests as vague, ambiguous, overly broad, and on the ground of relevance.

Concerning good cause, Does 7 and 8 assert that, following Audrie Pott’s parents’ divorce in 2003, “the only common thread possessed by Sheila and Lisa Pott was Audrie Pott.” (Does 7 and 8 Separate Statement in Support of Mot. to Compel L. Pott to Produce Further Responses, at p. 9.) Does 7 and 8 further assert that information concerning Audrie Pott’s home life is relevant in determining whether there is an alternative explanation for why she attempted to take her life. Without taking Plaintiffs’ overbreadth objections into consideration, which are addressed below, the Court finds that Does 7 and 8 have articulated why the information sought by the requests is relevant. The Court therefore finds that Does 7 and 8 have demonstrated good cause for the discovery, shifting the burden to Plaintiffs to justify their objections.

Plaintiffs only attempt to justify their overbreadth objections. The remainder of the objections are therefore overruled. (Scottsdale Ins. Co., supra, 59 Cal.App.4^th at p. 273.) As to the overbreadth objections, Plaintiffs assert that the requests in this category “demand all writings made at any time throughout the universe on any subject under the universe reflecting upon any communication between Larry and Sheila Pott.” (L. Pott’s Opp., at p. 8.) The Court agrees with Plaintiffs that the requests are overly broad. The Civil Discovery Act defines the scope of permissible discovery—any matters that are relevant to the subject matter involved in the action that are reasonably calculated to lead to the discovery of admissible evidence. (CCP, § 2017.010.) If a discovery request seeks information that within the permissible scope of discovery, but would also necessarily require the production of wholly irrelevant information, the request is objectionable as overly broad. (See Perkins v. Super. Ct. (1981) 118 Cal.App.3d 761, 765 [suggesting that interrogatories not limited in any manner to the circumstances of the accident that gave rise to the action were overly broad].)

While some communications between L. Pott and S. Pott  and S. Pott and Lisa Pott surely concern Audrie Pott, it defies common sense to believe that every communication ever made between the Potts concerned Audrie Pott. Without delving into all of the details of hypothetical communications that may be exchanged between ex-spouses, it suffices to say that there are any number of topics that could have been discussed that would be wholly irrelevant to the present action.

Accordingly, because the scope of the requests encompasses irrelevant information, Plaintiffs have justified their overbreadth objections. The motion of Does 7 and 8 to compel L. Pott to produce a further response to RPD No.65 is therefore DENIED. Similarly, the motion to compel S. Pott to produce further responses to RPD Nos. 67 and 68 is DENIED.

1. C. Plaintiffs’ Request for Monetary Sanctions

In each of their oppositions to the motions to compel further responses filed by Does 7 and 8, Plaintiffs request the imposition of monetary sanctions under Code of Civil Procedure section 2031.310, subdivision (h). That provision provides that “the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, 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.” (CCP, § 2031.310, subd. (h).)

While the motions of Does 7 and 8 are being largely denied, the Court has found that Plaintiffs shall be required to provide verifications for the requests as well as a privilege log. Given those findings, the Court further finds that Does 7 and 8 acted with substantial justification in bringing the motions. Accordingly, the imposition of sanctions is not warranted and Plaintiffs’ requests are DENIED.

1. Conclusion and Order

The application of Does 7 and 8 to file documents under seal is GRANTED on the following condition: Does 7 and 8 shall file redacted versions of the documents within 10 days of the issuance of this Order.

The motions of Does 7 and 8 to compel Plaintiffs to produce verifications for the initial responses to the RPD is GRANTED. Plaintiffs shall produce the verifications within 10 days of the issuance of this Order.

The motion of Does 7 and 8 to compel L. Pott to produce further verified responses to their first set of RPD is DENIED. However,  for the reasons set forth in the above discussion, L. Pott shall produce a privilege log for the documents in his possession that are responsive to RPD Nos. 19-23 and 82 that are being withheld on the basis of confidentiality. L. Pott shall produce the privilege log within 20 calendar days of the filing of this Order.

The motion of Does 7 and 8 to compel S. Pott to produce further verified responses to their second set of RPD is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to RPD No. 5. The motion is DENIED as to RPD Nos. 22-26, 67, 68, and 85. However, as with the motion directed at L. Pott, S. Pott shall produce a privilege log for the documents in her possession that are responsive to RPD Nos. 22-26 and 85 that are being withheld on the basis of confidentiality. Further, S. Pott shall serve a verified, code-compliant further response, without objection to RPD No. 5 and documents in conformity with that response within 20 calendar days of the filing of this Order.

Plaintiffs’ requests for monetary sanctions are DENIED.

As stated in the above discussion, if Plaintiffs receive notification from Does 7 and 8 that a petition has been filed with the juvenile court for the inspection and use of the documents listed in Plaintiffs’ privilege logs, Plaintiffs shall lodge with this Court all of the documents identified in the privilege logs under seal within 10 days of receiving the notification. This Court will not review the documents and forward them to the juvenile court for in camera review. The juvenile court will then be in possession of the documents and may release them (or not) to Does 7 and 8 depending upon its ruling.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] Plaintiffs’ oppositions to the motions have not been conditionally lodged under seal.

[3] Plaintiffs assert that the motions filed by Does 7 and 8 are not styled as motions for further responses. This assertion is inaccurate. Although the phrase “further responses” does not appear in the caption of the notices of the motions, the notices do indicate that Does 7 and 8 are seeking relief under Code of Civil Procedure section 2031.310, which is the Code section governing motions to compel further responses.

[4] California Rules of Court, rule 5.552 provides a more specific definition of “juvenile case file,” enumerating six specific categories of documents that fall within that definition: “(1) All documents filed in a juvenile court case; (2) Reports to the court by probation officers, social workers of child welfare services programs, and CASA volunteers; (3) Documents made available to probation officers, social workers of child welfare services programs, and CASA volunteers in preparation of reports to the court; (4) Documents relating to a child concerning whom a petition has been filed in juvenile court that are maintained in the office files of probation officers, social workers of child welfare services programs, and CASA volunteers; (5) Transcripts, record, or reports relating to matters prepared or released by the court, probation department, or child welfare services program; and (6) Documents, video or audio tapes, photographs, and exhibits admitted into evidence at juvenile court hearings.”