On 14 March 2014, the motions of Plaintiff Trony Solar Holdings Company, Ltd. (“Plaintiff”) (1) to compel the deposition of Defendant Huashan Wang (“Defendant”) and for monetary sanctions, and (2) to compel document further responses to Request for Production of Documents, Set One (“RPD”) and for monetary sanctions were argued and submitted. Defendant filed formal oppositions to the motions and requested monetary sanctions in connection with both motions.

Statement of Facts

Plaintiff, an investment holding company involved in the development, manufacture and sale of solar products, alleges that Defendant, a former senior vice president of marketing, misappropriated Plaintiff’s proprietary and trade secret information. In particular, Plaintiff accuses Defendant of working for co-defendant Marathoner Clean & Lean Power, Ltd. (and possibly others) prior to the termination of his employment with Plaintiff, where he allegedly used its confidential client lists, market research information, and technical information to secure an unfair competitive advantage over it.

In its complaint, Plaintiff alleges eight causes of action against Defendant, his wife and Marathoner Clean & Lean Power, Ltd. for (1) breach of contract, (2) breach of fiduciary duty, (3) misappropriation of trade secrets in violation of the Uniform Trade Secrets Act, (4) tortious interference with contractual relations, (5) tortious interference with prospective economic damages, (6) common law unfair competition, (7) aiding and abetting, and (8) declaratory relief.

Discovery Disputes

1. Motion to Compel Deposition

On 22 November 2013, Plaintiff noticed the deposition of Defendant for 18 December 2013. On 9 December 2013, Defendant objected to the deposition on the ground Plaintiff did not coordinate the date of the deposition with defense counsel and Defendant would be traveling out of the country on the noticed date. On 6 January 2014, Plaintiff’s counsel contacted defense counsel to request available dates for Defendant’s deposition. On 7 January 2014, defense counsel indicated that Defendant would not be available for deposition until the last week of April 2014. After further discussion failed to resolve the timing dispute, Plaintiff filed this motion on 7 February 2014 to compel Defendant’s appearance at deposition. Defendant filed his opposition to the motion on 3 March 2014. On 7 March 2014, Plaintiff filed its reply.

2. Motion to Compel Further Responses to Requests for Production of Documents

On 26 November 2013, Plaintiff served the RPD on Defendant. On 27 December 2013, Defendant served responses consisting solely of objections. On 6 January 2014, Plaintiff’s counsel sent an email to defense counsel indicating that Defendant’s responses were deficient. On 7 January 2014, defense counsel stated that Defendant would provide amended responses on or before 21 January 2014.

On 22 January 2014, Defendant served amended responses. On 4 February 2014, Plaintiff’s counsel sent a detailed email indicating that no privilege log had been provided and many of the responses failed to comply with Code of Civil Procedure section 2031.230. Defense counsel sent an email in reply indicating that no additional documents would be produced. However, defense counsel indicated that Defendant might be willing to provide amended responses. On 10 February 2014, Plaintiff’s counsel sent an email requesting that amended responses comply with the requirements of Code of Civil Procedure section 2031.230. That was apparently the last communication between counsel on this subject.

On 20 February 2014, Plaintiff filed this motion to compel further responses to RPD Nos. 1-25, 27-34, 35, 40-41, 51-53, 60-63, 70, 112, and 145. On 3 March 2014, Defendant filed his opposition. On 7 March 2014, Plaintiff filed its reply.

Discussion

I. Motion to Compel Deposition

Plaintiff moves to compel Defendant’s deposition at the office of Plaintiff’s counsel in Palo Alto, California. Plaintiff contends that Mr. Wang did not appear for his timely noticed deposition on 18 December 2013, and Defendant provided no acceptable, alternative dates despite extensive efforts to meet and confer on the issue. In opposition, Defendant argues that Plaintiff inexplicably delayed taking any discovery during the nine months Defendant was in the country, Plaintiff is aware that Defendant travels extensively abroad for business, and it would be unduly burdensome to require Defendant to fly to California and back to China prior to late April.

If, after service of a deposition notice, a party to the action, without having served a valid objection under Code of Civil Procedure section 2025.410, fails to appear for the examination, the party giving the notice may move for an order compelling the deponent’s attendance and testimony. (Code Civ. Proc., § 2025.450, subd. (a).)

Here, Defendant’s objection is invalid. Defendant identifies no statutory provision or applicable case law suggesting that his purported unavailability is a proper objection to a notice of deposition.

In addition, Defendant did not take advantage of the remedy provided by the Code of Civil Procedure to reschedule the deposition to a more convenient date. Pursuant to Code of Civil Procedure section 2025.420, subdivision (b), Defendant could have sought a protective order. That statute provides that the Court may, for good cause shown, order a deposition be taken at a different time. As Defendant did not pursue this remedy and did not appear for his deposition, the motion to compel Defendant’s deposition is GRANTED.

Defendant requests that the Court allow him to appear for his deposition during the last week of April or the first week of May, 2014. Defendant declares that he will be out of the country until that time. Defendant’s request is reasonable and therefore, the Court shall order Defendant to appear for his deposition within 60 calendar days of the filing of the Court’s Order.

II. Motion to Compel Further Responses to the RPD

A party propounding a request for production of documents may move for an order compelling further responses if it deems a representation of inability to comply is inadequate, incomplete, or evasive or if it deems that an objection in the response is without merit. (Code Civ. Proc., § 2031.310, subd. (a).)

1. RPD Nos. 1-25, 27-34, 60-63, 70, 112, and 145

Plaintiff responded to RPD Nos. 1-25, 27-34, 60-63, 70, 112 and 145 with a statement of inability to comply. Plaintiff moves to compel further responses to these requests on the sole ground that the responses do not state that a diligent search was undertaken. In opposition, Defendant states that he is willing to provide amended responses, but indicates that Plaintiff failed to adequately meet and confer on the issue.

Motions to compel the production of documents must be accompanied by a meet and confer declaration showing a reasonable and good faith attempt to resolve issues informally. (Code Civ. Proc., § 2031.310(b).) In determining whether such an attempt has been made, a court may consider a number of factors, including, the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of the discovery requested, and the prospects for success. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

In an email to defense counsel sent on 4 February 2014, Plaintiff’s counsel first indicated that many of the amended responses did not comply with Code of Civil Procedure section 2031.230. In this regard, counsel copied and pasted the relevant code section in his email. Two days later, on 6 February 2014, defense counsel sent an email in response. She inquired whether inclusion of a statement that Defendant conducted a reasonable search and inquiry and was unable to comply with the reasons already specified in the responses would be sufficient to remedy any defect. On 10 February 2014, Plaintiff’s counsel reiterated that the responses must comply with Code of Civil Procedure section 2031.230 and specifically set forth what the statute requires. There is no indication defense counsel responded to that communication.

Here, Plaintiff properly made a reasonable and good faith effort to resolve the issue informally. Its counsel’s emails specifically identified the portions of the responses considered deficient and provided Defendant with a remedy to cure the deficiency. Therefore, the meet and confer efforts were sufficient.

Turning to the responses, as pointed out by Plaintiff’s counsel, the responses are clearly not code-compliant. Therefore, the motion to compel further responses to RPD Nos. 1-25, 27-34, 60-63, 70, 112 and 145 is GRANTED.

2. RPD Nos. 35 & 40

RPD No. 35 seeks all documents relating to any income or other remuneration Defendant received from Plaintiff from January 2011 until the present. RPD No. 40 seeks all documents relating to any income or other remuneration Defendant earned in any capacity, whether as an employee, officer, director, consultant, contractor or otherwise from January 2011 to the present. Defendant responded by making a number of objections.

Plaintiff contends that the RPD are critical to demonstrating that Defendant began illegally misappropriating trade secrets and competing with Plaintiff prior to the termination of his employment. Defendant argues the RPD is harassing and overbroad, the information is within Plaintiff’s possession, the terms “income or other remuneration” are vague and ambiguous, and the RPD seeks documents irrelevant to Plaintiff’s action.

A. Good Cause

A motion for an order compelling further responses to the request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) In order to establish good cause, the burden is on the moving party to show relevance to the subject matter and specific facts justifying the discovery. (See Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Once a showing of good cause is made, the burden shifts to the opposing party to justify his or her objections. (See Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Plaintiff contends that documents related to Defendant’s income or other remuneration are critical to demonstrating that Defendant began illegally misappropriating trade secrets and competing with Plaintiff prior to the termination of his employment. In support of these contentions, Plaintiff’s counsel declares, “In Request No. 14, Wang is asked to produce documents relating to a trip he took to a lighting conference on defendant Marathoner Clean and Lean Power, LTD’s (‘Marathoner’) behalf. Information relating to Wang’s participation at the conference on Marathoner’s behalf is relevant to TRONY’s claims because evidence suggests that Wang began preparing for his attendance at the conference while still employed by TRONY.” (Suits Decl., ¶ 7.)

Documents indicating that Defendant was receiving remuneration from both Plaintiff and co-defendant Marathoner Clean and Lean Power, LTD. could have some tendency to demonstrate that Defendant was in violation of the terms of his employment contract with Plaintiff. Accordingly, Plaintiff has demonstrated good cause for the RPD. Therefore, the burden shifts to Defendant to justify his objections.

B. Objections

First, Defendant contends that RPD Nos. 35 and 40 are overbroad and burdensome and harassing because the number of documents contemplated by RPD Nos. 35 and 40 is extraordinary.

“[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating hardship. (Id. at pp. 417-418.) In ruling on the objection, the court should balance the purpose and need for the information against the burden that production entails, including costs. (Ibid.)

In support of this objection, Defendant argues that RPD No. 35 appears to seek documents relating to a dispute concerning Defendant’s Palo Alto residence. Defendant purchased the residence with funds advanced by Plaintiff as part of an employment incentive agreement. Defendant contends documents responsive to this request include seven pleading volumes, two full shelves of depositions, and other correspondence related to a lawsuit involving this property. However, Defendant makes no particularized showing of facts demonstrating the hardship the production of this information would entail. Defendant does not provide an estimate of the amount of time the document production would take or the extent of the expense such a production would require Defendant to incur. (Contra, Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 318 [review of documents would require 5 claims adjusters working full time for six weeks each.]) Therefore, the objection is overruled.

Second, Defendant argues that the documents sought in response to RPD No. 35 are already within Plaintiff’s possession, custody and control. Defendant does not deny that he has possession of the documents sought by the request. Instead, he contends that even if he does have access to these documents, Defendant surely does as well. Defendant’s objection is without merit. Defendant provides no specific facts indicating that Plaintiff retains Defendant’s compensation records several years after Defendant’s termination. Therefore, as Defendant has not demonstrated that the documents sought in response to RPD No. 35 are already in Plaintiff’s possession, the objection is overruled.

Third, Defendant contends that the terms “income or other remuneration” and “You” render RPD Nos. 35 and 40 vague and ambiguous. In order to justify a vagueness objection, the responding party must demonstrate that the request at issue is totally unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; Standon v. Superior Court (1990) 225 Cal.App.3d 898, 903 [vague and ambiguous objection frequently considered to be a nuisance objection.]) However, Defendant provides no specific facts indicating how the terms render the requests unintelligible. Therefore, the objection is overruled.

Fourth, Defendant contends that the information sought is irrelevant. Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

As previously discussed, the documents sought by RPD Nos. 35 and 40 may have some tendency to show that Defendant received compensation from co-defendant Marathoner Clean and Lean Power, LTD. at or near the same time he received compensation from Plaintiff, in violation of the terms of his employment contract with Plaintiff. Therefore, the documents are relevant. Accordingly, Defendant’s objection is overruled.

Finally, while the responses to RPD Nos. 35 and 40 contain additional objections, the only objections Defendant attempted to defend in his opposition are those discussed above. Consequently, his remaining objections are overruled, with the exception of his objections based on the attorney-client privilege and attorney work product doctrine, which are preserved. (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221, Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189.)

Based on the foregoing, further responses are warranted to RPD Nos. 35 and 40.

3. RPD No. 41

RPD No. 41 seeks all documents relating to any service Defendant performed for any company or third-party, whether as an employee, officer, director, consultant, contractor or otherwise from January 2011 to the present. Defendant responded by making several objections.

Plaintiff contends that Defendant has created a number of shell companies in order to hide his activities and assets. Plaintiff further argues that documents related to the services Defendant performed would clarify who his employers since 2011 are. In opposition, Defendant contends RPD No. 41 is unduly burdensome.

A. Good Cause

Plaintiff contends that documents related to the remunerative services Defendant performed over the last three years are critical to determining the business entities to which Defendant may have provided Plaintiff’s confidential and proprietary information. (Suits Decl., ¶ 10.) This information will assist Plaintiff at trial by allowing Plaintiff to gather evidence in support of its misappropriation cause of action. (See Gonzalez v. Superior Court, supra, 33 Cal.App.4th at p. 1546.) Therefore, Plaintiff has demonstrated good cause for the RPD. Accordingly, the burden shifts to Defendant to justify his objections.

B. Objections

Defendant objected on the grounds that the RPD is unduly burdensome because documents related to Defendant’s services could include all communications, reports, meeting minutes, invoices, phone logs, and notes concerning Defendant’s employment over the last three years. Nevertheless, once again, Defendant makes no particularized showing of facts demonstrating the hardship the production would entail, does not provide an estimate of the amount of time such a document production would take, or the extent of the expense such a production would force Defendant to incur. Therefore, Defendant’s objection is overruled.

Finally, while the response to RPD No. 42 contains additional objections, the only objections Defendant attempted to defend in his opposition are those discussed above. Consequently, his remaining objections are overruled, with the exception of his objections based on the attorney-client privilege and attorney work product doctrine, which are preserved. (See Coy v. Superior Court, supra, 58 Cal.2d at pp. 220-221, Best Products, Inc. v. Superior Court, supra, 119 Cal.App.4th at pp. 1188-1189.)

Based on the foregoing, a further response to RPD No. 41 is justified.

4. RPD No. 51

RPD No. 51 seeks every business card Defendant has used from 2008 to present. Defendant responded as follows, “Objection. The request is vague and ambiguous as to ‘your’, is overbroad as to time, is burdensome and harassing, seeks documents in propounding party’s possession, custody or control, seeks documents irrelevant to any matter at issue in the litigation, and is not reasonably calculated to lead to the discovery of admissible evidence. Responding party does not keep copies of former business cards and objected to the production of his current business card as irrelevant and harassing.”

Plaintiff contends that Defendant has created a number of shell companies in order to hide his activities and assets and the production of Defendant’s business cards would clarify who his employers since 2011 have been. Defendant argues RPD No. 51 is irrelevant and harassing.

A. Good Cause
B.
Plaintiff argues that Defendant’s business cards are critical to determining the business entities to which Defendant may have provided Plaintiff’s confidential and proprietary information. (Suits Decl., ¶ 10.) This information will assist Plaintiff at trial by allowing Plaintiff to gather evidence in support of its misappropriation cause of action. (See Gonzalez v. Superior Court, supra, 33 Cal.App.4th at p. 1546.) Therefore, Plaintiff has demonstrated good cause for RPD No. 51. Accordingly, the burden shifts to Defendant to justify his objections.

B. Objections

Defendant refuses to produce his current business card on the ground that RPD No. 51 is harassing and irrelevant. As noted above, the “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court, supra, 31 Cal.3d at p. 790.) Given that Defendant’s current business card will assist Plaintiff in preparing for trial and Defendant has provided no specific facts indicating that production of his business card will be harassing in any way, the objections are overruled.

Finally, while the response to RPD No. 51 contains additional objections, the only objections Defendant attempted to defend in his opposition are those discussed above. Consequently, his remaining objections are overruled.

Based on the foregoing, a further response to RPD No. 51 is warranted.

5. RPD Nos. 52-53

RPD No. 52 seeks a copy of Defendant’s passport. RPD No. 53 seeks all documents relating to any travel Defendant has made outside of the United States, including documents sufficient to establish the dates and location of such travel from January 2011 to the present. Defendant responded to both RPD by making a number of objections. Plaintiff contends that it is aware of at least one overseas business trip made by Defendant on co-defendant Marathoner Clean and Lean Power, LTD’s behalf and believes there are many more trips. Plaintiff further argues that establishing Defendant’s whereabouts is relevant to determine who Defendant met and what regions of the world he was visiting. In opposition, Defendant contends that RPD Nos. 52 and 53 are not targeted toward trips relevant to Plaintiff’s claim and RPD Nos. 52 and 53 is harassing.

A. Good Cause
B.
Plaintiff contends that Defendant’s travel documents are critical to determining whether Defendant utilized Plaintiff’s confidential and proprietary information to compete with Plaintiff shortly after his termination. (Suits Decl., ¶ 10.) This information will assist Plaintiff at trial by allowing it to confirm that Defendant began competing with Plaintiff prior to the termination of his employment and that he used Plaintiff’s confidential information to do so. (See Gonzalez v. Superior Court, supra, 33 Cal.App.4th at p. 1546.) Therefore, Plaintiff has demonstrated good cause for RPD Nos. 52 and 53. Accordingly, the burden shifts to Defendant to justify his objections.

B. Objections

First, Defendant contends that RPD Nos. 52 and 53 are harassing. Defendant, however, has failed to provide specific facts in support of this objection. Therefore, the objection is overruled.

Next, Defendant contends that RPD Nos. 52 and 53 are not targeted towards trips relevant to his claim. However, as discussed above, the information might reasonably assist Plaintiff by allowing it to confirm that Defendant began competing with Plaintiff prior to the termination of his employment and that he used Plaintiff’s confidential information to do so. (See Gonzalez v. Superior Court, supra, 33 Cal.App.4th at p. 1546.) Accordingly, the objection is overruled

Finally, while the responses to RPD Nos. 52 and 53 contain additional objections, the only objections Defendant attempted to defend in his opposition are those discussed above. Consequently, his remaining objections are overruled.

Based on the foregoing, further responses to RPD Nos. 52-53 are necessary.

III. Monetary Sanctions

1. Plaintiff’s Requests for Sanctions
2.
A. Motion to Compel Deposition

Plaintiff makes a code-compliant request for monetary sanctions against Defendant in the amount of $2,040. If a motion to compel a deponent’s attendance and testimony is granted, the Court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Defendant was not substantially justified in opposing the motion to compel. No other circumstances make the imposition of sanctions unjust. Therefore, Plaintiff is entitled to an award of monetary sanctions against Defendant.

Plaintiff’s counsel, Eric Suits, avers that he spent 2 hours preparing this motion at a billing rate of $680 per hour ($1,360). He requests an additional $680 to prepare a reply and to appear at the hearing on this matter. The Court does not award sanctions for expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the anticipated attorney fees are not compensable. The hourly rate and hours spent are otherwise reasonable. Accordingly, Plaintiff’s request for sanctions is GRANTED IN PART in the amount of $1,360.

B. Motion to Compel Further Responses to the RPD

Plaintiff requests an award of monetary sanctions against Defendant and his counsel. In support of the request for sanctions, Plaintiff cites Code of Civil Procedure sections 2023.040 and 2030.030, subdivision (a). Section 2023.040 merely specifies the requirements for a request for sanctions and section 2030.030, subdivision (a) concerns the number of specially prepared interrogatories and form interrogatories that may be propounded. These two sections do not provide a statutory basis to award sanctions to Plaintiff. Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

3. Defendant’s Requests for Sanctions
4.
A. Motion to Compel Deposition

Defendant requests $792 in monetary sanctions against Plaintiff pursuant to Code of Civil Procedure section 2023.010, subdivision (h), which authorizes the imposition of a monetary sanction for making, unsuccessfully and without substantial justification, a motion to compel discovery. However, given that Plaintiff’s motion to compel Defendant’s deposition was successful, an award of sanctions against Plaintiff is not warranted. Accordingly, Defendant’s request for monetary sanctions against Plaintiff is DENIED.

B. Motion to Compel Further Responses to the RPD

Defendant requests $1,551 in monetary sanctions against Plaintiff pursuant to Code of Civil Procedure section 2031.320, subdivision (h). That statute provides that a court shall impose a monetary sanction against any person who unsuccessfully makes or opposes a motion to compel a further response to a request for production, 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. (Code Civ. Proc., § 2031.320, subd. (h).) Here, Plaintiff’s motion to compel further responses to RPD was successful. Accordingly, Defendant’s request for monetary sanctions against Plaintiff is DENIED.