Waleed Elsheref, et al. v. Applied Materials, Inc., et al.		CASE NO. 110CV170736
DATE: 5 September 2014	TIME: 9:00	LINE NUMBER: 1

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 4 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 5 September 2014, the following motions were argued and submitted: (1) the motion of defendant Applied Materials, Inc. (“AMI”) for a protective order with regard to the taking of the deposition of its person most qualified, and for monetary sanctions, and (2) Applied Material’s motion to compel further responses to discovery by plaintiff Waleed Elsheref (“Waleed”), and for monetary sanctions. Waleed and plaintiff Zainab Musbah (“Musbah”) (collectively, “Plaintiffs”) filed a formal opposition to the motion for a protective order. Waleed filed a formal opposition to the motion to compel further responses to discovery.

I.       Statement of Facts

This preconception tort claim arises out of the alleged toxic exposure of Waleed’s father, Khaled Elsheref (“Khaled”), who worked as an engineer at AMI’s semiconductor manufacturing facility. In their operative first amended complaint (“FAC”), Plaintiffs allege that Waleed was born with birth defects caused by Khaled’s exposure to teratogenic, genotoxic, and reproductively toxic chemicals during his employment with AMI.

In the FAC, Waleed asserted six causes of action against AMI for negligence, strict liability/ultrahazardous activity, willful misconduct, misrepresentation, premises liability, and strict products liability. Zainab asserted claims for negligent and intentional infliction of emotional distress.

On 12 August 2011, AMI moved for summary adjudication, seeking a ruling that it did not owe a duty of care to Plaintiffs for preconception injuries. On 30 December 2011, the Court (Hon. Pierce) granted AMI’s motion for summary adjudication. On 26 March 2012, Plaintiffs agreed by stipulation to dismiss with prejudice any claims they may have against AMI that were not subject to the Court’s summary adjudication order. The following day, the court entered judgment in favor of AMI. Plaintiffs appealed on 18 May 2012.

On 27 January 2014, the Court of Appeal reversed the judgment and directed the trial court to enter a new order granting AMI’s motion as to all causes of action except the cause of action for strict products liability. (See Elsheref v. Applied Materials, Inc. (2014) 223 Cal.App.4th 451, 465.)

II.      Discovery Disputes                                  

         A.  Motion for Protective Order

On 11 June 2014, Plaintiffs served a notice on AMI of the taking of the deposition of AMI through its person most qualified (“PMQ”) and attendant requests for the production of documents. The notice identified 5 matters of inquiry and 8 categories of documents.

On 25 June 2014, AMI served an objection to the notice of deposition. On that same day, AMI’s counsel sent a meet and confer letter to Plaintiffs’ counsel concerning the notice of deposition. Counsel indicated that much of the information sought by the notice of deposition and the documents requested was already provided to Plaintiffs more than three years ago in a previous PMQ deposition. In addition, counsel indicated that the notice of deposition sought information beyond the proper scope of discovery.

On 27 June 2014, counsel for Plaintiffs and AMI met and conferred via telephone. Counsel dispute the outcome of this discussion. AMI’s counsel states that Plaintiffs agreed to take the PMQ deposition off-calendar if AMI agreed to provide Plaintiffs with a list of the manufacturers of the toxic products used in Khaled’s workplace. Plaintiffs’ counsel avers that he welcomed AMI’s compromise, but expressly stated that Plaintiffs reserved the right to take the PMQ deposition at a later juncture. (See Bricker Decl., ¶ 5.) In particular, Plaintiffs’ counsel sent an email later that day indicating that an informal list of suppliers would likely suffice for the moment, but a deposition might still be necessary for evidentiary purposes.

On 24 July 2014, AMI’s counsel sent a list of the manufacturers of toxic products to Plaintiffs’ counsel and indicated that AMI would not produce a PMQ for deposition.

On 31 July 2014, Plaintiffs filed a number of amendments to the FAC, substituting 18 manufacturers of toxic products for Doe defendants.

Despite a number of additional discussions, the parties were unable to resolve their disagreements concerning the PMQ deposition. On 7 August 2014, AMI filed a motion for a protective order preventing the deposition of its PMQ and the attendant production of documents. Plaintiffs filed their opposition on 22 August 2014. On 28 August 2014, AMI filed its reply. Plaintiffs filed a sur-reply on 2 September 2014.

B.  Motion to Compel Further Responses to Discovery

On 25 June 2014, AMI served requests for admissions, set two (“RFA”), form interrogatories, set three (“FI”), special interrogatories, set four (“SI”), and requests for production of documents, set four (“RPD”) on Waleed. In an email to AMI’s counsel on 2 July 2014, Waleed’s counsel requested an extension of time to respond to the discovery. AMI’s counsel denied the request.

On 29 July 2014, Waleed served unverified responses to the RFA, FI, SI, and RPD, consisting of objections and substantive responses. Dissatisfied with the responses, AMI’s counsel sent a meet and confer letter to Waleed’s counsel on 1 August 2014.

On 6 August 2014, counsel for both parties met and conferred via telephone concerning the discovery responses. Waleed’s counsel declares that he told opposing counsel that Waleed would provide supplemental responses to the discovery at issue after the weekend. (See Peebles Decl., ¶ 8.) AMI’s counsel insisted that supplemental responses be provided by 11 August 2014 or it would file a motion to compel.

On 11 August 2014, Waleed’s counsel confirmed that Waleed would provide supplemental responses the following day. On 12 August 2014, Waleed served unverified supplemental responses to the SI and RPD. On that same day, Waleed’s counsel sent an email to AMI’s counsel stating that Waleed would serve supplemental responses to the FI and RFA later that week.

On 13 August 2014, AMI filed the instant motion to compel further responses to discovery. The next day, Waleed served unverified supplemental responses to the FI and the RFA. On 22 August 2014, Waleed filed his opposition. On 26 August 2014, Waleed served verifications to his supplemental responses to the RFA, FI, SI, and RPD. AMI filed its reply on 28 August 2014.

III.     Discussion

         A.  Motion for Protective Order

AMI moves for a protective order preventing the deposition of its PMQ and the attendant production of documents on the grounds that the information sought by the deposition is duplicative and not relevant to Plaintiffs’ remaining cause of action against AMI for strict products liability.

               1.            Legal Standards

Before, during, or after, for good cause shown, a court may make any order that justice requires to protect any party, deponent, or other natural person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense relative to discovery matters. (Code Civ. Proc., § 2025.420, subd. (b).) Generally, the party or deponent seeking a protective order must show that the burden, expense, or intrusiveness involved in the taking of the deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.020; see also Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110-1111.)

In addition, Code of Civil Procedure section 2019.030 provides that “[t]he court shall restrict the frequency or extent of use of a discovery method . . . if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative . . . [or] (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation.” (Code Civ. Proc. § 2019.030, subd. (a)(1) & (2).) “The court may make these determinations pursuant to a motion for a protective order. . . .” (Code Civ. Proc., § 2019.030, subd. (b).) To prevail on a motion for protective order under section 2019.030, the moving party bears the burden of establishing that the discovery at issue is either cumulative or duplicative, or unduly burdensome. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

2.            Objections

                              a.            Duplicative Matters of Inquiry

AMI contends that the matters of inquiry (“Matter”) Nos. 1-5 set forth in the notice of deposition at issue here are duplicative of the matters of inquiry to which AMI already produced witnesses for PMQ depositions in November 2011.[1]

Matter Nos. 1 and 2 concern the identity of the suppliers, distributors, and manufacturers from which AMI obtained mercury and other toxic chemicals from 2001 to April 2004. AMI contends that Matter Nos. 1 and 2 are duplicative of Matter Nos. 21 and 25 set forth in the 2011 PMQ deposition notice, which concerned the identity of any entity or business from which AMI purchased “Exhibit A” chemicals. AMI’s argument is not persuasive. As AMI acknowledges in its motion, the “Exhibit A” chemicals include most, but not all, of the chemicals described in Matter Nos. 1 and 2. Thus, Plaintiffs did not have the opportunity to inquire into all of these chemicals in the 2011 PMQ deposition. Accordingly, the information sought pursuant to Matter Nos. 1 and 2 are not duplicative of the information sought pursuant to Matter Nos. 21 and 25 set forth in the 2011 PMQ deposition notice.

Matter No. 3 concerns the name of all radiation-generating tools on AMI’s premises from 2001 to April 2004. Matter No. 4 concerns the identity of suppliers, distributors, and/or manufacturers from which AMI obtained all radiation-generating tools on AMI’s premises from 2001 to April 2004. AMI argues that Matter Nos. 3-4 are duplicative of Matter No. 4 set forth in the 2011 PMQ deposition notice, which concerned all information regarding manufacturing processes, tools, equipment, chemicals and products with which Khaled worked.  AMI’s argument lacks merit. Matter Nos. 3-4 are narrowly targeted to a specific set of equipment (i.e., radiation-generating equipment) and the identities of the suppliers, distributors, or manufacturers of this equipment. In contrast, Matter No. 4 in the 2011 PMQ deposition broadly concerned all information regarding a number of different subjects, including manufacturing processes, tools, equipment, chemicals and other products. As such, Plaintiffs did not have the opportunity to depose AMI’s PMQ concerning this information in the 2011 PMQ deposition. (See Opp’n., p. 6:1-2.) Thus, the information sought pursuant to Matter Nos. 3 and 4 are not duplicative of the information sought pursuant to Matter No. 4 set forth in the 2011 PMQ deposition notice.

Matter No. 5 concerns the chemicals listed or described in chemical authorizations from 2001 to April 2004 for the buildings at which Khaled worked. AMI asserts that Matter No. 5 is duplicative of Matter Nos. 4, 14, 51, and 52 set forth in the 2011 PMQ deposition notice, which concerned all information regarding chemicals with which Khaled worked and all exposures to chemicals he experienced. AMI’s argument is not persuasive. Matter No. 5 concerns information about chemicals to which Khaled might have been exposed, whereas Matter Nos. 4, 14, 51, and 52 in the 2011 PMQ deposition concerned chemicals to which Khaled was exposed. As such, at the 2011 deposition, Plaintiffs did not have the opportunity to inquire into all of the information sought by Matter No. 5 set forth in the present PMQ notice. (See Opp’n., p. 6:1-2.) Accordingly, the information sought pursuant to Matter No. 5 is not duplicative of the information sought pursuant to Matter Nos. 4, 14, 51, and 52 set forth in the 2011 PMQ deposition notice.

3.            Duplicative Documents

AMI asserts that document requests (“Request”) Nos. 2-4 attendant to the notice of deposition are duplicative of the document requests attendant to the 2011 PMQ deposition notice.

Request No. 2 seeks all documents for all SSM Mercury probes on AMI’s premises from 2001 to April 2004. AMI contends that Request No. 2 is duplicative of Request No.15 attendant to the 2011 PMQ deposition notice, which sought all documents pertaining to industrial hygiene policies and practices regarding any chemical uses in AMI’s clean rooms. This argument is not persuasive. Request No. 2 specifically targets documents concerning SSM Mercury probes during a specific period of time (2001 to April 2004). In contrast, Request No. 15 attendant to the 2011 PMQ deposition notice did not specifically request documents related to this subject or this time period. Thus, Request No. 2 is not duplicative of Request No. 15 attendant to the 2011 PMQ deposition notice.

Request No. 3 seeks all documents that identify the suppliers, distributors and/or manufacturers from which AMI obtained chemicals from 2001 to April 2004. AMI argues that Request No. 3 is duplicative of Request Nos. 21 and 29 attendant to the 2011 PMQ deposition notice, which sought all documents concerning the identity of any entity or business from which AMI purchased “Exhibit A” chemicals. AMI’s argument is not persuasive. As AMI acknowledges in its motion, the “Exhibit A” chemicals include most, but not all, of the chemicals described in Request No. 3. As these requests do not completely overlap, Request No. 3 is not duplicative of Request Nos. 21 and 29 attendant to the 2011 PMQ deposition notice.

Request No. 4 seeks all documents that authorize the use of toxic chemicals from 2001 to April 2004 in the buildings at which Khaled worked. AMI asserts that Request No. 4 is duplicative of Request No. 21 attendant to the 2011 PMQ notice, which sought all documents pertaining to the use of “Exhibit A” chemicals between 2001 and 2008. As indicated above, the “Exhibit A” chemicals do not include all of the toxic chemicals used at AMI’s premises. Thus, these requests do not completely overlap and Request No. 4 is not duplicative of Request No. 21.

               4.            Relevance

AMI contends that the matters of inquiry and requests for documents attendant to the deposition notice are not relevant to Plaintiffs’ remaining cause of action for strict liability because AMI is not a manufacturer, supplier or distributor of toxic chemicals. In opposition, Plaintiffs argue that the information is relevant to discover information in support of their causes of action against the recently added chemical manufacturers, suppliers and distributors.

Discovery is allowed for any matter that is 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 the discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co., supra, 31 Cal.3d at p. 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, supra, 33 Cal.App.4th at p. 1546.)

Here, AMI does not dispute that information concerning its purchase of toxic chemicals from its chemical manufacturers, suppliers and distributors may assist Plaintiffs in demonstrating that these entities are strictly liable for their injuries. Accordingly, the information sought is relevant to the subject matter of Plaintiffs’ action, and therefore, AMI’s objection on this ground is unjustified.

5.            Conclusion

Based on the foregoing, AMI fails to demonstrate that the information sought is duplicative or irrelevant, and its objections on these grounds are therefore overruled. Accordingly, the motion for a protective order is DENIED.

               6.            AMI’s Request for Monetary Sanctions

AMI seeks monetary sanctions against Plaintiffs pursuant to Code of Civil Procedure section 2025.420, subdivision (h), which provides, in pertinent part, that the court shall impose a monetary sanction against a party who unsuccessfully opposes a motion for protective order, unless the party acted with substantial justification or other circumstances make the imposition of a sanction unjust. Here, Plaintiffs successfully opposed the motion for protective order. Accordingly, AMI’s request for monetary sanctions is DENIED.

         B.  Motion to Compel Further Verified, Responses to Discovery Requests

AMI moves to compel further responses to RFA Nos. 51-59, 62-66, 78-87, 96-97, [2] FI No. 17.1, SI Nos. 36-60, 63-65, 67-81, 83-87, 89-96, 98, 103-105, and RPD Nos. 22-25 on the grounds that the responses are evasive and incomplete.[3] In opposition, Waleed argues that AMI did not make a reasonable and good faith attempt at informal resolution of the motion.

A motion to compel further responses to requests for admissions, interrogatories and requests for production of documents shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of  each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2030.300, subd. (b), 2031.310, subd. (b)(2), 2033.290, subd. (b).) A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1439.) It requires that the parties present the merits of their respective positions with candor, specificity, and support. (Id.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) The court has discretion to deny discovery absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the circumstances presented. (See Townsend, supra, 61 Cal.App.4th at p. 1439; Obregon, supra, 67 Cal.App.4th at p. 434.)

Waleed contends that AMI’s counsel refused his reasonable request for an extension of the time to provide discovery. As a result, Waleed’s counsel did not have the opportunity to gather the information necessary to fully respond to the discovery and served responses with the limited information in his possession. (See Peebles Decl., ¶ 6.) After AMI’s counsel indicated that the responses to the RFA, FI, SI, and RPD were insufficient on 1 August 2014, Waleed’s counsel agreed to provide supplemental responses no later than the week of 11 August 2014. In this regard, Waleed served supplemental responses to the SI and RPD on 12 August 2014, and promised to provide supplemental responses to the RFA and FI that week. Instead of waiting for the supplemental responses to the RFA and the FI, AMI immediately filed the instant motion. Here, it appears that AMI did not meet and confer in good faith. Even though it was aware that supplemental responses were forthcoming, AMI rushed into filing the instant motion.

In any case, as articulated above, Waleed served AMI with supplemental responses to the SI and RPD on 12 August 2014, one day before the filing of this motion.[4] In addition, Waleed served AMI with supplemental responses to the RFA and RPD on 14 August 2014, one day after the filing of the instant motion.

When discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.)  In its discretion, the court may compel responses without objection, deny the motion as unnecessary, treat the motion as a motion to compel further responses and, either determine that further responses are required, or order the propounding party to meet and confer and file a separate statement, or take the motion off calendar. (Id. at pp. 408-409.)

In its reply, AMI indicates that it believes that Waleed’s supplemental responses to the discovery requests are deficient. Given the sheer number of requests to which further responses were provided, the Court declines to evaluate the sufficiency of the amended responses at this juncture and AMI should meet and confer with Waleed regarding the purported deficiencies in the supplemental responses to avoid the need for any further court intervention. Accordingly, the Court denies the motion to compel further responses to RFA Nos. 51-59, 62-66, 78-87, 96-97, FI No. 17.1, SI Nos. 36-60, 63-65, 67-81, 83-87, 89-96, 98, 103-105, and RPD Nos. 22-25 as moot.

IV.   Conclusion and Order

AMI’s motion for a protective order precluding the taking of the deposition of its person most qualified is DENIED. The deposition was noticed to occur on 7 August 2014. Because that date has passed, the parties are directed to meet and confer regarding a mutually agreeable date for the deposition to occur within 20 calendar days of this Order.

AMI’s request for monetary sanctions in connection with the motion for a protective order is DENIED.

AMI’s motion to compel further responses to RFA Nos. 51-59, 62-66, 78-87, 96-97, FI No. 17.1, SI Nos. 36-60, 63-65, 67-81, 83-87, 89-96, 98, 103-105, and RPD Nos. 22-25 is DENIED as moot.

 

 

________________­­­____________ DATED:

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

 

[1] In addition, AMI contends that Plaintiffs are barred from deposing its PMQ because it previously deposed its PMQ three years ago and the Court (Hon. William Monahan) granted a motion for protective order limiting the scope of the previous PMQ depositions. These arguments lack merit. First, AMI submits no authority for the proposition that a party may not conduct more than one PMQ deposition. Second, the prior motion for a protective order concerned different matters of inquiry and requests for documents. Therefore, the previous order does not affect the outcome of this motion.

[2] In its reply brief, AMI withdraws its motion as to the responses to RFA Nos. 81-83 and 87 due to the service of supplemental responses.

[3] In its notice of motion, AMI indicates that Waleed’s responses to the discovery at issue were not verified and suggests that they are seeking, in addition to further responses, production of verifications for the responses. While it goes on to mention the lack of verification in its memorandum of points and authorities, AMI does not make an affirmative request for verifications. Instead, AMI affirmatively requests further responses on the grounds that the responses produced are evasive and incomplete.

[4] Although technically served one day before the motion, the supplemental responses were served via U.S. mail from El Segundo, CA, and presumably were not received before the motion was actually filed.