Case Name: Waqas Khan, et al. v. Amir Khan, et al.
Case No.: 2015-1-CV-283773

I. Background and Discovery Dispute

This is an action, in essence, for misappropriation of trade secrets brought by plaintiffs Waqas Khan (“Waqas”) and Yaala Corporation (“Yaala”) (collectively, “Plaintiffs”) against defendants Amir Khan (“Amir”), Khalid Raza (“Raza”), and Viptela, Inc. (“VI”) (collectively, “Defendants”). Waqas, Amir, and Raza founded Yaala in 2011 to develop and market a specific type of Wide Area Network (“WAN”) technology they characterized as “over-the-top” due to its ability to be operated across multiple carriers with “separated data and control planes directly on the internet.” (Compl. at p. 1:4-13.)

Each founder signed a Confidentiality Agreement and a Consultant Proprietary Information and Invention Assignment Agreement (the “Assignment Agreement”) upon forming the company. (Compl. at p. 1:14-17.) In January 2012, Amir and Raza left Yaala to form their own company, VI. (Compl. at p. 2:3-12.) At VI, Amir and Raza worked to develop identical WAN technology, which they renamed “Software-Defined Networking.” (Compl. at p. 2:8-10.) According to Plaintiffs, Defendants stole their proprietary information to develop this identical WAN technology. (Compl. at p. 2:13-19.)

On this basis, Plaintiffs filed a complaint for damages in which they assert Amir and Raza breached the parties’ agreements and their fiduciary duties. Plaintiffs also allege Defendants’ conduct violated California’s Unfair Competition Law.

On October 30, 2016, Plaintiffs served Mohammed Ahmed (“Ahmed”) with a deposition subpoena requiring him to appear to testify and produce documents on November 10, 2016. (Stanton Decl., ¶ 6.) Nonparty Ahmed is a childhood friend of Waqas who, while not an investor, attended some meetings with Waqas and the other founders when Yaala was first started. (Stanton Decl., Exh. I at pp. 47, 49, 52-53.) One week before the deposition, Plaintiffs’ counsel stated she planned to attend the deposition and asked Defendants to reschedule it to accommodate her. (Stanton Decl., ¶ 7.) Plaintiffs’ counsel subsequently stated she would in fact be representing Ahmed at the deposition; the parties agreed on a new deposition date of November 30, 2016. (Stanton Decl., ¶¶ 7-10.)

The day before the deposition, Plaintiffs’ counsel informed Defendants’ counsel Ahmed had “no non-privileged documents responsive to Defendants’ deposition subpoena,” which sought documents concerning the founding of Yaala, Yaala’s marketable technology and business plans, and “Yaala’s attorneys, including Rony Sagy.” (Stanton Decl., Exh. H; Defendants’ Sep. Stat. at p. 5:6-28.) Plaintiffs’ counsel insisted the only responsive documents in Ahmed’s possession were “protected by the attorney work product doctrine.” (Stanton Decl., Exh. H.)

Ahmed appeared for deposition and testified about his long friendship with Waqas, limited involvement in the founding of Yaala, and lack of technical expertise with respect to the specific technology at issue. (Stanton Decl., Exh. I.) Defendants also asked Ahmed about his involvement in the present case because Plaintiffs wanted to designate him as a “consultant” within the meaning of the parties’ protective order so he could review documents designated “highly confidential.” (See Prot. Order., ¶ 5.) Plaintiffs’ counsel made several objections on the ground of “privilege” and told Ahmed he could “testify as long as it does not invade the attorney work product privilege . . . .” (Stanton Decl., Exh. I at p. 76:23-25.) For example, when asked about compensation received for his “consulting” services, Plaintiffs’ counsel objected stating: “Well, the amount will give you an idea of how many hours he put in, and that will give you more information about the work that he has done. So as a result, I believe it is covered by privilege.” (Stanton Decl., Exh. I at p. 79:12-16.) Ahmed later admitted he “was not expecting any compensation.” (Stanton Decl., Exh. I at p. 82:16.) In any event, Plaintiffs’ counsel continued to object to the line of inquiry about what exactly Ahmed’s role was in the case. (Stanton Decl., Exh. I. at p. 92.)

Several days later, as a follow up to her previous letter stating Ahmed had no nonprivileged documents responsive to Defendants’ document requests, Plaintiffs’ counsel sent Defendants’ counsel a privilege log. (Stanton Decl., Exh. J.) The privilege log reflects 19 documents were withheld solely on the ground of the work product doctrine. (Stanton Decl., Exh. J.) All of the documents withheld, except for Document No. 19, are correspondence authored by Waqas and sent to Ahmed. (Stanton Decl., Exh. J.) Document No. 19 is a letter authored by Plaintiffs’ counsel concerning proposed language for a mediation brief. (Stanton Decl., Exh. J.)

In response, Defendants’ counsel wrote to Plaintiffs’ counsel arguing she did not demonstrate how communications with Ahmed are either privileged or protected by the work product doctrine. (Stanton Decl., Exh. K.) Defendants’ counsel asserted that Plaintiffs’ counsel had not, as promised, produced the consulting agreement purportedly showing Ahmed is in fact working with Plaintiffs as a “litigation consultant.” (Stanton Decl., Exh. K.) Additionally, Defendants’ counsel argued Ahmed is simply a percipient witness who admitted he has no technical expertise relevant to the litigation such that he is not “‘necessary’ or ‘highly useful’ to the effective consultation of counsel.” (Stanton Decl., Exh. K.) Plaintiffs’ counsel responded and insisted Ahmed is working as a consultant but did not address how that renders the documents withheld either privileged or protected by the work product doctrine. (Stanton Decl., Exh. L.)

The parties were unable to informally resolve their discovery dispute. Defendants thus filed the instant motion to compel Ahmed to answer deposition questions and produce documents. Plaintiffs oppose the motion and request an award of monetary sanctions.

II. Motion to Compel

As an initial matter, Defendants state their motion is brought “pursuant to sections 2020.010-2020.240, 2023.010 et al. [sic] , 2025.460(e) of the California Code of Civil Procedure and Evidence Code section 772.” (Not. of Mot. at p. 1:25-26.) None of these statutes authorize a motion to compel an answer or the production of documents. The majority of the cited statutes concern the general scope of and authority to obtain discovery from a nonparty. (Code Civ. Proc., §§ 2020.010-2020.030, 2020.210-2020.240.) These statutes are not material to the present discovery dispute as neither party disputes the general proposition that a party may use a deposition subpoena to obtain discovery from a nonparty. It is unclear why Defendants cite Evidence Code section 772, which establishes the order of witness examination beginning with direct examination. Finally, while Defendants cite Code of Civil Procedure section 2025.460, subdivision (e) which specifically directs the reader to the applicable statute, section 2025.480, this statute is neither cited nor discussed anywhere in their memorandum of points and authorities.

Code of Civil Procedure section 2025.480, subdivision (a) states: “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” The motion must be filed “no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.480, subd. (b).)

In their opposition, Plaintiffs do not dispute Defendants timely filed their motion on January 26, 2017, within 60 days of the completion of the record of the deposition. As to the other prerequisite, Defendants filed a meet and confer declaration. (Stanton Decl., Exh. K.) The Court notes, however, most of the meet and confer letters attached to the declaration of David L. Stanton pertain to the parties’ past discovery disputes. Previous informal negotiations are no substitute for meeting and conferring to resolve a new discovery dispute. (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1437-38.) In any event, given the detailed letter Mr. Stanton sent Plaintiffs’ counsel addressing the present discovery dispute, which was supported by citation to relevant authority, the Court finds Defendants engaged in sufficient meet and confer efforts. It is not evident further meet and confer efforts would be “likely to bear fruit.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-94.) Defendants thus satisfy this prerequisite for their motion as well.

Defendants must also identify the deposition questions and document requests to which they seek answers and the production of responsive documents such that the Court could actually direct the deponent to respond. (See Code Civ. Proc., § 2025.480, subd. (a).) Specifically, a party moving to compel answers to deposition questions or the production of documents in response to a deposition subpoena must file a separate statement that includes the text of the question or inspection demand, the response provided, the reason for compelling an answer or the production of documents, and any other information necessary to the understanding of each request. (Cal. Rules of Court, rule 3.1345.)

Defendants originally neglected to file a separate statement such that it was unclear which questions and document requests were the subject of their motion. On February 28, 2017, however, Defendants filed a separate statement. In their opposition, Plaintiffs argue denial of a motion to compel is mandatory when a party initially fails to file a separate statement. This argument is entirely unsubstantiated. Plaintiffs cite Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 873 in which the reviewing court actually held “the trial court was well within its discretion to deny the motion to compel discovery” because the moving party’s separate statement did not fully comply with the California Rules of Court. Thus, Mills v. U.S. Bank does not support the proposition that a court must deny a motion to compel if the moving party’s separate statement is deficient; rather, it clearly establishes consideration of the merits of the motion is discretionary.

Three days before the hearing on the motion, Plaintiffs also filed a “motion to strike” the separate statement. There are several problems with Plaintiffs “motion,” which is essentially a request that the Court not consider Defendants’ separate statement. First, this request is not a noticed motion. Plaintiffs neither served and filed a notice of motion nor reserved a hearing; Plaintiffs do not even ask the Court to continue the hearing on the motion to compel, apparently presuming Defendants are not entitled to an opportunity to respond to this eleventh-hour request. (See Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322.) Second, Plaintiffs cite no authority for the proposition that a party may move to strike a separate statement. While Plaintiffs cite Code of Civil Procedure section 436, this statute sets forth the grounds for a motion to strike “made pursuant to Section 435.” Code of Civil Procedure section 435 authorizes a motion to strike a “pleading.” (Code Civ. Proc., § 435, subd. (b)(1).) “The term ‘pleading’ means a demurrer, answer, complaint, or cross-complaint.” (Code Civ. Proc., § 435, subd. (a)(2).) A separate statement is not a pleading. Plaintiffs do not cite any authority to support the proposition that they may move to strike a document other than a pleading pursuant to Code of Civil Procedure sections 435 and 436 or any other statute. Finally, Plaintiffs argue the separate statement is “time-barred” but do not explain what this means or cite any case in which a court held a separate statement was “time-barred.” (See Mot. to Strike at p. 1:11.) Plaintiffs thus fail to properly present or substantiate their request. Plaintiffs’ “motion to strike” is therefore DENIED.

Here, the Court will exercise its discretion to consider Defendants’ motion and separate statement, despite the belated filing of the separate statement, because no articulable prejudice occurred as a result thereof. In doing so, the Court notes that while Defendants have now sufficiently identified the document requests for which they seek responsive documents, they still fail to identify the deposition questions to which they seek answers. The Court will thus only consider whether to compel Ahmed to produce documents responsive to the documents requests in the deposition subpoena. The Court will not guess which deposition questions Defendants want answered.

With respect to the document requests, Plaintiffs’ sole asserted basis for withholding responsive documents is the work product doctrine. (Stanton Decl., Exh. J [privilege log].) In the letter she sent to Defendants’ counsel prior to Ahmed’s deposition, Plaintiffs’ counsel clearly stated documents would be withheld solely based on the work product doctrine and cited to both Code of Civil Procedure section 2018.020, codifying the work product doctrine, and Coito v. Superior Court (2012) 54 Cal.4th 480, interpreting that statute. (Stanton Decl., Exh. H.)

The “work product doctrine absolutely protects from discovery writings that contain an ‘attorney’s impressions, conclusions, opinions, or legal research or theories.’” (Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 814, quoting Code Civ. Proc., § 2018.030, subd. (a).) As the parties resisting discovery, Plaintiffs bear the burden of “‘establishing the preliminary facts necessary to support [the] exercise’” of the work product doctrine. (Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 911, quoting Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) In opposition to the motion, however, Plaintiffs do not cite authority on the scope or application of the work product doctrine or address how this protection applies to do the documents withheld.

Presumably misapprehending their initial burden of establishing the work product doctrine applies, Plaintiffs’ sole argument is that Defendants have not presented authority demonstrating Ahmed should be “disqualified” as a “litigation consultant.” (Opp. at p. 8:10-11.) Plaintiffs’ theory of the operation of the work product doctrine is apparently that Ahmed is assisting them with their case and thus any communications with him may be withheld. This argument, which does not address writings prepared by Plaintiffs’ counsel, does not make clear how the work product doctrine is at all applicable to the documents withheld. This leads the Court to believe Plaintiffs’ counsel either misunderstands the work product doctrine or lacks any articulable bases for invoking it.

Independent consideration of the privilege log, out of an abundance of caution, reveals Plaintiffs’ counsel is the author of only one of the documents withheld. Specifically, Plaintiffs’ counsel authored correspondence about proposed language for Plaintiffs’ mediation brief in August 2016. This correspondence, identified as Document No. 19 in the privilege log, is thus protected as attorney work product because, by its very description, it contains her theories and impressions of the case. Otherwise, it is not obvious how the documents withheld may be shielded from discovery on this basis.

Based on the parties’ discussion of Ahmed’s status as a consultant, the Court considered whether Plaintiffs’ counsel intended to invoke the rule that an expert report is protected as work product until such time as the expert is designated as a witness. (See Williamson v. Superior Court (1978) 21 Cal.3d 829, 834-35; but see Coito v. Superior Court, supra, 54 Cal.4th at p. 500 [independent statements by witness subsequently obtained by attorney are not work product].) Here, however, Ahmed is not clearly being retained as an expert and none of the documents identified in the privilege log are expert reports, notes, or opinions; in fact, all of the remaining documents withheld were prepared by Waqas. (See Stanton Decl., Exh. J.) Plaintiffs do not articulate how the documents withheld reveal the impressions or thoughts of Plaintiffs’ counsel. In conclusion, Plaintiffs do not establish the work product doctrine protects any documents withheld with the exception of Document No. 19.
The Court notes the work product doctrine and attorney-client privilege are often conflated. Although the work product doctrine is sometimes imprecisely referred to as a privilege and often implicated in circumstances in which the attorney-client privilege also applies, these two protections are separate and distinct. (See Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 440-41; see also Evid. Code, §§ 952, 954.) Here, the Court will not construe Plaintiffs’ objections as being on the ground of the attorney-client privilege because Plaintiffs clearly, consistently, and unequivocally stated they withheld documents based on the work product doctrine. Plaintiffs never identify the attorney-client privilege as the basis for withholding documents. It is clear Plaintiffs withheld documents based on the work product doctrine alone because Plaintiffs’ counsel cited authority on the work product doctrine, and not the attorney-client privilege, in her meet and confer correspondence and solely references the work product doctrine in the privilege log.

Furthermore, even if Plaintiffs in fact intended to object on the ground of the attorney-client privilege, they do not actually discuss the privilege in their opposition. Plaintiffs thus do not carry their burden of establishing the existence of the privilege. (Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 402 [party resisting discovery must establish the existence of the privilege].) The party resisting discovery bears this burden because the attorney-client privilege is “in derogation of the truth-finding process.” (United States v. ChevronTexaco Corp. (N.D.Cal. 2002) 241 F.Supp.2d 1065, 1070.) Plaintiffs decided to focus on the untimeliness of Defendants’ separate statement and did not address how the attorney-client privilege applies to correspondence between Waqas and Ahmed. “Thus, [they are] left with the consequences of [their] decision.” (Zimmerman v. Superior Court, supra, 220 Cal.App.4th at p. 402.)

Based on the foregoing, the motion to compel Ahmed to answer deposition questions is DENIED. With respect to the document requests, the motion to compel is GRANTED as to Document Nos. 1-18 and DENIED as to Document No. 19.

III. Request for Monetary Sanctions

Plaintiffs request an award of monetary sanctions in the amount of $7,500.00 pursuant to Code of Civil Procedure section 2025.480, subdivision (j) which states: “The court shall impose a monetary sanction [ ] against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or 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.”

Plaintiffs are not entitled to an award of monetary sanctions because Defendants’ motion was successful. Furthermore, Plaintiffs do not actually identify the party and/or attorney against whom a monetary sanction should be imposed. (See, e.g., Code Civ. Proc., § 2023.040.) Plaintiffs’ request for monetary sanctions is therefore DENIED.

IV. Professionalism

The Court is concerned by the parties’ discovery conduct to date, the loaded and histrionic language in both parties’ briefs, especially Plaintiffs’ brief, and the speaking objections made by Plaintiffs’ counsel during Ahmed’s deposition. The Judges of the Santa Clara County Superior Court have adopted by standing order the Santa Clara County Bar Association’s Code of Professionalism. The Court expects all counsel to comport themselves in accordance with the guidelines of professionalism set forth therein, particularly sections 7 and 9 governing briefs filed with the Court and discovery conduct. All parties and counsel shall review these provisions and conduct themselves in accordance.