2016-00205363-CU-BC

Andrew Johnson vs. Bonney Plumbing, LLC

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Shofner, Robin D.

Plaintiffs Andrew and Hildegard Johnson’s motion to compel Defendant Bonney Plumbing, LLC (“Bonney”) to comply with response to request for production is granted as set forth below.

In this action Plaintiffs allege that Bonney improperly performed plumbing services at their home including allegations that Bonney improperly lined the ground in the crawl space with plastic that it failed to remove. Plaintiffs allege that the plastic lining caused water and sewage to pool under their home. Bonney has apparently taken the position that it does not utilize plastic sheeting.

Plaintiffs propounded request for production no. 7 asking for all documents “evidencing the style, make, model and/or type of any and all plastic sheeting, commonly referred to as ‘Visqueen’, used by [Bonney] from 2013 through 2015.” Bonney objected to the request on a number of ground including that the request was unduly burdensome and overbroad but subject to its objections responded that “[a]ll non-privileged documents

obtained after a reasonable and diligent search by responding party are produced herewith.” Thereafter the parties engaged in dialogue regarding the request as Plaintiffs’ counsel indicated that Bonney’s production contained no documents regarding plastic/Visqueen. In October 2017, Bonney’s prior counsel advised that there were in fact no documents responsive to the request and that Plaintiffs could inspect Bonney’s records to confirm the same. Plaintiffs initially agreed to inspect the records but then declined to do so on December 8, 2017 given Bonney’s statement in its response that it would produce the records and to avoid the expense of combing through the records. Plaintiffs thereafter gave Bonney until December 19, 2017 to produce the records. The motion was filed the next day after the records were not produced.

If a party responds to a demand for inspection “thereafter fails to permit inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.” (CCP § 2031.320(a).)

The motion is granted. Here, Bonney’s response to RFP No. 7, while interposing objections, stated that “[a]ll non-privileged documents obtained after a reasonable and diligent search by responding party are produced herewith.” Bonney must comply with its statement of compliance and produce the requested documents. (CCP § 2031.320

(a).) Bonney argues that it has in fact produced all documents located after conducting a reasonable and diligent search which included statements from employees regarding plastic sheeting being used at the subject project. As seen from reply, however, the documents that Bonney has produced were not actually responsive. However, at the same time Bonney makes clear that it has not produced any documents from its invoice records and in fact makes clear that it did not even investigate the 20,000 to 30,000 invoice records which are contained in approximately 100 banker boxes to determine whether additional responsive documents exist. (Crick Decl. ¶ 4.)

Bonney contends that searching these records would be futile and unreasonably burdensome because invoices in the banker boxes were not stored or categorized in any manner which would lend itself to a quick search and even if the invoices showed that plastic sheeting was purchased between 2013 and 2015 there is no certainty as to when Bonney actually used the plastic. (Id. ¶ 5.) In an attempt to illustrate the burden associated with the search, Bonney submits a declaration from its CEO. Bonney indicate that it would take at least 20 employee hours to search through the banker’s boxes and cost the business “thousands” of dollars in lost productivity and possibly project delays and “hundreds” of dollars for the wages of the employee conducting the search. (Id. ¶ 6.) Bonney argues that it made the records available to Plaintiffs to search and faults them for refusing to search the records on their own after initially agreeing to do so. The Court does not find that this claimed burden or the fact that Plaintiffs themselves will not search the records relieves Bonney from the burden of searching the invoices for responsive documents.

Bonney’s claimed burden is not sufficient to relieve it of the obligation to search the banker’s boxes. Here, Mr. Crick declares that a search of the boxes could take at least 20 hours and cost unspecified “thousands” of dollars in potential loss of productivity and project delays and “hundreds” of dollars of employee wages. This somewhat conclusory declaration is insufficient to relieve Bonney of the obligation to produce the documents it agreed to produce. (Cf. Mead Reinsurance Co. v. Superior

Court (1986) 188 Cal.App.3d 313, 318 [oppression objection upheld where declarations showed 13,000 claims would have to be reviewed, requiring 5 claims adjusters working full time for over 5 weeks each].) There are no specific details as to how Bonney will actually incur “thousands” of dollars in lost productivity or project delays. The fact that Bonney stores its invoices in an uncategorized manner that will make a search more time consuming does not relieve Bonney of its obligation to search those records for responsive documents which it has agreed to produce. Further, while Bonney complains that even if it searches the invoices and finds documents showing that it purchased plastic sheeting between 2013 and 2015 it is speculative as to whether the sheeting was used on the subject project, the request did not simply ask for documents showing whether the sheeting was used on the specific project but whether Bonney used the sheeting at all in the 2013-2015 time period. It must be remembered that Plaintiffs have alleged that Bonney inappropriately used plastic sheeting at the project and Bonney has taken the position that it does not utilize such sheeting at all. Thus, the fact of whether Bonney uses such sheeting is a central issue in this action. The burden associated with any search, as Bonney itself defines the burden, is not sufficient to outweigh the need for Plaintiffs to obtain responsive documents.

While Plaintiffs initially agreed to inspect the documents and then ultimately declined not to do so is not a basis to relieve Bonney from searching its own records for responsive documents that it agreed to produce. Again, Bonney’s response to Request No. 7 agreed to produce the documents, not simply make them available for inspection.

As a result, the motion is granted. Bonney is ordered to comply with its statement in response to Request No. 7 agreeing to produce the requested documents. Bonney must undertake a search of its invoices to determine whether responsive documents exist. In order to accommodate Bonney’s concerns, production may be done on a rolling basis and Bonney shall have until March 5, 2018 to produce the documents. The Court notes that trial is not until June 2018.

Both parties’ requests for sanctions are denied. Bonney’s request is denied as the motion was successful and thus substantially justified. Plaintiffs’ request is denied as although the opposition ultimately lacked merits the Court cannot say it was not without substantial justification and in any even the Court finds that sanctions would be unjust under the circumstances.