Case Name: Absolute Resolutions Corp. v. Welz, et al.
Case No.: 1-14-CV-266284

Defendant Alexander A. Welz (“Defendant”) moves to compel further responses to request for production of documents and electronically stored information (“RPD”), set one, from plaintiff Absolute Resolutions Corp. (“Plaintiff”), and for monetary sanctions.

I. Background and Discovery Dispute

This is a collection action. Plaintiff allegedly became indebted to Capitol One Bank, N.A., Defendant’s successor in interest, in the amount of $36,136.35. Plaintiff filed its complaint on June 9, 2014, asserting the following claims: (1) open book account; (2) money lent; and (3) account stated.

On September 22, 2014, Defendant served Plaintiff with RPD, Set One, which contained eleven requests. (Declaration of Raeon R. Roulston in Support of Defendant’s Motion to Compel (“Roulston Decl.”), ¶ 3 and Exhibit A.) On November 18, 2014, Plaintiff served its responses, which were comprised of both objections and substantive responses, and produced various responsive documents. (Id., ¶ 4 and Exhibit B.)

Believing Plaintiff’s responses and document production to be deficient, Defendant’s counsel sent a meet and confer letter to opposing counsel on December 22, 2014 articulating why further responses and production were warranted. (Roulston Decl., ¶ 5 and Exhibit C.) The letter stated that Plaintiff had until January 2, 2015 to provide supplemental responses or Defendant would file a motion to compel. No further responses to RPD, Set One, were provided by that time, nor did Plaintiff respond to the meet and confer correspondence. Consequently, on January 7, 2015, Defendant filed the instant motion to compel.

II. Discussion

A. Substantive Responses

As an initial matter, the Court finds Plaintiff’s contention that Defendant failed to engage in the meet and confer process in good faith unpersuasive. Even if the Court agreed with Plaintiff that Defendant did not provide it with a reasonable amount of time to provide supplemental responses prior to when he would filed a motion to compel, there is no indication that Plaintiff ever contacted Defendant to request additional time to respond, something that Defendant suggested in his meet and confer letter he was amenable to. Defendant otherwise articulated in great detail why he believed that the responses provided by Plaintiff were deficient and warranted supplementation and further production and thus made a good faith effort to informally resolve the issues that are the subject of the instant motion.

Defendant moves to compel further responses from Plaintiff to RPD, Set One, Nos. 2 and 4. If a party demanding a response to a request for production of documents deems: (1) a statement of compliance with the demand as incomplete; (2) a representation of inability to comply as inadequate, incomplete, or evasive; or (3) an objection in the response to be without merit or too general, that party may move for an order compelling further response. (Code Civ. Proc., § 2031.310.)

Moving on to the substantive requests at issue, which seek all documents and electronically stored information (“ESI”) relating to or evidencing the account (RPD No. 4) and the assignment, sale or transfer of the receivable (RPD No. 6) on which Plaintiff’s claims are based, a party responding to an inspection demand must respond to each item in the demand by stating one of the following: (1) an agreement to comply; (2) a representation of inability to comply; or (3) objections. (Code Civ. Proc., § 2031.210, subd. (a).) Here, Plaintiff responded with both objections and an agreement to comply. However, Plaintiff’s objection to RPD No. 2, that the documents requested are equally available to Defendant, is not a valid objection to a production request and is therefore without merit.

In its opposing memorandum (and not in its responses to the subject requests), Plaintiff appears to be making something akin to a privacy objection in asserting that a certain document sought by Defendant is subject to a confidentiality agreement and therefore will not be produced. However, Plaintiff not only fails to demonstrate that the document is in fact subject to a confidentiality clause, but also fails to establish that a recognized privacy interest is implicated by RPD Nos. 2 and 4 and that such an interest outweighs Defendant’s right to obtain relevant information. Consequently, to the extent that Plaintiff is attempting to assert a privacy objection, that objection is without merit.

Further, Plaintiff’s agreement to comply in response to the subject requests is not code-compliant. Where a party responds to a production request with an agreement to comply, the response must state that the production “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.) Here, Plaintiff qualified its stated intention to comply by listing particular “relevant” documents that it intended to produce rather that agreeing to produce all of the demanded items (particular documents and ESI) that were in its possession, custody and control. Thus, Plaintiff’s current responses to the subject RPD are not code-compliant.

In sum, because Plaintiff’s responses to RPD Nos. 2 and 4 are not code-compliant, further responses and corresponding production, both of the requested documents and ESI, are warranted.

B. Request for Sanctions

In connection with his motion to compel further responses, Defendant requests that the Court impose monetary sanctions against Plaintiff in the amount of $2,015 pursuant to Code of Civil Procedure sections 2023.010, 2023.030, subdivision (a), and 2031.300, subdivision (c). These code sections provide that the court shall impose monetary sanctions against anyone who engages in misuse of the discovery process or against any person, party or attorney who unsuccessfully opposes a motion to compel further responses to a request for production of documents, unless it finds that the one subject to the sanctions in the latter circumstance acted with substantial justification or that circumstances make the imposition of sanctions unjust.

While Plaintiff’s opposition to this motion is unsuccessful and therefore Defendant is entitled to an award of sanctions, the Court finds that the amount requested is excessive in light of the small number of requests at issue and the relatively simple nature of the issues involved. The $2,015 requested by Defendant is based on 5.5 hours of work preparing the motion and reply papers at an hourly rate of $350. 5.5 hours is not a reasonable amount of time; considering Defendant’s motion and supporting papers, the Court finds 3.5 hours to be appropriate. Based on this amount of time, Defendant is entitled to monetary sanctions in the amount of $1,315 ($350/hr x 3.5 hrs + $60 filing fee + $30 court reporter fee).

C. Conclusion and Order

Defendant’s motion to compel further responses to RPD, Set One, Nos. 2 and 4 is GRANTED. Within 20 calendar days of this order, Plaintiff shall serve verified, code-compliant further responses, without objection, and produce all responsive documents and ESI in its possession, custody or control for inspection by Defendant.

Defendant’s request for monetary sanctions in GRANTED IN PART. Within 20 calendar days of this order, Plaintiff shall pay a total of $1,315 to Defendant’s counsel.