Case Name: CACH, LLC v. Calderon

Case No.: 1-11-CV-214643

Pursuant to Code of Civil Procedure section 2031.310, Defendant Calderon moves an order compelling discovery on two grounds: (1) Plaintiff CACH, LLC refused to respond fully to Defendant’s Request for Production of Documents and Electronically Stored Information (Set One), and (2) Plaintiff refused to respond to Defendant’s Request for Production of Documents and Electronically Stored Information (Set One), Request No. 4.  Defendant also moves for monetary sanctions.  Plaintiff opposes on the ground that this court already issued a protective order concerning the Flow Purchase Agreement.  Plaintiff also seeks monetary sanctions.

On May 16, 2014, Plaintiff filed a motion for a protective order. (Schwinn Decl. ¶ 8.)  On May 29, 2014, the court granted the motion: “The Flow Purchase Agreement need not be produced, as the intrusiveness of discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.”  (Schwinn Decl. Ex. H.)

Defendant argues that the protective order does not apply because the issue was about Document Request No. 1 and not Document Request No. 4.  Defendant asserts that because Plaintiff produced a redacted version of the Flow Purchase Agreement, the entire Agreement must be produced.  Defendant also contends that Plaintiff failed to object to the form of production as to any electronically stored information as to its Document Request No. 4, and therefore seeks to compel Plaintiff to hand over all electronically stored information.

Plaintiff argues that Request No. 4 sought a trade secret, and the Court already ruled that on that issue.  In addition, Plaintiff argues that Defendant’s contention that the protective order does not apply is incorrect because the Flow Purchase Agreement is still subject to the order.

The protective order applies to the Flow Purchase Agreement.  Therefore, the motion is DENIED.

Defendant’s motion for monetary sanctions is DENIED.

Code of Civil Procedure section 2013.310(h), the court shall impose a monetary sanction against a party or attorney who unsuccessfully makes a motion to compel under that statute, unless the party making the motion acted with substantial justification or other circumstances make an award of sanctions unjust.  “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person, or stated another way, that it has a reasonable basis both in law and fact.  The burden for proving “substantial justification” for failing to comply with a discovery order is on the losing party claiming that it acted with “substantial justification.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4^th 1424, 1434-1435.

Defendant has not cited any case holding that the production of a document subject to a protective order may nevertheless be compelled if it is responsive to another request.  This motion is a second attempt to persuade the court of an argument which did not succeed on the protective order motion.  Defendant has not shown that his position was substantially justified.  Accordingly, Plaintiff’s motion for monetary sanctions is GRANTED: within ten days of notice, Defendant shall pay to Plaintiff the sum of $675 as and for attorney fees.