GuideTech, LLC v. Brilliant Instruments, Inc., et al.		CASE NO. 110CV187147
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 2

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 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the following motions were argued and submitted: (1) the motion of cross-defendant GuideTech, LLC (“GuideTech”) to quash subpoenas and for monetary sanctions, and (2) the motion of cross-defendants Mordechai Ben-Zeev (“Ben-Zeev”) and Albert Waissman (“Waissman”) to quash subpoenas and for monetary sanctions. Defendant Brilliant Instruments, Inc. (“Brilliant”) filed formal oppositions to the motions, in which it requests monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

1. Statement of Facts

This action arises out of a patent infringement dispute between Brilliant and GuideTech. Defendant Shalom Kattan (“Kattan”) is Brilliant’s founder, and the co-founder and former president of Guide Technology, Inc. (“GTI”).  Cross-defendant Ronen Sigura (“Sigura”) is the founder of GuideTech, and a former employee of GTI.  In 2008, GuideTech acquired GTI’s assets, including several patents.  In 2009, GuideTech accused Brilliant of infringing those patents. Brilliant sought a declaration of non-infringement in the United States District Court.

In the instant action, GuideTech and Brilliant each bring tort claims arising from slanderous statements allegedly made to their respective customers regarding the patent infringement.  On 12 November 2010, GuideTech filed a complaint against Brilliant and Kattan.  The operative first amended complaint asserts causes of action for (1) intentional interference with prospective economic advantage, (2) negligent interference with prospective economic advantage, (3) slander, and (4) breach of written contract.

Brilliant subsequently cross-complained against various defendants, including GuideTech, Sigura, defendant Ilan Sigura (“Ilan”), defendant TimeMetrics (“TimeMetrics”), Waissman, and Ben-Zeev. Brilliant alleges that, sometime in 2011, Sigura and his part-time employees, Waissman, Ben-Zeev, and Ilan, transferred GuideTech’s intellectual property to TimeMetrics to evade its creditors, including Brilliant. (Third Amended Cross-Complaint (“TACC”), ¶ 25.)

The operative TACC asserts causes of action for (1) intentional interference with prospective economic advantage, (2) intentional interference with contractual relations, (3) negligent interference with prospective economic advantage, (4) unfair competition under Business and Professions Code section 17200, (5) libel, (6) slander, (7) misappropriation of trade secrets, (8) alter ego liability, and (9) avoidance of fraudulent transfer.

1. Discovery Dispute

On 21 August 2014, Brilliant served three largely identical deposition subpoenas for business records on non-parties Sejent Corporation (“Sejent”), Intel Corporation (“Intel”), and Sigura Construction, Inc. (“Sigura Construction”). Sejent is the former employer of Ben-Zeev, Intel is the employer of Waissman, and Sigura Construction is the employer of Ilan.

On 7 September 2014, GuideTech’s counsel sent Brilliant’s counsel a meet and confer letter, in which she requested that Brilliant withdraw the subpoenas. She indicated that the subpoenas were served merely to annoy and harass Ben-Zeev, Waissman and Ilan, and, should Brilliant fail to withdraw the subpoenas, GuideTech would file a motion quash. Brilliant’s counsel wrote a meet and confer letter in response on 9 September 2014, indicating that Brilliant would not withdraw the subpoenas. Dissatisfied with this response, GuideTech filed its motion to quash the deposition subpoenas on 19 September 2014.

On 30 September 2014, Waissman and Ben-Zeev, acting in propria persona, sent substantially identical meet and confer letters to Brilliant’s counsel, requesting that Brilliant withdraw its subpoenas, and, should Brilliant fail to do so, they would file motions to quash. Brilliant’s counsel wrote an email in response, indicating that Brilliant would not withdraw the subpoenas.

On 7 October 2014, Waissman and Ben-Zeev filed their motion to quash the subpoenas. Brilliant filed its oppositions to Waissman, Ben-Zeev, and GuideTech’s motions to quash on 20 October 2014. Waissman, Ben-Zeev and GuideTech filed their reply briefs on 24 October 2014.

III.    Discussion

1. Brilliant’s Request for Judicial Notice

Brilliant requests that the Court take judicial notice of: (1) the Court’s order denying a motion to quash dated 9 August 2013, (2) Waissman’s declaration in support of GuideTech’s opposition to Brilliant’s motion for leave to file a second amended cross-complaint, (3) the transcript of Waissman’s deposition in GuideTech v. Oren Rajuan, case number 1-11-CV-201220, (4) Ben Zeev’s declaration in support of GuideTech’s opposition to Brilliant’s motion for leave to file a second amended cross-complaint, (5) the transcript of Ben-Zeev’s deposition in GuideTech v. Oren Rajuan, case number 1-11-CV-201220, (6) Ilan’s declaration in support of GuideTech’s opposition to Brilliant’s motion for leave to file a second amended cross-complaint, (7) the transcript of Ilan’s deposition in GuideTech v. Oren Rajuan, case number 1-11-CV-201220, (8) Brilliant’s TACC, (9) the complaint filed in Enteros, Inc. v. Ronen Sigura, et al., case number 1-11-CV-210674, (10) GuideTech’s first amended complaint, (11) GuideTech’s complaint and Rajuan’s first amended cross-complaint in GuideTech v. Oren Rajuan, case number 1-11-CV-201220, and (12) the declaration of Laura Sigura in support of the application to hold Oren Rajuan in contempt of preliminary injunction in GuideTech v. Oren Rajuan, case number 1-11-CV-201220.

Judicial notice may be taken of court records provided that the information subject to judicial notice is relevant to the matters at hand.  (See Evid. Code, § 452, subd. (d); Gbur v. Cohen (1979) 93 Cal. App. 3d 296, 301.)  Here, Exhibits 1-7, and 12 are not relevant to the issues at hand, and thus judicial notice of these documents is DENIED. Exhibits 8-11 are court documents, relevant to the issues at hand, and thus, judicial notice of these documents is GRANTED.

1. GuideTech, Ben Zeev and Waissman’s Motions to Quash

GuideTech, Ben Zeev and Waissman (collectively, “Cross-Defendants”) move to quash the subpoenas served on Sejent, Intel, and Sigura Construction.[2]  The subpoenas seek all communications that contain 37 enumerated search terms[3]  from any email accounts from 1 May 2008 to the present, which Ben-Zeev, Waissman or Ilan accessed through their employers’ computers, cell phones and/or servers, and all communications from 1 May 2008 to the present from Ben-Zeev, Waissman or Ilan to any third person which reflect, refer, or relate to GuideTech, LLC v. Brilliant Instruments, Inc., case number 1-10-CV-187147, GuideTech, LLC v. Oren Rajuan, case number 1-11-CV-201220, Enteros, Inc. v. Ronen Sigura, case number 1-11-CV-210674, and Brilliant Instruments, Inc. v. GuideTech, Inc., case number 4-09-CV-05517 (CW).

1. Legal Standard

Upon motion reasonably made, the court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as it shall declare, including protective orders.  (Code Civ. Proc.,   § 1987.1, subd. (a).)  In addition, the court may make any other order as may be appropriate to protect against unreasonable or oppressive demands, including unreasonable violations of the right to privacy.  (Id.) The party objecting to a discovery request bears the burden of explaining and justifying its objections. (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

2. Analysis

Cross-Defendants assert that, “[a]ll requested information and Documents are burdensome, vague and ambiguous and/or not relevant to the case and/or private information of individuals and/or were already received from GuideTech and/or legitimately objected by GuideTech.”(GuideTech Mem. Ps & As., p. 7:10-11; Ben-Zeev and Waissman Mem. Ps & As., p. 7:14-15.)  They further claim that the documents sought by the subpoenas may contain privileged and confidential information and trade secrets. In opposition, Brilliant argues that Cross-Defendants do not meet their burden to justify their objections to the documents sought by the subpoenas.

1. Undue Burden Objections

Cross-Defendants assert that producing all documents responsive to the subpoenas is likely to require the production of all emails in their email accounts. As such, they argue that the production of these documents would be unduly burdensome. This argument is not persuasive. “[S]ome burden is inherent in all demands for discovery.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.) A party claiming that requested discovery is unduly burdensome must make a particularized showing of facts demonstrating the hardship. (Id. at pp. 417-418.) Here, Cross-Defendants make no particularized showing of facts demonstrating the hardship the production of emails by Sejent, Intel, and Sigura Construction would entail. Therefore, the objections on this basis lack merit.

1. Vague and Ambiguous Objections

In order to justify a vague and ambiguous objection, the objecting party must demonstrate that the discovery request is totally unintelligible. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; Standon v. Superior Court (1990) 225 Cal.App.3d 898, 903 [vague and ambiguous objection considered nuisance objection].) Here, while Cross-Defendants contend that the subpoenas are vague and ambiguous, they do not articulate how the subpoenas are unintelligible. As such, the objections on this basis lack merit.

1. Relevance Objections

Discovery is allowed for any matters that are 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 discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) 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 v. Superior Court (1995) 33 Cal.4th 1539, 1546.)

Cross-Defendants claim that the search terms “Enteros” and “case 1-11-cv-210674,” and the request for communications concerning Enteros, Inc. v. Ronen Sigura, case number 1-11-CV-210674 (the “Enteros case”), are irrelevant because the subject matter of Enteros, Inc., supra, is unrelated to the present action. In opposition, Brilliant asserts that these communications are relevant because there is a factual nexus between the TACC and the Enteros case.  In this regard, Brilliant indicates that the Enteros case involved similar facts to the instant action, including allegations that Sigura and GuideTech abused the corporate structure and created TimeMetrics in order to evade GuideTech’s obligations. This argument lacks merit. The Enteros case appears to involve Sigura’s purportedly improper use of corporate funds to purchase personal items while at Enteros, Inc. and his retention of Enteros, Inc.’s trade secrets after his termination as a corporate director. (RJN, Ex. 9.) It is unclear how these allegations relate to the instant TACC, which involves slanderous statements Sigura allegedly made to Brilliant’s customers. As such, Cross-Defendants objections to the terms “Enteros” and “case 1-11-cv-210674” and the request for communications concerning Enteros, Inc. v. Ronen Sigura, et al., case number 1-11-CV-210674, on the ground of relevance are meritorious.

Next, Cross-Defendants assert that the search terms “Rajuan” and “case 1-11-cv-201220,” and the request for communications concerning GuideTech, LLC v. Oren Rajuan, case number 1-11-CV-201220, (the “Rajuan case”) are not relevant to the instant action. With regard to the term “Rajuan,” Brilliant contends that the term is relevant because, in its first amended complaint, GuideTech alleges that Brilliant and Kattan attempted to convince Oren Rajuan (“Rajuan”), a former GuideTech employee, to leave his employment with the company. (RJN, Ex. 10, ¶ 24.) As such, Brilliant argues that communications concerning Rajuan are relevant to its defense against such a charge. This argument is persuasive. Communications between Ilan, Waissman, and Ben-Zeev concerning Rajuan might reasonably assist Brilliant in defending against GuideTech’s assertion that it improperly interfered with GuideTech’s business by attempting to convince Rajuan to leave. Thus, the objections to the term “Rajuan” on the basis of relevance lack merit.

With regard to the term “case 1-11-cv-201220” and communications concerning GuideTech, LLC v. Oren Rajuan, case number 1-11-CV-201220, Brilliant asserts that Rajuan’s first amended cross-complaint filed in the Rajuan case alleges facts similar to those in the instant action. In particular, Rajuan alleges that Sigura and GuideTech created TimeMetrics in order to evade GuideTech’s obligations to its creditors. Thus, it contends that communications concerning the Rajuan case are relevant to its cause of action for the avoidance of a fraudulent transfer. Brilliant’s argument is meritorious. Communications between Ilan, Waissman, and Ben-Zeev concerning the Rajuan case might lead to evidence concerning GuideTech’s intent in creating TimeMetrics. In turn, this information could support Brilliant’s cause of action in the TACC for the avoidance of a fraudulent transfer. Accordingly, the objections to the term “case 1-11-cv-201220” and the request for communications concerning GuideTech, LLC v. Oren Rajuan, case number 1-11-CV-201220 on the ground of relevance lack merit.

1. Confidential Objections

Cross-Defendants contend that a search using the key words “Burnie,” “Bernal”, and “West” will lead to the disclosure of confidential information because Bernal West was the trial expert for GuideTech in Brilliant Instruments, Inc. v. GuideTech, Inc., case number 4-09-CV-05517 (CW).

Objecting to discovery on the ground that it seeks “confidential information” is generally improper. (See Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23.) If the information sought by the discovery is of a confidential nature which a defendant does not want to be included in the public record, the defendant can move for a protective order. (Id.) Here, Brilliant signed a stipulated protective order regarding confidential information, which was filed on 30 November 2014. Thus, if Cross-Defendants are concerned about the public disclosure of emails concerning Bernal West’s testimony in Brilliant Instruments, Inc. v. GuideTech, Inc., case number 4-09-CV-05517 (CW), they may designate any relevant emails as confidential. Accordingly, the objections on this ground lack merit.

2. Privacy Objections

Cross-Defendants claim that a search of their email accounts will constitute a serious invasion of Ilan, Waissman, and Ben-Zeev’s right to privacy. The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.) Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 850.) Once direct relevance has been demonstrated, the proponent of the discovery must show that the information sought is not available through less intrusive means. (Allen v. Superior Court (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (See Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.) Here, Cross-Defendants fail to establish that Ilan, Waissman, and Ben-Zeev have a reasonable expectation of privacy with regard to their use of their employers’ computers. “[T]he use of computers in the employment context carries with it social norms that effectively diminish the employee’s reasonable expectation of privacy with regard to his use of his employer’s computers.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 451-452.) As such, the objections on the basis of the right to privacy lack merit.

3. Duplicative Objections

Cross-Defendants assert that a subpoena seeking the same documents was previously served on Rajuan. Thus, they argue that the present subpoenas are duplicative and should be quashed on that basis. This argument lacks merit. First, the mere fact that a subpoena is duplicative is not a valid basis for quashing it.  As a general rule, a party may obtain discovery by one or more of the permitted methods, including oral depositions and inspections of documents (see Code Civ. Proc., § 2019.010), and from different sources, including nonparties (see Code Civ. Proc., § 2020.010).  While the court may limit discovery if it is shown to be “unreasonably cumulative or duplicative” (Code Civ. Proc., § 2019.030, subd. (a)(1), italics added), absent such a showing, a party is “entitled to discover any nonprivileged information, cumulative or not, that may reasonably assist it in evaluating its defense, preparing for trial, or facilitating a settlement.” (TBG Ins. Services Corp. v. Sup. Ct. (2002) 96 Cal.App.4th 443, 448-449).  Here, Cross-Defendants submit no evidence indicating that the document demands in the subpoenas are unreasonably cumulative or duplicative of the subpoena served on Rajuan. As such, Cross-Defendants fail to establish that the subpoenas are unreasonably duplicative of the Rajuan subpoena.

Next, Cross-Defendants contend that Brilliant received all unprivileged documents relevant to the instant action via discovery in Brilliant Instruments, Inc. v. GuideTech, Inc., case number 4-09-CV-05517 (CW). Cross-Defendants, however, submit no evidence to support that contention. In any case, discovery produced in entirely separate litigation does not render the discovery sought in this action duplicative. (See Code Civ. Proc., §§ 2019.010, 2019.030.) Thus, they fail to establish that the present subpoenas are unreasonably cumulative or duplicative on that basis.

Finally, Cross-Defendants argue that Brilliant recently served a set of discovery requests on Ilan, Ben-Zeev, and Waissman which include similar requests. As such, they contend that the subpoenas are duplicative. Once again, Cross-Defendants submit no evidence indicating that Brilliant served similar requests on these individuals or that Ilan, Ben-Zeev, and Waissman fully responded to these requests. Even if the discovery requests are similar, the subpoenas are directed to different sources as permitted under Code of Civil Procedure section 2020.010. Thus, Cross-Defendants fail to establish that the subpoenas are unreasonably duplicative of these discovery requests.

In light of the foregoing, the objections on this basis lack merit.

4. Privilege Objections

Cross-Defendants assert that a search using the term “Einav” will lead to the disclosure of privileged information because Einav Cohen is GuideTech’s counsel. In opposition, Brilliant argues that Einav Cohen does not represent Ilan, Ben-Zeev or Waissman. As such, any communications between these parties and Einav Cohen would not be subject to the attorney-client privilege. Brilliant’s argument lacks merit.

Under Evidence Code section 954, a client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and his or her attorney. A confidential communication means “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third parties other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted ….” (Evid. Code, § 952.)

“Once a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential. A party opposing the privilege has the burden of proof to show the communication is one not made in confidence. [Citation.] However, the party claiming privilege has the burden to show that the communication sought to be suppressed falls within the terms of the statute.” (Alpha Beta Co. v. Superior Court (1984) 157 Cal.App.3d 818, 825.)

Here, GuideTech asserts that, as Ilan, Ben-Zeev and Waissman are its employees, any electronic communications between Einav Cohen with them would constitute a confidential communication subject to the attorney-client privilege. This argument is persuasive. Attorney communications with agents and employees of a client are subject to the attorney-client privilege. (See Upjohn Co. v United States (1981) 449 U.S. 383, 391-393; Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1495-1496.) Thus, GuideTech meets its burden to show that any email messages between Einav Cohen, Ilan, Ben-Zeev and Waissman fall within the terms of the Evidence Code section 954.

Next, Brilliant contends that, even if the attorney-client privilege applies to these communications, Ilan, Ben-Zeev and Waissman waived the privilege by communicating with Einav using their full-time employer’s computers and equipment. In this regard, it relies principally on Holmes v. Petrovich Develop. Co., LLC (2011) 191 Cal.App.4th 1047. In Holmes, the trial court found that the plaintiff waived the attorney-client privilege as to emails she wrote to her attorney on her work computer. (Id. at p. 1072.) The Court of Appeal affirmed the trial court’s ruling, holding that an electronic communication is not subject to the attorney-client privilege when: “(1) the electronic means used belongs to the defendant; (2) the defendant has advised the plaintiff that communications using electronic means are not private, may be monitored, and may be used only for business purposes; and (3) the plaintiff is aware of and agrees to these conditions.” (Id. at p. 1068.)

Here, Brilliant does not submit any evidence indicating that Ilan, Ben-Zeev and Waissman’s employers advised them that their communications on work computers were not private, may be monitored, and may be used only for business purposes, or that Ilan, Ben-Zeev and Waissman were aware of and agreed to these conditions. As such, Brilliant does not meet its burden to show that these communications were not made in confidence. Accordingly, Cross-Defendants’ objections on this basis are meritorious.

5. Trade Secret Objections

Cross-Defendants claim that Brilliant is attempting to gain access to GuideTech’s trade-secret protected customer list via these subpoenas.  Evidence Code section 1060 establishes a privilege for trade secret information, such as a customer list procured by substantial time, effort and expense. (See Courtesy Temp. Serv. v. Camacho (1990) 222 Cal.App.3d 1278, 1287.) The party claiming the trade secret privilege has the burden of establishing its existence. (Bridgestone/Firestone, Inc. (1992) 7 Cal.App.4th 1384, 1393.) Here, the subpoenas do not specifically request customers lists, and Cross-Defendants do not articulate, and it is not readily apparent from the face of the subpoenas, how the subpoenas could be construed as indirectly seeking customer lists. As such, Cross-Defendants fail to establish that Brilliant’ subpoenas infringe on GuideTech’s trade secrets and the objections on this basis lack merit.

6. Conclusion

In light of the foregoing, Cross-Defendants’ motions to quash the subpoenas served on Sejent, Intel, and Sigura Construction are DENIED, but the Court modifies the subpoenas to exclude the search terms “Einav,” “Enteros,” “case 1-11-cv-210674,” and the requests for communications concerning Enteros, Inc. v. Ronen Sigura, et al., case number 1-11-CV-210674. In addition, documents responsive to the subpoenas shall be produced subject to the stipulated protective order, and documents designated “attorney’s eyes only” shall be provided to Brilliant’s counsel only.

1. Requests for Sanctions

GuideTech, Waissman, and Ben-Zeev make separate requests for monetary sanctions against Brilliant and its counsel pursuant to Code of Civil Procedure sections 2023.010 and 2023.020. Brilliant seeks monetary sanctions against GuideTech and its counsel, Waissman, and Ben-Zeev pursuant to Code of Civil Procedure section 1987.2, subdivision (a).

A court’s authority to award monetary sanctions arises from statutory authority, and not from the court’s own inherent authority. Trans-Action Commercial Investors, Ltd. v. Firmaterr (Jelinek) (1st Dist. 1997) 60 Cal.App.4th 352, 366. This authority is restricted because the Legislature has seen fit to establish such limitations. Jelinek, 60 Cal.App.4th at 371. See also Bauguess v. Paine (1978) 22 Cal.3d 626, 638-39.  It is the responsibility of the moving party to provide authority for any proposition, including sanctions. See Quantum Cooking Concepts, Inc. v. LV Assoc., Inc. (2d Dist. 2011) 197 Cal.App.4th 927, 934.

Code of Civil Procedure, § 2023.030 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

1. Cross-Defendants’ Requests for Monetary Sanctions

Cross-Defendants first request monetary sanctions against Brilliant and its counsel under Code of Civil Procedure section 2023.010.  However, section 2023.010 merely provides a list of actions that constitute misuses of the discovery process. (Code Civ. Proc., § 2023.010, subd. (a) – (i).) As such, section 2023.010 provides no basis for the imposition of monetary sanctions.

Next, Cross-Defendants seek monetary sanctions pursuant to Code of Civil Procedure section 2023.020, which states: “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

Cross-Defendants contend that this section provides a basis for monetary sanctions because Brilliant’s counsel did not agree to withdraw the subpoenas at issue in spite of Cross-Defendants meet and confer letters. This argument is not persuasive. Section 2023.020 applies only if a party or attorney “fails to confer as required.”  Here, Cross-Defendants do not submit any authority indicating that a party opposing a motion to quash subpoenas must meet and confer. Thus, this section does not provide a basis for monetary sanctions.

In light of the foregoing, Cross-Defendants’ requests for monetary sanctions are DENIED.

2. Brilliant’s Requests for Monetary Sanctions

Brilliant requests monetary sanctions against Cross-Defendants pursuant to Code of Civil Procedure section 1987.2, subdivision (a), which provides, in pertinent part, that the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing a motion to quash, including reasonable attorney’s fees, if it finds that the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.

While Cross-Defendants’ motion were denied, Cross-Defendants were successful in convincing the Court to narrow the scope of the subpoenas. As such, the motions to quash were not made in bad faith or without substantial justification. Accordingly, Brilliant’s requests for monetary sanctions are DENIED.

1. Conclusion and Order

Cross-Defendants’ motions to quash the subpoenas served on Sejent, Intel, and Sigura Construction are DENIED, but the Court modifies the subpoenas to exclude the search terms “Einav,” “Enteros,” “case 1-11-cv-210674,” and the requests for communications concerning Enteros, Inc. v. Ronen Sigura, et al., case number 1-11-CV-210674. In addition, documents responsive to the subpoenas shall be produced subject to the stipulated protective order, and documents designated “attorney’s eyes only” shall be provided to Brilliant’s counsel only. Within 30 calendar days of the filing of this order, Sejent, Intel, and Sigura Construction shall produce documents responsive to the subpoenas as modified herein.

Cross-Defendants’ requests for monetary sanctions are DENIED.

Brilliant’s requests for monetary sanctions are DENIED.

 

 

________________­­­____________ DATED:

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

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tables extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] GuideTech, Waissman and Ben Zeev’s motions are nearly identical and, as such, will be addressed together.

[3] The terms are: (1) 1-10-CV-187147, (2) 1-11-cv-201220, (3) 1-11-cv-210674, (4) 4-09-cv-05517, (5) Albert, (6) Bernal, (7) Bernie, (8) BI, (9) BI200, (10) BI220, (11) Brilliant, (12) Court, (13) Einav, (14) Enteros, (15) Guide, (16) Guide, (17) GuideTech, (18) Ilan, (19) Infringe, (20) Kattan, (21) Laura, (22) Lawsuit, (23) License, (24) Litigation, (25) Oren, (26) Patent, (27) Rajuan, (28) Ron, (29) Ronen, (30) Sassan, (31) Shalom, (32) Sigura, (33) Suit, (34) Tabatabaei, (35) TimeMetrics, (36) Waissman; and (37) West.