2017-00212405-CU-WT

Mike Alizadeh vs. Broderick Roadhouse Company, LLC

Nature of Proceeding: Motion to Appoint a Discovery Referee

Filed By: Bowman, Jr., Robert C.

Plaintiff Mike Alizadeh’s (“Plaintiff”) motion to appoint a discovery referee is UNOPPOSED, but is DENIED without prejudice.

This action was filed on May 11, 2017, and involves a business partnership and 11 causes of action for unfair business practices, intentional interference with economic relationship, wrongful termination, whistleblower discrimination, retaliation in violation of FEHA, breach of fiduciary duty, breach of partnership agreement, accounting, quantum merit, fraud, and negligent misrepresentation of fact.

Plaintiff contends discovery has commenced, but defendants have refused to provide documents on the grounds the documents are privileged, confidential, and/or proprietary. Plaintiff contends they disagree with these objections and offered to enter into a Joint Stipulation and Protective Order, but Defendants never returned a signed stipulation. Plaintiff contends he needs a discovery referee to evaluate the merits of defendants’ objections and determine whether a protective order is necessary.

Plaintiff contends the parties have engaged in meet and confer efforts since April of 2018. The correspondence indicates defendants e-discovery vendor has been conducting searches for responsive documents, but for some reason the production has not yet been produced.

Plaintiff now moves to have a discovery referree appointed to “A. conduct a review of any claimed proprietary or other documents and [sic] a recommendation of relevance and whether or not they are discoverable[,] make a recommendation if a protective order is needed as a result of the document review[,] and make a recommendation for Sanctions if necessary.” (Declaration of Robert C. Bowman at p. 6.)

Plaintiff relies upon C.C.P. § 639(a) (5) and (d) (2) in support. Those sections provide: “(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” And d) All appointments of referees pursuant to this section shall be by written order and shall include the following: (2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.” (CCP § 639.)

Here, Plaintiff does not indicate whether he has actually met and conferred with Defendants to discuss the appointment of a discovery referee. There is also no evidence that both parties have agreed to the appointment of a discovery referee. Unless both parties have agreed to a reference, the Court should not make blanket orders directing all discovery motions to a discovery referee except in the unusual case where a majority of factors favoring reference are present. These factors include:

(1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming. In making its decision, the trial courts need consider the statutory scheme is designed only to permit reference over the parties’ objections where that procedure is necessary, not merely convenient. (CCP § 639(e).) Where one or more of the above factors unduly impact the court’s time and/or limited resources, the court is clearly within its discretion to make an appropriate reference. (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105-106.)

At this time, the Court does not find that CCP § 639 supports Plaintiff’s request for the appointment of a referee on the facts before the Court. There have been no prior motions to compel any discovery, and there are no future discovery motions pending. Plaintiff has not presented any evidence that there a multiple issues to be resolved or that the number of documents that need to be reviewed would make the inquiry inordinately time-consuming. Plaintiff has failed to meet his burden to establish exceptional circumstances justify appointment of a discovery referee at this time. At most, Plaintiff’s declaration shows the parties have exchanged correspondence regarding search terms and have been trying to determine why the production of documents has not been forthcoming. This does not establish a need for a discovery referee at this time. Accordingly, the motion is DENIED without prejudice.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.