N. Thuy Van v. LanguageLine Solutions, et al.		CASE NO. 113CV244291
DATE: 25 July 2014	TIME: 9:00	LINE NUMBER: 27

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 24 July 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 July 2014, the following motions, continued from 10 July 2014, were argued and submitted:

1.   Plaintiff’s motion of Plaintiff Nathalie Thuy Van (“Plaintiff”), who is self-represented, to compel defendant LanguageLine Solutions (“Defendant”) to provide further responses to requests for production of documents, set one (“RPD”) and to produce documents responsive to the RPD, and for monetary sanctions; and

2.   Defendant’s motion for a protective order to prevent disclosure of sensitive and confidential documents.

Both parties filed oppositions, in which they request monetary sanctions.

I.             Statement of Facts

This action arises from an employment dispute between Plaintiff, an over-the-phone Vietnamese translator, and Defendant, her employer for almost twenty years. Plaintiff alleges that in May 2012, she reported certain unspecified discriminatory conduct and unlawful practices to management. Despite receiving positive performance reviews in January and February 2013, Defendant’s employees attempted to reassign her from her full time position to a temporary position in another county.

In addition, between February and March 2013, Plaintiff became concerned that Defendant was not paying her for all of the hours she had worked. On or about 10 April 2014, Defendant presented Plaintiff with copies of her Interpreter Call Detail Report and represented that these copies accurately reflected the hours she worked. Plaintiff alleges that this representation was false, and in fact, her time cards had been fraudulently altered.

In her operative second amended complaint (“SAC”), Plaintiff asserts eleven causes of action against Defendant and its employees for (1) racial discrimination, (2) harassment, (3) retaliation, (4) violations of Labor Code section 204, 226.7, 510 and 512, (5) violation of Labor Code section 226, (6) violation of Labor Code section 227, (7) fraudulent representation, (8) failure to prevent discrimination and harassment pursuant to the Fair Employment and Housing Act (“FEHA”), (9) negligence, (10) intentional infliction of emotional distress, and (11) negligent infliction of emotional distress.[1]

II.            Discovery Dispute

On 10 March 2014, Plaintiff served the RPD on Defendant.

Prior to the time responses were due, Defendant’s counsel sent a letter to Plaintiff, requesting that she stipulate to the entry of a protective order to protect confidential documents from being used for any purposes other than the case. (See Van Decl., Ex. C.) On 28 March 2014, Plaintiff sent a letter in reply, indicating that she was “willing to stipulate to a protective order to protect documents that could be considered confidential as long as the documents have not been filed in any court dockets and are clearly stamped ‘confidential.’” (Van Decl., Ex. D.)

On 14 April 2014, Defendant served its responses to the RPD, consisting of both objections and substantive responses. In an accompanying letter, Defendant’s counsel indicated that Defendant would provide copies of the documents it agreed to produce upon the signing of the stipulated protective order by the Court.

Plaintiff sent a letter in response on 22 April 2014. First, she stated that the terms of the proposed protective order “were malicious and unacceptable.” In particular, she took issue with paragraph 14, which read: “14. Survival. The binding effect of this Stipulation and Order shall survive termination of this Action…” (See Van Decl., Ex. H.) She also provided defense counsel with her own proposed protective order for Defendant’s signature. Second, she indicated that Defendant’s responses to the RPD were evasive, and requested that Defendant provide further code-compliant responses and all responsive documents to the RPD immediately.

On 28 April 2014, Defendant’s counsel sent a letter in reply. With regard to the proposed stipulated protective order, he indicated that the confidentiality of documents must be preserved beyond the length of the lawsuit. Counsel attached another copy of Defendant’s proposed protective order and requested that Plaintiff sign the document. Counsel did not address the purported defects in Defendant’s responses to the RPD identified by Plaintiff.

Plaintiff sent a letter in response on 8 May 2014. She reiterated that she was uncomfortable with the language of Defendant’s proposed protective order, and attached another copy of her preferred protective order. In addition, Plaintiff restated that Defendant’s responses to the RPD were incomplete.

Hoping to resolve the dispute, Defendant’s counsel sent Plaintiff a revised proposed protective order on 19 May 2014, incorporating some of the language from Plaintiff’s proposed protective order. Once again, counsel did not address the perceived defects in Defendant’s responses to the RPD.

On 21 May 2014, Plaintiff sent a final meet and confer letter to Defendant’s counsel, rejecting his proposed protective order and indicating that she would file a motion to compel further responses to the RPD. Six days later, on 27 May 2014, Plaintiff filed this motion to compel further responses to the RPD.

On 30 May 2014, Defendant’s counsel sent a letter to Plaintiff, indicating that, as the parties were unable to informally agree on the language of a protective order, Defendant would file a motion for a protective order to prevent the disclosure of its confidential information. Accordingly, on 16 June 2014, Defendant filed its motion for a protective order. Plaintiff filed her opposition to the motion for protective order on 23 June 2014. The following day, on 24 June 2014 Defendant filed its opposition to Plaintiff’s motion to compel. Plaintiff filed her reply on 1 July 2014, and Defendant filed its reply on 2 July 2014.

On 10 July 2014, the above motions were heard and continued to 25 July 2014. The Court instructed the parties to meet and confer in order to agree on a protective order or else the Court will impose the model protective order used for complex litigation court.[2]

On 14 July 2014, Defendant served second amended notice of taking deposition on Plaintiff. It set deposition for 28 and 29 July 2014. There were previous depositions set for 12 and 13 June 2014, which were amended to 19 and 20 June 2014.

On 14 July 2014, Defendant sent a letter to Plaintiff recommending they adopt the standard protective order used by Judge Manoukian. Defendant offered to provide Plaintiff with a copy once Defendant received that model order.

On 17 July 2014, Plaintiff responded to that letter stating that Plaintiff had not seen the model order yet and was not willing to accept something Plaintiff had not yet seen.

As of now, no agreement to a protective order has been reached.

Discussion

I. Defendant’s Motion for Protective Order

Defendant moves for a protective order preventing the disclosure of its confidential information, personnel documents, and policies and practices.

               A. Legal Standards

In general, “[a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter … if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)

When a request for production of documents has been made, the party to whom the request has been directed may promptly move for a protective order. (See Code Civ. Proc., § 2031.060, subd. (a).) For good cause shown, a court may make any order that justice requires to protect any party from unwanted annoyance, embarrassment, or oppression, or undue burden and expense. (See Code Civ. Proc., § 2031.060, subd. (b).) This order may include the direction that a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way. (See Code Civ. Proc., § 2031.060, subd. (b)(5).)

               B. Request for Judicial Notice

With its reply, Defendant requests that the Court take judicial notice of an order denying a motion to compel and granting a protective order issued in Nathalie Thuy Van v. Wal-Mart Stores, Inc., a case filed in the United States District Court for the Northern District of California. In the order, the Hon. Paul S. Grewal granted a motion for a blanket protective order in favor of the defendant, Wal-Mart Stores, Inc. (See Request for judicial notice, Ex. 1.)

A court may take judicial notice of the records of any court record that is relevant to a pending issue. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].)

While the order at issue is a court record, Defendant fails to specifically articulate how it is relevant to the issues involved in this motion. In addition, it is not readily apparent how an order on a discovery motion filed in a federal case, based on different factual circumstances and involving a different defendant, is relevant to the pending motion. Accordingly, Defendant’s request for judicial notice is DENIED.

               C. Meet and Confer Requirement

As an initial matter, Plaintiff contends that Defendant failed to meet and confer in good faith.

A motion for a protective order shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (Code Civ. Proc., §§ 2016.040, 2025.420, subd. (a).) A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel.  It requires that the parties present the merits of their respective positions with candor, specificity, and support.  (See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1439.)  The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case.  (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)

Here, Defendant explains that, during the meet and confer process, it sought a stipulation for the entry of a protective order to prevent documents containing confidential information from being used for purposes unrelated to the case. When Plaintiff objected to the provision that the binding effect of the stipulation would survive the termination of the lawsuit, Defendant clearly presented its position and offered to compromise. Once Plaintiff refused to agree to any compromise, it was reasonable for Defendant to conclude that further attempts to meet and confer would not be fruitful. Accordingly, the Court finds that Defendant’s meet and confer efforts were adequate.

               D. Prompt Filing Requirement

Plaintiff asserts that Defendant failed to promptly move for a protective order because it did not bring this motion until after she filed her motion to compel.

Code of Civil Procedure section 2025.420, subdivision (b) provides that a motion for a protective order must be filed “promptly,” but provides no specific statutory deadline by which such a motion must be filed. The determination of whether a motion for a protective order has been promptly filed is a fact specific inquiry entrusted to the discretion of the Court. (See Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316.)

Here, the record reflects that Defendant timely moved for a protective order. As indicated above, upon receipt of the RPD, it reached out to Plaintiff to attempt to informally resolve the dispute. After a number attempts to fashion a suitable compromise, the parties reached an impasse on 21 May 2014. Within a month of that date, Defendant filed this motion for a protective order. Accordingly, taking into account the entirety of Defendant’s conduct, the Court finds that it promptly moved for a protective order.

               E. Analysis

Defendant contends that good cause exists for the issuance of a blanket protective order because discovery is likely to include the production of proprietary business practices and policies, personnel files, disciplinary files and personal data. (See Mem. Ps & As., p. 7:2-5.)

When a party moves for a protective order, “the burden is on the party seeking the protective order to show good cause for whatever order is sought [Citation.]” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) While courts may issue an umbrella protective order that allows the parties to designate as confidential documents produced in discovery and specifies the permissible use of those designated documents, the moving party must submit factually specific evidence in support of its request. (See Nativi, supra, 223 Cal.App.4th at p. 318.)

In Nativi, American Home Mortgage Servicing Inc. (“AHMSI”) filed a motion for a protective order to prevent the dissemination of its policies, procedures, and practices regarding marketing, selling, servicing and contracting with third parties to manage real estate owned by lenders. (Nativi, supra, 223 Cal.App.4th at p. 314.) In support of its motion, AHMSI provided the declaration of counsel, which stated, “There is absolutely no prejudice to Plaintiffs whatsoever in keeping these documents from dissemination outside of this lawsuit, yet AHMSI is severely prejudiced if these documents are not provided any protection at all.” (Id. at p. 315.) No factual basis or articulated reasoning was given for this assertion, and the declaration did not affirmatively state that the documents at issue contained confidential commercial or private information. (Id.)  Nevertheless, the trial court granted the motion. The Court of Appeal reversed, reasoning that AHMSI failed to make a factual showing that the documents at issue contained confidential commercial information or that the dissemination of the documents to the public would result in injury. (Id. at p. 318.)

Here, the evidentiary support for this motion for a protective order is even more imprecise than the declaration submitted in Nativi. In support of its motion, Defendant submits the declaration of its counsel and twelve exhibits consisting of the RPD (Havey Decl., Ex. 1) and correspondence between the parties concerning the proposed protective order (Havey Decl., Exs. 2-12). In his declaration, Defendant’s counsel does not assert, let alone make a factual showing, that the documents sought by the RPD contain confidential commercial or private information or that the dissemination of the documents to the public would result in injury. Thus, in accordance with Nativi, supra, Defendant fails to demonstrate good cause for the issuance of a blanket protective order.

               F. Conclusion

Based on the foregoing, the motion for a protective order is DENIED.

But notwithstanding any technical defects of this motion, this Court believes that a protective order is still in the best interests of the parties.  This motion was continued two weeks to 25 July 2014.  Since the parties have not agreed on a proper protective order, this Court will impose the model order used for the complex litigation court.

II. Plaintiff’s Motion to Compel Further Responses to the RPD and the Production of Documents

Plaintiff moves to compel further responses to RPD Nos. 1-4, 13-16, 21-26, 30, 32, 34-37, 39-42, 44-47, 49-57 , 59-71 and 73 and compliance with Defendant’s responses to RPD Nos. 5-12, 17-20, 27-29, 31, 33, 38, 43, 48, 58 and 72.

A. Legal Standards

A party propounding a demand for the production of documents may move for an order compelling a further response if it deems that a response is incomplete or evasive, a representation of inability to comply is inadequate, incomplete or evasive, or an objection in the response is without merit or too general. (See Code Civ. Proc., §2031.310, subd. (a).)  The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.”  (Code Civ. Proc., §2031.310, subd. (b)(1); Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)  Good cause is established simply by a fact-specific showing of relevance.  (Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98.)  If good cause is shown, the burden shifts to the responding party to justify any objections.  (Id.)

Moreover, pursuant to Code of Civil Procedure section 2031.320, “[i]f a party filing a response to a demand for inspection, copying, testing, or sampling […] thereafter fails to permit the inspection, copying , testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”

B. Defective Service of Opposition

As a threshold matter, Plaintiff claims that Defendant’s opposition to this motion was not served in compliance with Code of Civil Procedure section 1005, subdivision (c), which requires all papers opposing a motion to be served in a manner reasonably calculated to ensure delivery to the other party “not later than the close of the next business day after the time the opposing papers … are filed.”

Plaintiff contends that Defendant served its opposing papers on 26 June 2014, even though it filed its opposing paperwork on 24 June 2014. In support of her argument, Plaintiff declares that when she did not receive a copy of the opposition on 26 June 2014, she called Defendant’s counsel, who informed her that Defendant had not yet served the opposing papers. (See Van Decl., p. 2: 11-16.) After receiving the opposing papers on 27 June 2014, Plaintiff checked the online tracking website for the carrier and determined that the papers were not shipped until 26 June 2014. (See Van Decl., p. 2:21-25; Ex. 2.) Thus, as it appears that the opposing papers were not served until two days after the filing of the motion, Defendant did not serve its opposition in compliance with Code of Civil Procedure section 1005, subdivision (c).

Nevertheless, Plaintiff filed a detailed reply brief, fully addressing the merits of Defendant’s opposition. Accordingly, given the absence of prejudice and in deference to the principle that matters should be decided on their merits, the Court shall consider Defendant’s opposition.

            C. Motion to Compel Further Responses to the RPD

Plaintiff moves to compel further responses to RPD Nos. 1-4, 13-16, 21-26, 30, 32, 34-37, 39-42, 44-47, 49-57 , 59-71 and 73.

The subject requests seek civil and administrative complaints against Defendant for billing irregularities, discrimination and labor law violations (RPD Nos. 1-4), communications regarding the allegations in the ninth, tenth, eleventh and twelfth causes of action for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress, respectively  (RPD Nos. 13-15),communications regarding the labor law violations of Defendant’s employee, Gwyndolyn Allison (RPD No. 16), a number of specific invoices sent by Defendant to its clients (RPD Nos. 21-25), documents concerning the Vietnamese Video Remoter Interpreter position offered to Plaintiff (RPD No. 26), documents regarding the failure to allow Plaintiff to review her time records (RPD No. 30), documents regarding the fraudulent representation alleged in Plaintiff’s complaint (RPD No. 32), documents evidencing Plaintiff’s earnings, interpreting activities, schedule and invoices between 1995 and 2008 (RPD Nos. 34-37, 39-42, 44-47, 49-52 and 54-57), invoices sent to clients concerning Plaintiff’s work from 2009 to the present (RPD No. 53), documents contradicting or defusing the impact of “evidence offered” by Plaintiff in her complaint (RPD Nos. 59-70),  documents “reflecting notification by Defendant to Plaintiff concerning the inaccuracy of information posted in Impact 360 for the working holidays” (RPD No. 71), and documents, not previously identified, which are related to the allegations in Plaintiff’s complaint (RPD No. 73). Defendant objected to each request on a number of grounds and substantively responded to RPD Nos. 30 and 32.

                        1. Meet and Confer

As a threshold matter, Defendant contends that Plaintiff failed to adequately meet and confer prior to filing this motion.

A motion to compel further responses to a request for production of documents shall be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) A reasonable and good faith attempt at informal resolution entails something more than argument with opposing counsel. It requires that the parties present the merits of their respective positions with candor, specificity, and support. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1439.) The level of effort at informal resolution that satisfies the “reasonable and good faith attempt” standard depends upon the circumstances of the case. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) The court has discretion to deny discovery absent efforts to meet and confer, but must consider whether a less drastic remedy is appropriate given the circumstances presented. (Id. at pp.433-434.)

Defendant asserts that Plaintiff did not adequately meet and confer because her 21 May 2014 final meet and confer letter provided no specific issues, proposed resolutions, or legal support. Defendant’s argument is not persuasive.

Defendant fails to mention that Plaintiff sent two previous meet and confer letters concerning Defendant’s responses to the RPD and the proposed protective order on 22 April 2014 and 8 May 2014. While Plaintiff did not provide specific legal support for her contentions, she did identify several of the objections she considered to be without merit and requested that Defendant provide further responses and documents responsive to the RPD. (See Van Decl., Exs. J and H.) Defendant responded to both letters, but chose only to address the proposed protective order, not the perceived deficiencies in the responses to the RPD.

While Plaintiff could have been more detailed in describing her specific concerns with Defendant’s responses to the RPD, Defendant made no attempt to engage with Plaintiff regarding the perceived deficiencies. Given Defendant’s apparent unwillingness to meet and confer concerning its responses to the RPD, Plaintiff’s efforts to informally resolve the dispute were adequate under the circumstances of the case. (See Obregon, supra, 67 Cal.App.4th at p. 431.)

                        2. Good Cause

Discovery is allowed for any matters that are relevant to the action, reasonably calculated to lead to the discovery of admissible evidence and not privileged. (Code Civ. Proc., § 2017.010.)  Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof.  (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

Here, it is readily apparent that good cause exists for the documents sought by RPD Nos. 1-4, 21-26, 30, 32, 34-37, 39-42, 44-47, 49-53, 59-70, 71 and 73. Civil and administrative complaints against Defendant for billing irregularities, discrimination and labor law violations (RPD Nos. 1-4) may uncover evidence supporting Plaintiff’s contention that Defendant has engaged in a pattern or practice of discrimination and unlawful conduct. Documents evidencing Plaintiff’s earnings, interpreting activities, schedule and invoices (RPD Nos. 21-25, 34-37, 39-43, 44-47 and 49-53) may assist her in proving that Defendant falsified her records or failed to pay her for all of the hours she worked. Documents concerning the purported misrepresentation of the terms of Plaintiff’s employment (RPD Nos. 32 and 71), failure to allow her to inspect her time records in violation of Labor Code section 226 (RPD No. 30), and communications regarding labor law violations committed by one of Defendant’s employees (RPD No. 16) will allow Plaintiff to uncover evidence in support of her fraudulent representation and labor law violation claims. Documents contradicting the allegations of her complaint (RPD Nos. 59-70) will assist Plaintiff in evaluating the merits of her case. Finally, documents relating to the allegations of Plaintiff’s complaint (RPD No. 73), by their very nature, are relevant to the action. Accordingly, good cause exists as to RPD Nos. 1-4, 15, 21-26, 30, 32, 34-37, 39-42, 44-47, 49-53, 59-70, 71 and 73.

In contrast, Plaintiff has made no showing that good cause exists for documents sought by RPD Nos. 13-15. In this regard, Plaintiff does not explain how communications concerning the allegations contained in three causes of action which have been dismissed will assist Plaintiff in evaluating the case, preparing for trial, or facilitating settlement. Accordingly, good cause does not exist as to RPD Nos. 13-15 and Plaintiff is not entitled to further responses.

                        3. Objections

Defendant asserted a number of objections in response to the RPD. However, the only objections it attempts to justify in opposition to the motion to compel are its overbreadth objections to RPD Nos. 1-4, 21-26, 34-37, 39-42, 44-47, 49-57, 59-71 and 73, and its privacy objections to each request. The other objections are therefore overruled, with the exception of the attorney-client privilege and work product doctrine, which are preserved as to RPD Nos. 16, 21-26, 30, 32, 59-70 and 73. (See Kirkland v. Superior Court, supra, 95 Cal.App.4th at p. 98; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189 [holding that where a defendant asserted the attorney-client and work product privileges in a timely manner, albeit in a boilerplate fashion, the trial court erred in finding a waiver of the privileges].)

a. Privacy

Defendant asserts that documents responsive to the RPD at issue will substantially intrude upon its employees’ right to privacy in their personnel files and its customers’ right to privacy in commercially sensitive information such as customer lists, charges and billings.

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, 859; see also Binder v. Superior Court (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of 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. (Pioneer Electronics, Inc. v. Superior Court, supra, 40 Cal.4th at p. 371.)

It is well established that employees have a right to privacy in their personnel records and businesses have a right to privacy in their customer lists. (See Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (1981) 119 Cal.App.3d 516, 528-530 [personnel files]; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1019 [citing Hofmann Corporation v. Superior Court (1985) 172 Cal.App.3d 357 for proposition that customer list protected by right to privacy].) Nevertheless, Defendant does not articulate how the RPD at issue seek documents located in personnel files or documents containing private information relating to their customers such as customer lists. Furthermore, looking at the face of the requests, it is not readily apparent how the privacy interests of Defendant’s employees and customers would be implicated. Thus, Defendant fails to demonstrate that the production of documents responsive to the RPD at issue will substantially intrude upon the privacy rights of its employees and customers. Accordingly, Defendant’s objections on the ground of privacy are overruled.

b. Overbreadth

Defendant next contends that RPD Nos. 1-4, 34-37, 39-42, 44-47, 49-57, 59-71 and 73 are overbroad as to time because they seek documents beyond the applicable statute of limitations in this action.

As indicated above, these requests seek civil and administrative complaints against Defendant for billing irregularities, discrimination and labor law violations (RPD Nos. 1-4), documents evidencing Plaintiff’s earnings, interpreting activities, schedule and invoices between 1995 and 2008 (RPD Nos. 34-37, 39-42, 44-47, 49-52 and 54-57), documents contradicting or defusing the impact of “evidence offered” by Plaintiff in her complaint (RPD Nos. 59-70),  documents “reflecting notification by Defendant to Plaintiff concerning the inaccuracy of information posted in Impact 360 for the working holidays” (RPD No. 71), and documents, not previously identified, which are related to the allegations in Plaintiff’s complaint (RPD No. 73).

Defendant reasons that since Plaintiff filed this action on 8 April 2013, and the longest statute of limitations for her claims is for three years (see Code Civ. Proc., § 338, subd. (a)), she is only entitled to discovery of facts after April 2010. This argument is not persuasive.

The standard of relevance for the purposes of discovery is broad. Discovery is allowed for any matters that are relevant to the action, reasonably calculated to lead to the discovery of admissible evidence and not privileged. (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.)

Defendant assumes, without providing any legal or factual support, that conduct occurring outside of the applicable statute of limitations can have no bearing on this action. On the contrary, given the nature of the alleged unlawful conduct, evidence concerning Defendant’s billing practices, for instance, may be helpful to Plaintiff in proving the extent of her damages. Plaintiff alleges that she has been employed by Defendant for almost twenty years. As such, she has received a paycheck on a regular basis. She presumably requests her time records over this extensive period of time in order to show that Defendant has been continuously altering her time records to understate the number of hours worked. If Plaintiff can prove a pattern of reasonably similar acts, she may be able to assert that all of the underpayments constitute one indivisible course of conduct, actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1198; Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 345 [applied to statutory cause of action]; Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 [applied to FEHA cause of action].) Thus, as acts that took place outside of the statute of limitations could be actionable, Defendant’s objections on this ground are overruled.

4. Substantive Responses to RPD Nos. 30 and 32

RPD Nos. 30 and 32 seek all documents reflecting communications between Defendant and its current and former employees regarding Defendant’s failure to allow inspection of Plaintiff’s time records (RPD No. 30) and any fraudulent or false representations made to Plaintiff (RPD No. 32).

In its substantive response to RPD No. 30, Defendant states: “Defendant avers that it never failed or refused to allow inspection of Plaintiff’s records. Therefore, Defendant is unable to comply with this request after a diligent search and reasonable inquiry because the requested documents have never existed.”

In its substantive response to RPD No. 32, Defendant states: “Defendant avers that it never made any fraudulent or false representations to Plaintiff. Therefore, Defendant is unable to comply with this request after a diligent search and reasonable inquiry because the requested documents have never existed.”

Plaintiff argues that these responses are not code-compliant, but does not articulate the manner in which the responses are defective.

A representation of inability to comply must specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced or stolen, or has never been, or is no longer in the possession, custody, or control of the responding party. (See Code Civ. Proc., § 2031.230.)

Here, in response to RPD Nos. 30 and 32, Defendant unambiguously states that it is unable to comply with the request and provides the reasons why this is the case. Accordingly, Defendant’s statements of inability to comply are complete and straightforward and further responses to RPD Nos. 30 and 32 are therefore unwarranted. [3]

5. Conclusion

Based on the foregoing, the motion to compel further responses to RPD Nos. 13-15, 30 and 32 is DENIED. The motion to compel is otherwise GRANTED.

               D. Motion to Compel Compliance

Plaintiff asserts that Defendant has failed to produce documents responsive to RPD Nos. 5-12, 17-20, 27-29, 31, 33, 38, 43, 48, 58 and 72. In opposition, Defendant acknowledges that it agreed to produce responsive documents to these requests and has yet to produce the documents at issue.

A party moving to compel compliance need only show that the responding party failed to comply with its agreement to produce the documents. (See Code Civ. Proc., § 2031.320, subd. (a).)

Here, it is undisputed that Defendant has failed to comply with its agreement to provide responsive documents to the RPD at issue. Accordingly, Plaintiff’s motion to compel compliance is GRANTED in its entirety.

III. Requests for Monetary Sanctions

            A. Motion to Compel Further Responses to the RPD and the Production of Documents

Both parties request monetary in connection with Plaintiff’s motion to compel further responses to the RPD and compliance with Defendant’s responses to the RPD under Code of Civil Procedure sections 2031.310 and 2031.320.

Code of Civil Procedure sections 2031.310, subdivision (h) and 2031.320, subdivision (b) provide that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand for the production of documents or compliance with a demand unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.

1. Plaintiff’s Request

Plaintiff makes a request for monetary sanctions in the amount of $1,090 against Defendant and its counsel. Here, Plaintiff largely prevailed on her motion, Defendant’s opposition was not substantially justified and no other circumstances make the imposition of sanctions unjust. Therefore, she is entitled to the reasonable fees she incurred in filing this motion. (See Code Civ. Proc., § 2023.030, subd. (a).) Nevertheless, she does not provide any evidence explaining how she calculated the amount claimed or how these fees were reasonably incurred in filing this motion. As Plaintiff fails to provide an evidentiary basis for her request for monetary sanctions, Plaintiff’s request is DENIED.

2. Defendant’s Request

Defendant seeks monetary sanctions against Plaintiff. Here, Plaintiff largely prevailed on her motion and she was therefore substantially justified. Accordingly, Defendant’s request for monetary sanctions is DENIED.

            B. Opposition to Motion for Protective Order

Plaintiff also requests monetary sanctions in connection with her opposition to Defendant’s motion for a protective order pursuant to Code of Civil Procedure section 2031.060, subdivision (h), which provides that the court shall impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion for a protective order, unless the party or attorney acted with substantial justification or other circumstances make the imposition of a sanction unjust.

Here, Defendant’s motion was unsuccessful, the motion was not substantially justified and no other circumstances make the imposition of sanctions unjust. Therefore, she is entitled to the reasonable fees she incurred in filing this motion. (See Code Civ. Proc., § 2023.030, subd. (a).) Nevertheless, she does not provide any evidence explaining how she calculated the amount claimed or how these fees were reasonably incurred in opposing this motion. Therefore, Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Defendant’s motion for a protective order is DENIED.

Defendant’s request for judicial notice is DENIED.

But notwithstanding any technical defects of this motion, this Court believes that a protective order is still in the best interests of the parties.  This motion was continued two weeks to 25 July 2014.  Since the parties have not agreed on a proper protective order, this Court will impose the model order used for the complex litigation court.

Plaintiff’s motion to compel further responses to the RPD is GRANTED IN PART and DENIED IN PART. The motion is DENIED as to RPD Nos. 13-15, 30 and 32. The motion is GRANTED as to RPD Nos. 1-4, 16, 21-26, 34-37, 39-42, 44-47, 49-57, 59-71 and 73. Accordingly, within 20 calendar days of the filing of this Order, Defendant shall serve verified code-compliant further responses to RPD Nos. 1-4, 16, 21-26, 34-37, 39-42, 44-47, 49-57, 59-71 and 73, without objections (except for attorney-client privilege and attorney work product doctrine, which have been preserved as to RPD Nos. 16, 21-26, 59-70 and 73), and produce documents in accordance with those responses. To the extent any documents are withheld based upon attorney-client privilege and/or attorney work product doctrine, Defendant shall also serve a privilege log identifying all documents withheld and providing a factual basis for the privilege claimed.

Plaintiff’s motion to compel compliance with Defendant’s representations of compliance with regard to RPD Nos. 5-12, 17-20, 27-29, 31, 33, 38, 43, 48, 58 and 72 is GRANTED. Within 20 calendar days of the filing of this Order, Defendant shall produce all responsive documents in its possession, custody or control consistent with its statements of compliance.

Plaintiff’s requests for monetary sanctions are DENIED.  Defendant’s request for monetary sanctions is DENIED.