Feb. 17, 2015 @ 9:00 a.m., Dept. 21

Case Name: Portfolio Recovery Associates, LLC v. Zoe L. James
Case No.: 1-14-CV-265849

Currently before the Court is the motion by defendant Zoe L. James (“Defendant”) to compel further responses to interrogatories and further production of documents and electronically stored information from plaintiff Portfolio Recovery Associates, LLC (“Plaintiff”), and for an award of monetary sanctions.

With respect to special interrogatories (“SI”) Nos. 1-2 and 5-6, although Plaintiff served amended responses after Defendant filed its motion, the Court exercises its discretion to address the amended responses under Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390 because the amended responses are substantially similar to the original responses and suffer from some of the same purported deficiencies that Defendant identified with respect to the original responses. Plaintiff’s undefended objections to the SI on the grounds of vagueness, ambiguity, over breadth, relevance, and privacy lack merit and are overruled. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.) Additionally, Plaintiff did not object to the SI on the ground that the information requested was equally available to Defendant in its original responses and, thus, such an objection raised for the first time in opposition to this motion is waived. (See Scottsdale Ins. Co. v. Super. Ct. (1997) 59 Cal.App.4th 263, 273.) With respect to Plaintiff’s substantive responses, in light of the amended responses provided on January 13, 2015, only Plaintiff’s responses to SI Nos. 2 and 6 remain incomplete because they do not state the home addresses and telephone numbers for Ms. Williams and Mr. Eyre. (Puerto v. Super. Ct. (2008) 158 Cal.App.4th 1242, 1254 [“[I]t is only under unusual circumstances that courts restrict the discovery of nonparty witnesses’ residential contact information.”].) Therefore, further responses are warranted to SI Nos. 2 and 6.

With respect to the requests for production of documents (“RPD”), it appears that the instant motion is actually one to compel further responses to RPD Nos. 1 and 4 pursuant to Code of Civil Procedure section 2031.310, even though Defendant repeatedly states in her notice of motion and memorandum of points and authorities that she moves to compel further production of documents and ESI from Plaintiff. Thus, the Court construes the instant motion as one to compel further responses to RPD Nos. 1 and 4 versus one to compel compliance. It is self evident that there is good cause for the discovery sought by RPD Nos. 1 and 4 as the document retention policies are relevant to evidentiary issues regarding the production and retention of documents in connection with this litigation and the purchase agreement is relevant to the issue of the validity of Plaintiff’s ownership of Defendant’s debt. (See Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98 [stating that it is the moving party’s burden to demonstrate good cause for the discovery sought].) While Plaintiff does not explicitly defend its objections to the RPD on the grounds of confidentiality and trade secret information in its opposing papers, its objections to the RPD were found to have merit in connection with Plaintiff’s motion for a protective order, which was granted on December 24, 2014. Plaintiff persuasively argues that the Court should not compel it to produce a copy of its document retention policies and a redacted version of the purchase agreement at this time because the protective order to be issued pursuant to the December 24, 2014 order has not yet been entered. Nonetheless, Plaintiff must provide a further response to RPD No. 1, regarding the document retention policies, because its response only contains unmeritorious objections and does not reflect Plaintiff’s position, as articulated in its opposition papers, that it will produce a copy of its document retention policies once the court enters the protective order. With respect to RPD No. 4, a further response regarding the purchase agreement is not warranted because Plaintiff’s response already states that Plaintiff will produce a redacted copy of the purchase agreement subject to a protective order. Nonetheless, the response is incomplete because it does not contain a statement of compliance with respect to the ESI, but merely states “[s]ee Plaintiff’s Response to Defendant’s Request for Statement of Witnesses and Evidence … PRA 001-124 …” (Mayilyan Dec., Ex. H, p. 5:1-15). (See Code Civ. Proc., §§ 2031.210 and 2031.220 [setting forth what constitutes a complete response].) While Plaintiff states that it produced all of the ESI that it received from Capital One as PRA 0093, its incomplete response to RPD No. 4 appears to have given rise to Defendant’s concern that it is withholding ESI from production. Therefore, a further response indicating that it has produced all responsive ESI in its possession, custody, and control is warranted.

Accordingly, Defendant’s motion is DENIED IN PART and GRANTED IN PART. The motion is DENIED as to SI Nos. 1 and 5. The motion is GRANTED as to SI Nos. 2 and 6, and RPD Nos. 1 and 4. Accordingly, within 20 days of the date of the filing of the Order, Plaintiff shall serve Defendant with verified, code-compliant further responses to SI Nos. 1 and 5, without objection. In addition, within 20 days of the date of the filing of the Order, Plaintiff shall serve Defendant with a verified, code-complaint further response to RPD No. 1, providing that it will produce its document retention policies to Defendant subject to the protective order to be entered by the court, and a verified, code-complaint further response to RPD No. 4, providing that it has produced all responsive ESI in its possession, custody, or control.

Defendant’s request for monetary sanctions is GRANTED IN PART in the amount of $900. Defendant is entitled to monetary sanctions as she was largely successful on the motion, but the amount is reduced because Plaintiff did not have sufficient notice as to the increased amount of $2,025 requested in the reply and Plaintiff’s opposition was substantially justified with respect to the RPD. Accordingly, within 20 days of the date of the filing of the Order, Plaintiff shall pay to Defendant’s counsel monetary sanctions in the amount of $900.

Plaintiff’s request for monetary sanctions is DENIED as it was largely unsuccessful in its opposition to the motion.