2017-00214984-CU-WT

Randall Echevarria vs. Rural County Representatives of Ca

Nature of Proceeding: Motion to Compel Production of Documents

Filed By: Deherrera, Megan D.

Plaintiff Randall Echevarria’s (Echevarria) motion to compel production of documents is DROPPED as moot, except that the court imposes a monetary sanction against Defendant Rural County Representatives of California (RCRC).

This case presents an employment dispute involving allegations of discrimination based on sexual orientation and national origin. Echevarria is the former employee, and RCRC is the former employer.

RCRC is defending in part on the theory that it terminated Echevarria for legitimate,

non-discriminatory reasons related to Echevarria’s job performance. To obtain emails and other documents relevant to this theory of defense, Echevarria propounded his second set of document requests. RCRC did not timely respond, and on 6/26/18, this court granted Echevarria’s unopposed motion to compel responses.

Echevarria’s current motion focuses on Request Nos. 41, 42 and 46 through 51.

These requests and RCRC’s corresponding original responses read:

Request for Production of Documents No. 41:

All email CORRESPONDENCE between PLAINTIFF and Paul Smith through the end of PLAINTIFF’S employment with YOU.

Response to Request for Production of Documents No. 41:

RCRC will produce the requested email CORRESPONDENCE.

Request for Production of Documents No. 42:

All email CORRESPONDENCE between PLAINTIFF and Tracy Rhine.

Response to Request for Production of Documents No. 42:

RCRC will produce the requested email CORRESPONDENCE.

Request for Production of Documents No. 46:

All DOCUMENTS RELATED to PLAINTIFF’S request for feedback and/or to meet with Paul Smith in the last quarter of 2016 to discuss PLAINTIFF’S performance at RCRC, including emails by and between PLAINTIFF and Paul Smith RELATED to this topic.

Response to Request for Production of Documents No. 46:

After a diligent search and reasonable inquiry, RCRC is unable to comply with this demand because the requested DOCUMENTS (paper documents) have never existed; however, as previously stated above in RCRC’s response to Demand No. 41, RCRC will produce emails by and between PLAINTIFF and Paul Smith (for PLAINTIFF’S own assessment whether any of the emails RELATE TO a request for feedback and/or to meet with Smith).

Request for Production of Documents No. 47:

All DOCUMENTS RELATED to PLAINTIFF’S request for feedback and/or to meet with Staci Heaton in the last quarter of 2016 to discuss PLAINTIFF’S performance at RCRC, including emails by and between PLAINTIFF and Staci Heaton RELATED to this topic.

Response to Request for Production of Documents No. 47:

After diligent search and reasonable inquiry, RCRC is unable to comply

with this demand because the requested DOCUMENTS (paper documents) have never existed; however, RCRC will produce emails for the stated period by and between PLAINTIFF and Staci Heaton (for PLAINTIFF’S own assessment whether any of the emails RELATE TO a request for feedback and/or to meet with Heaton).

Request for Production of Documents No. 48:

All DOCUMENTS RELATED to PLAINTIFF’S request for feedback and/or to meet with Mary Pitto in the last quarter of 2016 to discuss PLAINTIFF’S performance at RCRC, including emails by and between PLAINTIFF and Mary Pitto RELATED to this topic.

Response to Request for Production of Documents No. 48:

After diligent search and reasonable inquiry, RCRC is unable to comply with this demand because the requested DOCUMENTS (paper documents) have never existed; however, RCRC will produce emails for the stated period by and between PLAINTIFF and Staci Heaton (for PLAINTIFF’S own assessment whether any of the emails RELATE TO a request for feedback and/or to meet with Heaton).

Request for Production of Documents No. 49:

All DOCUMENTS RELATED to PLAINTIFF’S request for feedback and/or to meet with Tracy Rhine in the last quarter of 2016 to discuss PLAINTIFF’S performance at RCRC, including emails by and between PLAINTIFF and Tracy Rhine RELATED to this topic.

Response to Request for Production of Documents No. 49:

After diligent search and reasonable inquiry, RCRC is unable to comply with this demand because the requested DOCUMENTS have never existed; however, as previously stated above RCRC’s response to Demand No. 42, RCRC will produce emails by and between PLAINTIFF and Tracy Rhine (for PLAINTIFF’S own assessment whether any of the emails RELATE TO a request for feedback and/or to meet with Rhine.

Request for Production of Documents No. 50:

All email CORRESPONDENCE between PLAINTIFF and Patricia Megason from January 1, 2016 through the end of PLAINTIFF’S employment with YOU.

Response to Request for Production of Documents No. 50:

After diligent search and reasonable inquiry, RCRC is unable to comply with this demand because the requested CORRESPONDENCE (paper documents) have never existed or are not recoverable (emails). With few exceptions, RCRC is unable to produce emails by and between PLAINTIFF and Patricia Megason for the stated period due to a catastrophic backup device failure. RCRC will produce the few emails it

was able to recover.

Request for Production of Documents No. 51:

All email CORRESPONDENCE between PLAINTIFF and Lisa McCargar from January 1, 2016 through the end of PLAINTIFF’S employment with YOU.

Response to Request for Production of Documents No. 51:

After diligent search and reasonable inquiry, RCRC is unable to comply with this demand because the requested CORRESPONDENCE (paper documents) has never existed; however, RCRC will produce emails for the stated period by and between PLAINTIFF and Lisa McCargar for PLAINTIFF’S own assessment whether any emails RELATE TO a request for feedback and/or to meet with McCargar).

(See Sep. Stmt.)

After RCRC made a production, counsel for Echevarria attempted to meet and confer. It appeared that only a subset of the promised emails had been produced, and it appeared that other emails produced were nonresponsive. (See DeHerrera Decl., Exh. 11.) Counsel for RCRC responded that some of responsive emails had been automatically deleted from RCRC’s system before the production was made. He also responded that the “Smith” emails referred to in some of the Requests were no longer available because Smith deleted his emails manually prior to back up, and counsel asserted that Echevarria’s entire email store had been deleted after his employment ended. (Id., Exh. 13.)

On 8/07/18, Echevarria’s counsel emailed a letter in which he tendered several reasons that additional responsive emails should have been available despite RCRC’s counsel’s indications otherwise. Echevarria’s counsel asked for responsive documents by 8/10/18. (DeHerrera Decl., Exh. 14.) RCRC’s counsel indicated by email on 8/07/18 that he would review the points raised and would “get back to you.” ( Id., Exh. 15.) Echevarria’s counsel did not hear back from RCRC’s counsel and did not receive additional responsive emails. This motion followed on 8/22/18.

On 9/10/18–after Echevarria filed the motion–RCRC served amended responses to the discovery. (See Millstone Decl., Attach.) Despite original responses indicating that RCRC would produce responsive emails, RCRC now indicated it could not make a complete production because some of the responsive emails were purged. RCRC’s counsel explained that he was occupied with personal and professional commitments since the time the original responses were served. (See id., ¶¶ 2-3.)

The court continued the hearing and directed counsel to resume the meet-and-confer process. The court specifically directed counsel to discuss whether RCRC’s original responses were inaccurate and whether Echevarria is entitled to his fees and costs as a result. Given RCRC’s amended responses indicating that there are no additional emails for production, the court also asked counsel to discuss whether there was anything for the court to compel.

On 10/12/18, counsel filed their joint statement. They agree that the court cannot

compel RCRC to produce emails that no longer exist, and they agree that RCRC’s original responses to the discovery were inaccurate. They disagree whether RCRC should be forced to pay Echevarria’s fees and costs incurred to bring this motion.

Echevarria was required to bring this motion due to RCRC’s and its counsel’s lack of diligence. RCRC knew well before Echevarria filed this motion that some responsive emails had been purged, yet RCRC’s counsel failed to serve amended, accurate responses until after the motion was filed. Although RCRC’s counsel informed Echevarria’s counsel about the purge on 7/27/17, which was before Echevarria filed the motion, RCRC’s counsel’s last meet-and-confer communication indicated he would get back to Echevarria’s counsel about the availability of additional emails, but he did not. Moreover, to the extent personal or professional commitments prevented RCRC’s lead attorney from tending to this discovery, others at the firm should have filled in for him. Echevarria should not have been required to bring a motion to obtain accurate discovery responses.

Pursuant to CCP §§ 2023.010(h), 2023.030(a) and 2031.320(b), the court imposes a monetary sanction against RCRC and its counsel, Millstone Peterson & Watts, LLP, jointly and severally in the amount of $2,023.50 (7.1 hrs @ reasonable rate of 285/hr). This amount does not include time spent meeting and conferring after the motion was filed.

RCRC and its counsel shall pay the sanction no later than November 19, 2018. If they fail to pay the sanction by such date, then Echevarria may lodge for the court’s signature a formal order awarding sanctions, which may be enforced as a separate judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

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