Hrg1-17-19 Mtn To Compel

Motion

Cal. Super. - 6th Dist.February 14, 2018

© 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o BROWNE GEORGE ROSS LLP KC Maxwell (State Bar No. 214701) kmaxwell@ bgrfirm.com 101 California Street, Suite 1225 San Francisco, CA 94111-5870 T:415.391.7100 F: 415.391.7198 BROWNE GEORGE ROSS LLP Eric M. George (State Bar No. 166403) egeorge@ bgrfirm.com Jeffrey C. Berman (State Bar No. 308500) jberman@ bgrfirm.com 2121 Avenue of the Stars, Suite 2800 Los Angeles, CA 90067-5052 T: 310.274.7100 F: 310.275.5697 Attorneys for Defendant LUCIO LANZA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA RACHEL DANAE VACHATA, Case No. 18CV 323454 Plaintiff, NOTICE OF MOTION AND MOTIONTO COMPEL FURTHER RESPONSESTO VS. WRITTEN DISCOVERY; MEMORANDUM IN SUPPORT LUCIO LANZA, Defendant. Date: January 17, 2019 Time: 9:00 a.m. Dept: 9 Judge: Hon. Mary E. Arand Action Filed: February 14, 2018 Trial Date: None Set 1 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TOTHE COURT AND TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on January 17, 2019 at 9:00 a.m., or as soon thereafter as may be heard, in Department 9 of the Superior Court of the County of Santa Clara, 191 North First Street, San J ose, California, the Honorable M ary E. Arand presiding, Defendant Lucio Lanza will, and hereby does, move for an order compelling further responses to Defendant’s First Set of Form Interrogatories, and First and Second Sets of Requests for Production, and for monetary sanctions in the amount of his reasonable attorney fees and costs associated with this motion, payable by Plaintiff and her counsel, pursuant to Code of Civil Procedure sections 2023.010 et seq., 2030.290, 2030.300, 2031.010 et seq., 2031.310, 2031.320, and the inherent authority of this Court. This motion is made on the following good cause and grounds: 1. Plaintiff has failed, withoutjustification, to serve complete and straightforward responses to proper form interrogatories. 2. Plaintiff’s objections to Defendant’s discovery requests are without merit or substantial justification, and are too general. 3. Plaintiff's claims of privacy or privilege are without merit or substantial justification. This motion is further based on this notice of motion and motion,the attached memorandum of points and authorities, the declaration of KC Maxwell and attached exhibits, the (proposed) under seal declaration of KC Maxwell and attached exhibits, the separate statement of disputed issues, the records and files in this action, such further evidence and argument as may be presented prior to or at the time of hearing on this motion, and such further matters as this Court may consider. DATED: November 26, 2018 BROWNE GEORGE ROSS LLP KC Maxwell By: © as Jotul KC Maxwell Attorneys for Defendant LUCIO LANZA 1 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o TABLE OF CONTENTS l. INTRODUCTIONcoisasessere seer ener eran enna 4 I. RELEVANT PROCEDURAL HISTORY icicisreesneerne 7 HL. DISCUSSION oticeersteesterase seers eben eben eee nner ene neneas 7 A. Legal Standards........ccoiiiiiiie 7 1. DOCUMENT REQUESTS .....vviiiiiciiecicestes7 2. INEEITOQALOTIES «oveceiccereeeee ee e ee sr ees eesre ee s re eee reese sr ens 8 B. Plaintiff Has Failed to Produce Relevant Documents and Information .................... 8 1. Plaintiff Is Wrongfully Resisting Discovery Into Her Own ATIEGALIONS verseerer 8 2. Plaintiff's Termination From Dynamic Surgical Is Relevant ..................... 11 3. Information Facilitating Further Discovery Should Be Produced .............. 12 4. Communications with M edia Should Be Produced ..........c.ccoevveiiricninnnnns 13 5. Plaintiff’s Redactions Are Improper and Should Be Removed .................. 14 C. SaNCtioNS Are A PPIOPIIALE cove ies17 IV. CONCLUSIONcoorssternerbee sneer nas 18 2 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TABLE OF AUTHORITIES CASES Associated Brewer Distrib. Co. v. Superior Court (1967) 65 Cal.2d 583 8 Burris v. Versa Products, Inc. (D. Minn. Feb. 19, 2013) 2013 WL 608742 15 Coriell v. Superior Court (1974) 39 Cal.App.3d 487 8 EEOC v. Dolgencorp LLC (N.D. Ill. May 4, 2015) 2015 WL 2148394 14 Evonv. Law Offices of Sidney Mickell (E.D. Cal. Feb. 3, 2010) 2010 WL 455476 14 IDC Fin. Publ’g Inc. v. Bonddesk Grp LLC (E.D. Wis. Oct. 26, 2017) 2017 WL 4863202 14,15 In re Stryker Rejuventate & Abgii Hip Implant Prod. Liab. Litig. (D. Minn. June 20, 2014) 2014 WL 2808919 15 Kirkland v. Superior Court (2002) 95 Cal.A pp.4th 92 8 KrauzIndus Ltd. V. Romac Indus. Inc. (W.D. Wash. Aug. 10, 2011) 2011 WL 13100750 15 Live Nation Merchandise, Inc. v. Miller (N.D. Cal. May 9, 2014) 2014 WL 1877912 14,15 Mason v. Ryan (D. Ariz. April 20, 2018) 2018 WL 1899231 14 Shenwick v. Twitter, Inc. (N.D. Cal. Feb. 7, 2018) 2018 WL 833085 14 United States v. McGraw-Hill Companies, Inc. (C.D. Cal. Sept. 25, 2014) 2014 WL 8662657 15 Virco Mfg. Corp. v. Hertz Furniture Sys. (C.D. Cal. Jan. 21, 2014) 2014 WL 12591482 15 STATUTES Code of Civil Procedure § 2017.010 .......ccoiiiiiiiiieieieeeeeeeres 14 Code of Civil Procedure § 2023.010 .......ccouiiiiiiiieieieeeereeben 17 Code of Civil Procedure § 2030.220 .........cciiiiieiiieieeeeeeereeres 8 Code of Civil Procedure § 2030.290 .........couiiiiiiieineeeeeeeeeserenee 17 Code of Civil Procedure § 2030.300(d) ....cvoveerirriirieierieiiiie rieeens 17 Code of Civil Procedure § 2031.30 .......ccuiiiiiririiiereeceereseens 8 Code of Civil Procedure § 2031.310(N) ..ovieiiiiiiieieieeeeeeens 17 Code of Civil Procedure § 2031.320 .......cciiiiiriiieiereeseieresrenee 17 3 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o MEMORANDUM OF POINTSAND AUTHORITIES l. INTRODUCTION The law affords Lucio Lanza a full and fair opportunity to rebut and redeem himself from Plaintiff’s very serious and false accusations. Rather than properly serving Mr. Lanza with the Complaint or the First A mended Complaint (“FAC”) and while refusing for seven months to submit to a requested Independent Medical Exam (“IME”), Plaintiff has vigorously pursued her cause through the press-contacting no less than 42 press outlets regarding her allegations and offering hours of interviews. Plaintiff nevertheless has thrown up improper roadblocks to standard areas of inquiry and has asserted overly-broad privacy claims that would deprive Mr. Lanza of discovery regarding well-established legal defenses, including: e Whether Plaintiff made inconsistent statements about the alleged incident; e Whether Plaintiff had a reputation for untruthfulness, fabrication, or exaggeration in her prior communities or workplaces; e Whether people who came to know Plaintiff reasonably well have formed an opinion on her general trustworthiness; e Whether Plaintiff had a motive to fabricate; e Whether Plaintiff’s allegations are part of a modus operandi of telling falsehoods in order to advance professionally; e Whether Plaintiff has provided false testimony regarding the subject matter of this case that can be impeached; and e Whether there are other causes to Plaintiff’s alleged pain and suffering not causally related to the alleged assault. Plaintiff’s narrow views of her discovery obligations would prejudicially handicap Mr. Lanza’s defense. Ms. Vachata wishes to delve deeply into Mr. Lanza’s past while shielding even the most basic discovery about her own history, including into her pattern of inconsistent statements or admissions about the events at the heart of this litigation and her communications related to those events. Not to mention her reputation of untruthfulness, or particular patterns of untruthfulness in similar situations. To that end, Defendant seeks, and Plaintiff is attempting to 4 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o confound, discovery into five areas: 1. Plaintiff’s professional background and accomplishments. Plaintiff alleges in her First Amended Complaint that she is a “29 year-old co-founder of technology companies and is on the Forbes “30 Under 30 in Healthcare” list for 2018,” and that Mr. Lanza used her status as a start-up co-founderto prey on her. She now claims that these topics are too private to subject to the light of day. Defendant, on the other hand, believes that such inquiry may lead to the discovery of individuals able to offer testimony in the form of reputation or opinion regarding Plaintiff’s untruthfulness, as well as a history of fabricating claims for the purpose of professional and personal gain. 2. The circumstances under which Plaintiff ceased working for companies that she alleges to have co-founded. Plaintiff has repeatedly maintained, in discovery responses and to the world, that she was wrongfully terminated and pushed out of “her” companies because of her choice to bring public allegations against Mr. Lanza. Although she attempts to avoid production of any documents or information regarding her employment or her “termination” by claiming she is not requesting “lost wages” - this line on relevance is too narrowly drawn. Plaintiff has repeatedly identified that loss of work as a major cause of her medical expenses and alleged distress. Mr. Lanza is entitled to discovery regarding her employment and dismissal because those topics are relevant to her credibility and to her alleged damages. 3. Form interrogatories asking Plaintiff to identify her educational background, and her work background for the prior five years. These are standard J udicial Council-drafted discovery requests. They are straightforward examples of the spirit and letter of the California discovery rules that give a party the right to obtain and pursue evidentiary leads, so long as they are reasonably calculated to lead to the discovery of admissible evidence. In addition, Plaintiff propounded these same interrogatories, which Mr. Lanza answered. 4, Plaintiff’s communications with the media. Plaintiff has along history of publicizing false stories of struggles overcoming hardships, including abuse, in an effort to drive her on the road to success. Unsurprisingly here, Plaintiff and her counsel (often before bothering to serve Defendant with either the Complaint or First Amended Complaint) contacted no fewer 5 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o than 42 journalists or media outlets, and Plaintiff has sat for hours of interviews with multiple reporters. Those communications may contain admissions, inconsistent statements, or statements indicating a lack of reasonable inquiry before making the allegations of the Complaint. They are not privileged under any theory and should be produced. 5. R edacted portions of communications and medical records. Plaintiff has unilaterally redacted parts of responsive documents; most of this information was redacted on the spurious claim that irrelevance creates a privacy interest. Plaintiff has redacted the names of potential witnesses, discussions of her employment situation and regarding her co-founder, as well as information about the past abuse causing PTSD that was purportedly triggered by Defendant’s alleged assault. This allegation is central to the subject matter of this case. The overwhelming weight of authority is against unilateral redactions because a party cannot judge for itself what part of a responsive document it would, or would not,like to share. At this stage, the law does not require D efendant to demonstrate a perfectfit between the sought-after discovery and his potential defenses-and without being allowed to conduct that discovery, Defendant will never have the chance to make a case for admission of such matters at trial. Requiring anything more than a reasonable and good faith basis for the sought-after discovery would be unacceptably prejudicial and erroneous. What makes Plaintiff’s positions all the more unreasonableis that for nearly every one of the matters at issue-her background, her role at companies she “co-founded,” her termination from those companies, herhistory of alleged abuse, her medical conditions-Plaintiff has already expounded on them repeatedly and at length, without objection from her attorney, in public as well as under oath. But when Defendant attempts to conduct an independent inquiry into those matters, he is met with unmeritorious claims of privacy. Those are more suggestive of a stratagem to unilaterally control the narratives about the subject matter of this case, than they are of a good faith assertion of legitimate privacy interests. That is especially so where, as here, the parties are bound by a confidentiality stipulation and a (pending) Protective Order. A's attested to in Paragraph 2 of the proposed Under Seal Declaration of KC Maxwell (“Under Seal Declaration”), the undersigned represents and warrants, as an officer of this Court, 6 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o that there is ample reason to believe that this lawful discovery would lead to the discovery of information germane to the subject matter of this suit, even if not supportive of Plaintiff’s version of events. Il. RELEVANT PROCEDURAL HISTORY This is Defendant’s second motion to compel compliance with his first set of requests for production and form interrogatories. Only after filing his first motion-and months after they were due and promised-did Plaintiff provide documents, supplemental responses, and a privilege log, some of which were filed on the same afternoon as Plaintiff’s opposition. This Court denied that motion as moot based on the late-filed supplemental responses. This motion addresses a number of the same issues, in addition to seeking to compel compliance with some of Defendant’s second set of requests for documents. There are no pending supplements to Defendant’s discovery requests. The parties have met and conferred at length and their positions are settled. Il. DISCUSSION A. L egal Standards “The discovery laws in California are designed to expedite the trial of civil matters by [] enabling counsel to more quickly and thoroughly obtain evidence and evidentiary leads, and thus to more quickly and effectively prepare for trial”. Burke v. Superior Court (1969) 71 Cal.2d 276, 280-81 (emphases added). The test is not that the sought-after informationis relevant: “Discovery has traditionally been liberally granted by the courts, and the Discovery Act, by its very terms, authorizes inquiry into even irrelevant matters so long as their revelation may lead to the discovery of admissible evidence.” Dodge, Warren & Peters Ins. Serv. Inc. v. Riley (2003) 105 Cal.A pp.4th 1414, 1420. “The ‘subject matter of the action’ is the circumstances and facts out of which the cause of action arises ... it is not the act or acts which constitute the cause of action.” Darbee v. Superior Court (1962) 208 Cal.App.2d 680, 688 (“Any ofthe physical facts or circumstances touching this agreement would be proper matters for inquiry in the quest for facts which may lead to admissible evidence.”). 1. Document Requests Defendant moves for an order compelling further production of documents and things on / NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o the grounds that Plaintiff’s statement of compliance is incomplete, and that her objections to the responses are without merit and are too general. CCP § 2031.310. Relevance and materiality constitute good cause for production of documents. Associated Brewer Distrib. Co. v. Superior Court (1967) 65 Cal.2d 583, 588. Once that good cause has been established, the burden shifts to the responding party to justify its objections and reasons for non- production. Kirkland v. Superior Court (2002) 95 Cal.A pp.4th 92, 98. 2. Interrogatories Plaintiff has not responded to the interrogatories in a manner “as complete and straightforward as the information reasonably available to the responding party permits,” nor has Plaintiff made a reasonable and good faith effort to obtain such information. CCP § 2030.220. The party served with interrogatories bears the burden of persuasion in establishing good cause why they should not be answered. Coriell v. Superior Court (1974) 39 Cal.App.3d 487, 489. B. Plaintiff Has Failed to Produce Relevant Documents and Information 1. Plaintiff Is Wrongfully Resisting Discovery Into Her Own Allegations Plaintiff has alleged in her Complaint and averred elsewhere that she is the co-founder of two related healthcare technology startups, Dynamic Surgical, Inc. and M allium LLC. Plaintiff also alleged in her Complaint that she is on the Forbes “30 Under 30”list. Plaintiff has been blocking attempts to conduct discovery into the veracity of those claims. Those efforts are improper and unreasonable because Plaintiff herself has put those matters in issue and because they are relevant to investigating Plaintiff’s tendencies toward untruthfulness. Paragraph 1 of Plaintiff’s First Amended Complaint (“Complaint”) dated M arch 8, 2018 reads: Lucio Lanza sexually assaulted Danae V achata on red-eye commercial flight from San Francisco. Lanzais a 73 year-prominent Silicon Venture Capitalist; Ms. V achata is a 29 year-old co-founder of technology companies and is on the Forbes “30 Under 30 in Healthcare”list for 2018. When Lanza learned that Ms. Vachata was a co-founder of a technology start-up company, he preyed on her by threatening that he could use his position as a powerful venture capitalist to make or break her company. 8 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o W hen drafting this Complaint, Plaintiff apparently thought that these allegations-being a co- founder of a technology startup and being named on a F orbes list of up-and-coming professionals-were so important that they needed to be highlighted right out of the gate. And those allegations are important because Plaintiff's theory of the case is clearly and succinctly presented by those opening lines: Defendant is an old man who preyed on a young and successful up-and-comer with no reason to fabricate such allegations. Now, however, after putting those allegations front and center while initiating this suit, Plaintiff takes the position that those matters are utterly irrelevant. On that newly narrowed view of relevance, Plaintiffis resisting discovery into herrole as the “cofounder of a technology company,” and also resisting discovery into how she came to be on the F orbes “30 Under 30”in Healthcare list for 2018. That position is not reasonable, for several reasons. First, Plaintiff chose to plead those allegations, and Defendant is entitled to test their veracity via the discovery process. That Plaintiff is resisting discovery into her own allegations is tremendously telling and raises the inference that the real concern is not privacy but what discovery into such matters will uncover. Second, Plaintiff’s role with Dynamic Surgical is directly relevant to the subject matter of this action. According to Plaintiff, she was traveling on the flight in question in her role as an employee of Dynamic Surgical. (Maxwell Dec. 12). Earlier that night, she attended a networking event where alcohol was served with her alleged co-founder of that startup, with whom she communicated immediately before and immediately after the flight in question. (ibid.).! Plaintiff’s Complaint alleges that it was Mr. Lanza’s threats to “make or break her company” that allowed him to perpetrate the assault in question. (Complaint, 11). If Dynamic Surgical was not “her company” as she alleges, then his purported threats lose some of their force, and so does the credibility of her allegations about them. 1 The amountof alcohol was either significant or zero, depending on the version of events. See the Under Seal Declaration of KC Maxwell, 10. Defendant has attempted to conduct discovery into that networking event but Plaintiff contended that she had no memory of identifying information and, unable to access her work email, could not provide further information. (ibid.). 9 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Third, Defendant has a good faith and reasonable basis to believe that Plaintiff has a history of making false or exaggerated claims of personal hardships and/or accomplishments for professional or personal gain, including this lawsuit. Defendant is attempting to conduct discovery into whether those prior instances of dishonesty share sufficient similarities with her allegations here such that they may qualify for admission as instances of a common plan, design, or scheme. Defendant is attempting to explore the merits of this defense, and the civil discovery standards fully authorize him to do so. Without discovery into those matters, Defendant and this Court will never have sufficient information to make that determination. Fourth-as Plaintiff herself strongly implies in her Complaint-the truth of those allegations as to Plaintiff’s professional background go directly to the existence or nonexistence of a motive to fabricate. If Plaintiff is as successful as she says she is, then attacks on her motive could lose some of their power. On the other hand, if Plaintiff is not who she says she is, or not as successful as she is making herself out to be, then that would bolster Defendant’s defense of motive to fabricate. Either way, those matters are germane to the outcome of this litigation. Fifth, any claim of privacy over employment history is unmeritorious and has been waived in any event. Defendant is not seeking Plaintiff’s personnel files or any compensation details; he is seeking information about her work and educational history of the character that Plaintiff has herself publicized, in numerous publicly available profiles. (Maxwell Dec. 110). Plaintiff cannot reasonably claim that discovery into such matters unreasonably infringes her privacy. Accordingly, an Order should issue compelling Plaintiff to produce all documents responsive to the following requests as worded or subsequently limited during meet and confer communications: e Requests for Production 23 and 24 (documents relating to the formation of Dynamic Surgical and M allium), as narrowed to: Documents sufficient to show Plaintiff’s role in the formation of Dynamic Surgical, Inc. or Mallium LLC. (Maxwell Dec. 98). e Request for Production 26-28 (employment agreements; negotiations as to role; business cards) as narrowed to: Documents sufficient to show Plaintiff’s role(s) at 10 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Dynamic Surgical or M allium. (Maxwell Dec. 1 8). e Request for Production 39 (“All communications and documents exchanged with the publication F orbes™). A word on the Complaint’s emphasis on Plaintiff being named in F orbes “30 Under 30” list: Plaintiff, through counsel, has contended that her place there is a matter of fact, and how this came to beis irrelevant. (Maxwell Dec. 19). Notso. If Plaintiff made her way onto that list by way of misrepresentations, then touting that accomplishment in her Complaint would constitute a misrepresentation by omission or a statement so misleading that it is tantamount to a falsehood. Additionally, how she obtained that honor could be relevant to Defendant’s: if Plaintiff was selected in part because she falsely presented herself as a survivor of trauma (especially violence or sexual violence), then that would be corroborative of a motive to fabricate here and/or be indicative of a common scheme. Of course, Defendant and this Court will never know whether such facts exist if Plaintiff’s stonewalling is indulged. 2. Plaintiff’s Termination From Dynamic Surgical Is Relevant Plaintiff has asserted-in conversations with acquaintances, in communications with mental health professionals treating her for pain and suffering allegedly caused by Defendant,in her deposition, and in her discovery responses-that she was wrongfully terminated from her position at Dynamic Surgical as a direct result of her decision to come forward publicly with her claims against Mr. Lanza. (Maxwell Dec. 111). Y et, despite having raised that contention repeatedly, Plaintiff is also resisting discovery to confirm or disprove the truth of it. Her stonewalling is improper and unreasonable. As a major cause of her alleged psychological distress, Plaintiff has identified a purported “backlash.” (Under Seal Dec 14). By far the most significant part of that backlash took the form of her termination from Dynamic Surgical, allegedly because of her choice to bring this suit. (ibid.) Thus, in her own telling, her purported wrongful termination is directly related to the subject matter of this lawsuit. Defendant has reason to believe that Plaintiff’s termination and unemployment-w hich Plaintiff herself identified as major causes of her pain and suffering-were for reasons completely 11 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o unrelated to the alleged assault. (See Under Seal Dec. 92). Thatis relevant to causation and damages because it presents another, unrelated cause of her pain and suffering. Despite that Plantiff is not seeking damages for lost wages, inquiry into the circumstances surrounding Plaintiff’s termination from Dynamic Surgical is directly relevant to Defendant’s defense to liability. Defendant has reason to believe that the sunny picture of professional success painted in Plaintiff's Complaint is not accurate and that, rather, her job at Dynamic Surgical was on the rocks. (See Under Seal Dec. 42). If true, then those facts would speak directly to motive to fabricate the claims being advanced today. Accordingly, an Order should issue compelling compliance with Request for Production Number 29 (“All Documents and Communications Relating To the cessation of Your employment with Dynamic Surgical or Mallium LLC.”). 3. Information Facilitating Further Discovery Should Be Produced Plaintiff has objected on the grounds of privacy, overbreadth, and irrelevance to the following form interrogatories and has failed to provide any responsive information: FROG 2.5: Residence address and addresses for the past five years; FROG 2.6: Present employer and prior employers for prior five years; FROG 2.7: Schools, dates of attendance, and degrees received beginning with high school. As Defendant has explained to Plaintiff, such information would facilitate Defendant’s investigation of Plaintiff and her background. Specifically, Defendant is attempting to conduct an investigation into Plaintiff’s character by attempting to locate individuals in her communities, workplaces, and post-secondary schools who have a reasonably formed opinion of her general characterfor truthfulness. The information sought in Form Interrogatories 2.5, 2.6, and 2.7 are “evidentiary leads.” To indulge Plaintiff's obstruction would improperly cut off further inquiry into well-established defenses. 2 Furthermore, Plaintiff has promised to identify the schools attended by Plaintiff as well as her dates of attendance, but has not (FROG 2.7). 12 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 4. Communications with Media Should Be Produced Defendantfiled her Complaint on February 14, 2018. Her attorney sent out a press release on the same date. Nevertheless, Mr. Lanza had to learn about this Complaint from the newspaper articles because he was not served. Several journalists contacted undersigned counsel, explaining that they had spent hours on the phone with Plaintiff (and other women to whom they were directed by Plaintiff or her counsel) regarding Plaintiffs’ allegations. On March 8, 2018, Mr. Lanza learned about the First Amended Complaint from a reporter at The Verge. He was not served until after undersigned counsel mentioned to the media that he had not seen the FAC. Mr. Lanza first received a copy of the FAC from a reporter. Defendant has requested copies of communications between the media and Plaintiff or her attorneys. (RFPs 13-14). As Defendant has explained in meet and confer correspondence, such documents and information are relevant and nonprivileged. They may contain statements recounting Plaintiff’s allegations against Defendant. Such exchanges are relevant to determining Plaintiff’s version of events and timeline, may contain party admissions or inconsistent statements, and are a source of potential impeachment material. That information is relevant whether Plaintiff communicated directly to the press, or whether she did so indirectly through her counsel relaying Plaintiff’s allegations (in non-privileged conversations). And what Plaintiff’s counselis telling the press, and when,is independently relevant to the question of whether counsel conducted reasonable inquiry for evidentiary support of the allegations made in the pleadings. Further, such communications are relevant to a possible defense that painting others as predators and extolling herself as a successful survivor is very familiar territory for Plaintiff. (Under Seal Dec. § 2). Once again, Plaintiff's view of discoverability and novel assertions of privilege, if indulged, would prejudicially foreclose potential defenses before discovery could be had. Accordingly Defendant moves for an order compelling compliance with the following Requests for Production: 13 (“All Communications with any individual employed by oraffiliated with any media publication or organization, whether print or online, by You or Your counsel.”) and 14 (“All Documents that You or Your attorney(s) gave to or received rom any individual employed by or affiliated with any media publication or organization, whether print or online.”). 13 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 5. Plaintiff’s Redactions Are Improper and Should Be Removed a. Unilateral Redactions Are Unusual and Disfavored Unilateral redactions of purportedly irrelevant materials are generally disfavored.? “In general, courts frown upon the practice of redacting irrelevant information from documents based on one party’s unilateral assessment of relevance.” Shenwick v. Twitter, Inc. (N.D. Cal. Feb. 7, 2018) 2018 WL 833085, *3; see also Live Nation Merchandise, Inc. v. Miller (N.D. Cal. May 9, 2014) 2014 WL 1877912, *3 (“redactions of otherwise discoverable documents here are unwarranted .... As courts have recognized, this type of unilateral redaction is disfavored”). Redaction is essentially the alteration of responsive documents that deprives Defendant of potentially relevant information, as well as context for the non-redacted information. “Redaction is, after all, an alteration of potential evidence [and] [e]ven the redaction of irrelevant information deprives the opposing party of context for the relevant information.” Mason v. Ryan (D. Ariz. April 20,2018) 2018 WL 1899231, *4-5 (quoting Evon v. Law Offices of Sidney Mickell (E.D. Cal. Feb. 3, 2010) 2010 WL 455476, *2). Absent compelling reason, “a party should not take it upon him, her, or itself to decide unilaterally what context is necessary for the non-redacted part disclosed, and what might be useless to the case.” Ibid. Reasonable minds may differ on the relevance of redacted information, and even seemingly irrelevant information is useful in providing context for the non-redacted information: “What constitutes relevant information is often a matter of judgment, and even irrelevant information within a document that contains relevant information may be highly useful to providing context for the relevant information.” IDC Fin. Publ’g Inc. v. Bonddesk Grp LLC (E.D. Wis. Oct. 26, 2017) 2017 WL 4863202 at *3 (quoting EEOC v. Dolgencorp LLC (N.D. Ill. May 4, 2015) 2015 WL 2148394). A's courts have recognized, the existence of a protective order adequately protects a producing party’s interest in protecting confidential information, and a party should not be allowed to supplant a protective order with unilateral redactions. See, e.g., United States v. 3 Federal authorities regarding this topic are appropriate to consider because they apply Federal Rule of Civil Procedure Rule 26, which makes discoverable any “nonprivileged matter that is relevant to any party’s claim or defense,” similar to Civil Procedure section 2017.010. 14 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o McGraw-Hill Companies, Inc. (C.D. Cal. Sept. 25, 2014) 2014 WL 8662657, *3 (“if materials are already shielded by a protective order, unilateral redactions do little more than breed suspicions between the parties, generate discovery disputes, and invite unnecessary intervention by the court.”); Krauz Indus Ltd. V. Romac Indus. Inc. (W.D. Wash. Aug. 10, 2011) 2011 WL 13100750, *3 (“The Court is persuaded by cases that hold that unilateral redactions on the basis of irrelevance or non-responsiveness is improper, especially when a protective order is in place to govern production of confidential information between the parties.”); Live Nation Merchandise, Inc. v. Miller (N.D. Cal. May 9, 2014) 2014 WL 1877912, *3; In re Stryker Rejuventate & Abgii Hip Implant Prod. Liab. Litig. (D. Minn. June 20, 2014) 2014 WL 2808919 *3; IDC Fin. Publ’g Inc. v. Bonddesk Grp LLC (E.D. Wis. Oct. 26, 2017) 2017 WL 4863202, *3. In the parties’ confidentiality stipulation there is no provision for Plaintiff making unilateral redactions. (Maxwell Dec. 17). Redaction is particularly inappropriate where a documentis otherwise responsive. Plaintiff cannot unilaterally determine what portions of discoverable documents should be produced or withheld: [plarties making such redactions unilaterally decide that information within a discoverable document need not be disclosed to their opponents, thereby depriving their opponents of the opportunity to see information in its full context and fueling mistrust about the redactions’ propriety. And if the Court were to allow such a practice it would improperly incentivize parties to hide as much as they dare. That Is a result at odds with the liberal discovery policies, the adversary process, and the Court's obligation to read the Rules ‘to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1. None of this is intended to imply that [redacting party] or its counsel attempted to hide the ball here. But because these types of redactions find no support in the Rules and are fraught with the potential for abuse, the Court will not permit them unless the circumstances provide an exceedingly good justification to do so. IDC Fin. Publ’g Inc. v. Bonddesk Grp LLC (E.D. Wis. Oct. 26, 2017) 2017 WL 4863202, *2 (quoting Burris v. Versa Products, Inc. (D. Minn. Feb. 19, 2013) 2013 WL 608742, *3); see also Virco Mfg. Corp. v. Hertz Furniture Sys. (C.D. Cal. Jan. 21, 2014) 2014 WL 12591482, *5 (“plaintiff has effectively redacted, based upon relevance, portions of documents it otherwise apparently views to be discoverable/relevant/responsive to defendants’ discovery requests. This Court agrees with those courts which have disapproved of such a practice especially where, as 15 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o here, a multitude of documents are in issue and a protective order is in place to address concerns regarding privacy and potential misuse of information.”). b. Redactions Within Responsive Documents Should Be Removed The majority of documents produced consist of text message conversations, all of which have been labeled either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to the parties’ confidentiality stipulation. Despite that confidentiality designation limiting the dissemination of such information, Plaintiff has unilaterally redacted significant portions of otherwise responsive documents. Some of those redactions have removed entire sections of text messages, presumably because those exchanges contained no responsive information or communications. If Defendant receives sufficient assurances that those sections are indeed completely unrelated to the known issues in this case, then he is not seeking that those redactions be removed. Defendant is asking, however,that the following be removed: (1) redactions of particular sentences, words, or phrases within a single, responsive text message; and (2) redactions of particular messages within a responsive conversation. A copy of alog noting all redactions and the reasons for those redactions is attached as Exhibit C to the Declaration of KC Maxwell in support of this motion. That log reflects that most of the redactions are improper and unsupported by any recognized claim of privacy. e Communications “re employment situation”: for the reasons discussed above, these matters are discoverable. e Communications “re irrelevant matters”: irrelevance is not a privacy interest. The redactions are occurring within a responsive exchange, or at times within responsive texts. The “irrelevant matters” provide context for the responsive documents and could point to further avenues of discovery. There is no valid basis for these redactions. e “Namels] of third party individual[s] with no connection to the instant action”: these are the names of potential witnesses who might have observed Plaintiffs pain and suffering, or lack thereof; who may have heard inconsistent statements or admissions; or who may have an opinion on Plaintiff’s reputation for truthfulness. 16 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Defendant is aware of “third party inidivudal[s] with no connection to the instant action” to whom Plaintiff has either made admissions or inconsistent statements directly relevant to this case. (Under Seal Dec. 12). e Communications “re highly personal family matters”: Defendant is unable to meaningfully discuss what constitutes “highly personal” family matters based on Plaintiff’s log. But regardless what they are about, they are likely relevant given the location and context. (Under Seal Dec. 196-7). That log also notes redactions in Plaintiff’s medical records which are similarly inappropriate: e Family information: for the reasons discussed above and in the Under Seal Declaration of David W akukawa, Plaintiff’s relationships with her family are relevant to the subject matterof this litigation. e Relationships with third parties: these are the identities of potential witnesses. e Information regarding past sexual abuse: Plaintiff alleges that Defendant’s purported assault triggered underlying PTSD caused by past sexual abuse. She clearly cannot withhold information about sexual abuse, and her attempt to unilaterally redact information about this topic is astounding. W ith the exception of details relating to the lives of third parties, the redactions should be ordered removed. C. Sanctions Are Appropriate Sanctions are appropriate here because Plaintiff has failed to submit to authorized discovery, stood on unmeritorious objections to discovery without substantial justification, and made incomplete and evasive responses to discovery. CCP § 2023.010, 2030.290, 2030.300(d), 2031.310(h), and 2031.320. Defendant has been trying to get information necessary for his defense since M arch 2018. To this day he has not received the responsive information to which he is entitled. W hat has come has been months late and only in response to Defendant’s prior motion to compel. W hat remains are stubborn refusals to move from spurious and suspicion-fueling claims of privacy that are 17 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o blocking reasonable inquiries into black letter legal defenses. IV. CONCLUSION For the foregoing reasons, Defendant asks that Plaintiff’s objectionsto the discovery requests discussed in this motion, memorandum, the declaration of KC Maxwell, the Under Seal declaration of KC Maxwell, and separate statement of disputed items be overruled, that Plaintiff produce all non-privileged information and documents responsive to such requests without redactions, and that Plaintiff and her counsel be ordered to reimburse Defendant’s fees and costs incurred in bringing this motion, in an amount of $15,000. DATED: November 26, 2018 BROWNE GEORGE ROSS LLP KC Maxwell By:- AJyneel4 7 KC Maxwell 7 Attorneys for Defendant LUCIO LANZA 18 NOTICE & MTN; MPAsIN SUPPORT OF MOTION TO COMPEL