Ntc of Mtn And Mtn To Compel Further Responses 100218 900am Dept 9MotionCal. Super. - 6th Dist.February 14, 2018~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/19/2018 6:36 PM Reviewed By: V. Taylor Case #18CV323454 Envelope: 1744088 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA RACHEL DANAE VACHATA, Plaintiff, Vs. LUCIO LANZA, Defendant. Case No. 18CV323454 NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO WRITTEN DISCOVERY; MEMORANDUM IN SUPPORT Date: October 2, 2018 Time: 9:00 a.m. Dept: 9 Judge: Hon. Mary E. Arand Action Filed: February 14, 2018 Trial Date: None Set -1- NOTICE OF MOTION AND MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT AND TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on October 2, 2018 at 9:00 a.m., in Department 9 of the Superior Court of the County of Santa Clara, 191 North First Street, San Jose, California, the Honorable Mary E. Arand presiding, Defendant Lucio Lanza will, and hereby does, move for an order compelling further responses to Defendant’s First Set of Requests for Production of Documents, First Set of Special Interrogatories, and First Set of Form Interrogatories, 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, without justification, to comply with her written representations that Plaintiff would produce information and documents, and continues to fail to produce said documents and things. 2. Plaintiff has failed, without justification, to serve complete and straightforward responses to proper form and special interrogatories. 3. Plaintiff’s objections to Defendant’s discovery requests are without merit or substantial justification, and are too general. 4. Plaintiff’s statements of compliance are incomplete. 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 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. -1- NOTICE OF MOTION AND MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: July 18, 2018 BROWNE GEORGE ROSS LLP KC Maxwell By: =F Jtuucel KC Maxwell Attorneys for Defendant LUCIO LANZA g NOTICE OF MOTION AND MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS INTRODUCTION... cece eect estes sete este sree sabe ee eens sree eens eaeesnees 1 RELEVANT PROCEDURAL HISTORY .....coiiiiiiiiiie cece cece see eee se 1 DISCUSSION Lc. eee sate sabes sees sate settee esses sate sane eneenneens 2 A. Legal Standards ..........cooeerieenieeie cece eee eee eee eee eae eee 2 1. DIGEITTTETTE TE CITES cman cress sms SE SES RSA RS 2 2. Form and Special INterrogatories ...........ccceerrueerieeieeneenieenie r c nee see e ns 2 B. Plaintiff Has Failed to Produce Relevant Documents and Information.................... 2 3. Communications With Media ..........cccocverviiniiiiiniiniencceceeeee ee 2 4. Communications. with Law Enforcement. . que ssswmussssssassusssssmmssssammnas 4 5. Basic Background Information Should Be Produced ..........ccccccovienienncenee. 4 6. Plaintiff’s Answer Regarding Acting As An Agent Is Evasive .................... 3 7. No Reasonable Inquiry Into Insurance Coverage .........ccceceevvenneeneeeneennee. 6 8. Plaintiff Must Supplement Her Response Concerning Health Care PE OVI cc aw non esas awmes a asin as 49 450558 0045.54.54 5 S55 38 RE SHEA 5. ASEH 8 20% 6 0. Plaintiff Must Produce Information and Documents Promised .................... 6 10. Plaintiff’s Redactions Are Improper and Should Be Removed .................... 7 11. Miscellaneous ISSUES .......cocueirieeiiiiriiieniie cec eee ee es 10 C. SANCTIONS ATE APPTOPTIAUE «xu cuss soswsnsss susan so cease asm ss is 2455545 S48505 545 5555558 545545 48 FREER 11 CONCLUSION Lc. sees estes ee saber ee sree saben enna e seas eane 12 -i- TABLE OF CONTENTS ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES PAGE(S) Associated Brewer Distrib. Co. v. Superior Court (1967) 65 Cal.2d 583 ......ccccoovieeeeviieieeiieeees 2 Burris v. Versa Products, Inc. (D. Minn. Feb. 19, 2013) 2013 WL 608742.......cccceeeeveeiiineneeeneennn. 10 Coriell v. Superior Court (1974) 39 Cal. APP.3d 487 ....neeieeeee eects eee 2 EEOC v. Dolgencorp LLC (N.D. 111. May 4, 2015) 2015 WL 2148394 ......ccoooiiiiiiieiiienieeenieeee 9 Evon v. Law Offices of Sidney Mickell (E.D. Cal. Feb. 3, 2010) 2010 WL 455476 ......cccccccevueenn.e. 8 IDC Fin. Publ’g Inc. v. Bonddesk Grp LLC (E.D. Wis. Oct. 26, 2017) 2017 WL 4863202 ...... 9,10 In re Stryker Rejuventate & Abgii Hip Implant Prod. Liab. Litig. (D. Minn. June 20, 2014) 2014 WL 2808919... eee steerer sae etcetera sheet ese eae eae eae 9 Kirkland v. Superior Court (2002) 95 Cal. App.4th 02 ...cceiiiiiiiie ee 2 Krauz Indus Ltd. V. Romac Indus. Inc. (W.D. Wash. Aug. 10, 2011) 2011 WL 13100750............. 9 Live Nation Merchandise, Inc. v. Miller (N.D. Cal. May 9, 2014) 2014 WL 1877912................ 8,9 Mason v. Ryan (D. Ariz. April 20, 2018) 2018 WL 1899231 .....cccciiiiiiieeieeieeiene cease 8 Shenwick v. Twitter, Inc. (N.D. Cal. Feb. 7, 2018) 2018 WL 833085 .....cccouvvivieeieieeiirieeeeeee , 8 United States v. McGraw-Hill Companies, Inc. (C.D. Cal. Sept. 25, 2014) 2014 WL BOO2057 eee eee eee heehee eee she sheen h estate abe hte sheet eee eaten eates 9 Virco Mfg. Corp. v. Hertz Furniture Sys. (C.D. Cal. Jan. 21, 2014) 2014 WL 12591482 ............. 10 STATUTES Code of Civil Procedure § 2017.010 ...coouuuuiiieiiieiiiieeee eee eee e ee tevt te s ee esas test assses sees sesenanns 2,8 Code of Civil Procedure § 2023.01 0 ........uuuueueeieiiiiieiiiiiiininiieeeeeseseseseseseseeesesesrseseaeaesea-.-.---.-.--------- 11 Code of Civil Procedure § 2030.220 .......uuiieiiiiiiiieeeeee eee e eet eees esse essere es es es seaann neees 2 Code of Civil Procedure § 2030.290 ........uuiiiiiiiiiiiiieee eects eset eevee esse ee eesessaes se s e sessananes 11 Code of Civil Procedure § 2030.300(d) ....uvvrrieeieieeiiiiiiieieee ee e ei ireee e e e eeetrrre ee ee sees serarrere ase ee ennnns 11 Code of Civil Procedure § 203 1.310 ....uuuuueeieiiiieieiiiiiiiiieiieeeaeeeaeaeseaesesesssesesesrseseaeaeaearaeaeaeaeaea.a.---.----. 2 Code of Civil Procedure § 2031.310(1) ..cuvviieiiiiiieee citric estes eevee eevee essere ee eaaae eee aae aes 11 Code of Civil Procedure § 203 1.320 .....uuuuueeeieiiiiiiiieieeiiieeeeeseaeaesesesrsssesesrsssesesrseseaeaeaeaea.a.---.-.--------. 11 RULES Federal Rule of Civil Procedure RULE 26 qm swoon. asmsmss sssms sms 555598 555555545 5555555 5555555 08 5455555 5555 55.59 565 8 -ii- TABLE OF AUTHORITIES ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION As a result of Plaintiff’s public relations campaign, Defendant Lanza has already been tried and convicted in the court of public opinion. Now, having already succeeded in irrevocably damaging Defendant and his reputation, Plaintiff has been frustrating Defendant’s efforts to defend himself in this litigation. Plaintiff’s late and nonresponsive answers to Defendant’s discovery requests and meet and confer efforts stand in stark contrast to Plaintiff's swiftness to litigate this matter in the press. That evasiveness should be deterred, and Defendant compensated for his costs and fees in being forced to bring this motion. II. RELEVANT PROCEDURAL HISTORY Defendant served his first sets of Requests for Production (“RFPs”), special interrogatories (“SROGSs”), and form interrogatories (“FROGs”) via overnight mail on March 9, 2018. (Maxwell Dec. 2 & Ex. A). That discovery, to which responses were due on April 12, 2018, was intentionally timed so that Defendant would have Plaintiff's responses available well in advance of her deposition. (Id. at 4). Plaintiff asked for an extension to respond to that written discovery and to reschedule Plaintiffs deposition, to which Defendant agreed. (Maxwell Dec. {[5). When asking for that extension, Plaintiff promised to produce substantive responses and documents well in advance of Plaintiff’s deposition. (ibid.). In subsequent meet and confer efforts, Defendant asked eight times for the responsive documents as promised, on May 6, 11, 14, 17, 18, 31, June 1, and June 11. (Maxwell Dec. |] 7-12). To date Plaintiff has still not produced all responsive documents, including many documents that Plaintiff has agreed to produce. Most of the issues raised by this motion have been the subject of meet-and-confer correspondence that has stalled; Defendant has not received any substantive response to his meet and confer attempt of May 31, 2018 discussing Plaintiff’s objections and requesting that ! Plaintiff’s responses setting forth the text of Defendant’s discovery requests and Plaintiff's responses are attached as Exhibit A to the Declaration of KC Maxwell. All references to the written discovery or responses thereto are to that exhibit. -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 responsive documents and information be produced. (Maxwell Dec. {12 & Ex. F). On two occasions since, Defendant has requested a response to that May 31, 2018 meet and confer but has not received any. (ibid.). III. DISCUSSION A. Legal Standards Defendant is entitled to discovery regarding any matter that is relevant to the subject matter, including to his defenses, if the matter is itself admissible or reasonably calculated to lead to the discovery of admissible evidence. Civil Procedure § 2017.010. 1. Document Requests Defendant moves for an order compelling further production of documents and things on 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. Further, for many of Plaintiff’s responses, she has stated that she would comply with such requests but has not, and an order compelling compliance should issue. CCP § 2031.320. 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. App.4th 92, 98. 2. Form and Special 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 3. Communications with Media Defendant has requested the names, contact information of employees and affiliates of media organizations (i.e., journalists), and the dates and substance of communications with them. 22- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (SROGs 1-4). Defendant further requested copies of communications between the media and Plaintiff or her attorneys. (RFP 13-14). Plaintiff has objected to those interrogatories and document requests on the basis of privilege, vagueness, and overbreadth. (Response to SROGs 1- 4; RFPs 13-14). In later correspondence, Plaintiff agreed to supplement her interrogatory responses with information regarding communications between Plaintiff and the press, but took the position that correspondence between her counsel and journalists are wholly irrelevant. (Maxwell Dec. Ex. F). Plaintiff has not supplemented or amended any of her responses or produced any responsive communications. As Defendant has explained in meet and confer correspondence, such documents and information are relevant and nonprivileged. (Maxwell Dec. Ex. F). They are likely to contain relevant statements recounting Plaintiff’s allegations against Defendant. Such exchanges are relevant to determining Plaintiff’s version of events and timeline, may contain party admissions, and are a source of 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 counsel is 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, the timing and frequency of such communications are relevant to Defendant’s contention that Plaintiff has been more interested in trying this case in the court of public opinion rather than adjudicating the facts here.? I" 2 Plaintiff, for example, distributed a press release on February 14, 2018, concurrent with filing her Complaint and hired a PR Agency to assist in her efforts to spread the word. She never attempted to serve Mr. Lanza before she filed a First Amended Complaint on March 8, 2018, alleging that anonymous women had made similar complaints. Mr. Lanza learned of the FAC from the press. Not until counsel pointed out the lack of service did Ms. Vachata’s counsel reach out. Again, immediately after the first day of her deposition, Ms. Vachata reached out to the San Jose Mercury News as well as other women to advocate for yet another news story. And multiple press outlets informed Ms. Maxwell that Ms. Vachata had given several hours of interviews. (Maxwell Dec. q 17). 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Communications with Law Enforcement Defendant has requested the dates and substance of communications with law enforcement personnel, as well as communications with law enforcement. (SROGs 7-8; RFPs 15-16). Plaintiff has stated that, generally and since July 30, 2017, she had “repeated contacts” with them from once to several times per week “regarding the sexual assault and battery perpetrated by Defendant.” (Responses to SROG 7 & 8). Plaintiff also stated that she had communications with an unnamed “victim specialist” “regarding the DOJ/AUSA’s investigation.” (Response to SROG 8). Plaintiff has further promised to produce non-privileged communications with law enforcement. (Response to RFPs 15-16).> Beyond those generalities and promises, Plaintiff has provided no further information. For the same reason that communications with the press are discoverable, so are communications with law enforcement. However, Plaintiff has denied Defendant access to such discoverable information, through a combination of over general and incomplete interrogatory responses, as well as her failure to produce any documents reflecting communications with law enforcement (with the exception of an exchange consisting of a half-dozen texts with a single FBI agent). That information and those documents should be ordered produced. 5. Basic Background Information 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 2.2: The date and place of her birth; FROGs 2.3 & 2.4: Her motor vehicle license information; FROG 2.5: Residence address and addresses for the past five years; 3 Based on Plaintiff’s representations that she would be producing responsive documents as well as a privilege log, Defendant has not yet engaged in meet-and-confer efforts regarding communications with law enforcement that Plaintiff might be withholding on the basis of privilege. Because Plaintiff has not produced the privilege log as promised to enable Defendant to evaluate such claims of privilege, Defendant submits that a motion concerning such issues is premature. However, to the extent that this Court believes that the motion to compel deadline applies to those documents, Defendant moves for an order compelling their production. 4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. That investigation is vital to the defense of this suit because there are significant issues of credibility concerning Plaintiff, her allegations against Defendant, and her background story. Such matters are relevant under Evidence Code Section 210: “’Relevant Evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” It is enough that such information is relevant and/or reasonably calculated to the discovery of admissible evidence. But another reason why Plaintiff’s refusal to provide such basic background information is unreasonable is that Plaintiff herself has put her background in issue. Presumably to bolster her credibility and preempt questions about her motive to make false allegations, the second sentence of Plaintiff’s complaint touts Plaintiff as a co-founder of technology companies and one of Forbes’ “30 Under 30 in Healthcare.” (FAC |] 1, 6). Defendant is entitled to information that would facilitate his investigation into whether Plaintiff is who she says she is, including in her pleadings. 6. Plaintiff’s Answer Regarding Acting As An Agent Is Evasive Plaintiff has also provided an evasive and incomplete answer to Form Interrogatory 2.11, which asks whether Plaintiff was acting as an agent or employee of another while traveling on the evening in question. Plaintiff has responded that she “does not contend that she was acting as an agent or employee” of another. (Response to FROG 2.11). As Defendant has communicated in meet and confer correspondence, that is not responsive. Plaintiff herself alleged, in a prefatory comment to her allegations, that she frequently traveled between San Francisco and Chicago for work. (FAC 6). Whether Plaintiff was traveling for work could be relevant to potential * Furthermore, some of the information sought in those form interrogatories Plaintiff has promised to provide but has not: Plaintiff’s date of birth (FROG 2.2), and to identify the schools attended by Plaintiff as well as her dates of attendance (FROG 2.7). (Maxwell Dec. Ex. F). -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 insurance or worker’s compensation coverage that could be material to Plaintiffs damages. Further, a non-evasive answer to this interrogatory may be material to future disputes regarding the scope of discovery related to Plaintiff's employment and employer. Ta No Reasonable Inquiry Into Insurance Coverage Relatedly, Plaintiff has not provided the requested confirmation that she has conducted a reasonable inquiry into insurance policies that may apply to the alleged incident and her injuries. (Response to FROG 4.1; Maxwell Dec. Ex. F). That information is material to damages and is reasonably calculated to lead to the discovery of admissible evidence (e.g., communications with insurers, denials of coverage, claims of injury, information regarding medical treatment sought or received, etc.). 8. Plaintiff Must Supplement Her Response Concerning Health Care Providers Defendant has asked for confirmation that Plaintiff’s responses to Form Interrogatories 6.4 and 6.7 (health care provider consultations and treatment recommendations) are complete, but has not received that. Plaintiff has testified to the existence of at least one additional health care provider and had communications about seeing a number of counselors after the alleged incident, but who are not listed in her responses. 9. Plaintiff Must Produce Information and Documents Promised Plaintiff has also promised to provide a substantive response to Form Interrogatory 6.5 (medications) once a protective order has been entered. But subsequent to both parties’ signing the confidentiality stipulation, they have agreed to proceed in discovery matters as if a protective order has been issued. (Maxwell Dec. qq 10-12). Plaintiff has not provided supplemental responses. Plaintiff has also promised to produce documents pursuant to that protective order but has not done so: e All documents and communications relating to the incident (Response to RFP 1, 6); e All documents and communications relating to Defendant (Response to RFP 2, 7); -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e All documents relating to the Complaint or First Amended Complaint, or referenced when drafting those pleadings (Response to RFP 8); e All documents relating to Plaintiff’s damages or prayers for relief (Response to RFP 9); and e Documents relating to any medical or psychological attention relating to the incident (Response to RFP 11). Furthermore, irrespective of entry of a protective order, Plaintiff also promised to produce: e All documents given to or received from any airline or airport on or about July 28, 2017 (Response to RFP 5); e Documents relating to the medical or psychological attention Plaintiff has received in the past ten years (Maxwell Dec. Ex. F p. 5); and e Communications between Plaintiff and the press (Response to RFPs 13-14, SROGs 1-4). 10. Plaintiff’s Redactions Are Improper and 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. Those redactions fall into three categories: (1) redactions of particular sentences, words, or phrases within a single text message that is otherwise unredacted; (2) redactions of particular messages within a responsive conversation (i.e., a collection of text messages that are part of a single conversation); and (3) redactions that have removed large sections of text messages, along with their date- and time-stamps. Defendant has asked that these redactions be removed, given that they are deletions of information within a responsive exchange, or within a responsive text, that are subject to a confidentiality stipulation and proposed protective order. (Maxwell Dec. Exs. G & H). Plaintiff refused, arguing that, under Defendant’s logic, all emails between two parties would have to be produced if the parties exchanged even some relevant communications. (ibid.). Defendant -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 explained that Plaintiff’s analogy was not well-taken as applied to the texts in question, because the redactions in question are within a responsive text or within a responsive conversation. (ibid.). Defendant proposed that redactions within responsive texts, or redactions within a responsive conversation (e.g., text messages sent within an approximately 24-hour period) be removed. As to distinct and non-responsive conversations-i.e., exchanges separated by more than 24 hours from responsive conversations and containing allegedly no responsive information-Defendant proposed that those communications be reviewed for responsiveness in camera by this Court or some other neutral. Plaintiff did not respond to that proposal. (Maxwell Dec. Ex. H). 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 > 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. -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 111. May 4, 2015) 2015 WL 2148394). As 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. 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. (7). Redaction is particularly inappropriate where a document is 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 justification to do so. 9. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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.”). Defendant therefore requests that this Court enter an order compelling Plaintiff to produce responsive documents, removing redactions within responsive texts, and removing redactions of texts within a responsive conversation. As to the remainder-discrete text conversations that allegedly contain no responsive information-Defendant requests that they be reviewed by this Court or a court-appointed neutral for responsiveness or relevance (including providing context to responsive communications). In the alternative, for efficiency’s sake and pursuant to the authorities discussed herein, Defendant requests that those exchanges be ordered produced in their entirety without redactions. 11. Miscellaneous Issues Documents Relating to the Pleadings. Plaintiff has stood on her objection to Request 19 (all documents relating to Plaintiff’s claims or allegations) on the grounds that it is overbroad and impossible to comply with. (Response to RFP 19). Defendant disagreed that producing documents relating to a party’s own pleading is impossible to comply with; nevertheless, Defendant identified examples of allegations about which responsive documents should be produced. (Maxwell Dec. Ex. F). Plaintiff did not respond to that meet and confer effort nor supplement her response or production. Documents given to or received from any airline or airport (RFP 5). Defendant asked for documents such as boarding documents, receipts, et cetera received from Delta Air Lines, San Francisco International, Minneapolis-Saint Paul International Airport, or Chicago O'Hare International Airport. (Maxwell Dec. Ex. D). Those documents are relevant to reconstructing the -10- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relevant timeline of events but have not been produced. Withholding of Documents on Basis of Objection. All of Plaintiff’s substantive responses have been made “subject to” various boilerplate objections. Defendant has asked Plaintiff to clarify whether any documents or information are being withheld on the basis of such objections, but Plaintiff has not responded. (Maxwell Dec. Ex. F, p. 2). Documents Within Plaintiff’s Possession or Control. Defendant has also asked for confirmation that Plaintiff’s production includes documents not only within her present possession, but also those under her control and which she could obtain, but did not receive a response. (Maxwell Dec. Ex. F, p. 2). All Communications. In meet and confer communications, Defendant requested and Plaintiff agreed to look for and produce records of all communications regardless of the medium, such as call logs and social media applications. (Maxwell Dec. Ex. E). Plaintiff has not produced such information or documents. Privilege Log. Plaintiff has promised to produce a privilege log for documents withheld on the basis of privilege (Ex. F, p. 5), but has not done so. CG 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 owed the discoverable information and documents at issue in this motion for nearly three months as of the date of filing. Despite numerous attempts to meet and confer, and repeated promises by Plaintiff to produce responsive documents and supplemental responses immediately, Defendant has not received the responsive information or documents. Not hearing a response to his meet and confer email of May 31, 2018, or his most recent meet and confer email, Defendant has been forced to file this motion to avoid waiving his rights to compel responses. -11- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Defendant asks that Plaintiff’s objections to the discovery requests discussed in this motion, memorandum, 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 Defendants fees and costs incurred in bringing this motion, in an amount of $15,000. Defendant further requests that Plaintiff be ordered to produce a privilege log as to withheld documents so as to enable Defendant to evaluate such claims of privilege and litigate such claims at a later date, if necessary. DATED: July 18, 2018 BROWNE GEORGE ROSS LLP KC Maxwell By: «- A JP tusucelf KC Maxwell Attorneys for Defendant LUCIO LANZA -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL
