Physician'S Surrogacy Inc vs Kenia German

Motion to Compel Discovery

Cal. Super. - 4th Dist.March 12, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Charles T. Hoge, Esq. (SBN 110696) choge@hogelaw.com HOGE LAW FIRM 888 Prospect Street, Suite 200 La Jolla, California 92037 Tel: (858) 263-2754 Fax; (619) 263-2701 John Landay, Esq. (SBN 257573) jlanday@landayroberts.com LANDAY ROBERTS LLP 101 W. Broadway, Ste. 300 San Diego, CA 92101 Office: (619) 230-5712 Attorney for Plaintiff, PHYSICIAN'S SURROGACY, INC,, a California corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO PHYSICIAN’S SURROGACY, INC, a Case No.: 37-2018-00012542-CU-BT-CTL California corporation, Plaintiff, PLAINTIFF PHYSICIAN’S SURROGACY, INC.’S MOTION TO COMPEL FURTHER VS. RESPONSES TO REQUESTS FOR THE Ce . PRODUCTION OF DOCUMENTS, SET KENIAGERMANadoing ONE, PROPOUNDED ON DEFENDANT SURROGACY; ELITE WOMEN KENIA GERMAN. SURROGACY, LLC, a California limited liability company; CLAUDIA IMAGED FILE ESCAMILLA, an individual; KARLA JIMENEZ, an individual; RAFAEL Judge: Hon. Kenneth J. Medel MARTINEZ, an individual; and DOES 1 Dept.: C-66 through 50, inclusive, Date: April 19, 2019 Defendants. Time: 10:30 a.m. Action Filed: March 12, 2018 Trial Date: September 20, 2019 111 111 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on that on April 19, 2019 at 10:30 a.m. or as soon thereafter as the matter can be heard in Department C-66 of the above-entitled Court, located at the Hall of Justice, Fourth Floor, 330 West Broadway, San Diego, California 92101, Plaintiff Physician’s Surrogacy, Inc. will move and hereby does move this Court for an order compelling Defendant Kenia German to produce the documents requested in Plaintiff Physician’s Surrogacy, Inc.’s Requests for the Production of Documents, Set One. This motion is made pursuant to Code of Civil Procedure, Section 2033.090 on the grounds that Defendant Kenia German’s objections to the specified discovery requests are too general and/or without merit and the erroneous limitationsit places on its responses exclude otherwise discoverable material. This motion is based on this Notice of Motion, the attached Separate Statements, the attached Memorandum of Points and Authorities, the Declaration of John K. Landay in support thereof, and all pleadings, papers, and records on file in this action, and any further arguments or evidence which may be presented at the hearing of this motion. Dated: December 21, 2018 LANDAY ROBERTS LLP By: JohwK. Landay, Esq. John K. Landay, Esq. Malcolm Roberts, Esq. Attorney for Plaintiff PHYSICIAN'S SURROGACY.INC. 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IL. III. Iv. TABLE OF CONTENTS PAGE INTRODUCTION...eeeeeeeeste steers ete eee este sate sa teste sacs ee nie ens 1 BACKGROUNDcitieseeesete sate e ste beesbebeestesbt estes eens ene 1 A. The First Amended Complaint............cocueeviieriieiieeiieiieececeeeeeevee 1 B. ISSUES 11 DASPULE....eeuvieeie citeeteteeteeteeteeeteeteee ee teeebe eee et ee sabe sane esaessae ees4 C. The Meet and Confer Letters. .......oouiviiiiiiiiiieieeesetesees5 DISCUSSIONLotitosatesheet estat esate bees sates teehee sees nese enbenee 6 A. PSI is entitled to the diSCOVETY it SEEKS. ....cvuveriiiiieriiecieeticieee6 B. PSI has served upon Kenia German a statement identifying the trade secrets misappropriated by Defendants. ...........ocoevieiiiiiiieiieceeeee7 C. Physician’s Surrogacy’s Requests for the Production of Documents, Set One propounded on Kenia German ...........ccceecueeriieriieeieeeiesiie eis eects ee esses saae eerie eneees 8 D. PST’s Motion to Compel is TIMELY ......cccveeviieiiieiiiiieeceeeee11 CONCLUSIONtittieseeeste steers testes sate sate ste shee ne estaba anne sae enbe ns 11 i PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES PAGE Cases Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826...........cc.c....... 7 Cembrook v. Superior Court (1961) 56 Cal.2d 423 .......ccviiiiie eesees 7 Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 Cal.3d 785.....cccoeevvvevveenennne. 6 Deyo v. Kilbourne (1978) 84 Cal.APP.3A 771 evoeeeeeeeeeeeeeeeeeeee 7 Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101 .......cccceiiiiiiiiniecieciceeee, 6 Flagship Theaters ofPalm Des., LLC v. Century Theaters, Inc. (2011) 198 Cal.App.4th ; Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 .....ccoooiiiiiiiiieeee ee 1,6 Sav-On Drugs v. Sup. Ct. (1975) 15 Cal.3d 1 ...oooiiiiiiieeeeeeeee eees 6 Williams v. Superior Court (2017) 3 Cal.5th 531 ..ccuiiiiiieeieceeeee6,7 Statutes Code of Civil Procedure, SECtion 201 7.010 .......ooiiiiiiiiiieiieieeieeeeeeeeeessere ceases 1 Code of Civil Procedure, SECtion 2017.020 .........ooiiiiiiiiieiieiieieeeeee eeeeee esse eeaaee esas essen 7 Code of Civil Procedure, SECtion 2019.210 .......iiiiiiiiiiiiiiieieeieeeeee eeeeee esses eases essen 7 Code of Civil Procedure, SECtion 2030.300 ........ccciiiiiiiiuiiiieiie ieee cece eeetee reese ees seraae reese essen 11 ii PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION On March 12, 2018, Plaintiff Physician’s Surrogacy, Inc. (“PSI”) bought a complaint against defendants Kenia German, Elite Women’s Surrogacy, LLC (“EWS”) and others, asserting causes of action for breach of contract (i.e., non-disclosure provisions), for the breach of the duty of loyalty, for tortious interference, and for the misappropriation oftrade secrets among other causes of action. PSI has since amended its complaint on July 9, 2018 butthe basis for its claims has remained the same - Defendants stole PSI’s business by (1) misappropriating PSI’s trade secrets, including its surrogacy data, broker identification, and business processes, etc. and (2) diverting relationships with surrogates to themselves by masquerading as PSI and/or PSI’s partner agency. For defendant Kenia German, dba Elite Women Surrogacy, much ofthis conduct occurred while she was still employed at PSI in breach of a duty ofloyalty she owed to PSI. On September 28, 2018, Kenia German responded to PSI’s Request for the Production of Documents, Set One. In many of her responses, Kenia German limited her production of documents and communications to only those documents and communications concerning “surrogates that have had any known relationship with Propounding Party and where the communication directly involves their relationship with Responding Party.” As discussed herein below and in PSI’s Separate Statement, these limiting words exclude material that is otherwise discoverable. Accordingly, for the reasons set forth hereinbelow and in PSI’s separate statement, PSI movesfor this Court to compel further responses from Kenia German as the information sought is non-privileged, highly relevant, and is eitheritself admissible or reasonably calculated to lead to admissible evidence. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378; Code Civ. Proc., § 2017.010.) II. BACKGROUND A. The First Amended Complaint PSI is a private donor and surrogacy agency located in San Diego that recruits surrogates and other donors so that a medical corporation may provide in vitro fertilization. PSI was 1 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incorporated in 2015, following a business reorganization structured as a transfer and assignment from Reproductive Sciences Medical Center, Inc. (“RCMS”). (FAC 413.) PSI provides a unique and highly effective service where agency and surrogate recruiting services are seamlessly coordinated with fertility medical procedures to match surrogates with intended parents (“IPs”) for procedures such as surrogacy, egg donation and fertility treatment. PSI earns revenue, and thus surrogates are compensated, through funds delivered by the IPs who assume parenting responsibilities for the baby immediately upon birth. (FAC 914.) This flow of funds is analogous to a real estate transaction where one or more agents are compensated from the funds paid from the buyer to seller and, similarly, the funds are held in escrow. (FAC 417.) Beyond that, PSI serves as a surrogacy agency facilitating the matching and consummation of highly personal relationships and services among multiple parties which is a unique and critical component of its business. (FAC 917.) PSI has invested and spent significant time and resources creating and developing its proprietary business methods, systems, processes, procedures and programs - all ofwhich are specifically tailored to PSI’s unique surrogacy and fertility services - including surrogate intake, recruiting and management of records of surrogates, fertility services, IPs and unique management of the IP/surrogate financial transactions. These activities set PSI apart from other surrogacy agencies. (FAC 914.) As explained below, most ofthis information is protectable as trade secrets. Defendants stole PSI’s business by secretly setting up a competing business in three distinct ways: (1) by diverting relationships with surrogates to themselves by masquerading as PSI and/or PSI’s partner agency (among other things), (2) by utilizing trade secret information to ultimately obtain IP business for themselves, and (3) by retaining and converting PST’s other property. (FAC 916.) Kenia German was hired by PSI on April 1, 2016, as a Recruiter and was promoted to Senior Surrogacy Recruiter. Kenia German participated in recruiting, screening, and approval of applications by potential surrogates, as well as the overall surrogacy process once surrogates were approved and had signed contracts with PSI. (FAC 940.) As a condition ofher employment, Kenia German signed a Proprietary Information and Innovation Assignment Agreement (“PIIAA”) which requires Kenia German to maintain PSI’s proprietary information and trade secrets 2 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confidential during and after termination of her employment. (FAC 9 32.) Kenia German worked with a team of subordinates including Glory Nash, a Case Manager, Jessica Simas, a Coordinator; Xochitl Rachelle Macias, a Coordinator; and Veronica Munoz, a Surrogacy Coordinator. (FAC 941.) In fact, it turns out immediately after Kenia German’s employment began, she was secretly planning to form her own surrogacy agency to compete against PSI. Kenia German breached her duty of loyalty to PSI first by conspiring with the other Defendants to misappropriate PSI’s information and other property and to steal PSI’s surrogate clients and employees. (FAC 942.) The Defendants misappropriated a significant amount of PSI’s information by, among other things, emailing it from PSI’s computers and work email accounts, without consent or authorization, to a Gmail address rsmcsurrogacy@gmail.com, which Kenia German (and/or the other Defendants) created in or around early 2016 (FAC 943.)" After setting up their shadow business built upon PSI’s trade secrets, while Defendant Kenia German wasstill employed at PSI, Defendants diverted potential surrogates and surrogates from PSI. Defendants later used the email address rsmcsurrogacy@gmail.com, which incorporated PSI’s sister business name “RSMC”to intentionally confuse PSI’s surrogates and potential surrogates and to lead them to believe they were communicating with personnel who were acting on behalf of PSI. (FAC 945.) Defendants emailed potential surrogates and surrogates who were under contract with PSI from that account and told them that it was a new email for PSI, and began soliciting their information using that email account and other forms of communication, pretending to still be acting for PSI. (FAC 945.) The display or “from” name for the email also stated “RSMC Fertility” to further deceive recipients into believing they were communicating ! The FAC sets out these examples among their many misdeeds: Defendants emailed and/or wrongfully received lists of PSI’s surrogate information and surrogate broker information, PSI’s business methods, systems, processes, procedures, and programs described above, to rsmesurrogacy@gmail.com. (FAC 943.) Defendants also emailed intake forms, surrogacy applications and other documents to the rsmcsurrogacy@gmail.com email address, among other email accounts (FAC 943.) German sent emails to the personal email address (ralphemm@att.net) of Defendant Rafael Martinez (“Martinez”), her husband, on or around April 29, 2016 that attached various copies of PSI’s information, including email templates for various surrogacy- related scenarios, surrogacy FAQs, intake forms, benefit lists and job descriptions (FAC 944.) 3 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 with representatives acting on behalf of PSI. (FAC 945.) In addition to involving her husband, Kenia German’s sisters-in-law, Defendants Claudia Escamilla and Karla Jimenez, maintained and used the rsmcsurrogacy@gmail.com and sent false and misleading emails and communications to surrogates and potential surrogates using the account, among other methods of communication. (FAC 9446.) Emails sent by Kenia German from her PSI email account to the rsmcsurrogacy@gmail.com account, she would address the recipients as “Claudia” or “Karla.” (FAC 946.) Ms. Escamilla used an e-signature on emails from the rsmcsurrogacy@gmail.com account that stated she was “Assistant [sic] to Kenia German, Surrogate Program Director” and included PSI’s RSMC logo and address at 3661 Valley Centre Dr., Suite 100, San Diego, CA 92130 to further deceive recipients into believing she was acting on behalf of PSI. (FAC 947.) The FAC alleges that each of the other Defendants was aware that Kenia German planned to commit the actions and omissions alleged and agreed with the other Defendants to undertake those actions (FAC 453.) On or around December 20, 2016, while still employed by PSI, Kenia German and her husband, Rafael Martinez filed for a fictitious business name of “Elite Women Surrogacy” with the County of Orange Clerk-Recorder. (FAC 949.) A Facebook page for Elite Woman Surrogacy states that the business launched on November 12, 2016. (FAC 949.) After the shadow business was thoroughly established, Kenia German resigned from her position with PSI in February 2017. (FAC 948.) Kenia German’s team members, Glory Nash, Jessica Simas, Xochitl Rachelle Macias and Veronica Munoz,all resigned within a few weeks of Kenia German’s resignation and went on to work for Kenia German’s competing surrogacy business. (FAC 948.) On or about April 20, 2017, Kenia German then filed a form LLC-1 with the California Secretary of State to cause the legal formation of Elite Women Surrogacy LLC, through which individual Defendants named herein conduct business as a “Third Party Reproductive Agency.” Escamilla, Jimenez, and Martinez are all currently working with Elite Women Surrogacy. (FAC 950.) B. Issues in Dispute Based on the above allegations, the discovery sought by PSI from Kenia German relate to the following key issues in this dispute: 4 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Kenia’s German's breach her duty of loyalty to PSI by competing with PSI during the term ofher employment; 2. Kenia German's breach the confidentiality provisions of PIIAA by misappropriating PSI proprietary information and trade secrets during or after termination of her employment with PSI; and 3. Kenia German, as well as the other Defendants, misappropriated the trade secrets of PSI including surrogacy data, broker identification, and business methods and use such information in conducting a competing business or tortuously interfering with PSI’s business. C. The Meet and Confer Letters On September 13, 2018, PSI served upon Kenia German a statement identifying the trade secrets that it has alleged were misappropriated by Defendants. (Declaration of John K. Landay, filed concurrently herewith (“J. Landay Decl.”, q 4.) On or about September 28, 2018, Kenia German served its response to Physician’s Surrogacy Inc.’s Request for the Production of Documents, Set One. (J. Landay Decl., 4 5.) In its meet and confer letter, dated November 9, 2018, PSI argued that the language limiting its response to documents and/or communications with or concerning “surrogates that have had any known relationship with Propounding Party and where the communication directly involves their relationship with Responding Party” excluded material that is otherwise be discoverable for several reasons. (See e.g., J. Landay Decl., Exhibit 1, p. 3.) For example, the exclusion would prevent PSI from discovery materials that could demonstrate Kenia German and the other Defendant’s misappropriation and use of trade secret business practices in its own business. This language was included in response to documents requests numbered 5, 16, 18, 19, 20, 21, 22, 23, 24,26, and 33. Although, this issue was resolve with respect to communications made during Kenia German’s employment with PSI, the issue remains with respect to communications made after the termination of Kenia German’s employment. 5 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. DISCUSSION A. PSI is entitled to the discoveryit seeks. First, discovery is “a matter of right unless statutory or public policy considerations clearly prohibit it.” (Greyhound Corp., supra, 56 Cal.2d at p. 378.) The intention of the discovery statutes is to make discovery a “simple, convenient, and inexpensive” means of revealing the truth and exposing false claims. (Id. at p. 376.) Another purpose of the discovery is to “educate the parties concerning their claims and defenses to encourage settlements and to expedite and facilitate trial.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107 [citing Greyhound Corp., 56 Cal,2d at p. 376].) Any information, not privileged, relevant to the subject matter involved in the pending action, is discoverable so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” (Greyhound Corp., 56 Cal.2d at p. 370.) California courts have consistently held that the discovery statutes are to be liberally construed in favor of disclosure. (Flagship Theaters ofPalm Des., LLC v. Century Theaters, Inc. (2011) 198 Cal.App.4th 1366, 1383 [noting that absent a showing that substantial interests will be impaired, liberal policies of discovery rules will generally militate in favor of overturning a trial court’s decision to deny discovery]; Emerson Elec. Co., 16 Cal.4™ at p. 1107 [stating that discovery statutes “must be construed liberally in favor of disclosure.”].) Second, with respect to an objection based on relevancy, an order granting discovery is proper unless there is no reasonable possibility that the responses will lead to the discovery of admissible evidence or be helpful in preparing fortrial (see Sav-On Drugs v. Sup. Ct. (1975) 15 Cal.3d 1, 7) and any doubts concerning relevancy should usually be resolved in favor of permitting discovery (Colonial Life & Accident Insurance Co. v. Superior Court (1982) 31 Cal.3d 785, 790). Third, with respect to the assertion of the right to privacy, the California Constitution expressly grants individuals a rightto privacy. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) However, a propounding party is presumptively entitled to discovery responses and the responding party asserting a privacy right has the burden to show the existence and extent of any the invasion of privacy. (Williams, 3 Cal.5th at p. 557.) The court then must weigh the 6 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 countervailing interests of the party seeking discovery. (/d.) Thus, general assertions ofa right to privacy alone are insufficient. (See id.) Fourth, with respect to an objection based on vagueness, such an objection is only valid if the propounded discovery is totally unintelligible. (Deco v. Kilbourne (1978) 84 Cal.App.3d 771, 783.) A responding party has a duty to answerif the nature of the information sought is apparent. (Id.) Further, rather than sustaining an objection, the court should ask the propounding to rephrase the discovery request rather than denying a party its right to discovery. (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430.) Finally, with respect to an undue burden, a trial court “shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness ofthat discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020(a).) Again however, the responding party has the burden to supply a basis for the determination that there is an undue burden. (Williams, 3 Cal.5th at p. 549-50.) Upon such a showing,the trial court can determine whether the responsive burden is undue or excessive, relative to the likelihood of admissible evidence being discovered. (/d.) B. PSI has served upon Kenia German a statement identifying the trade secrets misappropriated by Defendants. Finally, Code of Civil Procedure, Section 2019.210 requires that, “before commencing discovery relating to a trade secret, the party alleging misappropriation shall identify the trade secret with reasonable particularity.” (See Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 835 [but noting that “’reasonable particularity’ . . . does not mean that the party alleging has to define every minute detail ofits claimed trade secret at the onset of litigation”].) Plaintiff need only make some reasonable showing under the circumstances that will allow the trial court to control discovery, protect proprietary information, and provide plaintiff a fair opportunity to prepare and present their case. (See id. at p. 835-35.) On September 13, 2018, PSI served upon Kenia German a statement identifying the trade secrets that it has alleged were misappropriated by Defendants. (Declaration of John K. Landay,filed concurrently herewith (“J. Landay Decl.”, § 4.) 7 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Physician’s Surrogacy’s Requests for the Production of Documents, Set One propounded on Kenia German As discussed in more detail in PSI’s separate statement, PSI seeks to compel further responses for her Requests for the Production of Documents, Set One propounded on Kenia German: Request for Production No. 5. ALL DOCUMENTS, including COMMUNICATIONS, RELATING TO surrogates and/or intending parents from January 2016 to present. Request for Production No. 16. ALL COMMUNICATIONS between YOU and any persons and/or entities RELATED TO surrogates, potential surrogates, rejected surrogates, intending parents and/or potential intending parents from January 2016 to present, including but not limited to any emails you sent or received at the following email addresses kenial 2604@aol.com, kenial2604@aim.com, kegerman@elitewomensurrogacy.com. Request for Production No. 18. ALL COMMUNICATIONSbetween YOU and Esmeralda Leon RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. Request for Production No. 19. ALL COMMUNICATIONSbetween YOU and JIMENEZ RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. Request for Production No. 20. ALL COMMUNICATIONS between YOU and 8 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ESCAMILLA RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. Request for Production No. 21. ALL COMMUNICATIONS between YOU and MACIAS RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. Request for Production No. 22. ALL COMMUNICATIONS between YOU and SIMAS RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. Request for Production No. 23. ALL COMMUNICATIONS between YOU and MUNOZ RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. Request for Production No. 24. ALL COMMUNICATIONS between YOU and NASH RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present, including but not limited to text messages, emails, Facebook messages, Facebook messenger, and/or Instagram. 9 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Request for Production No. 26. ALL COMMUNICATIONS between YOU and any person and/or entity RELATED TO women who were denied by PSI, designated as inactive by PSI, designated as retired by PSI and/or dropped by PSI from January 2016 to present. Request for Production No. 33. ALL COMMUNICATIONS between YOU and jimenezkarla795@gmail.com RELATED TO PSI, EWS, surrogates, potential surrogates, intending parents, potential intending parents, and/or competing with PSI's business from January 2016 to present. In her response to PSI’s meet and conferletters, Kenia German’s counsel raises the following questions: Why would Plaintiff be entitled to communications with intended parents or surrogates that are: 1) unrelated to Plaintiff's business (never worked with Plaintiff); and 2) who were not communicated with during Defendants’ employment with Plaintiff? Why would Plaintiff be entitled to communications concerning the day to day management of surrogacy journeys of surrogates and intended parents which do not involve Defendants’ relationship (i.e. solicitation) with the subject surrogates and intended parents but rather involve the private medical information of surrogates and intended parents? How would Plaintiff's justify compelling the production of such information, particularly in light of Plaintiff’s oft repeated claims in its pleadings about the duty of an agency to keep this information confidential? (J. Landay Decl., Exhibit 2, pp. 1-2.) These questions are nothing more than a strawman that point to specific documents that might show the request is over inclusive. PSI offered to exclude from production surrogate and medical records to the extent that such records are in a form or format not specified by any of the defendants. This exclusion refersto the actual medical records and not any other correspondence that may have been included with such records. (J. Landay Decl., Exhibit 3, pp. 2-3). This accommodation was not sufficient to resolve the dispute. As discussed furtherin its separate statement, PSI contends that the information sought 10 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relates to the business practices of the Defendants and, as such, as are discoverable to show that such business practices were misappropriated from PSI. D. PSI’s Motion to Compel is Timely Code of Civil Procedure, Section 2030.300, provides in part, “Unless notice of this motion is given within 45 days ofthe service of the verified response. . . or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” Here, the propounding party and the responding party did agree in writing to extend this deadline until December 21, 2018. (J. Landay Decl., § 7, Exhibit 5.) Thus, this motion to compel is timely. IV. CONCLUSION For the foregoing reasons, Defendant PSI requests that this Court grant its motion compelling further discovery responses from Kenia German Dated: December 21, 2018 LANDAY ROBERTS LLP By: JohwK. Landay, Esq. John K. Landay, Esq. Malcolm Roberts, Esq. Attorney for Plaintiff PHYSICIAN'S SURROGACY, INC. 11 PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL