Opposition Opposition To Motion To Quash Deposition Subpoena of Maria Del ToroOppositionCal. Super. - 2nd Dist.April 2, 2018© 00 J Oo O t 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CURD, GALINDO & SMITH, L.L.P. JOSEPH D. CURD, SBN 115764 301 East Qcean Boulevard, Suite 1700 Long Beach, CA 90802 Telephone: (ge2 624-1177 Facsimile: (562) 624-1178 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES SOUTH DISTRICT CURT DANIEL NEWNES, etc., et al, Case No. NC061713 Pai OPPOSITION TO MOTION TO aint, QUASH DEPOSITION SUB- vs. POENA OF MARIA DEL TORO FARMERS AND MERCHANTS BANK OF (By Fax) LONG BEACH, etc., et al, Date: January 3, 2019 Defendants. Deme Sa AM Res. ID. 181029360483 Judge: Hon. Michael P. Vicencia Filed: April 2, 2018 Trial: April 9, 2019 Plaintiff Curt Newnes (“Newnes”), respectfully submits this opposition to the motion to quash the deposition subpoena served on non-party witness Maria Del Toro (“Del Toro”). Dated: December 19, 2018 CURD, GALINDO & SMITH, LLP. JOSEPH D. CURD Attorneys for Plaintiff 1 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O TABLE OF CONTENTS Page No TABLE OF AUTHORITIES ......ooiiiiiiieeee eects eee 3 MEMORANDUM OF POINTS AND AUTHORITIES .......ccccceiiiiiiiiiiiiiieeeeee 4 I. SUMMARY OF ARGUMENT. ....ccooiiiiiiiiiiiteeeeieee cette ee ee 4 II ARGUMENT Lo eee eee essere essere esses 5 A. Del Toro has failed to identify any portion of the subpoena that she claims is unintelligible. ...........cccoeeeeeiiiiiiiiiiiiiiceeeeeeeeee, 6 B. Del Toro has failed to meet her burden of demonstrating the subpoena is overbroad, burdensome, or OpPPresSIVe. .....c.uuveevevneernnnnnns 9 C. Del Toro has failed to proffer any admissible evidence sufficient to sustain her privacy objection, and she has waived her right to seek a protective order by failing to meet and confer and promptly file a proper motion. ..........ccceevvvvvvvieeeeeeeeennnnnns 11 D. The court should award reasonable expenses and attorney fees incurred by Newnes because Del Toro made her motion in bad faith and without substantial justification. ...........cccceeeeeeiiiiiiniinnnnnn. 13 CONCLUSION... etter eee e rie eases eee e este ee es esate ee ee enaneee 14 DECLARATION OF JOSEPH D. CURD.....ccoiiiiiiiiiiiiiiiiceeeeceeeee e 15 2 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O TABLE OF AUTHORITIES Page No Cases Emerson Elec. Co. v Superior Court (1997) 16 Cal. 4th 1101........cceveiviirineneennnnn. 5 Fairmont Ins. Co. v Superior Court (2000) 22 Cal. 4th 245 ........cccoeevvvvvvieeeiiiinnnnn.. 5 Flagship Theatres of Palm Desert, LLC v Century Theatres, Inc. (2011) 198 Cal. APP. 4H 1866 ...covveeiiieeieeeeeeeee eee eee eee ens 5 Glenfed Dev. Corp. v Superior Court (1997) 53 Cal. App. 4th 1113....cccceeeeeeeennn. 6 Greyhound Corp. v Superior Court (1961) 56 Cal. 2d 355......cccceeeeeeeiiiireiiiiieeennn... 5 Hill v National Collegiate Athletic Ass'n (1994) 7 Cal. 4th 1......cccceeeeeriirrrinnnnnnn. 11 St. Paul Fire & Marine Ins. Co. v Superior Court (1984) 156 CA3d 82............... 12 Williams v Superior Court (2017) 3 Cal. App. 5th 531 ..ccueiiiiiiiiiiiiiiiiieeeeieeee 5 Statutes Code Civ. Proc. § 2020.510 ..uuuuiiiiiiieeiiiiiiieeeeeeee ee eee e eas esse e eee saaa ees 6 Code Civ. Proc. §1985.8 o.oo eee eee eee eee eee eee 7,10 Code Civ. Proc. §1987.1 «oii eee eee eee eases 13 Code Civ. Proc. §1987.2 «o.oo 13 Code Civ. Proc. §2025.420 .......oeiiuieiiiiiiiieeeeeeeeee eee eee eevee aera ae 12, 13 Code Civ. Pros § 2020.410 ...ouuuniiiiiieeeiieieee eee eee eee eee ee eevee ee eaaaas 6,7 Rules Cal Rules of Ct 8.1118 o.oo eee eee eee eee serra eee eee 12 3 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF ARGUMENT. Del Toro’s motion to quash the production of her electronically stored in- formation (“ESI”) boils down to three arguments: 1. She claims the subpoena is unintelligible. 2. She claims the subpoena is overbroad, burdensome, and oppressive. 3. She claims the subpoena violates her right of privacy. Although Del Toro presses her opposition forcefully, she does not support any of her arguments with specificity or competent, admissible evidence. First, she fails to identify any portion of the subpoena that she claims to be unintelligible. By contrast, the accompanying declaration of Nico Nunez, a forensic expert hired by Newnes, explains in detail that every material section of the subpoena comports with the guidelines, standards, and framework of the electronic discovery (“e-discovery”) industry. He shows how the definitions and Instructions given in the subpoena are readily understandable and consistent with e-discovery industry terminology. He also affirms that the scope of elec- tronic media sought by the subpoena is representative of the typical sources where ESI is accessed for discovery purposes. Thus, there is no merit to Del Toro’s objection that the subpoena is unintelligible. Second, Del Toro fails to meet her burden of demonstrating the subpoena 1s overbroad, burdensome, or oppressive. As with her first objection, she again offers no specificity to support her assertion that the subpoena is overbroad. More seriously, she proffers no competent, admissible evidence that identifies any electronic media within her possession, custody, or control that is unreason- ably inaccessible or that contains ESI that would be burdensome and oppressive for her to produce. Since the legal burden is on her, the court must conclude 4 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O that her second objection is without merit given her failure to proffer evidence sufficient to prove the grounds of her objection. Third, Del Toro has failed to proffer any competent, admissible evidence sufficient to sustain her privacy objection. She has not identified any legally protected privacy interest with specificity. She has made no showing she has a reasonable expectation of privacy in any such interest. She has not explained the extent or gravity to which the subpoena invades any of her privacy interests. She also has waived her right to seek a protective order by failing to meet and confer with Newnes’ counsel and promptly file a motion for such an order. Del Toro’s motion to quash is so woefully deficient that the court is warranted in concluding she made her motion in bad faith and without substantial justification. Therefore, the court should deny her motion and award reasonable expenses and attorney fees to Newnes. II. ARGUMENT A party is entitled to disclosure in discovery as “a matter of right unless statutory or public policy considerations clearly prohibit it.” (Greyhound Corp. v Superior Court (1961) 56 Cal. 2d 355, 378.) This broad right serves several pur- poses including (i) to reveal the truth; (ii) to “educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and fa- cilitate trial”; and (111) to eliminate surprise. (Id. at 376; Emerson Elec. Co. v Su- perior Court (1997) 16 Cal. 4th 1101, 1107; Fairmont Ins. Co. v Superior Court (2000) 22 Cal. 4th 245, 253 n2.) To further this right and these purposes, the court is obliged to construe the Civil Discovery Act liberally in favor of disclosure. (Williams v Superior Court (2017) 3 Cal. App. 5th 531, 541; Flagship Theatres of Palm Desert, LLC v Century Theatres, Inc. (2011) 198 Cal. App. 4th 1366, 1383.) All doubts about 5 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O discovery are resolved in favor of disclosure. (Glenfed Dev. Corp. v Superior Court (1997) 53 Cal. App. 4th 1113, 1119.) This liberal policy includes the broad right to discover electronically stored information (“ESI”) by means of a subpoena. (Code Civ. Proc. §2020.410(a).) In- deed, a deposition subpoena for the production of ESI may be directed to a non- party witness such as Del Toro. (Code Civ. Proc. §2020.510.) The breadth of these statutory rights and policies is juxtaposed with Del Toro’s contention that the subpoena served on her is unintelligible, overbroad, burdensome, oppressive, and in violation of her right to personal and financial privacy. (Motion 1:14-16.) To support her assertion, she proffers as evidence merely her counsel’s declaration with four attachments: the subpoena itself, a deposition notice, and two letters exchanged between counsel. She does not identify any portion of the subpoena that is unintelligible. She does not describe the scope of electronic devices, media, and ESI in her possession that she be- lieves 1s so extensive it renders the subpoena overbroad, burdensome, or oppres- sive. This shortcoming is particularly troublesome given the subpoena is not fa- cially overbroad in that it seeks only 14 categories of ESI. She does not submit even a bare description of any ESI she possesses that is a privacy concern and that is intruded upon by one or more of the 14 categories of subpoenaed ESI. Thus, as is detailed below, Del Toro has failed to make a good faith effort to meet her burden of proof, thereby warranting the conclusion that her motion 1s without substantial justification. A. Del Toro has failed to identify any portion of the subpoena that she claims is unintelligible. The subpoena served on Del Toro consists of three main parts: (1) the Ju- dicial Council form; (2) an attachment titled “Attachment 3,” which explains the scope of ESI to be produced; and (3) a proof of service (Motion, Exhibit 1). Del Toro asserts that the subpoena is unintelligible. But she fails to identify which 6 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O part or parts of the subpoena she cannot understand. As shown below, her ob- jection is without merit because every part of the subpoena is clear and proper. The Judicial Council portion of the subpoena is filled out properly and complies with the form’s requirements. The proof of service is generic and un- ambiguous. Therefore, Del Toro’s objection on the ground of unintelligibility must pertain to Attachment 3. A cursory inspection of Attachment 3 reveals there 1s nothing unintelligible about it: 1. The initial section of Attachment 3 contains definitions. The first three definitions identify the parties. The next three definitions import terms from the California Codes. After that, the term “Record” is defined as anything that stores information. “Electronic Media” is defined as any record in electronic form or that stores ESI. “Responsive Material” is defined essentially as any- thing produced in discovery whether formally or informally. The “Inspection Lo- cation” is defined as the address identified in the subpoena. “Communication” is defined as the transmission of information from one person to another. These definitions are clear and simple. There is nothing unintelligible about them. 2. The second section of Attachment 3 contains instructions. The first instruction describes the form in which to produce ESI. This is per statute. (Code Civ. Proc. §1985.8(b); Code Civ. Proc. §2020.410(a).) The accompanying declaration of Newnes’ forensic expert, Nico Nunez, explains that the form of production requested in the subpoena is standard in the e-discovery industry. The second instruction offers an alternate method of production if the first one cannot be used. The third instruction merely clarifies that one categorical de- scription should not be construed to limit another. The fourth instruction merely emphasizes the handling of claims of privilege per statute. The fifth in- struction clarifies that pleadings may be excluded from ESI production. The sixth instruction merely explains that ESI should be produced in its native for- 7 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O mat as well as the industry-standard format. Once again, none of this is unin- telligible and, as explained in the accompanying declaration of the forensic ex- pert, Nunez, these instructions comply with e-discovery industry standards. 3. The third section of Attachment 3 identifies the types of electronic media that may contain ESI sought to be produced. The section describes vari- ous hardware, software, devices (removable, portable, or external), web-based and cloud-based sources, backups, etc. It limits its own scope to the constraints of any governing protective order, thereby inviting a discussion to protect Del Toro’s sensitive material. It assures Del Toro that the process will not perma- nently alter or destroy anything. It explains that imaging, third-party backups, and ESI captured by devices or in any offsite repository are included among rele- vant media sources. It explains that credentials must be provided if necessary for access. Again, the forensic expert, Nunez, affirms that all of this is industry compliant. 4. The last section of Attachment 3 lists the categories of ESI to be pro- duced. There are only 14 categories-which is not overreaching or overwhelm- ing by any stretch of the imagination. The first three requests pertain to Del Toro’s communications with management personnel at defendant FMT, her em- ployer, who now services Newnes’ former customer, Cole, which is pertinent to the first through fifth causes of action of the complaint. The fourth request per- tains to communications with her husband who also had a prior working rela- tionship with Newnes, part of which overlapped with Del Toro’s period of em- ployment by Newnes, and thus may have had communications regarding the for- mer customer. The fifth request concerns direct communications with Newnes’ former customer. The sixth request concerns Del Toro’s communications with Edna Jucaban, Cole’s caregiver and assistant at or about the time Cole left Newnes for FMT. The seventh request concerns communications with Beth Betger, Regina Cole’s property insurance agent, which is pertinent because 8 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O Newnes was Cole’s outside property manager. The eighth request concerns com- munications with Joyce Flores, one of Regina Cole’s long-time onsite managers with whom Newnes interfaced. The ninth request concerns communications with Judy Ettinger, a former employee of Newnes who took over Del Toro’s posi- tion as in-house processor/bookkeeper. The tenth request concerns communica- tions with Leo Castro, another customer of Newnes. The eleventh request con- cerns communications with Maria Vasquez, Del Toro’s cousin, who also was a Newnes employee of 17 years, and left at the same time as Del Toro. The twelfth request concerns communications with Irma Gomez, a Newnes employee of 14 years who overlapped the same period as Del Toro. The thirteenth request concerns communications with Del Toro’s daughter, Evangelina Del Toro, who also was a Newnes employee of 2 years. The fourteenth and last request con- cerns communications with Gary DeLong, the individual who claims to have re- ceived Newnes’ private, confidential banking information from an employee at defendant Farmers & Merchants Bank, as alleged in the sixth cause of action of the complaint. None of these requests is unintelligible, and they all relate to parties, witnesses, or controverted issues pertinent to the claims alleged in the complaint. In sum, nothing in the subpoena is unintelligible, and Del Toro has not identified any portion of the subpoena that she claims to be unintelligible. Her objection is in bad faith and lacks substantial justification. B. Del Toro has failed to meet her burden of demonstrating the subpoena is overbroad, burdensome, or oppressive. Del Toro contends the subpoena is overbroad, burdensome, or oppressive. But she does not explain which categories of ESI are overreaching. Instead, she switches up her argument to claim the requested ESI is irrelevant. (Motion 6:27 - 7:1.) She then imposes the burden on the court to figure out what is relevant. 9 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O (Motion 7:1-4.) Consequently, whatever Del Toro contends is unreasonable about the subpoena is left to speculation, The burden 1s not on the court or Newnes to guess what troubles Del Toro about the subpoena. A subpoenaed party who opposes the production, inspec- tion, copying, testing, or sampling of ESI on the basis that the information is not reasonably accessible because of undue burden or expense bears the burden of so demonstrating. (Code Civ. Proc. §1985.8(e).) Del Toro has failed to proffer any competent, admissible evidence to meet this burden. As discussed, Del Toro’s only supporting evidence is her attorney’s decla- ration. But his declaration contains no admissible averments that describe any ESI in Del Toro’s possession, custody, or control that is so unreasonably inacces- sible that the subpoena should be considered overbroad, burdensome, or oppres- sive. His declaration is laced with unduly provocative and inflammatory lan- guage about matter that is not within his personal knowledge. (Evid. objs. 1, 2, & 5.) He proffers inadmissible matter that purports to read the mind and ascer- tain the motives of plaintiff Newnes. (Evid. obj. 3.) And he proffers argumenta- tive legal conclusions. (Evid. obj. 4.) Other than these inadmissible matters, he merely attaches four exhibits without elaboration about anything in the sub- poena that is unreasonable. Conspicuously, the motion is not accompanied by a declaration by the wit- ness who actually has personal knowledge about the subpoenaed ESI-namely, Del Toro herself. She is competent to list all media within her possession, cus- tody, or control and can explain which items are unreasonably inaccessible or contain ESI that would be burdensome and oppressive for her to produce. But she has not done so. Either she or her lawyer could have pinpointed which of the 14 subpoenaed requests is overreaching. They have not done so. As already explained, all 14 requests are germane to controverted issues in this case or concern prospective witnesses. All 14 requests also are narrowly 10 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O confined to the time period after January 1, 2014, the period at issue in this case or during which events may have occurred that are reasonably calculated to lead to the discovery of admissible evidence. As explained in the declaration of Newnes’ forensic expert, the subpoenaed ESI also is relevant to determining whether Del Toro has destroyed or failed to preserve relevant evidence. Fur- thermore, as already shown, Newnes offered in his subpoena and in his attor- ney’s meet-and-confer letter to enter into a protective order that will guard against the production of any ESI that exceeds the scope of the 14 subpoenaed categories or even any ESI within those categories that is of a personal or sensi- tive nature. Del Toro, however, never bothered to explore or even try to negoti- ate a protective order with Newnes. It is disingenuous of Del Toro to assert, un- der these facts and circumstances, that the subpoena is overbroad, burdensome, or oppressive. C. Del Toro has failed to proffer any admissible evidence suf- ficient to sustain her privacy objection, and she has waived her right to seek a protective order by failing to meet and confer and promptly file a proper motion. Del Toro’s third objection is that the subpoena seeks ESI that contains personal and financial information within the scope of her right of privacy. Her objection is a bald averment. She proffers no evidence that identifies the nature of her personal and financial information she claims is sought by the 14 requests in the subpoena. The extent to which the subpoena intrudes into Del Toro’s pri- vate information is once again left to speculation by the court and Newnes. Thus, her lack of evidence and specificity fails to meet her burden. When a party challenges discovery due to privacy concerns, the analytical framework of Hill v National Collegiate Athletic Ass'n (1994) 7 Cal. 4th 1, 15, is governing. Under that framework, the party resisting the discovery due to pri- vacy concerns must 11 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O . Identify a legally protected privacy interest (whether concerning “informational privacy” or “autonomy privacy”); . Establish a reasonable expectation of privacy regarding that inter- est; and . Explain the “extent and gravity” of the invasion of privacy. Del Toro has done none of this. She has failed to identify even one legally protected privacy interest anywhere in her moving papers. She has not estab- lished any facts showing she has a reasonable expectation of privacy in any such interest. She has not explained the extent and gravity to which any category of ESI sought in the subpoena invades any of her privacy interests. Therefore, the court should reject her privacy objection because she has not met her burden of proof. What is particularly suspicious about Del Toro’s privacy claim is that all 14 categories of ESI sought by the subpoena concern her communications with third persons. Only four of those persons-her husband and her employer's three management personnel-potentially involve communications of infor- mation that arguably could be within the scope of her right of privacy. That is not a basis to quash the entire subpoena. If her privacy objection is genuine, which is impossible to determine given her failure to proffer admissible evidence to meet her burden, her concerns could have been readily addressed by an ap- propriate protective order. But she has now waived her right to seek a protec- tive order. A party must “promptly move” for a protective order with respect to depo- sitions. (Code Civ. Proc. §2025.420(a).) The party who seeks the protective order must make a formal noticed motion; the court cannot grant a protective order ex parte. (St. Paul Fire & Marine Ins. Co. v Superior Court (1984) 156 CA3d 82, 85.) The notice of motion must be accompanied by . a supporting memorandum (Cal Rules of Ct 3.1113); and 12 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O . counsel's declaration stating (Code Civ. Proc. §2025.420(a)) o facts showing a reasonable and good faith attempt at an infor- mal resolution of each issue in dispute; and o facts showing good cause for granting the motion. Del Toro has meet none of these requirements. She has proffered no evi- dence establishing good cause for a protective order. She has engaged in no good faith attempts at informal resolution of any issues in dispute. Indeed, she has not even identified any issues in dispute with any specificity. She has filed no noticed motion for protective order with a supporting memorandum (only a mo- tion to quash). And she has not acted “promptly” to meet any of these require- ments. Consequently, she has waived her right to seek a protective order. D. The court should award reasonable expenses and attorney fees incurred by Newnes because Del Toro made her mo- tion in bad faith and without substantial justification. The court has the discretion to award reasonable expenses incurred in making or opposing a motion to quash a subpoena under Code Civ. Proc. §1987.1, including attorney fees, if it finds the motion was made or opposed in bad faith or without substantial justification. (Code Civ. Proc. §1987.2(a).) As discussed, Del Toro has presented no evidence or argument articulating any portion of the subpoena that is unintelligible. By contrast, Newnes has shown in this opposition, and with the support of a forensic expert in e-discov- ery, that the subpoena is completely understandable and compliant with e-dis- covery legal rules and industry standards. Del Toro has failed to explain which of the 14 categories of subpoenaed ESI are overbroad. She has failed to meet her burden of showing which subpoe- naed items of electronic media are unreasonably inaccessible or contain ESI that would be burdensome and oppressive for her to produce. 13 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 3 Oo O n kx Ww ND = NN OD N D D OD N DN O D OD N O N DN H p p p p H p d p a co J O&O T U bh Ww W N = O O OW 0 g S O R s WwW D - H OO Del Toro has failed to present evidence that meets any of the criteria to sustain her objection that the subpoena invades her right to privacy-to wit: no articulation of legally protected privacy interest; no showing she has a reasona- ble expectation of privacy; and no explanation of the extent and gravity to which the subpoena invades any of her privacy interests. In sum, Del Toro’s motion is devoid of any admissible evidence to support her objections to the subpoena or her right to quash the subpoena. Her motion is in bad faith and without substantial justification. Therefore, the court should award reasonable expenses, including attorney fees, to Newnes in the amount requested in his counsel's accompanying declaration. CONCLUSION Del Toro has proffered no admissible evidence to support the objections as- serted in her motion. She has failed to meet her burden of proof. Her motion is in bad faith and without substantial justification. Therefore, the court should deny her motion and award reasonable expenses and attorney fees to Newnes. Dated: December 19, 2018 CURD, GALINDO & SMITH, LLP. OSEPHD. Attorneys for Plaintiff 14 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O DECLARATION OF JOSEPH D. CURD I, Joseph D. Curd, declare: 1. I am an attorney for plaintiff Curt Newnes, and I am admitted to practice law in California. I have personal knowledge of the facts stated in this declaration. I submit this declaration in opposition to the motion to quash filed by the subpoenaed party, Maria Del Toro. 2. My firm prepared and served a deposition subpoena dated October 17, 2018, on Maria Del Toro to seek electronically stored information (“ESI”) within her possession, custody, or control that is either relevant to the contro- verted issues in this case or reasonably calculated to lead to the discovery of ad- missible evidence. A true and correct copy of the subpoena is attached as Ex- hibit 1 to the declaration of Michael Leight dated October 29, 2018, already on file in this matter. 3. Before preparing the subpoena, my firm engaged the services of Nico Nunez, a forensic consultant in electronic discovery (“e-discovery”). His creden- tial and experience are chronicled and extolled in his declaration that separately accompanies this opposition. He provided my firm guidance on the e-discovery process so that my firm could comply with the guidelines, standards, and frame- work of the e-discovery industry in seeking the production of ESI. 4. As explained in detail below, the subpoena served on Del Toro seeks the production of ESI that reflects any communications Del Toro had with key persons related to the claims at issue in this case. The first through fifth causes of action of the complaint allege that defendant Farmers & Merchants Trust (“FMT”) interfered with Newnes’ relationship with his customer, Regina Cole, causing her to leave Newnes and become a customer of FMT. Del Toro acknowl- edges in her motion that she is a former employee of Newnes, and that she is now employed by FMT, who is alleged to have taken Newnes’ customer, Cole. The subpoena seeks the production of ESI pertaining to communications Del 15 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O Toro might have had with key persons such as other Newnes employees during Cole’s tenure as his customer; the customer Cole herself; Cole’s agents at the time she was Newnes’ customer; some of Del Toro’s relatives who also worked for Newnes when Cole was his customer, and management personnel at FMT where Del Toro now works and who is alleged to have wrongfully taken Cole as a customer. Each of these persons themselves might have admissible evidence if Del Toro had any communications with them. The following provides the details of the relationships of the persons whose communications with Del Toro are sought in the subpoena: (a) The first three requests in the subpoena pertain to Del Toro’s communications with management personnel at defendant FMT, her employer, who now services Newnes’ former customer, Cole, which is pertinent to the first through fifth causes of action of the complaint. (b) The fourth request in the subpoena pertains to Del Toro’s com- munications with her husband who also had a prior working relationship with Newnes, part of which overlapped with Del Toro’s period of employment by Newnes, and thus might have had communications regarding the former cus- tomer, Cole. (¢) The fifth request seeks any direct communications Del Toro had with Newnes’ former customer, Cole. (d) The sixth request seeks Del Toro’s communications with Edna Jucaban, Cole’s caregiver and assistant at or about the time Cole left Newnes for FMT. (e) The seventh request seeks Del Toro’s communications with Beth Betger, Regina Cole’s property insurance agent, which is pertinent because Newnes was Cole’s outside property manager. 16 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O ® The eighth request seeks Del Torro’s communications with Joyce Flores, one of Regina Cole’s long-time onsite managers with whom Newnes interfaced. (2g) The ninth request seeks Del Toro’s communications with Judy Ettinger, a former employee of Newnes who took over Del Toro’s position as in- house processor/bookkeeper. (h) The tenth request seeks Del Toro’s communications with Leo Castro, another customer of Newnes. (1) The eleventh request seeks communications with Maria Vasquez, Del Toro’s cousin, who also was a Newnes employee of 17 years, and left at the same time as Del Toro. 9) The twelfth request seeks communications with Irma Gomez, a Newnes employee of 14 years who overlapped the same period as Del Toro. (k) The thirteenth request concerns communications with Del Toro’s daughter, Evangelina Del Toro, who also was a Newnes employee of two years. ad) The fourteenth and last request concerns communications with Gary DeLong, the individual who claims to have received Newnes’ private, confidential banking information from an employee at defendant Farmers & Merchants Bank, as alleged in the sixth cause of action of the complaint. 5. Before my firm filed this case for Newnes, a preservation letter was sent to Del Toro notifying her of her obligation to preserve ESI. A true and cor- rect copy of that letter is attached hereto as Exhibit A and incorporated herein by this reference. A secondary purpose of serving the deposition subpoena on Del Toro was to ascertain whether she destroyed or failed to preserve relevant ESI. 6. I acknowledge receiving attorney Michael Leight’s letter dated Octo- ber 9, 2018, asking me to completely withdraw the subpoena served on Del Toro. 17 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 0 0 J Oo O t B~ Ww dN += D O N O N N D N D N DN DN H O H E es co J O O O t =» WwW DN +H O O © 00 JN Oo oOo kx Ww N D += O A true and correct copy of his letter is attached as Exhibit 3 to his declaration dated October 29, 2018. 7. In response to this letter, I tried to meet and confer to resolve his stated concerns about the subpoena. Specifically, I sent him my letter dated Oc- tober 25, 2018, a true and correct copy of which is attached as Exhibit 4 to his declaration dated October 29, 2018. In my letter, I explained to him how the definitions in Attachment 3 of the subpoena are readily understandable. I also showed him that the instructions in the attachment are consistent with e-discov- ery industry standards. I also demonstrated that the subpoena seeks a rather narrow list of Del Toro’s communications with relevant witnesses during the rel- evant time period of the dispute. I cited the legal basis for Newnes to seek ESI from Del Toro. I offered to enter an appropriate protective order to allay Del Toro’s concerns about overreaching or privacy. I also proposed a reasonable mechanism for collecting and processing the subpoenaed ESI, which is the pro- cedure I understand to be consistent with the custom and practice in the e-dis- covery industry. I concluded my letter by offering to “cooperate and coordinate” the discovery efforts. 8. I received no meet-and-confer cooperation or coordination efforts from Mr. Leight in response to my letter. Instead, I received a letter from him stating he would file a motion to quash the subpoena, which he did. 9. As of the date of this declaration, Newnes has incurred the following expenses to oppose Del Toro’s motion to quash at a billing rate of $345/hour: Description of activity Hours Review of motion to quash. Preparation of Objections to Evi- 5.6 dence proffered by Del Toro. Preparation of Draft of Declara- tion of Nico Nunez in Opposition to Del Toro Motion to quash Deposition Subpena for E.S.I Legal research grounds for opposition to motion and Prepara- 7.7 tion of draft of Gpposition to Del Toro Motion to quash Depo- sition Subpena for E.S.I. Revision of Declaration of Forensic Expert Nico Nunez. 18 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO © 00 3 Oo O t A W w ND = M O R OD N DN OD N RN DN OD N DN H E e e e e H H 0 J OH O l x Ww W N N R O O WOW gy O o h Ww ND OO Description of activity Hours Completion Opps fon to Del Toro Motion to quash and 2.2 Preparation of Declaration of Joseph DD. Curd in opposition to motion Total hours: 15.50 Total expense incurred at $345/hour: $5,347.50 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. December 19, 2018, at Long Beach, Cali- fornia > - Joseph D. Curd F:\Clients\NewC\Cent\Motns\Quash SDT\Oppos MTQ.docx 19 OPPOSITION TO MOTION TO QUASH DEPOSITION SUBPOENA SERVED ON DEL TORO CRATON + SWITZER « TOKAR CurtR. Craton, Esq. ATTORNEYS AT LAW 100 Oceangate, Suite 1200 ccraton@ cratonlaw.com Long Beach, California 90802-4324 Shannon C. Switzer, Esq. Tel (562) 628-5533 sswitzer@ cratonlaw.com Fax (562) 490-8604 www.cratonlaw.com Robert E. Tokar, Esq. rtokar@ cratonlaw.com March 1, 2018 Marielena Del Toro Email: vindeltoro@hotmail.com 5949 Faculty Avenue First-Class, U.S. Mail Lakewood, CA 90712 Re: Centennial Properties Ref: Demand to Preserve Evidence Dear Ms. Del Toro: My law firm represents Centennial Properties and its principal, Mr. Curt Newnes. Inasmuch as you were an employee of Centennial from 1998 through 2016, you might recall that Centennial was the property manager for Mr. Gary DeLong and for Ms. Regina Cole during most if not all of the years of your employment. Please be advised that Mr. DeLong recently commenced legal action against Centennial and has threatened a forensic audit of Centennial’s books and records for the entirety of their business relationship, which spanned 17+ years. Given your employment at Centennial during that period of time, you may become a witness to facts, events, and circumstances concerning Centennial’s defense of Mr. DeLong’s threatened claims. Also, when you left your employment with Centennial, you signed a “Confidential Settlement Agreement and Release of All Claims” dated Exhibit A Page 2 8/24/2016, under which Centennial paid you a very generous severance package. Paragraphs 15 that agreement stated as follows: “15. DEL TORO acknowledges that during her employment she has had access to confidential, sensitive and private information regarding CENTENNIAL, its employees and clients, including potential trade secrets. DEL TORO agrees to return to CENTENNIAL by August 31, 2016 any information of this nature that she has removed from the offices of CENTENNIAL or its computer systems, including any copies of the same, to delete forever any such information that she has stored on electronic devices other than ones belonging to CENTENNIAL, and to protect all such information from improper dissemination at all times” Furthermore, paragraph 16 of the agreement states as follows: “16. DEL TORO agrees, on behalf of herself and her representatives and agents, that she will not make any disparaging or defamatory comments concerning CENTENNIAL, its employees, or agents, methods of doing business or employment practices. DEL TORO agrees not to encourage or assist in any litigation or administrative proceedings against any Releasee, except as compelled by law.” Given your prior access to Centennial’s confidential information, you might become a witness to facts, events, and circumstances reflected in Centennial’s records, which may be the subject of discovery in Mr. DeLong’s legal action against Centennial. While you might not be a target defendant in these legal proceedings, I am writing to explain what you must do to preserve evidence that could be discoverable or admissible in the legal action. Therefore, this letter notifies you not to destroy, conceal, or alter (i.e., you must preserve) any books, records, or other documentation, or any information stored in electronic form or generated by your computer systems or electronic devices (collectively “records”), pertaining to any of the following persons: Gary DeLong, Centennial Properties, Curt Newnes, and any of your agents, employees, or independent contractors connected with these persons. The issues in dispute appear to involve several third parties concerning tax and non-tax issues including, without limitation: the United States Internal Revenue Service, the California Franchise Tax Board, Farmers and Merchants Bank, Farmers and Merchants Trust Company, Sean Miller, Exhibit A Page 3 Jeffrey A. Hahn, Thylan Nguyen, STEPP Commercial, Robert Stepp, Dayna Gutmann, Todd Hawk, Ms. Regina Cole, Ms. Cole’s trust, Triqor, and Christopher Walker. Therefore, this letter also notifies you to preserve all records pertaining to those persons, and any of your agents, employees, or independent contractors connected with those persons. The documentation and information you are asked to preserve, whether electronic or non-electronic, may be relevant to legal matters among those persons, including each of you, your employers, and your agent, employees, and independent contractors, and may be unavailable from any other source. As you may know, such electronic information can easily be inadvertently destroyed, and the failure to take reasonable measures to preserve it pending the completion of discovery can result in sanctions being imposed against you. Cedars-Sinai Med. Ctr. v Superior Court (1998) 18 C4th 1; Zubulake v UBS Warburg LLC (SD NY 2003) 220 FRD 212, 216. To comply with the discovery requests that my firm’s client will make if litigation ensues, you will need to provide electronic evidence in its native format. You also will need to provide electronic documents, along with the metadata or information about data that is contained in those electronic documents. Even when a paper copy of a document or file exists, and which you are obligated to preserve, my firm’s client also will seek the documents or files in their electronic format so that we obtain and discover the information in the metadata. Discovery requests will include certain data on the network servers, hard drives, removable disks, smartphones, web-based or cloud- based environments, backup files, and any other electronic media or devices of the above-referenced persons, and will include data not usually available to the ordinary computer user, such as deleted files and file fragments. Thus, the electronic data and the storage devices in which they are kept that you, your employers, and their agents, employees, and independent contractors are obligated to maintain and preserve during the pendency of discovery include all the following data and devices: 1. Electronic files, including deleted files and file fragments, stored in machine-readable format on magnetic, optical, or other storage media, including hard drives or floppy disks in your desktop computers, laptop computers, home personal computers, and the backup media used for each; Exhibit A Page 4 a © 11. 12. 13. 14. 15. 16. 17. 18. E-mail, text messages, social media posts and/or feeds, both sent and received, internally or externally; Telephone files and logs such as voicemail and universal mobile telecommunications system (UMTS) data; Word processing files, including drafts and revisions; Spreadsheets, including drafts and revisions; Databases; Electronic files in portable storage devices, such as floppy disks, compact disks, digital video disks, ZIP drives, thumb drives, or pen drives; Computer-aided design files; Presentation data or slide shows, such as PowerPoint; Graphs, charts, and other data produced by project management software; Data generated by calendaring, task management, and personal information management software, such as Microsoft Outlook; Data created with the use of tablet, personal digital assistant, or smartphone; Data created with the use of document management software; Data created with the use of paper and electronic mail logging and routing software; Internet and web-browser-generated history files, caches, and “cookies” files generated at the workstation of each employee in your employ and on all backup storage media; Logs of network use by your employees, whether kept in paper or electronic format; Copies of your backup tapes and the software necessary to reconstruct the data on those tapes on each personal computer or workstation and network server in your control and custody; Electronic information in copiers, fax machines, and printers. Please be advised that your receipt of this letter obligates you and your employer, or if you are an employer, then you and your employees, to notify all agents, employees, and independent contractors to the extent necessary to place a litigation hold on all records, media, devices, data, and other information described in this letter. Last, this letter is not a waiver of any rights or remedies to which this firm’s client may be entitled at law or in equity, all of which are expressly reserved. Exhibit A Page 5 Thank you for your attention to this letter. Please be guided accordingly. Sincerely, Craton, Switzer & Tokar LLP Curt R. Craton CRC/sm Cc: Curt Newnes [email] Joseph Curd, attorney at law [email] F:\Clients\NewC\Cent\Cor\cor opp 2018-3-01 - preserv demand [Toro].docx Exhibit A
