Caron Vranish vs Raytheon Company

Case Number

20CV00645

Case Type

Hearing Date / Time

Fri, 12/08/2023 - 10:00

Nature of Proceedings

2 Motions to Compel/RFP/IME; Motions for Issue/Evidence/Monetary Sanctions

Tentative Ruling

(1)       For the reasons set forth herein, the motion of plaintiff Caron Vranish to compel production of documents at deposition and for sanctions is granted in part and denied in part. As further explained herein, on or before December 22, 2023, defendant Raytheon Company shall serve on counsel for plaintiff the verified declaration(s) of one or more persons with personal knowledge of the search for responsive documents stating affirmatively that a reasonable and diligent search has been conducted as to the specific category of documents for which a further response is required, and that the documents produced as identified to each specific category of documents consist of all documents responsive to the request except: (i) documents withheld on the grounds of privilege and identified in a concurrently produced privilege log; and (ii) documents which are or were known or believed to exist but which are not now in the possession, custody, or control of Raytheon and for which the information required by Code of Civil Procedure section 2031.230 is provided. For those categories where Raytheon has previously identified that no responsive documents have ever existed, the declaration shall state facts explaining why no responsive documents have ever existed. Raytheon shall concurrently produce all responsive documents not previously produced necessary to make the declarations true and correct. Vranish shall be entitled to take a further PMK deposition with respect to the subject of all newly produced documents (including those produced concurrently with the opposition to this motion), and to take the deposition(s) of the persons executing the declaration(s) required by this order as to the contents of the declaration(s). The court awards monetary sanctions in favor of plaintiff Vranish and against defendant Raytheon and its counsel Gordon Rees Scully Mansukhani, LLP, jointly and severally, in the amount of $8,510.00, to be paid to counsel for plaintiff Vranish on or before December 29, 2023.

(2)       For the reasons set forth herein, the motion of defendant Raytheon to compel the independent mental examination of plaintiff Vranish is granted pursuant to the terms of the stipulation proposed by Raytheon attached as exhibit H to the motion except as to the date of the examination. On or before December 13, 2024, counsel for Raytheon shall provide to counsel for Vranish at least three dates for examination to occur on a court day prior to or on January 12, 2024, with dates occurring in at least two different weeks. Within three court days of the provision of such dates, counsel for Vranish shall confirm, in writing by electronic service, on which of these dates the examination will occur. If Vranish fails to confirm a selection from among these dates by the time of Raytheon’s notice, Raytheon may serve, by electronic service, notice of such examination for one of these dates (not earlier than December 27, 2023) at least five court days prior to the date of examination. Counsel may agree in writing to a different date or terms of the examination.

(3)       For the reasons set forth herein, the motion of plaintiff Vranish for issue, evidence, or monetary sanctions in connection with Raytheon’s motion to compel the independent mental examination of plaintiff is granted in part. The court awards monetary sanctions in favor of plaintiff Vranish and against defendant Raytheon and its counsel Gordon Rees Scully Mansukhani, LLP, jointly and severally, in the amount of $2,665.00. In all other respects, the motion is denied.

(4)       As set forth herein, the hearing on the motion of plaintiff Vranish for issue, evidence, or monetary sanctions in connection with plaintiff’s requests for production of documents Nos. 104 and 105, and the court’s orders thereon, is continued to January 12, 2024. The parties shall file and serve their supplemental memoranda as discussed herein on or before December 20, 2023; the parties shall file and serve a reply to the supplemental memoranda on or before January 4, 2024.

Background:

Plaintiff Caron Vranish asserts in her second amended complaint causes of action against defendant Raytheon Company (Raytheon) for violation of the California Fair Housing and Employment Act (FEHA) (Gov. Code, § 12900 et seq.) and other statutes, alleging, among other things, that she was not paid as much as other comparable employees on account of her age and gender.

On July 29, 2021, Vranish served on Raytheon plaintiff’s requests for production of documents, set two (RFP2). (Secrest decl. re Issue Sanctions, ¶ 5 & exhibit A.)

On November 17, 2021, Vranish timely filed a motion to compel further responses to the RFP2 and for an award of monetary sanctions. (Secrest decl. re Issue Sanctions, ¶ 7.) On February 25, 2022, the court granted plaintiff’s motion to compel, ordering further responses and production of documents. The court also awarded monetary sanctions against Raytheon.

On July 7, 2022, Vranish filed plaintiffs’ first motion for issue, evidence, or terminating sanctions for failure to comply with the February 25, 2022, order. (Secrest decl. re Issue Sanctions, ¶ 15.) The court granted the motion in part on September 16, 2022, again ordering further responses and production of documents.

On November 2, 2023, Vranish filed her second motion for issue, evidence, or terminating sanctions for failure to comply with the February 15, 2022, and September 16, 2022, orders (Issue Sanctions Motion). The motion is opposed by Raytheon

Meanwhile, depositions of Raytheon’s persons most knowledgeable were conducted in July, August, September, and November 2023, pursuant to Vranish’s fifth amended notice of deposition (NoD5). (Seacrest decl. re Motion to Compel [MTC], ¶¶ 3-6 & exhibit A; Shao decl. re MTC, ¶¶ 4-6.) Raytheon objected to production of particular documents or has otherwise not produced documents that Vranish asserts are responsive and subject to production. (Id., ¶ 9.) As a consequence of this dispute, Vranish filed her MTC on November 3, 2023. The motion is opposed by Raytheon. Each party requests an award of monetary sanctions against the other.

On November 6, 2023, Raytheon filed an ex parte application to shorten time and to specially set its motion to compel an independent mental examination of Vranish.

 

On November 7, 2023, the ex parte application was granted and Raytheon filed its motion (IME Motion). The IME Motion, as filed on November 7, included in the public record confidential information and records of Vranish that were subject to the protective order entered by the court on March 23, 2021.

On November 13, 2023, Vranish filed an ex parte application to shorten time on her motion for an order sealing documents and to allow her opposition to the IME Motion to include a request for sanction. The court entered its order granting that application that day.

Also on November 13, 2023, Raytheon filed its ex parte application to withdraw from the public record and to seal its declaration in support of the IME Motion, including the confidential information and records.

On November 16, 2023, the court granted Raytheon’s application and issued its order filing the confidential information and records under seal. Also on November 16, Vranish filed her opposition to the IME Motion as a combined motion for issue, evidence, or monetary sanctions (IME Sanctions).

Trial is now set for a date certain of February 5, 2024.

Analysis:

(1)       Vranish Motion to Compel Documents at Deposition

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).)

There are 18 categories of documents raised by Vranish in her motion that are the subject of this dispute. On November 16, 2023, Raytheon provided a written response to requests for production (RFP) as to the same document categories requested in the NoD5. (Shao decl. re MTC, ¶ 7 & exhibit A.) Raytheon also made a supplemental production of documents which addresses or moots a number of disputed requests. (Reply, at pp. 2-5.) (Note: For ease of writing, the court refers to the RFP numbers as to the disputed requests for documents, which is how they are numbered in the written response provided by Raytheon. The document categories are identified in Vranish’s reply on pages 2 to 5.)

Vranish reports that Vranish’s categories 1, 3, 4, 5, 13, 14, 15 (RFP Nos. 113, 115, 118, 119, 130, 131, 132) are no longer at issue because responsive documents have been received. With respect to category 6 (RFP No. 119), Vranish identifies that responsive documents had previously been received. No further response is required as to these categories of documents.

Vranish has shown good cause for the production of the documents at issue in this motion. (See Code Civ. Proc., § 2025.450, subd. (b)(1).)

With respect to category 2 (RFP No. 114), the requested documents are: “RVS finance employee, Joel Weixel’s, email complaint to RVS HR Brian Vander Mayabout Elizabeth Church’s behavior (email was sent ~ April 25, 2019).”

The supplemental response to category 2 is: “Responding Party objects to this request on the ground that it is overly broad as to time and scope. Responding Party objects to this request on the grounds it is vague and ambiguous, as well as compound. Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this request to the extent it seeks information which constitutes trade secrets, proprietary, or other confidential commercial information. Responding Party objects to this request to the extent that it seeks information and/or documents that are protected by the attorney-client privilege, the work-product doctrine, and/or other applicable privileges. Responding Party objects to the request to the extent it seeks to violate third parties’ right to privacy. Responding Party invites Plaintiff to meet and confer as to this request to discuss, among other things, the relevance of this purported email. Subject to and without waiving the foregoing objections, Responding Party responds, as follows: As of the date of the execution of these supplemental responses, Responding Party is unable to comply with this request as the subject email from April 2019 is no longer within Responding Party’s possession, custody, or control, but Responding Party continues to undertake efforts to obtain said email. Discovery and investigation continue.”

The court overrules all objections except as to privilege. However, on the face of this response, the email is not being withheld on the grounds of privilege. Although this response is not compliant for a written response to a request for production of documents because it fails to state either that a diligent search had been undertaken or complete information regarding why it is not being produced (see Code Civ. Proc., § 2031.230), the response is sufficient to avoid an order to produce the document at a deposition at this time. The court cannot order production of a document not available to the deponent. Vranish is otherwise entitled to inquire into the nature of the search conducted and why it is not in the possession, custody, or control of the deponent. A further response will be required to ensure completeness of the production.

With respect to category 7 (second half of RFP No. 124), the requested documents are: “Raytheon policy or any formal documentation that is used for salary assessment guidelines, specifically discussing education, experience, gender/race goals, and/or salary by geographic region.”

The supplemental response to category 7 is: “Responding Party will produce all responsive documents within its possession, custody, or control responsive to this request to the extent such documents exist as to the first part of Request No. 124. As to Part 2 of the compound Request No. 124, Responding Party directs Plaintiff to documents previously produced, including RAYTHEON-Vranish 002855- 002867, RAYTHEON-Vranish 002958- 002983, and documents concurrently produced including RAYTHEON-Vranish 003577.”

In reply, Vranish argues: “Received some more, but not all (Part 2) on 11/16/2023 Additional Bates doc 3577 provided. The previously provided docs are salary structures by salary grade (bates 2855-2867) and explain the Performance Development rating system (bates 2958-2983). The new (just received 11/16/2023) bates 3577 is the salary grade plan for 2018. Nowhere has Defendant provided the requested ‘Raytheon policy or any formal documentation that is used for salary assessment guidelines, specifically discussing education, experience, gender/race goals, and/or salary by geographic region.’ ” (Bolding omitted.)

The terms of the response qualify the response as providing all responsive documents within the possession, custody, or control of Raytheon to the extent such documents exist. The production of an additional document, which documents were asserted not to exist, questions whether a diligent search has been conducted. At the same time, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to category 8 (RFP No. 125), the requested documents are: “All DOCUMENTS reflecting how much professional experience (in years) is added to actual experience if the degree level is not a requirement of the position (as noted on the Job Requisition), for an applicant with the following: Associate’s Degree, Bachelor’s Degree, Master’s Degree.”

The supplemental response is: “Subject to the foregoing objections and without waiver of same, Responding Party responds as follows: After a diligent search and reasonably inquiry, Responding Party is unable to comply with this request as documents responsive to this request are not within Responding Party’s possession, custody, or control.”

As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to category 9 (RFP No. 126), the requested documents are: “2019 ISRS Finance Organization Leadership Chart with CFO Chris English as the Director/Leader.”

The supplemental response is: “Plaintiff previously requested these purported documents in RFP Nos. 3 and 11. Raytheon asserted objections and Plaintiff, thereafter, failed to timely and properly move to compel a further response to Nos. 3 and 11. Plaintiff is thus precluded from further seeking these purported documents. (Professional Career Colleges, Magna Institute, Inc. v. Superior Court (1989) 207 Cal.App.3d 490, 494 [holding that a re-propounded interrogatory whose subject matter was encompassed by an interrogatory propounded previously but was not the subject of a timely motion to compel further response was improper].) Nevertheless, Responding Party has previously produced all documents responsive to this request. See RAYTHEON-Vranish 388, 390. Other than RAYTHEON-Vranish 388, 390, no additional organizational chart exists in this timeframe with leader Chris English.”

In reply, Vranish argues: “Not Received for 2019. Defendant states it has provided everything since they previously provided Chris English Org Charts for 2017 and 2018, but not for 2019 as this item requests. Previously provided Bates 388 and 389 are English 2017 and English 2018. Their referenced Bates 390 [i]s not an English Org Chart at all, as it is a Dodson Org Chart for Dec. 2019. Chris English retired in April 2019 and from Jan 2019 – April 2019 there should be a different Org Chart for English than his 2018 chart since in 2018. Plaintiff worked for English (so was on his Org chart) and Plaintiff did not work for him in 2019.” (Bolding omitted.)

The objection as to re-propounded discovery is overruled. For ease of discussion the court is following the parties’ approach and discussing these matters as responses to RFPs, but the motion is to compel production at a deposition, which is a different procedure. (Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997.) As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to category 10 (RFP No. 127), the requested documents are: “2019 ISRS Finance Organization Leadership Chart with CFO Dahlem Dodson as the

Director/Leader.”

The original response is: “Responding Party has produced all responsive, non-privileged documents within its possession, custody, or control responsive to this request. See RAYTHEON-Vranish 000389, 001323.”

The supplemental response is: “Subject to and without waiving the foregoing objections, Responding Party responds, as follows: Responding Party has previously produced Organization Charts with CFO Dahlem Dodson as the Director/Leader. See RAYTHEON-Vranish 389, which is the applicable chart for December 2019.”

In reply, Vranish argues: “Not Received for 2019. Defendant states it has provided everything since it previously provided Dahlem Dodson Org Charts for Dec. 2019 - Jan. 2021 with Bates 390 and 1323 (two different formats covering the same time period). Defendant has not provided the requested 2019 Org Chart from approximately April 2019, when Dodson took over for the retired English, through Nov. 2019.” (Bolding omitted.)

As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to category 11 (RFP No. 128), the requested documents are: “The following Finance Job Requisitions:

            “a.       ISRS — Replacement G12 or G13 requisition for Curt Richards (after he retired in early 2019) for the Radar Sensor Systems (RSS) Finance Leadership role. This is the requisition that Michael Burns would have applied to when he was selected as the Finance leader for RSS.

            “b.       ISRS — Replacement G12 requisition for Caron Vranish (after she retired in January 2021) for the Raytheon Vision Systems (RVS) Finance Leadership role. This is the requisition that Katie Mallory would have applied to when she was selected as the Finance leader for RVS.

            “c.        The 2017 (or 2016) A07/G12 job requisition for the AST Sr. Finance Manager role that Robert Waffle applied to and was hired for.

            “d.       The replacement G12 requisition for Robert Waffle (after he left in late Sept. 2018) for the AST Finance Leadership role.

            “e.        ISRS 2017 Job Requisition #101405BR for A07/G12 Sr. Finance Manager for Special Mission Aircraft (SMA) that Clete Mackey applied to/ was promoted into.

            “f.        2011 Job Requisition #13799BR for A07/G12 Sr. Finance Manager that Jon Prince applied to/was hired for.

            “g.       ISRS 2017 Job Requisition #98737BR for A07/G12 Sr. Finance Manager for Airborne Multi-Mode Radar (AMR) that Jason Grief applied to/was promoted into.

            “h.       2022 EWS/SPS (Goleta, CA site) Job Requisition for G12/M6 replacement req. for retired finance leader Pamela Duggan. This was the req that Evan Haus applied to/was promoted into in Spring 2022.

            “i.        The early 2012 A07/G12 Job Requisition that Tim Koetje applied for and was promoted into.

            “j.        Any other 2016 – 2020 ISRS Finance Manager Job Requisition for A06/G11, A07/G12 or A08/G13.”

The original response is: “Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request on the grounds it is overbroad as to time and scope. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to the extent the request seeks any information protected by the attorney-client privilege or the work product doctrine. Responding Party further objects to this request on the grounds it seeks confidential and proprietary information. Responding Party further objects to this request on the grounds it seeks to violate third parties’ rights to privacy. Subject to the foregoing objections and without waiver of same, Responding Party responds as follows: Responding Party will produce all nonprivileged responsive documents in its possession, custody, or control.”

The supplemental response is: “Subject to the foregoing objections and without waiver of same, Responding Party responds as follows: Responding Party has produced all responsive documents to this request in its possession, custody, or control, with the exception of subparts (a) and (h), of which were directed moves and thus job requisitions never existed.”

In reply, Vranish argues: “Response received on 11/16/2023, even though no documents received since this is the first time Defendant has explained that subparts (a) and (h) have no responsive docs since they were directed moves. (When a move is ‘directed’ it means the person is just placed in the role vs. applying to a job requisition and competing for the position).” (Bolding omitted.)

As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to category 12 (RFP No. 129), the documents requested are: “All DOCUMENTS reflecting and/or consisting of communication associated with ISRS Finance management A07/G12 positions that were downgraded after an employee left due to retirement during Q4 2016 - 2017. This should be ONLY for positions that remained identical to their prior role. Roles that were downgraded in duties as well as salary grade level should not be included. Additionally, provide/generate a list showing the Prior Salary Grade Level, Retiring Employee’s name, New (Downgraded) Salary Grade Level, New/Incoming Employee’s name. Example:

            “i.        A07/G12, Michael Sherman retired 12/31/2016 [at] A06/G11, Caron Vranish hired 1/1/2017. No change to role/position/duties.”

The original response is: “Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request on the grounds it is overbroad as to time and scope. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to the extent the request seeks any information protected by the attorney-client privilege or the work product doctrine. Responding Party further objects to this request on the grounds it seeks confidential and proprietary information. Responding Party further objects to this request on the grounds it seeks to violate third parties' rights to privacy. Subject to the foregoing objections and without waiver of same, Responding Party responds as follows: Responding Party will produce all nonprivileged responsive documents in its possession, custody, or control.”

The supplemental response is: “Subject to the foregoing objections and without waiver of same, Responding Party responds as follows: Responding Party has previously produced all responsive documents within its possession, custody, or control responsive to this request, and directs Plaintiff to documents previously produced and bates labeled RAYTHEON-Vranish 003130 – 003133.”

In reply, Vranish argues: “Not Received – What was previously provided is a 2016 powerpoint presentation which appears to be trying to justify keeping the RVS Fin Mgr role at A07/G12 and not downgrade it to A06/G11 upon Mr. Sherman’s retirement end 2016. This is not responsive because we asked for documents for any/all downgraded positions from 2016-2020, including the RVS role that WAS actually downgraded in 11/2016 to A06/G11. Defendant HR Director Natalie Laurant testified that the document required to downgrade a position is a Job Analysis (JA) form. Laurant testified a JA should exist for the 11/2016 RVS role downgrade, but that she can’t locate it.” (Bolding omitted.)

The objections except as to privilege are overruled. As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to category 16 (RFP No. 134), the documents requested are: “All DOCUMENTS during 2017-2021 relied on in making the compensation decisions for the following individuals: Caron Vranish, Curt Richards, Jon Prince, Jason Grief, Robert Waffle, Sam Luna, Clete Mackey, Hyde Robinson, Ted Smith, Tim Koetje, Michael Burns, Evan Haus and Katherine Mallory].”

The original response is: “Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request on the grounds it is overbroad as to time and scope. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to the extent the request seeks any information protected by the attorney-client privilege or the work product doctrine. Responding Party further objects to this request on the grounds it seeks confidential and proprietary information. Responding Party further objects to this request on the grounds it seeks to violate third parties’ rights to privacy. Subject to the foregoing objections and without waiver of same, Responding Party responds as follows: Responding Party will produce all nonprivileged responsive documents in its possession, custody, or control.”

The supplemental response is: “Subject to and without waiving the foregoing, Responding Party responds, as follows: Responding Party produced HR SPEED Sheets for all individuals listed, with the exception of Katherine Mallory (Plaintiff has not previously requested her HR SPEED Sheet) which would contain information responsive to this request. See RAYTHEON-Vranish 192-244, 424-446, 862-932, 447-509, 1223-1321, 689-861, 510-614, 933-958, 615-688, 2824-2853, and 1140-1222. Responding Party further directs Plaintiff to RAYTHEON —Vranish 3477-3492.”

In reply, Vranish argues: “Received on 11/16/2023 for Katherine Mallory with Bates 3477-3492. Not Received for Evan Haus since his updated SPEED sheet reflecting his March 2022 promotion to G12/M6 was just received on 11/16/2023 (Depo Notice 4), and so one is able to see that it does not contain any Compensation Analysis for his new level. Since it was a ‘directed move’ Defendant they did not post a Job Requisition, but there still should be a Compensation Analysis to show how they came up with his starting salary of $208.0K for his first year as a G12/M6.” (Bolding omitted)

The objections except as to privilege are overruled. It is unclear from the response whether the response is complete. As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

With respect to categories 17 and 18 (RFP No. 136), the documents requested are: “All ISRS Finance 2016-2021 Compensation Justification Job Analysis forms for Evaluation of positions (up or down) for salary grade levels A06/G11 - A08/G13, specifically (but not limited to) the following:

            “i.        ISRS Raytheon Vision Systems (RVS) Finance Manager role downgrade from A07/G12 to A06/G11 in Fall 2016 (The position Plaintiff assumed in Jan. 2017).

            “ii.       ISRS Radar Sensor Systems (RSS) Finance Manager role upgrade from G12 to G13 in 2019 (when Michael Burns was promoted in this role to G13)

            “iii.      Any ISRS Finance Manager (A06/G11-A08/G13) Evaluation of position forms that downgraded a position WITHOUT change to responsibility in the role.”

The original response is: “Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request on the grounds it is overbroad as to time and scope. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to the extent the request seeks any information protected by the attorney-client privilege or the work product doctrine. Responding Party further objects to this request on the grounds it seeks confidential and proprietary information. Responding Party further objects to this request on the grounds it seeks to violate third parties’ rights to privacy. Subject to the foregoing objections and without

waiver of same, Responding Party responds as follows: Responding Party will produce all nonprivileged responsive documents in its possession, custody, or control.”

The supplemental response is: “Subject to the foregoing objections, and without waiver of same, Responding Party responds as follows: The Compensation Justification ‘C Vranish Job Analysis Form’ for 2017 RVS-AST is contained within Plaintiff’s SPEED sheet, previously produced, and bates labeled RAYTHEON-Vranish 2446-2664. The specific ‘C Vranish Job Analysis Form’ for 2017 RVSAST

is bates labeled RAYTHEON-Vranish 2484-2497. There are no responsive documents for ‘ISRS Radar Sensor Systems (RSS) Finance Manager role upgrade from G12 to G13 in 2019 (when Michael Burns was promoted in this role to G13)’ as this was a directed move and no job requisition ever existed. Responding Party directs Plaintiff to RAYTHEON-Vranish 2484-2497 in response to ‘Any ISRS Finance Manager (A06/G11-A08/G13) Evaluation of position forms that downgraded a position WITHOUT change to responsibility in the role.’ ”

In reply Vranish argues as to category 17: “Not Received for 25(i). Defendant states the previously provided Bates 2446-2664 Vranish SPEED Sheet is responsive, but it does NOT contain the Job Analysis Downgrading the RVS role from A07/G12 to A06/G11 for the 2017 position. It only has Compensation Justification for Ms. Vranish’s 2017 A06/G11 role as RVS Finance Mgr. There is no Job Analysis form provided to justify the DOWNGRADE. Ms. Laurant testified that per policy a JA form should exist for the Nov. 2016 RVS role since the level was Downgraded. She was not able to find it. This is not responsive.” (Bolding omitted.)

In reply Vranish argues as to category 18: “Response Received on 11/16/2023 for 25(ii) even though no document produced. Defendant states that this was a ‘directed move’ so there is no job requisition or JA. Not Received for 25(iii), but Defendant states it has responded with the previously provided Bates 2484-2497. However, this doc is NOT a Downgraded position WITHOUT change to responsibility, as requested. It is just the opposite as it is the Job Analysis form to justify the 2018 UPGRADE in Plaintiff’s RVS role from G11 to G12 WITH a significant change to responsibility (added AST and RayD).” (Bolding omitted.)

The objections except as to privilege are overruled. It is unclear from the response whether the response is complete. As with the other categories discussed above, the court cannot compel production of documents that are not available or do not exist. A further response will be required to ensure completeness of the production.

The recurring issue of these responses is whether the responses as given are complete. In all cases, completeness means that a reasonable and diligent search has been undertaken to find all responsive documents. While Vranish may have reason to believe that further responsive documents should exist for a particular response, that does not mean that further responsive documents actually exist or are available for production. Also, because responses are in many cases subject to objection, it is ambiguous whether any documents have been withheld on the basis of the objection. The status of the record is insufficiently complete for the court to readily determine whether there are any more responsive documents that can be produced for the deposition. To address this issue, the court will make the following orders: Raytheon shall provide the declaration(s) of one or more persons with personal knowledge of the search for such responsive documents stating affirmatively that a reasonable and diligent search has been conducted as to the specific category of documents, and that the documents produced as identified to each specific category of documents consist of all documents responsive to the request except: (i) documents withheld on the grounds of privilege and identified in a concurrently produced privilege log; and (ii) documents which are or were known or believed to exist but which are not now in the possession, custody, or control of Raytheon and for which the information required by Code of Civil Procedure section 2031.230 is provided. For those categories where Raytheon has previously identified that no responsive documents have ever existed, the declaration shall state facts explaining why no responsive documents have ever existed. Raytheon shall concurrently produce all responsive documents not previously produced necessary to make the declarations true and correct. Vranish shall be entitled to take a further PMK deposition with respect to the subject of all newly produced documents (including those produced concurrently with the opposition to this motion), and to take the deposition(s) of the persons executing the declaration(s) required by this order as to the contents of the declaration(s).

Each of the parties request monetary sanctions against the other in connection with this motion. “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.480, subd. (j).) “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

The court finds that Raytheon has unsuccessfully opposed this motion and that the court does not find that Raytheon acted with substantial justification. “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.) The notice of motion and accompanying memorandum and declaration request monetary sanctions in the amount of $4,610.00 (7 hours of attorney time at $650 per hour plus $60 filing fee). (Secrest decl. re MTC, ¶ 12; Memorandum at p. 5.) Both the memorandum and the declaration anticipate that further time would be required for the reply and in preparation for the hearing on the motion. In reply, Vranish requests an additional $3,900, consisting of 1.5 hours reviewing the opposition, 3.5 hours drafting the reply, and 1 hour anticipated preparing for the hearing. (Secrest reply decl. re MTC, ¶ 5.) The court finds this request is reasonable and will award monetary sanctions in the total amount of $8,510.00.

(2)       Raytheon’s IME Motion and Vranish’s Motion for Sanctions

“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.” (Code Civ. Proc., § 2032.310, subd. (a).)

“A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).)

“The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (Code Civ. Proc., § 2032.320, subd. (a).)

Raytheon has presented evidence in support of its motion showing good cause for the independent mental examination (IME) sought as set forth in the proposed (but not accepted) stipulation. (Shao decl. re IME Motion, ¶¶ 2-4, 12 & exhibit H.) Only a date needs to be addressed as the initial date given of November 27 is no longer an option. Raytheon has shown that Vranish’s mental condition is at issue and Vranish has not made a stipulation under section 2032.320, subdivision (c).

Vranish has not substantively opposed this motion. Instead, Vranish seeks to preclude the IME as a sanction for Raytheon having initially filed Vranish’s confidential information and records in the public record as part of Raytheon’s IME Motion (but not as part of any ex parte application).

There is no substantial question that filing the documents identified as confidential under the March 23, 2021, Protective Order (Protective Order) was a violation of that order. “Confidential Information shall be held in confidence by each qualified recipient to whom it is disclosed, shall be used only for purposes of this action, shall not be used for any business purpose, and shall not be disclosed to any person who is not a qualified recipient. All produced Confidential Information shall be carefully maintained so as to preclude access by persons who are not qualified recipients.” (Protective Order, ¶ 5.)

“Where any Confidential Materials, or Information derived from Confidential Materials, is included in any motion or other proceeding governed by California Rules of Court, Rules 2.550 and 2.551, the party shall follow those rules. With respect to discovery motions or other proceedings not governed by California Rules of Court, Rules 2.550 and 2.551, the following shall apply: If Confidential Materials or Information derived from Confidential Materials are submitted to or otherwise disclosed to the Court in connection with discovery motions and proceedings, the same shall be separately filed under seal with the clerk of the Court in an envelope marked: ‘CONFIDENTIAL - FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED.’ If the Court denies the request to file the Confidential Materials under seal, the court’s order declining to accept the Confidential Materials under seal shall not prejudice any party’s ability to use such Confidential Materials in support of a motion or application before the Court. Should need arise during any hearing before the Court for any party to disclose Confidential Materials, it may do so only in camera or after other appropriate safeguards are provided by the Court.” (Protective Order, ¶ 25.)

Raytheon argues that the Protective Order is not a “court order to provide discovery” and so not a basis for the qualitative sanctions sought by the sanctions motion. (See Code Civ. Proc., § 2023.010, subd. (g).) The court disagrees that such sanctions are not available. The Protective Order is a discovery order modifying and limiting how information and documents are provided through discovery. (See Code Civ. Proc., §§ 2016.030, 2017.020, subd. (a), 2019.010, 2019.030, subd. (b), 2025.420, subd. (b), 2030.090, subd. (b), 2031.060, subd. (b).) Significantly, section 2023.010 introduces its list of discovery misuses by stating: “Misuses of the discovery process include, but are not limited to, the following: ….” (See also Victor Valley Union High School District v. Superior Court of San Bernardino County (2023) 91 Cal.App.5th 1121, 1139, fn. 4 [Section 2023.010 provides a ‘nonexhaustive list’ of conduct that constitutes a ‘ “misuse of the discovery process.” ’ ”].) Where the court has issued an order, such as the Protective Order, limiting the use of information and documents acquired through the discovery process, there should be no doubt that intentional disobedience to that order would constitute a “misuse of the discovery process” that would subject such a party to the full range of sanctions available for intentional disobedience to a court order.

“ ‘Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply ... and (2) the failure must be wilful....’ [Citation.]” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Although the full range of sanctions are available, the court does not find that Raytheon’s filing of these materials constituted a willful violation of the Protective Order. Raytheon provides evidence that the initial public filing was inadvertent. (Shao decl. re IME Sanctions, ¶ 3-6.) This evidence is consistent with Raytheon promptly seeking an ex parte application to remove the confidential information and documents from the public record and file them under seal. The confidential information and documents were in the public record only for a few days and there is no evidence of prejudice from this disclosure apart from the attorney fees required to correct this negligent mistake.

Under all of the circumstances here, and regardless of whether a willful violation or mere disobedience of the Protective Order is required, the court finds that the sanction sought here is inappropriate to Raytheon’s failure. The court will instead award monetary sanctions to compensate for the attorney time necessary to correct this failure. Based upon the evidence presented, the court finds that 4.1 hours of attorney time is reasonable and attributed to this failure. (See Secrest decl. re IME Sanctions, ¶¶ 5-16.) At counsel’s reasonable rate of $650 per hour, the total amount of sanctions is $2,665.00. All requests for sanctions by Raytheon will be denied.

Because the court will deny the requested sanction of precluding the IME and the motion otherwise establishes good cause for the IME, the court will grant Raytheon’s motion to compel an IME. While the court will provide a mechanism for the selection of a date for the IME, the parties may in writing agree to a different date or different terms for the examination, but the failure to accomplish the IME sufficiently in advance of the currently set date certain for trial will not, absent extraordinary circumstances, be a basis for a continuance of trial.

(3)       Vranish Motion for Issue and Other Sanctions

The two RFP2 requests at issue in this motion are RFP2 Nos. 104 and 105.

RFP2 No. 104 is: “All DOCUMENTS reflecting or consisting of complaints about workplace behavior of RVS GM Michael Norman by other RAYTHEON employees (other than Plaintiff), from April 2020 to the present date, including all DOCUMENTS reflecting the response, if any, by RAYTHEON, such as investigative materials, emails, reports, notes, interviews, investigatory conclusions, and all COMMUNICATIONS about such complaints and responses.”

The original response to RFP2 No. 104 is: “Responding Party objects to this request on the ground that it is overly broad as to time and scope. Responding Party objects to this request on the grounds it is vague and ambiguous, as well as compound. Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this request to the extent it seeks information which constitutes trade secrets, proprietary, or other confidential commercial information. Responding Party further objects to this request to the extent that it seeks information and/or documents that are protected by the attorney-client privilege, the work-product doctrine, and/or other applicable privileges. Responding Party further objects to the request to the extent it seeks to violate third parties’ right to privacy.”

RFP2 No. 105 is: “All DOCUMENTS reflecting or consisting of COMMUNICATIONS and notes reflecting complaints about workplace behavior of RVS GM Michael Norman from April 2020 to the present date, including, but not limited to, COMMUNICATIONS by and between RTX President Roy Azevedo, ISRS VP Barbara Borgonovi, Ethics and RAYTHEON HR representatives.”

The original response to RFP2 No. 105 is identical to the response to RFP2 No. 104.

In its February 25, 2022, order, the court overruled Raytheon’s objections to RFP2 Nos. 104 and 105 except as to privilege. (Minute Order, filed Feb. 25, 2022, at pp. 7-8.) The court made orders including:

“(1)      For the reasons set forth herein, the motion of plaintiff Caron Vranish to compel further responses to plaintiff’s request for production of documents, set two, is granted in part and denied in part. Subject to the exceptions and qualifications set forth herein, the motion is granted to require defendant Raytheon Company to serve further verified responses, without objection except as to privilege, on or before March 14, 2022, to request Nos. 96 through 105. To the extent that defendant asserts an objection on the grounds of privilege, defendant shall also serve a privilege log identifying each responsive document withheld on the ground of privilege and the request(s) for which the document is responsive, and providing sufficient additional information for the court to evaluate the claim of privilege. …

(2)       On or before March 14, 2022, defendant Raytheon shall provide notice to each of the individuals identified in request Nos. 97, 99, and 101 through 105 including: (1) a copy of plaintiff’s RFP; (2) a copy of the stipulated protective order; (3) an identification of the documents to be produced to plaintiff (also identifying any permissible redactions); and (4) a statement that the documents will be produced to plaintiff on April 1, 2022, unless prior to that date the employee files and serves a motion for a protective order seeking to prevent disclosure of specific documents. Defendant shall concurrently serve on plaintiff a declaration from a person with personal knowledge stating that this notice with all required items was timely provided.

(3)       Except as to any documents that are the subject of a timely-filed protective order or are identified as withheld on the grounds of privilege in the defendant’s privilege log, defendant Raytheon shall produce all responsive documents to request Nos. 96 through 105 on April 1, 2022.

(4) The request of plaintiff for an award of monetary sanctions is granted in favor of plaintiff Caron Vranish and against defendant Raytheon Company and its counsel, Gordon Rees Scully Mansukhani, LLP, jointly and severally, in the amount of $5,280.00, to be paid to counsel for plaintiff on or before March 14, 2022. The request of defendant for an award of monetary sanctions is denied.” (Minute Order, filed Feb. 25, 2022, at pp. 1-2.)

On March 14, 2022, Raytheon served its further response to the RFP2.

The further response to RFP2 No. 104 is: “Responding Party objects to this request on the ground that it is overly broad as to time and scope. Responding Party objects to this request on the grounds it is vague and ambiguous, as well as compound. Responding Party objects to this request on the grounds that it is unduly burdensome and harassing. Responding Party objects to this request to the extent it seeks information neither relevant to the claims or defenses on file in the present action, nor admissible, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to this request to the extent it seeks information which constitutes trade secrets, proprietary, or other confidential commercial information. Responding Party further objects to this request to the extent that it seeks information and/or documents that are protected by the attorney-client privilege, the work-product doctrine, and/or other applicable privileges. Responding Party further objects to the request to the extent that it seeks to violate third parties’ right to privacy. Subject to and without waiving the foregoing objections, Responding Party responds as follows: Responding Party will produce all documents responsive to this request that is within its possession, custody, or control. No privileged documents have been withheld but Responding

Party asserts and includes this objection in order to reserve its rights. Discovery and investigation continue.”

The further response to RFP2 No. 105 is identical to the further response to RFP2 No. 104.

In its September 16, 2022, order, the court ruled:

“Plaintiff’s motion is granted in part. Raytheon Company shall serve verified further responses to plaintiff’s request for production nos. 97, 99, 101, 102, 103, 104, and 105, without objections except as to privilege, on or before September 28, 2022, in full compliance with this ruling. To the extent Raytheon has withheld production of any document based on any improperly asserted objections, it shall produce any such document to plaintiff on or before September 28, 2022. In addition, the Court awards sanctions in favor of plaintiff against Raytheon in the amount of $5,910, payable to plaintiff’s counsel. Payment of sanctions is due by October 16, 2022.”

The court explained in its tentative ruling (adopted by reference in its Minute Order):

“In its opposition, Raytheon addresses its further production of documents but does not address the objections asserted in the further responses, or explain why it included objections in its further responses despite the court’s ruling as stated in the Minute Order. [Citation.] Raytheon therefore has not shown that it acted with substantial justification in asserting objections other than those based on privilege. [Citation.] With the exception of objections based on privilege, the court finds that Raytheon’s assertion of objections in its further responses to RFP Nos. 97, 99, 101, 102, 103, 104, and 105 violates the Minute Order. Raytheon’s violation of the court’s Minute Order warrants the imposition of sanctions, among other things, as further discussed below.” (Secrest decl. re Issue Sanctions, exhibit G, pp. 91-92.)

The court further noted that Vranish had presented evidence that responsive documents had not been produced notwithstanding the representation in the further response that all responsive documents would be produced. (Secrest decl. re Issue Sanctions, exhibit G, pp. 92-93.) The court concluded:

“Based on available information, the court cannot definitively determine whether Raytheon has withheld any documents based on improper objections, or whether Raytheon cannot comply with a request because a particular item or category does not or has never existed. The court will, therefore, order Raytheon to serve verified further responses as further discussed below to clarify and resolve any remaining issues regarding Raytheon’s further responses and production of documents. The court will also order Raytheon to produce any documents it has withheld based on any improperly asserted objection.” (Secrest decl. re Issue Sanctions, exhibit G, p. 93.)

In response to the September 16, 2022, order, Raytheon served a second further response to the RFP2 on September 28.

The second further response to RFP2 No. 104 is: “Responding Party has produced all documents responsive to this request within Responding Party’s possession, custody, or control.” The second further response to RFP2 No. 105 is identical.

According to Vranish, in the course of conducting discovery, plaintiff has acquired evidence from an independent source of emails in possession of defendants’ agents and managers responsive to RFP Nos. 104 and 105 that were not produced by Raytheon. (Secrest decl. re Issue Sanctions, ¶¶ 19-20.) In particular, Vranish points to email chains between October 12 and November 8, 2021, including Borgonovi discussing, among other things, issues with Michael Norman (the Kelly Email). (Vranish decl., ¶¶ 2-3 & exhibit A.) This email appears as responsive to RFP Nos. 104 and 105.

In opposition to the motion (which opposition does not have the required tables), Raytheon argues that it produced a number of emails and “[i]f Raytheon’s stringent search did not uncover one October 12, 2021, email from Ms. Kelly to Ms. Borgonovi, it was certainly not willful.” (Opposition, at p. 7.) Raytheon further argues that the issue or evidence sanctions sought in the motion are disproportionate to the claimed failure by Raytheon, and thus would improperly punish Raytheon and provide an evidentiary windfall to Vranish. The opposition is supported by the declaration of Raytheon counsel, attorney Erika L. Shao, which discusses the meet and confer discussions and time spent in opposing this motion. No evidence is presented as to the nature of the search for responsive documents.

In a further supplemental declaration of counsel for Vranish, attorney David S. Secrest, filed on December 1, 2023, Secrest discusses and attaches testimony of Borgonovi at her deposition on November 15, 2023. In deposition testimony, Borgonovi testified that she provided documents to counsel in response to a request and, although she does not recall specifically the Kelly Email, that it is probable that the Kelly Email was collected either off of her device or from her. (Borgonovi depo., at pp. 44-45.)

Because of the late filing of the further supplemental declaration, Raytheon has not had the opportunity to respond to this evidence. The court is troubled by the implications of Borgonovi’s testimony. Borgonovi testifies that she recognized the Kelly Email, that the Kelly Email was probably obtained from her in the course of gathering documents in response to this litigation, and that in a general sense Borgonovi recognized the subject matter of the Kelly Email (so as to make the Kelly Email responsive to the RFP2). In written verified responses to the RFP2, Raytheon confirmed that no responsive documents were withheld from production, on the grounds of privilege or otherwise. There is therefore no explanation as to why the Kelly Email was not produced. There are numerous negative inferences that the court could draw from Raytheon’s failures first to produce the Kelly Email and then to explain why it was not produced after the court’s two orders. Raytheon should be provided with the opportunity to respond to this evidence before the court reaches a conclusion.

At the same time, the court is also concerned about the scope of the issue or evidence sanctions requested by Vranish. When the court has the benefit of a full discussion of the evidence, the court may conclude that it is appropriate to draw inferences upon which the granting of issue or evidence sanctions may be appropriate.

“The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.)

A non-monetary sanction, if awarded, would not be to punish Raytheon, but to address the failure of Raytheon to make discovery as twice ordered by the court. One of the negative inferences that the court could draw is that there exist other responsive documents, including emails, that have not been produced in apparent disobedience to the court’s orders. It does not appear to the court, however, that the prejudice from the absence of further responsive documents to RFP2 Nos. 104 and 105 reach as broadly as the requested issue or evidence sanctions. The court requests further discussion from the parties of how issue or evidence sanctions, if awarded, could be more narrowly tailored so as to address the specific evidentiary gap asserted by Vranish from the disobedience to the court’s orders.

The Court will therefore continue the hearing on this motion to permit supplemental briefing to respond to the further supplemental declaration and deposition transcript and to address the scope of potential non-monetary sanctions.