Bui Simon etc. v. Angela Scott, et al

Case Number

23CV02376

Case Type

Hearing Date / Time

Wed, 10/30/2024 - 10:00

Nature of Proceedings

1) Mtn of Def to Compel Further Resp to Form Interrogatories, Set One, to Plaintiff; 2) Mtn of Def to Compel Further Resp to Req for Prod, Set One, to Plaintiff; 3) Mtn of Plaintiff to Compel Answers to Depo Questions; 4) Mtn of Defs to Seal Exhibits

Tentative Ruling

For Plaintiff Bui Simon, derivatively on behalf of Office of Angela Scott LLC:

Patricia L. Glaser, Cynthia E. Organ, Alexander R. Miller, Glaser Weil Fink Howard Jordan & Shapiro LLP

                                   

For Defendants Angela Scott, Scott Milden, and Milden, LLC: Bert H. Deixler, Patrick J. Somers, David T. Freenock, Kendall Brill & Kelly LLP

                                   

For Defendant The Office of Angela Scott, LLC: Robert B. Forouzandeh, Reicker, Pfau, Pyle & McRoy LLP

                                   

RULING

(1) For the reasons and as set forth herein, the motion of Defendant Angela Scott to compel further responses to form interrogatories, set one, is granted as to form interrogatories Nos. 2.5, 2.6, 7.2, and 9.2, and is otherwise denied. Plaintiff Bui Simon shall serve verified further responses to these form interrogatories, without objection except as to privilege and in a form complying with the Code of Civil Procedure, on or before November 13, 2024.

(2) For the reasons and as set forth herein, the motion of Defendant Angela Scott to compel further responses to requests for production of documents, set one, is granted as to requests for production Nos. 5, 9, 10, 16, 19, and 30, and is otherwise denied. Plaintiff Bui Simon shall serve verified further responses to these requests, without objection except as to privilege and in a form complying with the Code of Civil Procedure, on or before November 13, 2024. Plaintiff shall concurrently produce all documents identified as responsive and which have not previously been produced (and identify all previously or concurrently produced responsive documents to the appropriate request in the supplemental written response), except for documents withheld on the basis of privilege. As set forth herein, Plaintiff shall concurrently serve a privilege log of such documents withheld, including sufficient factual information to permit the Court and the parties to determine the application of the asserted privilege.

(3) For the reasons and as set forth herein, the motion of Plaintiff Bui Simon to compel answers to questions at deposition is granted in part and denied in part. The motion is granted to permit the continued deposition of Defendant Angela Scott, for a time not to exceed two hours and limited to the subject matter of the factual matter underling the spreadsheets at issue, to be completed on or before November 20, 2024. If a place and time for the deposition has not been agreed in writing on or before November 5, Plaintiff may apply to the Court for an ex parte order setting such time and place. The parties may in writing agree to different times or timing.

(4) All requests for awards of monetary sanctions are denied for all motions.

(5) The motion of Defendants to seal exhibits is continued to November 6, 2024.

The 12/4/24 Trial Date is confirmed.

Background

(Note: This case is related to Simon v. Scott, case number 23CV03184. The Court continues the motion of Defendants to seal exhibits in that case also to November 6, 2024.)

In this action, Plaintiff Bui Simon (Simon), a founder and 50 percent owner/ member of The Office of Angela Scott LLC (TOOAS or Company), asserts derivative claims against Defendant Angela Scott (Scott), the other 50 percent owner/ member of TOOAS, and Scott’s husband, Defendant Scott Milden (Milden) and Milden’s company, Defendant Milden, LLC (Milden LLC). Simon alleges that Scott and Milden breached duties to TOOAS, including by making unauthorized payments for their own benefit.

(1) Discovery by Scott from Simon

On March 15, 2024, Scott served her first set of form interrogatories (FI) on Simon. (Freenock decl. re FI, ¶ 7 & exhibit F.) Also on March 15, Scott served her first set of requests for production (RFP). (Freenock decl. re RFP, ¶ 4 & exhibit C.)

On April 18, 2024, Simon served her responses to the FI. (Freenock decl. re FI, ¶ 8 & exhibit G.) Also on April 18, Simon served her responses to the RFP. (Freenock decl. re RFP, ¶ 5 & exhibit D.)

After an unsuccessful meet and confer process, on September 18, 2024, Scott filed this motion to compel further responses to FI Nos. 2.5, 2.6, 7.2, 9.2, 12.1 to 12.4, 12.6, and 13.1. The motion is opposed by Simon.

On September 19, 2024, Scott filed this motion to compel further response to RFP Nos. 5, 9, 10, 16, 19 through 21, 30, 32, and 39. The motion is opposed by Simon.

(2) Discovery by Simon from Scott

On July 22, 2024, counsel for Plaintiff Simon deposed Defendant Scott. As detailed below, Scott was asked questions to which Scott asserted the mediation privilege.

On October 1, 2024, after an unsuccessful meet-and-confer process, Simon filed this motion to compel answers to questions. The motion is opposed by Scott.

Analysis

(Note: The Court has reviewed all of the admissible evidence and arguments of the parties in reaching these rulings, whether or not specifically cited. Objections to the evidence relied upon by the Court are overruled.)

(1) Scott’s Motion to Compel Further Responses to FI

“On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:

            “(1)      An answer to a particular interrogatory is evasive or incomplete.

            “(2)      An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate.

            “(3)      An objection to an interrogatory is without merit or too general.” (Code Civ. Proc., § 2030.300, subd. (a).)

“[I]f a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

FI No. 2.5 is:

“State:

            “(a) your present residence ADDRESS;

            “(b) your residence ADDRESSES for the past five years; and

            “(c) the dates you lived at each ADDRESS.”

The response to FI No. 2.5 is:

“Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Interrogatory to the extent it seeks information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Interrogatory to the extent it seeks private and confidential information that is protected from disclosure by applicable law, including but not limited to article 1 section 1 of the California Constitution.”

In opposition to this motion to compel, Simon asserts that FI No. 2.5 asks irrelevant information and that the information is protected by the California constitutional right to privacy. (Opposition re FI, at pp. 4-5.) In making this argument, Simon first asserts that Scott has the burden to show that the interrogatory requests information that is relevant within the meaning of the Civil Discovery Act (Code Civ. Proc., § 2017.010), citing Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216 (Calcor).

“Unless otherwise limited by order of the Court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)

Simon asserts in opposition: “As noted above, ‘[a]lthough the scope of civil discovery is broad, it is not limitless.’ Calcor Space Facility, Inc., 53 Cal. App. 4th at 223. And while the Code provides that parties may seek information that ‘appears reasonably calculated to lead to the discovery of admissible evidence,’ Code Civ. Proc. § 2017.010, ‘[t]he burden rests upon the party seeking the discovery to provide evidence from which the Court may determine these conditions are met.’ Calcor Space Facility, Inc., 53 Cal. App. 4th at 223; see also Code Civ. Proc. § 2030.300(c) (requiring ‘substantial justification’ for bringing motion to compel interrogatory responses).”

This argument is misleading at best. Calcor was addressing requests for production of documents, which contains a separate requirement of “good cause.” (Calcor, supra, 53 Cal.App.4th at pp. 223–224; Code Civ. Proc., § 2031.310, subd. (b)(1) [former § 2031, subd. (l)].) The “good cause” requirement as applied to requests for production of documents means a “a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) However, as the Supreme Court has noted:

“As a general matter, the statutory scheme imposes no obligation on a party propounding interrogatories to establish good cause or prove up the merits of any underlying claims. [Citation.] In affirming the trial Court’s order, the Court of Appeal justified the trial Court’s good cause requirement by reference to authorities governing demands for inspection, copying, testing, or sampling, which do require a good cause showing before production may be compelled. [Citations.] But those authorities have no application to interrogatories.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 550 (Williams).)

There is therefore no requirement for the moving party in compelling further responses to demonstrate relevance of the request and the burden rests with the responding party to justify the relevance objection. Regardless, it is sufficient to note that Simon’s complaint alleges misappropriation of Company assets going back to 2015. (FAC, ¶ 2.) The last five years is within the timeframe of the claims made. Personal residence information is reasonably calculated to lead to relevant evidence both by its proximity to the workplace (or lack thereof) and by it being a logical place where documents or other evidence may be found. The objection as to relevance is overruled.

Simon next argues that her residence address is protected by the California right of privacy. Neither party has discussed the correct framework by which privacy objections resolved in discovery disputes. The Supreme Court in Williams, supra, explains this framework:

“The state Constitution expressly grants Californians a right of privacy. (Cal. Const., art. I, § 1.) Protection of informational privacy is the provision’s central concern. [Citation.] In [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill)], we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A Court must then balance these competing considerations.” (Williams, supra, 3 Cal.5th at p. 552.)

Williams expressly rejected the argument made by Simon in opposition (Opposition re FI, p. 6) that a compelling interest is required to override a general privacy objection: “[N]ot ‘every assertion of a privacy interest under article I, section 1 must be overcome by a “compelling interest.” Neither the language nor history of the Privacy Initiative unambiguously supports such a standard. In view of the far-reaching and multifaceted character of the right to privacy, such a standard imports an impermissible inflexibility into the process of constitutional adjudication.’ [Citation.] A ‘ “compelling interest” ’ is still required to justify ‘an obvious invasion of an interest fundamental to personal autonomy.’ [Citation.] But whenever lesser interests are at stake, the more nuanced framework discussed above applies, with the strength of the countervailing interest sufficient to warrant disclosure of private information varying according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Williams, supra, 3 Cal.5th at p. 556.)

The discovery here at issue is not an obvious invasion of an interest fundamental to personal autonomy. Consequently, it is appropriate to follow the Williams framework to determine whether the discovery is to be compelled. It is not necessary to follow that framework very far to determine that there is no basis for withholding the requested information. Even assuming a legally protected privacy interest in Simon’s personal residence information, Simon completely fails the second and third requirements of the Williams analysis.

As to the second requirement—an objectively reasonable expectation of privacy in the given circumstances—Simon effectively concedes that there is no such objectively reasonable expectation of privacy as to Scott: “Defendant Scott already knows the answers to these Form Interrogatories because she was for approximately seven years Plaintiff’s personal assistant and has also been a very close friend of Plaintiff and her family for many years. Further, Plaintiff testified as to where she lived at her deposition, and Defense counsel’s leading questions revealed that he already knew where she lived.” (Opposition re FI, p. 6.) The right to privacy is being asserted here to prevent disclosure of information so as to keep the information “private.” By conceding that the party to whom the information would be disclosed by the discovery already knows that information, there is no expectation in the privacy in that information as to that person.

As to the third requirement—a threatened intrusion that is serious—the parties have agreed to a protective order to limit further use or confidential information, which was entered as an order of the Court on June 7, 2024. This protects disclosure beyond what is necessary to this litigation. “ ‘The trial Courts in exercising their discretion should keep in mind that the Legislature has suggested that, where possible, the Courts should impose partial limitations rather than outright denial of discovery....’ [Citation.]” (Williams, supra, 3 Cal.5th at p. 559.) Disclosure of already-known information subject to a confidentiality protective order does not constitute a serious intrusion against Simon’s privacy interests.

With two Williams requirements absent, there is no need for balancing interests. (Williams, supra, 3 Cal.5th at p. 555.) The privacy objection is overruled.

In opposition, Simon asserts that these interrogatories are harassing because Scott already knows the answers. Simon does not provide any basis for the Court to find that these form interrogatories are unduly burdensome or oppressive. The fact that Scott may know the answers does not relieve Simon of providing information within her personal knowledge and under oath. (See Code Civ. Proc., § 2030.220, subd. (c).) Interrogatories provide an evidentiary function for which incidental knowledge by another party may not be a complete substitute. (See Code Civ. Proc., § 2030.410.)

Although general objections are incorporated by reference, Simon makes no attempt to assert or justify any other objections. All other objections are therefore overruled.

The motion to compel will be granted as FI No. 2.5.

FI No. 2.6 asks for the identity of employers over the last five years. The response and argument of the parties is the same as with FI No. 2.5. As with FI No. 2.5, Simon states that Scott already knows the answers to this interrogatory. (Opposition Separate Statement re FI, at p. 12.) The same analysis and conclusion apply. The motion to compel will be granted as to FI No. 2.6.

Scott moves to compel a further response to FI No. 7.2, which interrogatory depends upon FI No. 7.1. FI No. 7.1 is (bolding omitted):

“Do you attribute any loss of or damage to a vehicle or other property to the INCIDENT? If so, for each item of property:

            “(a)      describe the property;

            “(b)      describe the nature and location of the damage to the property;

            “(c)      state the amount of damage you are claiming for each item of property and how the amount was calculated; and

            “(d)      if the property was sold, state the name, ADDRESS, and telephone number of the seller, the date of sale, and the sale price.”

The response to FI No. 7.1 is:

“Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Interrogatory on the grounds that it is unclear what ‘INCIDENT’ to which this Interrogatory is referring and thus this Interrogatory is vague, ambiguous, and unintelligible. Plaintiff further objects to this Interrogatory as the phrase ‘damage to a vehicle or other property’ is vague and ambiguous insofar as it appears to only apply to tangible items or things, and not money damages. Plaintiff further objects to this Interrogatory to the extent it calls for the disclosure of any information protected by the attorney-client privilege or the attorney work-product doctrine. Plaintiff further objects to this Interrogatory on the grounds that Plaintiff’s investigation and discovery in this matter is ongoing and the full extent of any loss or damage caused by Defendants’ malfeasance is not known at this time. Plaintiff further objects to the extent that this Interrogatory prematurely seeks expert discovery.

“Subject to and without waiving the foregoing objections (including the Preliminary Statement), subject to Plaintiff’s understanding of the Interrogatory as framed, and noting that discovery remains ongoing such that additional or different facts are likely to emerge, Plaintiff responds as follows:

 

“Plaintiff, on behalf of Nominal Defendant The Office of Angela Scott, LLC, seeks restitution of all funds Defendant Scott, Defendant Milden, and Defendant Milden, LLC improperly obtained, directly or indirectly, from TOOAS and Plaintiff, disgorgement of the compensation, salary, benefits, and bonuses paid to Defendant Scott, Defendant Milden, and Defendant Milden, LLC, and other damages and relief as permitted by law as set forth in the First Amended Complaint.”

FI No. 7.2 (bolding omitted) is:

“Has a written estimate or evaluation been made for any item of property referred to in your answer to the preceding interrogatory? If so, for each estimate or evaluation state:

            “(a)      the name, ADDRESS, and telephone number of the PERSON who prepared it and the date prepared;

            “(b)      the name, ADDRESS, and telephone number of each PERSON who has a copy of it; and

            “(c)      the amount of damage stated.”

The response to FI No. 7.2 is:

“Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Interrogatory on the grounds that it is unclear what ‘INCIDENT’ to which this Interrogatory is referring and thus this Interrogatory is vague, ambiguous, and unintelligible. Plaintiff further objects to this Interrogatory as the phrase ‘damage to a vehicle or other property’ is vague and ambiguous insofar as it appears to only apply to tangible items or things, and not money damages. Plaintiff further objects to this Interrogatory to the extent it calls for the disclosure of any information protected by the attorney-client privilege or the attorney work-product doctrine. Plaintiff further objects to this Interrogatory on the grounds that Plaintiff’s investigation and discovery in this matter is ongoing and the full extent of any loss or damage caused by Defendants’ malfeasance is not known at this time. Plaintiff further objects to the extent that this Interrogatory prematurely seeks expert discovery.

“Subject to and without waiving the foregoing objections (including the Preliminary Statement), subject to Plaintiff’s understanding of the Interrogatory as framed, and noting that discovery remains ongoing such that additional or different facts are likely to emerge, Plaintiff responds as follows: [¶] Not applicable.”

Scott argues that the objections are not well taken and that “not applicable” is evasive or incomplete.

In opposition, Simon states that there is no obligation to supplement this response because as part of the meet and confer process, Simon intended to produce this information by way of an expert report, which Simon now asserts has since been provided. (Organ decl., ¶ 4.)

As and when the response was given, the form of the response does not comply with the Code of Civil Procedure.

“The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following:

            “(1)      An answer containing the information sought to be discovered.

            “(2)      An exercise of the party's option to produce writings.

            “(3)      An objection to the particular interrogatory.” (Code Civ. Proc., § 2030.210, subd. (a).)

“Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220, subd. (c).)

“If only a part of an interrogatory is objectionable, the remainder of the interrogatory shall be answered.” (Code Civ. Proc., § 2030.240, subd. (a).) “If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.” (Code Civ. Proc., § 2030.240, subd. (b).)

Taken together, these statutory requirements ensure that any qualifications by objection, clarification, or otherwise which narrow the scope of the response from the scope of the interrogatory are clearly stated and that, if and as narrowed in scope, the response is complete as of the time of the response.

The response “not applicable” is, somewhat ironically, not applicable. FI No. 7.2 asks about items listed in response to FI No. 7.1. Simon provided a response to FI No. 7.1 which included objections that are not subject to this motion. Consequently, the Court does not assess whether the objections or qualification are appropriate, but looks only to the substantive response that was given. The substantive response to FI No. 1 identifies items of property as “funds Defendant Scott, Defendant Milden, and Defendant Milden, LLC improperly obtained, directly or indirectly, from TOOAS and Plaintiff, [and] disgorgement of the compensation, salary, benefits, and bonuses paid to Defendant Scott, Defendant Milden, and Defendant Milden, LLC,” as well as unspecified other damages. Whether or not these items are, strictly speaking, properly classified as “property” damaged within the meaning of FI No. 7.1, by identifying them in FI No. 7.1, these items are properly the subject of FI No. 7.2.

The general objections, the vague, ambiguous, and unintelligible objections are overruled because they are either improperly asserted or inapplicable given the response to FI. No. 7.1. The objection that investigation and discovery is ongoing is overruled because the response to an interrogatory need only be complete as of the information reasonably available at the time of the response. (See Code Civ. Proc., §§ 2030.070, subd. (a), 2030.060, subd. (g).)

With respect to the attorney work-product doctrine and specifically expert opinions and reports, such information would have properly been withheld from the response if it were identified as such. (See Code Civ. Proc., § 2030.240, subd. (b).) To the extent that was true at the time of the response, however, the response would need to identify that there were no such written estimates or evaluations made apart from those protected from disclosure as work product or expert discovery timing. “Not applicable” does not provide any information about whether or not such information exists or is reasonably available. That information should have been provided at the time of the response.

Now, Simon asserts having provided an expert report that apparently contains information responsive to FI No. 7.2. There is therefore, at least now, unprivileged information responsive to the interrogatory. A response is therefore necessary, either directly or by invocation of section 2030.230 pursuant to its terms. A further response is required as to FI No. 7.2.

FI No. 9.2 is structurally the same as FI No. 7.2, except it addresses “other damages” identified in response to FI No. 9.1. Simon’s substantive response to FI No. 9.1, following objections and qualifications, is the same as the substantive response to FI No. 7.1. FI No. 9.2 (bolding omitted) is: “Do any DOCUMENTS support the existence or amount of any item of damages claimed in interrogatory 9.1? If so, describe each document and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”

The response to FI No. 9.2 is:

“Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Interrogatory on the grounds that it is unclear what “INCIDENT” to which this Interrogatory is referring and thus this Interrogatory is vague, ambiguous, and unintelligible. Plaintiff further objects to this Interrogatory to the extent it calls for the disclosure of any information protected by the attorney-client privilege or the attorney work product doctrine. Plaintiff further objects to this Interrogatory on the grounds that Plaintiff’s investigation and discovery in this matter is ongoing and the full extent of any loss or damage caused by Defendants’ malfeasance is not known at this time. Plaintiff further objects to the extent that this Interrogatory prematurely seeks expert discovery.”

As with FI Nos. 7.1 and 7.2, having provided a response to FI No. 9.1 not subject to this motion, the scope of FI No. 9.2 is defined by the substantive response to FI No. 9.1. The general objections, and objections as to vague, ambiguous, unintelligible, and investigation continuing are overruled for the same reasons discussed above. For the same reasons discussed above, the response does not state whether any non-privileged documents exist, so the response was incomplete when made. Simon has confirmed that such documents do now exist. A further response will be required.

FI No. 12.1 through 12.4, and 12.6 all involve witnesses and the same problem of the definition of the term “incident.” Although Scott improperly fails to include in the separate statement the definition of the defined term, “incident” (Cal. Rules of Court, rule 3.1345(c)(4)), the FI shows that the definition used is the generic definition: “INCIDENT includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” (Freenock decl. re FI, exhibit F, p. 116, bolding omitted.)

The response to FI No. 12.1 is:

“Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Interrogatory on the grounds that it is unclear what ‘INCIDENT’ this Interrogatory is referring to and thus this Interrogatory is vague, ambiguous, and unintelligible. Plaintiff further objects to this Interrogatory to the extent it calls for the disclosure of any information protected by the attorney-client privilege or the attorney work-product doctrine.”

The objection as to the meaning of “incident” is meritorious here. The FAC alleges multiple particular breaches of duty and multiple continuous breaches of duty making the context of “witness” unreasonably difficult to discern. The responding party as a duty to answer an ambiguous or vague interrogatory as much as possible, providing a clear statement of how the responding party is resolving the ambiguity or vagueness to provide the answer. Simon could have attempted to do that here so as to stem further interrogatories on this subject. But Simon, as the responding party, is not under an obligation to particularize a concept so vague as to apply, in the context of the FAC allegations even limited by time, simultaneously to everything and nothing. In taking that approach, Simon’s objection will be sustained, and no further response will be required to FI Nos. 12.1, 12.2, 12.3, 12.4, and 12.6. However, this ruling is without prejudice to Scott propounding these same interrogatories again but with a different and sufficiently particularized definition of “incident” to the extent such additional discovery is otherwise permitted.

FI No. 13.1 has the same difficulty with the definition of “incident.” No further response is required to this interrogatory. This ruling is again without prejudice to propounding the same interrogatory with a different and sufficiently particularized definition of “incident” to the extent such additional discovery is otherwise permitted.

“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 a further response to interrogatories, 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., § 2030.300, subd. (d).)

As the above discussion demonstrates, an award of monetary sanctions against Simon would be supported by the failure to respond reasonably to several of the form interrogatories. However, taken as a whole, the Court finds that circumstances make the imposition of any award of sanctions unjust. The parties’ requests for awards of monetary sanctions are denied.

(2) Scott’s Motion to Compel Further Responses to RFP

“On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

            “(1)      A statement of compliance with the demand is incomplete.

            “(2)      A representation of inability to comply is inadequate, incomplete, or evasive.

            “(3)      An objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310, subd. (a).)

“A motion under subdivision (a) shall comply with each of the following:

            “(1)      The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

            “(2)      The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subd. (b)(1), (2).)

RFP No. 5 is: “All DOCUMENTS and COMMUNICATIONS RELATED TO the ‘audit’ referenced in the FAC. See FAC ¶¶ 1 n.1, 8, 10, 44, 47, 49, 60.”

The response to RFP No. 5 is:

“Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Request to the extent it calls for the disclosure of documents protected by the attorney-client privilege, attorney work product doctrine, and/or any other privilege or protection. Plaintiff further objects to this Request to the extent it seeks ‘All’ documents and communications relating to the requested subject matter, as such Request is unduly burdensome, oppressive, and overbroad. Plaintiff further objects to this Request to the extent it seeks documents not in Plaintiffs possession, custody, or control. Plaintiff further objects to this Request to the extent that it seeks documents that have already been produced in this case. Plaintiff further objects to this Request to the extent that it seeks documents that are neither relevant to the subject matter of the pending proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Request to the extent that it seeks premature disclosure of expert evidence. Plaintiff further objects that this Request is overbroad, unduly burdensome, and oppressive, including because it contains no temporal limitation.”

The subject of this request is the “audit” that is repeatedly mentioned in the FAC, e.g., “When Plaintiff became aware of Defendant Scott’s embezzlement, she proposed that the Company hire an auditor to review the Company’s finances. Defendant Scott refused to allow the Company to pay for this audit, so Plaintiff has had to personally pay for the audit. Because the audit is not yet complete, the total amount embezzled by Defendant Scott could be higher than $2.5 million.” (FAC, p. 3, fn. 1.) Documents relating to this audit are on their face relevant subject matter for discovery, establishing good cause for such discovery. Simon’s objection as to relevance is overruled.

Simon’s general objection is overruled for the same reasons discussed above in the context of the FI. With respect to the objection as to documents not in Simon’s possession, custody, or control, a response is necessary as to such documents in a different and more complete form:

“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (Code Civ. Proc., § 2031.230.)

This objection is overruled as an objection, subject to providing a response complying with section 2031.230.

The remaining objections fall into two categories: objections based on burden and objections based on privilege.

Simon objects that the request seeks “all” documents relating to the subject matter as unduly burdensome, that the request seeks documents that have already been produced, and that the request is overbroad because it contains no temporal limitation.

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

            “(1)      A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

            “(2)      A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

            “(3)      An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc., § 2031.210, subd. (a).)

“A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.)

“If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (Code Civ. Proc., § 2031.240, subd. (a).)

“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

            “(1)      Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

            “(2)      Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.” (Code Civ. Proc., § 2031.240, subd. (b).)

“Oppression must not be equated with burden. The objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. … [S]ome burden is inherent in all demands for discovery. The objection of burden is valid only when that burden is demonstrated to result in injustice.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 417–418; accord, Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313, 320–321.)

There is no showing here of the quantum of burden in responding to the RFP. General objections as to burden are overruled. With respect to documents that have already been produced in discovery, Simon need not produce the documents again, but merely needs to identify them to the respective request by document number or other unique identifier. The objection as to previous production is overruled. The objection as to temporal limitation has no merit. The subject matter is identified by reference to the FAC, which is not unlimited in time. This objection is overruled.

The objection as to “all” and “relating” is overruled with a qualification. Documents made in the course of the audit, made to summarize or to report the audit, and all communications to or from the auditors concerning the audit, including any attachments to such communications, are all responsive to the request. Documents reviewed by auditors in the audit are not, by that fact alone, documents that “relate” to the audit and are not responsive.

With respect to privilege objections, it is unclear to the extent that responsive documents are subject to privilege. In opposition, Simon asserts that Scott has subpoenaed documents directly from the auditors and documents have been produced. (Organ decl. re RFP, ¶¶ 2-4; Opposition Separate Statement re RFP, at p. 7.) Simon also asserts that Simon timely served her expert disclosures, which included a report from Irwin Nachimson at Nigro, Karlin, Segal & Feldstein, LLP, Simon’s auditors. (Organ decl., ¶ 3.)

“If the expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert in order for the expert to properly advise counsel. As noted above, the attorney-client privilege applies to communications ‘to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted’ [citation]; this clearly includes communications to a consulting expert. [Citations.] Similarly, a consulting expert’s report, prepared at the attorney’s request and with the purpose of assisting the attorney in trial preparation, constitutes work product [citation], entitled to conditional protection and barred from discovery in the absence of good cause.” (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.)

“The situation is different, however, with a testifying expert. As a general rule, neither the attorney-client privilege nor the work product protection will prevent disclosure of statements to, or reports from, a testifying expert. When a client calls that party’s attorney to testify at trial to information the attorney could have only learned through the attorney-client privilege, the privilege is waived. ‘It follows that the same waiver exists when an agent of the attorney is to testify to matters that he could only have learned because of the attorney-client relationship.’ [Citation.] Once a testifying expert is designated as a witness, the attorney-client privilege no longer applies, ‘because the decision to use the expert as a witness manifests the client’s consent to disclosure of the information.’ [Citation.] Similarly, when an expert witness is expected to testify, the expert’s report, which was subject to the conditional work product protection, becomes discoverable, as the mere fact that the expert is expected to testify generally establishes good cause for its disclosure.” (DeLuca v. State Fish Co., Inc., supra, 217 Cal.App.4th at p. 689.)

Under the circumstances now, it appears that little, if any, of the responsive documents are subject to privilege. Nonetheless, to the extent that such documents are withheld on the basis of a privilege not waived by the expert disclosure or other production, Simon is entitled to assert that privilege, subject to a later document-specific challenge.

“If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

            “(1)      Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

            “(2)      Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.” (Code Civ. Proc., § 2031.240, subd. (b).)

“If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.” (Code Civ. Proc., § 2031.240, subd. (c)(1).)

A further response will be required consistent with the above discussion.

RFP No. 9 is: “All DOCUMENTS and COMMUNICATIONS involving Herbert Simon RELATED TO TOOAS, Angela Scott, Scott Milden, and/or Milden LLC.”

The response to RFP No. 9 is: “Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Request to the extent it calls for the disclosure of documents protected by the attorney-client privilege, attorney work product doctrine, marital privilege, and/or any other privilege or protection. Plaintiff further objects to this Request to the extent it seeks ‘All’ documents and communications relating to the requested subject matter, as such Request is unduly burdensome, oppressive, and overbroad. Plaintiff further objects to this Request to the extent it seeks documents not in Plaintiff’s possession, custody, or control. Plaintiff further objects to this Request to the extent that it seeks documents that have already been produced in this case. Plaintiff further objects to this Request to the extent that it seeks documents that are neither relevant to the subject matter of the pending proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Request on the grounds that the undefined term ‘involving’ is vague and ambiguous. Plaintiff further objects that this Request is overbroad, unduly burdensome, and oppressive, including because it contains no temporal limitation.”

The response to RFP No. 9 is identical to that to RFP No. 5 except for the omission of the objection relating to premature disclosure of expert evidence.

There is a qualitative difference between the generality of RFP No. 5 and the generality of RFP No. 9. As discussed above, the good cause for production of documents as to RFP No. 5 is self-evident. As to RFP No. 9, Scott makes the following argument for production of these documents:

“Request No. 9 seeks documents and communications involving Herbert Simon—Plaintiff’s husband and the Company’s largest creditor—related to the Company (or Defendants). Request No. 10 [sic] obviously seeks relevant documents, which will speak to the Simons’ knowledge and approval of the business decisions and actions of Defendant Scott, including her hiring of Company employees, financial tracking and reporting, including the compensation Defendants Scott and Milden received for their work, and charitable donations—all of which was provided to Plaintiff, her agents, and Mr. Simon. This all bears directly on the claims, defenses, and disputed issues in this case.” (Motion Separate Statement, at p. 8.)

This argument demonstrates good cause for the production of some responsive documents, but not “all” documents involving Herbert Simon. Good cause is established as to TOOAS documents provided to Herbert Simon which reflects business decisions of Defendant Scott, including the compensation of Defendants Scott and Milden, during the time period for which Simon asserts Scott misappropriated or misdirected TOOAS assets.

For the same reasons and to the same extent as discussed above with respect to RFP No. 5, a further response will be required as to RFP No. 9. RFP No. 10 is essentially the same as RFP No. 9 but directed to documents involving the Herbert Simon Revocable Trust. To the same extent as RFP No. 9, a further response to RFP No. 10 will be required.

RFP No. 16 is: “All DOCUMENTS and COMMUNICATIONS RELATED TO the negotiation and execution of the TOOAS Operating Agreement attached as Exhibit A to the FAC.”

The response to RFP No. 16 is: “Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Request to the extent it calls for the disclosure of documents protected by the attorney-client privilege, attorney work product doctrine, and/or any other privilege or protection. Plaintiff further objects to this Request to the extent it seeks “All” documents and communications relating to the requested subject matter, as such Request is unduly burdensome, oppressive, and overbroad. Plaintiff further objects to this Request to the extent it seeks documents not in Plaintiff’s possession, custody, or control. Plaintiff further objects to this Request to the extent that it seeks documents that have already been produced in this case. Plaintiff further objects to this Request to the extent that it seeks documents that are neither relevant to the subject matter of the pending proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Request on the grounds that the undefined terms “negotiation” and “execution” are vague and ambiguous. Plaintiff further objects that this Request is overbroad, unduly burdensome, and oppressive, including because it contains no temporal limitation.”

In opposition, Simon argues that documents relating to the negotiation and execution of the current Operating Agreement are irrelevant because the Operating Agreement is integrated and therefore parol evidence is not admissible to vary the terms thereof. (See Masterson v. Sine (1968) 68 Cal.2d 222, 225.) Nevertheless, extrinsic evidence may be admissible under a variety of circumstances, including determination as to whether an agreement is integrated (id., at pp. 225-227) and to interpret terms in an agreement (Code Civ. Proc., § 1856, subd. (g)). This is discovery and the Court does not now resolve admissibility issues. There is good cause for production of documents which document the negotiation and execution of the Operating Agreement.

Again, Simon may assert privilege as a basis for withholding such responsive documents from production. Simon will be required to provide a privilege log as to such withheld documents, except, Simon need not provide a privilege log as to written communications solely between Simon and her legal counsel. Other objections are overruled for the same reasons discussed with respect to RFP No. 5. A further response to RFP No. 16 will be required. RFP No. 30 addresses the March 21, 2011, Operating Agreement. A further response to RFP No. 30 will be required for the same reasons.

RFP No. 19 is: “All DOCUMENTS and COMMUNICATIONS RELATED TO TOOAS profits or losses YOU have received or claimed.”

The response to RFP No. 19 is: “Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Request to the extent it calls for the disclosure of documents protected by the attorney-client privilege, attorney work product doctrine, tax return privilege, and/or any other privilege or protection. Plaintiff further objects to this Request to the extent it seeks ‘All’ documents and communications relating to the requested subject matter, as such Request is unduly burdensome, oppressive, and overbroad. Plaintiff further objects to this Request to the extent it seeks documents not in Plaintiff’s possession, custody, or control. Plaintiff further objects to this Request to the extent that it seeks documents that have already been produced in this case. Plaintiff further objects to this Request to the extent that it seeks documents that are neither relevant to the subject matter of the pending proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this Request on the grounds that the undefined terms “profits” and “losses” are vague and ambiguous. Plaintiff further objects to the definition of ‘YOUR’ to the extent that it purports to encompass ‘Plaintiff Bui Simon and any of Plaintiff Bui Simon’s agents (including, but not limited to, Mark Bernstein), attorneys (including, but not limited to, the law firm Glaser Weil), or other PERSONS acting on her behalf.’ This definition is vague, ambiguous, and overbroad. Plaintiff will construe the term ‘YOUR’ as referring to Plaintiff. Plaintiff further objects that this Request is overbroad, unduly burdensome, and oppressive, including because it contains no temporal limitation.”

It is somewhat unclear what is intended by the meaning of “profit and losses” claimed by Simon. Scott asserts good cause by arguing: “This case concerns Company financial reporting and accounting, including potential unclean hands and negligence on the part of Plaintiff. Request No. 19 obviously seeks relevant documents relevant to these issues.” (Motion Separate Statement, at p. 21.) This argument demonstrates good cause as to “profit and loss” statements, i.e., accounting summary documents that show the income and expenditures or distributions by TOOAS for the time periods covered in the FAC in which Simon asserts misappropriation or misdirection of TOOAS funds. Underlying documentation and tax documents are not included in this construction of the request. As thus construed and only to that extent, a further response will be required. To the extent that such documents do not exist, a code-compliant response identifying such documents as not existing will be required.

RFP No. 20 is: “All COMMUNICATIONS with Angela Scott RELATED TO TOOAS.”

The response to RFP No. 20 is: “Plaintiff incorporates the Preliminary Statement and General Objections as though fully set forth herein. Plaintiff objects to this Request to the extent it seeks ‘All’ communications relating to the requested subject matter, as such Request is unduly burdensome, oppressive, and overbroad. Plaintiff further objects to this Request to the extent it seeks documents not in Plaintiff’s possession, custody, or control. Plaintiff further objects to this Request to the extent that it seeks documents that have already been produced in this case. Plaintiff further objects to this Request to the extent that it seeks documents that are neither relevant to the subject matter of the pending proceeding nor reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects that this Request is overbroad, unduly burdensome, and oppressive, as it seeks – without any temporal limitation – all communications between business partners about their business. Such communications would span more than 10 years.”

In asserting good cause, Scott states: “Request No. 20 seeks communications with Defendant Scott related to TOOAS. Request No. 20 obviously seeks relevant documents, given Plaintiffs claims that she was not informed and did not consent to various business decisions and Defendant’s defenses that Plaintiff had knowledge and approved of Defendant’s business decisions and actions, including, but not limited to, the hiring of Company employees, compensation paid to Defendants Scott and Milden, and charitable donations, and Company business expenses.” (Motion Separate Statement, at p. 26.)

RFP No. 20 is enormously over-inclusive. There is no doubt that the scope of documents responsive to RFP No. 20 include documents directly relevant to Simon’s claims and to Scott’s defenses. That fact does not establish good cause for all documents responsive to a “give me everything about everything” request. It is not appropriate for the Court to rewrite so unlimited a request in order to match the request to the good cause asserted by Scott. No further response will be required. This ruling is without prejudice to further, narrower discovery to the extent otherwise permissible.

The same analysis and conclusion as to RFP No. 20 apply to RFP No. 21. No further response to RFP No. 21 is required, also without prejudice to further permissible discovery.

The same analysis and conclusion as to RFP No. 20 apply to RFP 32. With respect to Bronx West, there is no evidence presented as to Bronx West’s role or as to the scope of any responsive documents. There is no showing of good cause. No further response to RFP No. 32 is required, also without prejudice to further permissible discovery.

The same analysis and conclusion as to RFP No. 20 apply to RFP 39. In the context of Irwin Nachimson, there is no showing of good cause as to the scope of the request made. The Court notes that Nachimson is identified as an auditor, so it is unclear to what extent this request merely duplicates requests for which good cause has been established or goes substantially beyond that. No further response to RFP No. 39 is required, also without prejudice to further permissible discovery.

“Except as provided in subdivision (j), 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 further response to a demand, 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., § 2031.310, subd. (h).)

As the above discussion demonstrates, an award of monetary sanctions against Simon would be supported by the failure to respond reasonably to several of the requests for production. However, taken as a whole, the Court finds that circumstances make the imposition of any award of sanctions unjust. The parties’ requests for awards of monetary sanctions are denied.

(3) Motion to Compel Answers from Scott to Deposition Questions

“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).)

Question 1 is:

“Q. We’re going to mark this next in order, Exhibit 10.

***

“Q. Now, this is another document that appears to come from your production.

“A. Okay.

“Q. You see where it says Angie --

“MR. SOMERS: Ms. Glaser --

“MS. GLASER: 018276?

“MR. SOMERS:ꞏ Ms. Glaser, I think we need to go off the record and talk about this document.”

The response to Question 1 is:

“MR. SOMERS:ꞏ Ms. Glaser, were you proceed -- during the break we had a discussion about Exhibit 10 with the Bates stamp Angie 18276. It is defense counsel’s position that this is a document that was produced as part of the mediation and prepared to facilitate settlement. Defense counsel was not involved in that. It was predecessor counsel. But based on the title of the document and what appears to be the information reflected in it, it was meant for compromise. That was being used and facilitated with the mediator. I’m permitting Ms. Glaser to ask the sole question about preparation without waiver of rights or objection on privilege.

***

“MR. SOMERS:ꞏ Yeah, no. But just for – just for the records, particularly with those

documents -- while accessing mediation privilege, we are calling [sic] back Exhibit 10, Angie 18276; Exhibit 11, Angie 18213; Exhibit 12, Angie 18789 through 18791; Exhibit 13, Angie 12 -- 19287; and Exhibit 14, Angie 19316. We will provide you with a letter after further investigation of this for our basis for calling them back for the mediation privilege. If, of course, there is, you know, a reason where this is mistaken based on Ms. Scott’s testimony, we will make her available.”

In opposition to the motion, Scott argues that the documents were prepared for mediation between the parties and therefore are subject to the mediation privilege. (E.g., Sandler decl., ¶¶ 2-34.) Simon disputes that the documents are protected by the mediation privilege.

“Except as otherwise provided in this chapter:

            “(a)      No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

            “(b)      No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

            “(c)      All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.” (Evid. Code, § 1119.)

“Evidence otherwise admissible or subject to discovery outside of a mediation or a mediation consultation shall not be or become inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation or a mediation consultation.” (Evid. Code, § 1120, subd. (a).)

The spreadsheets at issue (Spreadsheets) are exhibits 10 through 14 to the deposition of Scott. These Spreadsheets are attached as exhibit G to the declaration of attorney Cynthia E. Organ in support of this motion. According to Scott’s prior counsel, attorney Jonathan C. Sandler, the Spreadsheets (which Scott refers to as “Compromise Schedules”) were prepared in the course of mediation. (Sandler decl., ¶ 2.)

On March 28, 2023, the parties conducted a mediation before Hon. Lisa Hart Cole (ret.), which did not result in a resolution, but resulted in continued discussions between the parties and Judge Cole. (Organ decl. re depo., ¶¶ 4-5; Sandler decl., ¶ 3.) According to attorney Organ, counsel for Simon did not communicate with Judge Cole about this matter between April 8, 2023, and May 1, 2023. According to attorney Sandler, Sandler communicated with both Organ and Judge Cole on a number of occasions during this time by emails including “Mediation Privilege” in the subject line. (Sandler decl., ¶¶ 15-26 & exhibit A.)

According to Sandler, on May 9, 2023, Sandler conveyed Simon’s latest request regarding the Spreadsheets to Judge Cole and discussed how to respond to the request to further the mediation resolution. (Sandler decl., ¶ 29 & exhibit A.) Compromise positions were inserted into the Spreadsheets proposed to Simon and provided to Judge Cole. (Sandler decl., ¶¶ 30-34 & exhibit A.)

This action was filed on June 2, 2023.

On June 6, 2023, Simon propounded a set of requests for production to Scott. (Organ decl., ¶ 8.) On October 18, 2023, Scott included the Spreadsheets as part of her document production in response to these requests. (Ibid.) Simon followed up with requests for admission regarding the Spreadsheets. (Organ decl., ¶ 9.) In response, the parties met and conferred regarding Scott’s claim that the Spreadsheets were covered by mediation confidentiality and invited Simon to ask about the underlying information in a different manner. (Organ decl., ¶¶ 10-14.) Scott has since sought to claw back the Spreadsheets. (Organ decl., ¶¶ 16-17.)

“The Supreme Court has held that the mediation statutes are to be broadly construed to effectuate the legislative intent, even if there are conflicting public policies and even if the equities in a particular case suggest a contrary result.” (Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 142.) “Mediation confidentiality is to be applied where the writing, or statement would not have existed but for a mediation communication, negotiation, or settlement discussion.” (Id. at p. 160.)

Although there is a conflict in the evidence, the weight of this evidence demonstrates that the Spreadsheets were prepared for the purpose of mediation or a mediation consultation. The Spreadsheets are therefore not subject to discovery pursuant to Evidence Code section 1119, subdivision (b) absent an exception.

Production of the Spreadsheets in response to requests for production does not constitute a waiver of the mediation privilege. Express waiver is permitted under Evidence Code section 1122. There is no implied waiver exception to the mediation privilege. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 588.) The Court therefore finds that the Spreadsheets, as documents and as testimony about the content of those specific documents, are protected by the mediation privilege.

As framed, therefore, questions about the Spreadsheets beyond the preliminary facts of their creation for purposes of mediation are improper. Subject to further discussion below, the motion to compel will be denied as to question 1. Question 2 through 5 involve the same subject matter and will be denied for the same reasons.

This does not entirely end the inquiry, however. The nature of the questions and answers demonstrates that the objections impeded the deposition of Scott on the underlying factual matter.

“[T]he fact that communications were made during the mediation and writings prepared for use in the mediation that are inadmissible and not subject to compulsory production does not mean that the underlying data, not otherwise privileged, is also immune from production. [Citations.] [A Defendant’s] payroll records, for example, if relevant to the quantification of the claims being settled, are subject to discovery and may be introduced in opposition to the settlement even if they were disclosed to class counsel during the mediation, and even if class counsel was shown only a summary or analysis of those records that is not itself subject to production because prepared for use in the mediation.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 132.)

There is therefore nothing improper about asking otherwise appropriate questions concerning the specific items that appear on the Spreadsheets—without reference to those documents—and asking about underlying factual matter as to those specific items.

The Court will order a further session of this deposition, not to exceed two hours, limited to the subject matter of the underlying factual issues presented by the Spreadsheets. Simon may not inquire into the Spreadsheets themselves at deposition.

The Court finds Simon’s motion to be substantially justified and otherwise finds that the imposition of sanctions against either party under the totality of the circumstances would be unjust. (See Code Civ. Proc., § 2025.480, subd. (j).) Both parties’ requests for awards of monetary sanctions are denied as to this motion.

NOTICE: We may not have a court reporter for the trial of your case. We do have a court reporter for CMC and L&M Calendars. Check with the Court before you hire your own court reporter. If counsel wants to hire a court reporter, it will be your obligation to retain one for the trial. There can only be one official record of Court proceedings, and only a reporter appointed by the Court may report a Court proceeding.  Only one reporter will be allowed to report a Court proceeding at any given time.  If the parties cannot agree on a reporter, the Court will make the selection after you submit the name and address of the court reporter each counsel has engaged. Counsel will notify the Court 10 days in advance of the trial date if you are going to provide a court reporter. Every reporter who is not otherwise on the pre-approved list of reporters pro tempore shall complete and sign SC-1046. You may request that the electronic recording system that is already installed in the courtroom be used. Information about that may be obtained from the Court’s website.