Michael P Sipiora vs Santa Barbara Graduate School

Case Number

24CV00466

Case Type

Hearing Date / Time

Fri, 03/14/2025 - 10:00

Nature of Proceedings

Motions to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiff for an order to show cause re contempt is denied.

(2) For all reasons discussed herein, the motion of plaintiff to compel a further response to plaintiff’s form interrogatory – employment law, no. 216.1, is denied without prejudice.

(3) For all reasons discussed herein, the motion of defendant for a protective order regarding plaintiff’s second revised notice of deposition of defendant’s person most knowledgeable is granted in part. The deposition of the person most knowledgeable of defendant shall proceed on the terms and conditions described herein. The parties shall meet and confer fully and in good faith, in accordance with this ruling, to select from the examination topics described in plaintiff’s second revised notice of deposition of defendant, one person and one topic for examination, and to reasonably narrow the scope of the requests for production contained in plaintiff’s second revised notice. Further, plaintiff shall serve a new deposition notice which reflects or describes the parties’ agreement, if any, as well as a date for the deposition. The deposition of defendant’s person most knowledgeable shall, for present purposes only, be precluded as to any remaining persons, issues, topics, or documents which are described in plaintiff’s second revised notice of deposition and not within the scope of the parties’ agreement, or to which the parties are unable to agree. The Court reserves any remaining matters for later determination and without prejudice to any future motions that may be filed by the parties as to these remaining matters. Except as herein granted, the motion of defendant for a protective order is otherwise denied.

(4) For all reasons discussed herein, the motion of plaintiff to compel the deposition of the person most qualified of defendant and further responses to requests for production of documents is denied without prejudice.

Background: 

The first amended complaint (FAC) filed by plaintiff Michael P. Sipiora (Sipiora) against defendant Santa Barbara Graduate School, Inc. dba Pacifica Graduate Institute (Pacifica) is the operative pleading in this action. Briefly, in the FAC, Sipiora, who holds a Ph.D in psychology, alleges that he was employed, under a series of written employment contracts, in faculty and other positions with Pacifica from 2008 until July 29, 2022. (FAC, ¶¶ 1-2, 6-8 & 10.) Sipiora further alleges that he was effectively terminated by Pacifica in retaliation for challenging, complaining about, or reporting alleged harassment, discrimination against, hostile treatment, and disparagement of female members of Pacifica’s faculty and staff. (Id. at ¶¶ 11, 30-37 & 49-54.)

The FAC primarily describes conduct by Peter Rojcewicz (Rojcewicz), who Sipiora alleges was hired as a Provost in 2020 by Pacifica’s President, Dr. Joseph Cambray. (FAC, ¶¶ 14-29.) In the FAC, Sipiora asserts that Rojcewicz directed allegedly harassing and discriminatory behavior to female faculty members of Pacifica, including Dr. Oksana Yakushko (Dr. Yakushko), Dr. Jennifer Sandoval (Dr. Sandoval), and Dr. Elizabeth Schewe (Dr. Schewe). (Id. at ¶¶ 15-29.) Sipiora alleges that when he expressed concerns about and objections to Rojcewicz’s behavior towards and treatment of Pacifica’s female faculty and staff, Sipiora was abruptly terminated by Pacifica without notice, notwithstanding that Sipiora had performed all duties required of him under his employment contracts with Pacifica and had never received any formal written censure, reprimand, or prior negative evaluation. (Id. at ¶¶ 8, 10, 30-33 & 36.)

In the FAC, Sipiora alleges four causes of action against Pacifica: (1) violation of Government Code section 12940, subdivision (h); (2) violation of Labor Code section 1102.5; (3) violation of public policy; and (4) breach of contract.

On April 30, 2024, Pacifica filed a verified answer to the FAC, responding to its allegations and asserting twenty-one affirmative defenses.

There are presently four motions before the Court, each of which are described separately below.

Sipiora’s motion for an order to show cause re contempt:

On December 19, 2024, Sipiora filed a motion (the contempt motion) for an order to show cause why Pacifica should not be found in contempt for disobeying a Minute Order entered by the Court on November 8, 2024 (the Minute Order), in which the Court granted, in part, a motion (the RFP Motion) filed by Sipiora on October 11, 2024, for an order compelling Pacifica to provide further responses to Sipiora’s set two requests for production (the RFP) nos. 77, 82 through 85, 87 through 135, 147 and 148.

In support of the contempt motion, Sipiora submits the declaration of his counsel, David E. Sipiora (David), who declares that on November 27, 2024, Pacifica served a supplemental response to RFP no. 77 as required under the Minute Order, but did not produce any documents with the supplemental response. (D. Sipiora Decl., ¶ 4 & Exh. B.) (Note: Due to common surnames, the Court will refer to Sipiora’s counsel by his first name. No disrespect is intended.) David conferred with Pacifica’s counsel regarding whether Pacifica would produce documents responsive to RFP no. 77. (Id. at ¶ 5 & Exhs. C-D.) In response, Pacifica asserted that the Minute Order makes no reference to, and provides no deadline for, the production of documents. (Id. at ¶ 5 & Exh. D.)

David further declares that Pacifica has failed to produce several documents from Sipiora’s email account, including letters written by Sipiora on June 1 and August 30, 2021. (D. Sipiora Decl., ¶ 7.) David asserts that Pacifica’s failure to produce these letters demonstrates that Pacific has failed to produce all documents responsive to RFP no. 77. (Ibid.)

In support of its opposition to the contempt motion, Pacifica submits the declaration of its counsel, Cristina Medina (Medina), who states that on November 27, 2024, Pacifica provided a verified code-compliant further response to RFP no. 77 and a chart identifying documents responsive to that request, within the deadline prescribed in the Minute Order. (Medina Decl., ¶¶ 5-6 & Exhs. 2-3.) Medina further states that, since July 2024, Pacifica has produced over 800 pages of documents in this action, on a “rolling” basis. (Id. at ¶ 8.)

Sipiora’s motion to compel further responses to interrogatories:

Also on December 19, 2024, Sipiora filed a motion (the FI motion) for an order compelling Pacifica to provide a further response to Sipiora’s set one form interrogatories – employment (the FI) no. 216.1. Sipiora submits a separate declaration of its counsel in support of that motion, in which David declares that on July 2, 2024, Sipiora served the FI, to which Pacifica responded on August 7, 2024, with only objections. (D. Sipiora Decl., ¶¶ 5-6 & Exhs. C-D.)

David further declares that, following the parties’ exchange of meet and confer correspondence, Pacifica’s counsel stated that Pacifica would provide substantive responses to the FI on September 13, 2024, but did not indicate that Pacifica would respond to FI no. 216.1. (D. Sipiora Decl., ¶ 7 & Exh. E.) The supplemental responses to the FI served by Pacifica on September 13, 2024, did not include a supplemental response to FI no. 216.1. (Id. at ¶ 8 & Exh. F.) David further communicated with Pacifica’s counsel regarding a supplemental response to FI no. 216.1, in response to which Pacifica’s counsel stated, on October 4 and 15, 2024, that Pacifica would provide a supplemental response to FI no. 216.1. (Id. at ¶¶ 9-16 & Exh. G at pp. 1-2.)

On October 17, 2024, Pacifica served a second set of supplemental responses to the FI which included a purportedly deficient and incomplete supplemental response to FI no. 216.1. (D. Sipiora Decl., ¶ 18 & Exh. H.) The parties communicated regarding Pacifica’s supplemental response to FI no. 216.1, during which Pacifica agreed to further supplement its response to FI no. 216.1, by December 20, 2024. (Id. at ¶¶ 19-25 & Exh. I.)

In support of its opposition to the FI motion, Pacifica submits a separate declaration of its counsel in which Medina concedes that Pacifica initially served only objections to FI no. 216.1, that Pacifica did not supplement its response to FI no. 216.1 until October 17, 2024, and that Pacifica agreed to serve a further supplemental response to FI no. 216.1 by December 20, 2024. (Medina Decl., ¶¶ 6, 9, 11 & 12.)

Medina contends that, because Sipiora would not initially agree to extend Pacifica’s time to respond to FI no. 216.1 beyond two days, Pacific served only objections to that FI in order to preserve those objections. (Medina Decl., ¶¶ 5-6.) Medina further asserts that on December 20, 2024, as stated in correspondence between the parties, Pacifica served a further supplemental response to FI no. 216.1. (Id. at ¶¶ 13, 15, & Exh. 11.) On that same date, Pacifica requested that Sipiora withdraw the FI motion. (Id. at ¶ 17 & Exh. 12.)

Pacifica’s motion for a protective order:

On January 8, 2025, Pacifica filed a motion for a protective order (the PO motion), regarding a second revised notice of deposition (the deposition notice) of Pacifica’s person most knowledgeable or “PMK”, which Sipiora served on December 9, 2024. In the PO motion, Pacifica requests that the Court sustain its objections to document demands (individually, Demand, and collectively, the Demands), nos. 3 through 71 and 74, and to categories or topics of examination (individually, Category, and collectively, the Categories) nos. 3 through 23, 25, 30, 31, 36, 39, and 40, each of which are set forth in the deposition notice. Alternatively, Pacifica requests that the scope of the Demands and Categories be narrowed.

In support of the PO motion, Pacifica submits a separate Medina declaration, in which Medina states that Sipiora initially served a notice of the deposition of Pacifica’s PMK on July 23, 2024 (the first deposition notice), in which Sipiora unilaterally scheduled the deposition for August 15, 2024. (Medina Decl., ¶ 3 & Exh. 1.) Pacifica served objections to the first deposition notice on August 8, 2024. (Id. at ¶ 4 & Exh. 2.)

Medina further asserts that, on September 26, 2024, following the parties’ efforts to meet and confer regarding the first deposition notice, Sipiora served a revised deposition notice (the revised deposition notice), unilaterally scheduling the deposition of Pacifica’s PMK for October 18, 2024. (Medina Decl., ¶ 6 & Exh. 3.) Pacifica served objections to the revised deposition notice. (Id. at ¶ 7 & Exh. 4.)

Between October 14 and November 20, 2024, the parties met and conferred regarding the examination topics and the document demands contained in the revised deposition notice, during which Pacifica agreed to produce witnesses as to some topics for examination. (Medina Decl., ¶ 8.) During this period, Pacifica also met and conferred with Sipiora regarding a protective order as to the examination topics and document demands stated in the revised deposition notice. (Ibid.)

On December 9, 2024, Sipiora served the deposition notice which is the only notice at issue in the PO motion, unilaterally scheduling the deposition of Pacifica’s PMK for January 9, 2025, and adding to and expanding the scope of the topics for examination described in the first deposition notice and revised deposition notice. (Medina Decl., ¶ 10 & Exh. 7.) Pacifica served objections to the deposition notice on January 2, 2025. (Id. at ¶ 11 & Exh. 8.)

Medina further asserts that Pacifica again met and conferred with Sipiora regarding a motion for protective order as to the deposition notice. (Medina Decl., ¶ 12.) Though Sipiora agreed to withdraw Demand no. 73, and Pacifica agreed to produce a witness as to Category nos. 1, 2, 24, 27 through 29, 32 through 35, and 37 through 38, the parties have been unable to agree to a date for the deposition of Pacifica’s PMK as to these Categories, or to the scope of the remaining Categories or Demands. (Id. at ¶ 12 & Exh. 9.)

The PO motion is opposed by Sipiora.

Sipiora’s motion for an order compelling the deposition of Pacifica’s PMK and production of documents:

On February 4, 2025, Sipiora filed a motion for an order (the PMK motion) compelling Pacifica to provide the deposition testimony of its PMK as to the Categories identified in the deposition notice, and to provide further responses to the Demands made in that notice. The PMK motion is opposed by Pacifica.

Analysis:

(1) The Contempt Motion

In the Minute Order, the Court directed Pacifica to provide a code-compliant further response to RFP no. 77, without objections overruled in that order except as to those based on privilege. The Court further directed Pacifica to provide a privilege log sufficiently identifying any responsive documents withheld by Pacifica on the grounds of any privilege. Sipiora offers no reasoned argument showing why the form or content of Pacifica’s further response to RFP no. 77 violates the Minute Order.

Pacifica was authorized by statute to include in its further response either a statement that Pacifica would comply either in whole or in part, or a representation that Pacifica lacked the ability to comply, with RFP no. 77. (Code Civ. Proc., §§ 2031.210, subd. (a)(1) & (2), & 2031.220.) Nothing in the Minute Order precluded Pacifica from including in its further response to RFP no. 77, a representation that Pacifica lacked the ability to comply with the request. (See also Code Civ. Proc., § 2031.230 [setting forth the required contents of a representation of inability to comply with a particular demand].) Considering that at the time the Minute Order was entered, the Court was not in an appropriate position to determine whether or not Pacifica’s response would include a representation of Pacifica’s inability to comply with RFP no. 77, the Minute Order could not reasonably have included an express or implied directive that Pacifica must produce documents responsive to RFP no. 77. (See Pollock v. Superior Court (2023) 93 Cal.App.5th 1348, 1352 [discussion of “distinction between a formal response … and the production itself[]”].)

In addition, though available information indicates that Pacifica has identified in its further response to RFP no. 77 documents which are responsive to that request, the Court is not presently in a procedurally appropriate position to determine whether there exist any deficiencies in Pacifica’s production of these documents. To the extent Sipiora contends that Pacifica’s further response to RFP no. 77 fails to comply with code requirements, or that Pacifica has failed to produce or to permit Sipiora to inspect any documents identified in its further response to RFP no. 77, Sipiora may file a procedurally appropriate motion, including for an order compelling Pacifica’s compliance with its statement of compliance. (See Code Civ. Proc., §§ 2031.280 [manner of production of documents] & 2031.320, subd. (a).)

For all reasons further discussed above, the Court does not find that Pacifica has violated the Minute Order. Therefore, the Court will deny the contempt motion, without prejudice to any future motion that may be filed by Sipiora as to any failure by Pacifica to produce documents identified in its further response to RFP no. 77.

(2) The FI Motion

The parties here do not dispute that on December 20, 2024, Pacifica served what Sipiora describes as a “third” supplemental response to FI no. 216.1, which is the only FI at issue in the FI motion. If a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) In exercising that discretion, the court may take the motion off-calendar, deny the motion as moot, or narrow the scope of the motion to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a).)

Though the motion is moot with respect to the form and content of Pacifica’s supplemental response to FI no. 216.1, Sipiora and Pacifica each request an award of sanctions against the other.

The undisputed evidence appearing in the record shows that Pacifica initially served only objections to FI no 216.1 on August 7, 2024, and did not agree to provide a substantive response to FI no. 216.1 until two months later, in response to Sipiora’s meet and confer efforts. (Sipiora Decl., ¶¶ 6-18; Medina Decl., ¶¶ 6-11.) The record also shows that on December 9 and 10, 2024, Pacifica’s counsel stated in correspondence to Sipiora’s counsel that Pacific would serve a supplemental response to FI no. 216.1 by December 20, 2024. (Sipiora Decl., Exh. I; Medina Decl., Exhs. 9-10.) Sipiora filed the FI motion on December 19, 2024, one day prior to the date Pacifica stated it would provide a further response. Pacifica supplemented its response to FI no. 216.1 on December 20, 2024. (Sipiora Decl., ¶¶ 18-25; Medina Decl., ¶¶ 12-15.)

Though Sipiora contends that that the further supplemental response to FI no. 216.1 served by Pacifica on December 20, 2024, includes the same deficiencies as those present in prior responses and is incomplete (reply at pp. 2-6), absent a procedurally appropriate motion demonstrating the parties’ good faith efforts to informally resolve any remaining disputes, and considering due process concerns, the Court declines to consider the merits of Sipiora’s contentions with respect to any deficiencies that remain in Pacifica’s December 20, 2024, supplemental response to FI no. 216.1.

Under the circumstances present here as further detailed above, the Court finds that an imposition of sanctions against either Sipiora or Pacifica is not warranted. (Code Civ. Proc., § 2030.300, subd. (d).) Therefore, the Court will exercise its discretion to deny the FI motion, without prejudice to the filing of an appropriate future motion to compel Pacifica to provide a further response to FI no. 216.1, if necessary, provided the parties meet and confer fully and in good faith prior the filing of any such future motion.

(3) The PO Motion

The PO motion is directed only to the deposition of Pacifica’s PMK as described in the deposition notice, and the Categories and Demands stated in that notice.

Service of a deposition notice under Code of Civil Procedure section 2025.240 “is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (Code Civ. Proc., § 2025.280, subd. (a).) Pacifica does not appear to contend, and offers no reasoned argument to show, that the deposition notice was not properly served by Sipiora, or that its form or content fails to comply with Code of Civil Procedure section 2025.210 et seq.

A party served with a deposition notice may serve written objections specifying any errors or irregularities in the deposition notice, provided the written objections are served “at least three calendar days prior to the date for which the deposition is scheduled….” (Code Civ. Proc., § 2025.410, subd. (a).) That party “may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” (Code Civ. Proc., § 2025.410, subd. (c).) In the PO motion, Pacifica also does not request an order staying the taking of the deposition of its PMK, or quashing the deposition notice based on any objections asserted by Pacifica.

Relevant here, a party may “promptly’ move for a protective order before a deposition, provided the motion is accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040, stating “facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040 & 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).)

Also relevant here, a protective order entered under Code of Civil Procedure section 2025.420 may include directives that “the deposition be taken only on certain specified terms and conditions”, that “certain matters not be inquired into”, that “the scope of the examination be limited to certain matters”, and that “all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.” (Code Civ. Proc., § 2025.420, subd. (b)(5) & (9)-(11).)

At issue in the PO motion are Category nos. 3 through 23, 25, 30, 31, 36, 39, and 40. For reasons more fully discussed below, the Court’s review of these Categories shows that the examination topics described in the deposition notice are broad and relatively onerous.

For example, under Category nos. 3 through 23, Sipiora seeks to examine the PMK of Pacifica on the following topics: the reasons, justifications, or explanations for Pacifica’s decision not to renew or extend its contracts with Dr. Yakushko and Dr. Sandoval and any protests or objections raised by any person regarding Pacifica’s decisions on these matters; “grievances, complaints, or allegations” concerning any violations of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) by Pacifica; any alleged acts of retaliation by Pacifica undertaken within the past 10 years against any person who opposed any practice forbidden under FEHA; grievances or complaints made by or on behalf of Peter Dunlap (Dunlap), Dr. Yakushko, Dr. Sandoval, Dr. Schewe, and Robyn Cass (Cass), including, among other things, reports, legal claims, investigations, discussions, “reactions”, or settlements concerning such grievances or complaints; Pacifica’s employment of Rojcewicz, Dr. Yakushko, Dr. Sandoval, Dr. Schewe, or Cass, including employment contracts or non-disclosure agreements with these persons, annual reviews, investigations, disciplinary actions, reviews, and grievances or complaints, among other things; communications concerning a vote of “no confidence” in Rojcewicz by Pacifica’s Faculty Senate and steps taken by Pacifica to investigate or address grievances and issues identified by the Faculty Senate. (Sep. Stmt. at p. 2, 5, 7, 11, 14, 17, 21, 23, 27, 30, 33, 36, 39, 42, 45, 48, 52, 55, 58, 61, 64.)

Under Category no. 25, Sipiora seeks to examine Pacifica’s PMK regarding any “instructions, guidelines, directions, or other statements” made by Pacifica concerning, among other things, notices of possible litigation served by Sipiora, Cass, Dr. Yakushko, or Dr. Sandoval. (Sep. Stmt. at p. 67.)

Though Pacifica fails to include the text of Category no. 30 in its separate statement, Category no. 31 seeks to examine the PMK regarding claims for insurance coverage made by Pacifica in relation to this lawsuit. (Sep. Stmt. at pp. 70 & 73.) Category nos. 36 and 39 relate to Dunlap’s application for a core faculty position, and any grievance or complaint made by Dunlap regarding a hostile work environment at Pacifica. (Id. at pp. 71 & 73.) Category no. 40 relates to any performance reviews or evaluations of Sipiora. (Id. at p. 75.)

In addition, the Demands contained in the deposition notice request that the PMK produce documents relating to the topics or issues for examination described above, as well as a myriad of other Categories. (Sep. Stmt. at pp. 76-283.)

Relevant here based on the allegations of the FAC further described above and the theories of liability alleged by Sipiora in this action, “an employee’s conduct may constitute protected activity for purposes of the antiretaliation provision of the FEHA not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA. It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by the FEHA.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043.)

Considering that protected activity under FEHA may be predicated on conduct that Sipiora reasonably believed to be discriminatory, whether or not that conduct is ultimately found to violate FEHA, it is presently unclear to the Court to what extent the broad examination topics described in the Categories and Demands at issue are necessary to the subject matter involved in this litigation. (See Code Civ. Proc., § 2017.010 [describing matters which are discoverable]; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [scope of discovery is not “limitless”].) The same reasoning and analysis apply as to Sipiora’s cause of action for retaliation under Labor Code section 1102.5. (Manavian v. Department of Justice (2018) 28 Cal.App.5th 1127, 1141-1142 [general discussion of a prima facie case of retaliation].)

In addition, considering the potentially unlimited scope of many of the Categories described above, there exists some question as to whether and to what extent the persons identified in these Categories have a legally protected reasonable expectation of privacy in the information and documents sought from Pacifica’s PMK. (See Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561 [recognizing a reasonable expectation of privacy in employee information].) For these reasons, there appears to exist some reasonable support for a protective order for the purpose of protecting any legitimate privacy rights of Pacifica’s former employees. (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145 [general discussion].)

Though not addressed by the parties here, the Court also questions whether or not and to what extent the nonparties identified in the deposition notice, who appear to be present or former employees of Pacifica, must be notified of Sipiora’s request for the information and documents described in the Categories and Demands further discussed above, in order to provide these nonparties with an opportunity to object to the disclosure of any protected information or documents.

Pacifica also submits a declaration of Norma Mesa (Mesa), who is Pacifica’s Director of Human Resources and who has been employed by Pacifica since February 10, 2017. (Mesa Decl., ¶ 2.) In the course of Mesa’s duties as Director of Human Resources, Mesa is responsible for and familiar with, among other things, Pacifica’s practices and procedures, including employment recordkeeping procedures for preparing and maintaining employment records and communications. (Id. at ¶ 3.) Mesa states that, in the ordinary course of business, Pacifica maintains a record of all its personnel, payroll, requests for accommodations, and related documents. (Ibid.)

Mesa has reviewed the deposition notice, including its Demands and Categories. (Mesa Decl., ¶ 4.) Though Mesa cannot definitively determine how long it would take to locate all relevant and responsive documents for review, Mesa estimates that it would require months, if not longer, of dedicated work in order to both coordinate with various departments within Pacifica to obtain and review Pacifica’s files, including email mailboxes, personnel files, student files, medical files, amongst other things, and to obtain documents responsive to Demands or Categories. (Ibid.) Mesa further asserts that, at a minimum, Pacifica would need review the mailboxes of students, faculty, staff, and other employees of Pacifica. (Id. at ¶ 5.)

Mesa declares that Pacifica assigns each of its students and employees individual email addresses. (Mesa Decl., ¶ 5.) Since 2014, Pacifica has had at least 1,514 workers, including 470 adjunct professors, 450 faculty members, 344 staff members, and 250 independent contractors. (Ibid.) Between Fall 2014 and Fall 2024, Pacifica enrolled 3,554 students and accordingly issued 4,818 student and employee email addresses, and maintained thousands of employee and student files. (Ibid.) Mesa asserts that the process of reviewing electronic or hard copy documents for each of these individuals would likely take several months, if not longer, because Pacifica’s Information Technology or “IT” Department, which would be responsible for assisting in obtaining the electronic documents consists of only three employees, one of which would be the most qualified and solely responsible for assisting Pacifica. (Ibid.) Mesa declares that the time required for the IT department to gather the requested information would take virtually all time away from normal duties and responsibilities for several months, resulting in a significant hardship to Pacifica. (Ibid.)

By way of example, Mesa notes that Demand nos. 3 through 6 seek “grievances, complaints, legal claims, reports, investigations, characterizations, responses, discussions, reactions, evaluations, and settlement agreements” concerning Dr. Yakushko, Dr. Sandoval, Dr. Schewe, and Cass without any limitation as to time. (Mesa Decl., ¶ 6; see also Sep. Stmt. at pp. 76, 79, 82-83, & 86.) Mesa states that if Demand nos. 3 through 6 were limited in time from January 1, 2020, through the present, and in scope to “grievances” or “complaints”, the electronic mailboxes relating to these employees would contain approximately 244,782 emails that must be gathered and reviewed. (Mesa Decl., ¶  6.) Mesa asserts that over 80 hours was expended by Pacifica to obtain preliminary information regarding the size of these electronic mailboxes alone, excluding any steps Pacifica would need to take to upload or review the electronic mailboxes and determine which documents are responsive to the Deposition RFP, which Mesa estimates will take at least two to three months per electronic mailbox. (Id. at ¶ 6.)

Considering the issues noted above, though Sipiora contends that the first time Pacifica raised any issues with the production of electronically stored information is in the PO motion, the information provided in the Mesa declaration is sufficient for present purposes to show that, to the extent the PMK of Pacifica is required to produce at a deposition all of the documents described in the Demands at issue, Pacifica will be subjected to a significant if not onerous burden and expense of the type that may justify the Court imposing conditions on the production of any electronically stored information designated in the deposition notice, including by allocating the expense to locate and gather the requested documents to Sipiora. (Code Civ. Proc., § 2025.420, subds. (b)(11), (c) & (f).)

For all reasons further discussed above, and notwithstanding whether or to what extent the scope of the Categories and Demands at issue are relevant to the subject matter of this litigation and discoverable, there presently appears to exists sufficient good cause for a protective order as to the terms and conditions under which the deposition of Pacifica’s PMK will proceed. Therefore, the Court will grant the PO motion, in part, and order that the deposition of the PMK of Pacifica proceed on the terms and conditions described below.

The Court further notes that the parties have already agreed to a protective order, which was approved by the Court on May 20, 2024. It is unclear to the Court whether Pacifica contends that the protective order already agreed to by the parties is insufficient, or that the protective order already entered in this action does not address the present dispute.

For all reasons discussed above, the Court will permit the deposition of Pacifica’s PMK to proceed presently as to one person and one topic or issue for examination which is representative of the discovery Sipiora seeks, and which shall be mutually selected by the parties from those described in the Categories and Demands. By way of illustration only, it appears appropriate for the deposition of Pacifica’s PMK to proceed as to any complaints of gender discrimination made by one person identified in the deposition notice, provided the examination topic and related Demands are each appropriately narrowed in scope. This example is not intended as an advisory opinion as to what topic or person the Court would ultimately find to be appropriate for purposes of this ruling.

In addition, the Court will order the parties to meet and confer fully and in good faith to reasonably narrow the scope of the deposition of Pacifica’s PMK in accordance with this ruling, and to narrow the scope of any Demands with the goal of reaching a relatively manageable number of documents to be produced by Pacifica’s PMK which are relevant to the person and topic for examination selected by the parties.

To the extent the parties reach an agreement as to the matters further discussed above, the Court will order Sipiora to serve a new deposition notice which reflects or describes the parties’ agreement as well as a mutually agreed upon date for the deposition of Pacifica’s PMK. To the extent the parties are unable to agree to the terms and conditions on which the deposition of Pacifica’s PMK will proceed, the Court’s ruling herein shall not preclude Sipiora from unilaterally re-noticing that deposition, provided the date selected by Sipiora is not earlier than two weeks after service of any new deposition notice, and the examination topics and document demands described in any new deposition notice are appropriately narrowed in accordance with this ruling.

As to any remaining persons, issues, topics, or documents described in the Categories and Demands and not included within any agreement reached by the parties, or to which the parties cannot agree, the Court will, at this stage of the proceedings, preclude the deposition of Pacifica’s PMK as to these matters, which will be reserved for later determination. The Court’s ruling herein is without prejudice to any appropriate future motions for protective orders, or motions to compel a subsequent deposition of Pacifica’s PMK, as to these remaining matters.

Pacifica and Sipiora each request an award of sanctions for fees and costs incurred by Pacifica and Sipiora to, respectively, make and oppose the PO motion. Under the circumstances present here, there exists substantial justification for both making and opposing the motion for reasons more fully discussed above. Therefore, the Court finds that the imposition of sanctions against either party would be, for present purposes, unjust. (Code Civ. Proc., § 2025.420, subd. (h).)

(4) The PMK Motion

Considering the Court’s ruling with respect to the PO motion, the Court will deny the PMK motion as moot. For all reasons further discussed above, the Court’s denial of the PMK motion is without prejudice to any appropriate future motion to compel the deposition of Pacifica’s PMK as to any remaining matters further described above.