This case was last updated from Los Angeles County Superior Courts on 07/02/2019 at 09:06:27 (UTC).

CELL-CRETE CORPORATION VS. SCOTT TAYLOR

Case Summary

On 05/29/2015 CELL-CRETE CORPORATION filed a Contract - Business lawsuit against SCOTT TAYLOR. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is DONNA FIELDS GOLDSTEIN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4101

  • Filing Date:

    05/29/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DONNA FIELDS GOLDSTEIN

 

Party Details

Plaintiff

CELL-CRETE CORPORATION

Defendants

GEORGE L. THROOP COMPANY

TAYLOR SCOTT

VIVIT DAVISON

Attorney/Law Firm Details

Plaintiff Attorneys

BRAULT DAVID L. LAW OFFICES

BRAULT DAVID LAWRENCE

Defendant Attorneys

THE LAW OFFICES OF CRAIG J. SILVER

MACDONALD SCOTT LEE

SCHLICHTER KURT ANDREW

 

Court Documents

Minute Order

10/23/2015: Minute Order

Minute Order

10/27/2015: Minute Order

Legacy Document

2/17/2016: Legacy Document

Proof of Service of Summons and Complaint

7/20/2016: Proof of Service of Summons and Complaint

Substitution of Attorney

1/26/2017: Substitution of Attorney

Legacy Document

6/15/2017: Legacy Document

Minute Order

8/18/2017: Minute Order

Legacy Document

10/23/2017: Legacy Document

Legacy Document

12/11/2017: Legacy Document

Legacy Document

12/11/2017: Legacy Document

Legacy Document

6/27/2018: Legacy Document

Legacy Document

6/29/2018: Legacy Document

Declaration

10/19/2018: Declaration

Minute Order

1/7/2019: Minute Order

Objection

1/18/2019: Objection

Declaration

1/28/2019: Declaration

Declaration

6/10/2019: Declaration

Notice of Intent to Appear by Telephone

6/27/2019: Notice of Intent to Appear by Telephone

282 More Documents Available

 

Docket Entries

  • 06/27/2019
  • Notice of Intent to Appear by Telephone; Filed by Scott Taylor (Defendant); Davison Vivit (Defendant)

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  • 06/24/2019
  • Notice of Ruling; Filed by Cell-Crete Corporation (Plaintiff)

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  • 06/24/2019
  • Notice of Ruling; Filed by Cell-Crete Corporation (Plaintiff)

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  • 06/21/2019
  • at 08:30 AM in Department B; Hearing on Motion for Terminating Sanctions - Held - Motion Denied

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  • 06/21/2019
  • at 08:30 AM in Department B; Hearing on Motion for Sanctions - Held - Motion Granted

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  • 06/21/2019
  • Order (Court's Order re: Plaintiff's Motions for Terminating, Issue, and Monetary Sanctions against Throop); Filed by Clerk

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  • 06/21/2019
  • Memorandum of Points & Authorities; Filed by Cell-Crete Corporation (Plaintiff)

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  • 06/21/2019
  • Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

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  • 06/21/2019
  • Declaration (DECLARATION OF BRYAN M. THOMAS IN OPPOSITION TO PLAINTIFF?S MOTION TO SERVE ORIGINAL INTERROGATORY RESPONSES AND ORIGINAL VERIFICATION); Filed by GEORGE L. THROOP COMPANY (Defendant)

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  • 06/21/2019
  • Request for Judicial Notice; Filed by Cell-Crete Corporation (Plaintiff)

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361 More Docket Entries
  • 06/26/2015
  • Minute order entered: 2015-06-26 00:00:00; Filed by Clerk

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  • 06/25/2015
  • Answer; Filed by Scott Taylor (Defendant); Davison Vivit (Defendant)

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  • 06/22/2015
  • Proof of Service of Summons and Complaint; Filed by Cell-Crete Corporation (Plaintiff)

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  • 06/18/2015
  • Proof of Service of Summons and Complaint; Filed by Cell-Crete Corporation (Plaintiff)

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  • 06/04/2015
  • First Amended Complaint; Filed by Cell-Crete Corporation (Plaintiff)

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  • 05/29/2015
  • Civil Case Cover Sheet; Filed by Cell-Crete Corporation (Plaintiff)

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  • 05/29/2015
  • Complaint filed-Summons Issued; Filed by null

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  • 05/29/2015
  • Summons; Filed by null

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  • 05/29/2015
  • Notice of Case Management Conference; Filed by Court

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  • 05/29/2015
  • OSC-Failure to File Proof of Serv; Filed by Court

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Tentative Rulings

Case Number: EC064101    Hearing Date: December 27, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

cell-crete corporation,

Plaintiff,

v.

scott taylor, et al.,

Defendants.

Case No.: EC064101

Hearing Date: December 27, 2019

[TENTATIVE] order RE:

plaintiff’s motion for order requiring throop to produce documents and pay monetary sanctions

BACKGROUND

  1. Allegations

Plaintiff Cell-Crete Corporation (“Plaintiff”) commenced this action against Defendants Scott Taylor (“Taylor”) and Davison Vivit (“Vivit”), who are alleged to be employed by Defendant George L. Throop Company dba Throop Cellular Concrete (“Throop”). Plaintiff alleges that in January 2015, Taylor had been Plaintiff’s Vice President and had managed the engineered-filled division of Plaintiff’s western operations and thus knew Plaintiff’s business practices and confidential trade secrets. Plaintiff alleges that Taylor was terminated in January 2015 when it learned that Taylor was seeking to set himself up with a competitor. At this time, Taylor convinced Vivit to leave with him. Thereafter, Taylor became President of Throop (a competitor of Plaintiff) and thus Taylor had a duty to avoid engaging in conduct that would negatively impact Plaintiff’s business. Plaintiff alleges that Taylor used Plaintiff’s customer and supplier list, took other trade secrets, and engaged in various other acts harmful to Plaintiff. (3AC, ¶16.) Plaintiff also alleges that Vivit too used its trade secrets and proprietary information in order to compete against Plaintiff.

The third amended complaint (“3AC”), filed September 18, 2017, alleges causes of action for: (1) damages for misappropriation of trade secrets in violation of the California Uniform Trade Secrets Act (Civil Code, §§3426-3426.11), and (2) intentional interference with economic relations.

  1. Discovery Motion on Calendar

On November 14, 2019, Plaintiff filed a motion for order requiring Throop to produce documents and pay monetary sanctions in the amount of $961.65. This would be better denominated as a motion to compel Throop’s further responses.[1] Plaintiff seeks further verified responses and the production of documents to Requests for Production and Inspection of Tangible Things, set six (“RPD”).

On December 16, 2019, Defendant filed an opposition to the motion.

DISCUSSION

Plaintiff moves for further responses to the following RPD Nos. 1-17 and 19-20 in set six. Plaintiff argues that the documents sought are relevant to ascertaining Plaintiff’s damages.

  1. RPD Nos. 1-5

RPD Nos. 1-5 seek lists of projects performed or for which bids were submitted. Specifically, the RPDs seek: (1) Throop’s project list identified by Adam Throop; (2)-(3) all documents listing the Cellular Foam Concrete projects Throop and Throop Cellular Concrete performed; and (4)-(5) all documents listing the Cellular Foam Concrete projects Throop and Throop Cellular Concrete submitted bids on.

Throop argues that the documents sought by Plaintiff are privileged trade secrets, particularly as Plaintiff and Throop are competitors. To the extent that documents exist, Throop should provide a privilege log. CCP §2031.240(c)(1) states: “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 ” By doing so, the parties may ascertain whether the claim of privilege validly applies.

The Court also notes that the terminology used in the RPDs is a bit vague or unclear. It is unclear if Plaintiff is seeking a list of projects only, or any documents that mention Cellular Foam Concrete projects performed and/or bid on. The Court will order that Throop provide documents sufficient to show the identity of any jobs on which Throop submitted a bid to perform Cellular Foam Concrete work or actually performed such work during the relevant time period.

RPD Nos. 6-9, 12-15

RPD Nos. 6-9 seek text messages and emails between Throop employees and Taylor/Vivit. RPD Nos. 12-15 seek text messages and emails between Throop Cellular Concrete employees and Taylor/Vivit.

Plaintiff argues that the requests are not vague, the documents sought are relevant to the claims and issues in this matter, and Throop should provide supplemental responses or a privilege log. However, Plaintiff has not specifically explained to the Court why such documents are necessary except to vaguely state that they are relevant to Plaintiff’s damages.

CCP § 2031.310 requires that a motion to compel further responses to requests for production be accompanied by specific facts showing good cause for the production of the documents sought in the motion. “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” (Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216, Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224.) Here, Plaintiff has not established good cause for the production of these documents. For each of the discovery at issue, Plaintiff argues that the documents are relevant to ascertain damages, without any further explanation.

In addition, the scope of the text message and emails sought is not narrowly tailored. Plaintiff essentially seeks all text messages and emails between Throop and Throop Cellular Concrete’s employees (on the one hand) with Taylor and/or Vivit (on the other) without any limitation as to scope of time or subject matter.

Further, as argued by Throop, such production of information may include the disclosure trade secret information.

Thus, the Court denies the motion as to RPD Nos. 6-9 and 12-15. Plaintiff should narrow the scope of the information sought in the text and email communications to only those matters that are relevant to this action and re-propound the discovery on Throop.

  1. RPD Nos. 10-11

RPD Nos. 10-11 seek documents prepared by third-parties relating to Throop and Throop Cellular Concrete’s Cellular Foam Concrete business.

Again, Plaintiff has not established good cause for the production of these documents. It is unclear what specific relevance these documents have on Plaintiff’s damages.

In addition, as pointed out by Throop, it is unclear what these RPD requests seek and essentially call for speculation as to all documents created by someone other than Throop or Throop Cellular Concrete. The Court agrees that the RPDs are vague. For example, is Plaintiff seeking any and all documents ever created from any period of time that mention “Cellular Foam Concrete”? Plaintiff’s RPDs should be more specific on what documents it is seeking instead of requesting any and all documents without limitation.

Thus, the Court denies the motion as to RPD Nos. 10-11. Plaintiff should narrow the scope of the information sought to only those matters that are relevant to this action and re-propound the discovery on Throop.

  1. RPD Nos. 16-17

RPD Nos. 16-17 seek documents relating to bonuses paid to Throop and Throop Cellular Concrete’s employees from January 1, 2015 through January 1, 2019.

Plaintiff argues that these documents are relevant to ascertaining its damages. However, Plaintiff does not further explain how bonuses paid to employees will tend to prove or disprove Plaintiff’s claim of damages (or the amount). It is also unclear why bonuses of each and every employee in any department and in potentially any office would be relevant to this action. Thus, the Court does not find that Plaintiff has established good cause for the production of these documents.

The motion is denied as to RPD Nos. 16-17.

  1. RPD Nos. 19-20

RPD Nos. 19-20 seek all documents between Throop and information technology assistant, Maurice Cueller, and between Throop Cellular Concrete with Mr. Cueller.

Plaintiff again argues that the documents are relevant to Plaintiff’s damages. However, Plaintiff does not explain further who Mr. Cueller is or his role in this action. Also, the RPDs seek all documents without any scope of time limitation or limitation as to scope, such that Plaintiff’s RPDs could potentially be requesting information on Mr. Cueller’s personal communications with Throop or Throop Cellular Concrete (such a sick/vacation leave, salary, etc.), which have no arguable relevance to this action and may constitute an invasion of Mr. Cueller’s privacy.

Thus, the Court denies RPD Nos. 19-20.

  1. Sanctions

In light of the ruling above, the Court denies Plaintiff’s request for sanctions.

The Court notes that Throop does not request sanctions in the opposition brief but only requests that Plaintiff’s request for sanctions be denied. Thus, no sanctions shall be awarded to either party.

CONCLUSION AND ORDER

Plaintiff’s motion to compel further responses to RPD Nos. 1-5 is granted in part. As to the remaining RPD’s, the motion is denied.

No sanctions shall be awarded in connection with this motion.

Plaintiff shall provide notice of this order.


[1] For future discovery motions, Plaintiff should properly reserve and caption its motions to compel further responses to display the correct type of relief it is seeking for the Court’s reservation system and docket.

Case Number: EC064101    Hearing Date: December 20, 2019    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

cell-crete corporation,

Plaintiff,

v.

scott taylor, et al.,

Defendants.

Case No.: EC064101

Hearing Date: December 20, 2019

[TENTATIVE] order RE:

(1) plaintiff’s motion for an order requiring throop to produce computer records;

(2) plaintiff’s motion for an order requiring throop to produce documents;

(3) taylor’s motion to quash deposition subpoena; and

(4) plaintiff’s motion for an order for evidentiary and monetary sanctions against vivit and monetary sanctions against throop

BACKGROUND

  1. Allegations

Plaintiff Cell-Crete Corporation (“Plaintiff”) commenced this action against Defendants Scott Taylor (“Taylor”) and Davison Vivit (“Vivit”), who are alleged to be employed by Defendant George L. Throop Company dba Throop Cellular Concrete (“Throop”). Plaintiff alleges that in January 2015, Taylor had been Plaintiff’s Vice President and had managed the engineered-filled division of Plaintiff’s western operations and thus knew Plaintiff’s business practices and confidential trade secrets. Plaintiff alleges that Taylor was terminated in January 2015 when it learned that Taylor was seeking to set himself up with a competitor. At this time, Taylor convinced Vivit to leave with him. Thereafter, Taylor became President of Throop (a competitor of Plaintiff) and thus Taylor had a duty to avoid engaging in conduct that would negatively impact Plaintiff’s business. Plaintiff alleges that Taylor used Plaintiff’s customer and supplier list, took other trade secrets, and engaged in various other acts harmful to Plaintiff. (3AC, ¶16.) Plaintiff also alleges that Vivit too used Plaintiff’s trade secrets and proprietary information in order to compete against Plaintiff.

The third amended complaint (“3AC”), filed September 18, 2017, alleges causes of action for: (1) damages for misappropriation of trade secrets in violation of the California Uniform Trade Secrets Act (Civil Code, §§3426-3426.11), and (2) intentional interference with economic relations.

  1. Motions on Calendar

There are 4 motions on calendar.

On November 5, 2019, Plaintiff filed a motion for evidentiary and monetary sanctions in the amount of $3,061.65 against Vivit for the destruction of evidence, and monetary sanctions against Throop in the amount of $9,610.93. Vivit filed his opposition on December 5, 2019. Plaintiff filed a reply on December 10, 2019.

On November 7, 2019, Plaintiff filed a motion to compel Throop to produce computer records and $961.65 monetary sanctions. Throop filed its opposition papers on December 9, 2019. Plaintiff filed a reply brief on December 12, 2019.

On November 8, 2019, Plaintiff filed a motion to compel Throop to produce documents and pay $961.65 monetary sanctions. Throop filed its opposition papers on December 9, 2019. Plaintiff filed a reply brief on December 11, 2019.

On November 18, 2019, Taylor filed a motion to quash a deposition subpoena for production of business records to AT&T GLDC issued by Plaintiff. Taylor also seeks $3,250.00 in sanctions. Plaintiff filed its opposition on December 9, 2019. Taylor filed a reply brief on December 13, 2019.

PLAINTIFF’S MOTION FOR EVIDENTIARY AND MONETARY SANCTIONS

Plaintiff moves for evidentiary/issue sanctions against Vivit, as well as monetary sanctions against Vivit and Throop for the destruction of evidence.

  1. Request for Judicial Notice and Evidentiary Objections

Plaintiff requests judicial notice of Peter Smith’s October 19, 2019 report. The Court declines to take judicial notice of the document. Rather, the Court will consider the report as evidence submitted with the moving papers. The Court thereby overrules the objection to the report.

Plaintiff submitted evidentiary objections to the declaration of Vivit. The objections are overruled.

  1. Evidentiary/Issue Sanctions against Vivit

Under CCP §2023.030, the Court may impose issue sanctions ordering that designated facts be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. (CCP §2023.030(b).) The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (CCP §2023.030(c).) Any motion for issue or evidentiary sanctions must be accompanied by a separate statement. (CRC Rule 3.1345(a)(7).)

Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.) Two prerequisites for the imposition of non-monetary sanctions are: (1) there must be a failure to comply; and (2) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) To avoid sanctions, the burden of proving that a discovery violation was not willful is on the party on whom the discovery was served. (Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252- 253.)

Plaintiff moves for evidentiary sanctions against Vivit for the destruction of evidence, such that: (1) Vivit is prevented from disputed that Plaintiff owned trade secrets; (2) Plaintiff’s information was a trade secret and it took reasonable steps to protects its trade secrets; (3) Vivit improperly acquired, disclosed, and used the trade secrets; (4) Plaintiff was harmed and Vivit was unjustly enriched by his actions; and (5) Vivit’s use, acquisition, or disclosure of the trade secrets was a substantial factor in causing Plaintiff’s damages and Vivit’s unjust enrichment.

By way of background, on December 20, 2018, the Court granted Plaintiff’s “motion for the inspection of documents and things but limit[ed] the inspection to Mr. Taylor’s computer or computers at Throop only, and to retrieving documents reflecting: ‘(1) current or prior versions (including deleted versions) of the Cell-Crete EF Tracking Sheet; and (2) documents and artifacts that contain any Cell-Crete data, including e-mails, contact lists, customer lists, prior bid history, and mix designs.’ The parties should retain a mutually agreed upon third-party forensic computer expert to perform the inspection.” Throop produced Taylor’s computer to Peter Smith (the parties’ agreed-to third-party consultant) on March 21, 2019, and Mr. Smith prepared a report wherein he determined that Cell-Crete related documents were on the Taylor’s computer and that steps had been undertaken to wipe Taylor’s hard drive on February 14, 2019. As a result, the Court granted Plaintiff’s motions for issue/evidence sanctions against Throop and Taylor as follows: (1) Throop cannot claim that it did not receive current and prior version of Plaintiff’s tracking sheets, documents, and artifacts containing Plaintiff’s contact lists, prior bid history, and mix designs; (2) Taylor cannot dispute that he improperly acquired, disclosed, and used Plaintiff’s contact lists, prior bid history, and mix designs, which Plaintiff took reasonable steps to protect; and (3) Throop and Taylor cannot claim that Plaintiff did not suffer damages as a result of Throop’s possession and use of current and prior versions of Plaintiff’s documents. By way of those sanctions, the Court stated it was only establishing the fact that Plaintiff was damaged, but the amount of damages must still be proven. (See Court’s 6/21/19 and 7/26/19 Minute Orders.)

On June 20, 2019, Plaintiff asked to inspect Vivit’s computers used while employed by Throop. On September 20, 2019, a laptop used by Vivit was produced to Mr. Smith. On October 19, 2019, Mr. Smith issued his report showing that on February 22, 2019, the operating system was re-installed such that the operating system used by Vivit no longer existed on the computer nor the profile used during his employment. (Brault Decl., Ex. A [10/19/19 Smith Report at p.2].) Mr. Smith reported that “[f]iles pertaining to, or associated with, a profile belonging to VIVIT can no longer be found on this machine” (laptop). (Id. at pp. 2, 7.)

Plaintiff argues that Vivit’s laptop was wiped in order for Defendants to avoid their discovery obligations, despite the Court’s December 2018 order that computer records. (The Court notes that the December 2018 order was limited to the computer(s) Taylor used while he was employed by Throop and not any other computers.) Plaintiff argues that the only explanation for such conduct was to prevent Plaintiff from discovering the scope of Vivit’s theft and use of Plaintiff’s trade secrets.

In opposition, Vivit provides his declaration wherein he states that he worked for Plaintiff from October 24, 2011 to May 8, 2015, and thereafter worked for Throop until February 22, 2019. (Vivit Decl., ¶2.) He states that while at Throop, he used 2 laptops to estimate and prepare bids. (Id., ¶3.) He believes the second laptop that he returned to Adam Throop was the one inspected by Mr. Smith and he used that laptop beginning August/September 2018 until February 2019 because his first laptop was not functioning property. (Id., ¶¶3-4.) Vivit states that he had taken the first (non-functioning) laptop to a third-party store and had recoverable files copied onto an external hard drive, which he transferred to the second laptop. (Id., ¶5.) He states that he still has the external hard drive and has not taken steps to delete or erase those files, as well as the first laptop. (Id., ¶¶5-6.) Vivit then explains the process he undertook to prepare bids on the laptops and that he would upload the bids to Throop’s Google Drive. (Id., ¶7.) He states that on February 22, 2019, he took the second laptop to a third-party store because he did not want his personal information stored on the laptop to remain after he turned it over to Throop. (Id., ¶8.) He states that the store representative informed him that re-installing the operating system was the best way to ensure his personal information would no longer be found on the laptop. (Id.) As a result, Vivit states that he agreed to the reinstallation of the operating system to protect his personal information and did not speak to Taylor or Adam Throop before doing so. (Id.) He states that he had no intent of frustrating the gathering of information related to the lawsuit and that all bids sent to contractors and associated files can be found on Throop’s Google Drive, as well as some documents on his external hard drive and first laptop.

Based on the declaration of Vivit, Vivit appears to be forthright with the reasons he re-installed the operating system on his second laptop and that he is amenable to producing the external hard drive as well as the first laptop for inspection. Thus, the Court does not find that Vivit willfully disobeyed a Court order or that Vivit engaged in sufficiently egregious misconduct in the discovery process at this time.

Thus, the Court will deny the motion for evidentiary and issue sanctions against Vivit at this time. As discussed below, Plaintiff has brought a motion to compel Throop to produce and make available for inspection computer(s)/records used by Vivit during his employment. At that time, Vivit’s first laptop and external hard drive should be produced. Depending on whether the external hard drive and first laptop have any information or lack thereof, Plaintiff may bring a renewed motion for sanctions against Vivit following another analysis by Mr. Smith.

  1. Monetary Sanctions

CCP §2023.030(a) states: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”

Plaintiff also seeks monetary sanctions against Vivit in the amount of $3,061.65 and against Throop in the amount of $9,610.93.

For the same reasons above, the Court denies the request for monetary sanctions against Vivit and Throop at this time.

PLAINTIFF’S MOTION TO COMPEL THROOP TO PRODUCE COMPUTER RECORDS

Plaintiff moves to compel Throop to produce certain computer records. Specifically, Plaintiff requests that Throop produce to Peter Smith of Smith DFI and/or grant physical access to Smith DFI to permit the inspection, forensic imaging and search by Smith DFI of, all computers, computer servers, electronic recording devices, peripheral storage devices, storage disks, backup storage tapes, internal storage drives, external storage drives, desktop computers, laptop computers, computer "notebooks", computer "tablets", cell phones, smart phones, personal data assistants and other electronic storage devices of every type and kind, including but not limited to SharePoint network locations, Google Drive online repositories, Outlook email systems, inclusive, which Vivit used at any time from January 1, 2014 to December 31, 2017 (hereinafter, “Specified Vivit Devices”), and which are in the possession, custody, or control of Throop and/or its agents, representatives, attorneys, employees, directors, managers, officers, regardless of their location, and regardless whether the Specified Vivit Devices are owned or leased by Throop. Plaintiffs’ request informed Throop that Smith DFI would search the Specified Vivit Devices for: (1) current or prior versions (including deleted versions) of Plaintiff’s EF Tracking Sheet; (2) documents and artifacts that contain any Plaintiff’s data, including e-mails, contact lists, customer lists, prior bid history, and mix designs; and (3) evidence of the existence of any wiping software or deletion of files from the Specified Vivit Devices, and Smith DFI may recover any files that have been deleted and note whether Throop withheld from production for inspection and copying any Specified Vivit Devices. Plaintiff sought the inspection to occur on July 30, 2019 at 444 North Fair Oaks Avenue, Pasadena, CA 91101, or other mutually convenient time and place.

In response, Throop objected on the basis that the demand is vague, overbroad, unreasonably burdensome, and not described with particularity; violates the attorney-client privilege and attorney work product doctrine; constitutes an invasion of Throop’s right to privacy and of third-party non-litigants; and the information sought is protected as trade secrets and/or proprietary business information. Without waiving objections, Throop responded that after making a diligent search and reasonable inquiry, and subject to the parties’ agreement to a protective order and limit on the inspection, it will produce Vivit’s laptop computer and the Google Drive system used by Throop.

Plaintiff argues that a further response is necessary because Peter Smith’s report found filed directly referencing Plaintiff “Cell-Crete” within the document names themselves and approximately 482 files created by Vivit and/or Taylor prior to 2016 (i.e., prior to when they both joined Throop). (See Mot. at Ex. A [10/19/19 Smith DFI Report at pp.5-6].) The Smith DFI report also states that the metadata analysis showed files created by Taylor and Vivit prior to 2015 in Throop’s Google Drive repository, but that Smith DFI could not determine the nature of the file content or determine any specific relevancy as Smith DFI was not an expert in the field of “Cellular Concrete” nor the internet bidding processes; thus, Smith DFI recommended that the file listings and/or content of the Google Drive be furnished to both parties with appropriate metadata for review. (Id. at p.7.)

Throop argues that the discovery sought is not reasonably calculated to lead to the discovery of admissible evidence. However, the documents found on Vivit’s devices used at Throop are relevant to determine which of Plaintiff’s documents or data that Vivit and/or Taylor may have used while they were employed with Throop—or, even if Vivit and/or Taylor did not use the documents, the documents of Plaintiff that they may have brought over that was available for other Throop employees to have access to and use.

Thus, the Court will find that the inspection sought is reasonably calculated to lead to the discovery of relevant and admissible evidence. However, the Court finds that Throop’s objection on the basis of overbreadth is valid. The Court addressed a similar request by Plaintiff of Throop’s computers, laptops, storage devices, etc. that would essentially grant Plaintiff unfettered permission to sift through any and all documents in Throop’s possession, though Plaintiff tries to limit this only to Vivit’s devices. (See Court’s 12/20/18 Order, fn. 1 above.)

Thus, the Court limits the inspection as follows: The inspection shall occur on a mutually agreeable date within 30 days of this order at 444 North Fair Oaks Avenue, Pasadena, CA 91101 and shall be conducted by Peter Smith of Smith DFI. Throop shall produce to Smith DFI and/or grant physical access to Smith DFI for the inspection, forensic imaging, and search of the computers (desktop, laptop, notebooks, and/or tablets), computer servers, storage and backup devices, company phones, and Vivit’s Throop email account that Vivit personally used at any time from January 1, 2014 to December 31, 2017, which are in the possession, custody, or control of Throop and/or its agents, representatives, attorneys, employees, directors, managers, officers, regardless of their location. This shall include the production of Vivit’s first laptop and external hard drive as well. Throop shall also make available the Google Drive system used by Throop, which Throop appears amenable to producing already. The inspection/search by Smith DFI shall be for the purpose of finding: (1) current or prior versions (including deleted versions) of Plaintiff’s EF Tracking Sheet within these specified devices and email used by Vivit and Throop’s Google Drive; (2) documents and artifacts that contain any Plaintiff’s data, including e-mails, contact lists, customer lists, prior bid history, and mix designs within these specified devices and email used by Vivit and Throop’s Google Drive; and (3) evidence of the existence of any wiping software or deletion of files from these specified devices and email used by Vivit. Smith DFI may recover any files that have been deleted from these devices/email/Google Drive and note whether Throop withheld them from production.

To ensure that any documents and information remain privileged and subject to trade secret and privacy protections, the parties may again want to consider the use of a protective order.

In light of the ruling above, the Court denies Plaintiff’s request for sanctions as both parties had partially meritorious arguments.

PLAINTIFF’S MOTION TO COMPEL THROOP TO PRODUCE DOCUMENTS

Plaintiff filed a motion for order requiring Throop to produce documents. According to the separate statement, the requests for production (“RPD”) at issue are Nos. 1 and 2, which ask for the production of: (1) all insurance policies that may provide or are providing coverage for this lawsuit; and (2) all excess insurance policies that may provide or are providing coverage for this lawsuit.

CCP §2017.210 states: “A party may obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. This discovery may include the identity of the carrier and the nature and limits of the coverage. A party may also obtain discovery as to whether that insurance carrier is disputing the agreement's coverage of the claim involved in the action, but not as to the nature and substance of that dispute. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial.” (CCP, §2017.210.)

In its initial response, Throop objected, stating that responding was impossible without speculation as to scope and meaning of the interrogatory due to vagueness; the RPDs sought documents protected by the attorney-client privilege and attorney work product doctrine; and the RPDs were burdensome and oppressive. Without waiving objections, Throop stated after a diligent search and reasonable inquiry into the matter, Throop is searching for the requested documents. In its supplemental response, Throop again objected and stated without waiving its objections that I will agree to provide non-privileged documents in its possession, custody, and control, including the Federated Insurance Policy.

Plaintiff argues that the insurance documents are relevant and may assist in the resolution of the case. In his August 23, 2019 deposition, Adam Throop confirmed that Throop was insured by Federated Mutual Insurance and guessed that Throop had been insured for 5-6 years, Throop had an umbrella policy through Federated, and did not know if Throop had an excess policy. (Mot., Ex. D [A. Throop Depo.].) Despite this testimony, Plaintiff argues that Throop has only produced 1 primary insurance policy for 1 policy period.

In opposition, Throop argues that it has already produced 2 distinct policies affording coverage in this lawsuit – policy nos. 9867061 and 9867062. Throop argues that Adam Throop testified in his deposition to the best of his knowledge, but that his testimony was not an affirmation that Throop definitely had 5-6 years of policies. Throop provides its counsel’s declaration, who states upon information and belief that there are no additional responsive documents that have not already been produced and that the only non-privileged responsive documents he is aware of is the 2 policies. (Thomas Decl., ¶1.)

To the extent that these are the only documents that are responsive, Throop (through its agent) should state and verify as such. However, to the extent that there are privileged documents, Throop should provide a privilege log regarding those documents and policies so that the parties may determine if in fact the documents are subject to privilege and whether a protective order is necessary.

Thus, Plaintiff’s motion to compel Throop to provide further responses to RPD Nos. 1 and 2 is granted to the extent that Throop is ordered to produce a privilege log of those documents that it claims to have but are subject to the attorney-client privilege and attorney work product doctrine. To the extent that no other documents exists, Throop may state as such in a verified response. The parties’ requests for sanctions in connection with this motion are denied.

TAYLOR’S MOTION TO QUASH DEPOSITION SUBPOENA

  1. Legal Standard

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. (CCP §1987.1(a).)

Pursuant to CCP §1985.3, prior to the date called for in the subpoena duces tecum for the production of documents, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum personally or if he is a party to his attorney of record. (CCP §1985.3(b).) Personal records include documents pertaining to a consumer (individual) and which are maintained by any “witness” which includes a telephone corporation which is a public utility. (CCP §1985.3(a)(1)-(2).) “A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.” (CCP §1985.3(f).)

Public Utilities Code, §2891(a) states:

(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber's consent, in writing, any of the following information:

(1) The subscriber's personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893, and also excluding billing information concerning the person calling which federal law or regulation requires a telephone corporation to provide to the person called.

(Pub. Util. Code, § 2891(a)(1).)

  1. Discussion

By way of background, the Court notes that this is Taylor’s second motion to quash a deposition subpoena issued on AT&T GLDC. Previously, on August 9, 2019, Plaintiff had served a Deposition Subpoena for Production of Business Records on AT&T GLDC, seeking: “All call logs associated with the phone number (415) 419-6876 [Taylor’s personal cell phone number] from November 1, 2014 through September 30, 2015.” (Mot. at Ex. 3 [8/9/19 Deposition Subpoena].) On October 4, 2019, the Court granted Taylor’s motion to quash the deposition subpoena issued on AT&T, stating that the Court was not in receipt of any evidence that proper notice of the deposition subpoena was provided to Taylor as a consumer and that Plaintiff had not obtained Taylor’s written consent before issuing the deposition subpoena on AT&T. (Mot. at Ex. 4 [Notice of Ruling].)

Now, Taylor moves to quash the Deposition Subpoena for Production of Business Records issued on AT&T GLDC issued on October 18, 2019. (Mot. at Ex. 1 [10/18/19 Deposition Subpoena].) According to the Deposition Subpoena, Plaintiff sought the production of the same records/documents as the prior subpoena by November 25, 2019. On October 18, 2019, Plaintiff served a Notice to Consumer on Taylor regarding the subject Deposition Subpoena. (Mot. at Ex. 2 [10/18/19 Notice to Consumer].)

Plaintiff argues in opposition that it needs Taylor’s phone records to determine if there is a causal connection between Taylor’s conduct and Plaintiff losing a project(s) and to prove damages. Plaintiff argues that the call records will show when Taylor made calls, who he was in contact with, and thus whether Taylor undermined Plaintiff’s bids. Plaintiff also argues that Public Utilities Code § 2891 does not apply because it refers to “residential subscribers.”

However, Civil Code, §1985.3 does not make any distinction with regard to personal records maintained by telephone corporations that are a public utility—whether the phone records sought are for residential subscribers or mobile phone users.[1] Also, Plaintiff has not cited to any affirmative case law showing that mobile phone records are discoverable in a manner that is different from residential phone records.

As such, for the same reasons discussed in the Court’s prior order granting Taylor’s first motion to quash the deposition subpoena issued on AT&T, the Court similarly grants Taylor’s second motion to quash the second deposition subpoena issued on AT&T. Again, there is no showing by Plaintiff that Taylor, as the consumer, consented in writing to the production of his phone records prior to Plaintiff issuing the deposition subpoena.

Though Plaintiff states that it lacks the means to discover such information, Plaintiff should consider propounding written discovery on Taylor, such as interrogatories whether Taylor contacted individuals for certain projects prior to making bids on behalf of Throop.

CONCLUSION AND ORDER

Plaintiff’s motion for evidence/issue sanctions against Vivit is denied at this time. Plaintiff’s request for monetary sanctions against Vivit and Throop is denied.

The Court grants in part Plaintiff’s motion to compel Throop to make available certain computer records. The inspection shall occur on a mutually agreeable date within 30 days of this order at 444 North Fair Oaks Avenue, Pasadena, CA 91101 and shall be conducted by Peter Smith of Smith DFI. Throop shall produce to Smith DFI and/or grant physical access to Smith DFI for the inspection, forensic imaging, and search of the computers (desktop, laptop, notebooks, and/or tablets), computer servers, storage and backup devices, company phones, and Vivit’s Throop email account that Vivit personally used at any time from January 1, 2014 to December 31, 2017, which are in the possession, custody, or control of Throop and/or its agents, representatives, attorneys, employees, directors, managers, officers, regardless of their location. This shall include the production of Vivit’s first laptop and external hard drive as well. Throop shall also make available the Google Drive system used by Throop, which Throop appears to be amenable to producing. The inspection/search by Smith DFI shall be for the purpose of finding: (1) current or prior versions (including deleted versions) of Plaintiff’s EF Tracking Sheet within these specified devices and email used by Vivit and Throop’s Google Drive; (2) documents and artifacts that contain any Plaintiff’s data, including e-mails, contact lists, customer lists, prior bid history, and mix designs within these specified devices and email used by Vivit and Throop’s Google Drive; and (3) evidence of the existence of any wiping software or deletion of files from these specified devices and email used by Vivit. Smith DFI may recover any files that have been deleted from these devices/email/Google Drive and note whether Throop withheld them from production. The parties should consider a protective order for this inspection and the records/information discovered thereto. The Court denies both parties’ request for sanctions in connection with this motion

Plaintiff’s motion to compel Throop to produce documents responsive to RPD Nos. 1-2 (re insurance) is granted to the extent that Throop is ordered to produce a privilege log of those documents that it claims to have but are subject to the attorney-client privilege and attorney work product doctrine. To the extent that no other documents exists, Throop may state as such in a verified response. The parties’ requests for sanctions in connection with this motion are denied.

Taylor’s motion to quash the deposition subpoena issued on AT&T is granted. Taylor’s request for sanctions is granted in the amount of $1,320.00 (7 hours x $180/hour, plus $60 filing fee). Plaintiff and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $1,320.00 to Taylor, by and through counsel, within twenty (20) days of notice of this order.

Taylor shall provide notice of this order.


[1] Although Ricardez v. Tedesco (Ct. App. Nov. 18. 2013) 2013 WL 6061596 at *4 is not a published case, the Court of Appeal had relied on Civil Code, §1985.3(f) and Public Utilities Code, §2891 to state that the respondent could not have subpoenaed Tedesco’s cell phone records from a public utility (Verizon) without his signed consent.