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WEBB LEGAL GROUP
treet, Suite 1200
s CA 94104
277-7200
155 Montgomer:
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WILLIAM T. WEBB #193832 ELECTRONICALLY
JENNIFER D. SU #291603 FILED
155 Montgomery Street, Suite 1200 Superior Court of California,
San Francisco, CA 94104 County of San Frencisco
(415) 277-7200 09/28/2016
(415) 277-7210 (fax) Se ncpomecanans
Attorneys for BILLFLOAT, INC., Deputy Clerk
RYAN GILBERT AND SEAN O’MALLEY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
GOLDEN PACIFIC BANK, N.A., Case No.: CGC-16-549804
Plaintiff,
v. DEFENDANT AND CROSS-
} COMPLAINANT BILLFLOAT, INC.’S
BILLFLOAT, INC., RYAN GILBERT, SEAN )
)
)
O'MALLEY, DOES 1-50,
REPLY BRIEF IN SUPPORT OF ITS
MOTION TO COMPEL FURTHER
RESPONSES TO FORM
Defendants. INTERROGATORIES, SET ONE,
SPECIAL INTERROGATORIES, SET
ONE, AND DEMAND FOR INSPECTION,
SET ONE, TO GOLDEN PACIFIC BANK,
BILLFLOAT, INC. N.A.
Cross-Complainant,
Date: October 5, 2016
Time: 9:00 a.m.
Dept: 302
v.
GOLDEN PACIFIC BANK, N.A., and ROES
1-50,
Cross-Defendants.
DD
DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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TABLE OF CONTENTS
TABLE OF CONTENTS «000.0... cccccseessesseeeessessesseeseessenesssssesssensssessessessasenseesnsnsesaserssnessassessasensenesnseses i
TABLE OF AUTHORITIES.
ANALYSIS. eccesesseseeseeseeeeeseeressesseeseeneestensesseeesnares
A. GPB tries to camouflage its refusal to engage in discovery by complaining that BillFloat
refused to meet and Confer... eceseecsseseseseesceeesesesecseesesessesteseseesesesseeessssisacenssesesseanseeeeesenee 2
1. GPB only supplemented a small fraction of the discovery requests. 0.0.0.0... 2
2. GPB didn’t provide substantive supplementation... ccesessesesesseereseseserseseeteareesaeetenenes 3
a. Inspection demands 3
b. Form interrogatories
c. Specially prepared interrogatories... 4
3. BillFloat didn’t move to compel many of the responses that were supplemented. ........... 4
4. Further meeting and conferring was not necessary because GPB refused to properly
supplement with Code-compliant responses following meet and confer attempts............ 4
5. GPB breached its duty to provide some responsive information. .......c.cce sees eee 4
B. For all its promises, GPB has still not produced documents. ..........ssssssecseeseeseeseesneess 5
C. There is nothing in the Discovery Act that requires BillFloat to repeatedly ask for
documents to be produced. 0. ec ese ees cesssesnssestesescseessesneassecessnsseersasseseesncenseeeeaesaes 5
D. BillFloat does not have to limit its discovery requests before GPB provides any of the
documents it has already found. ....cceeeseeesesesteseesesescsesteseeeesssnsseesseseeseeeseesseateneeneseeees 6
E. GPB has had seven months to comply with the discovery requests. .........csccesseseseeseeseeeseeee 7
F. Good cause exists for the discovery demands. ..........cccseccsssesessessesssesseseeseecenesecneaneneeseaeaneneaee 7
G. GPB argues that the discovery requests themselves are burdensome. ..........cscceeeeeeeeeeee 7
H. BillFloat is entitled to responses to form interrogatories 8.8, 9.1 and 9.2 concerning GPB
alleged damages.
I. BillFloat is entitled to know whether GPB has interviewed any individuals. .........0...0ccc0 9
J. Relief Requested. 0... ccececcsesssssssessesssresssscseesesessesnsnenesaesssesusnesseucseneesesecueneaeerencneceeneaseneansneeee 9
Ceo oor ee ee eee ree ec ee eee ere lelettelalababalalllededeietasatabaabsiaedetedeele 10
i
DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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TABLE OF AUTHORITIES
CASES
Coito v. Superior Court (2012) 54 Cal. 4th 480 oo... ccecceece ee eseecseeseeceeeaseneseenesteesesecsresseseesensensse 9
STATUTES
Code of Civil Procedure section 2031.210 ...cessesscsscseesesssesseseessesessesseseeussseresseseessseeseareseeere 5
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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As mentioned, at the July 26, 2016 hearing on Golden Pacific Bank, N.A.’s (“GPB’s”)
motion to quash, the Court strongly encouraged GPB to produce all documents related to
BillFloat, Inc. (“BillFloat”) immediately:
Again, I’m not precluding the production of documents, and that’s not before me,
but it seems to me all non-privileged documents that have anything to do with
BillFloat that are in the possession, custody and control of the bank should
be produced. Why even try to make it more narrow than that? Just anything that
has to do with BillFloat you should just produce that is not privileged; why not?
(Webb Decl., § 18, Ex. 15, p.19, Il, 20-26, emphasis added.) GPB did not do so. In fact, it has
not produced even one document since that date. (Supplemental Declaration of Jennifer D. Su,
2 (herein “Su Supp. Decl., §__.”).)
BillFloat even wrote to GPB’s counsel, reminding him of the Court’s admonition. Mr.
Onstott responded that GPB would be supplementing its production. (Webb Decl., ff] 19 — 20.)
GPB did not do so. (/d.)
On September 9, 2016, the last day to do so, not having received anything further from
GPB, BillFloat filed this motion to compel, thinking that perhaps the filing would prompt
compliant responses and a more robust production, and that GPB would follow up with a mea
culpa.
GPB has not done so. (/d.)
Instead, it defiantly argues that BillFloat had a duty to ask for the documents, once again,
and its failure to do so constitutes a failure to further “meet and confer.”
In a case in which BillFloat has produced 75,444 pages of “de-duplicated” documents,
GPB has produced only 21,555 pages, consisting largely of duplicates. (Su Supp. Decl., {J 2 &
3.) In other words, GPB has produced an estimated 10% of the documents BillFloat has
produced, at best.
Most tellingly, GPB only provided approximately 25 internal e-mails — the bulk of which
were “forwards” by one employee to others within GPB of e-mails the employee had received
from someone at BillFloat, usually with little or no commentary. GPB’s internal e-mails will
obviously include a great deal of information that is relevant to how the parties have done
business, to the interpretations to be placed on contractual terms that are hotly debated in this
case, and so forth. GPB simply must not be allowed to withhold these critical documents.
1
DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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BillFloat has reviewed the relatively small number of documents GPB has produced, and
has compared them to the inspection demands sent. This analysis demonstrates that GPB has not
complied with its discovery obligations in several critical respects. (Su Supp. Decl., 4.) As
demonstrated in the spreadsheet attached to the Declaration of Jennifer Su, these break down as
follows:
* GPB has definitely not produced any documents responsive to the following
inspection demands: 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 30, 39, 40, 43, 44, 50,
51, 52, 53, 87, 89, 91, 93, 95, 102, 103, 109, 110, 111, 112, and 113. (Su Supp.
Decl., { 5.)
* In addition, it does not appear that GPB has produced any documents responsive to
the following inspection demands: 7, 8, 10, 31, 32, 33, 34, 38, 45, 47, 49, 62, 104,
105, and 106. (Su Supp. Decl., § 6.)
* GPB has produced some documents in response to the following, but has produced
less than 25 internal e-mails: 1, 2, 3, 4, 5, 12, 14, 26, 27, 28, 29, 55, 56, 59, 63, 64,
65, 66, 67, 68, 69, 70, 71, 76, 80, 82, 83, 84, 92, and 99. (Su Supp. Decl., § 7.)
* With respect to the following inspection demands, GPB only produced some
documents regarding underwriting standards, but GPB continues to withhold all
other documents, including internal correspondence: 41 and 42. (Su Supp. Decl., J
8.)
* With respect to the following inspection demand, GPB only produced drafts of
license agreements, but GPB continues to withhold all other documents, including
internal correspondence: 56. (Su Supp. Decl., § 9.)
ANALYSIS
A. GPB tries to camouflage its refusal to engage in discovery by complaining that
BillFloat refused to meet and confer.
To read GPB’s opposition, it seems like BillFloat utterly failed to meet and confer.
However, when one scratches the surface of this argument, it quickly disintegrates, for several
reasons.
1. GPB only supplemented a small fraction of the discovery requests.
After BillFloat sent its initial meet and confer letter, GPB agreed to supplement some of
its responses, but refused to supplement the vast majority of them. Specifically, BillFloat’s meet
and confer letter included a discussion of:
* 83 inspection demands. Of these, GPB provided supplemental responses for only
15 of them. It refused to supplement 68 of the responses. With respect to the 15
that were “supplemented,” GPB still refused to provide substantive, Code-
compliant responses, and continues to withhold documents to 11 of the requests.
BillFloat moved to compel 79 of the inspection demands.
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.3) 277-7200
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¢ 7 form interrogatories. GPB supplemented all of them, but refused to address
BillFloat’s concerns related to four of them. BillFloat had stated its position as to
these four; GPB refused to provide the information. This constitutes “meeting and
conferring.” Further correspondence would have been futile and a waste of
resources. BillFloat has moved to compel these four, and has not moved to compel
the three that were arguably appropriately supplemented.
‘ogatories. GPB supplemented 14, and refused to
supplement two. BillFloat did not move to compel those that were supplemented.
It has only moved to compel the two that were not supplemented.
* One request for admission. GPB supplemented the request for admission at issue
in the meet and confer letter, and so it is not subject to this motion to compel.
(Su Supp. Decl., § 10, Ex. A.)
2. GPB didn’t provide substantive supplementation.
A review of the allegedly supplemental responses demonstrates that they provided
virtually no new substantive information, and failed to respond to the deficiencies detailed in the
original meet and confer letter that prompted them.
a. Inspection demands
GPB’s supplemental responses did not contain any new substantive material. The 15
responses GPB supplemented break down as follows.
* In response to eight of the inspection demands (numbers 38, 82, 84, 87, 89, 91, 93
and 95), GPB admitted it had found responsive documents. However, instead of
providing them, and then meeting and conferring as to whether further response is
warranted, GPB stated that it refuses to provide the documents it has already
located until BillFloat agrees to limit the scope of the request. This is not how the
Discovery Act works.
* In response to three of the requests (104 — 106), GPB unfairly limited its response
to documents that BillFloat already has, and then failed to produce even these.
* BillFloat did not move to compel as to four of the inspection demands.
b. Form interrogatories
For three of the supplemental responses to form interrogatories (8.8, 9.1, 9.2), GPB claims
to not be able to provide any such information because necessary information is in the possession
of BillFloat. However, it admits that BillFloat has provided at least some information, but that it
has not had time to review it yet. GPB should be ordered to provide responses based on the
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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information it has; if it discovers more information later, it can always supplement its responses
consistent with the provisions of the Discovery Act.
For one of the form interrogatories (12.2), BillFloat simply restated its prior objection.
c Specially prepared interrogatories
As mentioned, GPB did not supplement the two specially prepared interrogatories at issue
in this motion (14 and 15).
3. BillFloat didn’t move to compel many of the responses that were
supplemented.
As mentioned above, many of the discovery responses were supplemented satisfactorily.
For example, of the 16 specially prepared interrogatories that were at issue in the meet and confer
letter, GPB supplemented 14, and BillFloat did not need to move to compel them. GPB refused
to supplement two of them, forcing BillFloat to file this motion.
4, Further meeting and conferring was not necessary because GPB refused to
properly supplement with Code-compliant responses following meet and
confer attempts.
The facts are that BillFloat met and conferred by sending a very comprehensive letter,
detailing all of the defects in the responses. GPB agreed to supplement its responses for a small
fraction of the requests at issue (37 of 112). Of these 37, the vast majority (22) are not at issue in
this motion. This leaves 15 requests of the 85 at issue in this motion that were supplemented
somewhat; however, with respect to these fifteen, they failed to address the infirmities already set
forth in the initial meet and confer letter. Sending a second meet and confer letter that simply
restated what had already been said would have been a waste of resources. “The law neither does
nor requires idle acts.” Civil Code section 3532.
5, GPB breached its duty to provide some responsive information.
Recall that for 8 of the inspection demands (numbers 38, 82, 84, 87, 89, 91, 93 and 95),
GPB admits it has found responsive documents, but refuses to provide them. In effect, it is
holding the documents hostage, trying to exert leverage upon BillFloat to agree to limit its
requests. As a specific example, see Inspection Demand 38:
DEMAND FOR INSPECTION NUMBER 38. Any and all DOCUMENTS consisting
of, pertaining to, relating or referring to any and all COMMUNICATION YOU had with
BETTER FINANCE from January 1, 2013 regarding its BELIEF SYSTEM.
Mi
M/
Ml
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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SUPPLEMENTAL RESPONSE TO DEMAND FOR INSPECTION NO. 38:
* * * * *
Contingent upon Responding Party and Propounding Party meeting and conferring to
limit the scope of the request, Responding Party will produce all non-privileged
DOCUMENTS that constitute COMMUNICATION GPB had with BETTER FINANCE
regarding the BELIEF SYSTEM, that Responding Party has located after a reasonable and
diligent search.
(Webb Decl., Ex. 14, pp. 28 — 29, italicized emphasis added.) This is not conduct sanctioned by
the Discovery Act. Code of Civil Procedure section 2031.210 provides in part:
(a) 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:
() 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.
These are the permissible, i.e. “Code-compliant,” responses. A statement that documents have
been found but are being withheld to extract an advantage is not a Code-compliant response.
B. For all its promises, GPB has still not produced documents.
GPB argues that if BillFloat had sent another meet and confer letter, GPB would have
responded by promising to provide another set of documents. (GPB’s Opposition, p. 1, ll. 23 —
25, herein “GPB Opp., p.__, ll.__:__.”) This is a groundless assertion. In making this argument,
GPB does not explain many things, including:
* What prevented it from explaining that it was involved in further production and
seeking more time.
* Why it still has not produced any more documents, especially after being told by
the Court to do so.
* Why it did not contact BillFloat, explaining that more documents are coming, and
extending BillFloat’s time within which to file this motion.
Many more questions abound regarding this baseless argument.
5
DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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Cc There is nothing in the Discovery Act that requires BillFloat to repeatedly ask for
documents to be produced.
Again, GPB argues that before filing this motion, BillFloat had a duty to ask one more
time whether GPB intended to produce more documents. The Discovery Act does not require this
extraordinary level of meeting and conferring. All it requires is a reasonable attempt. The
following circumstances demonstrate this reasonable standard has been met.
* BillFloat sent an extensive meet and confer letter, outlining every reason that 112
of GPB’s responses were deficient.
* GPB only agreed to supplement 37 of them.
* Of these 37, 15 of them were not substantively supplemented.
* These 15 supplemental responses remained deficient for the reasons already set
forth in the extensive meet and confer letter.
* Instead of complying with its discovery responsibilities, GPB filed a petition for
writ of mandamus with the Court of Appeal.
* The Court told GPB to provide all documents related to BillFloat in its possession.
* Immediately after this, BillFloat met and conferred with GPB, asking if it intended
to comply with the Court's directive.
* GPB promised it would do so.
* Instead, it applied to the Court of Appeal for a stay, which was granted.
* In connection with the stay, the Parties discussed pushing out the deadlines for
filing motions to compel, and agreed that BillFloat’s deadline for filing this motion
would be extended until September 9, 2016.
* GPB knew that this deadline was approaching.
* Despite this knowledge, GPB did not provide any further documents, or offer to
extend the deadline to file this motion.
* Once this motion was filed, BillFloat has still refused to provide any more
documents, preferring instead to try to fight this motion on technical grounds.
Under these circumstances, it is clear that no amount of meeting and conferring would
have been sufficient. If the filing of this motion itself has not changed GPB’s production at all, it
is clear that another letter or phone call would have accomplished nothing.
D. BillFloat does not have to limit its discovery requests before GPB provides any of the
documents it has already found.
As mentioned, in supplemental response to 8 of the inspection demands (numbers 38, 82,
84, 87, 89, 91, 93 and 95), GPB states that it has located responsive documents, but it is
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.3) 277-7200
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withholding them until after BillFloat narrows its demand. Why should BillFloat have to narrow
its demand before it receives the documents GPB has already found? What further burden will
GPB allegedly suffer by having to produce documents it has already located? GPB does not say.
Of course, its real reasons are not sanctioned by the Code. GPB wants BillFloat to agree to some
narrowing so that at least some of the documents already located do not have to be produced.
This is not consistent with this Court’s admonition to GPB’s counsel that “all non-privileged
documents that have anything to do with BillFloat that are in the possession, custody and control
of the bank should be produced.” (Webb Decl., § 18, Ex. 15, p.19, Il. 20-26.) Nor is it consistent
with the Discovery Act.
Moreover, GPB asks BillFloat to narrow the requests by identifying types of documents it
wants. BillFloat has no idea what types of documents exist in response to its legitimate inspection
demands. GPB does. GPB asks BillFloat to guess what types of documents exist, and if it
guesses wrong, well, GPB will not produce the documents. This just is not the law. Accordingly,
BillFloat has declined the invitation to limit its inspection demands just to receive the documents
that GPB has already located in response to the legitimate inspection demands.
E. GPB has had seven months to comply with the discovery requests.
The discovery requests at issue were propounded on February 22, 2016. It now complains
that it has not had enough time to produce documents. Instead, GPB’s counsel has been busy
filing all kinds of motions in this case and others, mostly related to venue and the form of the
pleadings. GPB has also filed an unsuccessful petition for writ of mandate in this case. GPB now
claims that it has not had enough time to fulfill its discovery responsibilities.
F. Good cause exists for the discovery demands.
In its next attempt to avoid its discovery obligations, GPB argues that BillFloat has not
demonstrated good cause for its discovery. And yet this is not true. Just as GPB did in its
opposition, BillFloat sets forth at some length (but with requisite brevity) the facts underlying this
case, to provide context for the Court in its determination of this motion, and demonstrating good
cause.
G. GPB argues that the discovery requests themselves are burdensome.
GPB argues that the discovery requests are overly broad and have therefore been
propounded for an improper purpose. However, it is important to note that GPB has been even
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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more comprehensive in the discovery it has propounded. The following chart enumerates the
discovery propounded by each side, so far.
Discovery Set Propounded by BillFloat Propounded by GPB
Form Interrogatories 63 (sets 1-5) 12 (Sets 1 — 2)
Inspection Demands, Set 1 113 86
Requests for Admission, Set |_| 12
Specially Prepared 77 141
Interrogatories, Set 1
Inspection Demands, Set 2 57 64
Specially Prepared 57 35
Interrogatories, Set 2
Requests for Production of 54
Documents [sic], Set 3
Special Interrogatories, Set 3 155
Requests for Production of 75
Documents [sic], Set 4
Special Interrogatories, Set 4 163
Total Specially Prepared 134 497
Interrogatories
Total Inspection Demands 170 282
Total Discovery Requests 379 791
Candidly, given the number of issues in this case and the complexity of the case, there is still
room for both parties to conduct more written discovery (although GPB has already sought
essentially every document BillFloat has, and therefore much more written discovery propounded
by GPB will border on the abusive). But the point is that GPB argues that the amount of
discovery BillFloat has propounded is abusive. It is a fraction of the discovery propounded by
GPB. GPB cannot be heard to complain it is abusive.
H. BillFloat is entitled to responses to form interrogatories 8.8, 9.1 and 9.2 concerning
GPB alleged damages.
GPB argues that it does not have to provide this information, because its answer depends
upon information BillFloat is withholding. This is not a tenable position.
In its discovery requests, GPB has asked for documents from which it can calculate its
damages. The very real problem is that these documents are voluminous and include all manner
of personally identifying information related to third parties. GPB has not provided notices to
consumers to these third parties, and has not agreed to pay for the costs of doing this, or for the
costs of redacting the thousands upon thousands of documents, which is expected to be very
costly to do.
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DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
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Based on this, GPB could have simply withheld all information and refused to produce
any information. However, rather than simply withhold the information, BillFloat created
comprehensive summaries of the very information GPB needs to calculate its alleged damages,
and produced these summaries in native spreadsheet format, so that GPB could easily work with
the numbers and calculate its damages. Instead, GPB has refused to answer the interrogatories
altogether. It should be ordered to answer based on the information it has. If it needs to refine
this information as discovery and investigation continue, it will have that opportunity.
I. BillFloat is entitled to know whether GPB has interviewed any individuals.
GPB argues that it does not have to answer Form Interrogatory 12.2 based on Coito v.
Superior Court (2012) 54 Cal.4th 480, However, GPB misses the mark on its analysis of Coito.
In Coito, the California Supreme Court discussed Form Interrogatory 12.3, not 12.2, which is it
issue here. In connection with form interrogatory 12.3, the court held in relevant part as follows.
[IJnformation responsive to form interrogatory No. 12.3 is not automatically
entitled as a matter of law to absolute or qualified work product privilege.
Instead, the interrogatory usually must be answered. However, an objecting
party may be entitled to protection if it can make a preliminary or foundational
showing that answering the interrogatory would reveal the attorney’s tactics,
impressions, or evaluation of the case, or would result in opposing counsel taking
undue advantage of the attorney’s industry or efforts. Upon such a showing, the
trial court should then determine, by making an in camera inspection if necessary,
whether absolute or qualified work product protection applies to the material in
dispute. Of course, a trial court may also have to consider nonparty witnesses’
privacy concerns. (See Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2011) {ff 8:298 to 8:299.15, pp. 8C-88 to 8C-89
(rev. # 1, 2001).)
54 Cal.4th at 502, emphasis supplied. So, in this (“usual”) case, the interrogatory “must be
answered.” (/d.) GPB has made no showing or established any foundation that “answering the
interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would
result in opposing counsel taking undue advantage of the attorney’s industry or efforts.” (/d.)
J. Relief Requested.
Accordingly, BillFloat seeks the following relief.
* GPB has definitely not produced any documents responsive to the following
inspection demands, and should be ordered to provide Code-compliant responses
and responsive documents: 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 30, 39, 40, 43,
44, 50, 51, 52, 53, 87, 89, 91, 93, 95, 102, 103, 109, 110, 111, 112, and 113.
9
DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.WEBB LEGAL GROUP
mery Street, Suite 1200
a
&
=
* In addition, it does not appear that GPB has produced any documents responsive to
the following inspection demands, and should be ordered to provide Code-
compliant responses and responsive documents, and, to the extent that GPB asserts
it has already provided responsive documents, it should be ordered to identify the
documents, preferably by Bates number so that BillFloat can locate them: 7, 8, 10,
31, 32, 33, 34, 38, 45, 47, 49, 62, 104, 105, and 106.
* GPB has produced some documents in response to the following and should be
ordered to provide Code-compliant responses and responsive documents, including
all internal e-mail (i.e. e-mail correspondence that took place within GPB itself): 1,
2, 3, 4, 5, 12, 14, 26, 27, 28, 29, 55, 56, 59, 63, 64, 65, 66, 67, 68, 69, 70, 71, 76,
80, 82, 83, 84, 92, and 99.
* With respect to the following inspection demands, GPB only produced some
documents regarding underwriting standards, but GPB continues to withhold all
other documents, including internal correspondence, and should be ordered to
provide Code-compliant responses and responsive documents, including all
internal e-mail (i.e. e-mail correspondence that took place within GPB itself): 41
and 42,
* With respect to the following inspection demand, GPB only produced drafts of
license agreements and a limited number of internal correspondence, but GPB
continues to withhold all other documents and should be ordered to provide Code-
compliant responses and responsive documents, including all internal e-mail (i-e.
e-mail correspondence that took place within GPB itself): 56.
* GPB should be ordered to provide Code-compliant responses to special
interrogatories numbered 14 and 15.
* GPB should be ordered to provide Code-compliant responses to form
interrogatories numbered 8.8, 9.1, 9.2, and 12.2.
CONCLUSION
BillFloat is entitled to proper, Code-compliant, complete responses and documents, with
verifications. The court should order GPB to immediately provide the same. It should also award
attorney’s fees given the necessity of this motion and BillFloat’s obvious bad faith.
Date: September 28, 2016 Respectfully submitted,
AMT. WEBB #193832
JENNIFER D. SU #291603
Attorneys for BILLFLOAT, INC.
10
DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL,
INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK,
N.A.
Preview
WEBB LEGAL GROUP treet, Suite 1200 s CA 94104 277-7200 155 Montgomer: 10 11 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 WILLIAM T. WEBB #193832 ELECTRONICALLY JENNIFER D. SU #291603 FILED 155 Montgomery Street, Suite 1200 Superior Court of California, San Francisco, CA 94104 County of San Frencisco (415) 277-7200 09/28/2016 (415) 277-7210 (fax) Se ncpomecanans Attorneys for BILLFLOAT, INC., Deputy Clerk RYAN GILBERT AND SEAN O’MALLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) GOLDEN PACIFIC BANK, N.A., Case No.: CGC-16-549804 Plaintiff, v. DEFENDANT AND CROSS- } COMPLAINANT BILLFLOAT, INC.’S BILLFLOAT, INC., RYAN GILBERT, SEAN ) ) ) O'MALLEY, DOES 1-50, REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM Defendants. INTERROGATORIES, SET ONE, SPECIAL INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, BILLFLOAT, INC. N.A. Cross-Complainant, Date: October 5, 2016 Time: 9:00 a.m. Dept: 302 v. GOLDEN PACIFIC BANK, N.A., and ROES 1-50, Cross-Defendants. DD DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & Sa TABLE OF CONTENTS TABLE OF CONTENTS «000.0... cccccseessesseeeessessesseeseessenesssssesssensssessessessasenseesnsnsesaserssnessassessasensenesnseses i TABLE OF AUTHORITIES. ANALYSIS. eccesesseseeseeseeeeeseeressesseeseeneestensesseeesnares A. GPB tries to camouflage its refusal to engage in discovery by complaining that BillFloat refused to meet and Confer... eceseecsseseseseesceeesesesecseesesessesteseseesesesseeessssisacenssesesseanseeeeesenee 2 1. GPB only supplemented a small fraction of the discovery requests. 0.0.0.0... 2 2. GPB didn’t provide substantive supplementation... ccesessesesesseereseseserseseeteareesaeetenenes 3 a. Inspection demands 3 b. Form interrogatories c. Specially prepared interrogatories... 4 3. BillFloat didn’t move to compel many of the responses that were supplemented. ........... 4 4. Further meeting and conferring was not necessary because GPB refused to properly supplement with Code-compliant responses following meet and confer attempts............ 4 5. GPB breached its duty to provide some responsive information. .......c.cce sees eee 4 B. For all its promises, GPB has still not produced documents. ..........ssssssecseeseeseeseesneess 5 C. There is nothing in the Discovery Act that requires BillFloat to repeatedly ask for documents to be produced. 0. ec ese ees cesssesnssestesescseessesneassecessnsseersasseseesncenseeeeaesaes 5 D. BillFloat does not have to limit its discovery requests before GPB provides any of the documents it has already found. ....cceeeseeesesesteseesesescsesteseeeesssnsseesseseeseeeseesseateneeneseeees 6 E. GPB has had seven months to comply with the discovery requests. .........csccesseseseeseeseeeseeee 7 F. Good cause exists for the discovery demands. ..........cccseccsssesessessesssesseseeseecenesecneaneneeseaeaneneaee 7 G. GPB argues that the discovery requests themselves are burdensome. ..........cscceeeeeeeeeeee 7 H. BillFloat is entitled to responses to form interrogatories 8.8, 9.1 and 9.2 concerning GPB alleged damages. I. BillFloat is entitled to know whether GPB has interviewed any individuals. .........0...0ccc0 9 J. Relief Requested. 0... ccececcsesssssssessesssresssscseesesessesnsnenesaesssesusnesseucseneesesecueneaeerencneceeneaseneansneeee 9 Ceo oor ee ee eee ree ec ee eee ere lelettelalababalalllededeietasatabaabsiaedetedeele 10 i DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = TABLE OF AUTHORITIES CASES Coito v. Superior Court (2012) 54 Cal. 4th 480 oo... ccecceece ee eseecseeseeceeeaseneseenesteesesecsresseseesensensse 9 STATUTES Code of Civil Procedure section 2031.210 ...cessesscsscseesesssesseseessesessesseseeussseresseseessseeseareseeere 5 ii DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = As mentioned, at the July 26, 2016 hearing on Golden Pacific Bank, N.A.’s (“GPB’s”) motion to quash, the Court strongly encouraged GPB to produce all documents related to BillFloat, Inc. (“BillFloat”) immediately: Again, I’m not precluding the production of documents, and that’s not before me, but it seems to me all non-privileged documents that have anything to do with BillFloat that are in the possession, custody and control of the bank should be produced. Why even try to make it more narrow than that? Just anything that has to do with BillFloat you should just produce that is not privileged; why not? (Webb Decl., § 18, Ex. 15, p.19, Il, 20-26, emphasis added.) GPB did not do so. In fact, it has not produced even one document since that date. (Supplemental Declaration of Jennifer D. Su, 2 (herein “Su Supp. Decl., §__.”).) BillFloat even wrote to GPB’s counsel, reminding him of the Court’s admonition. Mr. Onstott responded that GPB would be supplementing its production. (Webb Decl., ff] 19 — 20.) GPB did not do so. (/d.) On September 9, 2016, the last day to do so, not having received anything further from GPB, BillFloat filed this motion to compel, thinking that perhaps the filing would prompt compliant responses and a more robust production, and that GPB would follow up with a mea culpa. GPB has not done so. (/d.) Instead, it defiantly argues that BillFloat had a duty to ask for the documents, once again, and its failure to do so constitutes a failure to further “meet and confer.” In a case in which BillFloat has produced 75,444 pages of “de-duplicated” documents, GPB has produced only 21,555 pages, consisting largely of duplicates. (Su Supp. Decl., {J 2 & 3.) In other words, GPB has produced an estimated 10% of the documents BillFloat has produced, at best. Most tellingly, GPB only provided approximately 25 internal e-mails — the bulk of which were “forwards” by one employee to others within GPB of e-mails the employee had received from someone at BillFloat, usually with little or no commentary. GPB’s internal e-mails will obviously include a great deal of information that is relevant to how the parties have done business, to the interpretations to be placed on contractual terms that are hotly debated in this case, and so forth. GPB simply must not be allowed to withhold these critical documents. 1 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = BillFloat has reviewed the relatively small number of documents GPB has produced, and has compared them to the inspection demands sent. This analysis demonstrates that GPB has not complied with its discovery obligations in several critical respects. (Su Supp. Decl., 4.) As demonstrated in the spreadsheet attached to the Declaration of Jennifer Su, these break down as follows: * GPB has definitely not produced any documents responsive to the following inspection demands: 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 30, 39, 40, 43, 44, 50, 51, 52, 53, 87, 89, 91, 93, 95, 102, 103, 109, 110, 111, 112, and 113. (Su Supp. Decl., { 5.) * In addition, it does not appear that GPB has produced any documents responsive to the following inspection demands: 7, 8, 10, 31, 32, 33, 34, 38, 45, 47, 49, 62, 104, 105, and 106. (Su Supp. Decl., § 6.) * GPB has produced some documents in response to the following, but has produced less than 25 internal e-mails: 1, 2, 3, 4, 5, 12, 14, 26, 27, 28, 29, 55, 56, 59, 63, 64, 65, 66, 67, 68, 69, 70, 71, 76, 80, 82, 83, 84, 92, and 99. (Su Supp. Decl., § 7.) * With respect to the following inspection demands, GPB only produced some documents regarding underwriting standards, but GPB continues to withhold all other documents, including internal correspondence: 41 and 42. (Su Supp. Decl., J 8.) * With respect to the following inspection demand, GPB only produced drafts of license agreements, but GPB continues to withhold all other documents, including internal correspondence: 56. (Su Supp. Decl., § 9.) ANALYSIS A. GPB tries to camouflage its refusal to engage in discovery by complaining that BillFloat refused to meet and confer. To read GPB’s opposition, it seems like BillFloat utterly failed to meet and confer. However, when one scratches the surface of this argument, it quickly disintegrates, for several reasons. 1. GPB only supplemented a small fraction of the discovery requests. After BillFloat sent its initial meet and confer letter, GPB agreed to supplement some of its responses, but refused to supplement the vast majority of them. Specifically, BillFloat’s meet and confer letter included a discussion of: * 83 inspection demands. Of these, GPB provided supplemental responses for only 15 of them. It refused to supplement 68 of the responses. With respect to the 15 that were “supplemented,” GPB still refused to provide substantive, Code- compliant responses, and continues to withhold documents to 11 of the requests. BillFloat moved to compel 79 of the inspection demands. 2 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.3) 277-7200 & & = ¢ 7 form interrogatories. GPB supplemented all of them, but refused to address BillFloat’s concerns related to four of them. BillFloat had stated its position as to these four; GPB refused to provide the information. This constitutes “meeting and conferring.” Further correspondence would have been futile and a waste of resources. BillFloat has moved to compel these four, and has not moved to compel the three that were arguably appropriately supplemented. ‘ogatories. GPB supplemented 14, and refused to supplement two. BillFloat did not move to compel those that were supplemented. It has only moved to compel the two that were not supplemented. * One request for admission. GPB supplemented the request for admission at issue in the meet and confer letter, and so it is not subject to this motion to compel. (Su Supp. Decl., § 10, Ex. A.) 2. GPB didn’t provide substantive supplementation. A review of the allegedly supplemental responses demonstrates that they provided virtually no new substantive information, and failed to respond to the deficiencies detailed in the original meet and confer letter that prompted them. a. Inspection demands GPB’s supplemental responses did not contain any new substantive material. The 15 responses GPB supplemented break down as follows. * In response to eight of the inspection demands (numbers 38, 82, 84, 87, 89, 91, 93 and 95), GPB admitted it had found responsive documents. However, instead of providing them, and then meeting and conferring as to whether further response is warranted, GPB stated that it refuses to provide the documents it has already located until BillFloat agrees to limit the scope of the request. This is not how the Discovery Act works. * In response to three of the requests (104 — 106), GPB unfairly limited its response to documents that BillFloat already has, and then failed to produce even these. * BillFloat did not move to compel as to four of the inspection demands. b. Form interrogatories For three of the supplemental responses to form interrogatories (8.8, 9.1, 9.2), GPB claims to not be able to provide any such information because necessary information is in the possession of BillFloat. However, it admits that BillFloat has provided at least some information, but that it has not had time to review it yet. GPB should be ordered to provide responses based on the 3 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = information it has; if it discovers more information later, it can always supplement its responses consistent with the provisions of the Discovery Act. For one of the form interrogatories (12.2), BillFloat simply restated its prior objection. c Specially prepared interrogatories As mentioned, GPB did not supplement the two specially prepared interrogatories at issue in this motion (14 and 15). 3. BillFloat didn’t move to compel many of the responses that were supplemented. As mentioned above, many of the discovery responses were supplemented satisfactorily. For example, of the 16 specially prepared interrogatories that were at issue in the meet and confer letter, GPB supplemented 14, and BillFloat did not need to move to compel them. GPB refused to supplement two of them, forcing BillFloat to file this motion. 4, Further meeting and conferring was not necessary because GPB refused to properly supplement with Code-compliant responses following meet and confer attempts. The facts are that BillFloat met and conferred by sending a very comprehensive letter, detailing all of the defects in the responses. GPB agreed to supplement its responses for a small fraction of the requests at issue (37 of 112). Of these 37, the vast majority (22) are not at issue in this motion. This leaves 15 requests of the 85 at issue in this motion that were supplemented somewhat; however, with respect to these fifteen, they failed to address the infirmities already set forth in the initial meet and confer letter. Sending a second meet and confer letter that simply restated what had already been said would have been a waste of resources. “The law neither does nor requires idle acts.” Civil Code section 3532. 5, GPB breached its duty to provide some responsive information. Recall that for 8 of the inspection demands (numbers 38, 82, 84, 87, 89, 91, 93 and 95), GPB admits it has found responsive documents, but refuses to provide them. In effect, it is holding the documents hostage, trying to exert leverage upon BillFloat to agree to limit its requests. As a specific example, see Inspection Demand 38: DEMAND FOR INSPECTION NUMBER 38. Any and all DOCUMENTS consisting of, pertaining to, relating or referring to any and all COMMUNICATION YOU had with BETTER FINANCE from January 1, 2013 regarding its BELIEF SYSTEM. Mi M/ Ml 4 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = SUPPLEMENTAL RESPONSE TO DEMAND FOR INSPECTION NO. 38: * * * * * Contingent upon Responding Party and Propounding Party meeting and conferring to limit the scope of the request, Responding Party will produce all non-privileged DOCUMENTS that constitute COMMUNICATION GPB had with BETTER FINANCE regarding the BELIEF SYSTEM, that Responding Party has located after a reasonable and diligent search. (Webb Decl., Ex. 14, pp. 28 — 29, italicized emphasis added.) This is not conduct sanctioned by the Discovery Act. Code of Civil Procedure section 2031.210 provides in part: (a) 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: () 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. These are the permissible, i.e. “Code-compliant,” responses. A statement that documents have been found but are being withheld to extract an advantage is not a Code-compliant response. B. For all its promises, GPB has still not produced documents. GPB argues that if BillFloat had sent another meet and confer letter, GPB would have responded by promising to provide another set of documents. (GPB’s Opposition, p. 1, ll. 23 — 25, herein “GPB Opp., p.__, ll.__:__.”) This is a groundless assertion. In making this argument, GPB does not explain many things, including: * What prevented it from explaining that it was involved in further production and seeking more time. * Why it still has not produced any more documents, especially after being told by the Court to do so. * Why it did not contact BillFloat, explaining that more documents are coming, and extending BillFloat’s time within which to file this motion. Many more questions abound regarding this baseless argument. 5 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = Cc There is nothing in the Discovery Act that requires BillFloat to repeatedly ask for documents to be produced. Again, GPB argues that before filing this motion, BillFloat had a duty to ask one more time whether GPB intended to produce more documents. The Discovery Act does not require this extraordinary level of meeting and conferring. All it requires is a reasonable attempt. The following circumstances demonstrate this reasonable standard has been met. * BillFloat sent an extensive meet and confer letter, outlining every reason that 112 of GPB’s responses were deficient. * GPB only agreed to supplement 37 of them. * Of these 37, 15 of them were not substantively supplemented. * These 15 supplemental responses remained deficient for the reasons already set forth in the extensive meet and confer letter. * Instead of complying with its discovery responsibilities, GPB filed a petition for writ of mandamus with the Court of Appeal. * The Court told GPB to provide all documents related to BillFloat in its possession. * Immediately after this, BillFloat met and conferred with GPB, asking if it intended to comply with the Court's directive. * GPB promised it would do so. * Instead, it applied to the Court of Appeal for a stay, which was granted. * In connection with the stay, the Parties discussed pushing out the deadlines for filing motions to compel, and agreed that BillFloat’s deadline for filing this motion would be extended until September 9, 2016. * GPB knew that this deadline was approaching. * Despite this knowledge, GPB did not provide any further documents, or offer to extend the deadline to file this motion. * Once this motion was filed, BillFloat has still refused to provide any more documents, preferring instead to try to fight this motion on technical grounds. Under these circumstances, it is clear that no amount of meeting and conferring would have been sufficient. If the filing of this motion itself has not changed GPB’s production at all, it is clear that another letter or phone call would have accomplished nothing. D. BillFloat does not have to limit its discovery requests before GPB provides any of the documents it has already found. As mentioned, in supplemental response to 8 of the inspection demands (numbers 38, 82, 84, 87, 89, 91, 93 and 95), GPB states that it has located responsive documents, but it is 6 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.3) 277-7200 & & = withholding them until after BillFloat narrows its demand. Why should BillFloat have to narrow its demand before it receives the documents GPB has already found? What further burden will GPB allegedly suffer by having to produce documents it has already located? GPB does not say. Of course, its real reasons are not sanctioned by the Code. GPB wants BillFloat to agree to some narrowing so that at least some of the documents already located do not have to be produced. This is not consistent with this Court’s admonition to GPB’s counsel that “all non-privileged documents that have anything to do with BillFloat that are in the possession, custody and control of the bank should be produced.” (Webb Decl., § 18, Ex. 15, p.19, Il. 20-26.) Nor is it consistent with the Discovery Act. Moreover, GPB asks BillFloat to narrow the requests by identifying types of documents it wants. BillFloat has no idea what types of documents exist in response to its legitimate inspection demands. GPB does. GPB asks BillFloat to guess what types of documents exist, and if it guesses wrong, well, GPB will not produce the documents. This just is not the law. Accordingly, BillFloat has declined the invitation to limit its inspection demands just to receive the documents that GPB has already located in response to the legitimate inspection demands. E. GPB has had seven months to comply with the discovery requests. The discovery requests at issue were propounded on February 22, 2016. It now complains that it has not had enough time to produce documents. Instead, GPB’s counsel has been busy filing all kinds of motions in this case and others, mostly related to venue and the form of the pleadings. GPB has also filed an unsuccessful petition for writ of mandate in this case. GPB now claims that it has not had enough time to fulfill its discovery responsibilities. F. Good cause exists for the discovery demands. In its next attempt to avoid its discovery obligations, GPB argues that BillFloat has not demonstrated good cause for its discovery. And yet this is not true. Just as GPB did in its opposition, BillFloat sets forth at some length (but with requisite brevity) the facts underlying this case, to provide context for the Court in its determination of this motion, and demonstrating good cause. G. GPB argues that the discovery requests themselves are burdensome. GPB argues that the discovery requests are overly broad and have therefore been propounded for an improper purpose. However, it is important to note that GPB has been even 7 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = more comprehensive in the discovery it has propounded. The following chart enumerates the discovery propounded by each side, so far. Discovery Set Propounded by BillFloat Propounded by GPB Form Interrogatories 63 (sets 1-5) 12 (Sets 1 — 2) Inspection Demands, Set 1 113 86 Requests for Admission, Set |_| 12 Specially Prepared 77 141 Interrogatories, Set 1 Inspection Demands, Set 2 57 64 Specially Prepared 57 35 Interrogatories, Set 2 Requests for Production of 54 Documents [sic], Set 3 Special Interrogatories, Set 3 155 Requests for Production of 75 Documents [sic], Set 4 Special Interrogatories, Set 4 163 Total Specially Prepared 134 497 Interrogatories Total Inspection Demands 170 282 Total Discovery Requests 379 791 Candidly, given the number of issues in this case and the complexity of the case, there is still room for both parties to conduct more written discovery (although GPB has already sought essentially every document BillFloat has, and therefore much more written discovery propounded by GPB will border on the abusive). But the point is that GPB argues that the amount of discovery BillFloat has propounded is abusive. It is a fraction of the discovery propounded by GPB. GPB cannot be heard to complain it is abusive. H. BillFloat is entitled to responses to form interrogatories 8.8, 9.1 and 9.2 concerning GPB alleged damages. GPB argues that it does not have to provide this information, because its answer depends upon information BillFloat is withholding. This is not a tenable position. In its discovery requests, GPB has asked for documents from which it can calculate its damages. The very real problem is that these documents are voluminous and include all manner of personally identifying information related to third parties. GPB has not provided notices to consumers to these third parties, and has not agreed to pay for the costs of doing this, or for the costs of redacting the thousands upon thousands of documents, which is expected to be very costly to do. 8 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = Based on this, GPB could have simply withheld all information and refused to produce any information. However, rather than simply withhold the information, BillFloat created comprehensive summaries of the very information GPB needs to calculate its alleged damages, and produced these summaries in native spreadsheet format, so that GPB could easily work with the numbers and calculate its damages. Instead, GPB has refused to answer the interrogatories altogether. It should be ordered to answer based on the information it has. If it needs to refine this information as discovery and investigation continue, it will have that opportunity. I. BillFloat is entitled to know whether GPB has interviewed any individuals. GPB argues that it does not have to answer Form Interrogatory 12.2 based on Coito v. Superior Court (2012) 54 Cal.4th 480, However, GPB misses the mark on its analysis of Coito. In Coito, the California Supreme Court discussed Form Interrogatory 12.3, not 12.2, which is it issue here. In connection with form interrogatory 12.3, the court held in relevant part as follows. [IJnformation responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute. Of course, a trial court may also have to consider nonparty witnesses’ privacy concerns. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) {ff 8:298 to 8:299.15, pp. 8C-88 to 8C-89 (rev. # 1, 2001).) 54 Cal.4th at 502, emphasis supplied. So, in this (“usual”) case, the interrogatory “must be answered.” (/d.) GPB has made no showing or established any foundation that “answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.” (/d.) J. Relief Requested. Accordingly, BillFloat seeks the following relief. * GPB has definitely not produced any documents responsive to the following inspection demands, and should be ordered to provide Code-compliant responses and responsive documents: 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 30, 39, 40, 43, 44, 50, 51, 52, 53, 87, 89, 91, 93, 95, 102, 103, 109, 110, 111, 112, and 113. 9 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.WEBB LEGAL GROUP mery Street, Suite 1200 a & = * In addition, it does not appear that GPB has produced any documents responsive to the following inspection demands, and should be ordered to provide Code- compliant responses and responsive documents, and, to the extent that GPB asserts it has already provided responsive documents, it should be ordered to identify the documents, preferably by Bates number so that BillFloat can locate them: 7, 8, 10, 31, 32, 33, 34, 38, 45, 47, 49, 62, 104, 105, and 106. * GPB has produced some documents in response to the following and should be ordered to provide Code-compliant responses and responsive documents, including all internal e-mail (i.e. e-mail correspondence that took place within GPB itself): 1, 2, 3, 4, 5, 12, 14, 26, 27, 28, 29, 55, 56, 59, 63, 64, 65, 66, 67, 68, 69, 70, 71, 76, 80, 82, 83, 84, 92, and 99. * With respect to the following inspection demands, GPB only produced some documents regarding underwriting standards, but GPB continues to withhold all other documents, including internal correspondence, and should be ordered to provide Code-compliant responses and responsive documents, including all internal e-mail (i.e. e-mail correspondence that took place within GPB itself): 41 and 42, * With respect to the following inspection demand, GPB only produced drafts of license agreements and a limited number of internal correspondence, but GPB continues to withhold all other documents and should be ordered to provide Code- compliant responses and responsive documents, including all internal e-mail (i-e. e-mail correspondence that took place within GPB itself): 56. * GPB should be ordered to provide Code-compliant responses to special interrogatories numbered 14 and 15. * GPB should be ordered to provide Code-compliant responses to form interrogatories numbered 8.8, 9.1, 9.2, and 12.2. CONCLUSION BillFloat is entitled to proper, Code-compliant, complete responses and documents, with verifications. The court should order GPB to immediately provide the same. It should also award attorney’s fees given the necessity of this motion and BillFloat’s obvious bad faith. Date: September 28, 2016 Respectfully submitted, AMT. WEBB #193832 JENNIFER D. SU #291603 Attorneys for BILLFLOAT, INC. 10 DEFENDANT AND CROSS-COMPLAINANT BILLFLOAT, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE, SPECIAL, INTERROGATORIES, SET ONE, AND DEMAND FOR INSPECTION, SET ONE, TO GOLDEN PACIFIC BANK, N.A.