Preview
ELECTRONICALLY FILED
Superior Court of California
1 CHORA YOUNG & MANASSERIAN LLP County of Santa Barbara
Armen Manasserian (SBN 288199) Darrel E. Parker, Executive Officer
2 4/1/2022 7:45 PM
Cameron H. Totten (SBN 180765) By: Yuliana Razo, Deputy
3
650 Sierra Madre Villa Ave, Suite 304
Pasadena, CA 91107
4 Tel.: (626) 744-1838
Fax: (626) 744-3167
5 Email: cameron@cym.law
6
Attorneys for Plaintiff Butler America, LLC
7 SUPERIOR COURT OF CALIFORNIA
8 COUNTY OF SANTA BARBARA – ANACAPA DIVISION
9
10 BUTLER AMERICA, LLC, a Delaware Case No. 20CV03877
limited liability company,
11 Assigned to the Hon. Donna D. Geck
Plaintiff,
12
PLAINTIFF BUTLER AMERICA, LLC’S
13 v. REPLY TO DEFENDANTS’ OPPOSITION
TO MOTION FOR ORDER
14 UCOMMG, LLC, a Nevada limited liability COMPELLING FURTHER RESPONSES
company; UNIFIED COMMUNICATIONS TO PLAINTIFF’S REQUESTS FOR
15
GROUP, INC., a dissolved Washington PRODUCTION OF DOCUMENTS (SET
16 corporation; KENNETH W. NEWBATT, ONE)
an individual; BIANCA NEWBATT, an
17 individual; MITCHELL C. LIPKIN, an Date: April 8, 2022
individual; MICHAEL J. BELLAS, an Time: 10:00 a.m.
18
individual; JIMMIE GARRETT BAKER, Dept.: 4
19 JR., an individual; WESTELE UTILITY
SOLUTIONS, LLC, a California limited Complaint Filed: November 20, 2020
20 liability company; and DOES 1 through 50, Trial Date: Not Set
inclusive,
21
22 Defendants.
23
TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF
24
RECORD HEREIN:
25
Plaintiff Butler America, LLC (“Plaintiff”) hereby submits the following Reply to
26
Defendants UCOMMG, LLC and Unified Communications Group, Inc.’s Opposition to
27
Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests for Production of
28
Documents (Set One) (“Motion”).
1
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants UCOMMG, LLC (“UCOMMG”) and Unified Communications Group,
4 Inc.’s (“Unified”) (collectively referred to herein as “Defendants”) Opposition to Plaintiff’s
5 Motion for Order Compelling Further Responses to Plaintiff’s Requests for Production of
6 Documents, Set One (“Opposition”) focuses primarily on the application of California Code of
7 Civil Procedure Section 2019.210 (“Section 2019.210”) and CUTSA, which are not relevant to
8 Plaintiff’s Motion. On the other hand, notably absent from the Opposition is any explanation,
9 argument or facts as to how, at least in part, the requests do not seek information regarding
10 jurisdiction and why the non-privileged responsive documents were not produced along with a
11 privilege log listing the responsive documents that allegedly contain Defendants’ trade secrets
12 and/or confidential information. Instead, Defendants rely on hyper-technical interpretations of
13 the requests that strain credulity. Moreover, Defendants refuse to state whether responsive
14 documents exist or whether this is nothing more than an academic exercise.
15 With regard to Defendants’ objections, throughout the meet and confer process, Plaintiff
16 offered to limit the requests to address Defendants’ concerns. However, consistent with
17 Defendants’ “gotcha” litigation strategy throughout this litigation, Defendants refused to engage
18 in any negotiation to resolve the disputes between the parties. Instead, Defendants chose to
19 produce nothing based on technicalities and disregard the Civil Discovery Act’s requirement
20 that they must respond to the extent possible. Accordingly, for the reasons set forth below and
21 in Plaintiff’s moving papers, Plaintiff’s Motion and request for sanctions should be granted in
22 their entirety, and Defendants’ request for sanctions should be denied.
23 II. SECTION 2019.210 IS NOT APPLICABLE TO PLAINTIFF’S REQUESTS
24 On December 3, 2021, this Court ruled that Plaintiff was entitled to jurisdictional
25 discovery, regardless of Section 2019.210. On February 18, 2022, this Court ruled upon
26 Defendants’ Motion for Terminating Sanctions and alternative Motion for Protective Order
27 denying Plaintiff’s any right to discovery. The Court reiterated that Plaintiff was entitled to
28 jurisdictional discovery for purposes of opposing Defendants’ Motion to Quash Service of
2
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 Summons. Specifically, the Court stated that
2 “[t]o the extent the motion seeks an absolute preclusion of any discovery by
3 plaintiff, it is necessarily denied, in that this Court has already expressly
4 permitted plaintiff to conduct discovery regarding California jurisdiction over the
5 defendants who are motion to quash service based upon a claim of lack of
6 jurisdiction. . . . In ruling on the prior motions, this Court noted that ‘discovery
7 relating to the trade secret’ may or may not overlap with jurisdictional discovery.
8 It also noted that it did not have any occasion to make any determinations as to
9 the propriety of any particular discovery, as the matter was then presented to the
10 court, and noted that it expected the parties to meet and confer to avoid the
11 necessity of court intervention to the extent practicable.
12 In making that comment, the Court did not find that defendants had no obligation
13 to respond to any jurisdictional discovery that might overlap with trade secret
14 discovery. Rather, it merely noted the possibility of some overlap, and
15 recognized that without the specific discovery requests before it, it could make
16 no determinations as to the propriety of any individual request.
17 Currently, the Court understands that plaintiff has propounded jurisdictional (and
18 potentially other) discovery. It understands further that defendants have
19 responded to some of the discovery, and refused to respond to some of the
20 discovery, contending that it impermissibly seeks trade secret discovery. It also
21 understands that plaintiff has filed motions to compel further responses to the
22 discovery, which are set for hearing on April 1, 2022.
23 Given the ‘zeal’ with which the parties have already been litigating this action,
24 and to prevent the case from further devolving into chaos, the Court will issue a
25 stay of all discovery other than that being conducted to address jurisdictional
26 issues, pending resolution of the motion to quash. Again, this does not mean that
27 any discovery which has some amount of overlap with ‘trade secret’ discovery is
28 automatically precluded; to the extent the parties have good faith disputes over
3
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 such discovery, they will be resolved in the course of motions to compel and/or
2 future properly drafted and supported motions for protective orders.”
3 Thus, Defendants’ Section 2019.210 arguments and objections are irrelevant as the Court has
4 already ruled that discovery is not precluded in its entirety even if the requests somehow
5 overlap with “trade secret” discovery. Alternatively, if the Court finds that CUTSA preemption
6 and Section 2019.210 are relevant to this Motion, Plaintiff respectfully requests that the Court
7 take judicial notice of Plaintiff’s Opposition to Defendants’ Demurrer to Plaintiff’s Second
8 Amended Complaint filed on March 14, 2022.
9 III. DEFENDANTS’ OBJECTIONS LACK MERIT AS PLAINTIFF’S REQUESTS
10 ARE LIMITED TO JURISDICTIONAL ISSUES
11 Defendants object to the requests primarily on the grounds that they are allegedly not
12 narrowly tailored to jurisdictional issues and seek Defendants’ trade secrets and/or confidential
13 information. Additionally, Defendants provide hypothetical situations “by way of example
14 only” how the requests might be overbroad or not properly limited but fail to state whether any
15 of the examples apply here. That is, instead of complying with the requests to the extent
16 possible, Defendants rely upon hypothetical situations, which may or may not apply, and the
17 alleged imperfection of the requests to justify producing absolutely nothing. Nevertheless, even
18 if the requests indirectly seek confidential or trade secret information or are overbroad,
19 Defendants are required to respond to the extent possible and produce non-confidential/trade
20 secret documents with a privilege log of the documents withheld.
21 Accordingly, as the requests at issue seek documents to support Plaintiff’s opposition to
22 Defendants’ Motion to Quash and only incidentally, if at all, overlap with trade secret
23 discovery, Defendants’ failure to respond to the requests is improper. Thus, as set forth below,
24 Defendants should be compelled to respond to the requests, without objections, produce
25 documents that do not contain trade secrets, and provide a privilege log listing the documents
26 that allegedly seek trade secret discovery.
27 ///
28 ///
4
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 A. DEFENDANTS ARE REQUIRED TO RESPOND TO THE EXTENT
2 POSSIBLE AND PRODUCE A PRIVILEGE LOG, IF APPLICABLE
3 Specifically, Code of Civil Procedure Sections 2031.240(a) and (b) provide that:
4 “(a) If only part of an item or category of item in a demand for inspection,
5 copying, testing, or sampling is objectionable, the response must contain a
6 statement of compliance, or a representation of an inability to comply, with
7 respect to the remainder of that item or category.
8 (b) If the responding party objects to the demand for inspection, copying,
9 testing, or sampling of an item or category of item, the response shall do both of
10 the following:
11 (1) Identify with particularity any document, tangible thing, land, or
12 electronically stored information falling within any category of item in the
13 demand to which an objection is being made.
14 (2) Set forth clearly the extent of, and the specific ground for, the objection. If
15 an objection is based on a claim of privilege, the particular privilege invoked
16 shall be stated. If an objection is based on a claim that the information sought is
17 protected work product under Chapter 4 (commencing with Section 2018.010),
18 that claim shall be expressly asserted.” (emphasis added)
19 Here, Defendants’ responses violate Section 2031.240(a) as, again, at least some portion of the
20 requests seek documents with regard to jurisdictional issues which are not trade secrets. Thus, at
21 a minimum, Defendants are required to produce documents that are responsive under a narrow
22 interpretation of the requests and not trade secrets. Defendants also failed to make any
23 representations of compliance or inability to comply with a particular request, or affirm that a
24 diligent search and reasonable inquiry had been made in an effort to comply with each demand,
25 in violation of Sections 2031.220 and/or 2031.230.
26 Additionally, missing from Defendants’ arguments and objections regarding privileges
27 are any facts which establish that any privileged documents responsive to the requests exist.
28 When a party claims a privilege, the party bears the burden of proving the facts showing that
5
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 there are privileged items. State Farm Fire & Casualty Co. v. Superior Court (1997), 54
2 Cal.App.4th 625, 639. Here, Defendants do not identify any actual document (as opposed to
3 hypothetical documents) that fall within any of their objections or claims of privilege as
4 required by Section 2031.240(b).
5 Moreover, it is difficult to imagine (which we must do as Defendants refuse to identify
6 any documents) how Plaintiff’s requests only seek documents related to Defendants’ trade
7 secrets and there are no responsive documents which relate only to jurisdictional issues with do
8 not contain trade secrets (or from which the trade secrets could not be redacted). It is unclear
9 what type of trade secrets are allegedly being requested by the requests and why those
10 documents cannot simply be withheld and listed on a privilege log.
11 As a result, Plaintiff cannot evaluate whether any privileges apply to specific documents
12 in the real world. Defendants should not be allowed to avoid production of documents because
13 there might be a document somewhere that is responsive and might contain a trade secret. Thus,
14 Defendants should be compelled to produce all unobjectionable documents and provide a
15 privilege log which identifies specific documents that are being withheld on the basis of
16 privilege.
17 B. DEFENDANTS’ REQUESTS SEEK DOCUMENTS REGARDING
18 DEFENDANTS’ BUSINESS ACTIVITIES IN CALIFORNIA
19 Request Nos. 3, 4, 10, 11 and 16 seek documents regarding Defendants’
20 communications and business activities with Frontier Communications in California. The
21 requests are relevant as a business relationship between Defendants and Frontier in California is
22 evidence, at least in part, of “substantial, continuous, and systematic” contacts in California. F.
23 Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal. App. 4th 782, 796 (citing
24 Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414-416). Moreover, the
25 documents sought may be evidence of one or more of the following elements necessary to
26 establish personal jurisdiction: (1) purposefully directing its activities at forum residents, (2)
27 purposefully deriving benefit from forum activities, or (3) purposefully availing itself of the
28 privilege of conducting activities within the forum state, thus invoking the benefits and
6
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 protections of its laws. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 446
2 (citing Burger King Carp, v Rudzewicz (1985) 471 U.S. 462). Defendants do not specifically
3 state how these requests seek production of Defendants’ trade secrets or why any such overlap
4 could not be addressed through a privilege log.
5 Request No. 5 seeks documents regarding any bank accounts Defendants have in
6 California. Again, bank accounts in California would be evidence as to Defendants’ contacts in
7 California and purposely availing themselves of the privilege of conducting activities in
8 California.
9 Request Nos. 9, 12, 13, 17, 18 and 19 seek documents regarding contracts and
10 agreements that Defendants have entered into with California individuals or entities. Curiously,
11 one of Defendants’ objections is that the requests are “impermissibly overbroad as [they are] not
12 reasonably limited in scope.” However, as Defendants assert that they have little or no contacts
13 or business in California, this objection seems to contradict that statement. Regardless, evidence
14 of contracts and agreements entered into with California individuals or entities would support
15 Plaintiff’s position, at least in part, that Defendants have “substantial, continuous, and
16 systematic” contacts in California and/or have purposedly directed their activities toward
17 California and derived benefit therefrom.
18 Lastly, Request Nos. 20 and 21 seek documents regarding Defendants’ employees and
19 independent contractors working in California. Again, employing individuals for work in
20 California would be evidence, at least in part, of Defendants having “substantial, continuous,
21 and systematic” contacts in California and/or having purposedly directed their activities toward
22 California. Any privacy objections can be addressed once Defendants produce a privilege log or
23 through redactions.
24 Defendants have not put forth any evidence that its contracts, agreements and related
25 documents regarding its business relationships in California are trade secrets or, alternatively,
26 that any trade secret information could not be redacted or the documents listed on a privilege
27 log. Moreover, Defendants fail to state whether any responsive documents exist at all.
28 Accordingly, responses to the requests are required.
7
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 C. DEFENDANTS’ PROCEDURAL OBJECTIONS LACK MERIT
2 Defendants assert that, pursuant to California Rules of Court, Rule 3.1345, Plaintiff
3 cannot combine two motions to compel which are identical into one motion. However, Rule
4 3.1345 does not address the issue. Moreover, throughout the meet and confer process and in the
5 Opposition, Defendants do not raise any arguments that apply to UCOMMG but not Unified, or
6 vice versa. Instead, Defendants argue that “[i]mproperly combining multiple motions under the
7 guise of one motion negatively impacts the Court’s calendar, unfairly jumps ahead of other
8 litigants, and allows the moving party to avoid paying the requisite filing fees.” Plaintiff is
9 perplexed as to the first two. Nevertheless, if Plaintiff negatively impacted the Court’s calendar
10 or unfairly jumped ahead of other litigants, the Motion can be continued for equitable reasons
11 and a separate filing fee paid. The motions were combined simply for efficiency purposes as the
12 requests and issues are exactly the same.
13 Defendants also assert that, pursuant to California Rule of Court 3.1345(c)(4), Plaintiff’s
14 separate statement is deficient because it did not include the definitions for the requests, which
15 are set forth within the requests attached to the Declaration of Cameron H. Totten filed
16 concurrently with the Motion on January 4, 2022. Alternatively, if the Court requires an
17 amended separate statement for the inadvertent error, Plaintiff requests leave of court to amend
18 and a continuance of the hearing.
19 IV. DEFENDANTS DID NOT COMPLY WITH LEGITIMATE DISCOVERY
20 REQUESTS OR MEET AND CONFER IN GOOD FAITH
21 Defendants claim that they met and conferred in good faith and that Plaintiff simply
22 “ignored” Defendants. As with Defendants’ numerous motions filed in this matter, Defendant
23 asserts that it is sanctionable for Plaintiff not to agree with Defendants’ position and comply
24 with its demands. Contrary to Defendants’ assertions, Plaintiff made numerous offers and
25 proposals to limit the scope of the requests or do whatever else was necessary to avoid this
26 Motion. However, Defendants were not interested in resolving any disputes once they believed
27 that, ironically, Plaintiff’s meet and confer efforts were not adequate and they could
28 successfully oppose the Motion on that ground alone, which is improper. Obregon v. Superior
8
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
1 Court (1998) 67 Cal.App.4th 424, 429–36 (holding that inadequate informal resolution efforts
2 alone is an insufficient basis to deny a motion to compel).
3 As set forth in the Declaration of Cameron H. Totten filed concurrently with the Motion,
4 Plaintiff met and conferred in good faith, and Defendants did not. See, e.g., Clement v. Alegre
5 (2009) 177 Cal.App.4th 1277, 1294 (holding that argument is not the same as informal
6 negotiation and attempting informal resolution means more than the mere attempt by one party
7 to persuade the other of the error of his ways) (citing Townsend v. Superior Court (1998) 61
8 Cal.App.4th 1431, 1434-9). Moreover, there is no basis for Defendants’ assertion that Plaintiff’s
9 requests do not seek any documents regarding jurisdiction and were propounded to obtain
10 Defendants’ trade secrets. As such, failing to respond or provide a privilege log is without
11 substantial justification. Defendants simply refused to produce anything based on their
12 conclusion that the requests were not perfect and that there are hypothetical situations, none of
13 which appear to apply here, which establish that the requests are allegedly imperfect.
14 It would be unjust to reward Defendants for their game playing and bad faith conduct.
15 Accordingly, monetary sanctions should be awarded against Defendants and their attorneys of
16 record herein, jointly and severally, in the amount of $4620.00, and Defendants’ request for
17 sanctions should be denied in its entirety.
18 V. CONCLUSION
19 For the reasons set forth herein and in Plaintiff’s moving papers, Plaintiff requests that
20 the Court grant Plaintiff’s Motion in its entirety, order Defendants to further respond to the
21 requests, produce responsive documents and a privilege log, if applicable, and award monetary
22 sanctions against Defendants and their attorneys of record herein, jointly and severally, in the
23 amount of $4620.00.
24
Dated: April 1, 2022 CHORA YOUNG & MANASSERIAN LLP
25
26 By: /s/ Cameron H. Totten
Cameron H. Totten, Esq.
27 Attorneys for Plaintiff Butler America, LLC
28
9
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION
OF DOCUMENTS (SET ONE)
PROOF OF SERVICE
1
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California. I am over the age of
eighteen (18) years and not a party to the within action. My business address is: 650 Sierra Madre
4
Villa Ave., Ste. 304, Pasadena, CA 91107.
5
On April 1, 2022, I served the foregoing document(s) described as PLAINTIFF
6 BUTLER AMERICA, LLC’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION
FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS
7
FOR PRODUCTION OF DOCUMENTS (SET ONE) on the interested parties in this action,
8 as follows:
9 Kathryn M. Evans (SBN 323190) Attorneys for Defendants
E-Mail: kmevans@fisherphillips.com UCOMMG, LLC; Unified Communications
10
FISHER & PHILLIPS LLP Group, Inc.; Kenneth W. Newbatt; Bianca
11 4747 Executive Drive, Suite 1000 Newbatt; Mitchell C. Lipkin; Michael J.
San Diego, California 92121 Bellas; Jimmie Garrett Baker, Jr.; WesTele
12 Telephone: (858) 597-9600 Utility Solutions, LLC; and Cynthia Baker
Facsimile: (858) 597-9601
13
14 Shayna Balch Santiago (SBN 304802)
E-Mail: ssantiago@fisherphillips.com
15 FISHER & PHILLIPS LLP
3200 N. Central Avenue, Suite 1550
16
Phoenix, Arizona 85012-2487
17 Telephone: (602) 281-3400
Facsimile: (602) 281-3401
18
( ) (BY MAIL) I placed said copy(ies) in a sealed envelope(s), postage thereon fully
19
prepaid, and placed for collection and processing for mailing following the business’s
20 ordinary practice, with which I am readily familiar. Under that practice it would be
deposited with U.S. postal service on that same day with postage fully prepaid in the
21 city indicated below in the ordinary course of business.
22
(XX) (BY ELECTRONIC TRANSMISSION) I caused the document(s) listed above to be
23 electronically transmitted to the email addresses of the addressees as indicated above.
24 Executed on April 1, 2022, at Pasadena, California.
25
I declare under penalty of perjury under the laws of the State of California that the above
26 is true and correct.
27
/s/ Araceli Salcedo
28
Araceli Salcedo
PROOF OF SERVICE
Preview
ELECTRONICALLY FILED Superior Court of California 1 CHORA YOUNG & MANASSERIAN LLP County of Santa Barbara Armen Manasserian (SBN 288199) Darrel E. Parker, Executive Officer 2 4/1/2022 7:45 PM Cameron H. Totten (SBN 180765) By: Yuliana Razo, Deputy 3 650 Sierra Madre Villa Ave, Suite 304 Pasadena, CA 91107 4 Tel.: (626) 744-1838 Fax: (626) 744-3167 5 Email: cameron@cym.law 6 Attorneys for Plaintiff Butler America, LLC 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF SANTA BARBARA – ANACAPA DIVISION 9 10 BUTLER AMERICA, LLC, a Delaware Case No. 20CV03877 limited liability company, 11 Assigned to the Hon. Donna D. Geck Plaintiff, 12 PLAINTIFF BUTLER AMERICA, LLC’S 13 v. REPLY TO DEFENDANTS’ OPPOSITION TO MOTION FOR ORDER 14 UCOMMG, LLC, a Nevada limited liability COMPELLING FURTHER RESPONSES company; UNIFIED COMMUNICATIONS TO PLAINTIFF’S REQUESTS FOR 15 GROUP, INC., a dissolved Washington PRODUCTION OF DOCUMENTS (SET 16 corporation; KENNETH W. NEWBATT, ONE) an individual; BIANCA NEWBATT, an 17 individual; MITCHELL C. LIPKIN, an Date: April 8, 2022 individual; MICHAEL J. BELLAS, an Time: 10:00 a.m. 18 individual; JIMMIE GARRETT BAKER, Dept.: 4 19 JR., an individual; WESTELE UTILITY SOLUTIONS, LLC, a California limited Complaint Filed: November 20, 2020 20 liability company; and DOES 1 through 50, Trial Date: Not Set inclusive, 21 22 Defendants. 23 TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF 24 RECORD HEREIN: 25 Plaintiff Butler America, LLC (“Plaintiff”) hereby submits the following Reply to 26 Defendants UCOMMG, LLC and Unified Communications Group, Inc.’s Opposition to 27 Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Requests for Production of 28 Documents (Set One) (“Motion”). 1 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants UCOMMG, LLC (“UCOMMG”) and Unified Communications Group, 4 Inc.’s (“Unified”) (collectively referred to herein as “Defendants”) Opposition to Plaintiff’s 5 Motion for Order Compelling Further Responses to Plaintiff’s Requests for Production of 6 Documents, Set One (“Opposition”) focuses primarily on the application of California Code of 7 Civil Procedure Section 2019.210 (“Section 2019.210”) and CUTSA, which are not relevant to 8 Plaintiff’s Motion. On the other hand, notably absent from the Opposition is any explanation, 9 argument or facts as to how, at least in part, the requests do not seek information regarding 10 jurisdiction and why the non-privileged responsive documents were not produced along with a 11 privilege log listing the responsive documents that allegedly contain Defendants’ trade secrets 12 and/or confidential information. Instead, Defendants rely on hyper-technical interpretations of 13 the requests that strain credulity. Moreover, Defendants refuse to state whether responsive 14 documents exist or whether this is nothing more than an academic exercise. 15 With regard to Defendants’ objections, throughout the meet and confer process, Plaintiff 16 offered to limit the requests to address Defendants’ concerns. However, consistent with 17 Defendants’ “gotcha” litigation strategy throughout this litigation, Defendants refused to engage 18 in any negotiation to resolve the disputes between the parties. Instead, Defendants chose to 19 produce nothing based on technicalities and disregard the Civil Discovery Act’s requirement 20 that they must respond to the extent possible. Accordingly, for the reasons set forth below and 21 in Plaintiff’s moving papers, Plaintiff’s Motion and request for sanctions should be granted in 22 their entirety, and Defendants’ request for sanctions should be denied. 23 II. SECTION 2019.210 IS NOT APPLICABLE TO PLAINTIFF’S REQUESTS 24 On December 3, 2021, this Court ruled that Plaintiff was entitled to jurisdictional 25 discovery, regardless of Section 2019.210. On February 18, 2022, this Court ruled upon 26 Defendants’ Motion for Terminating Sanctions and alternative Motion for Protective Order 27 denying Plaintiff’s any right to discovery. The Court reiterated that Plaintiff was entitled to 28 jurisdictional discovery for purposes of opposing Defendants’ Motion to Quash Service of 2 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 Summons. Specifically, the Court stated that 2 “[t]o the extent the motion seeks an absolute preclusion of any discovery by 3 plaintiff, it is necessarily denied, in that this Court has already expressly 4 permitted plaintiff to conduct discovery regarding California jurisdiction over the 5 defendants who are motion to quash service based upon a claim of lack of 6 jurisdiction. . . . In ruling on the prior motions, this Court noted that ‘discovery 7 relating to the trade secret’ may or may not overlap with jurisdictional discovery. 8 It also noted that it did not have any occasion to make any determinations as to 9 the propriety of any particular discovery, as the matter was then presented to the 10 court, and noted that it expected the parties to meet and confer to avoid the 11 necessity of court intervention to the extent practicable. 12 In making that comment, the Court did not find that defendants had no obligation 13 to respond to any jurisdictional discovery that might overlap with trade secret 14 discovery. Rather, it merely noted the possibility of some overlap, and 15 recognized that without the specific discovery requests before it, it could make 16 no determinations as to the propriety of any individual request. 17 Currently, the Court understands that plaintiff has propounded jurisdictional (and 18 potentially other) discovery. It understands further that defendants have 19 responded to some of the discovery, and refused to respond to some of the 20 discovery, contending that it impermissibly seeks trade secret discovery. It also 21 understands that plaintiff has filed motions to compel further responses to the 22 discovery, which are set for hearing on April 1, 2022. 23 Given the ‘zeal’ with which the parties have already been litigating this action, 24 and to prevent the case from further devolving into chaos, the Court will issue a 25 stay of all discovery other than that being conducted to address jurisdictional 26 issues, pending resolution of the motion to quash. Again, this does not mean that 27 any discovery which has some amount of overlap with ‘trade secret’ discovery is 28 automatically precluded; to the extent the parties have good faith disputes over 3 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 such discovery, they will be resolved in the course of motions to compel and/or 2 future properly drafted and supported motions for protective orders.” 3 Thus, Defendants’ Section 2019.210 arguments and objections are irrelevant as the Court has 4 already ruled that discovery is not precluded in its entirety even if the requests somehow 5 overlap with “trade secret” discovery. Alternatively, if the Court finds that CUTSA preemption 6 and Section 2019.210 are relevant to this Motion, Plaintiff respectfully requests that the Court 7 take judicial notice of Plaintiff’s Opposition to Defendants’ Demurrer to Plaintiff’s Second 8 Amended Complaint filed on March 14, 2022. 9 III. DEFENDANTS’ OBJECTIONS LACK MERIT AS PLAINTIFF’S REQUESTS 10 ARE LIMITED TO JURISDICTIONAL ISSUES 11 Defendants object to the requests primarily on the grounds that they are allegedly not 12 narrowly tailored to jurisdictional issues and seek Defendants’ trade secrets and/or confidential 13 information. Additionally, Defendants provide hypothetical situations “by way of example 14 only” how the requests might be overbroad or not properly limited but fail to state whether any 15 of the examples apply here. That is, instead of complying with the requests to the extent 16 possible, Defendants rely upon hypothetical situations, which may or may not apply, and the 17 alleged imperfection of the requests to justify producing absolutely nothing. Nevertheless, even 18 if the requests indirectly seek confidential or trade secret information or are overbroad, 19 Defendants are required to respond to the extent possible and produce non-confidential/trade 20 secret documents with a privilege log of the documents withheld. 21 Accordingly, as the requests at issue seek documents to support Plaintiff’s opposition to 22 Defendants’ Motion to Quash and only incidentally, if at all, overlap with trade secret 23 discovery, Defendants’ failure to respond to the requests is improper. Thus, as set forth below, 24 Defendants should be compelled to respond to the requests, without objections, produce 25 documents that do not contain trade secrets, and provide a privilege log listing the documents 26 that allegedly seek trade secret discovery. 27 /// 28 /// 4 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 A. DEFENDANTS ARE REQUIRED TO RESPOND TO THE EXTENT 2 POSSIBLE AND PRODUCE A PRIVILEGE LOG, IF APPLICABLE 3 Specifically, Code of Civil Procedure Sections 2031.240(a) and (b) provide that: 4 “(a) If only part of an item or category of item in a demand for inspection, 5 copying, testing, or sampling is objectionable, the response must contain a 6 statement of compliance, or a representation of an inability to comply, with 7 respect to the remainder of that item or category. 8 (b) If the responding party objects to the demand for inspection, copying, 9 testing, or sampling of an item or category of item, the response shall do both of 10 the following: 11 (1) Identify with particularity any document, tangible thing, land, or 12 electronically stored information falling within any category of item in the 13 demand to which an objection is being made. 14 (2) Set forth clearly the extent of, and the specific ground for, the objection. If 15 an objection is based on a claim of privilege, the particular privilege invoked 16 shall be stated. If an objection is based on a claim that the information sought is 17 protected work product under Chapter 4 (commencing with Section 2018.010), 18 that claim shall be expressly asserted.” (emphasis added) 19 Here, Defendants’ responses violate Section 2031.240(a) as, again, at least some portion of the 20 requests seek documents with regard to jurisdictional issues which are not trade secrets. Thus, at 21 a minimum, Defendants are required to produce documents that are responsive under a narrow 22 interpretation of the requests and not trade secrets. Defendants also failed to make any 23 representations of compliance or inability to comply with a particular request, or affirm that a 24 diligent search and reasonable inquiry had been made in an effort to comply with each demand, 25 in violation of Sections 2031.220 and/or 2031.230. 26 Additionally, missing from Defendants’ arguments and objections regarding privileges 27 are any facts which establish that any privileged documents responsive to the requests exist. 28 When a party claims a privilege, the party bears the burden of proving the facts showing that 5 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 there are privileged items. State Farm Fire & Casualty Co. v. Superior Court (1997), 54 2 Cal.App.4th 625, 639. Here, Defendants do not identify any actual document (as opposed to 3 hypothetical documents) that fall within any of their objections or claims of privilege as 4 required by Section 2031.240(b). 5 Moreover, it is difficult to imagine (which we must do as Defendants refuse to identify 6 any documents) how Plaintiff’s requests only seek documents related to Defendants’ trade 7 secrets and there are no responsive documents which relate only to jurisdictional issues with do 8 not contain trade secrets (or from which the trade secrets could not be redacted). It is unclear 9 what type of trade secrets are allegedly being requested by the requests and why those 10 documents cannot simply be withheld and listed on a privilege log. 11 As a result, Plaintiff cannot evaluate whether any privileges apply to specific documents 12 in the real world. Defendants should not be allowed to avoid production of documents because 13 there might be a document somewhere that is responsive and might contain a trade secret. Thus, 14 Defendants should be compelled to produce all unobjectionable documents and provide a 15 privilege log which identifies specific documents that are being withheld on the basis of 16 privilege. 17 B. DEFENDANTS’ REQUESTS SEEK DOCUMENTS REGARDING 18 DEFENDANTS’ BUSINESS ACTIVITIES IN CALIFORNIA 19 Request Nos. 3, 4, 10, 11 and 16 seek documents regarding Defendants’ 20 communications and business activities with Frontier Communications in California. The 21 requests are relevant as a business relationship between Defendants and Frontier in California is 22 evidence, at least in part, of “substantial, continuous, and systematic” contacts in California. F. 23 Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 Cal. App. 4th 782, 796 (citing 24 Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 408, 414-416). Moreover, the 25 documents sought may be evidence of one or more of the following elements necessary to 26 establish personal jurisdiction: (1) purposefully directing its activities at forum residents, (2) 27 purposefully deriving benefit from forum activities, or (3) purposefully availing itself of the 28 privilege of conducting activities within the forum state, thus invoking the benefits and 6 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 protections of its laws. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 446 2 (citing Burger King Carp, v Rudzewicz (1985) 471 U.S. 462). Defendants do not specifically 3 state how these requests seek production of Defendants’ trade secrets or why any such overlap 4 could not be addressed through a privilege log. 5 Request No. 5 seeks documents regarding any bank accounts Defendants have in 6 California. Again, bank accounts in California would be evidence as to Defendants’ contacts in 7 California and purposely availing themselves of the privilege of conducting activities in 8 California. 9 Request Nos. 9, 12, 13, 17, 18 and 19 seek documents regarding contracts and 10 agreements that Defendants have entered into with California individuals or entities. Curiously, 11 one of Defendants’ objections is that the requests are “impermissibly overbroad as [they are] not 12 reasonably limited in scope.” However, as Defendants assert that they have little or no contacts 13 or business in California, this objection seems to contradict that statement. Regardless, evidence 14 of contracts and agreements entered into with California individuals or entities would support 15 Plaintiff’s position, at least in part, that Defendants have “substantial, continuous, and 16 systematic” contacts in California and/or have purposedly directed their activities toward 17 California and derived benefit therefrom. 18 Lastly, Request Nos. 20 and 21 seek documents regarding Defendants’ employees and 19 independent contractors working in California. Again, employing individuals for work in 20 California would be evidence, at least in part, of Defendants having “substantial, continuous, 21 and systematic” contacts in California and/or having purposedly directed their activities toward 22 California. Any privacy objections can be addressed once Defendants produce a privilege log or 23 through redactions. 24 Defendants have not put forth any evidence that its contracts, agreements and related 25 documents regarding its business relationships in California are trade secrets or, alternatively, 26 that any trade secret information could not be redacted or the documents listed on a privilege 27 log. Moreover, Defendants fail to state whether any responsive documents exist at all. 28 Accordingly, responses to the requests are required. 7 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 C. DEFENDANTS’ PROCEDURAL OBJECTIONS LACK MERIT 2 Defendants assert that, pursuant to California Rules of Court, Rule 3.1345, Plaintiff 3 cannot combine two motions to compel which are identical into one motion. However, Rule 4 3.1345 does not address the issue. Moreover, throughout the meet and confer process and in the 5 Opposition, Defendants do not raise any arguments that apply to UCOMMG but not Unified, or 6 vice versa. Instead, Defendants argue that “[i]mproperly combining multiple motions under the 7 guise of one motion negatively impacts the Court’s calendar, unfairly jumps ahead of other 8 litigants, and allows the moving party to avoid paying the requisite filing fees.” Plaintiff is 9 perplexed as to the first two. Nevertheless, if Plaintiff negatively impacted the Court’s calendar 10 or unfairly jumped ahead of other litigants, the Motion can be continued for equitable reasons 11 and a separate filing fee paid. The motions were combined simply for efficiency purposes as the 12 requests and issues are exactly the same. 13 Defendants also assert that, pursuant to California Rule of Court 3.1345(c)(4), Plaintiff’s 14 separate statement is deficient because it did not include the definitions for the requests, which 15 are set forth within the requests attached to the Declaration of Cameron H. Totten filed 16 concurrently with the Motion on January 4, 2022. Alternatively, if the Court requires an 17 amended separate statement for the inadvertent error, Plaintiff requests leave of court to amend 18 and a continuance of the hearing. 19 IV. DEFENDANTS DID NOT COMPLY WITH LEGITIMATE DISCOVERY 20 REQUESTS OR MEET AND CONFER IN GOOD FAITH 21 Defendants claim that they met and conferred in good faith and that Plaintiff simply 22 “ignored” Defendants. As with Defendants’ numerous motions filed in this matter, Defendant 23 asserts that it is sanctionable for Plaintiff not to agree with Defendants’ position and comply 24 with its demands. Contrary to Defendants’ assertions, Plaintiff made numerous offers and 25 proposals to limit the scope of the requests or do whatever else was necessary to avoid this 26 Motion. However, Defendants were not interested in resolving any disputes once they believed 27 that, ironically, Plaintiff’s meet and confer efforts were not adequate and they could 28 successfully oppose the Motion on that ground alone, which is improper. Obregon v. Superior 8 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 1 Court (1998) 67 Cal.App.4th 424, 429–36 (holding that inadequate informal resolution efforts 2 alone is an insufficient basis to deny a motion to compel). 3 As set forth in the Declaration of Cameron H. Totten filed concurrently with the Motion, 4 Plaintiff met and conferred in good faith, and Defendants did not. See, e.g., Clement v. Alegre 5 (2009) 177 Cal.App.4th 1277, 1294 (holding that argument is not the same as informal 6 negotiation and attempting informal resolution means more than the mere attempt by one party 7 to persuade the other of the error of his ways) (citing Townsend v. Superior Court (1998) 61 8 Cal.App.4th 1431, 1434-9). Moreover, there is no basis for Defendants’ assertion that Plaintiff’s 9 requests do not seek any documents regarding jurisdiction and were propounded to obtain 10 Defendants’ trade secrets. As such, failing to respond or provide a privilege log is without 11 substantial justification. Defendants simply refused to produce anything based on their 12 conclusion that the requests were not perfect and that there are hypothetical situations, none of 13 which appear to apply here, which establish that the requests are allegedly imperfect. 14 It would be unjust to reward Defendants for their game playing and bad faith conduct. 15 Accordingly, monetary sanctions should be awarded against Defendants and their attorneys of 16 record herein, jointly and severally, in the amount of $4620.00, and Defendants’ request for 17 sanctions should be denied in its entirety. 18 V. CONCLUSION 19 For the reasons set forth herein and in Plaintiff’s moving papers, Plaintiff requests that 20 the Court grant Plaintiff’s Motion in its entirety, order Defendants to further respond to the 21 requests, produce responsive documents and a privilege log, if applicable, and award monetary 22 sanctions against Defendants and their attorneys of record herein, jointly and severally, in the 23 amount of $4620.00. 24 Dated: April 1, 2022 CHORA YOUNG & MANASSERIAN LLP 25 26 By: /s/ Cameron H. Totten Cameron H. Totten, Esq. 27 Attorneys for Plaintiff Butler America, LLC 28 9 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) PROOF OF SERVICE 1 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is: 650 Sierra Madre 4 Villa Ave., Ste. 304, Pasadena, CA 91107. 5 On April 1, 2022, I served the foregoing document(s) described as PLAINTIFF 6 BUTLER AMERICA, LLC’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S REQUESTS 7 FOR PRODUCTION OF DOCUMENTS (SET ONE) on the interested parties in this action, 8 as follows: 9 Kathryn M. Evans (SBN 323190) Attorneys for Defendants E-Mail: kmevans@fisherphillips.com UCOMMG, LLC; Unified Communications 10 FISHER & PHILLIPS LLP Group, Inc.; Kenneth W. Newbatt; Bianca 11 4747 Executive Drive, Suite 1000 Newbatt; Mitchell C. Lipkin; Michael J. San Diego, California 92121 Bellas; Jimmie Garrett Baker, Jr.; WesTele 12 Telephone: (858) 597-9600 Utility Solutions, LLC; and Cynthia Baker Facsimile: (858) 597-9601 13 14 Shayna Balch Santiago (SBN 304802) E-Mail: ssantiago@fisherphillips.com 15 FISHER & PHILLIPS LLP 3200 N. Central Avenue, Suite 1550 16 Phoenix, Arizona 85012-2487 17 Telephone: (602) 281-3400 Facsimile: (602) 281-3401 18 ( ) (BY MAIL) I placed said copy(ies) in a sealed envelope(s), postage thereon fully 19 prepaid, and placed for collection and processing for mailing following the business’s 20 ordinary practice, with which I am readily familiar. Under that practice it would be deposited with U.S. postal service on that same day with postage fully prepaid in the 21 city indicated below in the ordinary course of business. 22 (XX) (BY ELECTRONIC TRANSMISSION) I caused the document(s) listed above to be 23 electronically transmitted to the email addresses of the addressees as indicated above. 24 Executed on April 1, 2022, at Pasadena, California. 25 I declare under penalty of perjury under the laws of the State of California that the above 26 is true and correct. 27 /s/ Araceli Salcedo 28 Araceli Salcedo PROOF OF SERVICE