Party Discovery: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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                                222 RUSH LANDING ROAD.

BRAYTON*PURCELL LLP
ATTORNEYS AT LAW

94948-6169

(415) 898-1955

oem YN KD A BY

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ALAN R. BRAYTON, ESQ., 8.B. #73685
ANNE T. ACUNA, ESQ., $B. #245369

BRAYTON*®PURCELL LLP ELECTRONICALLY
Attorneys at Law

222 Rush Landing Road F ILE D ,
P.O. Box 6169 Superior Court of California,
Novato, California 94948-6169 County of San Francisco
(415) 898-1555 APR 11 2013

Tentative Ruling Contest Email: contestasbestosTR@braytonlaw.com Clerk of the Court
BY: WILLIAM TRUPEK
Attorneys for Plaintiffs Deputy Clerk

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

ASBESTOS
No. CGC-10-275731

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFFS’ MOTION TO COMPEL THE
DEPOSITION OF DEFENDANT CAHILL
CONTRACTORS, INC.’S PERSON MOST
QUALIFIED AND CUSTODIAN OF
RECORDS AND PRODUCTION OF
DOCUMENTS; MOTION FOR
SANCTIONS

ROBERT ROSS and JEAN ROSS,
Plaintiffs,

vs.

C.C. MOORE & CO. ENGINEERS;

Defendants as Reflected on Exhibit |

attached to the Summary Complaint
herein; and DOES 1-8500.

eee

Date: May 14, 2013

Time: 9:00 a.m.

Dept.:. 503, Hon. Teri L. Jackson
Trial Date: June 10, 2013

Action Filed: December 17, 2010

K:hinjured £9240%pldipa nse depo CAHILL wpa ATA
MEMORANDUM OF POINTS. AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT CAHILL
CONTRACTORS, -ERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS AND REQUEST FOR PRODUCTION OF
DOCUMENTS; SHOTION FOR SANCTIONSCo em YW KD hw BR YY

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TABLE OF CONTENTS

1 INTRODUCTION |... eee 1
ul FACTUAL BACKGROUND 2.00 cece eee
Hl. LEGAL ARGUMENT . .. 0... 6c nn ene e eee n eee nee 2

A. GOOD CAUSE EXISTS FOR AN ORDER COMPELLING
CAHILL TO PRODUCE ITS CUSTODIAN(S) OF RECORDS,
PERSON(S) MOST QUALIFIED, AND DOCUMENTS FOR,
DEPOSITION BECAUSE THE INFORMATION SOUGHT TO
BE DISCOVERED IS RELEVANT TO THE SUBJECT
MATTER OF THE ACTION AND NECESSARY FOR TRIAL

PREPARATION |... 00.0.2 2 0022 cee eee q
B. CAHILL’S OBJECTIONS TO PLAINTIFFS’ DEPOSITION
NOTICE ARE WITHOUT MERIT AND SHOULD BE OVERRULED....... 4

IV. BECAUSE OF DEFENDANT’S ABUSE OF THE DISCOVERY PROCESS
AND ITS FAILURE TO TIMELY ENGAGE IN THE DISCOVERY PROCESS,
THE COURT SHOULD IMPOSE MONETARY AND ISSUE SANCTIONS

PURSUANT TO C.C.P. § 2023.030 (a) AND (b), RESPECTIVELY .............. I
CONCLUSION |. 000 ene tener teen nee 12
KAfnjuret9340\pldipdea mae depo CAHILL sep i AEA

MEMORANDUM OF POINTS. AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT CAHILL
CONTRACTORS, -ERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS AND REQUEST FOR PRODUCTION OF
DOCUMENTS; SHOTION FOR SANCTIONSCo em YW KD hw BR YY

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TABLE OF AUTHORITIES

CASES

Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583 00... 4
Brotsky v. State Bar (1962) 56 Cal.2d 287 00... cece cence eee nna 7
City & County of San Francisco v. Superior Court, 37 Cal.2d 227. ....00.00000.000022.-0055
Colonial Life and Accident Insurance Co. v. Superior Court (1982) 31 Cal.3d 785 ........... 2
Columbia Broadcasting System, Inc, v. Superior Court (1968) 263 Cal.App.2d 12 ....... 4,8,
Davies v. Superior Court (1984) 36 Cal.3d 291.0000. eee 3
Filipoff v. Superior Court (1961) 56 Cal.App.2d 443 00... cece cece eens 8
Greyhound Corp, v. Superior Court (1961) 56 Cal.2d 355 00 eee 2, 7-
Maldonado v. Superior Court (2002) 94 Cal_App.4th 1390 2 2202... 4
McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386. 0... cece cee cee eee 3
Pacific Auto Insurance Company v. Superior Court (1969) 273 Cal App.2d 61.............- 7
Standon Company, inc. v. Superior Court (1990) 225 Cal App.3d 898... 2.2. ...0...2...-.. 4, 6
Union Trust Company v. Superior Court (1938) 11 Cal.2d 449. eee eee 8
Verdier v. Superior Court (1948) 88 Cal.App.2d 527. 00... ieee ees 3
Volkswagenwerk Aktiengesellchaft v. Superior Court (1981) 123 Cal.App.3d 840 ........... 8
West Pico Furniture Company v. Superior Court (1961) 56 Cal.2d 407.0000... 7
STATUTES

California Code of Civil Procedure § 2017.010 00... cee eee eee 2
California Code of Civil Procedure § 2019.010(a). 0.00.0... cee eens 3
California Code of Civil Procedure § 2019.020 (a) . 2.00... 5
California Code of Civil Procedure § 2023.010 2 0. cece tent e eee 1
California Code of Civil Procedure § 2023.010(e) 2.0.0... eee iL
California Code of Civil Procedure § 2023.010(). 0.0.0... cece eee e eee eee 1]
California Code of Civil Procedure § 2023.010 (Do... cece eee eee eee eee 1]
California Code of Civil Procedure § 2023.030 2.0.00... eect eee 1
A Anjuredt0340%p ld pda mic depo CAHILL ii ATA

MEMORANDUM OF POINTS. AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT CAHILL
CONTRACTORS, -ERSON MOST QUALIFIED AND CUSTODIAN OF RECORDS AND REQUEST FOR PRODUCTION OF
DOCUMENTS; SHOTION FOR SANCTIONSCo em YW KD hw BR YY

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STATUTES (Cont'd)

TABLE OF AUTHORITIES (Cont'd)

California Code of Civil Procedure § 2023.030 (a)... ccc eee cece eee 1}
California Code of Civil Procedure § 2025.220(a)(4) .. 0... cece cee eee 8
California Code of Civil Procedure § 2025.230. 00.2000. eee eee 4
California Code of Civil Procedure § 2025.010 2000.00 c ccc eects 3

California Code of Civil Procedure § 2025.230. 00... eee ence nee

California Code of Civil Procedure § 2025.250(d) .........0000. 000002 45
California Code of Civil Procedure § 2025.270 20.0... ccc ccc cece tee e ene eene 4
California Code of Civil Procedure § 2025.450. 00... cee eee nee li
California Code of Civil Procedure § 2025.450(a). 22.002. eee 4
California Code of Civil Procedure § 2025.450 (b) (2). 0 cece eee ees 4

Ringed 0340ipldipwa mse depo CAHILL sup

iii ATA

MEMORANDUM OF POINTS. AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT CAHILL

CONTRACTORS,

ERSON MOST QUALIFIE -D AND CUSTODIAN OF RECORDS AND REQUEST FOR PRODUCTION OF

INC.”
DOCUMENTS; SHOTION FOR SANCTIONSCo em YW KD hw BR YY

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1
INTRODUCTION

Defendant CAHILL CONTRACTORS, INC. (hereafter “CAHILL”) is hindering the
discovery process by failing to produce the requested documents and individual(s) for this
essential deposition, which plaintiffs timely and properly noticed. Prior to the deposition,
counsel for CAHILL informed plaintiffs that no witness would be produced for deposition as
noticed by plaintiffs but it would, nevertheless, provide dates for when its corporate witness(es)
could testify. Plaintiffs have attempted to engage in a good-faith meet-and-confer in this matter,
but defendant has simply failed to respond with any dates certain for when the deposition could
oceur or when it is likely to obtain such dates.

This is a personal injury case involving plaintiff ROBERT ROSS’s work at various
construction sites where CAHILL has been identified or where plaintiffs have reason to believe
CAHILL performed work in Mr. ROSS’s presence. Therefore, any and all documents and
information pertaining to CAHILL’s work at Mr. ROSS’s jobsites are pertinent to this case.
Plaintiffs request that this Court grant this motion and compel CAHILL to produce documents
and persons for deposition pursuant to their previously issued Notice.

I.
FACTUAL BACKGROUND

This is a personal injury case involving plaintiff ROBERT ROSS’s work at various
construction sites where CAHILL has been identified or where plaintiffs have reason to believe
CAHILL performed work in Mr. ROSS’s presence. (Declaration of Anne T. Acuiia § 2 (“Acufia
Decl.”).)

On January 4, 2013, plaintiffs timely served on CAHILL a Notice of Taking Deposition
and Request for Production of Documents. The deposition was noticed for January 25, 2013.
(Exhibit A to the Acufia Decl.)

On January 17, 2013, defendant served its written objections to the Notice and indicated
that no witness would be produced on January 25, 2013. (Acufia Decl. € 4; Exhibit B to the
Acufia Decl.)

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.Co em YW KD hw BR YY

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On February 11, 2013, counsel for CAHILL, Cesar Alvarado, notified plaintiffs that
defendant was in the process of obtaining deposition dates. (Acufia Decl. § 5; copy of emails
attached as Exhibit C to the Acufia Decl.) On February 2] and again on March 14, 2013, in
accordance with C.C.P. § 2025.450 (b) (2), in a good-faith effort to meet and confer, plaintiffs
followed up with Mr. Alvarado, requesting dates for CAHILL’s PMQ and COR’s deposition.
(Acuiia Decl. € 6; copy of emails attached as Exhibit C to the Acuiia Decl.). On March 14,
Mr. Alvarado represented that he would provide some dates as soon as possible. (Id.)

Since the March 14, 2013, email, neither Mr. Alvarado nor anyone representing CAHILL,
has provided any dates for deposition or communicated in any way why defendant cannot
produce a witness for deposition pursuant to plaintiffs’ Notice. (Acuna Decl. { 7.)

TL
LEGAL ARGUMENT
A. GOOD CAUSE EXISTS FOR AN ORDER COMPELLING CAHILL TO
PRODUCE ITS CUSTODIAN(S) OF RECORDS, PERSON(S) MOST
QUALIFIED, AND DOCUMENTS FOR DEPOSITION BECAUSE THE
INFORMATION SOUGHT TO BE DISCOVERED IS RELEVANT TO THE

SUBJECT MATTER OF THE ACTION AND NECESSARY FOR TRIAL
PREPARATION

California Code of Procedure § 2017.010 provides in pertinent part:

Unless otherwise limited by order of the court ... any party may
obtain discovery regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action... if
the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible
evidence . . . Discovery may be obtained [as to] the identity and
ocation of persons having knowledge of any discoverable matter,
as well as of the existence, description, nature, custody, condition,
and location of any document, tangible thing, or land or other
property. [Emphasis added.]

California courts construe the discovery statutes broadly so as to uphold the right to discovery

wherever possible. (Greyhound Corp, v. Superior Court (1961) 56 Cal.2d 355.) In furtherance

of this broad interpretation, the “relevance to the subject matter” and “reasonably calculated to

lead to discovery of admissible evidence” standards are applied liberally, with any doubts as to

televance generally resolved in favor of permitting discovery. (Colonial Life and Accident

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.Co em YW KD hw BR YY

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Insurance Co. v. Superior Court (1982) 31 Cal.3d 785, 790.) Further, it is well established in

California courts that the taking of the deposition of a party is always permitted to gather
information before trial as to the party's theory of the case and the evidence available for it.
(Verdier v. Superior Court (1948) 88 Cal.App.2d 527, 535.) Indeed, there exists a judicial duty
to secure to a party, in advance of the trial, the means of obtaining information concerning the
issues and the means of producing at the trial the evidence necessary to sustain the action.

(McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 394.)

The fundamental purposes underlying the discovery statutes were articulated in Davies v.
Superior Court (1984) 36 Cal.3d 291, 299, wherein the court stated:

[he purpose of civil discovery is clear. In enacting the discovery
statutes the Legislature “intended to take the ‘game’ element out of
trial preparation” by assisting the parties in obtaining the facts and
evidence necessary to expeditious resolution of their dispute.
(Greyhound, supra.) [The discovery statutes were] “intended to
accomplish the following results: () to give greater assistance to
the parties in ascertaining the truth and in checking and preventing
perjury: (2) to provide an effective means of detecting and
exposing false, fraudulent and sham claims and defenses; (3) to
make available, in a simple, convenient and inexpensive way, facts
which otherwise could not be proved except with great difficulty;
(4) to educate the parties in advance of trial as to the real value of
their claims and defenses, thereby encouraging settlements; (5) to
expedite litigation; (6) to safeguard against surprise; (7) to prevent
clay; (8) to simplify and narrow the issues: and (9) to expedite
and facilitate both preparation and trial.” (Ibid., fn. omitted.)
These purposes require liberal construction of the discovery
statutes. [Citation.]

Although Davies was decided prior to the enactment of the 1986 Discovery Act, its mandates are

clearly consistent with the intent and spirit of the Act, and therefore its principles are instructive
to this Court in ruling on plaintiffs’ motion.

Any party may obtain discovery by oral or written deposition. (C.C.P. § 2019.010(a).)
And, an oral deposition may be taken of any person, including a party to the action or a nonparty.
(C.C.P. § 2025.010.) It is well settled that if, after receiving notice, a party to an action fails to
appear for a deposition, or fails to produce any document or tangible thing described in the
deposition notice, the noticing party may move for an order compelling the deponent’s

attendance and the production of any document or tangible thing described in the notice. (C.C.P.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.Co em YW KD hw BR YY

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§ 2025.450(a).) The test utilized by courts in ruling on a motion compelling discovery is good
cause, which is established by a showing of relevance to the subject matter of the action, and
specific facts justifying discovery (e.g., why such information is necessary for trial preparation).

(See generally, Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583.) The fact

that there is no alternative source for the information sought is an important factor in establishing

good cause for discovery, but it is not essential in every case. (Associated Brewers, supra.)
Additionally, the courts consider the relationship between the information sought and the

issues framed in the pleadings, and the likelihood that disclosure will be a practical benefit to the

party seeking discovery. (Columbia Broadcasting System, Inc. v. Superior Court (1968)

263 Cal. App.2d 12.) Applying these principles to the present case, this Court should grant
plaintiffs’ Motion to Compel the Deposition of CAHILL’s Person(s) Most Qualified and
Request for Production of Documents.

B. CAHILL’S OBJECTIONS TO PLAINTIFFS’ DEPOSITION
NOTICE ARE WITHOUT MERIT AND SHOULD BE OVERRULED

Defendant has provided a parade of general objections to all of plaintiffs’ requests, as
well as numerous objections to each of the individual requests. None of the objections stated by
defendant are supported by the facts or law. Defendant has set forth in boilerplate fashion
“blanket” objections (unduly burdensome, oppressive, etc.) in general. However, these
objections have no applicability to the requests at issue. Moreover, the defendant’s “blanket”
objections are simply nothing more than nuisance objections and are without merit. (Standon

Company, Inc. v. Superior Court (1990) 225 Cal. App.3d 898.) Defendant has stated no facts or

circumstances which support such objections,

Plaintiffs have no obligation to meet and confer with defendant regarding the date and
place noticed for the depositions. According to C.C.P. § 2025.270, “an oral deposition shall be
scheduled for a date at least 10 days after service of the deposition notice.” In this matter the
deposition notice was served on January 4, 2013 and the deposition was scheduled for
January 25, 2013 giving defendant 21 days to prepare for production. This is well within the

requirements of the Code. Moreover, San Francisco is the proper location for plaintiffs’

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.Co em YW KD hw BR YY

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depositions of CAHILL’s PMQ and COR. To plaintiffs’ knowledge, CAHILL’s principal
executive or business office is located in San Francisco, California. Therefore, C.C.P.

§ 2025.250(d) applies which provides, “the deposition shall be taken at a place that is, at the
option of the party giving notice of the deposition, either within the county where the action is
pending, or within 75 miles of any executive or business office in California of the organization.”)
Here, plaintiffs properly exercised their option by choosing San Francisco County, a county
where the action is pending and where CAHILL’s principal place of business is located,

Plaintiffs does not seek to depose an expert witness; rather, plaintiffs are secking to
depose defendant’s Custodian(s) of Records and Person(s) Most Questionable. Code of Civil
Procedure § 2019.020 (a) clearly states that “the methods of discovery may be used in any
sequence, and the fact that a party is conducting discovery, whether by deposition or another
method, shall not operate to delay the discovery of any other party.” Pursuant to C.C.P.

§ 2019.010, any party may obtain discovery by oral or written deposition, An organization, or
other entity, must designate its “most qualified” officers or agents to testify on its behalf. (C.C.P.
§ 2025.230.) Plaintiffs are entitled to take the deposition of defendant’s PMQ, and defendant
may not dictate the method or sequence of plaintiffs’ discovery.

Defendant claims in its objections that it was not incorporated until 1974 and, therefore,
the dates from 1959 to 1974 are not relevant to CAHILL. However, defendant’s objections are
misplaced and misleading. Per CAHILL’s responses to General Order No. 129 Interrogatories
dated February 27, 1998, although CAHILL CONTRACTORS, INC. was not incorporated until
1974, its predecessor, CAHILL CONSTRUCTION CO., was formed and operating from 1946 to
1986. As defined in plaintiffs’ notice, the term YOU shall mean CAHILL CONTRACTORS,
INC., and its subsidiaries, agents, officers and any and all predecessors-in-interest. This would
include CAHILL CONSTRUCTION CO. As such, plaintiffs expect defendant to comply and
produce any and all information and documents from the relevant period of time when plaintiff
ROBERT ROSS worked around CAHILL’s contractors which is from 1959 to 1980.

Plaintiffs’ requests are clear, narrowly defined and unambiguous. Each of plaintiffs’

request seeks discovery regarding defendant’s use, disturbance, installation, an/or removal, to

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.CO OW YN DR A BY De

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which plaintiff was exposed. The use, disturbance, installation, and/or removal of asbestos-
containing materials by defendant is highly relevant in that this information would provide
further information that plaintiffs may rely on and further investigate to substantiate plaintiffs’
claims against this defendant. An objection of “vague, ambiguous and unintelligible” to a
specific request may be treated as a “nuisance” objection . . .exposing the responding party to

sanctions. (Standon Company, Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)

Defendant’s objection on the grounds that plaintiffs’ Notice fails to comply with C.C.P.
§ 2025.230 is unfounded and boilerplate. Plaintiffs’ Notice complies with C.C.P. § 2025.230 in
that it describes with reasonable particularity the matters on which examination is requested so
that defendant can appropriately “designate and produce” individual(s) for deposition. Plaintiffs’
Notice is sufficiently specific to enable defendant to identify the individual(s) requested because
plaintiffs’ deposition notice is narrowly tailored to the issues of this case. For example, the
Exhibit A is specific in its identification of the locations, employers, and relevant dates of
exposure about which plaintiffs are seeking discovery from defendant. A defendant’s failure to
designate is deemed a failure or refusal to answer deposition questions and justifies appropriate
sanctions. (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390.) However, if there is a
articular part of the Notice or the attached Exhibit A that defendant thinks is unclear, plaintiffs
had been willing to meet and confer with defendant to clarify this issue.
Plaintiffs expect defendant to educate itself with regard to the documents and information
available to it through the reasonable inquiry as required by the Code of Civil Procedure.

Plaintiff's injury resulted from exposure to asbestos-containing materials, used, disturbed,

installed, and/or removed by defendant. All requests have been narrowly drawn and calculated to}

ead to the discovery of admissible evidence concerning products, activities, deliveries and

nowledge of defendant. The dates that are requested are limited in scope as much as possible.
Plaintiffs are seeking to discover the nature and extent of CAHILL’s activities, if any, relevant to

each category of information. CAHILL is, of course, free to state under oath, if true, that no such

materials were used, disturbed, installed, and/or removed by defendant or that no such activities

occurred. Plaintiffs are obviously seeking only for defendant to identify relevant documents as

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTSCO OW YN DR A BY De

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far as they exist and to testify as to the information to the extent that it is available. While
plaintiffs understand that plaintiff's work history is long and often involves many jobsites, such
is the nature of plaintiff's exposure history. Asbestos plaintiffs are entitled, as are all civil
litigants, to discovery of any information reasonably calculated to lead to the discovery of
admissible evidence, even if such discovery covers an extended time period. Plaintiffs’ Notice
seeks information that is highly relevant and goes to the very heart of plaintiffs’ allegations and is|
therefore proper.

The requested documents and information are not overbroad. It is well established that
the scope of permissible discovery is very broad and that Courts are to liberally interpret the
discovery statutes in favor of allowing discovery. (Greyhound v. Superior Court (1961)

56 Cal. App.2d 355, 378.) It is not necessary to show that documents requested will be

admissible into evidence in order to compel their production. (Pacific Auto Insurance Company

vy. Superior Court (1969) 273 Cal.App.2d 61.) Here, the breadth of the documents requested is
proper because plaintiffs only seck documents relating to CAHILL’s asbestos-containing
materials, use, disturbance, installation, and/or removal of asbestos-containing materials.
Moreover, the fact that it may be somewhat burdensome for defendant to search for information
and documents responsive to plaintiffs’ requests does not absolve defendant of its obligations.
The standard is not whether the request is burdensome. The request must be unduly burdensome,
Defendant’s objection on the ground of undue burden must be rejected under the legal standard
outlined in Brotsky v. State Bar (1962) 56 Cal.2d 287, 304.

The Brotsky court held that when a party responding to a request for production of
documents objects that the request is unduly burdensome, the responding party must either suffer
the burden of the search or else make the records available so that the requesting party may
conduct the search. No such offer was made here by defendant. Furthermore, the burden is on
the objecting party to sustain an objection to burden or oppression by detailed evidence showing
precisely how much work is required to answer or produce documents; conclusory statements are
not sufficient. (West Pico Furniture Company v. Superior Court (1961) 56 Cal.2d 407.)

Me

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
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Furthermore, on a motion to compel, the Court would consider the relationship of the
information sought to the issues framed in the pleadings and the likelihood that disclosure will be}

of practical benefit to the party seeking discovery. (Columbia Broadcasting, supra.) In discovery

matters, relevance is to be broadly construed and discovery must be allowed where it may aid a

party’s case. (Volkswagenwerk Aktiengesellchaft v. Superior Court (1981) 123 Cal.App.3d

840.) Under the standard articulated by the controlling case law, the relevance of the documents
at issue in this case is beyond serious dispute. Relevance to the subject matter is the sole test for
production of unprivileged documents. (Filipoff v. Superior Court (1961) 56 Cal-App.2d 443.)

It is well established the scope of permissible discovery is very broad, and the Courts are
liberally to interpret the discovery statutes in favor of allowing discovery. (Greyhound, supra,
378.) The documents requested pursuant to plaintiffs’ Notice are relevant to identify and
describe the use, disturbance, installation, and/or removal of asbestos-containing materials by
defendant. As plaintiff was exposed to asbestos-containing materials for more than 20 years,
plaintiffs are entitled to the documents and to question the Custodian of Records regarding the
authenticity of the documents.

Plaintiffs’ requests have been articulated with reasonable particularity according to the

standards set forth in C.C.P. § 2025.220(a)(4) and Union Trust Company v. Superior Court

(1938) 11 Cal.2d 449. Plaintiffs drafted category in the Notice to specifically identify the precise
scope and extent of information that would lead to the discovery of admissible evidence
concerning Mr. ROSS’s exposure from defendant’s activities. Plaintiffs’ Notice is sufficiently
specific to enable defendant to identify the documents requested because plaintiff's deposition
notice is narrowly tailored to the issues of this case. For example, the Exhibit A is specific in its
identification of the locations, employers, and relevant dates about which plaintiffs are seeking

discovery from defendant. If, however, there is a particular part of Exhibit A, that defendant

thinks is unclear, plaintiffs had been willing to meet and confer with defendant to clarify the
issue.
Defendant objects to plaintiffs’ requests on the grounds of attorney-client privilege,

attorney work-product privilege, and as requesting information and documents which are

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
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confidential, proprietary, and/or consist of business information and/or trade secrets of defendant
which is not subject to disclosure. Plaintiffs are unaware of the basis for this objection.
Plaintiffs assert that this objection is also without foundation and is boilerplate. Defendant has
failed to identify any alleged specific privilege or protection and to what document or
information it may apply. Plaintiffs’ Notice does not violate attorney work-product or trade
secret privileges. The purpose of attorney-client privilege is to encourage the client to make
complete disclosure to his attorney without fear that others may be informed. (City & County of

San Francisco v. Superior Court, 37 Cal.2d 227.) But, because the privilege tends to suppress

otherwise relevant facts, it is to be strictly construed. (Greyhound, supra.)

Defendant should not be allowed to hide behind the corporate privilege or trade secret,
when, obviously, categories plaintiffs provided in the Notice were not intended nor have the
effect toward disclosing such confidences or information. If defendant deems it necessary to
assert such privileges, plaintiffs merely request the privilege log be provided, in accordance with
and providing the information required by the Code of Civil Procedure. Furthermore, objections
based on alleged confidential information are not proper objections; the answering party should

seek a protective order to excuse the duty to answer. (Columbia Broadcasting, supra.23.)

Moreover, confidential/trade secret information is not protected from disclosure entirely: it is
often subject to disclosure pursuant to a protective order.

CAHILL’s objection that plaintiffs’ Notice requests documents that are irrelevant and
equally available to plaintiffs through other sources is essentially a boilerplate, nuisance
objection. The categories of documents plaintiffs requested are highly relevant to this case as
they go to the heart of plaintiffs’ allegations. Furthermore, plaintiffs are not aware of any other
sources through which these documents are equally available to plaintiffs; however, plaintiffs
would have been be happy to meet and confer with defendant if it were aware of any such
sources.

Defendant also objects to plaintiffs’ notice on the grounds that it has conducted a search
and has no information or documents that it worked at plaintiff's jobsites listed in the Exhibit A.

Of course, plaintiffs seek only documents in the possession, custody or control of defendant.

KAinjuredi 193-9) pda mae depo CAHILL wpe 9 ATA

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS” MOTION TO COMPE EFENDANT ACTUANT
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Obviously, defendant is not required to produce documents that are not in its possession, custody
or control. However, defendant is required to provide information in its possession, custody or
control which could enable plaintiffs to subpoena documents in the possession of third parties.
Plaintiffs seek to depose CAHILL regarding a different plaintiff, additional jobsites, and
years about which CAHILL has not previously testified and/or produced documents and so its
objection on the grounds that it has been deposed in prior asbestos lawsuits is misplaced.
Plaintiffs have always been willing to meet and confer regarding any information or testimony
sought by this Notice that has recently been given by CAHILL.
Defendant fails to specify what facts not in evidence are allegedly assumed by plaintiffs’
Notice, Also, this is not a proper objection to a deposition notice. Plaintiffs’ Notice does net

assume facts not in evidence. Plaintiffs’ complaint alleges that plaintiff was exposed to asbestos

at the jobsites listed in Exhibit "A" to the Notice, and plaintiffs are entitled to conduct discovery
reasonably calculated to lead to the discovery of admissible evidence concerning that exposure.
Iv.

BECAUSE OF DEFENDANT'S ABUSE OF THE DISCOVERY PROCESS AND ITS
FAILURE TO TIMELY ENGAGE IN THE DISCOVERY PROCESS, THE COURT
SHOULD IMPOSE MONETARY AND ISSUE SANCTIONS PURSUANT TO C.C.P.
§ 2023.030 (a) AND (b), RESPECTIVELY

In relevant part, C.C.P. § 2023.010 provides that misuses of the discovery process
include, but are not limited to, the following:

(d) Failing to respond or to submit to an authorized method of discovery.

(ce) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive discovery response.

(g) Disobeying a court order to provide discovery.

(}) Failing to confer in person, by telephone, or by letter with an opposing party or

attorney in a reasonable and good-faith attempt to resolve informally any dispute

concerning discovery.

In addressing possible sanctions which a Court may impose upon a party who has

misused the discovery process, C.C.P. § 2023.030, in relevant parts states:
Me

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.CO OW YN DR A BY De

RM NR NY NYY BR Ye Be Be Se Se ee Be Be Be
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To the extent authorized . . . the court, after notice to any affected party, person, or
attorney, and after the opportunity for hearing, may impose the following sanctions
against anyone engaging in conduct that is a misuse of the discovery process:

(a) If a monetary sanction is authorized by any provision of this article, the court shall

impose that sanction unless it finds that the one subject to the sanction acted with

substantial justification or that other circumstances make the imposition of sanctions
unjust. [Emphasis added.]

(b) The court may impose an issue sanction ordering that designated facts shall be taken

as established in the action in accordance with the claim of the party adversely affected b

the misuse of the discovery process. The court may also impose an issue sanction by an

order prohibiting any party engaging in the misuse of the discovery process from
supporting or opposing designated claims or defenses.

Code of Civil Procedure § 2025.450 authorizes the imposition of a monetary sanction if a
party’s objections to his/her adversary’s deposition notice are without merit, as the moving party
has engaged in a reasonable and good-faith attempt at an informal resolution of the dispute. “The
court may impose a monetary sanction ordering that one engaging in the misuse of the discovery
process, or any attorney advising that conduct, or both pay the reasonable expenses, including
attorneys’ fees, incurred by anyone as a result of that conduct.” (C.C.P. § 2023.030 (a).)

Specifically listed as a misuse of the discovery process is the making of unmeritorious
objections to discovery, failing to confer with an opposing party or attorney in a reasonable and
good-faith attempt to resolve informally any dispute concerning discovery, and making an
evasive discovery response. (C.C.P. § 2023.010{e); C.C.P. § 2023.010(1) and C.C.P. § 2023.010
(f), emphasis added.)

CAHILL refuses to participate in the discovery process in this case by refusing to produce}
documents and deponents responsive to plaintiffs’ Notice. Defendant has the burden of proving
that its refusal to produce witnesses and documents for deposition is substantially justified. As
demonstrated above, defendant cannot carry its burden.

CAHILL has failed to meet and confer in good faith, and refused to produce documents

and its Custodian(s) of Records and Person(s) Most Qualified for deposition. As a result of

defendant’s misuse of the discovery process, defendant and its counsel should bear the expense

of preparing the present motion. Sanctions in the sum of $1,336.00 should be imposed against

dif

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS” MOTION TO COMPEL DEFENDANT ACTUANT
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CAHILL and its counsel, jointly and severally, as reimbursement for the reasonable value of the
attorneys’ fees and costs relating to said motion. (See Acufia Decl. {[8.)
CONCLUSION
Based upon the foregoing reasons and analysis, it is respectfully submitted that plaintiffs’
Motion to Compel the deposition of CAHILL’s Person(s) Most Qualified and Custodian(s) of

Records be granted, with CAHILL ordered to produce witnesses and documents for deposition.

Dated: 4/1/13 BRAYTON*PURCELL LLP

By: /s/ Anne T. Acuna

Anne T. Acufia
Attorneys for Plaintiffs

KAinjuredi 193-9) pda mae depo CAHILL wpe 12 ATA
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS” MOTION TO COMPEL DEFENDANT ACTUANT
CORPORATION TO PRODUCE IT'S PERSON(S) MOST QUALIFIED FOR DEPOSITION AND DOCUMENTS.