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1JOSHUA S. FALAKASSA (SBN: 295045)
FALAKASSA LAW, P.C.
2 1901 Avenue ofthe Stars Suite # 450
3 Los Angeles, Califomia 90067
Tel.: (818) 456-6168; Fax: (888) 505-0868
4 Email: josh@falakassalaw.com
5 ARASH S. KHOSROWSHAHI (SBN: 293246)
FILED/EI^OOKEO
6 LIBERTY MAN LAW, P.C.
1010 F Street, Ste. 300
7 Sacramento, Califomia 95814 AUG - 3 2022
Tel.: (916) 573-0469; Fax: (866) 700-0787
8 Email: ash@libertymanlaw.com By: H. PEMELTON
Deputy Clerk
9
Attomeys for Plaintiff,
10 SAJTOA ZAMAN
11 SUPERIOR COURT OF CALIFORNIA
12
COUNTY OF SACRAMENTO
13
14 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121
RESERVATION ID: 2664201
15 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
16 vs. MOTION TO COMPEL FURTHER
RESPONSES TO PLAINTIFF SAJIDA
17 LIQUI-BOX CORPORATION, and DOES 1 ZAMAN'S SPECIAL
through 20, inclusive, INTERROGATORIES, SET THREE,
18 AND MONETARY SANCTIONS
Defendants. BY FAX
19
Date: October 18, 2022
20 Time: 1:30pm
Dept.: 53
21 Trial Date: September 12, 2022
22 I. INTRODUCTION
23 Plaintiff Sajida Zaman ("Plaintiff) brings this instant Motion to Compel seeking discovery
24 sanctions after having attempted to meet and confer as to Defendant Liqui-Box Corporation's
25 ("Defendant") objections without responses with no luck.
26 Plaintiff alleges she was terminated after reporting her work-related injury in violation o
27 the FEHA, public policy, and the UCL. Plaintiff alleges that her supposed violation of Defendant's
28 Critical Safety Behaviors ("CSB") policy, which requires employees to immediately report al
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1 incidences, including work-related injuries, or else face immediate termination, was used
2 pretextually against her to terminate her for her disabilities and work-related injury. As part ol
3 Plaintiff reporting her work-related injury. Defendant needed to complete certain OSHA
4 recordable injury documents ("OSHA logs") by law.
5 Plaintiff propounded her Special Interrogatories, Set Three on or about May 18, 2022
6 asking four interrogatories regarding Defendant's drafting and storing information of the OSHA
7 logs and identifying personnel related to such drafting/storing. This proceeded over a month ol
8 requesting the OSHA logs per OSHA regulations via letter, which Plaintiff as a former employee
9 has a right to by law. But rather than respond to the requests and interrogatories. Defendant
10 provided only objections. PlaintifTs counsel met and conferred on the objections, making some
11 offers of compromise and clarifying scope, but ultimately Defendant's counsel did not get back to
12 Plaintiff prior to the motion to compel/discovery cutoff deadlines.
13 Defendant's objections are without merit and/or too general to allow refusal to respond to
14 the interrogatories. Given Defendant's history of misuse of the discovery process and failure to
15 meet and confer in good faith, monetary sanctions are also warranted.
16 With the motion to compel deadline and discovery cutoff fast approaching. Plaintiff files
17 the instant Motion and respectfully requests that this Court GRANT her Motion in its entirety.
18 II. STATEMENT OF FACTS
19 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While
20 on the Job but was Terminated for Allegedly Not Reporting Immediately.
21 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Relie
22 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's
23 liquid bad manufacturing center in Sacramento in December 2003 and was eventually promoted
24 to "Inspector-Packer" (FAC, ^ 6.) PlaintifPs job duties included packing and inspecting bags and
25 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads
26 over 16 years of employment. (Id.)
27 On or about December 3, 2018, Plaintiff suffered an injury to her left knee while working
28 for Defendants, and over time her knee stiffness tumed into consistent and considerable pain. (Id.
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1 I 7.) Plaintiff first became aware her pain was a work-related knee injury on or about January 3,
2 2019, which was when she reported it to Defendant to seek treatment and begin her worker's
3 compensation claim. (Id.) Defendant's human resources department sent Plaintiff for medical
4 examination to the workers compensation medical provider and monitored the examination
5 without Plaintiff's consent. (Id., f 8.)
6 Thereafter, Plaintiff was instmcted by Defendant to go home until further notice but was
7 then summoned back for a work meeting on January 10, 2019. (Id., ^ 9.) At the meeting PlaintifPs
8 16 years of employment was terminated because she allegedly "neglected to report [her] injury
9 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in
10 relevant part, "Immediately report all incidents to your supervisor, management team member no
11 matter how minor or without exception," and that "[a]ny violation of these Critical Safety
12 Behaviors will result in immediate termination of employment." (Id.)
13 Based on these allegations. Plaintiff alleges she was terminated because of her work-related
14 injuries and disabilities, with the CSB policy used as pretext. (Id., ^ 10.) Plaintiff brings causes of
15 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation ol
16 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the
17 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in
18 Violation of FEHA; (6) Intentional Infliction of Emotional Distress; and (7) Unfair Competition
19 Law. (/i/., 19-64.)
20 B. Plaintiff Requested Defendant's Current or Stored OSHA Logs via Letter as
21 was Her Right Under OSHA Regulations.
22 On May 3, 2022, counsel for Plaintiff sent counsel for Defendant a letter requesting
23 Defendant's OSHA 300 Logs and annual summaries of recordable occupational injuries and
24 illnessesfrom2017 to 2022, as well as OSHA 301 Incident Reports describing any and all injuries
25 or illnesses to Plaintiff. (Declaration of Arash Khosrowshahi in Support of Motion to Compel
26 Further Responses to Plaintiff Sajida Zaman's Special Interrogatories, Set Three, and Monetary
27 Sanctions ["Khos Decl."], 13; attached as Exhibit A is a tme and correct copy of the May 3,2022
28 letter.) Per 29 CFR § 1904.35(b)(2), employers must provide former employees and their
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1 authorized representatives all retained OSHA injury and illness records within the next business
2 day without redactions. (Id., subds. (b)(2)(iii)-(v).)
3 Rather than simply provide the requested logs by the next business day. Defendant's
4 counsel began his oft-employed tactic of delay and obstmction. On May 5, 2022, Defendant's
5 counsel requested written authorizationfromPlaintiff, and attempted to limit the scope of the
6 productionfromwhen Plaintiff was terminated in 2019 onward. (Khos Decl., f 4; attached as
7 Exhibit B is a tme and correct copy of the May 5 through 9, 2022 meet and confer emails.)
8 PlaintifPs counsel responded that day claiming that Plaintiff was entitled to all "current or stored'
9 OSHA logs with no limitation in the regulation as to the date employment ended. (Khos Decl., 1
10 4; see Exhibit B.)
11 However, by May 9, 2022, Defendant's counsel had still not provided the documents, and
12 instead continued to quibble about the scope of the regulation, claiming the production of the
13 records should be limited to what was "relevant", and that he would only provide logsfrom2019
14 onward. (Khos Decl., | 5; see Exhibit B.) PlaintifPs counsel responded that day arguing that
15 Defendant was already late in its production and cited no law in support of its position. (Khos
16 Decl., I 5; see Exhibit B.) Instead, Defendant's counsel went down an interpretative rabbit-hole,
17 claiming that Plaintiff was requesting records as far back as 20 years, and that the scope of the
18 regulation was not that broad. (Khos Decl., t 5; see Exhibit B.) PlaintifPs counsel responded that
19 Defendant's counsel was quibbling about the term "relevant" when it simply meant "current oi
20 stored" logs, and that he was creating false limitations on PlaintifPsrights.(Khos Decl., 5; see
21 Exhibit B.)
22 Then Defendant's counsel engaged in hypotheticals, asking if an 18-year-old employee
23 who worked for an employer one day could request OSHA logs as far back as 50 years. (Khos
24 Decl., f 6; see Exhibit B.) PlaintifPs counsel responded in detail, citing OSHA's own standard
25 interpretation of the regulation requiring the disclosure of all current and stored OSHA logs, but
26 Defendant's counsel continued to bicker about the scope of the regulation going into the past
27 forever. (Khos Decl., ^ 6; see Exhibit B.) PlaintifPs counsel responded that per OSHA regulations
28 employers were only supposed to keep such logs for afive-yearperiod, and that Plaintiff was
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1 entitled to any logs Defendant had, regardless of when they were drafted—thus. Defendant's
2 counsel was simply "making things up." (Khos Decl., ^1 6; see Exhibit B.)
3 Thereafter Defendant produced a piecemeal version of the logs, which was missing OSHA
4 Form 300 for years 2019 through 2021, OSHA 300a logs, and OSHA Form 301 Incident Reports
5 (Khos Decl., ^ 7; attached as Exhibit C is a tme and correct copy of the piecemeal production;
6 attached as Exhibit D are counsel's communications re: the production being piecemeal and late.)
7 C. Plaintiff Sent Formal Discovery as to the OSHA Logs Given Defendant's
8 Gamesmanship, But Defendant Continued to Delay and Served Only
9 Objections.
10 Not tmsting Defendant's piecemeal production, and given Defendant's history ol
11 gamesmanship. Plaintiff thereafter served her Special Interrogatories, Set Three, on or about May
12 18, 2022, asking (1) identifying information of persons responsible for drafting OSHA 300, 300a,
13 and 301 logs ("OSHA logs") at Defendant's Sacramento facility (Special Interrogatory, Set Three,
14 No. 30); (2) identifying information of persons responsible for storing OSHA logs at Defendant's
15 Sacramento facility (Id., No. 31); (3) identifying information of persons with knowledge ol
16 Defendant's procedures relating to the drafting and storing of the OSHA logs at the Sacramento
17 facility (Id., No. 32); and (4) to describe where the OSHA logs are stored at the Sacramento facility
18 (Id., No. 33). (Khos Decl., | 8; attached as Exhibit E is a tme and correct copy of Plaintiff Sajida
19 Zaman's Special Interrogatories to Defendant Liqui-Box Corporation (Set Three).)
20 While waiting for Defendant's responses, on June 15, 2022 PlaintifPs coimsel sent a
21 follow-up email as to the status of Plaintiffs OSHA 301 Incident Log related to her work-related
22 injury leading to her termination of employment. (Khos Decl., 19; attached as Exhibit F is a tme
23 and correct copy of counsel's Jime 15 meet and confer emails.) Defendant's counsel responded
24 that Defendant could notfindit and continued to make arguments about how the document would
25 not state anything different than other documents in the matter, causing further delay and
26 obstmction. (Khos Decl., 14; see Exhibit F.)
27 On June 20, 2022, PlaintifPs counsel followed up on when the OSHA logs would be
28 produced, to which Defendant's counsel repeated that the only one not sent was PlaintifTs OSHA
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1 301 log. (Khos Decl., | 10; attached as Exhibit G is a tme and correct copy of counsel's June 20
2 to July 12 meet and confer emails.)
3 Thereafter, on or about June 21,2022, rather than provided responses. Defendant continued
4 its obstmction by serving only objections to Plaintiffs interrogatories. (Khos Decl., ^ 11; attached
5 as Exhibit H is a tme and correct copy of Defendant Liqui-Box Corporation's Response to
6 Plaintiff Sajida Zaman's Special Interrogatories, Set Three.) The objections were that the
7 interrogatories: (1) were vague and ambiguous (Response to Special Interrogatories, Set Three,
8 Nos. 30-33); (2) compound (Id., Nos. 30-31); (3) called for speculation (Id. Nos. 30-33); (4)
9 overbroad (Id.); (5) irrelevant/not calculated to lead to the discovery of admissible evidence (Id.,
10 Nos. 30-31); and (6) were protected by the attomey-client privilege/attomey work-product
11 docfrine (Id., Nos. 30-33). (Khos Decl., ^ 11; see Exhibit H.)
12 D. Plaintiff Could Not Informally Resolve the Issues via the Meet and Confer
13 Process.
14 On June 22, 2022, Plaintiff sent a detailed, seven-page meet and confer letter arguing why
15 each and every objection to the interrogatories were without merit. (Khos Decl., ^ 12; attached as
16 Exhibit I is a tme and correct copy of the June 22, 2022 meet and confer letter.) Not having heard
17 from Defendant, on July 8, 2022 counsel sent follow-up emails as to Defendant's incomplete and
18 late production ofthe OSHA logs and lack of meet and confer response. (Khos Decl., ^ 12; see
19 Exhibit G and Exhibit I.)
20 In response to the logs requested in Plaintiffs original May 3, 2022 letter, Defendant's
21 counsel incredulously asked what was still outstanding, despite it being Defendant's obligation to
22 maintain the records. (Khos Decl., 113; see Exhibit G.) Once again Plaintiffs counsel reiterated
23 that the OSHA 300 Logs of Work Related Injuries/Illnesses for 2017-2021 and all OSHA 301
24 Incident Reports, including Plaintiffs, from 2017-2021 were missing. (Khos Decl., t 13; see
25 Exhibit G.) Defendant's counsel then responded once again that Plaintiff was only entitled, and
26 Defendant would only produce, logs during Plaintiffs employment period, in clear contravention
27 of the OSHA regulation met and conferred about a month prior. (Khos Decl., 113; see Exhibit
28 G.) Plaintiffs counsel once again cited OSHA's standard interpretation of its own regulations thai
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1 Plaintiff was entitled to all "current and stored" logs. (Khos Decl., | 13; see Exhibit G.)
2 Defendant's counsel then went back to his hypothetical scenarios, arguing that Plaintiffs counsel's
3 interpretation was too broad because a hypothetical employee could request records 80 years into
4 the fiiture. (Khos Decl., 13; see Exhibit G.) Plaintiffs counsel responded that he was simply
5 citing OSHA's own interpretation documents, and that Defendant's counsel's hypothetical
6 scenarios were contrived and missed the point, and further even offered to compromise that names
7 and contact information be redacted to alleviate privacy concems. (Khos Decl., f 13; see Exhibit
8 G.) Then Defendant's counsel argued that Plaintiff was only entitled to her OSHA logs, not the
9 logs of other employees, and that either her logs no longer existed or could not be located. (Khos
10 Decl., 113; see Exhibit G.)
11 In response to the June 22, 2022 meet and confer letter, Defendant's counsel responded
12 July 10, 2022, arguing that Special Interrogatory No. 30 did not define the time period of which
13 individuals were responsible for drafting the OSHA logs. (Khos Decl., ^ 14; see Exhibit I.) As to
14 Special Interrogatories Nos. 31-33, Defendant continued to bicker about the meanings the plain
15 terms "responsible for storing OSHA logs" and "describe where they are stored". (Khos Decl., ^
16 14; see Exhibit I.) However, Defendant's counsel represented that responses would be provided
17 (Khos Decl., '^114; see Exhibit I.) On July 29, 2022, PlaintifPs counsel responded, (1) agreeing to
18 a scope of five years prior to Plaintiffs termination of employment to the present as to Special
19 Interrogatory No. 30, and (2) asking when the responded to Special Interrogatories Nos. 31-33
20 would be provided after having met and conferred in good faith. (Khos Decl., ^ 14; see Exhibit I.)
21 On August 1, 2022 Plaintiffs counsel sent a follow up email, stating the motions to compel
22 deadlines were fast approaching, and given discovery motions seeking sanctions against Defendant
23 already filed as to other discovery requests he hoped the parties could come to an agreement to
24 resolve the outstanding issues. (Khos Decl., 114; see Exhibit I.) But as of this writing no response
25 was provided. (Khos Decl., 114.)
26 With the motion to compel and discovery cutoff dates fast approaching, and having
27 exhausted her meet and confer obligations. Plaintiff brings'this Motion seeking sanctions.
28 ///
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1 III. ARGUMENT
2 Under Code of Civil Procedure § 2030.300(a)(3), a party may move for an order
3 compelling further response to interrogatories if a "An objection in the response is without merit
4 or too general." Such a motion must show specific facts showing good cause justifying the
5 discovery sought by the demand and include a meet and confer declaration. (Id., subd. (b)(l)-(2).)
6 A. Defendant's Objections are Without Merit/Too General.
7 1. Responses to Special Interrogatories Nos. 30-33.
8 Vague & Ambiguous: this is a nuisance objection which is disfavored by the Courts
9 "Indeed, where the question is somewhat ambiguous, but the nature of the information sought is
10 apparent, the proper solution is to provide an appropriate response." (Deyo v. Kilbourne (1978) 84
11 Cal. App. 3d 771, 783.) "[R]esponsible for drafting" (No. 30) and "responsible for storing" (No.
12 31), are not vague and ambiguous clauses, but carry their plain English meanings about who is in
13 charge of drafting or storing the OSHA logs in question. Moreover, it is not even clear what
14 Defendant finds vague and ambiguous about Nos. 32 and 33. Defendant knows precisely what
15 Plaintiff is asking for, which necessarily includes information regarding who is responsible foi
16 drafting and storing the logs, as well as the identification of persons with knowledge of how the
17 logs are stored, drafted, and where they are stored. Defendant's steadfast refusal to hide behind
18 this objection, especially after Plaintiff met and conferred for the better part of three months, is
19 made in bad faith.
20 Calls for Speculation: This is an improper trial objection not applicable at the pretrial
21 discovery stage. Further, Defendant has already produced some ofthe Sacramento facility OSHA
22 logs at issue—^therefore it is absurd to claim that these interrogatories speculate when Defendant
23 has to have designated persons to be in charge of storing and drafting the logs, let alone calling for
24 speculation as to identifying information of persons with knowledge of how the logs are
25 stored/drafted, as well as where they are stored.
26 Overbroad as to Time/Scope: This objection is also without merit. There is nothing
27 overbroad about requesting identifying information of persons with knowledge surrounding
28 Defendant's Sacramento facility OSHA logs, as well as where they are located. Defendant by law
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1 must maintain and provide to these logs per 29 CFR § 1904.35(b)(2). This necessarily implicates
2 the existence of persons responsible for maintaining these logs, and it is not overbroad to request
3 who was in charge in storing and drafting them, let alone overbroad to request who has knowledge
4 about such procedures or where the logs are stored.
5 Attorney-Client Privilege/Attorney Work Product: these interrogatories seek information
6 regarding persons with knowledge as to who is responsible for drafting/storing Defendant's OSHA
7 logs, as well as persons with knowledge as to where they are located and the procedures by which
8 the logs are maintained. This in no way implicates any attomey-client privileged information oi
9 work product as Defendant did not plausibly assign these logs to be drafted or stored by attomeys.
10 This is an objection made solely in bad faith.
11 2. Responses to Special Interrogatories Nos. 30-31.
12 Compound: In short, the interrogatories are not so compound as to confuse Defendant here
13 Defendant knows precisely what we are asking for, which necessarily includes information
14 regarding who is responsible for drafting and storing the logs, as well as the identification ol
15 persons with knowledge of how the logs are stored, drafted, and where they are stored. Defendant's
16 steadfast refusal to hide behind this objection, especially after Plaintiffhas met and conferred for
17 the better part of three months, is made in bad faith.
18 Relevance/Not Calculated to Lead to the Discoverv of Admissible Evidence: Defendant
19 should be aware that Code of Civil Procedure § 2017.010 states that "any party may obtain
20 discovery regarding any matter, not privileged, that is relevant to the subject matter involved
21 in the pending action or to the determination of any motion made in that action, if the matter
22 either is itself admissible in evidence or appears reasonably calculated to lead to the
23 discovery of admissible evidence. Discovery may relate to the claim or defense of the party
24 seeking discovery or of any other party to the action. Discovery may be obtained of the identity
25 and location of persons having knowledge of any discoverable matter, as well as of the
26 existence, description, nature, custody, condition, and location of any document
27 electronically stored information, tangible thing, or land or other property." (emphasis
28 added.)
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1 Indeed, "For the guidance of the trial courts the proper mle is declared to be not only one
2 of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless
3 statutory or public policy considerations clearly prohibit it." (Greyhound Corp. v. Superior
4 Court (1961) 56 Cal.2d 355, 378)(emphasis added.) The purposes of discovery are "(1) to give
5 greater assistance to the parties in ascertaining the tmth and in checking and preventing perjury;
6 (2) to provide an effective means of detecting and exposing false,fraudulentand sham claims and
7 defenses; (3) to make available, in a simple, convenient and inexpensive way, facts which
8 otherwise could not be proved except with great difficulty; (4) to educate the parties in advance
9 of trial as to the real value of their claims and defenses, thereby encouraging settlements; (5) to
10 expedite litigation: (6) to safeguard against surprise; (7) to prevent delay; (8) to simplify and
11 narrow the issues; and, (9) to expedite and facilitate both preparation and trial. Certainly, it
12 can be said, that the Legislature intended to take the 'game' element out of trial preparation
13 while yet retaining the adversary nature of the trial itself" (Greyhound Corp., 56 Cal. 2d at
14 376)(emphasis added.)
15 Plaintiffhas broad rights to discovery, which includes obtaining identifying information ol
16 persons responsible for drafting and storing Defendant's OSHA logs reflecting any injury or illness
17 at the Sacramento facility (Nos. 30 and 31). Indeed, given Plaintiffs UCL cause of action that
18 Defendant's Critical Safety Behavior's policy facially violates OSHA reasonable reporting
19 regulations, and given that her FEHA disability/wrongfiil termination causes of action surround
20 her pain and injury incurred at work, it is absurd to suggest persons with knowledge as to the
21 drafting and storing of the OSHA injury/illness logs in no way have relevant information to this
22 case. By objecting without responding. Defendant is only preventing convenient and inexpensive
23 discoveryfrommoving forward and only serves to further delay the case and grind the litigation
24 to a standstill when trial is fast approaching. Plaintiff will not tolerate Defendant's gamesmanship
25 Defendant must participate in good faith in the discovery process.
26 B. Plaintiff Adequately Met and Conferred Before Filing the Motion.
27 Plaintiffs counsel's meet and confer declaration is attached to this Motion, and Plaintiffs
28 efforts to resolve these issues informally was discussed in Section II supra. Plaintiff exhausted her
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1 meet and confer obligations and had no choice but to file this Motion. (See also Section III.C
2 infra.)
3 C. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery
4 Process by Providing Meritless Objections and Failing to Meet and Confer in
5 Good Faith.
6 Discovery is meant to be a self-executing process. (Clement v. Alegre (2009), 177 Cal
7 App. 4"^ 1277, 1281.) Misuse of the discovery process includes (1) making without substantial
8 justification an unmeritorious objection to discovery; and (2) failing to confer with an opposing
9 party in a reasonable and good faith attempt to resolve informally any dispute conceming
10 discovery. (Code Civ. Proc. § 2023.010(e), (i).) Such misuse is subject to monetary sanctions in
11 the form of reasonable attomey's fees. (Id. §§ 2023.020, 2023.030(a), 2030.300(d).)
12 Meeting and conferring requires there be a serious effort at negotiation and informal
13 resolution. The law requires that counsel attempt to talk the matter over, compare their views,
14 consult, and deliberate. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218
15 Cal.App.4th 853, 879.) In discussing the sufficiency of the meet and confer efforts, the court in
16 Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1016 held:
17 "A determination of whether an attempt at informal resolution is adequate ... involves the
18 exercise of discretion. The level of effort at informal resolution which satisfies the
19 'reasonable and good faith attempt' standard depends upon the circumstances. In a larger,
20 more complex discovery context, a greater effort at informal resolution may be warranted
21 In a simpler, or more narrowly focused case, a more modest effort may suffice. The
22 history ofthe litigation, the nature of the interaction between counsel, the nature ol
23 the issues, the type and scope of discovery requested, the prospects for success and
24 other similar factors can be relevant. Judges have broad powers and responsibility to
25 determine what measure and procedures are appropriate in varying circumstances."
26 (emphasis added.) Indeed, the burden to meet and confer reasonably and in good-faith is not taken
27 lightly. (Manzetti v. Superior Court, (1993) 21 Cal.App.4th 373, 379-80 [Counsels are obligated
28
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1 to engage in this process in good faith and cannot reject reasonable proposals without suffering
2 the consequences].)
3 Defendant should be sanctioned for its gamesmanship and misuse of the discovery process
4 here. Even prior to discovery being served. Defendant and its counsel showed clear disregard for
5 PlaintifPsrightsto OSHA logs under 29 CFR § 1904.35(b)(2), continually bickering and quibbling
6 for months about the scope of the regulation despite Plaintiffs counsel providing OSHA's own
7 interpretations of its regulation. Thereafter, Defendant objected to the interrogatories, delayed in
8 meeting and conferring for weeks, and would not respond to Plaintiffs offers of compromise and
9 questions as to when responses would actually be provided as Defendant promised. Defendant and
10 its counsel seem to think it is appropriate to hold discovery hostage, rather than engage in the meet
11 and confer process in good faith. In so doing, Defendant has averted the self-executing purposes
12 of discovery in (1) failing to make information available which carmot otherwise be provided
13 except with great difficulty (i.e. forcing Plaintiff to file this Motion and incurring expense); and
14 (2) delaying the litigation and preparation for trial. Plaintiff only requires her straightforward
15 interrogatories be responded to under oath. But the history of the litigation and interactions
16 between counsel show that Defendant would rather waste time, obstmct as a matter of course, and
17 never meet and confer in good faith, leading to an inference of bad faith on Defendant's part,
18 Indeed, the fact that Plaintiffhas already filed two separate discovery motions seeking sanctions
19 in this matter (to be heard September 1, 2022), should clearly reveal Defendant's modus operandi
20 of obstmction.'
21 Given that Plaintiffs counsel has expended considerable hours in researching and drafting
22 the instant motion, as well as Plaintiff incurring costs for court filing, monetary sanctions should
23 be issued in the amount of $4,910.00. (Khos. Decl. Tit 15-16.)
24 ///
25 ///
26 ///
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' This would be Plaintiff's (1) Motion for Requests for Admissions, Set One (1) Be Deemed Admitted, and Monetary
28 Sanctions; and (2) Motion to Compel Discovery Responses as to Form Interrogatories—General, Set Two (2), anc
Monetary Sanctions.
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1 IV. CONCLUSION
2 Given the foregoing, Plaintiff respectfully requests this Court GRANT the instant Motion
3 and ORDER Defendant (1) be compelled to provide fiirther response to Special Interrogatories,
4 Set 3, and (2) to pay separate monetary sanctions in an amount of $4,910.00
5 Dated: August 2, 2022 LIBERTY MAN LAW, P.C.
FALAKASSA LAW, P.C.
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Arash S. Khosrowshahi
9 Joshua S. Falakassa
Attomeys for Plaintiff Sajida Zaman
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Preview
1JOSHUA S. FALAKASSA (SBN: 295045) FALAKASSA LAW, P.C. 2 1901 Avenue ofthe Stars Suite # 450 3 Los Angeles, Califomia 90067 Tel.: (818) 456-6168; Fax: (888) 505-0868 4 Email: josh@falakassalaw.com 5 ARASH S. KHOSROWSHAHI (SBN: 293246) FILED/EI^OOKEO 6 LIBERTY MAN LAW, P.C. 1010 F Street, Ste. 300 7 Sacramento, Califomia 95814 AUG - 3 2022 Tel.: (916) 573-0469; Fax: (866) 700-0787 8 Email: ash@libertymanlaw.com By: H. PEMELTON Deputy Clerk 9 Attomeys for Plaintiff, 10 SAJTOA ZAMAN 11 SUPERIOR COURT OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 14 SAJIDA ZAMAN, CASE NO.: 34-2019-00252121 RESERVATION ID: 2664201 15 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 vs. MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF SAJIDA 17 LIQUI-BOX CORPORATION, and DOES 1 ZAMAN'S SPECIAL through 20, inclusive, INTERROGATORIES, SET THREE, 18 AND MONETARY SANCTIONS Defendants. BY FAX 19 Date: October 18, 2022 20 Time: 1:30pm Dept.: 53 21 Trial Date: September 12, 2022 22 I. INTRODUCTION 23 Plaintiff Sajida Zaman ("Plaintiff) brings this instant Motion to Compel seeking discovery 24 sanctions after having attempted to meet and confer as to Defendant Liqui-Box Corporation's 25 ("Defendant") objections without responses with no luck. 26 Plaintiff alleges she was terminated after reporting her work-related injury in violation o 27 the FEHA, public policy, and the UCL. Plaintiff alleges that her supposed violation of Defendant's 28 Critical Safety Behaviors ("CSB") policy, which requires employees to immediately report al MEMORANDUM OF POINTS AND AUTHORITIES 1 of 13 1 incidences, including work-related injuries, or else face immediate termination, was used 2 pretextually against her to terminate her for her disabilities and work-related injury. As part ol 3 Plaintiff reporting her work-related injury. Defendant needed to complete certain OSHA 4 recordable injury documents ("OSHA logs") by law. 5 Plaintiff propounded her Special Interrogatories, Set Three on or about May 18, 2022 6 asking four interrogatories regarding Defendant's drafting and storing information of the OSHA 7 logs and identifying personnel related to such drafting/storing. This proceeded over a month ol 8 requesting the OSHA logs per OSHA regulations via letter, which Plaintiff as a former employee 9 has a right to by law. But rather than respond to the requests and interrogatories. Defendant 10 provided only objections. PlaintifTs counsel met and conferred on the objections, making some 11 offers of compromise and clarifying scope, but ultimately Defendant's counsel did not get back to 12 Plaintiff prior to the motion to compel/discovery cutoff deadlines. 13 Defendant's objections are without merit and/or too general to allow refusal to respond to 14 the interrogatories. Given Defendant's history of misuse of the discovery process and failure to 15 meet and confer in good faith, monetary sanctions are also warranted. 16 With the motion to compel deadline and discovery cutoff fast approaching. Plaintiff files 17 the instant Motion and respectfully requests that this Court GRANT her Motion in its entirety. 18 II. STATEMENT OF FACTS 19 A. Plaintiff Sustained Work-Related Injuries and Disabilities to her Knee While 20 on the Job but was Terminated for Allegedly Not Reporting Immediately. 21 Plaintiff alleges in her First Amended Complaint for Damages and Injunctive Relie 22 ("FAC") filed on January 24, 2020, that she was originally hired as a "Packer" at Defendant's 23 liquid bad manufacturing center in Sacramento in December 2003 and was eventually promoted 24 to "Inspector-Packer" (FAC, ^ 6.) PlaintifPs job duties included packing and inspecting bags and 25 other labor-intensive tasks, requiring her to stand for long periods of time and lift/haul heavy loads 26 over 16 years of employment. (Id.) 27 On or about December 3, 2018, Plaintiff suffered an injury to her left knee while working 28 for Defendants, and over time her knee stiffness tumed into consistent and considerable pain. (Id. MEMORANDUM OF POINTS AND AUTHORITIES 2 of 13 1 I 7.) Plaintiff first became aware her pain was a work-related knee injury on or about January 3, 2 2019, which was when she reported it to Defendant to seek treatment and begin her worker's 3 compensation claim. (Id.) Defendant's human resources department sent Plaintiff for medical 4 examination to the workers compensation medical provider and monitored the examination 5 without Plaintiff's consent. (Id., f 8.) 6 Thereafter, Plaintiff was instmcted by Defendant to go home until further notice but was 7 then summoned back for a work meeting on January 10, 2019. (Id., ^ 9.) At the meeting PlaintifPs 8 16 years of employment was terminated because she allegedly "neglected to report [her] injury 9 timely" in violation of Defendant's Critical Safety Behaviors ("CSB") policy, which states in 10 relevant part, "Immediately report all incidents to your supervisor, management team member no 11 matter how minor or without exception," and that "[a]ny violation of these Critical Safety 12 Behaviors will result in immediate termination of employment." (Id.) 13 Based on these allegations. Plaintiff alleges she was terminated because of her work-related 14 injuries and disabilities, with the CSB policy used as pretext. (Id., ^ 10.) Plaintiff brings causes of 15 action for (1) Wrongful Termination in Violation of Public Policy; (2) Retaliation in Violation ol 16 Public Policy; (3) Disability Discrimination in Violation of FEHA; (4) Failure to Engage in the 17 Interactive Process in Violation of FEHA; (5) Failure to Provide a Reasonable Accommodation in 18 Violation of FEHA; (6) Intentional Infliction of Emotional Distress; and (7) Unfair Competition 19 Law. (/i/., 19-64.) 20 B. Plaintiff Requested Defendant's Current or Stored OSHA Logs via Letter as 21 was Her Right Under OSHA Regulations. 22 On May 3, 2022, counsel for Plaintiff sent counsel for Defendant a letter requesting 23 Defendant's OSHA 300 Logs and annual summaries of recordable occupational injuries and 24 illnessesfrom2017 to 2022, as well as OSHA 301 Incident Reports describing any and all injuries 25 or illnesses to Plaintiff. (Declaration of Arash Khosrowshahi in Support of Motion to Compel 26 Further Responses to Plaintiff Sajida Zaman's Special Interrogatories, Set Three, and Monetary 27 Sanctions ["Khos Decl."], 13; attached as Exhibit A is a tme and correct copy of the May 3,2022 28 letter.) Per 29 CFR § 1904.35(b)(2), employers must provide former employees and their MEMORA2SIDUM OF POINTS AND AUTHORITIES 3 of 13 1 authorized representatives all retained OSHA injury and illness records within the next business 2 day without redactions. (Id., subds. (b)(2)(iii)-(v).) 3 Rather than simply provide the requested logs by the next business day. Defendant's 4 counsel began his oft-employed tactic of delay and obstmction. On May 5, 2022, Defendant's 5 counsel requested written authorizationfromPlaintiff, and attempted to limit the scope of the 6 productionfromwhen Plaintiff was terminated in 2019 onward. (Khos Decl., f 4; attached as 7 Exhibit B is a tme and correct copy of the May 5 through 9, 2022 meet and confer emails.) 8 PlaintifPs counsel responded that day claiming that Plaintiff was entitled to all "current or stored' 9 OSHA logs with no limitation in the regulation as to the date employment ended. (Khos Decl., 1 10 4; see Exhibit B.) 11 However, by May 9, 2022, Defendant's counsel had still not provided the documents, and 12 instead continued to quibble about the scope of the regulation, claiming the production of the 13 records should be limited to what was "relevant", and that he would only provide logsfrom2019 14 onward. (Khos Decl., | 5; see Exhibit B.) PlaintifPs counsel responded that day arguing that 15 Defendant was already late in its production and cited no law in support of its position. (Khos 16 Decl., I 5; see Exhibit B.) Instead, Defendant's counsel went down an interpretative rabbit-hole, 17 claiming that Plaintiff was requesting records as far back as 20 years, and that the scope of the 18 regulation was not that broad. (Khos Decl., t 5; see Exhibit B.) PlaintifPs counsel responded that 19 Defendant's counsel was quibbling about the term "relevant" when it simply meant "current oi 20 stored" logs, and that he was creating false limitations on PlaintifPsrights.(Khos Decl., 5; see 21 Exhibit B.) 22 Then Defendant's counsel engaged in hypotheticals, asking if an 18-year-old employee 23 who worked for an employer one day could request OSHA logs as far back as 50 years. (Khos 24 Decl., f 6; see Exhibit B.) PlaintifPs counsel responded in detail, citing OSHA's own standard 25 interpretation of the regulation requiring the disclosure of all current and stored OSHA logs, but 26 Defendant's counsel continued to bicker about the scope of the regulation going into the past 27 forever. (Khos Decl., ^ 6; see Exhibit B.) PlaintifPs counsel responded that per OSHA regulations 28 employers were only supposed to keep such logs for afive-yearperiod, and that Plaintiff was MEMORANDUM OF POINTS AND AUTHORITIES 4 of 13 1 entitled to any logs Defendant had, regardless of when they were drafted—thus. Defendant's 2 counsel was simply "making things up." (Khos Decl., ^1 6; see Exhibit B.) 3 Thereafter Defendant produced a piecemeal version of the logs, which was missing OSHA 4 Form 300 for years 2019 through 2021, OSHA 300a logs, and OSHA Form 301 Incident Reports 5 (Khos Decl., ^ 7; attached as Exhibit C is a tme and correct copy of the piecemeal production; 6 attached as Exhibit D are counsel's communications re: the production being piecemeal and late.) 7 C. Plaintiff Sent Formal Discovery as to the OSHA Logs Given Defendant's 8 Gamesmanship, But Defendant Continued to Delay and Served Only 9 Objections. 10 Not tmsting Defendant's piecemeal production, and given Defendant's history ol 11 gamesmanship. Plaintiff thereafter served her Special Interrogatories, Set Three, on or about May 12 18, 2022, asking (1) identifying information of persons responsible for drafting OSHA 300, 300a, 13 and 301 logs ("OSHA logs") at Defendant's Sacramento facility (Special Interrogatory, Set Three, 14 No. 30); (2) identifying information of persons responsible for storing OSHA logs at Defendant's 15 Sacramento facility (Id., No. 31); (3) identifying information of persons with knowledge ol 16 Defendant's procedures relating to the drafting and storing of the OSHA logs at the Sacramento 17 facility (Id., No. 32); and (4) to describe where the OSHA logs are stored at the Sacramento facility 18 (Id., No. 33). (Khos Decl., | 8; attached as Exhibit E is a tme and correct copy of Plaintiff Sajida 19 Zaman's Special Interrogatories to Defendant Liqui-Box Corporation (Set Three).) 20 While waiting for Defendant's responses, on June 15, 2022 PlaintifPs coimsel sent a 21 follow-up email as to the status of Plaintiffs OSHA 301 Incident Log related to her work-related 22 injury leading to her termination of employment. (Khos Decl., 19; attached as Exhibit F is a tme 23 and correct copy of counsel's Jime 15 meet and confer emails.) Defendant's counsel responded 24 that Defendant could notfindit and continued to make arguments about how the document would 25 not state anything different than other documents in the matter, causing further delay and 26 obstmction. (Khos Decl., 14; see Exhibit F.) 27 On June 20, 2022, PlaintifPs counsel followed up on when the OSHA logs would be 28 produced, to which Defendant's counsel repeated that the only one not sent was PlaintifTs OSHA MEMORANDUM OF POINTS AND AUTHORITIES 5 of 13 1 301 log. (Khos Decl., | 10; attached as Exhibit G is a tme and correct copy of counsel's June 20 2 to July 12 meet and confer emails.) 3 Thereafter, on or about June 21,2022, rather than provided responses. Defendant continued 4 its obstmction by serving only objections to Plaintiffs interrogatories. (Khos Decl., ^ 11; attached 5 as Exhibit H is a tme and correct copy of Defendant Liqui-Box Corporation's Response to 6 Plaintiff Sajida Zaman's Special Interrogatories, Set Three.) The objections were that the 7 interrogatories: (1) were vague and ambiguous (Response to Special Interrogatories, Set Three, 8 Nos. 30-33); (2) compound (Id., Nos. 30-31); (3) called for speculation (Id. Nos. 30-33); (4) 9 overbroad (Id.); (5) irrelevant/not calculated to lead to the discovery of admissible evidence (Id., 10 Nos. 30-31); and (6) were protected by the attomey-client privilege/attomey work-product 11 docfrine (Id., Nos. 30-33). (Khos Decl., ^ 11; see Exhibit H.) 12 D. Plaintiff Could Not Informally Resolve the Issues via the Meet and Confer 13 Process. 14 On June 22, 2022, Plaintiff sent a detailed, seven-page meet and confer letter arguing why 15 each and every objection to the interrogatories were without merit. (Khos Decl., ^ 12; attached as 16 Exhibit I is a tme and correct copy of the June 22, 2022 meet and confer letter.) Not having heard 17 from Defendant, on July 8, 2022 counsel sent follow-up emails as to Defendant's incomplete and 18 late production ofthe OSHA logs and lack of meet and confer response. (Khos Decl., ^ 12; see 19 Exhibit G and Exhibit I.) 20 In response to the logs requested in Plaintiffs original May 3, 2022 letter, Defendant's 21 counsel incredulously asked what was still outstanding, despite it being Defendant's obligation to 22 maintain the records. (Khos Decl., 113; see Exhibit G.) Once again Plaintiffs counsel reiterated 23 that the OSHA 300 Logs of Work Related Injuries/Illnesses for 2017-2021 and all OSHA 301 24 Incident Reports, including Plaintiffs, from 2017-2021 were missing. (Khos Decl., t 13; see 25 Exhibit G.) Defendant's counsel then responded once again that Plaintiff was only entitled, and 26 Defendant would only produce, logs during Plaintiffs employment period, in clear contravention 27 of the OSHA regulation met and conferred about a month prior. (Khos Decl., 113; see Exhibit 28 G.) Plaintiffs counsel once again cited OSHA's standard interpretation of its own regulations thai MEMORANDUM OF POINTS AND AUTHORITIES 6 of 13 1 Plaintiff was entitled to all "current and stored" logs. (Khos Decl., | 13; see Exhibit G.) 2 Defendant's counsel then went back to his hypothetical scenarios, arguing that Plaintiffs counsel's 3 interpretation was too broad because a hypothetical employee could request records 80 years into 4 the fiiture. (Khos Decl., 13; see Exhibit G.) Plaintiffs counsel responded that he was simply 5 citing OSHA's own interpretation documents, and that Defendant's counsel's hypothetical 6 scenarios were contrived and missed the point, and further even offered to compromise that names 7 and contact information be redacted to alleviate privacy concems. (Khos Decl., f 13; see Exhibit 8 G.) Then Defendant's counsel argued that Plaintiff was only entitled to her OSHA logs, not the 9 logs of other employees, and that either her logs no longer existed or could not be located. (Khos 10 Decl., 113; see Exhibit G.) 11 In response to the June 22, 2022 meet and confer letter, Defendant's counsel responded 12 July 10, 2022, arguing that Special Interrogatory No. 30 did not define the time period of which 13 individuals were responsible for drafting the OSHA logs. (Khos Decl., ^ 14; see Exhibit I.) As to 14 Special Interrogatories Nos. 31-33, Defendant continued to bicker about the meanings the plain 15 terms "responsible for storing OSHA logs" and "describe where they are stored". (Khos Decl., ^ 16 14; see Exhibit I.) However, Defendant's counsel represented that responses would be provided 17 (Khos Decl., '^114; see Exhibit I.) On July 29, 2022, PlaintifPs counsel responded, (1) agreeing to 18 a scope of five years prior to Plaintiffs termination of employment to the present as to Special 19 Interrogatory No. 30, and (2) asking when the responded to Special Interrogatories Nos. 31-33 20 would be provided after having met and conferred in good faith. (Khos Decl., ^ 14; see Exhibit I.) 21 On August 1, 2022 Plaintiffs counsel sent a follow up email, stating the motions to compel 22 deadlines were fast approaching, and given discovery motions seeking sanctions against Defendant 23 already filed as to other discovery requests he hoped the parties could come to an agreement to 24 resolve the outstanding issues. (Khos Decl., 114; see Exhibit I.) But as of this writing no response 25 was provided. (Khos Decl., 114.) 26 With the motion to compel and discovery cutoff dates fast approaching, and having 27 exhausted her meet and confer obligations. Plaintiff brings'this Motion seeking sanctions. 28 /// MEMORANDUM OF POINTS AND AUTHORITIES 7 of 13 1 III. ARGUMENT 2 Under Code of Civil Procedure § 2030.300(a)(3), a party may move for an order 3 compelling further response to interrogatories if a "An objection in the response is without merit 4 or too general." Such a motion must show specific facts showing good cause justifying the 5 discovery sought by the demand and include a meet and confer declaration. (Id., subd. (b)(l)-(2).) 6 A. Defendant's Objections are Without Merit/Too General. 7 1. Responses to Special Interrogatories Nos. 30-33. 8 Vague & Ambiguous: this is a nuisance objection which is disfavored by the Courts 9 "Indeed, where the question is somewhat ambiguous, but the nature of the information sought is 10 apparent, the proper solution is to provide an appropriate response." (Deyo v. Kilbourne (1978) 84 11 Cal. App. 3d 771, 783.) "[R]esponsible for drafting" (No. 30) and "responsible for storing" (No. 12 31), are not vague and ambiguous clauses, but carry their plain English meanings about who is in 13 charge of drafting or storing the OSHA logs in question. Moreover, it is not even clear what 14 Defendant finds vague and ambiguous about Nos. 32 and 33. Defendant knows precisely what 15 Plaintiff is asking for, which necessarily includes information regarding who is responsible foi 16 drafting and storing the logs, as well as the identification of persons with knowledge of how the 17 logs are stored, drafted, and where they are stored. Defendant's steadfast refusal to hide behind 18 this objection, especially after Plaintiff met and conferred for the better part of three months, is 19 made in bad faith. 20 Calls for Speculation: This is an improper trial objection not applicable at the pretrial 21 discovery stage. Further, Defendant has already produced some ofthe Sacramento facility OSHA 22 logs at issue—^therefore it is absurd to claim that these interrogatories speculate when Defendant 23 has to have designated persons to be in charge of storing and drafting the logs, let alone calling for 24 speculation as to identifying information of persons with knowledge of how the logs are 25 stored/drafted, as well as where they are stored. 26 Overbroad as to Time/Scope: This objection is also without merit. There is nothing 27 overbroad about requesting identifying information of persons with knowledge surrounding 28 Defendant's Sacramento facility OSHA logs, as well as where they are located. Defendant by law MEMORANDUM OF POINTS AND AUTHORITIES 8 of 13 1 must maintain and provide to these logs per 29 CFR § 1904.35(b)(2). This necessarily implicates 2 the existence of persons responsible for maintaining these logs, and it is not overbroad to request 3 who was in charge in storing and drafting them, let alone overbroad to request who has knowledge 4 about such procedures or where the logs are stored. 5 Attorney-Client Privilege/Attorney Work Product: these interrogatories seek information 6 regarding persons with knowledge as to who is responsible for drafting/storing Defendant's OSHA 7 logs, as well as persons with knowledge as to where they are located and the procedures by which 8 the logs are maintained. This in no way implicates any attomey-client privileged information oi 9 work product as Defendant did not plausibly assign these logs to be drafted or stored by attomeys. 10 This is an objection made solely in bad faith. 11 2. Responses to Special Interrogatories Nos. 30-31. 12 Compound: In short, the interrogatories are not so compound as to confuse Defendant here 13 Defendant knows precisely what we are asking for, which necessarily includes information 14 regarding who is responsible for drafting and storing the logs, as well as the identification ol 15 persons with knowledge of how the logs are stored, drafted, and where they are stored. Defendant's 16 steadfast refusal to hide behind this objection, especially after Plaintiffhas met and conferred for 17 the better part of three months, is made in bad faith. 18 Relevance/Not Calculated to Lead to the Discoverv of Admissible Evidence: Defendant 19 should be aware that Code of Civil Procedure § 2017.010 states that "any party may obtain 20 discovery regarding any matter, not privileged, that is relevant to the subject matter involved 21 in the pending action or to the determination of any motion made in that action, if the matter 22 either is itself admissible in evidence or appears reasonably calculated to lead to the 23 discovery of admissible evidence. Discovery may relate to the claim or defense of the party 24 seeking discovery or of any other party to the action. Discovery may be obtained of the identity 25 and location of persons having knowledge of any discoverable matter, as well as of the 26 existence, description, nature, custody, condition, and location of any document 27 electronically stored information, tangible thing, or land or other property." (emphasis 28 added.) MEMORANDUM OF POINTS AND AUTHORITIES 9 of 13 1 Indeed, "For the guidance of the trial courts the proper mle is declared to be not only one 2 of liberal interpretation, but one that also recognizes that disclosure is a matter of right unless 3 statutory or public policy considerations clearly prohibit it." (Greyhound Corp. v. Superior 4 Court (1961) 56 Cal.2d 355, 378)(emphasis added.) The purposes of discovery are "(1) to give 5 greater assistance to the parties in ascertaining the tmth and in checking and preventing perjury; 6 (2) to provide an effective means of detecting and exposing false,fraudulentand sham claims and 7 defenses; (3) to make available, in a simple, convenient and inexpensive way, facts which 8 otherwise could not be proved except with great difficulty; (4) to educate the parties in advance 9 of trial as to the real value of their claims and defenses, thereby encouraging settlements; (5) to 10 expedite litigation: (6) to safeguard against surprise; (7) to prevent delay; (8) to simplify and 11 narrow the issues; and, (9) to expedite and facilitate both preparation and trial. Certainly, it 12 can be said, that the Legislature intended to take the 'game' element out of trial preparation 13 while yet retaining the adversary nature of the trial itself" (Greyhound Corp., 56 Cal. 2d at 14 376)(emphasis added.) 15 Plaintiffhas broad rights to discovery, which includes obtaining identifying information ol 16 persons responsible for drafting and storing Defendant's OSHA logs reflecting any injury or illness 17 at the Sacramento facility (Nos. 30 and 31). Indeed, given Plaintiffs UCL cause of action that 18 Defendant's Critical Safety Behavior's policy facially violates OSHA reasonable reporting 19 regulations, and given that her FEHA disability/wrongfiil termination causes of action surround 20 her pain and injury incurred at work, it is absurd to suggest persons with knowledge as to the 21 drafting and storing of the OSHA injury/illness logs in no way have relevant information to this 22 case. By objecting without responding. Defendant is only preventing convenient and inexpensive 23 discoveryfrommoving forward and only serves to further delay the case and grind the litigation 24 to a standstill when trial is fast approaching. Plaintiff will not tolerate Defendant's gamesmanship 25 Defendant must participate in good faith in the discovery process. 26 B. Plaintiff Adequately Met and Conferred Before Filing the Motion. 27 Plaintiffs counsel's meet and confer declaration is attached to this Motion, and Plaintiffs 28 efforts to resolve these issues informally was discussed in Section II supra. Plaintiff exhausted her MEMORANDUM OF POINTS AND AUTHORITIES 10 of 13 1 meet and confer obligations and had no choice but to file this Motion. (See also Section III.C 2 infra.) 3 C. Defendant is Subject to Monetary Sanctions for Misuse of the Discovery 4 Process by Providing Meritless Objections and Failing to Meet and Confer in 5 Good Faith. 6 Discovery is meant to be a self-executing process. (Clement v. Alegre (2009), 177 Cal 7 App. 4"^ 1277, 1281.) Misuse of the discovery process includes (1) making without substantial 8 justification an unmeritorious objection to discovery; and (2) failing to confer with an opposing 9 party in a reasonable and good faith attempt to resolve informally any dispute conceming 10 discovery. (Code Civ. Proc. § 2023.010(e), (i).) Such misuse is subject to monetary sanctions in 11 the form of reasonable attomey's fees. (Id. §§ 2023.020, 2023.030(a), 2030.300(d).) 12 Meeting and conferring requires there be a serious effort at negotiation and informal 13 resolution. The law requires that counsel attempt to talk the matter over, compare their views, 14 consult, and deliberate. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 15 Cal.App.4th 853, 879.) In discussing the sufficiency of the meet and confer efforts, the court in 16 Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1016 held: 17 "A determination of whether an attempt at informal resolution is adequate ... involves the 18 exercise of discretion. The level of effort at informal resolution which satisfies the 19 'reasonable and good faith attempt' standard depends upon the circumstances. In a larger, 20 more complex discovery context, a greater effort at informal resolution may be warranted 21 In a simpler, or more narrowly focused case, a more modest effort may suffice. The 22 history ofthe litigation, the nature of the interaction between counsel, the nature ol 23 the issues, the type and scope of discovery requested, the prospects for success and 24 other similar factors can be relevant. Judges have broad powers and responsibility to 25 determine what measure and procedures are appropriate in varying circumstances." 26 (emphasis added.) Indeed, the burden to meet and confer reasonably and in good-faith is not taken 27 lightly. (Manzetti v. Superior Court, (1993) 21 Cal.App.4th 373, 379-80 [Counsels are obligated 28 MEMORANDUM OF POINTS AND AUTHORITIES 11 of 13 1 to engage in this process in good faith and cannot reject reasonable proposals without suffering 2 the consequences].) 3 Defendant should be sanctioned for its gamesmanship and misuse of the discovery process 4 here. Even prior to discovery being served. Defendant and its counsel showed clear disregard for 5 PlaintifPsrightsto OSHA logs under 29 CFR § 1904.35(b)(2), continually bickering and quibbling 6 for months about the scope of the regulation despite Plaintiffs counsel providing OSHA's own 7 interpretations of its regulation. Thereafter, Defendant objected to the interrogatories, delayed in 8 meeting and conferring for weeks, and would not respond to Plaintiffs offers of compromise and 9 questions as to when responses would actually be provided as Defendant promised. Defendant and 10 its counsel seem to think it is appropriate to hold discovery hostage, rather than engage in the meet 11 and confer process in good faith. In so doing, Defendant has averted the self-executing purposes 12 of discovery in (1) failing to make information available which carmot otherwise be provided 13 except with great difficulty (i.e. forcing Plaintiff to file this Motion and incurring expense); and 14 (2) delaying the litigation and preparation for trial. Plaintiff only requires her straightforward 15 interrogatories be responded to under oath. But the history of the litigation and interactions 16 between counsel show that Defendant would rather waste time, obstmct as a matter of course, and 17 never meet and confer in good faith, leading to an inference of bad faith on Defendant's part, 18 Indeed, the fact that Plaintiffhas already filed two separate discovery motions seeking sanctions 19 in this matter (to be heard September 1, 2022), should clearly reveal Defendant's modus operandi 20 of obstmction.' 21 Given that Plaintiffs counsel has expended considerable hours in researching and drafting 22 the instant motion, as well as Plaintiff incurring costs for court filing, monetary sanctions should 23 be issued in the amount of $4,910.00. (Khos. Decl. Tit 15-16.) 24 /// 25 /// 26 /// 27 ' This would be Plaintiff's (1) Motion for Requests for Admissions, Set One (1) Be Deemed Admitted, and Monetary 28 Sanctions; and (2) Motion to Compel Discovery Responses as to Form Interrogatories—General, Set Two (2), anc Monetary Sanctions. MEMORANDUM OF POINTS AND AUTHORITIES 12of 13 1 IV. CONCLUSION 2 Given the foregoing, Plaintiff respectfully requests this Court GRANT the instant Motion 3 and ORDER Defendant (1) be compelled to provide fiirther response to Special Interrogatories, 4 Set 3, and (2) to pay separate monetary sanctions in an amount of $4,910.00 5 Dated: August 2, 2022 LIBERTY MAN LAW, P.C. FALAKASSA LAW, P.C. 6 7 8 By: Arash S. Khosrowshahi 9 Joshua S. Falakassa Attomeys for Plaintiff Sajida Zaman 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 13 of 13