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1 DOWNEY BRAND LLP /FiLED
WILLIAM R. WARNE (Bar No. 141280) E-HOOKSEO
2 ANNIE S. AMARAL (Bar N6; 238189)
BRADLEY G. CARROLL (Bar No. 300658) t l f OCT 11 PH 12^
3 621 Capitol Mall, 18tii Floor MHfcRiOR CQURT.OF CALiFOSHI
Sacramento, CA 95814-473'i '
4 Telephone: 916.444.1000
Facsimile: 916.444.2100;
5 bwame@downeybrand.com
aamaral@downeybrand,c6m
6 bcarroll(^downeybi"and.com
7 Attomeys for Plaintiff
CHARLES SOMERS, individually and as trustee for the
8 CHARLES SOMERS LIVING TRUST
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 CHARLES SOMERS, individually, and as CASE NO. 34-2018-00229212
OH tmstee for the CHARLES SOMERS
-I 13 LFVING TRUST, SEPARATE STATEMENT IN SUPPORT
Q OF PLAINTIFF CHARLES SOMERS'S
14 Plaintiff, MOTION TO COMPEL DEFENDANT DR.
< JAMES LONGORIA'S FURTHER
15 RESPONSE TO SPECIAL
INTERROGATORY NO. 44
> 16 DR. JAMES LONGORIA, an individual,
and DOES 1-10,
o 17 Date: November 5, 2019
Q Defendant. Tiirie: 9:00 a.m.
18 Dept.: 54
19 Complaint Filed: March 16, 2018
Trial Date: March 16, 2020
20
21 In accordance with Califomia Rule of Court, Rule 3.1345, Plaintiff CHARLES SOMERS
22 ("Somers") submits this Separate Statement in Support of his Motion to Compel Defendant
23 Dr. James Loiigoria's Further Resporises to Special Interrogatories, Set One.
24 INTERROGATORY NO. 1;
25 IDENTIFY all DOCUMENTS evidencing any compensation Craig, Rosenberg received
26 from the COMPANY.'
27
' The definitions for the capitalized teniis, as set out elsewhere in Sbmers's special interrogatories (see Declaration of
28 Bradley G. Carroll, ^ 3, Ex. A) are as follows:
1586834.1 1
SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44
1 RESPONSE TO INTERROGATORY NO. 44;
2 Objection — this request is vague, ambiguous, over broadj imduly burdensome and seeks
3 information irrelevant to the allegation of the complaint and as such is beyond the scope of
4 discovery. It further may call for the production of informatibn that violates the privacyrightsof
5 a third party.
6 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 44;
7 Responding Party incorporates ^ d reiterates his previous objections as if fully stated
8 herein. Responding Party continues to object that this infonnation is not only irrelevant, but is
9 not reasonably calculated to lead to the discovery of adihissible evidence and Mr. Rosenberg has
10 a right of privacy to not have information about his compensation made public for no reason
11 whatsoever.
12 REASONS FOR COMPELLING FURTHER RESPONSE;
CL,
hJ 13 A. Dr. Longoria-'s ObiectiOns to Special Interrogatory No. 44 Are Without Merit and
Q Are Too General. '
14
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Pi 15
PQ Dr. Longoria refuses to answer Special Interrogatory No. 44 on the basis that a responsive
16 answer would violate Cra;ig Rosenberg's privacy rights. However, Dr. Longoria asserts general,
o 17
Q IDENTIFY: "As used herein, the tehn "IDENTIFY" means: (a) For a natural person, state his or her full name and or
18 last known residence address, present or last known business affiliation, job title,;employment ad(iress, and business
and residence telephone numbers; (b) For an entity (meaning a,firm, partnership, corporation, proprietorship,
19 association, business; trusti;gbyernmental bodyior any other organization of entity), stateits full name and present or
last kno^yn address, the legal formlof siich eiitity, anSsthe identity of its chief:executive:ofiicer; (c).For a
20 DOCUMENT, state the title of the docunient, identity of the author, nature and substance of the document, and date
of the document."
21
DOCUMENTS: "As used hereiii, the term "DOCUMENT" means, withputliniitation, any written, typed, printed,
recorded, or graphic matter, however ijreserved, produced, or reproduced any type or descriptiori, regardless of
22 origin or location, including,-withqut limitation, written COMMUNICATIONS; any binder, cover note, Icertificate,
letter, correspondence, record, tatJle; chart, analysis, graph, schedule; report,:test, study,memorandum, note, list,
23 diary, log, calendar; telex, message, includiiig, but:riot limited to,;ihterofiFice and intra-office COMMUMCATION,
questionnaire, bill, purchase order,ishii3ping order, confract, memorandum'of cpntract,ragreemeriti ;assi^
24 license, certificate, perihit, ledger, ledger ehtry,.book of accpMt;,prdef,;invoic^ receipt, statetnent, financial data,
acknowledgment, computer ordata processing card, computer or data processing disk, computer-generated matter,
25 photograph, photographic negative,'phonograph recording; transcript pr: log of any such recordm^^^ projection,
videotape, film, microfiche and ajl other data compilations from which infonnatibn can be obtained; or tnuislated,
26 reports and/or summaries pf investigations, drafts and revisioiis of drafts of any DOCUMENTS, ahd original
preliminary notes or sketches."
27
COMPANY: "As used herein, the term "COMPANY" means the corporation originally called Intrepid Medical, and
28 subsequently called LC Therapeutics, Inc."
1586834.1 2
SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP: INTERROGATORY NO. 44
1 boilerplate objections as well. As demonstrated below, all of these objections are meritless.
2 1. Special Interrogatory No. 44 Does Not Seek Private Information of Craig
Rosenberg.
3
4 In response to Special Interrogatory No. 44, Dr. Longoria objects that the request "may
5 call for the production of information that violates the privacyrightsof third parties" and states
6 that "Mr. Rosenberg has a right of privacy to not have information about his compensation made
7 public for no reason whatsoever." (Declaration of Bradley C. Carroll ("Carroll Decl."), ^18, Ex. C
8 at 20:11-19.) But Special Interrogatory No. 44 merely calls for the identification of documents
9 "evidencing any compensation Craig Rosenberg received from the company." Even if Dr.
10 Longoria's bare assertion of a third-party privacy interest was sufficient to invoke third-party
11 privacy protections (as discussed below, it is not), the objection makes no sense here, as Special
12 Interrogatory No. 44 does not seek any private information. The interrogatory does not ask Dr.
13 Longoria to identify the amount of Mr. Rosenberg's compensation, how he was compensated,
D whether he was compensated in ways in addition to his salary, or any other form of confidential
14
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03 15 private information. Rather, the request simply asks Dr. Longoria to identify those documents
16 which would evidence Mr. Rosenberg's compensation from LC Therapeutics.^ This is simply not
o 17 a sufficient basis to trigger Califomia's constitutional right of privacy. (See Valley Bank of
Q
18 Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656 [constitutional right of privacy "extends to one's
19 confidential financial affairs. . . ."].)
20 Neither the explicit text of the interrogatory nor the defined terms contained therein are
21 broad enough to wade into Mr. Rosenberg's confidential financial data. Somers defines
22 "IDENTIFY" as "For a DOCUMENT, state the title ofthe document, identity ofthe author,
23 nature and substance of the document, and date of the document." (Carroll Decl., ^ 3, Ex. A
24
^ Indeed, the discovery methodology chosen here by Somers is the method least invasive of Mr. Rosenberg's privacy.
As discussed above, Somers has certain concems regarding Mr. Rosenberg's compensation that are relevant to
25
Somers's breach offiduciaryduty, breach of contract, and fraud claims. Once Dr. Longoria identifies the documents
that evidence/are related to Mr. Rosenberg's compensation, Somers can elect how to proceed with Mr. Rosenberg's
26
privacy interests in mind. For instance, Somers may elect to subpoena Mr. Rosenberg directly so that any privacy
concems regarding actual confidential financial information can be worked out directly with the witness. But
27
without some sense as to what the relevant documents are and who might have those documents, Somers cannot even
begin to undertake a discovery process that takes full account of Mr. Rosenberg's privacy rights.
28
SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44
1 at 2:9-11.) During the meet-and-confer process. Dr. Longoria was concerned that the phrase
2 "nature and substance of the document" would require Dr. Longoria to reveal the "substance" of a
3 document such that private information would be revealed. (Id., ^ 12.) Somers's counsel
4 explained however that Somers was not expecting the revelation of private information. (Id.,
5 If 13.) Instead, Somers was expecting a general description of the document at hand. For
6 instance, if a document evidencing Craig Rosenberg's compensation was an employment
7 contract, Somers would expect an answer along the lines of "Craig Rosenberg Employment
8 Agreement, authored by Dr. Longoria, employment contract outlining terms of Craig Rosenberg's
9 employment with LC Therapeutics, [DATE]." Such an answer would not reveal any of Mr.
10 Rosenberg's private financial information. Nonetheless, Dr. Longoria's counsel maintained that
11 Dr. Longoria would stand on his objections and would not answer Special Interrogatory No. 44.
12 Even if Somers's interrogatory did somehow implicate Mr. Rosenberg's private financial
CL,
13 information (it does not), Dr. Longoria's objection still fails. As with the assertion of arightto
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Z 14 privacy on a party's own behalf, establishing that a third party has a protectable privacy interest
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oa 15 requires "[t]he party asserting [that right to] establish a legally protected privacy interest, an
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z 16 objectively reasonable expectation of privacy in the given circumstances, and a threatened
o 17 intrusion that is serious." (Williams v. Super Ct. (2017) 3 Cal.5th 531, 552.) The burden is "on
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18 the party asserting a privacy interest to establish its extent and the seriousness of the prospective
19 invasion . . . . " (Id. at p. 557.) Dr. Longoria asserts only that Special Interrogatory No. 44 "may"
20 seek information implicating the privacy rights of third parties, not that the request actually does
21 seek such information. Moreover, Dr. Longoria's response fails to identify what legally protected
22 privacy interest is implicated, that any third party whose interests are implicated would
23 reasonably expect that the information sought would be kept private from Somers, or that the
24 threatened intmsion is serious. In this action, Somers alleges that Dr. Longoria breached his
25 fiduciary duties to him, defrauded him, and breached an oral contract with him. Somers believes
26 that Dr. Longoria may have concealed various financial arrangements with Mr. Rosenberg that
27 involvedfinancingprovided by Somers. In light of these allegations (as outlined above in
28 III
SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44
1 Section II.D.), Somers has the right to obtain all of the information sought by this interrogatory,
2 and Dr. Longoria has entirely failed to meet his burden to show otherwise.
3 Based on the foregoing, Dr. Longoria's third-party privacy objections are without merit,
4 and the Court should grant Somers's motion to compel a further response to Special Interrogatory
5 No. 44.
6 2. Special Interrogatory No. 44 Is Not Vague or Ambiguous.
7 Dr. Longoria also interposes a variety of boilerplate objections to Special Interrogatory
8 No. 44. As an initial matter, non-specific, boilerplate objections are not acceptable under
9 Califomia law. (See Korea Data Systems Co. v. Super Ct. (1997) 51 Cal.App.4th 1513,1516.)
10 On this basis alone, all of Dr. Longoria's general boilerplate objections should be ovemiled. In
11 any event, the boilerplate objections lack merit. Dr. Longoria first objects that Special
12 Interrogatory No. 44 is vague and ambiguous. This objection, however, does not state how this
p.
13 request is vague and ambiguous, thereby preventing Somers from curing any supposed ambiguity.
Q
Z 14 Regardless, even assuming the requests are "somewhat ambiguous," Califomia case law
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CO 15 nonetheless requires Dr. Longoria to provide a response because the nature of the information
>-
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16 sought is apparent. (Deyo v. Ari/feowrwe (1978) 84 Cal.App.3d 771, 783.) Somers's request is
z
O 17 straightforward, and Dr. Longoria undoubtedly understands its intended meaning given his
Q
18 involvement in the facts underlying this case, his review of Somers's complaint (which the
19 request is based upon), and the extensive meet-and-confer efforts between his counsel and
20 counsel for Somers.
21 3. Special Interrogatory No. 44 Is Not Overly Broad or Unduly Burdensome.
22 Dr. Longoria's objections that Special Interrogatory No. 44 is overly broad and unduly
23 burdensome similarly lack merit. To validly object on these bases, Dr. Longoria must object that
24 Somers intended to create an unreasonable burden or that the burden of this discovery "clearly
25 outweighs the likelihood that the information sought will lead to the discovery of admissible
26 evidence." (Code Civ. Proc, § 2017.020, subd. (a); Williams, supra, 3 Cal.5th at p. 549.) Dr.
27 Longoria's objections fail to even attempt to support any contention that Somers's requests are
28 overly broad and unduly burdensome, despite Dr. Longoria's obligation to do so. "An 'objection
1586834.1 5
SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44
1 based upon burden must beisustairied by evidence showing the quantum of work required.'"
2 (Williams, supra, 3 Cal.5th at:p..549.) In any event, Dn Longoria.cannot meet this burden for his
3 objections to Special Interrogatory No. 44, as the interrogatory is narrowly tailored and highly
4 relevant to Somers's daims .against Dr. Longoria.
5 4. Special Iiiterrogatdry No. 44 Does Not iSieek Irrielevant Information.
6 Dr. Longoria's objection that Special Interrogatory No. 44 seeks information that is "irrelevant" is
7 without merit, given that it is directly tied to,the allegations in Somers's complaint, as discussed
8 above, not to mention the fact that the scope of discovery is broad.. (See Code Civ. Proc, §
9 2017.010.) "For discovery purposes, infonnation is relevant if it niight reasonably assist a party
10 in evaluating the case; preparing for trial, or facilitating settlement.... These rules are applied
11 liberally in favor of discovery . . . . " (Lopez v. Watchtower Bible & Tract Society ofNew York,
12 Inc. (2016) 246 Cal.App:4th;566, 590-9\\ Gonzales y. Super Ct. (1995) 33 Cal.App.4th 1539,
p^
1-1 13 1546.) The Code further provides that "[djiscoveryrnay relate, to the claim or defense of the
hJ
Q 14
Z party seeking discovery or of any other party to the action." (Code Civ. Proc, § 2017.010.) Dr.
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QQ 15 Longoria provides a.bsolufely no basis for his objection to the scope or relevance of Special
16 Interrogatory No. 44, arid no such basis exists. As discussed above, the information sought is
Z
o 17 well within the scope of perinissible discovery, as it is tied to three causes of action in Somers's
Q
18 complaint and is inteshded to assist,Somers in hiseyaluation of these claims and preparation for
19 trial.
20
21 DATED: October 11, 2019 DOWNEY BRAND LLP
22
23
WILLIAM R. WARNE ,
24 ANNIE S. AMARAL ,
BRADLEY C. CARROLL
25 Attomeys for Plaintiff
CHARLES SOMERS, individually and-as tmstee
26 for the CHARLES SOMERS LIVING TRUST
27
28
SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44
1 PROOF OF SERVICE
2 I am a resident of the State of Califomia, over the age of eighteen years, and not a party tp
the within action. My business! address is Downey Brand LLP, 621 Gapitbl Mall, 18th Floor,
3 Sacramento, Califoriiia, 95814-47i31. On October 11, 2019,1 served the within document(s):
4 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF
CHARLES SOMERS'S MOTION TO COMPEL DEFENDANT DR.
5 JAMES LONGORIA'S FURTHER RESPONSE TO SPECIAL
INTERROGATORY NO. 44
6
BY FAX; byfransmittirigyia facsiniile the'document(s) listed above to the fax
7 • number(s) set forth below on this date before 5:00 p.in.
8 BY E-MAIL; by transmitti elecfrojiic service address
• (tchacpn(gdowneybrand.com) the document(s) listed above to the person(s) at the
9 e-mail address(es) set forth below.
10 BY M A I L ; by placing the;dociiment(s) listed above in a sealed envelope with
• postage thereon, fully prepaid, in the United Stiates mail at Sacramento, Califomia
11 addressed as set forth below.
12 BY OVERNIGHT iyiAIL; by causing document(s) to be picked up by an
OH
• ovemight deHvery service company for delivery to the addressee(s) on the next
13 business day.
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Z 14 BY PERSOl^AL DELiyERY; by causing personal deliy^^ On Demand
< Legal of the dpcument(s) listed above fo the person(s) at the address(es) set forth
Pi 15
m below;
w 16
z Attorneys for Defendant. DR. JAMES LONGORIA
17 Mark E. Ellis ^
o Ellis Law Group LLP
Q
18 1425 River Park Dn, Ste;, 400
Sacramento, CA 95815-4524
19 Ph: (916) 283-882(j/;Fax: (916) 283-8821
mellis(^ellislawgip,cpni
20
21 I am, readily familiar'with the firinls practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service onlthatsame
22 day with postage thereon fully prepaid in the ordinary course; of business. I am^avvare that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
23 meter date is more than one day after date of deposit for maiUrig in affidavit.
24 I declare under penalty of perjury under the laws ofthe State of Califoriiia that! the above
is trae and correct.
25
Executed on October 11, 2019, at Sacramento, California.
26
27
28 Linda Gbrtez
1536099.1
PROOF OF SERVICE
1 PROOF OF SERVICE
2 I am a resident of the State of Califomia, over the age of eighteen years, and not a party to
the within action. My business address is Downey Brand LLP, 621 Capitol Mall, 18th Floor,
3 Sacramento, Califomia, 95814-4731. On October 11, 2019,1 served the within document(s):
4 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF CHARLES SOMERS'S
MOTION TO COMPEL DEFENDANT DR. JAMES LONGORIA'S FURTHER RESPONSE
5 TO SPECL\L INTERROGATORY NO. 44
6 BY FAX; by transmitting via facsimile the document(s) listed above to the fax
• nimiber(s) set forth below on this date before 5:00 p.m.
7
BY E-MAIL; by transmitting via my elecfronic service address
8 • (lcortez@downeybrand.com) the document(s) listed above to the person(s) at the
e-mail address(es) set forth below.
9
BY MAIL; by placing the document(s) listed above in a sealed envelope with
10 • postage thereon fully prepaid, in the United States mail at Sacramento, Califomia
addressed as set forth below.
11
BY OVERNIGHT MAIL; by causing document(s) to be picked up by an
12 • ovemight delivery service company for delivery to the addressee(s) on the next
business day.
13
Q BY PERSONAL DELIVERY: by causing personal delivery by On Demand
Z 14 Legal of the document(s) listed above to the person(s) at the address(es) set forth
< below.
oi
OQ 15
Attorneys forDefendant. DR. JAMES LONGORIA
z 16 Mark E. ElHs
o Ellis Law Group LLP
17
Q 1425 River Park Dr., Ste 400
18 Sacramento, CA 95815-4524
Ph:(916)283-8820
19 Fax:(916)283-8821
mellis@ellislawgrp.com
20
21 I am readily familiar with the firm's practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
22 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
23 meter date is more than one day after date of deposit for mailing in affidavit.
24 1 declare under penalty of perjury under the laws of the State of Califomia that the above
is trae and correct.
25
Executed on October 11, 2019, at Sacramento, Califomia.
26
27
28 Linda Cortez
1536099.1
PROOF OF SERVICE
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1 DOWNEY BRAND LLP /FiLED WILLIAM R. WARNE (Bar No. 141280) E-HOOKSEO 2 ANNIE S. AMARAL (Bar N6; 238189) BRADLEY G. CARROLL (Bar No. 300658) t l f OCT 11 PH 12^ 3 621 Capitol Mall, 18tii Floor MHfcRiOR CQURT.OF CALiFOSHI Sacramento, CA 95814-473'i ' 4 Telephone: 916.444.1000 Facsimile: 916.444.2100; 5 bwame@downeybrand.com aamaral@downeybrand,c6m 6 bcarroll(^downeybi"and.com 7 Attomeys for Plaintiff CHARLES SOMERS, individually and as trustee for the 8 CHARLES SOMERS LIVING TRUST 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 CHARLES SOMERS, individually, and as CASE NO. 34-2018-00229212 OH tmstee for the CHARLES SOMERS -I 13 LFVING TRUST, SEPARATE STATEMENT IN SUPPORT Q OF PLAINTIFF CHARLES SOMERS'S 14 Plaintiff, MOTION TO COMPEL DEFENDANT DR. < JAMES LONGORIA'S FURTHER 15 RESPONSE TO SPECIAL INTERROGATORY NO. 44 > 16 DR. JAMES LONGORIA, an individual, and DOES 1-10, o 17 Date: November 5, 2019 Q Defendant. Tiirie: 9:00 a.m. 18 Dept.: 54 19 Complaint Filed: March 16, 2018 Trial Date: March 16, 2020 20 21 In accordance with Califomia Rule of Court, Rule 3.1345, Plaintiff CHARLES SOMERS 22 ("Somers") submits this Separate Statement in Support of his Motion to Compel Defendant 23 Dr. James Loiigoria's Further Resporises to Special Interrogatories, Set One. 24 INTERROGATORY NO. 1; 25 IDENTIFY all DOCUMENTS evidencing any compensation Craig, Rosenberg received 26 from the COMPANY.' 27 ' The definitions for the capitalized teniis, as set out elsewhere in Sbmers's special interrogatories (see Declaration of 28 Bradley G. Carroll, ^ 3, Ex. A) are as follows: 1586834.1 1 SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44 1 RESPONSE TO INTERROGATORY NO. 44; 2 Objection — this request is vague, ambiguous, over broadj imduly burdensome and seeks 3 information irrelevant to the allegation of the complaint and as such is beyond the scope of 4 discovery. It further may call for the production of informatibn that violates the privacyrightsof 5 a third party. 6 SUPPLEMENTAL RESPONSE TO SPECIAL INTERROGATORY NO. 44; 7 Responding Party incorporates ^ d reiterates his previous objections as if fully stated 8 herein. Responding Party continues to object that this infonnation is not only irrelevant, but is 9 not reasonably calculated to lead to the discovery of adihissible evidence and Mr. Rosenberg has 10 a right of privacy to not have information about his compensation made public for no reason 11 whatsoever. 12 REASONS FOR COMPELLING FURTHER RESPONSE; CL, hJ 13 A. Dr. Longoria-'s ObiectiOns to Special Interrogatory No. 44 Are Without Merit and Q Are Too General. ' 14 < Pi 15 PQ Dr. Longoria refuses to answer Special Interrogatory No. 44 on the basis that a responsive 16 answer would violate Cra;ig Rosenberg's privacy rights. However, Dr. Longoria asserts general, o 17 Q IDENTIFY: "As used herein, the tehn "IDENTIFY" means: (a) For a natural person, state his or her full name and or 18 last known residence address, present or last known business affiliation, job title,;employment ad(iress, and business and residence telephone numbers; (b) For an entity (meaning a,firm, partnership, corporation, proprietorship, 19 association, business; trusti;gbyernmental bodyior any other organization of entity), stateits full name and present or last kno^yn address, the legal formlof siich eiitity, anSsthe identity of its chief:executive:ofiicer; (c).For a 20 DOCUMENT, state the title of the docunient, identity of the author, nature and substance of the document, and date of the document." 21 DOCUMENTS: "As used hereiii, the term "DOCUMENT" means, withputliniitation, any written, typed, printed, recorded, or graphic matter, however ijreserved, produced, or reproduced any type or descriptiori, regardless of 22 origin or location, including,-withqut limitation, written COMMUNICATIONS; any binder, cover note, Icertificate, letter, correspondence, record, tatJle; chart, analysis, graph, schedule; report,:test, study,memorandum, note, list, 23 diary, log, calendar; telex, message, includiiig, but:riot limited to,;ihterofiFice and intra-office COMMUMCATION, questionnaire, bill, purchase order,ishii3ping order, confract, memorandum'of cpntract,ragreemeriti ;assi^ 24 license, certificate, perihit, ledger, ledger ehtry,.book of accpMt;,prdef,;invoic^ receipt, statetnent, financial data, acknowledgment, computer ordata processing card, computer or data processing disk, computer-generated matter, 25 photograph, photographic negative,'phonograph recording; transcript pr: log of any such recordm^^^ projection, videotape, film, microfiche and ajl other data compilations from which infonnatibn can be obtained; or tnuislated, 26 reports and/or summaries pf investigations, drafts and revisioiis of drafts of any DOCUMENTS, ahd original preliminary notes or sketches." 27 COMPANY: "As used herein, the term "COMPANY" means the corporation originally called Intrepid Medical, and 28 subsequently called LC Therapeutics, Inc." 1586834.1 2 SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP: INTERROGATORY NO. 44 1 boilerplate objections as well. As demonstrated below, all of these objections are meritless. 2 1. Special Interrogatory No. 44 Does Not Seek Private Information of Craig Rosenberg. 3 4 In response to Special Interrogatory No. 44, Dr. Longoria objects that the request "may 5 call for the production of information that violates the privacyrightsof third parties" and states 6 that "Mr. Rosenberg has a right of privacy to not have information about his compensation made 7 public for no reason whatsoever." (Declaration of Bradley C. Carroll ("Carroll Decl."), ^18, Ex. C 8 at 20:11-19.) But Special Interrogatory No. 44 merely calls for the identification of documents 9 "evidencing any compensation Craig Rosenberg received from the company." Even if Dr. 10 Longoria's bare assertion of a third-party privacy interest was sufficient to invoke third-party 11 privacy protections (as discussed below, it is not), the objection makes no sense here, as Special 12 Interrogatory No. 44 does not seek any private information. The interrogatory does not ask Dr. 13 Longoria to identify the amount of Mr. Rosenberg's compensation, how he was compensated, D whether he was compensated in ways in addition to his salary, or any other form of confidential 14 < Pi 03 15 private information. Rather, the request simply asks Dr. Longoria to identify those documents 16 which would evidence Mr. Rosenberg's compensation from LC Therapeutics.^ This is simply not o 17 a sufficient basis to trigger Califomia's constitutional right of privacy. (See Valley Bank of Q 18 Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656 [constitutional right of privacy "extends to one's 19 confidential financial affairs. . . ."].) 20 Neither the explicit text of the interrogatory nor the defined terms contained therein are 21 broad enough to wade into Mr. Rosenberg's confidential financial data. Somers defines 22 "IDENTIFY" as "For a DOCUMENT, state the title ofthe document, identity ofthe author, 23 nature and substance of the document, and date of the document." (Carroll Decl., ^ 3, Ex. A 24 ^ Indeed, the discovery methodology chosen here by Somers is the method least invasive of Mr. Rosenberg's privacy. As discussed above, Somers has certain concems regarding Mr. Rosenberg's compensation that are relevant to 25 Somers's breach offiduciaryduty, breach of contract, and fraud claims. Once Dr. Longoria identifies the documents that evidence/are related to Mr. Rosenberg's compensation, Somers can elect how to proceed with Mr. Rosenberg's 26 privacy interests in mind. For instance, Somers may elect to subpoena Mr. Rosenberg directly so that any privacy concems regarding actual confidential financial information can be worked out directly with the witness. But 27 without some sense as to what the relevant documents are and who might have those documents, Somers cannot even begin to undertake a discovery process that takes full account of Mr. Rosenberg's privacy rights. 28 SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44 1 at 2:9-11.) During the meet-and-confer process. Dr. Longoria was concerned that the phrase 2 "nature and substance of the document" would require Dr. Longoria to reveal the "substance" of a 3 document such that private information would be revealed. (Id., ^ 12.) Somers's counsel 4 explained however that Somers was not expecting the revelation of private information. (Id., 5 If 13.) Instead, Somers was expecting a general description of the document at hand. For 6 instance, if a document evidencing Craig Rosenberg's compensation was an employment 7 contract, Somers would expect an answer along the lines of "Craig Rosenberg Employment 8 Agreement, authored by Dr. Longoria, employment contract outlining terms of Craig Rosenberg's 9 employment with LC Therapeutics, [DATE]." Such an answer would not reveal any of Mr. 10 Rosenberg's private financial information. Nonetheless, Dr. Longoria's counsel maintained that 11 Dr. Longoria would stand on his objections and would not answer Special Interrogatory No. 44. 12 Even if Somers's interrogatory did somehow implicate Mr. Rosenberg's private financial CL, 13 information (it does not), Dr. Longoria's objection still fails. As with the assertion of arightto Q Z 14 privacy on a party's own behalf, establishing that a third party has a protectable privacy interest < oa 15 requires "[t]he party asserting [that right to] establish a legally protected privacy interest, an w z 16 objectively reasonable expectation of privacy in the given circumstances, and a threatened o 17 intrusion that is serious." (Williams v. Super Ct. (2017) 3 Cal.5th 531, 552.) The burden is "on o 18 the party asserting a privacy interest to establish its extent and the seriousness of the prospective 19 invasion . . . . " (Id. at p. 557.) Dr. Longoria asserts only that Special Interrogatory No. 44 "may" 20 seek information implicating the privacy rights of third parties, not that the request actually does 21 seek such information. Moreover, Dr. Longoria's response fails to identify what legally protected 22 privacy interest is implicated, that any third party whose interests are implicated would 23 reasonably expect that the information sought would be kept private from Somers, or that the 24 threatened intmsion is serious. In this action, Somers alleges that Dr. Longoria breached his 25 fiduciary duties to him, defrauded him, and breached an oral contract with him. Somers believes 26 that Dr. Longoria may have concealed various financial arrangements with Mr. Rosenberg that 27 involvedfinancingprovided by Somers. In light of these allegations (as outlined above in 28 III SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44 1 Section II.D.), Somers has the right to obtain all of the information sought by this interrogatory, 2 and Dr. Longoria has entirely failed to meet his burden to show otherwise. 3 Based on the foregoing, Dr. Longoria's third-party privacy objections are without merit, 4 and the Court should grant Somers's motion to compel a further response to Special Interrogatory 5 No. 44. 6 2. Special Interrogatory No. 44 Is Not Vague or Ambiguous. 7 Dr. Longoria also interposes a variety of boilerplate objections to Special Interrogatory 8 No. 44. As an initial matter, non-specific, boilerplate objections are not acceptable under 9 Califomia law. (See Korea Data Systems Co. v. Super Ct. (1997) 51 Cal.App.4th 1513,1516.) 10 On this basis alone, all of Dr. Longoria's general boilerplate objections should be ovemiled. In 11 any event, the boilerplate objections lack merit. Dr. Longoria first objects that Special 12 Interrogatory No. 44 is vague and ambiguous. This objection, however, does not state how this p. 13 request is vague and ambiguous, thereby preventing Somers from curing any supposed ambiguity. Q Z 14 Regardless, even assuming the requests are "somewhat ambiguous," Califomia case law < Pi CO 15 nonetheless requires Dr. Longoria to provide a response because the nature of the information >- u 16 sought is apparent. (Deyo v. Ari/feowrwe (1978) 84 Cal.App.3d 771, 783.) Somers's request is z O 17 straightforward, and Dr. Longoria undoubtedly understands its intended meaning given his Q 18 involvement in the facts underlying this case, his review of Somers's complaint (which the 19 request is based upon), and the extensive meet-and-confer efforts between his counsel and 20 counsel for Somers. 21 3. Special Interrogatory No. 44 Is Not Overly Broad or Unduly Burdensome. 22 Dr. Longoria's objections that Special Interrogatory No. 44 is overly broad and unduly 23 burdensome similarly lack merit. To validly object on these bases, Dr. Longoria must object that 24 Somers intended to create an unreasonable burden or that the burden of this discovery "clearly 25 outweighs the likelihood that the information sought will lead to the discovery of admissible 26 evidence." (Code Civ. Proc, § 2017.020, subd. (a); Williams, supra, 3 Cal.5th at p. 549.) Dr. 27 Longoria's objections fail to even attempt to support any contention that Somers's requests are 28 overly broad and unduly burdensome, despite Dr. Longoria's obligation to do so. "An 'objection 1586834.1 5 SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44 1 based upon burden must beisustairied by evidence showing the quantum of work required.'" 2 (Williams, supra, 3 Cal.5th at:p..549.) In any event, Dn Longoria.cannot meet this burden for his 3 objections to Special Interrogatory No. 44, as the interrogatory is narrowly tailored and highly 4 relevant to Somers's daims .against Dr. Longoria. 5 4. Special Iiiterrogatdry No. 44 Does Not iSieek Irrielevant Information. 6 Dr. Longoria's objection that Special Interrogatory No. 44 seeks information that is "irrelevant" is 7 without merit, given that it is directly tied to,the allegations in Somers's complaint, as discussed 8 above, not to mention the fact that the scope of discovery is broad.. (See Code Civ. Proc, § 9 2017.010.) "For discovery purposes, infonnation is relevant if it niight reasonably assist a party 10 in evaluating the case; preparing for trial, or facilitating settlement.... These rules are applied 11 liberally in favor of discovery . . . . " (Lopez v. Watchtower Bible & Tract Society ofNew York, 12 Inc. (2016) 246 Cal.App:4th;566, 590-9\\ Gonzales y. Super Ct. (1995) 33 Cal.App.4th 1539, p^ 1-1 13 1546.) The Code further provides that "[djiscoveryrnay relate, to the claim or defense of the hJ Q 14 Z party seeking discovery or of any other party to the action." (Code Civ. Proc, § 2017.010.) Dr. < Pi QQ 15 Longoria provides a.bsolufely no basis for his objection to the scope or relevance of Special 16 Interrogatory No. 44, arid no such basis exists. As discussed above, the information sought is Z o 17 well within the scope of perinissible discovery, as it is tied to three causes of action in Somers's Q 18 complaint and is inteshded to assist,Somers in hiseyaluation of these claims and preparation for 19 trial. 20 21 DATED: October 11, 2019 DOWNEY BRAND LLP 22 23 WILLIAM R. WARNE , 24 ANNIE S. AMARAL , BRADLEY C. CARROLL 25 Attomeys for Plaintiff CHARLES SOMERS, individually and-as tmstee 26 for the CHARLES SOMERS LIVING TRUST 27 28 SEPARATE STATEMENT ISO MTC FURTHER RESPONSES TO SP. INTERROGATORY NO. 44 1 PROOF OF SERVICE 2 I am a resident of the State of Califomia, over the age of eighteen years, and not a party tp the within action. My business! address is Downey Brand LLP, 621 Gapitbl Mall, 18th Floor, 3 Sacramento, Califoriiia, 95814-47i31. On October 11, 2019,1 served the within document(s): 4 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF CHARLES SOMERS'S MOTION TO COMPEL DEFENDANT DR. 5 JAMES LONGORIA'S FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 44 6 BY FAX; byfransmittirigyia facsiniile the'document(s) listed above to the fax 7 • number(s) set forth below on this date before 5:00 p.in. 8 BY E-MAIL; by transmitti elecfrojiic service address • (tchacpn(gdowneybrand.com) the document(s) listed above to the person(s) at the 9 e-mail address(es) set forth below. 10 BY M A I L ; by placing the;dociiment(s) listed above in a sealed envelope with • postage thereon, fully prepaid, in the United Stiates mail at Sacramento, Califomia 11 addressed as set forth below. 12 BY OVERNIGHT iyiAIL; by causing document(s) to be picked up by an OH • ovemight deHvery service company for delivery to the addressee(s) on the next 13 business day. Q Z 14 BY PERSOl^AL DELiyERY; by causing personal deliy^^ On Demand < Legal of the dpcument(s) listed above fo the person(s) at the address(es) set forth Pi 15 m below; w 16 z Attorneys for Defendant. DR. JAMES LONGORIA 17 Mark E. Ellis ^ o Ellis Law Group LLP Q 18 1425 River Park Dn, Ste;, 400 Sacramento, CA 95815-4524 19 Ph: (916) 283-882(j/;Fax: (916) 283-8821 mellis(^ellislawgip,cpni 20 21 I am, readily familiar'with the firinls practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service onlthatsame 22 day with postage thereon fully prepaid in the ordinary course; of business. I am^avvare that on motion of the party served, service is presumed invalid if postal cancellation date or postage 23 meter date is more than one day after date of deposit for maiUrig in affidavit. 24 I declare under penalty of perjury under the laws ofthe State of Califoriiia that! the above is trae and correct. 25 Executed on October 11, 2019, at Sacramento, California. 26 27 28 Linda Gbrtez 1536099.1 PROOF OF SERVICE 1 PROOF OF SERVICE 2 I am a resident of the State of Califomia, over the age of eighteen years, and not a party to the within action. My business address is Downey Brand LLP, 621 Capitol Mall, 18th Floor, 3 Sacramento, Califomia, 95814-4731. On October 11, 2019,1 served the within document(s): 4 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF CHARLES SOMERS'S MOTION TO COMPEL DEFENDANT DR. JAMES LONGORIA'S FURTHER RESPONSE 5 TO SPECL\L INTERROGATORY NO. 44 6 BY FAX; by transmitting via facsimile the document(s) listed above to the fax • nimiber(s) set forth below on this date before 5:00 p.m. 7 BY E-MAIL; by transmitting via my elecfronic service address 8 • (lcortez@downeybrand.com) the document(s) listed above to the person(s) at the e-mail address(es) set forth below. 9 BY MAIL; by placing the document(s) listed above in a sealed envelope with 10 • postage thereon fully prepaid, in the United States mail at Sacramento, Califomia addressed as set forth below. 11 BY OVERNIGHT MAIL; by causing document(s) to be picked up by an 12 • ovemight delivery service company for delivery to the addressee(s) on the next business day. 13 Q BY PERSONAL DELIVERY: by causing personal delivery by On Demand Z 14 Legal of the document(s) listed above to the person(s) at the address(es) set forth < below. oi OQ 15 Attorneys forDefendant. DR. JAMES LONGORIA z 16 Mark E. ElHs o Ellis Law Group LLP 17 Q 1425 River Park Dr., Ste 400 18 Sacramento, CA 95815-4524 Ph:(916)283-8820 19 Fax:(916)283-8821 mellis@ellislawgrp.com 20 21 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 22 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage 23 meter date is more than one day after date of deposit for mailing in affidavit. 24 1 declare under penalty of perjury under the laws of the State of Califomia that the above is trae and correct. 25 Executed on October 11, 2019, at Sacramento, Califomia. 26 27 28 Linda Cortez 1536099.1 PROOF OF SERVICE