Preview
1 DOWNEY BRAND LLP FiLED
WILLL\M R. WARNE (Bar No. 141280) 'EHOORSED
2 ANNIE S. AMARAL (Bar No. 238189)
621 Capitol Mall, 18th Floor 2018OCT 12 ?nmuz
3 Sacramento, CA 95814-4731
Telephone: 916.444.1000 CeyhTY OrSA&RAHEh'TO
4 Facsimile: 916.444.2100
bwame@downeybfand.coin
5 aamaral@downeybfand.com
6 Attomeys for Plaintiff;
CHARLES SOMERSi individually and as tmstee fof the
7 CHARLES SOMERS LIVING TRUST '
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
11 CHARLES. SOMERS, individually and as CASE NO. 34-2018-00229212
tmstee for the CHARLES SOMERS
12 LIVING TRUST, -• SEPARATE STATEMENT IN SUPPORT
.CL, OF PilAmtlFF CHARLES SOMERS'S
13 Plaintiff, MOTION t o COMPEL DEFENDANT DR.
Q JAMES LONGORIA^S FURTHER
Z 14 V. DISCOVERY RESPONSES t o REQUEST
< FOR PkODUiGTION OF DOCUMENTS,
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15 DR. JAMES LONGORIA, an individual, S E t ONE, A N D ; R E Q U E S T FOR
andDOES 1-10, MONETARY S E C T I O N S
w 16
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Defendant.
o 17 Date: November 14, 2018
Q Time: 9:00 a.m.
18 Dept.: 54
19 Complaint Filed: March 16, 2018
Trial bate: TBD
20
21 In accordance with Califomia Rule of Court, Rule 3.1345, Plaintiff CHARLES SOMERS
22 ("Plaintiff') submits this Separate Statement in Support ofhis Motion to Compel Further
23 Discovery Responses from Defendant DR. JAMES LONGORLA regarding Request For
24 Production of Documents, Set One.
25 REOUESTS FOR PRODUCTION OF DOCUMENTS
26 REOUEST FOR PRODUCTION NO. 1;
27 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing proposed budgets
28
1533745.1 1
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 for the COMPANY.
2 RESPONSE TO REOUEST FOR PRODUCTION NO. 1;
3 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO
4 reflecting, or evidencing". Furthermore, the requested documents are equally, if not more readily
5 available to plaintiff. Subject to and without waiving said objections documents within
6 Respondent's possession, custody and control responsive to said request will be produced.
7 REASONS FOR COMPELLING FURTHER RESPONSE;
8 A. Dr. Longoria's failure to comply with the format specified for the production of
documents.
9
10 Somers's document requests identified the format for the production of documents in this
11 case. Specifically, the document requests provide that "ESI [electronically stored information]
PH 12 must be produced in electronic native format, with files suitable for loading into a Concordance
Q 13 or EclipseSE litigation support database:" (Amaral Decl. 3.) The document requests provide
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< 14 further specific instmctions fof the pro^duction of ESI. Dr. Longoria refused to produce
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>^ 15 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
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16 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
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Q 17 that constitute ESI and should have been produced in electronic native format.
18 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
19 that Dr. Longoria produced documents in this matter, that a party responding to document
20 requests is generally required to produce documents in the format requested by the party
21 propoimding discovery. This explicitly includes documents that are requested in electronic
22 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
23 electronically stored information may specify the form or forms in which each type of
24 electronically stored information is to be produced."].) And, as explained in Somers's counsel's
25 prior email communications with Dr. Longoria's counsel, electronically stored information is
26 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
27 subd. (e).) "Electronic" means "technology having electrical, digital, magnetic, wireless, optical,
28 electromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
1533745.1 2
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 The case law is perfectly consistent with these statutofy requirements. For example, ESI
2 has been held to include data on media such as a computer's hard drive; peripheral storage
3 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
4 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
5 (1999) 75 Cal.App.4th 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
6 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound
7 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
8 searches, and even "deleted" files if they can be recovered.
9 Despite Somers's clear communications on this front, Dr. Longoria has not responded to
10 Somers's request for production of dociunents iri the format specified. Moreover, Dr. Longoria
11 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
12 the form that is reasonably useable." (Code Civ. Proc § 2031.280, subd. (d)(1).) Accordingly,
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13 all the documents must be produced in the requested format.
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Z 14 REOUEST FOR PRODUCTION NO. 2;
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OQ 15 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing Charles Somers's
Z 16 investments in the COMPANY.
o 17 RESPONSE TO REOUEST FOR PRODUCTION NO. 2;
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18 Objection — vague and ambiguous as to the phrases "DOCUMENTS RELATED TO,
19 reflecting, or evidencing" and the term "investments." Furthermore, the requested documents are
20 equally, if not more readily available to plaintiff. Subject to arid without waiving said objections
21 documents within Respondent's possession, custody and control responsive to said request will
22 be produced.
23 REASONS FOR COMPELLING FURTHER RESPONSE;
24 A. Dr. Longoria's failure to comply with the format specified for the production of
documents.
25
26 Somers's document requests identified the format for the production of documents in this
27 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
28 must be produced in elecfronic native format, with files suitable for loading into a Concordance
1533745.1 3
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
2 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
3 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
4 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
5 that constitute ESI and should have been produced in elecfronic native format.
6 Somers's counsel explained to Dr. Longoria's counsel on Jime 19 and 20, prior to the date
7 that Dr. Longoria produced docimients in this matter, that a party responding to document
8 requests is generally required to produce documents in the format requested by the party
9 propounding discovery. This explicitly includes dpcuments that are requested in elecfronic
10 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
11 electronically stored information may specify the form or forms in which each type of
12 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
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13 prior email communications with Dr. Longoria's counsel, elecfronically stored information is
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Z 14 defined as "information that is stored iri an electronic medium." (Code Civ. Proc, § 2016.020,
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CQ 15 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
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M 16 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
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17 The case law is perfectly consisterit with these statutop' requirements. For example, ESI
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Q 18 has been-^held to include data on'media such as a coriiputer's hard drive; peripheral storage
19 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
20 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
21 (1999) 75 Cal.App.4th 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
22 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound
23 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
24 searches, and even "deleted" files if they can be recovered.
25 Despite Somers's clear communications on this front. Dr. Longoria has not responded to
26 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
27 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
28 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 all the documents must be produced in the requested format.
2 REOUEST FOR PRODUCTION NO. 3;
3 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing money loaned by
4 Charles Somers to the COMPANY.
5 RESPONSE TO REOUEST FOR PRODUCTION NO. 3;
6 Objection — vague and ambiguous as to tiie phrase "DOCUMENTS RELATED TO,
7 reflecting, or evidencing" and the term "loaned." Furthermore, the requested documents are
8 equally, if not more readily available to plairitiff. Subject to and without waiving said objections
9 documents within Respondent's possessioUj custody and confrol responsive to said request will
10 be produced.
11 REASONS FOR COMPELLING FURTHER RESPONSE;
12 A. Dr. Longoria's failure to comply with the format specified for the production of
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documents.
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oi 14 Somers's document requests identified the format for the production of documents in this
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>^ 15 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
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16 must be produced in elecfroriic native format, with files suitable for loading into a Concordance
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17 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
18 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
19 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
20 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
21 that constitute ESI and should have been produced in elecfronic native format.
22 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
23 that Dr. Longoria produced documents in this matter, that a party responding to document
24 requests is generally required to produce documents in the format requested by the party
25 propounding discovery. This explicitly includes documents that are requested in elecfronic
26 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding mspection... of
27 elecfronically stored information may specify the form or forms in which each type of
28 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
1533745.1 5
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 prior email communications with Dr. Longoria's counsel, electronically stored information is
2 defined as "information that is stored in an electronic niedium." (Code Civ. Proc, § 2016.020,
3 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
4 electromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
5 The case law is perfectly consistent with these statutory requirements. For example, ESI
6 has been held to include data oh mediae such as a computer's hard drive- peripheral storage
7 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
8 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
9 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
10 Cal.App.4th 443,448.) Nor is ESI limited to text stored on computers. It also includes sound
11 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
12 searches, and even "deleted" files if they can be recovered.
PH
hJ 13 Despite Somers's clear communications on thisfront,Dr. Longoria has not responded to
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Z 14 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
<
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PQ 15 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
w 16 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
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o 17 all the documents must be produced in the requested format.
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18 REOUEST FOR PRODUCTION NO. 4;
19 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing money provided to
20 the COMPANY by any entity owned or controlled by Charles Somers.
21 RESPONSE TO REQUEST FOR PRODUCTION NO. 4;
22 Objection — vague and ambiguous as to the phrases "DOCUMENTS RELATED TO,
23 reflecting, or evidencing" iand "money provided to the COMPANY by any entity owned or
24 confrolled by Charles Somers, such that it would require Respondent to impermissibly speculate
25 as to what is beirig sought. Furthermore, the requested documents to the extent there are any are
26 equally, i friotmore readily available to plaintiff.
27
28
1533745.1
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 REASONS FOR COMPELLING FURTHER RESPONSE;
2 A. Dr. Longoria's failure to comply with the format specified for the production of
documents.
3
4 Somers's dociunent requests identified the format for the production of documents in this
5 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
6 must be produced in elecfronic natiye format, with files suitable for loading into a Concordance
7 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
8 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
9 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
10 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
11 that constitute ESI and should have been produced in elecfronic native format.
PH 12 Somers's covinsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
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13 that Dr. Longoria produced documents in.this matter, that a party responding to document
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15 propounding discovery. This explicitly includes documents that are requested in elecfronic
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16 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
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17 electronically stored information may specify the fomi or forms in which each type of
18 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
19 prior email communications with Dr. Longoria's counsel, electronically stored information is
20 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
21 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
22 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
23 The case law is perfectly consistent with these statutory requirements. For example, ESI
24 has been held to include data on media such as a computer's hard drive; peripheral storage
25 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
26 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
27 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
28 Cal.App.4th 443,448.) Nor is ESI limited to text stored on computers. It also includes sound
1533745.1 7
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 recordings, video recordings; digital photographs, voice mail, textriiessages,records of Intemet
2 searches, and even "deleted'' files if they can be recovered.
3 Despite Somers's clear communications on this front, Dr. Longoria has not responded to
4 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
5 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
6 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
7 all the documents must be produced in the requested format.
8 B. Dr. Longoria's Objections Are Meritless.
9 Dr. Longoria objects that this request is vague and ambiguous. Yet this objection fails to
10 state how any of these requests are vague and ambiguous, preventing Somers from curing any
11 ambiguity. Regardless, even assuming the requests are "somewhat ambiguous," Califomia case
12 law nonetheless requires Dr. Longoria to provide a response because the nature of the information
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13 sought is apparent. (Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 783.) Here, Dr. Longoria
Q
Z 14 undoubtedly has an understanding of this request's intended meaning, and has presumably read
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m 15 Somers's complaint, which fiirther illuminates the precise scope and meaning of this request.
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w 16 Dr. Longoria further objects on the basis that the requested documents are equally
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o 17 available to Somers. This objection is improper. Of course, a party may demand production of
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18 "a document that is in the possession, custody, or confrol of the party on whom the demand is
19 made." (Code Civ. Proc, § 2031.010, subd. (b).) This broad grant of authority is not limited by
20 any qualification that a demand cannot be made if the documents are equally available to the
21 demanding party, and Somers is entitied to know what documents Dr. Longoria has in his
22 possession, custody, or control.
23 REOUEST FOR PRODUCTION NO. 5;
24 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing money loaned to the
25 COMPANY by anyone other than Charles Somers.
26 RESPONSE TO REOUEST FOR PRODUCTION NO. 5;
27 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO,
28 reflecting, or evidencing" and the term "loaned." Furthermore, the requested documents are
1533745.1 8
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 irrelevant to the allegations of the complaint.
2 REASONS FOR COMPELLING FURTHER RESPONSE;
3 A. Dr. Longoria's failure to comply with the fdrmat specified for the production of
documents.
4
5 Somers's document requests identified the format for the production of documents in this
6 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
7 must be produced in elecfronic native format, with files suitable for loading into a Concordance
8 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
9 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
10 documents in that format, and instead-produced eight banker's boxes of documents in hard copy.
11 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
PH 12 that constitute ESI and should have been produced in elecfronic native format.
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o 13 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
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oi 14 that Dr. Longoria produced documents in this matter, that a party responding to document
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15 requests is generally required to produce documents in the format requested by the party
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16 propounding discovery. This explicitly includes documents that are requested in electronic
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17 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
18 elecfronically stored information may specify the form or forms in which each type of
19 electronically stored information is to be produced."].) And, as explained in Somers's counsel's
20 prior email communications with Dr. Longoria's counsel, electronically stored information is
21 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
22 subd. (e).) "Electronic" means "technology having electrical, digital, magnetic, wireless, optical,
23 elecfromagnetic, or similar capabiHties." (Id., § 2016.020, subd. (d).)
24 The case law is perfectly consistent with these statutory requirements. For example, ESI
25 has been held to include data on media such as a computer's hard drive; peripheral storage
26 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
27 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
28 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
1533745.1 9
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 Cal.App.4th 443,448.) Nor is-ESI limited to text stofed on computers. It also includes sound
2 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
3 searches, and even "deleted" files if they can be recovered.
4 Despite Somers's clear communications on this front, Dr. Longoria has not responded to
5 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
6 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
7 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
8 all the documents must be produced in the requested format.
9 B. Dr. Longoria's Objections Are Meritless.
10 Dr. Longoria objects that this request is vague arid ambiguous. Yet this objection fails to
11 state how any of these requests are vague and ambiguous, preventing Somers from curing any
12 ambiguity. Regardless, even assuming the requests are "soriiewhat ambiguous," Califomia case
OH
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13 law nonetheless requires Dr. Longoria to provide a response because the nature of the information
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Z 14 sought is apparent. (Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 783.) Here, Dr. Longoria
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PQ 15 undoubtedly has an understanding of this request's intended meaning, and has presumably read
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PQ 16 Somers's complaint, which further illuminates the precise scope and meaning of this request.
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17 Dr. Longoria further objects to this request on the basis of relevance. This objection, too,
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Q 18 is meritless, as Califomia case law recognizes that the scope of discovery is necessarily broad.
19 Indeed, the Code of Civil Procedure defines the scope of discovery as "any matter, not privileged,
20 that is relevant to the subject matter involved in the pending action or to the determination of any
21 motion made in that action, if the matter either is itself admissible in evidence or appears
22 reasonably calculated to lead to the discovery of admissible ^evidence." (Code Civ. Proc, §
23 2017.010.) "For discovery purposes, information is relevant if it might reasonably assist a party
24 in evaluating the case, preparing for trial, or facilitating settlement.... These mles are applied
25 liberally in favor of discovery...." (Lopez v. Watchtower Bible & Tract Soc. of New York, Inc.
26 (2016) 246 Cal.App.4tii 566, 590-591, review denied (July 27, 2016); Gonzales v. Superior Court
27 (1995) 33 Cal.App.4th 1539, 1546.) The Code fiirther provides that "[d]iscovery may relate to
28 the claim or defense of the party seeking discovery or of any other party to the action." (Code
1533745.1 10
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 Civ. Proc, §2017.010)
2 The documents sought in this request relate to loans to LC Therapeutics by entities other
3 than those owned or controlled by Somers. This request is clearly relevant to the subject matter
4 of this action, which goes to Dr. Longoria's efforts to secure funding for LC Therapeutics from
5 sources other than Somers., Thefinfprmation sought is \yell within the scope of permissible
6 discovery. ' '
7 REOUEST FOR PRODUCTION NO. 6;
8 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing the COMPANY'S
9 business plans.
10 RESPONSE TO REOUEST FOR PRODUCTION NO. 6;
11 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO,
12 reflecting, or evidencing" and the term "business plaris." As phrased it requires Respondent to
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l-l 13 impermissibly speculate as to what is being sought.
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Z 14 REASONS FOR COMPELLING FURTHER RESPONSE:
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PQ 15 A. Dr. Longoriai's failure to comply with the format specified for the production of
>- documents^
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16
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Q 17 Somers's document requests identified the format for the production of documents in this
18 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
19 must be produced in elecfronic native format, with files suitable for loading into a Concordance
20 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
21 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
22 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
23 (Amaral Decl. 10.) Yet the documents produced contain nuriierous emails, which are documents
24 that constitute ESI and should have been produced in elecfronic native format.
25 Somers's counsel explained to Dr. Longoria's counsel On June 19 and 20, prior to the date
26 that Dr. Longoria produced documents in this matter, that a pjarty responding to document
27 requests is generally required to produce documents in the foimat riequested by the party
28 propounding discovery. This explicitly includes documents that are requested in elecfronic
1533745.1 11
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
2 elecfronically stored information may specify the form or forms in which each type of
3 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
4 prior email communications with Dr. Longoria's counsel, electronically stored information is
5 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
6 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
7 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
8 The case law is perfectly consistent with these statutory requirements. For example, ESI
9 has been held to include data on media such as a computer's hard drive; peripheral storage
10 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
11 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
12 (1999) 75 Cal.App.4th 486,498; TBG Ins. Services Corp. v. Superior Court (2002) 96
PH
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hJ 13 Cal.App!4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound
Q
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<
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PQ 15 searches, and even "deleted" files if they can be recovered.
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16 Despite Somers's clear communications on this front. Dr. Longoria has not responded to
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17 Somers's request for production of documents in the forrriat specified. Moreover, Dr. Longoria
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18 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
19 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
20 all the documents must be produced in the requested format.
21 B. Dr. Longoria's Objections Are Meritless.
22 Dr. Longoria objects that this request is vague and ambiguous. Yet this objection fails to
23 state how any of these requests are vague and ambiguous, preventirig Somers from curing any
24 ambiguity. Regardless, even assuming the requests are "somewhat ambiguous," Califomia case
25 law nonetheless requires Dr. Longoria to provide a response because the nature of the information
26 sought is apparent. (Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 783.) Here, Dr. Longoria
27 undoubtedly has an understanding of this request's intended meaning, and has presumably read
28 Somers's complaint, which further illuminates the precise scope and meaning of this request.
1533745.1 12
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 REOUEST FOR PRODUCTION NO. 7;
2 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing any PERSON'S
3 purchase of stock in the COMPANY.
4 RESPONSE TO REOUEST FOR PRODUCTION NO. 7;
5 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO
6 reflecting, or evidencing". Furthermore, the requested documents are equally, if not more readily
7 available to plaintiff Subject to and without waiving said objections documents within
8 Respondent's possession, custody and confrol responsive to said request will be produced.
9 REASONS FOR COMPELLING FURTHER RESPONSE;
10 A. Dr. Longoria's failure to comply with the format specified for the production of
documents.
11
PH 12 Somers's document requests identified the format for the production of documents in this
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Q 13 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
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< 14 must be produced in elecfronic native format, with files suitable for loading into a Concordance
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w 15 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
Z
16 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
o
Q
17 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
18 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
19 that constitute ESI and should have been produced in electronic native format.
20 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
21 that Dr. Longoria produced documents in this matter, that a party responding to document
22 requests is generally required to produce documents in the format requested by the party
23 propounding discovery. This explicitly includes documents that are requested in elecfronic
24 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
25 elecfronically stored information may specify the form or forms in which each type of
26 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
27 prior email communications with Dr. Longoria's counsel, elecfronically stored information is
28 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
1533745.1 13
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
2 electromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
3 The case law is perfectly consistent with these statutory requirements. For example, ESI
4 has been held to include data on media such as a computer's hard drive; peripheral storage
5 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
6 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
1 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
8 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound
9 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
10 searches, and even "deleted" files if they can be recovered.
11 Despite Somers's clear communications on this front. Dr. Longoria has not responded to
12 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
PH
hJ
h-l 13 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
Q
Z 14 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
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15 all the documents must be produced in the requested format.
W
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16 REOUEST FOR PRODUCTION NO. 8;
J- - ^. . . . . . -
o 17 Produce all DOCUMENTS RELATED TO, reflectirig, or evidencing Roy Chin's
18 resignation from the COMPANY.
19 RESPONSE TO REOUEST FOR PRODUCTION NO. 8;
20 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO
21 reflecting, or evidencing". Furthermore, the requested documents are equally, if not more readily
22 available to plaintiff. Subject to and without waiving said objections documents within
23 Respondent's possession, custody and control responsive to said request will be produced.
24 REASONS FOR COMPELLING FURTHER RESPONSE;
25 A. Dr. Longoria's failure to comply with the format specified for thie production of
doeunients.
26
27 Somers's document requests identified the format for the production of documents in this
28 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
1533745.1 14
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 must be produced iri elecfronic native format, with files suitable for loading into a Concordance
2 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
3 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
4 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
5 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
6 that constitute ESI and should have been produced in elecfronic native format.
7 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
8 that Dr. Longoria produced docuriierits in this matter, that a party responding to document
9 requests is generally required to produce documents in the format requested by the party
10 propounding discovery. This explicitiy includes documents that are requested in elecfronic
11 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
12 electronically stored information may specify the form or forms in which each type of
PH
hJ
h-l
13 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
Q
Z 14 prior email communications with Dr. Longoria's counsel, elecfronically stored information is
<
Qi
DQ 15 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
z 16 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
o 17 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
o
18 The case law is perfectiy consistent with these statutory requirements. For example, ESI
19 has been held to include data on media such as a computer's hard drive; peripheral storage
20 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
21 assistants, all of which are thus discoverable. (See R. S. Creative, Inc. v. Creative Cotton, Ltd.
22 (1999) 75 Cal.App.4th 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
23 Cal.App.4th 443, 448.) Nor is ESI liniited to text stored on computers. It also includes sound
24 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
25 searches, and even "deleted" files if they can be recovered.
26 Despite Somers's clear communications on this front. Dr. Longoria has not responded to
27 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
28 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
1533745.1 15
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 the form that is reasonably useable." (Code Civ. Proc § 2031.280, subd. (d)(1).) Accordingly,
2 all the documents must be produced in the requested format.
3 REOUEST FOR PRODUCTION NO. 9;
4 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing Charles Somers's
5 status as a member of the COMPANY'S board of directors;
6 RESPONSE TO REOUEST FOR PRODUCTION NO. 9;
7 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO,
8 reflecting, or evidencing". Subject to and without waiving said objections documents within
9 Respondent's possession, custody and confrol responsive to said request will be produced.
10 REASONS FOR COMPELLING FURTHER RESPONSE;
11 A. Dr. Longoria's failure to comply with the format specified for the production of
documents.
PH 12
hJ
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Q 13 Somers's document requests identified the format for the production of documents in this
Z
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oi 14 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
DQ
15 must be produced in elecfronic native format, with files suitable for loading into a Concordance
Z
16 or EclipseSE litigation support database." (Amaral Decl; 3.) The document requests provide
o
Q 17 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
18 documents in that format, and instead produced eight banker's boxes bf documents in hard copy.
19 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
20 that constitute ESI and should have been produced in elecfronic native format.
21 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
22 that Dr. Longoria produced dociunents in this matter, that a party responding to document
23 requests is generally required to produce documents in the format requested by the party
24 propounding discovery. This explicitly includes documents that are requested in elecfronic
25 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party deriianding irispection . . . of
26 elecfronically stored information may specify the form or forms in which each type of
27 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
28 prior email communications with Dr. Longoria's counsel, elecfronically stored information is
1533745.1 16
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020,
2 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical,
3 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).)
4 The case law is perfectiy consistent with these statutory requirements. For example, ESI
5 has been held to include data on media such as a computer's hard drive; peripheral storage
6 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data
7 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd.
8 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96
9 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound
10 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet
11 searches, and even "deleted" files if they can be recoyered.
12 Despite Somers's clear communications on this'front. Dr. Longoria has not responded to
PH
h-l 13 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria
hJ
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Z 14 failed to "produce the information in the form or forms in which it is ordinarily maintained or in
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PQ 15 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly,
z 16 all the documents must be produced in the requested format.
o 17 REOUEST FOR PRODUCTION NO. 10;
Q
18 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing Charles Somers's
19 stattis as an officer of tiie COMPANY.
20 RESPONSE TO REOUEST FOR PRODUCTION NO. 10;
21 Objection — vague and ambiguous as to tiie phrase "DOCUMENTS RELATED TO
22 reflecting, or evidencing". Subject to and without waiving said objections documents within
23 Respondent's possession, custody and control responsive to said request will be produced.
24 REASONS FOR COMPELLING FURTHER RESPONSE;
25 A. Dr. Longoria's failure to comply with the format specified for the production of
docunierits.
26
27 Somers's document requests identified the format for the production of documents in this
28 case. Specifically, the document requests provide that "ESI [elecfronically stored information]
1533745.1 17
SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD
1 must be produced in elecfronic native format, with files suitable for loading into a Concordance
2 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide
3 further specific instmctions for the production of ESI. Dr. Longoria refused to produce
4 documents in that format, and instead produced eight banker's boxes of documents in hard copy.
5 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents
6 that constitute ESI and should have been produced in elecfronic native format.
7 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date
8 that Dr. Longoria produced documents in this matter, that a party responding to document
9 requests is generally required to produce documents in the format requested by the party
10 propounding discovery. This explicitiy includes documents that are requested in elecfronic
11 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of
12 elecfronically stored information may specify the form or forms in which each type of
OH
hJ 13 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's
hJ
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Z 14 prior email communications with Dr. Longoria's counsel, elecfronically stored information is
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Preview
1 DOWNEY BRAND LLP FiLED WILLL\M R. WARNE (Bar No. 141280) 'EHOORSED 2 ANNIE S. AMARAL (Bar No. 238189) 621 Capitol Mall, 18th Floor 2018OCT 12 ?nmuz 3 Sacramento, CA 95814-4731 Telephone: 916.444.1000 CeyhTY OrSA&RAHEh'TO 4 Facsimile: 916.444.2100 bwame@downeybfand.coin 5 aamaral@downeybfand.com 6 Attomeys for Plaintiff; CHARLES SOMERSi individually and as tmstee fof the 7 CHARLES SOMERS LIVING TRUST ' 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 CHARLES. SOMERS, individually and as CASE NO. 34-2018-00229212 tmstee for the CHARLES SOMERS 12 LIVING TRUST, -• SEPARATE STATEMENT IN SUPPORT .CL, OF PilAmtlFF CHARLES SOMERS'S 13 Plaintiff, MOTION t o COMPEL DEFENDANT DR. Q JAMES LONGORIA^S FURTHER Z 14 V. DISCOVERY RESPONSES t o REQUEST < FOR PkODUiGTION OF DOCUMENTS, oi PQ 15 DR. JAMES LONGORIA, an individual, S E t ONE, A N D ; R E Q U E S T FOR andDOES 1-10, MONETARY S E C T I O N S w 16 Z Defendant. o 17 Date: November 14, 2018 Q Time: 9:00 a.m. 18 Dept.: 54 19 Complaint Filed: March 16, 2018 Trial bate: TBD 20 21 In accordance with Califomia Rule of Court, Rule 3.1345, Plaintiff CHARLES SOMERS 22 ("Plaintiff') submits this Separate Statement in Support ofhis Motion to Compel Further 23 Discovery Responses from Defendant DR. JAMES LONGORLA regarding Request For 24 Production of Documents, Set One. 25 REOUESTS FOR PRODUCTION OF DOCUMENTS 26 REOUEST FOR PRODUCTION NO. 1; 27 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing proposed budgets 28 1533745.1 1 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 for the COMPANY. 2 RESPONSE TO REOUEST FOR PRODUCTION NO. 1; 3 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO 4 reflecting, or evidencing". Furthermore, the requested documents are equally, if not more readily 5 available to plaintiff. Subject to and without waiving said objections documents within 6 Respondent's possession, custody and control responsive to said request will be produced. 7 REASONS FOR COMPELLING FURTHER RESPONSE; 8 A. Dr. Longoria's failure to comply with the format specified for the production of documents. 9 10 Somers's document requests identified the format for the production of documents in this 11 case. Specifically, the document requests provide that "ESI [electronically stored information] PH 12 must be produced in electronic native format, with files suitable for loading into a Concordance Q 13 or EclipseSE litigation support database:" (Amaral Decl. 3.) The document requests provide Z < 14 further specific instmctions fof the pro^duction of ESI. Dr. Longoria refused to produce oi m >^ 15 documents in that format, and instead produced eight banker's boxes of documents in hard copy. m Z 16 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents o Q 17 that constitute ESI and should have been produced in electronic native format. 18 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date 19 that Dr. Longoria produced documents in this matter, that a party responding to document 20 requests is generally required to produce documents in the format requested by the party 21 propoimding discovery. This explicitly includes documents that are requested in electronic 22 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 23 electronically stored information may specify the form or forms in which each type of 24 electronically stored information is to be produced."].) And, as explained in Somers's counsel's 25 prior email communications with Dr. Longoria's counsel, electronically stored information is 26 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, 27 subd. (e).) "Electronic" means "technology having electrical, digital, magnetic, wireless, optical, 28 electromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) 1533745.1 2 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 The case law is perfectly consistent with these statutofy requirements. For example, ESI 2 has been held to include data on media such as a computer's hard drive; peripheral storage 3 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 4 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 5 (1999) 75 Cal.App.4th 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 6 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound 7 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 8 searches, and even "deleted" files if they can be recovered. 9 Despite Somers's clear communications on this front, Dr. Longoria has not responded to 10 Somers's request for production of dociunents iri the format specified. Moreover, Dr. Longoria 11 failed to "produce the information in the form or forms in which it is ordinarily maintained or in 12 the form that is reasonably useable." (Code Civ. Proc § 2031.280, subd. (d)(1).) Accordingly, PH l-l 1-1 13 all the documents must be produced in the requested format. D Z 14 REOUEST FOR PRODUCTION NO. 2; < oi OQ 15 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing Charles Somers's Z 16 investments in the COMPANY. o 17 RESPONSE TO REOUEST FOR PRODUCTION NO. 2; Q 18 Objection — vague and ambiguous as to the phrases "DOCUMENTS RELATED TO, 19 reflecting, or evidencing" and the term "investments." Furthermore, the requested documents are 20 equally, if not more readily available to plaintiff. Subject to arid without waiving said objections 21 documents within Respondent's possession, custody and control responsive to said request will 22 be produced. 23 REASONS FOR COMPELLING FURTHER RESPONSE; 24 A. Dr. Longoria's failure to comply with the format specified for the production of documents. 25 26 Somers's document requests identified the format for the production of documents in this 27 case. Specifically, the document requests provide that "ESI [elecfronically stored information] 28 must be produced in elecfronic native format, with files suitable for loading into a Concordance 1533745.1 3 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 2 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 3 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 4 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 5 that constitute ESI and should have been produced in elecfronic native format. 6 Somers's counsel explained to Dr. Longoria's counsel on Jime 19 and 20, prior to the date 7 that Dr. Longoria produced docimients in this matter, that a party responding to document 8 requests is generally required to produce documents in the format requested by the party 9 propounding discovery. This explicitly includes dpcuments that are requested in elecfronic 10 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 11 electronically stored information may specify the form or forms in which each type of 12 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's PH HJ 13 prior email communications with Dr. Longoria's counsel, elecfronically stored information is Q Z 14 defined as "information that is stored iri an electronic medium." (Code Civ. Proc, § 2016.020, < oi CQ 15 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, >^ M 16 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) Z 17 The case law is perfectly consisterit with these statutop' requirements. For example, ESI o Q 18 has been-^held to include data on'media such as a coriiputer's hard drive; peripheral storage 19 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 20 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 21 (1999) 75 Cal.App.4th 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 22 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound 23 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 24 searches, and even "deleted" files if they can be recovered. 25 Despite Somers's clear communications on this front. Dr. Longoria has not responded to 26 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria 27 failed to "produce the information in the form or forms in which it is ordinarily maintained or in 28 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 all the documents must be produced in the requested format. 2 REOUEST FOR PRODUCTION NO. 3; 3 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing money loaned by 4 Charles Somers to the COMPANY. 5 RESPONSE TO REOUEST FOR PRODUCTION NO. 3; 6 Objection — vague and ambiguous as to tiie phrase "DOCUMENTS RELATED TO, 7 reflecting, or evidencing" and the term "loaned." Furthermore, the requested documents are 8 equally, if not more readily available to plairitiff. Subject to and without waiving said objections 9 documents within Respondent's possessioUj custody and confrol responsive to said request will 10 be produced. 11 REASONS FOR COMPELLING FURTHER RESPONSE; 12 A. Dr. Longoria's failure to comply with the format specified for the production of PH h-l documents. h-l Q 13 Z < oi 14 Somers's document requests identified the format for the production of documents in this m >^ 15 case. Specifically, the document requests provide that "ESI [elecfronically stored information] w Z 16 must be produced in elecfroriic native format, with files suitable for loading into a Concordance o Q 17 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 18 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 19 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 20 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 21 that constitute ESI and should have been produced in elecfronic native format. 22 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date 23 that Dr. Longoria produced documents in this matter, that a party responding to document 24 requests is generally required to produce documents in the format requested by the party 25 propounding discovery. This explicitly includes documents that are requested in elecfronic 26 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding mspection... of 27 elecfronically stored information may specify the form or forms in which each type of 28 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's 1533745.1 5 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 prior email communications with Dr. Longoria's counsel, electronically stored information is 2 defined as "information that is stored in an electronic niedium." (Code Civ. Proc, § 2016.020, 3 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, 4 electromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) 5 The case law is perfectly consistent with these statutory requirements. For example, ESI 6 has been held to include data oh mediae such as a computer's hard drive- peripheral storage 7 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 8 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 9 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 10 Cal.App.4th 443,448.) Nor is ESI limited to text stored on computers. It also includes sound 11 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 12 searches, and even "deleted" files if they can be recovered. PH hJ 13 Despite Somers's clear communications on thisfront,Dr. Longoria has not responded to hJ G Z 14 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria < oi PQ 15 failed to "produce the information in the form or forms in which it is ordinarily maintained or in w 16 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, Z o 17 all the documents must be produced in the requested format. Q 18 REOUEST FOR PRODUCTION NO. 4; 19 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing money provided to 20 the COMPANY by any entity owned or controlled by Charles Somers. 21 RESPONSE TO REQUEST FOR PRODUCTION NO. 4; 22 Objection — vague and ambiguous as to the phrases "DOCUMENTS RELATED TO, 23 reflecting, or evidencing" iand "money provided to the COMPANY by any entity owned or 24 confrolled by Charles Somers, such that it would require Respondent to impermissibly speculate 25 as to what is beirig sought. Furthermore, the requested documents to the extent there are any are 26 equally, i friotmore readily available to plaintiff. 27 28 1533745.1 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 REASONS FOR COMPELLING FURTHER RESPONSE; 2 A. Dr. Longoria's failure to comply with the format specified for the production of documents. 3 4 Somers's dociunent requests identified the format for the production of documents in this 5 case. Specifically, the document requests provide that "ESI [elecfronically stored information] 6 must be produced in elecfronic natiye format, with files suitable for loading into a Concordance 7 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 8 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 9 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 10 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 11 that constitute ESI and should have been produced in elecfronic native format. PH 12 Somers's covinsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date h-3 hJ Q 13 that Dr. Longoria produced documents in.this matter, that a party responding to document Z < 14 requests is generally required to produce documents in the format requested by the party oi CQ 15 propounding discovery. This explicitly includes documents that are requested in elecfronic Z 16 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of o 17 electronically stored information may specify the fomi or forms in which each type of 18 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's 19 prior email communications with Dr. Longoria's counsel, electronically stored information is 20 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, 21 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, 22 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) 23 The case law is perfectly consistent with these statutory requirements. For example, ESI 24 has been held to include data on media such as a computer's hard drive; peripheral storage 25 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 26 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 27 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 28 Cal.App.4th 443,448.) Nor is ESI limited to text stored on computers. It also includes sound 1533745.1 7 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 recordings, video recordings; digital photographs, voice mail, textriiessages,records of Intemet 2 searches, and even "deleted'' files if they can be recovered. 3 Despite Somers's clear communications on this front, Dr. Longoria has not responded to 4 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria 5 failed to "produce the information in the form or forms in which it is ordinarily maintained or in 6 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, 7 all the documents must be produced in the requested format. 8 B. Dr. Longoria's Objections Are Meritless. 9 Dr. Longoria objects that this request is vague and ambiguous. Yet this objection fails to 10 state how any of these requests are vague and ambiguous, preventing Somers from curing any 11 ambiguity. Regardless, even assuming the requests are "somewhat ambiguous," Califomia case 12 law nonetheless requires Dr. Longoria to provide a response because the nature of the information PH hJ h-l 13 sought is apparent. (Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 783.) Here, Dr. Longoria Q Z 14 undoubtedly has an understanding of this request's intended meaning, and has presumably read < oi m 15 Somers's complaint, which fiirther illuminates the precise scope and meaning of this request. > w 16 Dr. Longoria further objects on the basis that the requested documents are equally z o 17 available to Somers. This objection is improper. Of course, a party may demand production of Q 18 "a document that is in the possession, custody, or confrol of the party on whom the demand is 19 made." (Code Civ. Proc, § 2031.010, subd. (b).) This broad grant of authority is not limited by 20 any qualification that a demand cannot be made if the documents are equally available to the 21 demanding party, and Somers is entitied to know what documents Dr. Longoria has in his 22 possession, custody, or control. 23 REOUEST FOR PRODUCTION NO. 5; 24 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing money loaned to the 25 COMPANY by anyone other than Charles Somers. 26 RESPONSE TO REOUEST FOR PRODUCTION NO. 5; 27 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO, 28 reflecting, or evidencing" and the term "loaned." Furthermore, the requested documents are 1533745.1 8 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 irrelevant to the allegations of the complaint. 2 REASONS FOR COMPELLING FURTHER RESPONSE; 3 A. Dr. Longoria's failure to comply with the fdrmat specified for the production of documents. 4 5 Somers's document requests identified the format for the production of documents in this 6 case. Specifically, the document requests provide that "ESI [elecfronically stored information] 7 must be produced in elecfronic native format, with files suitable for loading into a Concordance 8 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 9 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 10 documents in that format, and instead-produced eight banker's boxes of documents in hard copy. 11 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents PH 12 that constitute ESI and should have been produced in elecfronic native format. hJ hJ o 13 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date z < oi 14 that Dr. Longoria produced documents in this matter, that a party responding to document PQ 15 requests is generally required to produce documents in the format requested by the party z 16 propounding discovery. This explicitly includes documents that are requested in electronic O Q 17 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 18 elecfronically stored information may specify the form or forms in which each type of 19 electronically stored information is to be produced."].) And, as explained in Somers's counsel's 20 prior email communications with Dr. Longoria's counsel, electronically stored information is 21 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, 22 subd. (e).) "Electronic" means "technology having electrical, digital, magnetic, wireless, optical, 23 elecfromagnetic, or similar capabiHties." (Id., § 2016.020, subd. (d).) 24 The case law is perfectly consistent with these statutory requirements. For example, ESI 25 has been held to include data on media such as a computer's hard drive; peripheral storage 26 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 27 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 28 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 1533745.1 9 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 Cal.App.4th 443,448.) Nor is-ESI limited to text stofed on computers. It also includes sound 2 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 3 searches, and even "deleted" files if they can be recovered. 4 Despite Somers's clear communications on this front, Dr. Longoria has not responded to 5 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria 6 failed to "produce the information in the form or forms in which it is ordinarily maintained or in 7 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, 8 all the documents must be produced in the requested format. 9 B. Dr. Longoria's Objections Are Meritless. 10 Dr. Longoria objects that this request is vague arid ambiguous. Yet this objection fails to 11 state how any of these requests are vague and ambiguous, preventing Somers from curing any 12 ambiguity. Regardless, even assuming the requests are "soriiewhat ambiguous," Califomia case OH h-l h-l 13 law nonetheless requires Dr. Longoria to provide a response because the nature of the information Q Z 14 sought is apparent. (Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 783.) Here, Dr. Longoria < oi PQ 15 undoubtedly has an understanding of this request's intended meaning, and has presumably read >^ PQ 16 Somers's complaint, which further illuminates the precise scope and meaning of this request. z 17 Dr. Longoria further objects to this request on the basis of relevance. This objection, too, o Q 18 is meritless, as Califomia case law recognizes that the scope of discovery is necessarily broad. 19 Indeed, the Code of Civil Procedure defines the scope of discovery as "any matter, not privileged, 20 that is relevant to the subject matter involved in the pending action or to the determination of any 21 motion made in that action, if the matter either is itself admissible in evidence or appears 22 reasonably calculated to lead to the discovery of admissible ^evidence." (Code Civ. Proc, § 23 2017.010.) "For discovery purposes, information is relevant if it might reasonably assist a party 24 in evaluating the case, preparing for trial, or facilitating settlement.... These mles are applied 25 liberally in favor of discovery...." (Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. 26 (2016) 246 Cal.App.4tii 566, 590-591, review denied (July 27, 2016); Gonzales v. Superior Court 27 (1995) 33 Cal.App.4th 1539, 1546.) The Code fiirther provides that "[d]iscovery may relate to 28 the claim or defense of the party seeking discovery or of any other party to the action." (Code 1533745.1 10 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 Civ. Proc, §2017.010) 2 The documents sought in this request relate to loans to LC Therapeutics by entities other 3 than those owned or controlled by Somers. This request is clearly relevant to the subject matter 4 of this action, which goes to Dr. Longoria's efforts to secure funding for LC Therapeutics from 5 sources other than Somers., Thefinfprmation sought is \yell within the scope of permissible 6 discovery. ' ' 7 REOUEST FOR PRODUCTION NO. 6; 8 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing the COMPANY'S 9 business plans. 10 RESPONSE TO REOUEST FOR PRODUCTION NO. 6; 11 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO, 12 reflecting, or evidencing" and the term "business plaris." As phrased it requires Respondent to PH h-l l-l 13 impermissibly speculate as to what is being sought. Q Z 14 REASONS FOR COMPELLING FURTHER RESPONSE: < oi PQ 15 A. Dr. Longoriai's failure to comply with the format specified for the production of >- documents^ m Z 16 o Q 17 Somers's document requests identified the format for the production of documents in this 18 case. Specifically, the document requests provide that "ESI [elecfronically stored information] 19 must be produced in elecfronic native format, with files suitable for loading into a Concordance 20 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 21 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 22 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 23 (Amaral Decl. 10.) Yet the documents produced contain nuriierous emails, which are documents 24 that constitute ESI and should have been produced in elecfronic native format. 25 Somers's counsel explained to Dr. Longoria's counsel On June 19 and 20, prior to the date 26 that Dr. Longoria produced documents in this matter, that a pjarty responding to document 27 requests is generally required to produce documents in the foimat riequested by the party 28 propounding discovery. This explicitly includes documents that are requested in elecfronic 1533745.1 11 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 2 elecfronically stored information may specify the form or forms in which each type of 3 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's 4 prior email communications with Dr. Longoria's counsel, electronically stored information is 5 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, 6 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, 7 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) 8 The case law is perfectly consistent with these statutory requirements. For example, ESI 9 has been held to include data on media such as a computer's hard drive; peripheral storage 10 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 11 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 12 (1999) 75 Cal.App.4th 486,498; TBG Ins. Services Corp. v. Superior Court (2002) 96 PH hJ hJ 13 Cal.App!4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound Q Z 14 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet < oi PQ 15 searches, and even "deleted" files if they can be recovered. W 16 Despite Somers's clear communications on this front. Dr. Longoria has not responded to Z 17 Somers's request for production of documents in the forrriat specified. Moreover, Dr. Longoria o Q 18 failed to "produce the information in the form or forms in which it is ordinarily maintained or in 19 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, 20 all the documents must be produced in the requested format. 21 B. Dr. Longoria's Objections Are Meritless. 22 Dr. Longoria objects that this request is vague and ambiguous. Yet this objection fails to 23 state how any of these requests are vague and ambiguous, preventirig Somers from curing any 24 ambiguity. Regardless, even assuming the requests are "somewhat ambiguous," Califomia case 25 law nonetheless requires Dr. Longoria to provide a response because the nature of the information 26 sought is apparent. (Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 783.) Here, Dr. Longoria 27 undoubtedly has an understanding of this request's intended meaning, and has presumably read 28 Somers's complaint, which further illuminates the precise scope and meaning of this request. 1533745.1 12 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 REOUEST FOR PRODUCTION NO. 7; 2 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing any PERSON'S 3 purchase of stock in the COMPANY. 4 RESPONSE TO REOUEST FOR PRODUCTION NO. 7; 5 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO 6 reflecting, or evidencing". Furthermore, the requested documents are equally, if not more readily 7 available to plaintiff Subject to and without waiving said objections documents within 8 Respondent's possession, custody and confrol responsive to said request will be produced. 9 REASONS FOR COMPELLING FURTHER RESPONSE; 10 A. Dr. Longoria's failure to comply with the format specified for the production of documents. 11 PH 12 Somers's document requests identified the format for the production of documents in this h-l hJ Q 13 case. Specifically, the document requests provide that "ESI [elecfronically stored information] Z < 14 must be produced in elecfronic native format, with files suitable for loading into a Concordance oi CQ w 15 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide Z 16 further specific instmctions for the production of ESI. Dr. Longoria refused to produce o Q 17 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 18 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 19 that constitute ESI and should have been produced in electronic native format. 20 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date 21 that Dr. Longoria produced documents in this matter, that a party responding to document 22 requests is generally required to produce documents in the format requested by the party 23 propounding discovery. This explicitly includes documents that are requested in elecfronic 24 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 25 elecfronically stored information may specify the form or forms in which each type of 26 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's 27 prior email communications with Dr. Longoria's counsel, elecfronically stored information is 28 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, 1533745.1 13 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, 2 electromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) 3 The case law is perfectly consistent with these statutory requirements. For example, ESI 4 has been held to include data on media such as a computer's hard drive; peripheral storage 5 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 6 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 1 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 8 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound 9 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 10 searches, and even "deleted" files if they can be recovered. 11 Despite Somers's clear communications on this front. Dr. Longoria has not responded to 12 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria PH hJ h-l 13 failed to "produce the information in the form or forms in which it is ordinarily maintained or in Q Z 14 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, < oi 15 all the documents must be produced in the requested format. W Z 16 REOUEST FOR PRODUCTION NO. 8; J- - ^. . . . . . - o 17 Produce all DOCUMENTS RELATED TO, reflectirig, or evidencing Roy Chin's 18 resignation from the COMPANY. 19 RESPONSE TO REOUEST FOR PRODUCTION NO. 8; 20 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO 21 reflecting, or evidencing". Furthermore, the requested documents are equally, if not more readily 22 available to plaintiff. Subject to and without waiving said objections documents within 23 Respondent's possession, custody and control responsive to said request will be produced. 24 REASONS FOR COMPELLING FURTHER RESPONSE; 25 A. Dr. Longoria's failure to comply with the format specified for thie production of doeunients. 26 27 Somers's document requests identified the format for the production of documents in this 28 case. Specifically, the document requests provide that "ESI [elecfronically stored information] 1533745.1 14 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 must be produced iri elecfronic native format, with files suitable for loading into a Concordance 2 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 3 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 4 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 5 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 6 that constitute ESI and should have been produced in elecfronic native format. 7 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date 8 that Dr. Longoria produced docuriierits in this matter, that a party responding to document 9 requests is generally required to produce documents in the format requested by the party 10 propounding discovery. This explicitiy includes documents that are requested in elecfronic 11 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 12 electronically stored information may specify the form or forms in which each type of PH hJ h-l 13 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's Q Z 14 prior email communications with Dr. Longoria's counsel, elecfronically stored information is < Qi DQ 15 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, z 16 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, o 17 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) o 18 The case law is perfectiy consistent with these statutory requirements. For example, ESI 19 has been held to include data on media such as a computer's hard drive; peripheral storage 20 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 21 assistants, all of which are thus discoverable. (See R. S. Creative, Inc. v. Creative Cotton, Ltd. 22 (1999) 75 Cal.App.4th 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 23 Cal.App.4th 443, 448.) Nor is ESI liniited to text stored on computers. It also includes sound 24 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 25 searches, and even "deleted" files if they can be recovered. 26 Despite Somers's clear communications on this front. Dr. Longoria has not responded to 27 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria 28 failed to "produce the information in the form or forms in which it is ordinarily maintained or in 1533745.1 15 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 the form that is reasonably useable." (Code Civ. Proc § 2031.280, subd. (d)(1).) Accordingly, 2 all the documents must be produced in the requested format. 3 REOUEST FOR PRODUCTION NO. 9; 4 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing Charles Somers's 5 status as a member of the COMPANY'S board of directors; 6 RESPONSE TO REOUEST FOR PRODUCTION NO. 9; 7 Objection — vague and ambiguous as to the phrase "DOCUMENTS RELATED TO, 8 reflecting, or evidencing". Subject to and without waiving said objections documents within 9 Respondent's possession, custody and confrol responsive to said request will be produced. 10 REASONS FOR COMPELLING FURTHER RESPONSE; 11 A. Dr. Longoria's failure to comply with the format specified for the production of documents. PH 12 hJ h-l Q 13 Somers's document requests identified the format for the production of documents in this Z < oi 14 case. Specifically, the document requests provide that "ESI [elecfronically stored information] DQ 15 must be produced in elecfronic native format, with files suitable for loading into a Concordance Z 16 or EclipseSE litigation support database." (Amaral Decl; 3.) The document requests provide o Q 17 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 18 documents in that format, and instead produced eight banker's boxes bf documents in hard copy. 19 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 20 that constitute ESI and should have been produced in elecfronic native format. 21 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date 22 that Dr. Longoria produced dociunents in this matter, that a party responding to document 23 requests is generally required to produce documents in the format requested by the party 24 propounding discovery. This explicitly includes documents that are requested in elecfronic 25 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party deriianding irispection . . . of 26 elecfronically stored information may specify the form or forms in which each type of 27 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's 28 prior email communications with Dr. Longoria's counsel, elecfronically stored information is 1533745.1 16 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 defined as "information that is stored in an electronic medium." (Code Civ. Proc, § 2016.020, 2 subd. (e).) "Elecfronic" means "technology having electrical, digital, magnetic, wireless, optical, 3 elecfromagnetic, or similar capabilities." (Id., § 2016.020, subd. (d).) 4 The case law is perfectiy consistent with these statutory requirements. For example, ESI 5 has been held to include data on media such as a computer's hard drive; peripheral storage 6 devices (disks and backup tapes); thumb or USB drives; laptops; cell phones; and personal data 7 assistants, all of which are thus discoverable. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. 8 (1999) 75 Cal.App.4tii 486, 498; TBG Ins. Services Corp. v. Superior Court (2002) 96 9 Cal.App.4th 443, 448.) Nor is ESI limited to text stored on computers. It also includes sound 10 recordings, video recordings, digital photographs, voice mail, text messages, records of Intemet 11 searches, and even "deleted" files if they can be recoyered. 12 Despite Somers's clear communications on this'front. Dr. Longoria has not responded to PH h-l 13 Somers's request for production of documents in the format specified. Moreover, Dr. Longoria hJ Q Z 14 failed to "produce the information in the form or forms in which it is ordinarily maintained or in < oi PQ 15 the form that is reasonably useable." (Code Civ. Proc. § 2031.280, subd. (d)(1).) Accordingly, z 16 all the documents must be produced in the requested format. o 17 REOUEST FOR PRODUCTION NO. 10; Q 18 Produce all DOCUMENTS RELATED TO, reflecting, or evidencing Charles Somers's 19 stattis as an officer of tiie COMPANY. 20 RESPONSE TO REOUEST FOR PRODUCTION NO. 10; 21 Objection — vague and ambiguous as to tiie phrase "DOCUMENTS RELATED TO 22 reflecting, or evidencing". Subject to and without waiving said objections documents within 23 Respondent's possession, custody and control responsive to said request will be produced. 24 REASONS FOR COMPELLING FURTHER RESPONSE; 25 A. Dr. Longoria's failure to comply with the format specified for the production of docunierits. 26 27 Somers's document requests identified the format for the production of documents in this 28 case. Specifically, the document requests provide that "ESI [elecfronically stored information] 1533745.1 17 SEPARATE STATEMENT IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL - RFPD 1 must be produced in elecfronic native format, with files suitable for loading into a Concordance 2 or EclipseSE litigation support database." (Amaral Decl. 3.) The document requests provide 3 further specific instmctions for the production of ESI. Dr. Longoria refused to produce 4 documents in that format, and instead produced eight banker's boxes of documents in hard copy. 5 (Amaral Decl. 10.) Yet the documents produced contain numerous emails, which are documents 6 that constitute ESI and should have been produced in elecfronic native format. 7 Somers's counsel explained to Dr. Longoria's counsel on June 19 and 20, prior to the date 8 that Dr. Longoria produced documents in this matter, that a party responding to document 9 requests is generally required to produce documents in the format requested by the party 10 propounding discovery. This explicitiy includes documents that are requested in elecfronic 11 format. (See Code Civ. Proc, § 2031.030, subd. (b) ["A party demanding inspection . . . of 12 elecfronically stored information may specify the form or forms in which each type of OH hJ 13 elecfronically stored information is to be produced."].) And, as explained in Somers's counsel's hJ D Z 14 prior email communications with Dr. Longoria's counsel, elecfronically stored information is < oi' 15 defined as "information that is stor