Preview
1 JEFFREY E. TSAI (SBN 226081)
jeff.tsai@us.dlapiper.com
2 KATHLEEN S. KIZER (SBN 246035)
kathy.kizer@us.dlapiper.com
3
EMILY ROSE MARGOLIS (SBN 324089)
4 emily.margolis@us.dlapiper.com
DLA PIPER LLP (US)
5 555 Mission Street, Suite 2400
San Francisco, California 94105-2933
6 Tel: 415.836.2500 | Fax: 415.836.2501
7
Attorneys for Defendants
8 CELESTE WHITE, DR. ROBERT WHITE, and
THE VALLEY ROCK FOUNDATION
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF NAPA
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13
LISA KEITH, an individual, CASE NO. 22CV001269
14
Plaintiff, MEMORANDUM OF POINTS AND
15 AUTHORITIES IN SUPPORT OF
v. DEFENDANTS VALLEY ROCK
16
CELESTE WHITE, an individual, ROBERT FOUNDATION’S AND DR. ROBERT
WHITE’S MOTION FOR ISSUE, EVIDENCE,
17 WHITE, an individual, the VALLEY ROCK AND/OR TERMINATING SANCTIONS
FOUNDATION, aka THE BAR 49 AGAINST PLAINTIFF LISA KEITH FOR
18 FOUNDATION, a charitable organization, VIOLATING COURT ORDER COMPELLING
and DOES 1-50, INCLUSIVE, RESPONSES TO DISCOVERY
19
Defendants. Date: November 7, 2023
20 Time: 8:30 a.m.
Judge: Scott R.L. Young
21 Dept.: B
Complaint Filed: October 25, 2022
22 Trial Date: Not Set
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION .............................................................................................................. 4
4 II. FACTUAL AND PROCEDURAL BACKGROUND ....................................................... 4
5 A. Plaintiff’s Prior Lawsuit and this Lawsuit.............................................................. 4
6 1. Plaintiff’s petitions in the Trust Action ...................................................... 5
7 2. Because of negative publicity in the Trust Action, the Whites
included a non-disparagement provision in the Settlement
8
Agreement. ................................................................................................. 5
9
3. Plaintiff’s claims in this lawsuit ................................................................. 6
10 B. Despite Two Extensions, Plaintiff Did Not Respond to Discovery Requests ........ 6
11 C. This Court Ordered Plaintiff to Provide Responses Without Objection. ............... 7
12 D. Plaintiff’s Responses to Defendants’ Interrogatories Were Evasive...................... 8
13 E. Plaintiff Has Failed to Complete Her Production. ................................................. 9
14 III. RELEVANT LAW ........................................................................................................... 11
15 IV. ARGUMENT ................................................................................................................... 13
16 A. Plaintiff’s Continuing Failure to Produce Documents Warrants Sanctions ......... 13
17 1. Plaintiff is withholding documents. ......................................................... 13
18 2. Plaintiff and her counsel have not performed an adequate document
19 collection and have misrepresented their efforts. ..................................... 14
3. The Court should impose sanctions. ........................................................ 15
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B. Plaintiff’s Non-Compliant Interrogatory Responses Warrant Sanction ............... 17
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C. Monetary Sanctions Are Also Warranted. ........................................................... 17
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V. CONCLUSION ................................................................................................................ 18
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 TABLE OF AUTHORITIES
Page(s)
2 Cases
3 Bratka v. Anheuser-Busch Co., Inc.
4 (1995) 164 F.R.D. 448 ............................................................................................................ 15
5 Karlsson v. Ford Motor Co.
(2006) 140 Cal.App.4th 1202 ............................................................................................ 12, 14
6
Mileikowsky v. Tenet Healthsystem
7 (2005) 128 Cal.App.4th 262 .............................................................................................. 12, 16
8 National Day Laborer Org. Network v. U.S. Immigration and Customs Enf’t Agency
(2012) 877 F.Supp.2d 87 ......................................................................................................... 15
9
10 R.S. Creative, Inc. v. Creative Cotton, Ltd.
(1999) 75 Cal.App.4th 486 .......................................................................................... 12, 14, 16
11
Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants
12 (2007) 148 Cal.App.4th 390 .............................................................................................. 12, 18
13 Vallbona v. Springer
(1996) 43 Cal.App.4th 1525 .............................................................................................. 11, 15
14
15 Statutes
16 Code Civ. Proc., § 284 .................................................................................................................... 7
17 Code Civ. Proc., § 2023.010, subd. (f) .......................................................................................... 11
18 Code Civ. Proc., § 2023.030, subd. (a) ................................................................................... 12, 17
19 Code Civ. Proc., § 2023.030, subd. (b) ......................................................................................... 11
20 Code Civ. Proc., § 2023.030, subd. (c) ................................................................................... 12, 16
21 Code Civ. Proc., § 2023.030, subd. (d) ................................................................................... 12, 16
22
Code Civ. Proc., § 2031.300, subd. (c) ......................................................................................... 12
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 I. INTRODUCTION
2 Due to continuing discovery misconduct by Plaintiff Lisa Keith and her attorneys since this
3 Court’s Order (signed on August 11, 2023) compelling discovery responses and documents,
4 additional—and more severe—sanctions by this Court are warranted and necessary.
5 Today, nearly two months after this Court’s Order and over six months after discovery
6 requests were initially propounded, Plaintiff has still failed to produce to Defendants all
7 responsive documents, including any attorney-client and work-product documents for which
8 privilege was waived, by August 21, 2023, or provide proper responses. Instead, Plaintiff has
9 produced a mere 20 documents (all but 17 pages of which were already in Defendants’
10 possession). And, by their own admission, they are currently withholding documents and—
11 making things worse—they have not performed even a minimally sufficient document-collection
12 effort. Their interrogatory responses fare no better; for many, she does not even bother to pretend
13 to provide any facts at all in response.
14 Based on their discovery conduct to date, Plaintiff and her counsel are plainly attempting
15 to use discovery as a “lie in wait” tool to prevent Defendants from investigating the evidence and
16 testing her allegations. Defendants have suffered significant prejudice in moving forward in this
17 litigation—along with the additional collateral expense associated with attempting to bring
18 Plaintiff and her counsel into compliance. Sanctions—issue, evidence, terminating, and
19 monetary—are appropriate here, and the Court should act to both vindicate the authority of its
20 August 11th Order and to address the prejudice that Defendants have suffered.
21 II. FACTUAL AND PROCEDURAL BACKGROUND
22 A. Plaintiff’s Prior Lawsuit and the Latest Lawsuit
23 Plaintiff Lisa Keith brought this lawsuit against her sister, Celeste White, her husband Dr.
24 Robert White, and the Napa-based foundation they run, the Valley Rock Foundation
25 (“Foundation”), based on a non-disparagement provision in a settlement agreement that settled
26 another lawsuit in this Court also filed by Keith against Defendants (“Trust Action”). The Trust
27 Action concerned the estate of Celeste White’s and Plaintiff’s late father, Ed Keith, who died in
28 2006. Celeste and her brother, Richard Keith, were named trustees of the estate. (Declaration of
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 Kathleen Kizer [“Kizer Decl.”], pp. 240-241, Ex. Q [White Decl.], ¶¶ 5-6.)
2 1. Plaintiff’s petitions in the Trust Action.
3 In 2016, Plaintiff filed a petition in this Court demanding an accounting from Celeste
4 White of the then 10-year-old estate. In 2017, Plaintiff filed an amended petition that was
5 significantly broader and challenged Celeste White’s management of both the estate and the
6 Foundation. The Court granted a motion to strike Plaintiff’s allegations with respect to the
7 Foundation, finding Plaintiff lacked standing. Plaintiff filed a second amended petition, and the
8 Court again struck Plaintiff’s allegations regarding the Foundation on standing grounds. (Kizer
9 Decl., p. 241, Ex. Q [White Decl.], ¶¶ 7-8.)
10 In response to Plaintiff’s petitions, Celeste White filed multiple accountings with the
11 Court. The passage of time and loss of accounting records (due in part to the closure of a bank and
12 a wildfire that destroyed the Whites’ home) made it impossible to provide a complete accounting.
13 (Kizer Decl., p. 242, Ex. Q [White Decl.], ¶¶ 12-14.) In 2020, the parties settled the Trust Action.
14
2. Because of negative publicity in the Trust Action, the Whites included a
15 non-disparagement provision in the Settlement Agreement.
16 During the Trust Action, the Napa Valley Register published an article that included
17 quotes from Plaintiff’s attorney, Dominic Campisi, now of the Johnston, Kinney & Zulaica firm,
18 and cast Defendants in a harsh light. The article and Campisi’s comments caused concern to the
19 Whites because any impairment of their reputations could impact their ability to continue their
20 charitable fundraising work. Thus, due to that article and the desire to prevent further negative
21 publicity about them, the Whites included in the settlement agreement a non-disparagement
22 provision that prohibits any statement “that might reasonably be construed to be derogatory or
23 critical of, or negative toward” a party to the Trust Action.1 (Kizer Decl., pp. 241-244, Ex. Q
24
1
25 In responding to Defendants’ demurrer, Plaintiff falsely proclaimed that she was responsible for including
the non-disparagement provision in the settlement agreement. But, in response to Interrogatory No. 6 (requesting “All
26 facts supporting YOUR assertion in paragraph 3 of YOUR Opposition to Defendants’ Demurrer that ‘Plaintiff took
special care to demand the inclusion of the Non-Disparagement Provision as a material term in the Settlement
27 Agreement in exchange for her voluntarily releasing her claims against Defendants.’”), Plaintiff admitted her
demurrer representation was false. Plaintiff’s response stated: “Since there was already media publicity from Napa
28 Valley Register that was negative to Celeste and Robert, they insisted upon inserting the non-disparagement clauses
and were adamant that it had to be included in the settlement agreement. Since Defendants pursued and plead that
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 [White Decl.], ¶¶ 11, 17-22.)
2 The Foundation and the Whites issued two nearly identical press releases, in March 2021
3 and August 2021, that were intended to supplant, in internet search results, the negative aspersions
4 cast by the Napa Valley Register article.2 The press releases announced the resolution of the Trust
5 Action and reported briefly on what transpired in that lawsuit. The Whites did not publish the
6 press releases to disparage Plaintiff. (Kizer Decl., p. 244, Ex. Q [White Decl.], ¶ 23.) Plaintiff is
7 barely mentioned in them and only in factually accurate statements.
8 3. Plaintiff’s claims in this lawsuit.
9 Plaintiff alleges Defendants breached the settlement agreement when they issued the press
10 releases. She asserts a claim for breach of contract, a wholly duplicative claim for breach of the
11 covenant of good faith and fair dealing, and a claim for intentional misrepresentation that alleges
12 Defendants entered into the settlement agreement and agreed to the non-disparagement provision
13 while secretly intending to disparage Plaintiff. She seeks more than $2 million in damages.
14 B. Despite Two Extensions, Plaintiff Did Not Respond to Discovery Requests
15 On April 5, 2023, the Foundation served on Plaintiff (1) Request for Production of
16 Documents, (2) Special Interrogatories, (3) Requests for Admission, and (4) Form
17 Interrogatories—General; and Dr. White served (5) Special Interrogatories on Keith. (Kizer Decl.,
18 ¶ 4, pp. 11-12, 15-60.) The Foundation’s Request for Production of Documents required
19
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there was to be a non-disparagement clause, Plaintiff was led to believe that the Defendants had no intention of
21 violating the agreement. Plaintiff actually never thought the Defendants would go to the press with any information
about the settlement because Defendants had never hired a PR agent before.” (Kizer Decl., p. 153, Ex. F, No. 6
22 [emphasis added].) This is one of many examples of Plaintiff’s misrepresentations of facts in a court filing.
2
Despite her false allegation that Defendants intended the press releases to disparage her, Plaintiff admitted
23 in discovery that the sole purpose of the press releases was to repair any damage to the Whites’ reputations caused by
the Napa Valley Register article. Specifically, Plaintiff was asked in Special Interrogatory No. 9 to “State all facts
24 supporting your assertion in paragraph 14 of your Opposition to Defendants’ Demurrer that “it is reasonable to infer
that Defendants meant the article to reflect negatively upon Plaintiff.” Her response stated: “When the settlement
25 agreement was being negotiated, concerns were explicitly raised that negative publicity could harm the reputations of
the parties. Defendants’ release of the PRESS RELEASES were titled as ‘Celeste K. White Prevails in Estate Case of
26 Late Father Prominent Napa Valley Businessman Ed Keith. Judge declares White’s accounting and investments of the
proceeds of Ed Keith’s estate were entirely proper; final order issued in case in favor of Celeste K. White.’ The
27 Defendant then stated in the first paragraph of her press release that the judge ruled she had acted entirely properly.
Defendant lied. Additionally, she stated that the court sided completely with her.” (Kizer Decl., p. 154, Ex. F, No. 9.)
28 Plaintiff identified no facts supporting her allegation that Defendants intended to disparage her. Nonetheless, she
persists with this lawsuit and claims she suffered damages of $2 million.
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 electronically stored information (“ESI”) to be produced in native file format. (Id., p. 16.)
2 Plaintiff’s deadline to respond and produce all responsive documents was initially May 9,
3 2023. But on May 4, 2023, Plaintiff’s attorney requested an extension for her responses.
4 Defendants granted a 30-day extension to June 8, 2023. (Kizer Decl., ¶ 7.) Instead of serving
5 responses and producing documents, however, on June 8 Plaintiff requested another 30-day
6 extension. Defendants inquired as to the reason for the delay; receiving no explanation,
7 Defendants granted another one-week extension to June 15, 2023. (Id., ¶ 8.) But Plaintiff again
8 did not provide written discovery responses or produce documents by June 15, 2023.3 (Id., ¶ 10.)
9 C. This Court Ordered Plaintiff to Provide Responses Without Objection
10 Having exhausted all alternative measures, Defendants moved on June 21, 2023, to compel
11 responses from Plaintiff. (Kizer Decl., ¶ 13.) On July 14, 2023, the Court granted Defendants’
12 motion in part and ruled, inter alia, that Plaintiff “[b]y operation of law . . . by failing to serve
13 timely responses, waived any objection to the requests for production of documents” and “[b]y
14 failing to timely serve interrogatory responses, Plaintiff . . . has waived any objection to the
15 interrogatories.” (Kizer Decl., ¶¶ 13, 15, p. 97, Ex. B.) (This order is hereinafter referred to as
16 “Compel Order.”) Moreover, the Court found that “[n]o grounds appear to justify Plaintiff’s
17 failure to respond to the Subject Discovery, and no circumstances make the imposition of the
18 sanction unjust,” so the Court imposed a monetary sanction. (Id., p. 97, Ex. B.)
19 During the pendency of Defendants’ Motion to Compel Responses, Plaintiff filed what she
20 called a Motion for Order Relieving Responding Party from Waiver of Objections (“Waiver Relief
21 Motion”) on July 10, 2023, that was scheduled to be heard after the hearing on the Motion to
22 Compel Responses. In her supporting declaration, Plaintiff declared under penalty of perjury that
23 she was unrepresented by counsel from June 8th to June 28th.4 (See Kizer Decl., p. 297, Ex. R
24
3
25 Instead of responding to Defendants’ discovery, Plaintiff mailed (notwithstanding the parties’ agreement to
serve all documents electronically) to Defendants a Substitution of Attorney that purported to substitute Keith, in
26 propria persona, in place of the Johnston Kinney firm. (Kizer Decl., ¶ 11.) The Substitution of Attorney was defective
because it was not signed by Plaintiff per Code of Civil Procedure section 284. (See id., ¶¶ 11-12.) In response,
27 Defendants’ attorneys wrote to Plaintiff’s attorneys about the defective Substitution of Attorney and requested a fully
signed Substitution of Attorney. Defendants never received a response to that letter. (Id., ¶ 12.)
4
28 This under-oath declaration has now been contradicted by an email Keith produced on September 12, 2023,
which shows that Plaintiff’s attorneys emailed draft discovery responses to Plaintiff on June 26—precisely within the
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 [Keith Decl.], ¶¶ 2, 4 [Plaintiff declaring that, “[a]s of June 8, 2023, Johnston, Kinney & Zulaica
2 LLP did not formally represent [Plaintiff] and we were in the process of completing a substitution
3 of attorney” and “[o]n June 28, 2023, [Plaintiff] re-engaged with Johnston, Kinney & Zulaica LLP
4 and they agreed to continue [her] representation”].) Her attorneys repeated this claim. (See Kizer
5 Decl., p. 300, Ex. S [Lam Decl.], ¶¶ 9-10.)
6 Based on the pending Waiver Relief Motion, the Court’s July 14th ruling stayed the
7 Compel Order until the Waiver Relief Motion’s resolution:
8 Plaintiff is directed to serve, no later than 10 calendar days after lifting of the
stay of the present ruling, code-compliant responses, without objection (unless
9 otherwise ordered), to Defendants’ Request for Production of Documents – Set
One, Special Interrogatories – Set One, and Form Interrogatories – Set One.”
10
11 (Kizer Decl., p. 96, Ex. B [emphasis added].)
12 On August 11, 2023, the Court denied the Waiver Relief Motion and did not alter its
13 Compel Order. (Kizer Decl., pp. 104-105, Ex. C.) As a result, the stay of the Compel Order was
14 lifted on August 11th and Plaintiff’s responses were due “10 calendar days” later—or August 21,
15 2023.5 (Id., p. 104.)
16 D. Plaintiff’s Responses to Defendants’ Interrogatories Were Evasive
17 On August 21, 2023, Plaintiff served written responses to Defendants’ Discovery Requests
18 but produced no documents. (Kizer Decl., ¶¶ 17-20, pp. 117-158, Exs. D, E F.) On August 23,
19 2023, Defendants sent Plaintiff a detailed letter identifying deficiencies in many of Plaintiff’s
20 interrogatory responses and demanding compliance with the Court’s Order requiring her to
21 produce all documents, without objection. (Kizer Decl., ¶ 21, pp. 160-171, Ex. G.)
22 Plaintiff’s attorney responded to Defendants’ August 23 letter on August 30, 2023,
23 agreeing to provide a supplemental response to three interrogatories by September 1, 2023, but
24 otherwise declining to amend Plaintiff’s evasive interrogatory responses. (Kizer Decl., ¶ 25, pp.
25 178-180, Ex. I.) Despite that promise, Plaintiff has not supplemented any responses. (Id., ¶ 25.)
26
27 time period when Plaintiff swore she lacked legal representation. (See Kizer Decl., pp. 202-203, Ex. L.)
5
Defendants served a Notice of Entry of Order on August 16, 2023, reflecting the Court’s Compel Order.
28 (Kizer Decl., ¶ 15, p. 89, Ex. B.)
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 E. Plaintiff Has Failed to Complete Her Production.
2 On August 28, 2023, Plaintiff produced 18 documents in response to the Foundation’s
3 Document Requests, all but 13 pages of which were already in Defendants’ possession due to
4 having been filed in the Trust Action or this lawsuit.6 (Kizer Decl., ¶ 22.) Plaintiff did not produce
5 any ESI in native file format, even though the Foundation’s Request specified that ESI must be
6 produced in native file format. (Kizer Decl., ¶ 23, p. 16, Ex. A.)
7 On August 29, 2023, Defendants’ attorneys wrote to Plaintiff’s attorneys regarding her
8 deficient document production. (Kizer Decl., ¶ 24, pp. 173-176, Ex. H.) In particular, that letter
9 noted that Plaintiff failed to produce a single communication with her counsel about the press
10 releases that are at issue in this litigation. It is implausible that Plaintiff would have no such
11 communications. Nor did Plaintiff produce any communications with her counsel despite
12 identifying her former counsel, Dominic Campisi, as a person with knowledge of many issues in
13 response to interrogatories and despite identifying her current attorney, John Rueppel, as a person
14 with knowledge of information that supports Plaintiff’s allegation that “Plaintiff has been
15 damaged in an amount no less than $2,000,000.” (See id., p. 152, Ex. F, No. 4.) Defendants gave
16 Plaintiff until September 5, 2023, to comply with the Order and produce all responsive documents
17 without objection, or to certify under oath that she truly had no communications with her counsel
18 regarding the press releases that are the subject of this litigation.
19 Instead of producing all responsive documents, on September 5, 2023, Plaintiff’s attorney
20 requested an extension to September 29, 2023. (Kizer Decl., ¶ 26, p. 182, Ex. J.) Plaintiff’s
21 attorney provided no explanation or justification for Plaintiff’s failure to produce all responsive
22 documents by the Court-ordered deadline, and provided no justification for the extension, merely
23 stating “we are still working with our client to obtain email communications.” (Id.)
24 As it was unreasonable for Plaintiff not to have collected all email communications and
25 documents long before September 5—the documents were requested on April 5, and Plaintiff
26 knew as early as this Court’s July 14 ruling on Defendants’ Motion to Compel that she must
27
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28 The bulk of Plaintiff’s document production in this case, comprising 456 of the 481 pages, were filed in the
Trust Action. (See Kizer Decl., ¶ 22, pp. 5, 194-201, Ex. L.)
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 produce them—Defendants denied her extension request by letter dated September 6, 2023. (Kizer
2 Decl., ¶ 27, pp. 186-190, Ex. K.) Instead, Defendants demanded that Plaintiff produce all
3 responsive documents no later than September 11, 2023. (Id., p. 189, Ex. K.)
4 Plaintiff did not respond to Defendants’ September 6 letter and did not produce any
5 documents until after the close of business on September 12, when Plaintiff’s attorneys
6 transmitted printouts of two emails (not in native file format and without attachments referred to
7 therein) and declared that this “complete[d]” Plaintiff’s document production. (Kizer Decl., ¶ 28,
8 p. 193, Ex. L.) The production was facially incomplete, as it still did not include documents from
9 all custodians under Plaintiff’s custody and control, such as her current and former counsel, and
10 omitted relevant attachments. It also still did not contain ESI in native format.
11 One week later, on September 19, 2023, Plaintiff’s counsel wrote to Defendants’ counsel,
12 stating that Keith had only just then retained a third-party vendor to collect Plaintiff’s emails.
13 (Kizer Decl., ¶ 29, p. 207, Ex. M.) Plaintiff’s attorney wrote: “As of today, I do not have a set time
14 as to when the production will be completed,” only vaguely estimating that by “early to mid-
15 October” Plaintiff might provide the production. (Id.) Defendants’ counsel were shocked to learn
16 that, almost six months after their discovery requests were first propounded, Plaintiff had still not
17 yet even begun to collect responsive documents. (Id., ¶ 29.) Of course, this update even further
18 confirmed that Plaintiff’s attorney’s September 12 declaration that her document production was
19 “complete[]” was far from true. On September 20, 2023, Defendants’ counsel provided a detailed
20 response to this unexpected update, including a list of conditions under which Defendants would
21 accept yet another request for an extension on Plaintiff’s document production. (Id., ¶ 30, pp. 209-
22 210, Ex. N.) These conditions included Plaintiff’s basic obligations already ordered by this Court:
23 production of all sources of Plaintiff’s communications from all relevant custodians and from
24 every repository of documents, using targeted search terms, and including ESI in native format
25 with attachments. (Id.) Defendants stated: “Our last offer (which is yet another attempt at
26 resolution without recourse to the Court) is to allow you to begin production no later than
27 Tuesday, October 3, 2023, at 9:00 a.m. PT” and requested complete production by October 6. (Id.)
28 Plaintiff did not produce any documents by October 3, 2023, or by October 6. (Kizer Decl.,
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 ¶ 31.) Instead, Plaintiff’s counsel responded on October 3 and admitted that Plaintiff had thus far
2 identified over 1,600 emails responsive to Defendants’ requests but continued to refuse to produce
3 a single one. (Id., ¶ 31, p. 215, Ex. O.) This collection, however, was made only from Plaintiff’s
4 email accounts and not from other sources of records in Plaintiff’s custody or control, such as her
5 current and former counsel, despite the Court having deemed objections including attorney-client
6 privilege waived. (Id., p. 214.) Plaintiff’s counsel’s October 3 letter also asked for yet another
7 extension—this time, to October 15, 2023. (Id.) Yet, in their very same request, they went on to
8 represent that their review of the 1,600 or so emails “should [be] reviewed by October 20, 2023.”
9 (Id., p. 215 [emphasis added].)
10 In light of these inconsistent and unreliable requests and representations by Plaintiff’s
11 counsel, Defendants’ counsel sent one last exasperated request for Plaintiff to comply with the
12 Court’s order and produce responsive documents forthwith. (Id., ¶ 32, pp. 233-236, Ex. P.) As of
13 this motion’s filing, no additional documents have been produced—which has now precipitated
14 the instant request for sanctions. (Id., ¶ 33.)
15 III. RELEVANT LAW
16 Where, as here, a Court issues an order compelling responses and the responding party
17 “fails to obey the order compelling a response,” the Court may “make those orders that are just,
18 including the imposition of an issue sanction, an evidence sanction, or a terminating sanction
19 under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2031.300, subd. (c).)
20 For the Court to impose sanctions, “[o]nly two facts are absolutely prerequisite”: (1) “a failure to
21 comply”; and (2) “the failure must be wilful.” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525,
22 1545 [internal quotations and citations omitted].) Here, Plaintiff clearly failed to comply with this
23 Court’s Compel Order and that failure was unquestionably willful.
24 To be sure, the Court’s discretion to impose sanctions is broad (id.):
25 Evidence and Issue Sanctions. The Court “may impose an issue sanction ordering
26 that designated facts shall be taken as established” or “prohibiting any party engaging in the
27 misuse of the discovery process from supporting or opposing designated claims or defenses.”
28 (Code Civ. Proc., § 2023.030, subd. (b); see also Vallbona, supra, 43 Cal.App.4th at 1545
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CASE NO. 22CV001269
1 [imposing evidence and issue sanctions—including specially-tailored jury instruction—for willful
2 discovery violations, to prevent disadvantage to the requesting party].) Additionally, the “Court
3 may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the
4 discovery process from introducing designated matters in evidence.” (Code Civ. Proc.,
5 § 2023.030, subd. (c); see also R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th
6 486, 495 [describing remedies for persistent discovery abuses and affirming dismissal of
7 complaint “as a sanction for the repeated efforts of the plaintiffs to thwart discovery”].) Evidence
8 and issue sanctions are proper remedies for a pattern of noncompliance, including “discovery
9 responses that [are] both deceptive and dilatory.” (Karlsson v. Ford Motor Co. (2006) 140
10 Cal.App.4th 1202, 1209, 1214-20.) Evasive responses also warrant sanctions. (See Code Civ.
11 Proc., § 2023.010, subd. (f).)
12 Terminating Sanction. The Code of Civil Procedure also authorizes imposition of a
13 terminating sanction. (See Code Civ. Proc., § 2023.030, subd. (d).) “[W]here a violation is willful,
14 preceded by a history of abuse, and the evidence shows that less severe sanctions would not
15 produce compliance with the discovery rules, the superior court is justified imposing the ultimate
16 sanction” of terminating sanctions. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th
17 262, 279-280, disapproved on another ground by Mileikowsky v. West Hills Hosp. & Med. Center
18 (2009) 45 Cal.App.4th 1259, 1273.)
19 The Court’s authority is equally important as it relates to monetary sanctions. “The court
20 may impose a monetary sanction ordering that one engaging in the misuse of the discovery
21 process, or any attorney advising that conduct, or both pay the reasonable expenses, including
22 attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030,
23 subd. (a) [emphasis added].) Indeed, the Court must impose a monetary sanction “unless it finds
24 that the one subject to the sanction acted with substantial justification or that other circumstances
25 make the imposition of the sanction unjust.” (Id. [emphasis added]; see also Sinaiko Healthcare
26 Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 [explaining
27 Court’s authority to impose monetary sanctions].)
28
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DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 IV. ARGUMENT
2 Despite months of Defendants’ good-faith efforts and the Court’s Compel Order, Plaintiff
3 and her counsel continue to disregard their obligations. No amount of meeting and conferring or
4 additional extension deadlines have been effective—and there are no remaining less severe
5 alternatives. As set forth below, sanctions (issue, evidence, terminating, and monetary) are the
6 only fair and appropriate remedy for the discovery abuse by Plaintiff and her attorneys.
7 A. Plaintiff’s Continuing Failure to Produce Documents Warrants Sanctions
8 1. Plaintiff is withholding documents.
9 To date, Plaintiff has produced a mere 20 documents (see Kizer Decl., ¶¶ 22, 28, pp. 194-
10 204, Ex. L),7 all but 13 pages of which are simply recycled from earlier in this matter or from the
11 Trust Action. Moreover, Plaintiff’s attorney concedes she continues to withhold documents. (See
12 Kizer Decl., p. 215, Ex. O [Rueppel letter describing search that “has identified approximately
13 1,624 emails” which they “should” have “reviewed by October 20, 2023”].) Her attorney’s
14 admission also now reveals that Plaintiff has not even searched all appropriate custodians and
15 repositories for all responsive materials—despite Defendants having served their requests over six
16 months ago. (Id., p. 214 [admitting search conducted only in Plaintiff’s two email accounts and
17 not her attorneys’ or other agents’ documents and emails].)
18 Even without their admission to withholding documents, Plaintiff’s misconduct is evident
19 from the few documents that she and her attorneys did produce and from her interrogatory
20 responses:
21 First, the Foundation’s document requests sought “all communications” regarding
22 Defendants and the press releases. (Kizer Decl., p. 120, Ex. D, Nos. 4, 5.) Yet Plaintiff produced
23 only one email exchange with her counsel (notwithstanding the Compel Order declaring Plaintiff’s
24 waiver of the attorney-client privilege and work product protection). (See id., p. 97, Ex. B.) It is
25 inconceivable that Plaintiff and her attorneys have not communicated through more than one email
26 regarding Defendants or the press releases that are at the center of Plaintiff’s allegations—and,
27
7
28 Despite the Court’s Compel Order giving Plaintiff ten calendar days—or until August 21st—to comply,
Plaintiff did not produce any documents until August 28, 2023. (See Kizer Decl., ¶ 22; see also, supra, Section II.E.)
-13-
DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 importantly, Plaintiff’s counsel have never denied there are no additional responsive records.8
2 Second, Plaintiff also stated in response to an interrogatory that she learned of the press
3 releases through a Google “alert” she set up for her name—but Plaintiff and her attorneys have not
4 produced a single document evidencing any Google alert or any records about such phantom
5 alerts. (See Kizer Decl., p. 143, Ex. E, No. 24.)
6 Third, Defendant requested: “All DOCUMENTS REGARDING YOUR allegation in the
7 FAC that ‘[a]s a direct and proximate result of Defendants’ breach of the Agreement, Plaintiff was
8 publicly cast in a negative light as an unreasonably litigious plaintiff with frivolous claims,
9 damaging her personal and professional reputation.’” (Kizer Decl., p. 126, Ex. D, No. 30.) The
10 only documents Plaintiff produced in response consisted of the press releases (see id., ¶ 22, p. 199
11 [production log], Ex. L), which are not responsive to the request as they plainly do not show any
12 damage to her “personal and professional reputation.”
13 Plaintiff’s and her attorney’s withholding of documents violates the Code, the Court’s
14 Compel Order, and any reasonable norm of discovery practice. Their effort to thwart discovery is
15 severe misconduct that warrants severe sanction. (See Karlsson, supra, 140 Cal.App.4th at 1209,
16 1214-20; R.S. Creative, Inc., supra, 75 Cal.App.4th at 495 [dismissing complaint “as a sanction
17 for the repeated efforts of the plaintiffs to thwart discovery”].)
18 2. Plaintiff and her counsel have not performed an adequate document
collection and have misrepresented their efforts.
19
20 At a minimum, Plaintiff and her attorneys have willfully avoided conducting a minimally
21 sufficient search, and their representations about the nature of their efforts are questionable at best,
22 particularly in light of their well-documented, multiple instances of falsehoods. For example, until
23 mid-September—or about five months after discovery was first propounded—Plaintiff’s attorneys
24
8
25 The sole email Plaintiff has produced proves this point. The email (a June 26, 2023, message from
Plaintiff’s attorneys to Plaintiff) included multiple attachments of draft discovery responses—yet, Plaintiff has not
26 produced the attachments. (See Kizer Decl., p. 203, Ex. L.) Plaintiff presumably returned those draft discovery
responses to her attorneys after revising them as instructed, but she produced no email transmitting them and did not
27 produce the revised drafts. The email contains additional clues of other communications—[1] Plaintiff states in the
email exchange that she “provided this info earlier” to her lawyers; and [2] Plaintiff states that she “need[s] more time
28 to fine” other information for her lawyers. (Id., p. 202, Ex. L) Despite obvious evidence of communications, Plaintiff
and her lawyers have not produced anything else.
-14-
DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 did not retain an independent document collection vendor to undertake a professional, objective
2 collection, as did Defendants. (See Kizer Decl., ¶ 3.) Instead, they relied on Plaintiff alone to
3 handpick the documents she has chosen to produce, resulting in responsive documents not being
4 produced and even resulting in Plaintiff committing perjury in her verification. This is objectively
5 unacceptable. (See, e.g., National Day Laborer Org. Network v. U.S. Immigration and Customs
6 Enf’t Agency (2012) 877 F.Supp.2d 87, 108 [emphasizing that non-lawyer record custodians
7 “cannot be trusted to run effective searches” for responsive documents]; Bratka v. Anheuser-Busch
8 Co., Inc. (1995) 164 F.R.D. 448, 463 [“Parties cannot be permitted to jeopardize the integrity of
9 the discovery process by engaging in halfhearted and ineffective efforts to identify and produce
10 relevant documents.”]; see also Formal Opinion 2015-193, State Bar of California Committee on
11 Professional Responsibility and Conduct [requiring that attorneys handling e-Discovery
12 implement ESI preservation, analyze and understand a client’s ESI systems and storage, collect
13 responsive ESI in a manner that preserve the integrity of that ESI, and produce responsive ESI in a
14 recognized and appropriate matter].)
15 Representations by Plaintiff’s counsel have only underscored the problems here. On
16 September 12th, Plaintiff’s counsel represented to Defendants that her document production was
17 “complete[],” which was before Keith’s email accounts had even been searched. (Compare Kizer
18 Decl., ¶ 28, p. 193, Ex. L [September 12 production “completes” Plaintiff’s response] with id.,
19 p. 207, Ex. M [stating on September 19 that Plaintiff “has retained a professional e-discovery
20 company to retrieve e-mail communications”].) And in subsequent meet-and-confer
21 correspondence, Plaintiff’s counsel finally revealed that, in fact, they have at least 1,600 additional
22 documents—but they have not produced even a single page of them. (See Kizer Decl., ¶¶ 31-33,
23 p. 215, Ex. O.) Given their record in this matter of misrepresentations, neither Plaintiff nor her
24 counsel can be relied upon to make a complete production of documents, without objection.
25 3. The Court should impose sanctions.
26 Plaintiff’s misconduct meets the two prerequisites for the imposition of sanctions: Plaintiff
27 has failed to comply with this Court’s Compel Order, and that failure has been willful. (See
28 Vallbona, supra, 43 Cal.App.4th at 1545.) And, to be sure, these sanctions are appropriate
-15-
DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 regardless of whether Plaintiff makes a belated production of documents as a cynical end-run
2 attempt around this motion. (See, e.g., Sauer v. Superior Ct. (1987) 195 Cal.App.3d 213, 230
3 [citations omitted] [“Belated compliance with discovery orders does not preclude the imposition
4 of sanctions. Last-minute tender of documents does not cure the prejudice to opponents nor does it
5 restore to other litigants on a crowded docket the opportunity to use the courts.”])
6 Terminating Sanctions. The Court has broad discretion to order terminating
7 sanctions due to Plaintiff’s misconduct, because her violations are willful, preceded by a history of
8 abuse, and show that less severe sanctions will not produce compliance with discovery rules. (See
9 Code Civ. Proc., § 2023.030, subd. (d); see also Mileikowsky, supra, 128 Cal.App.4th at 279-280
10 [holding that “the superior court is justified in imposing the ultimate sanction” of terminating
11 sanctions under those conditions].) Defendants respectfully request imposition of terminating
12 sanctions here in light of the habitual misconduct, existing misconduct, and length of misconduct.
13 (See R.S. Creative, Inc., supra, 75 Cal.App.4th at 495 [affirming dismissal of complaint “as a
14 sanction for the repeated efforts of the plaintiffs to thwart discovery”].)
15 Evidence and Issue Sanctions. If the Court does not impose terminating sanctions,
16 then it should “impose an evidence sanction by an order prohibiting [the] party engaging in the
17 misuse of the discovery process from introducing designated matters into evidence.” (Code Civ.
18 Proc., § 2023.030, subd. (c).) Here, the Court should impose evidence sanctions in the form of a
19 prohibition from the introduction into evidence (whether in opposition to a motion for summary
20 judgment or at trial) of any document that Plaintiff should have produced by August 21.
21 Additionally, the Court should order: [1] an under-oath declaration from each of Plaintiff
22 and her counsel stating their collection efforts as to all responsive documents without objection,
23 including communications between attorney and client; [2] an under-oath declaration from each of
24 Plaintiff and her counsel identifying all search terms utilized, as well as all devices, accounts, and
25 repositories searched; [3] production of ESI in native format; and [4] production of all attachments
26 to responsive emails including those attachments to emails previously produced. These conditions
27 are necessitated by Plaintiff and her counsel’s dilatory conduct and, without them, the Court and
28 Defendants cannot rely upon the fidelity of any future production Plaintiff makes in this case.
-16-
DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH
CASE NO. 22CV001269
1 B. Plaintiff’s Non-Compliant Interrogatory Responses Warrant Sanction
2 Defendants’ interrogatories sought, among other things, facts supporting many allegations
3 Plaintiff made in her First Amended Complaint and statements she made in response to
4 Defendants’ demurrer. (See Kizer Decl., pp. 134-145, 150-153, Exs. E, F.) In response to many of
5 the interrogatories, Plaintiff did not provide any facts. Instead, she stated what are plainly opinions
6 and speculations. (See Kizer Decl., pp. 162-170, Ex. G, Response to SROG Nos. 1-4, 28, 29, 30.)
7 Additionally, in response to many interrogatories, Plaintiff provided responses to different
8 questions than those posed. Defendants’ meet-and-confer letter detailed these evasive responses at
9 length. (See Ex. G, pp. 162-170, Response to SROG Nos. 6, 7, 8, 10, 17, 28, 33.) For example,
10 interrogatory No. 33 asked Plaintiff: “If you contend the non-disparagement provision prohibits
11 ‘false and misleading information’ as stated in the FAC, state all facts that support that
12 contention.” In response, Plaintiff listed statements in the press releases she contends were false
13 and misleading—which clearly does not answer the question posed. (Kizer Decl., p. 144.)
14 Plaintiff’s responses to several of Dr. White’s special interrogatories were likewise evasive, as
15 detailed in Defendants’ meet-and-confer letter.9 (See Kizer Decl., pp. 168-170, Ex. G.)
16 An appropriate sanction for Plaintiff’s evasive responses to Defendants’ interrogatories is
17 for the Court to prohibit Plaintiff from presenting any evidence or testimon
Preview
1 JEFFREY E. TSAI (SBN 226081) jeff.tsai@us.dlapiper.com 2 KATHLEEN S. KIZER (SBN 246035) kathy.kizer@us.dlapiper.com 3 EMILY ROSE MARGOLIS (SBN 324089) 4 emily.margolis@us.dlapiper.com DLA PIPER LLP (US) 5 555 Mission Street, Suite 2400 San Francisco, California 94105-2933 6 Tel: 415.836.2500 | Fax: 415.836.2501 7 Attorneys for Defendants 8 CELESTE WHITE, DR. ROBERT WHITE, and THE VALLEY ROCK FOUNDATION 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF NAPA 12 13 LISA KEITH, an individual, CASE NO. 22CV001269 14 Plaintiff, MEMORANDUM OF POINTS AND 15 AUTHORITIES IN SUPPORT OF v. DEFENDANTS VALLEY ROCK 16 CELESTE WHITE, an individual, ROBERT FOUNDATION’S AND DR. ROBERT WHITE’S MOTION FOR ISSUE, EVIDENCE, 17 WHITE, an individual, the VALLEY ROCK AND/OR TERMINATING SANCTIONS FOUNDATION, aka THE BAR 49 AGAINST PLAINTIFF LISA KEITH FOR 18 FOUNDATION, a charitable organization, VIOLATING COURT ORDER COMPELLING and DOES 1-50, INCLUSIVE, RESPONSES TO DISCOVERY 19 Defendants. Date: November 7, 2023 20 Time: 8:30 a.m. Judge: Scott R.L. Young 21 Dept.: B Complaint Filed: October 25, 2022 22 Trial Date: Not Set 23 24 25 26 27 28 -1- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION .............................................................................................................. 4 4 II. FACTUAL AND PROCEDURAL BACKGROUND ....................................................... 4 5 A. Plaintiff’s Prior Lawsuit and this Lawsuit.............................................................. 4 6 1. Plaintiff’s petitions in the Trust Action ...................................................... 5 7 2. Because of negative publicity in the Trust Action, the Whites included a non-disparagement provision in the Settlement 8 Agreement. ................................................................................................. 5 9 3. Plaintiff’s claims in this lawsuit ................................................................. 6 10 B. Despite Two Extensions, Plaintiff Did Not Respond to Discovery Requests ........ 6 11 C. This Court Ordered Plaintiff to Provide Responses Without Objection. ............... 7 12 D. Plaintiff’s Responses to Defendants’ Interrogatories Were Evasive...................... 8 13 E. Plaintiff Has Failed to Complete Her Production. ................................................. 9 14 III. RELEVANT LAW ........................................................................................................... 11 15 IV. ARGUMENT ................................................................................................................... 13 16 A. Plaintiff’s Continuing Failure to Produce Documents Warrants Sanctions ......... 13 17 1. Plaintiff is withholding documents. ......................................................... 13 18 2. Plaintiff and her counsel have not performed an adequate document 19 collection and have misrepresented their efforts. ..................................... 14 3. The Court should impose sanctions. ........................................................ 15 20 B. Plaintiff’s Non-Compliant Interrogatory Responses Warrant Sanction ............... 17 21 C. Monetary Sanctions Are Also Warranted. ........................................................... 17 22 V. CONCLUSION ................................................................................................................ 18 23 24 25 26 27 28 -2- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 TABLE OF AUTHORITIES Page(s) 2 Cases 3 Bratka v. Anheuser-Busch Co., Inc. 4 (1995) 164 F.R.D. 448 ............................................................................................................ 15 5 Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202 ............................................................................................ 12, 14 6 Mileikowsky v. Tenet Healthsystem 7 (2005) 128 Cal.App.4th 262 .............................................................................................. 12, 16 8 National Day Laborer Org. Network v. U.S. Immigration and Customs Enf’t Agency (2012) 877 F.Supp.2d 87 ......................................................................................................... 15 9 10 R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486 .......................................................................................... 12, 14, 16 11 Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants 12 (2007) 148 Cal.App.4th 390 .............................................................................................. 12, 18 13 Vallbona v. Springer (1996) 43 Cal.App.4th 1525 .............................................................................................. 11, 15 14 15 Statutes 16 Code Civ. Proc., § 284 .................................................................................................................... 7 17 Code Civ. Proc., § 2023.010, subd. (f) .......................................................................................... 11 18 Code Civ. Proc., § 2023.030, subd. (a) ................................................................................... 12, 17 19 Code Civ. Proc., § 2023.030, subd. (b) ......................................................................................... 11 20 Code Civ. Proc., § 2023.030, subd. (c) ................................................................................... 12, 16 21 Code Civ. Proc., § 2023.030, subd. (d) ................................................................................... 12, 16 22 Code Civ. Proc., § 2031.300, subd. (c) ......................................................................................... 12 23 24 25 26 27 28 -3- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 I. INTRODUCTION 2 Due to continuing discovery misconduct by Plaintiff Lisa Keith and her attorneys since this 3 Court’s Order (signed on August 11, 2023) compelling discovery responses and documents, 4 additional—and more severe—sanctions by this Court are warranted and necessary. 5 Today, nearly two months after this Court’s Order and over six months after discovery 6 requests were initially propounded, Plaintiff has still failed to produce to Defendants all 7 responsive documents, including any attorney-client and work-product documents for which 8 privilege was waived, by August 21, 2023, or provide proper responses. Instead, Plaintiff has 9 produced a mere 20 documents (all but 17 pages of which were already in Defendants’ 10 possession). And, by their own admission, they are currently withholding documents and— 11 making things worse—they have not performed even a minimally sufficient document-collection 12 effort. Their interrogatory responses fare no better; for many, she does not even bother to pretend 13 to provide any facts at all in response. 14 Based on their discovery conduct to date, Plaintiff and her counsel are plainly attempting 15 to use discovery as a “lie in wait” tool to prevent Defendants from investigating the evidence and 16 testing her allegations. Defendants have suffered significant prejudice in moving forward in this 17 litigation—along with the additional collateral expense associated with attempting to bring 18 Plaintiff and her counsel into compliance. Sanctions—issue, evidence, terminating, and 19 monetary—are appropriate here, and the Court should act to both vindicate the authority of its 20 August 11th Order and to address the prejudice that Defendants have suffered. 21 II. FACTUAL AND PROCEDURAL BACKGROUND 22 A. Plaintiff’s Prior Lawsuit and the Latest Lawsuit 23 Plaintiff Lisa Keith brought this lawsuit against her sister, Celeste White, her husband Dr. 24 Robert White, and the Napa-based foundation they run, the Valley Rock Foundation 25 (“Foundation”), based on a non-disparagement provision in a settlement agreement that settled 26 another lawsuit in this Court also filed by Keith against Defendants (“Trust Action”). The Trust 27 Action concerned the estate of Celeste White’s and Plaintiff’s late father, Ed Keith, who died in 28 2006. Celeste and her brother, Richard Keith, were named trustees of the estate. (Declaration of -4- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 Kathleen Kizer [“Kizer Decl.”], pp. 240-241, Ex. Q [White Decl.], ¶¶ 5-6.) 2 1. Plaintiff’s petitions in the Trust Action. 3 In 2016, Plaintiff filed a petition in this Court demanding an accounting from Celeste 4 White of the then 10-year-old estate. In 2017, Plaintiff filed an amended petition that was 5 significantly broader and challenged Celeste White’s management of both the estate and the 6 Foundation. The Court granted a motion to strike Plaintiff’s allegations with respect to the 7 Foundation, finding Plaintiff lacked standing. Plaintiff filed a second amended petition, and the 8 Court again struck Plaintiff’s allegations regarding the Foundation on standing grounds. (Kizer 9 Decl., p. 241, Ex. Q [White Decl.], ¶¶ 7-8.) 10 In response to Plaintiff’s petitions, Celeste White filed multiple accountings with the 11 Court. The passage of time and loss of accounting records (due in part to the closure of a bank and 12 a wildfire that destroyed the Whites’ home) made it impossible to provide a complete accounting. 13 (Kizer Decl., p. 242, Ex. Q [White Decl.], ¶¶ 12-14.) In 2020, the parties settled the Trust Action. 14 2. Because of negative publicity in the Trust Action, the Whites included a 15 non-disparagement provision in the Settlement Agreement. 16 During the Trust Action, the Napa Valley Register published an article that included 17 quotes from Plaintiff’s attorney, Dominic Campisi, now of the Johnston, Kinney & Zulaica firm, 18 and cast Defendants in a harsh light. The article and Campisi’s comments caused concern to the 19 Whites because any impairment of their reputations could impact their ability to continue their 20 charitable fundraising work. Thus, due to that article and the desire to prevent further negative 21 publicity about them, the Whites included in the settlement agreement a non-disparagement 22 provision that prohibits any statement “that might reasonably be construed to be derogatory or 23 critical of, or negative toward” a party to the Trust Action.1 (Kizer Decl., pp. 241-244, Ex. Q 24 1 25 In responding to Defendants’ demurrer, Plaintiff falsely proclaimed that she was responsible for including the non-disparagement provision in the settlement agreement. But, in response to Interrogatory No. 6 (requesting “All 26 facts supporting YOUR assertion in paragraph 3 of YOUR Opposition to Defendants’ Demurrer that ‘Plaintiff took special care to demand the inclusion of the Non-Disparagement Provision as a material term in the Settlement 27 Agreement in exchange for her voluntarily releasing her claims against Defendants.’”), Plaintiff admitted her demurrer representation was false. Plaintiff’s response stated: “Since there was already media publicity from Napa 28 Valley Register that was negative to Celeste and Robert, they insisted upon inserting the non-disparagement clauses and were adamant that it had to be included in the settlement agreement. Since Defendants pursued and plead that -5- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 [White Decl.], ¶¶ 11, 17-22.) 2 The Foundation and the Whites issued two nearly identical press releases, in March 2021 3 and August 2021, that were intended to supplant, in internet search results, the negative aspersions 4 cast by the Napa Valley Register article.2 The press releases announced the resolution of the Trust 5 Action and reported briefly on what transpired in that lawsuit. The Whites did not publish the 6 press releases to disparage Plaintiff. (Kizer Decl., p. 244, Ex. Q [White Decl.], ¶ 23.) Plaintiff is 7 barely mentioned in them and only in factually accurate statements. 8 3. Plaintiff’s claims in this lawsuit. 9 Plaintiff alleges Defendants breached the settlement agreement when they issued the press 10 releases. She asserts a claim for breach of contract, a wholly duplicative claim for breach of the 11 covenant of good faith and fair dealing, and a claim for intentional misrepresentation that alleges 12 Defendants entered into the settlement agreement and agreed to the non-disparagement provision 13 while secretly intending to disparage Plaintiff. She seeks more than $2 million in damages. 14 B. Despite Two Extensions, Plaintiff Did Not Respond to Discovery Requests 15 On April 5, 2023, the Foundation served on Plaintiff (1) Request for Production of 16 Documents, (2) Special Interrogatories, (3) Requests for Admission, and (4) Form 17 Interrogatories—General; and Dr. White served (5) Special Interrogatories on Keith. (Kizer Decl., 18 ¶ 4, pp. 11-12, 15-60.) The Foundation’s Request for Production of Documents required 19 20 there was to be a non-disparagement clause, Plaintiff was led to believe that the Defendants had no intention of 21 violating the agreement. Plaintiff actually never thought the Defendants would go to the press with any information about the settlement because Defendants had never hired a PR agent before.” (Kizer Decl., p. 153, Ex. F, No. 6 22 [emphasis added].) This is one of many examples of Plaintiff’s misrepresentations of facts in a court filing. 2 Despite her false allegation that Defendants intended the press releases to disparage her, Plaintiff admitted 23 in discovery that the sole purpose of the press releases was to repair any damage to the Whites’ reputations caused by the Napa Valley Register article. Specifically, Plaintiff was asked in Special Interrogatory No. 9 to “State all facts 24 supporting your assertion in paragraph 14 of your Opposition to Defendants’ Demurrer that “it is reasonable to infer that Defendants meant the article to reflect negatively upon Plaintiff.” Her response stated: “When the settlement 25 agreement was being negotiated, concerns were explicitly raised that negative publicity could harm the reputations of the parties. Defendants’ release of the PRESS RELEASES were titled as ‘Celeste K. White Prevails in Estate Case of 26 Late Father Prominent Napa Valley Businessman Ed Keith. Judge declares White’s accounting and investments of the proceeds of Ed Keith’s estate were entirely proper; final order issued in case in favor of Celeste K. White.’ The 27 Defendant then stated in the first paragraph of her press release that the judge ruled she had acted entirely properly. Defendant lied. Additionally, she stated that the court sided completely with her.” (Kizer Decl., p. 154, Ex. F, No. 9.) 28 Plaintiff identified no facts supporting her allegation that Defendants intended to disparage her. Nonetheless, she persists with this lawsuit and claims she suffered damages of $2 million. -6- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 electronically stored information (“ESI”) to be produced in native file format. (Id., p. 16.) 2 Plaintiff’s deadline to respond and produce all responsive documents was initially May 9, 3 2023. But on May 4, 2023, Plaintiff’s attorney requested an extension for her responses. 4 Defendants granted a 30-day extension to June 8, 2023. (Kizer Decl., ¶ 7.) Instead of serving 5 responses and producing documents, however, on June 8 Plaintiff requested another 30-day 6 extension. Defendants inquired as to the reason for the delay; receiving no explanation, 7 Defendants granted another one-week extension to June 15, 2023. (Id., ¶ 8.) But Plaintiff again 8 did not provide written discovery responses or produce documents by June 15, 2023.3 (Id., ¶ 10.) 9 C. This Court Ordered Plaintiff to Provide Responses Without Objection 10 Having exhausted all alternative measures, Defendants moved on June 21, 2023, to compel 11 responses from Plaintiff. (Kizer Decl., ¶ 13.) On July 14, 2023, the Court granted Defendants’ 12 motion in part and ruled, inter alia, that Plaintiff “[b]y operation of law . . . by failing to serve 13 timely responses, waived any objection to the requests for production of documents” and “[b]y 14 failing to timely serve interrogatory responses, Plaintiff . . . has waived any objection to the 15 interrogatories.” (Kizer Decl., ¶¶ 13, 15, p. 97, Ex. B.) (This order is hereinafter referred to as 16 “Compel Order.”) Moreover, the Court found that “[n]o grounds appear to justify Plaintiff’s 17 failure to respond to the Subject Discovery, and no circumstances make the imposition of the 18 sanction unjust,” so the Court imposed a monetary sanction. (Id., p. 97, Ex. B.) 19 During the pendency of Defendants’ Motion to Compel Responses, Plaintiff filed what she 20 called a Motion for Order Relieving Responding Party from Waiver of Objections (“Waiver Relief 21 Motion”) on July 10, 2023, that was scheduled to be heard after the hearing on the Motion to 22 Compel Responses. In her supporting declaration, Plaintiff declared under penalty of perjury that 23 she was unrepresented by counsel from June 8th to June 28th.4 (See Kizer Decl., p. 297, Ex. R 24 3 25 Instead of responding to Defendants’ discovery, Plaintiff mailed (notwithstanding the parties’ agreement to serve all documents electronically) to Defendants a Substitution of Attorney that purported to substitute Keith, in 26 propria persona, in place of the Johnston Kinney firm. (Kizer Decl., ¶ 11.) The Substitution of Attorney was defective because it was not signed by Plaintiff per Code of Civil Procedure section 284. (See id., ¶¶ 11-12.) In response, 27 Defendants’ attorneys wrote to Plaintiff’s attorneys about the defective Substitution of Attorney and requested a fully signed Substitution of Attorney. Defendants never received a response to that letter. (Id., ¶ 12.) 4 28 This under-oath declaration has now been contradicted by an email Keith produced on September 12, 2023, which shows that Plaintiff’s attorneys emailed draft discovery responses to Plaintiff on June 26—precisely within the -7- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 [Keith Decl.], ¶¶ 2, 4 [Plaintiff declaring that, “[a]s of June 8, 2023, Johnston, Kinney & Zulaica 2 LLP did not formally represent [Plaintiff] and we were in the process of completing a substitution 3 of attorney” and “[o]n June 28, 2023, [Plaintiff] re-engaged with Johnston, Kinney & Zulaica LLP 4 and they agreed to continue [her] representation”].) Her attorneys repeated this claim. (See Kizer 5 Decl., p. 300, Ex. S [Lam Decl.], ¶¶ 9-10.) 6 Based on the pending Waiver Relief Motion, the Court’s July 14th ruling stayed the 7 Compel Order until the Waiver Relief Motion’s resolution: 8 Plaintiff is directed to serve, no later than 10 calendar days after lifting of the stay of the present ruling, code-compliant responses, without objection (unless 9 otherwise ordered), to Defendants’ Request for Production of Documents – Set One, Special Interrogatories – Set One, and Form Interrogatories – Set One.” 10 11 (Kizer Decl., p. 96, Ex. B [emphasis added].) 12 On August 11, 2023, the Court denied the Waiver Relief Motion and did not alter its 13 Compel Order. (Kizer Decl., pp. 104-105, Ex. C.) As a result, the stay of the Compel Order was 14 lifted on August 11th and Plaintiff’s responses were due “10 calendar days” later—or August 21, 15 2023.5 (Id., p. 104.) 16 D. Plaintiff’s Responses to Defendants’ Interrogatories Were Evasive 17 On August 21, 2023, Plaintiff served written responses to Defendants’ Discovery Requests 18 but produced no documents. (Kizer Decl., ¶¶ 17-20, pp. 117-158, Exs. D, E F.) On August 23, 19 2023, Defendants sent Plaintiff a detailed letter identifying deficiencies in many of Plaintiff’s 20 interrogatory responses and demanding compliance with the Court’s Order requiring her to 21 produce all documents, without objection. (Kizer Decl., ¶ 21, pp. 160-171, Ex. G.) 22 Plaintiff’s attorney responded to Defendants’ August 23 letter on August 30, 2023, 23 agreeing to provide a supplemental response to three interrogatories by September 1, 2023, but 24 otherwise declining to amend Plaintiff’s evasive interrogatory responses. (Kizer Decl., ¶ 25, pp. 25 178-180, Ex. I.) Despite that promise, Plaintiff has not supplemented any responses. (Id., ¶ 25.) 26 27 time period when Plaintiff swore she lacked legal representation. (See Kizer Decl., pp. 202-203, Ex. L.) 5 Defendants served a Notice of Entry of Order on August 16, 2023, reflecting the Court’s Compel Order. 28 (Kizer Decl., ¶ 15, p. 89, Ex. B.) -8- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 E. Plaintiff Has Failed to Complete Her Production. 2 On August 28, 2023, Plaintiff produced 18 documents in response to the Foundation’s 3 Document Requests, all but 13 pages of which were already in Defendants’ possession due to 4 having been filed in the Trust Action or this lawsuit.6 (Kizer Decl., ¶ 22.) Plaintiff did not produce 5 any ESI in native file format, even though the Foundation’s Request specified that ESI must be 6 produced in native file format. (Kizer Decl., ¶ 23, p. 16, Ex. A.) 7 On August 29, 2023, Defendants’ attorneys wrote to Plaintiff’s attorneys regarding her 8 deficient document production. (Kizer Decl., ¶ 24, pp. 173-176, Ex. H.) In particular, that letter 9 noted that Plaintiff failed to produce a single communication with her counsel about the press 10 releases that are at issue in this litigation. It is implausible that Plaintiff would have no such 11 communications. Nor did Plaintiff produce any communications with her counsel despite 12 identifying her former counsel, Dominic Campisi, as a person with knowledge of many issues in 13 response to interrogatories and despite identifying her current attorney, John Rueppel, as a person 14 with knowledge of information that supports Plaintiff’s allegation that “Plaintiff has been 15 damaged in an amount no less than $2,000,000.” (See id., p. 152, Ex. F, No. 4.) Defendants gave 16 Plaintiff until September 5, 2023, to comply with the Order and produce all responsive documents 17 without objection, or to certify under oath that she truly had no communications with her counsel 18 regarding the press releases that are the subject of this litigation. 19 Instead of producing all responsive documents, on September 5, 2023, Plaintiff’s attorney 20 requested an extension to September 29, 2023. (Kizer Decl., ¶ 26, p. 182, Ex. J.) Plaintiff’s 21 attorney provided no explanation or justification for Plaintiff’s failure to produce all responsive 22 documents by the Court-ordered deadline, and provided no justification for the extension, merely 23 stating “we are still working with our client to obtain email communications.” (Id.) 24 As it was unreasonable for Plaintiff not to have collected all email communications and 25 documents long before September 5—the documents were requested on April 5, and Plaintiff 26 knew as early as this Court’s July 14 ruling on Defendants’ Motion to Compel that she must 27 6 28 The bulk of Plaintiff’s document production in this case, comprising 456 of the 481 pages, were filed in the Trust Action. (See Kizer Decl., ¶ 22, pp. 5, 194-201, Ex. L.) -9- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 produce them—Defendants denied her extension request by letter dated September 6, 2023. (Kizer 2 Decl., ¶ 27, pp. 186-190, Ex. K.) Instead, Defendants demanded that Plaintiff produce all 3 responsive documents no later than September 11, 2023. (Id., p. 189, Ex. K.) 4 Plaintiff did not respond to Defendants’ September 6 letter and did not produce any 5 documents until after the close of business on September 12, when Plaintiff’s attorneys 6 transmitted printouts of two emails (not in native file format and without attachments referred to 7 therein) and declared that this “complete[d]” Plaintiff’s document production. (Kizer Decl., ¶ 28, 8 p. 193, Ex. L.) The production was facially incomplete, as it still did not include documents from 9 all custodians under Plaintiff’s custody and control, such as her current and former counsel, and 10 omitted relevant attachments. It also still did not contain ESI in native format. 11 One week later, on September 19, 2023, Plaintiff’s counsel wrote to Defendants’ counsel, 12 stating that Keith had only just then retained a third-party vendor to collect Plaintiff’s emails. 13 (Kizer Decl., ¶ 29, p. 207, Ex. M.) Plaintiff’s attorney wrote: “As of today, I do not have a set time 14 as to when the production will be completed,” only vaguely estimating that by “early to mid- 15 October” Plaintiff might provide the production. (Id.) Defendants’ counsel were shocked to learn 16 that, almost six months after their discovery requests were first propounded, Plaintiff had still not 17 yet even begun to collect responsive documents. (Id., ¶ 29.) Of course, this update even further 18 confirmed that Plaintiff’s attorney’s September 12 declaration that her document production was 19 “complete[]” was far from true. On September 20, 2023, Defendants’ counsel provided a detailed 20 response to this unexpected update, including a list of conditions under which Defendants would 21 accept yet another request for an extension on Plaintiff’s document production. (Id., ¶ 30, pp. 209- 22 210, Ex. N.) These conditions included Plaintiff’s basic obligations already ordered by this Court: 23 production of all sources of Plaintiff’s communications from all relevant custodians and from 24 every repository of documents, using targeted search terms, and including ESI in native format 25 with attachments. (Id.) Defendants stated: “Our last offer (which is yet another attempt at 26 resolution without recourse to the Court) is to allow you to begin production no later than 27 Tuesday, October 3, 2023, at 9:00 a.m. PT” and requested complete production by October 6. (Id.) 28 Plaintiff did not produce any documents by October 3, 2023, or by October 6. (Kizer Decl., -10- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 ¶ 31.) Instead, Plaintiff’s counsel responded on October 3 and admitted that Plaintiff had thus far 2 identified over 1,600 emails responsive to Defendants’ requests but continued to refuse to produce 3 a single one. (Id., ¶ 31, p. 215, Ex. O.) This collection, however, was made only from Plaintiff’s 4 email accounts and not from other sources of records in Plaintiff’s custody or control, such as her 5 current and former counsel, despite the Court having deemed objections including attorney-client 6 privilege waived. (Id., p. 214.) Plaintiff’s counsel’s October 3 letter also asked for yet another 7 extension—this time, to October 15, 2023. (Id.) Yet, in their very same request, they went on to 8 represent that their review of the 1,600 or so emails “should [be] reviewed by October 20, 2023.” 9 (Id., p. 215 [emphasis added].) 10 In light of these inconsistent and unreliable requests and representations by Plaintiff’s 11 counsel, Defendants’ counsel sent one last exasperated request for Plaintiff to comply with the 12 Court’s order and produce responsive documents forthwith. (Id., ¶ 32, pp. 233-236, Ex. P.) As of 13 this motion’s filing, no additional documents have been produced—which has now precipitated 14 the instant request for sanctions. (Id., ¶ 33.) 15 III. RELEVANT LAW 16 Where, as here, a Court issues an order compelling responses and the responding party 17 “fails to obey the order compelling a response,” the Court may “make those orders that are just, 18 including the imposition of an issue sanction, an evidence sanction, or a terminating sanction 19 under Chapter 7 (commencing with Section 2023.010).” (Code Civ. Proc., § 2031.300, subd. (c).) 20 For the Court to impose sanctions, “[o]nly two facts are absolutely prerequisite”: (1) “a failure to 21 comply”; and (2) “the failure must be wilful.” (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 22 1545 [internal quotations and citations omitted].) Here, Plaintiff clearly failed to comply with this 23 Court’s Compel Order and that failure was unquestionably willful. 24 To be sure, the Court’s discretion to impose sanctions is broad (id.): 25 Evidence and Issue Sanctions. The Court “may impose an issue sanction ordering 26 that designated facts shall be taken as established” or “prohibiting any party engaging in the 27 misuse of the discovery process from supporting or opposing designated claims or defenses.” 28 (Code Civ. Proc., § 2023.030, subd. (b); see also Vallbona, supra, 43 Cal.App.4th at 1545 -11- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 [imposing evidence and issue sanctions—including specially-tailored jury instruction—for willful 2 discovery violations, to prevent disadvantage to the requesting party].) Additionally, the “Court 3 may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the 4 discovery process from introducing designated matters in evidence.” (Code Civ. Proc., 5 § 2023.030, subd. (c); see also R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 6 486, 495 [describing remedies for persistent discovery abuses and affirming dismissal of 7 complaint “as a sanction for the repeated efforts of the plaintiffs to thwart discovery”].) Evidence 8 and issue sanctions are proper remedies for a pattern of noncompliance, including “discovery 9 responses that [are] both deceptive and dilatory.” (Karlsson v. Ford Motor Co. (2006) 140 10 Cal.App.4th 1202, 1209, 1214-20.) Evasive responses also warrant sanctions. (See Code Civ. 11 Proc., § 2023.010, subd. (f).) 12 Terminating Sanction. The Code of Civil Procedure also authorizes imposition of a 13 terminating sanction. (See Code Civ. Proc., § 2023.030, subd. (d).) “[W]here a violation is willful, 14 preceded by a history of abuse, and the evidence shows that less severe sanctions would not 15 produce compliance with the discovery rules, the superior court is justified imposing the ultimate 16 sanction” of terminating sanctions. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 17 262, 279-280, disapproved on another ground by Mileikowsky v. West Hills Hosp. & Med. Center 18 (2009) 45 Cal.App.4th 1259, 1273.) 19 The Court’s authority is equally important as it relates to monetary sanctions. “The court 20 may impose a monetary sanction ordering that one engaging in the misuse of the discovery 21 process, or any attorney advising that conduct, or both pay the reasonable expenses, including 22 attorney’s fees, incurred by anyone as a result of that conduct.” (Code Civ. Proc., § 2023.030, 23 subd. (a) [emphasis added].) Indeed, the Court must impose a monetary sanction “unless it finds 24 that the one subject to the sanction acted with substantial justification or that other circumstances 25 make the imposition of the sanction unjust.” (Id. [emphasis added]; see also Sinaiko Healthcare 26 Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 404 [explaining 27 Court’s authority to impose monetary sanctions].) 28 -12- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 IV. ARGUMENT 2 Despite months of Defendants’ good-faith efforts and the Court’s Compel Order, Plaintiff 3 and her counsel continue to disregard their obligations. No amount of meeting and conferring or 4 additional extension deadlines have been effective—and there are no remaining less severe 5 alternatives. As set forth below, sanctions (issue, evidence, terminating, and monetary) are the 6 only fair and appropriate remedy for the discovery abuse by Plaintiff and her attorneys. 7 A. Plaintiff’s Continuing Failure to Produce Documents Warrants Sanctions 8 1. Plaintiff is withholding documents. 9 To date, Plaintiff has produced a mere 20 documents (see Kizer Decl., ¶¶ 22, 28, pp. 194- 10 204, Ex. L),7 all but 13 pages of which are simply recycled from earlier in this matter or from the 11 Trust Action. Moreover, Plaintiff’s attorney concedes she continues to withhold documents. (See 12 Kizer Decl., p. 215, Ex. O [Rueppel letter describing search that “has identified approximately 13 1,624 emails” which they “should” have “reviewed by October 20, 2023”].) Her attorney’s 14 admission also now reveals that Plaintiff has not even searched all appropriate custodians and 15 repositories for all responsive materials—despite Defendants having served their requests over six 16 months ago. (Id., p. 214 [admitting search conducted only in Plaintiff’s two email accounts and 17 not her attorneys’ or other agents’ documents and emails].) 18 Even without their admission to withholding documents, Plaintiff’s misconduct is evident 19 from the few documents that she and her attorneys did produce and from her interrogatory 20 responses: 21 First, the Foundation’s document requests sought “all communications” regarding 22 Defendants and the press releases. (Kizer Decl., p. 120, Ex. D, Nos. 4, 5.) Yet Plaintiff produced 23 only one email exchange with her counsel (notwithstanding the Compel Order declaring Plaintiff’s 24 waiver of the attorney-client privilege and work product protection). (See id., p. 97, Ex. B.) It is 25 inconceivable that Plaintiff and her attorneys have not communicated through more than one email 26 regarding Defendants or the press releases that are at the center of Plaintiff’s allegations—and, 27 7 28 Despite the Court’s Compel Order giving Plaintiff ten calendar days—or until August 21st—to comply, Plaintiff did not produce any documents until August 28, 2023. (See Kizer Decl., ¶ 22; see also, supra, Section II.E.) -13- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 importantly, Plaintiff’s counsel have never denied there are no additional responsive records.8 2 Second, Plaintiff also stated in response to an interrogatory that she learned of the press 3 releases through a Google “alert” she set up for her name—but Plaintiff and her attorneys have not 4 produced a single document evidencing any Google alert or any records about such phantom 5 alerts. (See Kizer Decl., p. 143, Ex. E, No. 24.) 6 Third, Defendant requested: “All DOCUMENTS REGARDING YOUR allegation in the 7 FAC that ‘[a]s a direct and proximate result of Defendants’ breach of the Agreement, Plaintiff was 8 publicly cast in a negative light as an unreasonably litigious plaintiff with frivolous claims, 9 damaging her personal and professional reputation.’” (Kizer Decl., p. 126, Ex. D, No. 30.) The 10 only documents Plaintiff produced in response consisted of the press releases (see id., ¶ 22, p. 199 11 [production log], Ex. L), which are not responsive to the request as they plainly do not show any 12 damage to her “personal and professional reputation.” 13 Plaintiff’s and her attorney’s withholding of documents violates the Code, the Court’s 14 Compel Order, and any reasonable norm of discovery practice. Their effort to thwart discovery is 15 severe misconduct that warrants severe sanction. (See Karlsson, supra, 140 Cal.App.4th at 1209, 16 1214-20; R.S. Creative, Inc., supra, 75 Cal.App.4th at 495 [dismissing complaint “as a sanction 17 for the repeated efforts of the plaintiffs to thwart discovery”].) 18 2. Plaintiff and her counsel have not performed an adequate document collection and have misrepresented their efforts. 19 20 At a minimum, Plaintiff and her attorneys have willfully avoided conducting a minimally 21 sufficient search, and their representations about the nature of their efforts are questionable at best, 22 particularly in light of their well-documented, multiple instances of falsehoods. For example, until 23 mid-September—or about five months after discovery was first propounded—Plaintiff’s attorneys 24 8 25 The sole email Plaintiff has produced proves this point. The email (a June 26, 2023, message from Plaintiff’s attorneys to Plaintiff) included multiple attachments of draft discovery responses—yet, Plaintiff has not 26 produced the attachments. (See Kizer Decl., p. 203, Ex. L.) Plaintiff presumably returned those draft discovery responses to her attorneys after revising them as instructed, but she produced no email transmitting them and did not 27 produce the revised drafts. The email contains additional clues of other communications—[1] Plaintiff states in the email exchange that she “provided this info earlier” to her lawyers; and [2] Plaintiff states that she “need[s] more time 28 to fine” other information for her lawyers. (Id., p. 202, Ex. L) Despite obvious evidence of communications, Plaintiff and her lawyers have not produced anything else. -14- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 did not retain an independent document collection vendor to undertake a professional, objective 2 collection, as did Defendants. (See Kizer Decl., ¶ 3.) Instead, they relied on Plaintiff alone to 3 handpick the documents she has chosen to produce, resulting in responsive documents not being 4 produced and even resulting in Plaintiff committing perjury in her verification. This is objectively 5 unacceptable. (See, e.g., National Day Laborer Org. Network v. U.S. Immigration and Customs 6 Enf’t Agency (2012) 877 F.Supp.2d 87, 108 [emphasizing that non-lawyer record custodians 7 “cannot be trusted to run effective searches” for responsive documents]; Bratka v. Anheuser-Busch 8 Co., Inc. (1995) 164 F.R.D. 448, 463 [“Parties cannot be permitted to jeopardize the integrity of 9 the discovery process by engaging in halfhearted and ineffective efforts to identify and produce 10 relevant documents.”]; see also Formal Opinion 2015-193, State Bar of California Committee on 11 Professional Responsibility and Conduct [requiring that attorneys handling e-Discovery 12 implement ESI preservation, analyze and understand a client’s ESI systems and storage, collect 13 responsive ESI in a manner that preserve the integrity of that ESI, and produce responsive ESI in a 14 recognized and appropriate matter].) 15 Representations by Plaintiff’s counsel have only underscored the problems here. On 16 September 12th, Plaintiff’s counsel represented to Defendants that her document production was 17 “complete[],” which was before Keith’s email accounts had even been searched. (Compare Kizer 18 Decl., ¶ 28, p. 193, Ex. L [September 12 production “completes” Plaintiff’s response] with id., 19 p. 207, Ex. M [stating on September 19 that Plaintiff “has retained a professional e-discovery 20 company to retrieve e-mail communications”].) And in subsequent meet-and-confer 21 correspondence, Plaintiff’s counsel finally revealed that, in fact, they have at least 1,600 additional 22 documents—but they have not produced even a single page of them. (See Kizer Decl., ¶¶ 31-33, 23 p. 215, Ex. O.) Given their record in this matter of misrepresentations, neither Plaintiff nor her 24 counsel can be relied upon to make a complete production of documents, without objection. 25 3. The Court should impose sanctions. 26 Plaintiff’s misconduct meets the two prerequisites for the imposition of sanctions: Plaintiff 27 has failed to comply with this Court’s Compel Order, and that failure has been willful. (See 28 Vallbona, supra, 43 Cal.App.4th at 1545.) And, to be sure, these sanctions are appropriate -15- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 regardless of whether Plaintiff makes a belated production of documents as a cynical end-run 2 attempt around this motion. (See, e.g., Sauer v. Superior Ct. (1987) 195 Cal.App.3d 213, 230 3 [citations omitted] [“Belated compliance with discovery orders does not preclude the imposition 4 of sanctions. Last-minute tender of documents does not cure the prejudice to opponents nor does it 5 restore to other litigants on a crowded docket the opportunity to use the courts.”]) 6 Terminating Sanctions. The Court has broad discretion to order terminating 7 sanctions due to Plaintiff’s misconduct, because her violations are willful, preceded by a history of 8 abuse, and show that less severe sanctions will not produce compliance with discovery rules. (See 9 Code Civ. Proc., § 2023.030, subd. (d); see also Mileikowsky, supra, 128 Cal.App.4th at 279-280 10 [holding that “the superior court is justified in imposing the ultimate sanction” of terminating 11 sanctions under those conditions].) Defendants respectfully request imposition of terminating 12 sanctions here in light of the habitual misconduct, existing misconduct, and length of misconduct. 13 (See R.S. Creative, Inc., supra, 75 Cal.App.4th at 495 [affirming dismissal of complaint “as a 14 sanction for the repeated efforts of the plaintiffs to thwart discovery”].) 15 Evidence and Issue Sanctions. If the Court does not impose terminating sanctions, 16 then it should “impose an evidence sanction by an order prohibiting [the] party engaging in the 17 misuse of the discovery process from introducing designated matters into evidence.” (Code Civ. 18 Proc., § 2023.030, subd. (c).) Here, the Court should impose evidence sanctions in the form of a 19 prohibition from the introduction into evidence (whether in opposition to a motion for summary 20 judgment or at trial) of any document that Plaintiff should have produced by August 21. 21 Additionally, the Court should order: [1] an under-oath declaration from each of Plaintiff 22 and her counsel stating their collection efforts as to all responsive documents without objection, 23 including communications between attorney and client; [2] an under-oath declaration from each of 24 Plaintiff and her counsel identifying all search terms utilized, as well as all devices, accounts, and 25 repositories searched; [3] production of ESI in native format; and [4] production of all attachments 26 to responsive emails including those attachments to emails previously produced. These conditions 27 are necessitated by Plaintiff and her counsel’s dilatory conduct and, without them, the Court and 28 Defendants cannot rely upon the fidelity of any future production Plaintiff makes in this case. -16- DEFENDANTS’ MEMORANDUM ISO MOTION FOR SANCTIONS AGAINST PLAINTIFF LISA KEITH CASE NO. 22CV001269 1 B. Plaintiff’s Non-Compliant Interrogatory Responses Warrant Sanction 2 Defendants’ interrogatories sought, among other things, facts supporting many allegations 3 Plaintiff made in her First Amended Complaint and statements she made in response to 4 Defendants’ demurrer. (See Kizer Decl., pp. 134-145, 150-153, Exs. E, F.) In response to many of 5 the interrogatories, Plaintiff did not provide any facts. Instead, she stated what are plainly opinions 6 and speculations. (See Kizer Decl., pp. 162-170, Ex. G, Response to SROG Nos. 1-4, 28, 29, 30.) 7 Additionally, in response to many interrogatories, Plaintiff provided responses to different 8 questions than those posed. Defendants’ meet-and-confer letter detailed these evasive responses at 9 length. (See Ex. G, pp. 162-170, Response to SROG Nos. 6, 7, 8, 10, 17, 28, 33.) For example, 10 interrogatory No. 33 asked Plaintiff: “If you contend the non-disparagement provision prohibits 11 ‘false and misleading information’ as stated in the FAC, state all facts that support that 12 contention.” In response, Plaintiff listed statements in the press releases she contends were false 13 and misleading—which clearly does not answer the question posed. (Kizer Decl., p. 144.) 14 Plaintiff’s responses to several of Dr. White’s special interrogatories were likewise evasive, as 15 detailed in Defendants’ meet-and-confer letter.9 (See Kizer Decl., pp. 168-170, Ex. G.) 16 An appropriate sanction for Plaintiff’s evasive responses to Defendants’ interrogatories is 17 for the Court to prohibit Plaintiff from presenting any evidence or testimon