Preview
1 Ashley E. Klein, State Bar No. 291586
aklein@nixonpeabody.com
2 Marrianne Taleghani, State Bar No. 286045
mtaleghani@nixonpeabody.com
3 Alexandra Azad, State Bar No. 346120
aazad@nixonpeabody.com
4 NIXON PEABODY LLP
One Embarcadero Center, 32nd Floor
5 San Francisco, CA 94111
Tel: 415-984-8200
6 Fax: 415-984-8300
7 Attorneys for Plaintiffs/Cross-Defendants
RAGHU SAWKAR and SUDHA SAWKAR
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF NAPA
11
12
RAGHU SAWKAR and SUDHA SAWKAR, Case No. 22-CV-000278
13
Plaintiffs/Cross- (Assigned to Honorable Cynthia P. Smith –
14 Defendants, Dept. A)
15 vs. PLAINTIFFS/CROSS-DEFENDANTS
RAGHU SAWKAR AND SUDHA
16 SURESH C. MALHOTRA, LAMYA SAWKAR’S REPLY IN SUPPORT OF
MALHOTRA, and DOES 1-10, MOTION TO COMPEL (1) THE
17 DEPOSITION OF JOHN MALHOTRA,
Defendants/Cross (2) THE DEPOSITION OF ZINA
18 -Complainants. MALHOTRA, AND (3) THE
PRODUCTION OF DOCUMENTS
19
Date: May 3, 2024
20 Time: 8:30 a.m.
Dept: Civil Trial
21 Location: Courtroom A
22 Action Filed: March 11, 2022
Trial Date: June 3, 2024
23
[Filed concurrently with the Declaration of
24 Alexandra Azad]
25
///
26
///
27
///
28
PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF
MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA
MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS
1 Plaintiffs/Cross-Defendants RAGHU SAWKAR and SUDHA SAWKAR (“Plaintiffs”)
2 hereby submit the instant Reply in support of their Motion to Compel (1) the deposition of John
3 Malhotra, (2) the deposition of Zina Malhotra, and (3) the production of documents.
4 MEMORANDUM OF POINTS AND AUTHORITIES
5 I. DEFENDANTS’ COUNSEL’S CONDUCT INTERFERRED WITH THE SERVICE
6 OF SUBPOENAS AND THE DEPOSITIONS OF JOHN AND ZINA MALHOTRA
7 Defendants in their opposition offer no response or explanation for their failure to
8 adequately identify John and Zina Malhotra in their March 25, 2024 responses to Plaintiff’s
9 Special Interrogatories, Set Two, nor do they offer any explanation for their inconsistent
10 representations to Plaintiff’s counsel concerning the service of the Malhotras’ deposition
11 subpoenas. These two events are the sole cause of any procedural failings of Plaintiffs to
12 adequately notice John and Zina Malhotra’s depositions. Indeed, as has become a pattern in this
13 case, Defendants failed to properly provide the contact information of John and Zina Malhotra in
14 their discovery responses, delaying the subpoena process by requiring counsel to meet and confer
15 to obtain information that should have been initially provided. (See previously filed, Taleghani
16 Decl., ¶ 3.) Moreover, while Plaintiffs were prepared to serve the Malhotras and had begun
17 service attempts as of April 11, 2024, Defendants’ counsel demanded at that time that Plaintiffs
18 halt service attempts entirely, reversing their earlier representations that they would not accept
19 service and instead directing Plaintiffs to serve Defendants’ counsel. (See Taleghani Decl., ¶ 5.)
20 Then, when Plaintiffs followed Defendants’ counsel’s directives, as well as the procedures
21 employed by the parties throughout this litigation for e-service of documents, counsel refused to
22 honor their agreement to produce John and Zina on the dates previously agreed upon by counsel.
23 (See Taleghani Decl., ¶ 4.)
24 Defendants should not be permitted to shield key witnesses in this litigation from
25 Plaintiffs by continually moving goal posts and withholding information from Plaintiffs until it is
26 too late for Plaintiffs to act. Plaintiffs are entitled to depose John and Zina Malhotra and request
27 that this Court give them the power to do so. Furthermore, while Plaintiffs recognize that this
28
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PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF
MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA
MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS
1 Court may not have the power to compel the deposition of Zina Malhotra, an out-of-state witness,
2 this Court does have the power to order discovery to remain open in order for Plaintiffs to
3 effectuate service and compel her deposition pursuant to New York law, which Plaintiffs are
4 prepared to do. (See Code Civ. Proc. § 2024.050.) If the Court is inclined to keep discovery for
5 this limited purpose, there is sufficient time to effectuate the subpoena and to complete the
6 deposition well before the June 3 trial date. As such, Plaintiffs request that this Court (1) compel
7 the deposition of John Malhotra; and (2) allow discovery to remain open for Plaintiffs to depose
8 Zina Malhotra pursuant to New York law.
9 II. DEFENDANTS HAVE NOT PRODUCED ALL RESPONSIVE DOCUMENTS
10 HAVE BEEN PRODUCED BY DEFENDANTS
11 Defendants erroneously assert in their opposition that Defendants have caused to be
12 produced all non-privileged documents in Defendants’ possession, custody and control that are
13 responsive to Plaintiffs’ requests for production of documents that are the subject of Plaintiffs’
14 motion. (See Defendants’ Opposition, p.3:3-4).
15 On April 30, 2024 at 9:34 p.m., counsel for Defendants produced additional documents to
16 counsel for Plaintiffs. (Declaration of Alexandra Azad (“Azad Decl.”) ¶ 5.). While Plaintiff’s
17 review of these documents is ongoing, it is clear that several categories of requested documents
18 are still missing. For example, Defendants’ production concerning third party payments to
19 Amazon, Pottery World Home Décor, CB2, and Restoration Hardware are missing full and
20 complete receipts evidencing all transactions between Defendants and those third parties; indeed,
21 a previous document production listed approximately sixty-five separate transactions on the Mid-
22 Pacific LLC QuickBooks from Amazon, yet Defendants in their latest round of production, have
23 offered documents evidencing only sixteen. (Azad Decl., ¶ 6.) The same is true for: Pottery
24 World Home Décor, in which only one unreadable document was produced, yet five transactions
25 amounting to approximately $10,000 in expenses were listed in the Mid-Pacific LLC QuickBooks
26 (Azad Decl., ¶ 7); and Restoration Hardware, in which documents evidencing four transactions
27 were produced, but six transactions, amounting to approximately $25,000 in expenses were listed
28
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PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF
MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA
MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS
1 in the Mid-Pacific LLC QuickBooks (Azad Decl., ¶ 8.)
2 Regarding communications with Renee Babcock, Mid-Pacific LLC’s bookkeeper,
3 Defendants’ April 30, 2024 production of documents remains unchanged, with no
4 communications beyond seventy-five emails produced (Azad Decl., ¶ 9), despite Lamya Malhotra
5 testifying at her deposition that she communicated with Ms. Babcock primarily through email and
6 text message during her seven years of employment with Mid-Pacific LLC (See Taleghani Decl.,
7 ¶ 11, Exhibit I: 63:19-22; 64:10-12).
8 Moreover, Defendants have produced no documents evidencing reimbursement of Mid-
9 Pacific LLC by RJS Boutique Wines, LLC for purchases made by Mid-Pacific LLC on RJS
10 Boutique Wines, LLC’s behalf (Azad Decl., ¶ 10), despite Suresh Malhotra’s testimony that Mid-
11 Pacific LLC funds were used to purchase RJS Boutique Wines, LLC expenses (See Taleghani
12 Decl., ¶ 12; Exh. J, 126:12-25.).
13 While the review of Defendant’s latest production in the eleventh hour is ongoing, it is
14 clear that several categories of responsive documents are missing, either partially or entirely. It
15 also appears clear to Plaintiffs that Defendants, without direct court intervention, will not be
16 incentivized to provide Plaintiffs with the documents to which they are entitled. As such, this
17 Court should compel the production of all documents (1) evidencing communications with Renee
18 Babcock; (2) pertaining to RJS Boutique Wines, LLC; and (3) evidencing payments to third
19 parties.
20 III. DEFENDANTS’ FRIVOLOUS REQUEST FOR MONETARY SANCTIONS IS
21 UNWARRANTED AND SHOULD BE DENIED.
22 Cal. Civ. Proc. Code § 2023.010 empowers the Court to impose monetary sanctions
23 against a party, person, or attorney who, amongst other things, misuses the discovery process by:
24 (a) persisting, over objection and without substantial justification, in an attempt to obtain
25 information or materials that are outside the scope of permissible discovery; (b) using a discovery
26 method in a manner that does not comply with its specified procedures; (c) employing a discovery
27 method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or
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PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF
MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA
MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS
1 oppression, or undue burden and expense; (d) opposing, unsuccessfully and without substantial
2 justification, a motion to limit discovery; and (e) making, without substantial justification, an
3 unmeritorious objection to discovery; (f) making an evasive response to discovery; (g) disobeying
4 a court order to provide discovery; (h) making or opposing, unsuccessfully and without
5 substantial justification, a motion to compel or to limit discovery; or (i) failing to meet and confer
6 in a reasonable and good faith attempt to resolve informally any dispute concerning discovery,
7 where the operative discovery provision requires such. (See also, Cal. Civ. Proc. Code §§
8 2025.420(a), (h) and 2016.040.)
9 Defendants raise the illogical proposition in their opposition that, because Defendants
10 have consistently failed to adequately produce all responsive documents without continued meet
11 and confer efforts, the instant motion was brought without substantial justification. While
12 Defendants assert that their continuous rounds of document production demonstrate that the
13 document production is “self-executing,” this is inaccurate – indeed, every round of document
14 production has been the result of Plaintiffs asking again and again for documents that should have
15 been produced weeks, if not months or years ago, only for documents to remain missing. For
16 example, the April 10, 2024 production of American Express statements was prompted by
17 Plaintiff’s meet and confer effort. (Azad Decl., ¶ 2.) That production was insufficient, and
18 required an additional meet and confer on April 15, 2024, which prompted further production by
19 Defendants. (Azad Decl., ¶ 2.) On April 16, 2024, counsel for Plaintiffs again met and conferred
20 regarding additional missing documents, to which Defendants produced further documents on
21 April 19, 2024 (Azad Decl., ¶ 3). Again, this production was insufficient, prompting another
22 meet and confer and another round of production on April 22 and April 23, respectively (Azad
23 Decl., ¶ 4). And again, when this production was incomplete, counsel for Plaintiffs met and
24 conferred on April 23, to which no response was offered. (Azad Decl., ¶ 4.) Moreover, as stated
25 above, Defendants have still failed to produce all responsive documents requested in Plaintiff’s
26 April 22, 2024 meet and confer letter. How Defendants can stand for the proposition that because
27 Plaintiffs have been forced to engage in no less than seven rounds of meeting and conferring on
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PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF
MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA
MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS
1 various insufficient document productions, the instant motion is without substantial justification
2 defies logic. How much prompting for complete document productions should Plaintiffs be
3 forced to engage in before a motion to compel is justified here? Indeed, while Plaintiffs
4 themselves are not requesting sanctions in this particular motion, the history of these continued
5 discovery disputes suggests that the only party acting without substantial justification is
6 Defendants. Granting Defendants’ requested sanctions under the circumstances contradicts the
7 protections afforded under the Civil Discovery Act and would promote Defendants’ conduct of
8 strategically withholding discovery.
9 As such, this Court should simply deny Defendants’ request for monetary sanctions as
10 baseless.
11 IV. CONCLUSION
12 For all of the above reasons, Plaintiffs respectfully request this Court to:
13 (a) compel the deposition of John Malhotra;
14 (b) allow discovery to remain open for Plaintiffs to depose Zina Malhotra;
15 (c) compel the production of all documents: (1) evidencing communications with Renee
16 Babcock; (2) pertaining to RJS Boutique Wines, LLC; and (3) evidencing payments to
17 third parties; and
18 (d) deny Defendants’ frivolous request for monetary sanctions.
19
20 Dated: May 1, 2024 NIXON PEABODY LLP
21
22 By:
Ashley E. Klein
23 Marrianne Taleghani
Alexandra Azad
24 Attorneys for Plaintiffs/Cross-Defendants
RAGHU SAWKAR and SUDHA
25 SAWKAR
26
27
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PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF
MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA
MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS
Preview
1 Ashley E. Klein, State Bar No. 291586 aklein@nixonpeabody.com 2 Marrianne Taleghani, State Bar No. 286045 mtaleghani@nixonpeabody.com 3 Alexandra Azad, State Bar No. 346120 aazad@nixonpeabody.com 4 NIXON PEABODY LLP One Embarcadero Center, 32nd Floor 5 San Francisco, CA 94111 Tel: 415-984-8200 6 Fax: 415-984-8300 7 Attorneys for Plaintiffs/Cross-Defendants RAGHU SAWKAR and SUDHA SAWKAR 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF NAPA 11 12 RAGHU SAWKAR and SUDHA SAWKAR, Case No. 22-CV-000278 13 Plaintiffs/Cross- (Assigned to Honorable Cynthia P. Smith – 14 Defendants, Dept. A) 15 vs. PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA 16 SURESH C. MALHOTRA, LAMYA SAWKAR’S REPLY IN SUPPORT OF MALHOTRA, and DOES 1-10, MOTION TO COMPEL (1) THE 17 DEPOSITION OF JOHN MALHOTRA, Defendants/Cross (2) THE DEPOSITION OF ZINA 18 -Complainants. MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS 19 Date: May 3, 2024 20 Time: 8:30 a.m. Dept: Civil Trial 21 Location: Courtroom A 22 Action Filed: March 11, 2022 Trial Date: June 3, 2024 23 [Filed concurrently with the Declaration of 24 Alexandra Azad] 25 /// 26 /// 27 /// 28 PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS 1 Plaintiffs/Cross-Defendants RAGHU SAWKAR and SUDHA SAWKAR (“Plaintiffs”) 2 hereby submit the instant Reply in support of their Motion to Compel (1) the deposition of John 3 Malhotra, (2) the deposition of Zina Malhotra, and (3) the production of documents. 4 MEMORANDUM OF POINTS AND AUTHORITIES 5 I. DEFENDANTS’ COUNSEL’S CONDUCT INTERFERRED WITH THE SERVICE 6 OF SUBPOENAS AND THE DEPOSITIONS OF JOHN AND ZINA MALHOTRA 7 Defendants in their opposition offer no response or explanation for their failure to 8 adequately identify John and Zina Malhotra in their March 25, 2024 responses to Plaintiff’s 9 Special Interrogatories, Set Two, nor do they offer any explanation for their inconsistent 10 representations to Plaintiff’s counsel concerning the service of the Malhotras’ deposition 11 subpoenas. These two events are the sole cause of any procedural failings of Plaintiffs to 12 adequately notice John and Zina Malhotra’s depositions. Indeed, as has become a pattern in this 13 case, Defendants failed to properly provide the contact information of John and Zina Malhotra in 14 their discovery responses, delaying the subpoena process by requiring counsel to meet and confer 15 to obtain information that should have been initially provided. (See previously filed, Taleghani 16 Decl., ¶ 3.) Moreover, while Plaintiffs were prepared to serve the Malhotras and had begun 17 service attempts as of April 11, 2024, Defendants’ counsel demanded at that time that Plaintiffs 18 halt service attempts entirely, reversing their earlier representations that they would not accept 19 service and instead directing Plaintiffs to serve Defendants’ counsel. (See Taleghani Decl., ¶ 5.) 20 Then, when Plaintiffs followed Defendants’ counsel’s directives, as well as the procedures 21 employed by the parties throughout this litigation for e-service of documents, counsel refused to 22 honor their agreement to produce John and Zina on the dates previously agreed upon by counsel. 23 (See Taleghani Decl., ¶ 4.) 24 Defendants should not be permitted to shield key witnesses in this litigation from 25 Plaintiffs by continually moving goal posts and withholding information from Plaintiffs until it is 26 too late for Plaintiffs to act. Plaintiffs are entitled to depose John and Zina Malhotra and request 27 that this Court give them the power to do so. Furthermore, while Plaintiffs recognize that this 28 -2- PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS 1 Court may not have the power to compel the deposition of Zina Malhotra, an out-of-state witness, 2 this Court does have the power to order discovery to remain open in order for Plaintiffs to 3 effectuate service and compel her deposition pursuant to New York law, which Plaintiffs are 4 prepared to do. (See Code Civ. Proc. § 2024.050.) If the Court is inclined to keep discovery for 5 this limited purpose, there is sufficient time to effectuate the subpoena and to complete the 6 deposition well before the June 3 trial date. As such, Plaintiffs request that this Court (1) compel 7 the deposition of John Malhotra; and (2) allow discovery to remain open for Plaintiffs to depose 8 Zina Malhotra pursuant to New York law. 9 II. DEFENDANTS HAVE NOT PRODUCED ALL RESPONSIVE DOCUMENTS 10 HAVE BEEN PRODUCED BY DEFENDANTS 11 Defendants erroneously assert in their opposition that Defendants have caused to be 12 produced all non-privileged documents in Defendants’ possession, custody and control that are 13 responsive to Plaintiffs’ requests for production of documents that are the subject of Plaintiffs’ 14 motion. (See Defendants’ Opposition, p.3:3-4). 15 On April 30, 2024 at 9:34 p.m., counsel for Defendants produced additional documents to 16 counsel for Plaintiffs. (Declaration of Alexandra Azad (“Azad Decl.”) ¶ 5.). While Plaintiff’s 17 review of these documents is ongoing, it is clear that several categories of requested documents 18 are still missing. For example, Defendants’ production concerning third party payments to 19 Amazon, Pottery World Home Décor, CB2, and Restoration Hardware are missing full and 20 complete receipts evidencing all transactions between Defendants and those third parties; indeed, 21 a previous document production listed approximately sixty-five separate transactions on the Mid- 22 Pacific LLC QuickBooks from Amazon, yet Defendants in their latest round of production, have 23 offered documents evidencing only sixteen. (Azad Decl., ¶ 6.) The same is true for: Pottery 24 World Home Décor, in which only one unreadable document was produced, yet five transactions 25 amounting to approximately $10,000 in expenses were listed in the Mid-Pacific LLC QuickBooks 26 (Azad Decl., ¶ 7); and Restoration Hardware, in which documents evidencing four transactions 27 were produced, but six transactions, amounting to approximately $25,000 in expenses were listed 28 -3- PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS 1 in the Mid-Pacific LLC QuickBooks (Azad Decl., ¶ 8.) 2 Regarding communications with Renee Babcock, Mid-Pacific LLC’s bookkeeper, 3 Defendants’ April 30, 2024 production of documents remains unchanged, with no 4 communications beyond seventy-five emails produced (Azad Decl., ¶ 9), despite Lamya Malhotra 5 testifying at her deposition that she communicated with Ms. Babcock primarily through email and 6 text message during her seven years of employment with Mid-Pacific LLC (See Taleghani Decl., 7 ¶ 11, Exhibit I: 63:19-22; 64:10-12). 8 Moreover, Defendants have produced no documents evidencing reimbursement of Mid- 9 Pacific LLC by RJS Boutique Wines, LLC for purchases made by Mid-Pacific LLC on RJS 10 Boutique Wines, LLC’s behalf (Azad Decl., ¶ 10), despite Suresh Malhotra’s testimony that Mid- 11 Pacific LLC funds were used to purchase RJS Boutique Wines, LLC expenses (See Taleghani 12 Decl., ¶ 12; Exh. J, 126:12-25.). 13 While the review of Defendant’s latest production in the eleventh hour is ongoing, it is 14 clear that several categories of responsive documents are missing, either partially or entirely. It 15 also appears clear to Plaintiffs that Defendants, without direct court intervention, will not be 16 incentivized to provide Plaintiffs with the documents to which they are entitled. As such, this 17 Court should compel the production of all documents (1) evidencing communications with Renee 18 Babcock; (2) pertaining to RJS Boutique Wines, LLC; and (3) evidencing payments to third 19 parties. 20 III. DEFENDANTS’ FRIVOLOUS REQUEST FOR MONETARY SANCTIONS IS 21 UNWARRANTED AND SHOULD BE DENIED. 22 Cal. Civ. Proc. Code § 2023.010 empowers the Court to impose monetary sanctions 23 against a party, person, or attorney who, amongst other things, misuses the discovery process by: 24 (a) persisting, over objection and without substantial justification, in an attempt to obtain 25 information or materials that are outside the scope of permissible discovery; (b) using a discovery 26 method in a manner that does not comply with its specified procedures; (c) employing a discovery 27 method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or 28 -4- PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS 1 oppression, or undue burden and expense; (d) opposing, unsuccessfully and without substantial 2 justification, a motion to limit discovery; and (e) making, without substantial justification, an 3 unmeritorious objection to discovery; (f) making an evasive response to discovery; (g) disobeying 4 a court order to provide discovery; (h) making or opposing, unsuccessfully and without 5 substantial justification, a motion to compel or to limit discovery; or (i) failing to meet and confer 6 in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, 7 where the operative discovery provision requires such. (See also, Cal. Civ. Proc. Code §§ 8 2025.420(a), (h) and 2016.040.) 9 Defendants raise the illogical proposition in their opposition that, because Defendants 10 have consistently failed to adequately produce all responsive documents without continued meet 11 and confer efforts, the instant motion was brought without substantial justification. While 12 Defendants assert that their continuous rounds of document production demonstrate that the 13 document production is “self-executing,” this is inaccurate – indeed, every round of document 14 production has been the result of Plaintiffs asking again and again for documents that should have 15 been produced weeks, if not months or years ago, only for documents to remain missing. For 16 example, the April 10, 2024 production of American Express statements was prompted by 17 Plaintiff’s meet and confer effort. (Azad Decl., ¶ 2.) That production was insufficient, and 18 required an additional meet and confer on April 15, 2024, which prompted further production by 19 Defendants. (Azad Decl., ¶ 2.) On April 16, 2024, counsel for Plaintiffs again met and conferred 20 regarding additional missing documents, to which Defendants produced further documents on 21 April 19, 2024 (Azad Decl., ¶ 3). Again, this production was insufficient, prompting another 22 meet and confer and another round of production on April 22 and April 23, respectively (Azad 23 Decl., ¶ 4). And again, when this production was incomplete, counsel for Plaintiffs met and 24 conferred on April 23, to which no response was offered. (Azad Decl., ¶ 4.) Moreover, as stated 25 above, Defendants have still failed to produce all responsive documents requested in Plaintiff’s 26 April 22, 2024 meet and confer letter. How Defendants can stand for the proposition that because 27 Plaintiffs have been forced to engage in no less than seven rounds of meeting and conferring on 28 -5- PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS 1 various insufficient document productions, the instant motion is without substantial justification 2 defies logic. How much prompting for complete document productions should Plaintiffs be 3 forced to engage in before a motion to compel is justified here? Indeed, while Plaintiffs 4 themselves are not requesting sanctions in this particular motion, the history of these continued 5 discovery disputes suggests that the only party acting without substantial justification is 6 Defendants. Granting Defendants’ requested sanctions under the circumstances contradicts the 7 protections afforded under the Civil Discovery Act and would promote Defendants’ conduct of 8 strategically withholding discovery. 9 As such, this Court should simply deny Defendants’ request for monetary sanctions as 10 baseless. 11 IV. CONCLUSION 12 For all of the above reasons, Plaintiffs respectfully request this Court to: 13 (a) compel the deposition of John Malhotra; 14 (b) allow discovery to remain open for Plaintiffs to depose Zina Malhotra; 15 (c) compel the production of all documents: (1) evidencing communications with Renee 16 Babcock; (2) pertaining to RJS Boutique Wines, LLC; and (3) evidencing payments to 17 third parties; and 18 (d) deny Defendants’ frivolous request for monetary sanctions. 19 20 Dated: May 1, 2024 NIXON PEABODY LLP 21 22 By: Ashley E. Klein 23 Marrianne Taleghani Alexandra Azad 24 Attorneys for Plaintiffs/Cross-Defendants RAGHU SAWKAR and SUDHA 25 SAWKAR 26 27 28 -6- PLAINTIFFS/CROSS-DEFENDANTS RAGHU SAWKAR AND SUDHA SAWKAR’S REPLY IN SUPPORT OF MOTION TO COMPEL (1) THE DEPOSITION OF JOHN MALHOTRA, (2) THE DEPOSITION OF ZINA MALHOTRA, AND (3) THE PRODUCTION OF DOCUMENTS