Preview
OCA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jun-02-2017 4:42 pm
Case Number: CGC-16-549804
Filing Date: Jun-02-2017 1:41
Filed by: CLARK BANAYAD
Image: 05888872
ORDER
GOLDEN PACIFIC BANK, NLA. VS. BILLFLOAT, INC. ET AL
001005888872
Instructions:
Please place this sheet on top of the document to be scanned.Judge James L. Warren (Ret.} 6 ven
JUN 2-207
JAMS 3
Two Embarcadero Center, Suite 1500
San Francisco, CA 94111 GLERK OF THE COURT
Telephone (415) 982-5267 BY ein, Ss
Facsimile (415) 982-5287
Referee Per CCP § 638(a)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COL
INTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
Golden Pacific Bank, N.A.,
Plaintiffs,
vs.
BillFloat, Inc., Ryan Gilbert, Sean
O*Malley, and DOES 1 ~ 50, inclusive,
Defendants.
BILLFLOAT. INC.
Cross-Complainant,
VS.
GOLDEN PACIFIC BANK, N.A., and
ROES 1-50,
Cross-Defendants.
Case No. CGC-16-549804
REFEREE’S ORDER GRANTING GOLDEN
PACIFIC BANK’S MOTIONS (1) TO
COMPEL A FURTHER RESPONSE FROM
BILLFLOAT AND (2) TO COMPEL A
FURTHER RESPONSE FROM O'MALLEY
AND GILBERT
Before the Referee is Golden Pacific Bank's (“GPB’s") motions (1) to compel a further
response from BillFloat to GPB’s Special Interrogatories, Set One, and its Requests for
Production of Documents, Sets One and Two, and (2) to compel a further response from Ryan
Gilbert and Sean O'Malley to its Requests for Production of Documents, Set One. In accordance
with the stipulated abbreviated discovery resolution procedures agreed to by the parties, moving
REFEREES ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS (2) TO COMPELA
FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM
O’MALLEY AND GILBERT
tand opposition papers were filed! and, on May 25, 2017, the undersigned held a teleconference
with counsel for all parties to argue the motions. GPB was represented by Christopher Onstott
from the law firm of Kronick Moskovitz Tiedemann & Girard. BillFloat was represented by
William T. Webb and Jennifer D. Su from the Webb Legal Group, Gilbert and O’Malley were
represented by Tyler A. Carle from the law firm of Hinshaw & Culbertson LLP. All counsel
were given an opportunity to argue their positions fully. At the conclusion of the hearing, the
Referee orally issued the following orders, which he indicated would be reduced to writing in
this Order. Prior to finalizing the Order, the Referee circulated a draft to all counsel to ensure
that all nuances from the hearing had been captured. This Order thus represents the Referee’s
rulings, as agreed to by counsel, or as ordered by the Referee following the parties’ presentation
of competing positions.
A. rther Respon!
mpelling BillFloat to provide further
responses to GPB’s Special Interrogatories, Set One, and its Requests for Production of
Documents, Sets One and Two. A related order was entered against GPB in connection with
BillFloat’s motion to compel as against it. At the hearing on these earlier motions, BillFloat had
urged that all documents responsive to the several requests before the Referee be produced on or
before April 27, 2017. This condition was added to the Referee’s orders. According to GPB’s
motion, it complied with the deadline to provide amended responses to discovery and to produce
documents, but BillFloat did not. GPB’s briefing on the motion further indicated that the parties
are in the process of meeting-and-conferring on further electronic search terms for production of
documents. (BillFloat indicated that there are issues with GPB’s responses and production, as
well, but any such issues are not currently before me.) Rather, following a series of meet and
confer efforts, GPB asserts that it was forced to file this motion to compel to get BillFloat’s
attention so BillFloat would provide the ordered amended responses and respond to GPB’s meet-
and-confer atiempts.
BillFloat didn’t argue that it had fully complied with the Referee’s April 18, 2017 order,
but urged that it was more focused on getting documents produced rather than modifying the
3 Gilbert and O’Malley filed an objection to the timing of GPB’s motion against them. At the Referee’s
invitation, however, they submitted papers in opposition to the motion, which papers were received on the morning
of the teleconference. In the interest of resolving as many issues as expeditiously as possible, and finding no
prejudice to Gilbert and O° Malley by the timing of the motions and opposition, the Referee overrules the objection.
REFEREE’S ORDER GRANT! 3OLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A
FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM
O'MALLEY AND GILBERT
2nm
written form of its discovery responses: it focused on “substance over form.” With particular
reference to the so-called KPI reports, BillFloat said that it thought that they had in fact been
produced (or at least a majority of them had), a position confirmed by what appeared to by live-
time communication between BillFloat’s counsel and personnel at the BillFloat offices.
BillFloat posited that it had already produced an additional 15,000 documents, and more were
being produced on a rolling basis.
BillFloat further argued that many of the Special Interrogatories dealt the so-called Joint
IP SOWs, an issue that it had sought to defuse by referring solely to documents but which the
Referee had decided adversely to BillFloat. To take the materials from the documents and put
them into interrogatory response form was taking an inordinate amount of time, but BillFloat
thought the task could be competed by May 30. 2017, although it requested an extension to June
2, 2017 to finish the task.
Finally, the parties argued about the breadth of RFP Nos. 115 and 116, The Reteree
agrees that the requests are facially overbroad, but this issue was addressed at the hearing on the
original motions to compel. Counsel for BillFloat at that time offered that compliance would be
fairly easy; it was only after he got into the actual production that the scope issue emerged as
prominently as he how sees it. However, that issue was argued and decided over a month ago.
The Referee’s earlier order will stand.
The parties further argued about a BillFloat position declining to produce certain
documents that allegedly contained trade secret information until an Attorneys’ Eyes Only
(“AEO”) provision could be added to the extant Protective Order. The existence of this trade
secret information was something that BillFloat’s counsel had not been aware of during the
earlier arguments on the motions to compel, so be did not raise the point at the time.
As part of the Court’s April 18, 2017 order, BillFloat and GPB were ordered to meet and
confer as to terms to be included in an amended protective order. Having not heard anything
from GPB in this regard. on Sunday, May 14, 2017, BillFloat’s counsel sent GPB’s counsel a
proposed amended form of stipulated protective order with an AEO provision, but had not yet
receive return comments,
The parties agreed that the key document requests before the Referee were Nos. 115, 1 16,
and 130. Following thorough argument on all related topics, the Referee enters the following
orders:
REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A
FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM
O’MALLEY AND GILBERT
3No later than June 1, 2017, BillFloat will produce the documents called for in
RFP Nos. 130 (including all KPI reports, except for the daily KPI reports as
previously agreed by the Parties and as ordered in the April 18, 2017 Order), 115
and 116, and provide compliant verified amended responses to those RFP Nas.
consistent with the Court’s order. Given the volume of production potential
involved in RFP Nos. 115 and 116, the final date for production may, upon a
showing of good cause, be extended to June 16, 2017. Should production not be
complete by that date, upon a showing of unforeseeable and/or unanticipated
difficulties, the final production date may be extended to June 30, 2017. Under
no circumstances will production be extended beyond that date. Regardless of
whether the “final date” is extended, BillFloat’s document production will be on a
rolling basis; as documents become available for production, they will promptly
be delivered to counsel for GPB.
The current date of May 30, 2017 for the mutual exchange of privilege logs is
extended to June 2, 2017, In connection with BillFloat’s production of documents
called for in Paragraph 1, above, an up-to-date privilege log will be provided on
the “final date,” should a different date from Jme 1, 2017 be determined by the
Referee, on which documents are produced.
Documents will be produced under the existing Protective Order. Should counsei
wish to negotiate an AEO provision, they may do so but that will not delay the
production of documents currently before the Referee.
No later than June 1, 2017, BillFloat will provide complete, verified amended
responses to the Special Interrogatories (in GPB’s Special Interrogatories
Propounded to BillFloat, Set One) for which BillFloat was compelled to provide
further responses in the Court's April 18, 2017 Order.
GPB’s request for monetary sanctions in the sum of $2,275 is granted, jointly and
severally against BillFloat and BillFloat’s counsel. While the Referee appreciates
the efforts BillFloat made to comply with the Referee’s April 18, 2017 order, if
compliance was not possible, simply taking matters into its own hand and
establishing its own schedule for compliance is not the way to handle inability to
comply with a Court’s order. The Referee specially finds that $2,275, which GPB
REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A
FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM
O'MALLEY AND GILBERT
40
cited as the cost for preparing its motion io compel, is reasonable under the
circumsiances,
6. GPB’s request for preclusionary sanctions is denied.
B. GPB’s Mai
On May 9, 2017, the Referee entered his orders compelling Gilbert and O'Malley to
provide further responses to GPB's RFP, Set One. Gn May 18, 2017, Gilbert and O"Malley each
ponses
filed a massive Second Amended Response to that RFP. The bulk of this amended response was
devoted to identifying, by Bates number, what appears to be more or less 1,000 specifically
identified documents responsive to RFP Nos. 1 ~ 18. These responses are not the subject of the
current motion to compel. In response to several other RFPs, O'Malley and Gilbert affirmatively
represented that they had no documents. In response to RFP Nos. 27, 28, 30, 31, 32, 34, 41, 42,
52, $3, 54 63, 66, 75, and 782 however, both defendants responded: “To the extent the records
requested in this Category are subject to meet and confer efforts between GPB and BillFloat,
Responding party will amend its response to this Request in the event responsive documents are
either produced or identified in a privilege log by BillFloat.” This language was inserted
verbatim into each of the referenced RFPs.
During oral argument, it quickly became apparent that Gilbert and ©’ Malley were
operating under a misapprehension regarding the requirements imposed on them by the Referee’s
May 9, 2017 Order. With respect to cach of the RFP’s at issue, the Referee ordered Gilbert and
O*Malley to comply with the specific request along the lines of the Referee’s order to them with
respect to RFP Nos. 19 and 20. That order called for Gilbert and O’Malley to review documents
produced by BillFloat (or identified by BillFloat on a privilege log) and then state that “he has
either located and will produce his own additionally responsive documents (or if covered by an
applicable privilege, he will prepare his own privilege log, or that he has no documents not
already produced by BillFloat or identified in its privilege log.” In other words, the Referee’s
order imposed on each defendant an affirmative obligation to review BillFloat’s production and
then to “produce his own additionally responsive documents.” Here, neither Gilbert nor
O’Malley did that. Rather, according to their counsel. they thought they were entitled to wait
2 GPB argues that the defendants’ response to RFP No. 76 also fails in this category. The Referee disagrees.
‘These defendants’ response to RFP No. 76 clearly states that, after a reasonable and diligent search, they do not have
documents response to this request.
REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS (1) TO COMPEL A
FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM
O'MALLEY AND GILBERT
4around for BillFloat to produce additional documents, or maybe to meet and confer with counsel
for GPB regarding the scope of production. Neither position is correct,
As separate defendants, both Gilbert and Q*Malley have independent discovery
obligations, While the Referee has gone to pains to avoid duplicative work, allowing these
defendants to say that everything in their possession that is responsive has already been produced
by BillFloat, where, as is apparent here, they have additionally responsive documents that have
not been already produced, it is incumbent upon them to make that production.
Therefore, following thorough oral argument on all issues related to this motion, the
Referee enters the following orders:
1. Gilbert and O’Malley will engage in a production of responsive documents in
their possession, not already produced by BillFloat or identified by BillFloat on a
privilege log. This production, including (if applicable) the preparation of their
own privilege logs, that corresponds to the schedule (and subject to the same
limitations) as set forth in Subparagraphs A(1) and A(2), above, except that
the initial production date. otherwise set for June 1, 2017 is extended to June 5,
2017.
th
GPB’s request for monetary sanctions in the sum of $975 is granted, jointly and
severally against Gilbert and Q°Malley and their counsel. While the Referee
appreciates the efforts Gilbert and O’Malley made to comply with the Referee’s
May 9, 2017 order, if there were any question about their obligations to respond
to the RFP's under consideration here, crafting their own interpretation for
compliance was not the way to handle it. The Referee specially finds that $975,
which GPB cited as the cost for preparing its joint motion to compel, is
reasonable under the circumstances.
3. GPB’s request for preclusionary sanctions is denied.
c. The Pa
‘he Pay te about the Production of Metadata
The parties also raised the issue of the production of certain documents in native format,
or the separate production of certain documents containing metadata. It was apparent to the
Referee that this issue was not ripe for resolution, so the parties are directed to meet and confer
to see if a stipulated resolution is possible.
REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS (1) TO COMPEL A
FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL 4 FURTHER RESPONSE FROM
O'MALLEY AND GILBERT
6DB. Miscellaneous
The Referee has advised the parties that he will be out of the country from May 29, 2016
to June 26, 2013. During that time, he has requested Judge Patrick Mahoney (reachable through
the Referee’s Case Manager, Ms. Oja) to be available for emergencies. Judge Mahoney will not
be familiar with the case or its issues, however, and will only be able to provide limited or basic
assistance, more in the nature of mediation services, to the parties pending the Referee’s return.
Judge Mahoney will not be signing any orders related to this matter,
IT IS SO ORDERED:
DATED: May 26, 2017
REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS G) TO COMPEL A
FURTHER RESPONSE FROM BILLFLOAT AND 2) TO COMPEL A FURTHER RESPONSE FROM
O'MALLEY AND GILBERT
7PROOF OF SERVICE BY EMAIL & U.S. MAIL
Re: Golden Pacifie Bank, N.A. vs. BillFloat, Ine. et al.
Reference No. 1100086800
I, Tina Oja, not a party to the within action, hereby declare that on May 26, 2017, | served the
attached Referee's Order Granting Golden Pacific Bank's Motions (1) To Compel A Further Response From
BillFloat and (2) To Compe! A Futher response From O'Malley and Gilbert on the parties in the within action by
Email and by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in
the United States Mail, at San Francisco, CALIFORNIA, addressed as follows:
Bruce A. Scheidt Esq. William T. Webb Esq.
Christopher Onstoit Esq. Jenmifer D. Su Esq.
Kronick Moskovitz Tiedemann & Girard Webb Legal Group
400 Capitol Mall 133 Montgomery Street
27th Floor Suite 1200
Sacramento, CA 95814 San Francisco, CA 94104
Phone: 916-321-4500 Phone: 415-277-7200
bscheidt@kmtg.com wwebb@webblegalgroup.com
constott@kmtg.com jsu@webblegalgroup.com
Parties Represented: Parties Represented:
Golden Pacific Bank BillFloat, Inc.
Peter L. Isola Esq.
Tyler A. Carle Esq.
Hinshaw & Culbertson LLP
One California St.
18th Floor
San Francisco, CA 94111
Phone: 415-362-6000
pisola@hinshawlaw.com
tearle@hinshawlaw.com
Parties Represented:
Ryan Gilbert
Sean O'Malley
I declare under penalty of perjury the foregoing to be true and correct. Executed at San Francisco,
CALIFORNIA on May 26, 2017.
uk. Oye
Tina Oja Y
toja@jamsadr.com.
Preview
OCA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jun-02-2017 4:42 pm Case Number: CGC-16-549804 Filing Date: Jun-02-2017 1:41 Filed by: CLARK BANAYAD Image: 05888872 ORDER GOLDEN PACIFIC BANK, NLA. VS. BILLFLOAT, INC. ET AL 001005888872 Instructions: Please place this sheet on top of the document to be scanned.Judge James L. Warren (Ret.} 6 ven JUN 2-207 JAMS 3 Two Embarcadero Center, Suite 1500 San Francisco, CA 94111 GLERK OF THE COURT Telephone (415) 982-5267 BY ein, Ss Facsimile (415) 982-5287 Referee Per CCP § 638(a) SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COL INTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION Golden Pacific Bank, N.A., Plaintiffs, vs. BillFloat, Inc., Ryan Gilbert, Sean O*Malley, and DOES 1 ~ 50, inclusive, Defendants. BILLFLOAT. INC. Cross-Complainant, VS. GOLDEN PACIFIC BANK, N.A., and ROES 1-50, Cross-Defendants. Case No. CGC-16-549804 REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM O'MALLEY AND GILBERT Before the Referee is Golden Pacific Bank's (“GPB’s") motions (1) to compel a further response from BillFloat to GPB’s Special Interrogatories, Set One, and its Requests for Production of Documents, Sets One and Two, and (2) to compel a further response from Ryan Gilbert and Sean O'Malley to its Requests for Production of Documents, Set One. In accordance with the stipulated abbreviated discovery resolution procedures agreed to by the parties, moving REFEREES ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS (2) TO COMPELA FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM O’MALLEY AND GILBERT tand opposition papers were filed! and, on May 25, 2017, the undersigned held a teleconference with counsel for all parties to argue the motions. GPB was represented by Christopher Onstott from the law firm of Kronick Moskovitz Tiedemann & Girard. BillFloat was represented by William T. Webb and Jennifer D. Su from the Webb Legal Group, Gilbert and O’Malley were represented by Tyler A. Carle from the law firm of Hinshaw & Culbertson LLP. All counsel were given an opportunity to argue their positions fully. At the conclusion of the hearing, the Referee orally issued the following orders, which he indicated would be reduced to writing in this Order. Prior to finalizing the Order, the Referee circulated a draft to all counsel to ensure that all nuances from the hearing had been captured. This Order thus represents the Referee’s rulings, as agreed to by counsel, or as ordered by the Referee following the parties’ presentation of competing positions. A. rther Respon! mpelling BillFloat to provide further responses to GPB’s Special Interrogatories, Set One, and its Requests for Production of Documents, Sets One and Two. A related order was entered against GPB in connection with BillFloat’s motion to compel as against it. At the hearing on these earlier motions, BillFloat had urged that all documents responsive to the several requests before the Referee be produced on or before April 27, 2017. This condition was added to the Referee’s orders. According to GPB’s motion, it complied with the deadline to provide amended responses to discovery and to produce documents, but BillFloat did not. GPB’s briefing on the motion further indicated that the parties are in the process of meeting-and-conferring on further electronic search terms for production of documents. (BillFloat indicated that there are issues with GPB’s responses and production, as well, but any such issues are not currently before me.) Rather, following a series of meet and confer efforts, GPB asserts that it was forced to file this motion to compel to get BillFloat’s attention so BillFloat would provide the ordered amended responses and respond to GPB’s meet- and-confer atiempts. BillFloat didn’t argue that it had fully complied with the Referee’s April 18, 2017 order, but urged that it was more focused on getting documents produced rather than modifying the 3 Gilbert and O’Malley filed an objection to the timing of GPB’s motion against them. At the Referee’s invitation, however, they submitted papers in opposition to the motion, which papers were received on the morning of the teleconference. In the interest of resolving as many issues as expeditiously as possible, and finding no prejudice to Gilbert and O° Malley by the timing of the motions and opposition, the Referee overrules the objection. REFEREE’S ORDER GRANT! 3OLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM O'MALLEY AND GILBERT 2nm written form of its discovery responses: it focused on “substance over form.” With particular reference to the so-called KPI reports, BillFloat said that it thought that they had in fact been produced (or at least a majority of them had), a position confirmed by what appeared to by live- time communication between BillFloat’s counsel and personnel at the BillFloat offices. BillFloat posited that it had already produced an additional 15,000 documents, and more were being produced on a rolling basis. BillFloat further argued that many of the Special Interrogatories dealt the so-called Joint IP SOWs, an issue that it had sought to defuse by referring solely to documents but which the Referee had decided adversely to BillFloat. To take the materials from the documents and put them into interrogatory response form was taking an inordinate amount of time, but BillFloat thought the task could be competed by May 30. 2017, although it requested an extension to June 2, 2017 to finish the task. Finally, the parties argued about the breadth of RFP Nos. 115 and 116, The Reteree agrees that the requests are facially overbroad, but this issue was addressed at the hearing on the original motions to compel. Counsel for BillFloat at that time offered that compliance would be fairly easy; it was only after he got into the actual production that the scope issue emerged as prominently as he how sees it. However, that issue was argued and decided over a month ago. The Referee’s earlier order will stand. The parties further argued about a BillFloat position declining to produce certain documents that allegedly contained trade secret information until an Attorneys’ Eyes Only (“AEO”) provision could be added to the extant Protective Order. The existence of this trade secret information was something that BillFloat’s counsel had not been aware of during the earlier arguments on the motions to compel, so be did not raise the point at the time. As part of the Court’s April 18, 2017 order, BillFloat and GPB were ordered to meet and confer as to terms to be included in an amended protective order. Having not heard anything from GPB in this regard. on Sunday, May 14, 2017, BillFloat’s counsel sent GPB’s counsel a proposed amended form of stipulated protective order with an AEO provision, but had not yet receive return comments, The parties agreed that the key document requests before the Referee were Nos. 115, 1 16, and 130. Following thorough argument on all related topics, the Referee enters the following orders: REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM O’MALLEY AND GILBERT 3No later than June 1, 2017, BillFloat will produce the documents called for in RFP Nos. 130 (including all KPI reports, except for the daily KPI reports as previously agreed by the Parties and as ordered in the April 18, 2017 Order), 115 and 116, and provide compliant verified amended responses to those RFP Nas. consistent with the Court’s order. Given the volume of production potential involved in RFP Nos. 115 and 116, the final date for production may, upon a showing of good cause, be extended to June 16, 2017. Should production not be complete by that date, upon a showing of unforeseeable and/or unanticipated difficulties, the final production date may be extended to June 30, 2017. Under no circumstances will production be extended beyond that date. Regardless of whether the “final date” is extended, BillFloat’s document production will be on a rolling basis; as documents become available for production, they will promptly be delivered to counsel for GPB. The current date of May 30, 2017 for the mutual exchange of privilege logs is extended to June 2, 2017, In connection with BillFloat’s production of documents called for in Paragraph 1, above, an up-to-date privilege log will be provided on the “final date,” should a different date from Jme 1, 2017 be determined by the Referee, on which documents are produced. Documents will be produced under the existing Protective Order. Should counsei wish to negotiate an AEO provision, they may do so but that will not delay the production of documents currently before the Referee. No later than June 1, 2017, BillFloat will provide complete, verified amended responses to the Special Interrogatories (in GPB’s Special Interrogatories Propounded to BillFloat, Set One) for which BillFloat was compelled to provide further responses in the Court's April 18, 2017 Order. GPB’s request for monetary sanctions in the sum of $2,275 is granted, jointly and severally against BillFloat and BillFloat’s counsel. While the Referee appreciates the efforts BillFloat made to comply with the Referee’s April 18, 2017 order, if compliance was not possible, simply taking matters into its own hand and establishing its own schedule for compliance is not the way to handle inability to comply with a Court’s order. The Referee specially finds that $2,275, which GPB REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK’S MOTIONS (1) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM O'MALLEY AND GILBERT 40 cited as the cost for preparing its motion io compel, is reasonable under the circumsiances, 6. GPB’s request for preclusionary sanctions is denied. B. GPB’s Mai On May 9, 2017, the Referee entered his orders compelling Gilbert and O'Malley to provide further responses to GPB's RFP, Set One. Gn May 18, 2017, Gilbert and O"Malley each ponses filed a massive Second Amended Response to that RFP. The bulk of this amended response was devoted to identifying, by Bates number, what appears to be more or less 1,000 specifically identified documents responsive to RFP Nos. 1 ~ 18. These responses are not the subject of the current motion to compel. In response to several other RFPs, O'Malley and Gilbert affirmatively represented that they had no documents. In response to RFP Nos. 27, 28, 30, 31, 32, 34, 41, 42, 52, $3, 54 63, 66, 75, and 782 however, both defendants responded: “To the extent the records requested in this Category are subject to meet and confer efforts between GPB and BillFloat, Responding party will amend its response to this Request in the event responsive documents are either produced or identified in a privilege log by BillFloat.” This language was inserted verbatim into each of the referenced RFPs. During oral argument, it quickly became apparent that Gilbert and ©’ Malley were operating under a misapprehension regarding the requirements imposed on them by the Referee’s May 9, 2017 Order. With respect to cach of the RFP’s at issue, the Referee ordered Gilbert and O*Malley to comply with the specific request along the lines of the Referee’s order to them with respect to RFP Nos. 19 and 20. That order called for Gilbert and O’Malley to review documents produced by BillFloat (or identified by BillFloat on a privilege log) and then state that “he has either located and will produce his own additionally responsive documents (or if covered by an applicable privilege, he will prepare his own privilege log, or that he has no documents not already produced by BillFloat or identified in its privilege log.” In other words, the Referee’s order imposed on each defendant an affirmative obligation to review BillFloat’s production and then to “produce his own additionally responsive documents.” Here, neither Gilbert nor O’Malley did that. Rather, according to their counsel. they thought they were entitled to wait 2 GPB argues that the defendants’ response to RFP No. 76 also fails in this category. The Referee disagrees. ‘These defendants’ response to RFP No. 76 clearly states that, after a reasonable and diligent search, they do not have documents response to this request. REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS (1) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL A FURTHER RESPONSE FROM O'MALLEY AND GILBERT 4around for BillFloat to produce additional documents, or maybe to meet and confer with counsel for GPB regarding the scope of production. Neither position is correct, As separate defendants, both Gilbert and Q*Malley have independent discovery obligations, While the Referee has gone to pains to avoid duplicative work, allowing these defendants to say that everything in their possession that is responsive has already been produced by BillFloat, where, as is apparent here, they have additionally responsive documents that have not been already produced, it is incumbent upon them to make that production. Therefore, following thorough oral argument on all issues related to this motion, the Referee enters the following orders: 1. Gilbert and O’Malley will engage in a production of responsive documents in their possession, not already produced by BillFloat or identified by BillFloat on a privilege log. This production, including (if applicable) the preparation of their own privilege logs, that corresponds to the schedule (and subject to the same limitations) as set forth in Subparagraphs A(1) and A(2), above, except that the initial production date. otherwise set for June 1, 2017 is extended to June 5, 2017. th GPB’s request for monetary sanctions in the sum of $975 is granted, jointly and severally against Gilbert and Q°Malley and their counsel. While the Referee appreciates the efforts Gilbert and O’Malley made to comply with the Referee’s May 9, 2017 order, if there were any question about their obligations to respond to the RFP's under consideration here, crafting their own interpretation for compliance was not the way to handle it. The Referee specially finds that $975, which GPB cited as the cost for preparing its joint motion to compel, is reasonable under the circumstances. 3. GPB’s request for preclusionary sanctions is denied. c. The Pa ‘he Pay te about the Production of Metadata The parties also raised the issue of the production of certain documents in native format, or the separate production of certain documents containing metadata. It was apparent to the Referee that this issue was not ripe for resolution, so the parties are directed to meet and confer to see if a stipulated resolution is possible. REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS (1) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND (2) TO COMPEL 4 FURTHER RESPONSE FROM O'MALLEY AND GILBERT 6DB. Miscellaneous The Referee has advised the parties that he will be out of the country from May 29, 2016 to June 26, 2013. During that time, he has requested Judge Patrick Mahoney (reachable through the Referee’s Case Manager, Ms. Oja) to be available for emergencies. Judge Mahoney will not be familiar with the case or its issues, however, and will only be able to provide limited or basic assistance, more in the nature of mediation services, to the parties pending the Referee’s return. Judge Mahoney will not be signing any orders related to this matter, IT IS SO ORDERED: DATED: May 26, 2017 REFEREE’S ORDER GRANTING GOLDEN PACIFIC BANK'S MOTIONS G) TO COMPEL A FURTHER RESPONSE FROM BILLFLOAT AND 2) TO COMPEL A FURTHER RESPONSE FROM O'MALLEY AND GILBERT 7PROOF OF SERVICE BY EMAIL & U.S. MAIL Re: Golden Pacifie Bank, N.A. vs. BillFloat, Ine. et al. Reference No. 1100086800 I, Tina Oja, not a party to the within action, hereby declare that on May 26, 2017, | served the attached Referee's Order Granting Golden Pacific Bank's Motions (1) To Compel A Further Response From BillFloat and (2) To Compe! A Futher response From O'Malley and Gilbert on the parties in the within action by Email and by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at San Francisco, CALIFORNIA, addressed as follows: Bruce A. Scheidt Esq. William T. Webb Esq. Christopher Onstoit Esq. Jenmifer D. Su Esq. Kronick Moskovitz Tiedemann & Girard Webb Legal Group 400 Capitol Mall 133 Montgomery Street 27th Floor Suite 1200 Sacramento, CA 95814 San Francisco, CA 94104 Phone: 916-321-4500 Phone: 415-277-7200 bscheidt@kmtg.com wwebb@webblegalgroup.com constott@kmtg.com jsu@webblegalgroup.com Parties Represented: Parties Represented: Golden Pacific Bank BillFloat, Inc. Peter L. Isola Esq. Tyler A. Carle Esq. Hinshaw & Culbertson LLP One California St. 18th Floor San Francisco, CA 94111 Phone: 415-362-6000 pisola@hinshawlaw.com tearle@hinshawlaw.com Parties Represented: Ryan Gilbert Sean O'Malley I declare under penalty of perjury the foregoing to be true and correct. Executed at San Francisco, CALIFORNIA on May 26, 2017. uk. Oye Tina Oja Y toja@jamsadr.com.