Preview
Perry J. Woodward (State Bar No. 183876) Electronically Filed
pwoodward@hopkinscarley.com by Superior Court of CA,
Liam J. O’Connor (State Bar No. 246638) County of Santa Clara,
loconnor@hopkinscarley.com on 5/20/2020 5:49 PM
HOPKINS & CARLEY
A Law Corporation
Reviewed By: P. Lai
The Letitia Building Case #19CV354297
70 S First Street Envelope: 4358828
San Jose, CA 95113-2406
mailing address:
P.O. Box 1469
San Jose, CA 95109-1469
Telephone: (408) 286-9800
Facsimile: (408) 998-4790
Attorneys for Defendants
Marc E. Poirier and Anne E. Poirier,
10 trustees of The Poirier Family Revocable Trust
Dated June 10, 1987
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SANTA CLARA
14 JEREMY ROVINSKE, CASE NO. 19CV354297
i Plaintiff, SEPARATE STATEMENT IN SUPPORT
OF MOTION TO COMPEL FURTHER
16 Vv. RESPONSES TO THE POIRIERS’
DEMANDS FOR PRODUCTION OF
17 MARC E. POIRIER AND ANNE E. DOCUMENTS (SET ONE), REQUESTS
POIRIER trustees of the Poirier Family FOR ADMISSION (SET ONE), FORM
18 Revocable Trust Dated June 10, 1987, INTERROGATORIES (SET TWO);
et al., REQUEST FOR MONETARY
19 SANCTIONS
Defendants.
20 Date:
Time:
21 Dept.:
Judge:
22
File Date: September 4, 2019
23 AND RELATED CROSS-ACTION Trial Date: Not Set
24
25 Pursuant to Rule 3.1345 of the California Rules of Court, Defendants and Cross-
26 Complainants Marc E. Poirier and Anne E. Poirier (the “Poiriers”) submits this Separate
27 Statement in Support of their Motion to Compel Further Responses to the Poiriers’ Demands for
28 Production (Set One), Requests for Admission (Set One), and Form Interrogatories (Set Two),
HopKINs & CARLEY 697\3516628.3
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE #PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
and For Monetary Sanctions against Plaintiff and Cross-Defendant Jeremy Rovinske
(“Rovinske”) and his counsel.
DEMANDS FOR PRODUCTION
DEMAND FOR PRODUCTION NO. 1:
Any and all DOCUMENTS/MATERIALS evidencing each agreement between you and
these requesting parties including any modification, addendum, confirmation, termination or
alteration.
FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 1:
Objection. The demand is not reasonably calculated to lead to discovery of admissible
10 evidence [CCP 2017.010]. The only relevant “... agreement . . .” between “. . . requesting
11 parties . . .” and Responding Party is the July 26, 2019 payment demand [Exhibit B to
12 Plaintiff’s Complaint For Specific Performance filed September 4, 2019] by “. . . requesting
13 parties . . .” and Plaintiffs performance via tender of payment in full to “. . . requesting parties
14 ...” via certified funds August 8, 2019. “.. . requesting parties . . .” have possession of the
i August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks.
16 Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the
17 likelihood that the information sought will lead to the discovery of admissible evidence [CCP
18 2017.020].
19 Objection. The demand is employed in a manner and to an extent that it causes
20 unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]].
21 Objection. The request fails to adequately and reasonably designate the documents,
22 tangible things, or other property either by specifically describing each individual item or by
23 reasonably particularizing each category of item [CCP 2031.030[e][1]].
24 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,”
25 commonly defined by counsel, but no definitions are included in the demand leaving the request
26 vague, ambiguous, over-broad, and indecipherable.
27 //1
28 Mt
HopKINs & CARLEY 697\3516628.3 -2-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
Without waiver of the objection, Responding Party responds:
The production, inspection, and related activity will be allowed in part (i-e., to the extent
the request is understood by him), and all documents in the requested category that are in his
possession and to which no objection is being made will be included in the production [CCP
2031.220].
Responding Party affirms he has made a diligent search and a reasonable inquiry in an
effort to comply with the request, to the extent it can be understood [CCP 2031.230].
Responding Party is unable to comply with the request as he is not aware of the existence
of “... agreement between . . .” him“... and these requesting parties . . .” constituting “. ..
10 modification, addendum confirmation, termination or alteration.” [CCP 2031.230].
11 Responding Party is informed and believes and thereon responds that any such documents are in
12 the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”],
13 b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230].
14 REASON FURTHER RESPONSE SHOULD BE COMPELLED:
i After a catalog of boilerplate and meritless objections, the response states that the
16 substantive portion of the response is limited to material as to which no objection is being made.
17 The response does not identify what has been withheld as required by CCP § 2031.240 and which
18 of the objections apply to what has been withheld. The objections are meritless.
19 The assertion that the request fails to adequately and reasonably designate the documents,
20 tangible things, or other property either by specifically describing each individual item or by
21 reasonably particularizing each category of and that the demand includes capitalized words
22 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included
23 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous.
24 The capitalized words “DOCUMENTS/MATERIALS?” are, in fact, defined in the request at page
25 5-6.
26 Nor is the request in any way vague or not reasonably particularized. Even if they were
27 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.”
28 Where the “nature of the information sought is apparent, the proper solution is to provide an
HopKINs & CARLEY 697\3516628.3 -3-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499,
509. This is the type of objection treated as a “nuisance” objection, exposing the responding
party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR
833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858,
859.
The assertion that the request the burden, expense, and intrusiveness of the demand clearly
outweighs the likelihood that the information sought will lead to the discovery of admissible
evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is
equally frivolous. Of course, burden is not a proper objection. The proper objection is one of
10 “undue” burden or undue expense. See CCP § 2031.210(d). This response does not identify the
11 documents falling within any category of item in the demand to which an objection is being made
12 as required by CCP 2031.240.
13 The claim that the only relevant “... agreement . . .” between “. . . requesting parties
14 ...” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiffs
i Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties
16 ...” and Plaintiff's performance via tender of payment in full to “. . . requesting parties . . .” via
17 certified funds August 8, 2019. “. .. requesting parties . . .” have possession of the August 8,
18 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks is meritless.
19 Information and documents must be provided information sought relevant to the “subject
20 matter” of the pending action or to the determination of a motion in that action. CCP § 2017.010.
21 This is a broad standard. It extends to any information that reasonably might lead to other
22 evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of
23 reason, logic and common sense. Lipton v. Sup.Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 CA4th
24 1599, 1611, 56 CR2d 341, 348. Admissibility at trial is not required. Rather, the test is whether
25 the information sought might reasonably lead to other evidence that would be admissible. CCP §
26 2017.010 ; see Davies v. Sup.Ct. (State of Calif.) (1984) 36 C3d 291, 301, 204 CR 154, 161;
27 Volkswagen of America, Inc. v. Sup.Ct. (Rusk) (2006) 139 CA4th 1481, 1490-1491, 43 CR3d
28 723, 728. To be relevant for discovery purposes, it need only be “possible” that information in
HopKINs & CARLEY 697\3516628.3 -4-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
a particular subject area could be relevant or admissible at the time of trial. Maldonado v. Sup.Ct.
(ICG Telecom Group, Inc.) (2002) 94 CA4th 1390, 1397, 115 CR2d 137, 142-143. The
“relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible
evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting
discovery, particularly where the precise issues in the case are not yet clearly established.
Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 C3d 785, 790, 183 CR 810, 813,
fns. 7-8.
The agreements that led to the payment demand notice are indisputably directly relevant.
Such agreements frame the payment obligations and rights of the parties. Furthermore, other
10 agreements between the parties may affect the obligations between the parties. Only the Plaintiff
11 knows what he contends to be the full and complete agreements between the parties, and only
12 upon review of Plaintiffs production can Defendants determine Plaintiff's contention. In
13 addition, only upon the production of all agreements between the parties can Defendants
14 determine what are the integrated and unambiguous written agreements, and/or whether parol
i evidence is required to explain their terms.
16 As the objections are boilerplate and meritless objections, the withholding of the
17 identification production of documents is improper. Further the Code requires that materials that
18 are being withheld due to objection be identified.
19 Further, the substantive portion of the response dissects the request, changes it to include
20 the word “constituting” instead of “including” and selectively responds to a re-crafted request.
21 Plaintiff must provide a straightforward and non-evasive response to the Request as written.
22 DEMAND FOR PRODUCTION NO. 2:
23 Any and all DOCUMENTS/MATERIALS evidencing each agreement concerning
24 ownership, past or present, of the stock of National Mailing Services, Inc., including any
25 modification, addendum, confirmation, termination or alteration.
26 FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 2:
27 Objection. The demand is not reasonably calculated to lead to discovery of admissible
28 evidence [CCP 2017.010]. The only relevant “... agreement . . .” between “. . . requesting
HopKINs & CARLEY 697\3516628.3 -5-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
parties . . .”” and Responding Party is the July 26, 2019 payment demand [Exhibit B to
Plaintiff’s Complaint For Specific Performance filed September 4, 2019] by “. . . requesting
parties . . .” and Plaintiff's performance via tender of payment in full to “. . . requesting parties
...” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the
August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks.
Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence [CCP
2017.020].
Objection. The demand is employed in a manner and to an extent that it causes
10 unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]].
11 Objection. The request fails to adequately and reasonably designate the documents,
12 tangible things, or other property either by specifically describing each individual item or by
13 reasonably particularizing each category of item [CCP 2031.030[e][1]].
14 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,”
i commonly defined by counsel, but no definitions are included in the demand leaving the request
16 vague, ambiguous, over-broad, and indecipherable.
17 Without waiver of the objection, Responding Party responds:
18 The production, inspection, and related activity will be allowed in part (i-e., to the extent
19 the request is understood by him), and all documents in the requested category that are in his
20 possession and to which no objection is being made will be included in the production [CCP
21 2031.220].
22 Responding Party affirms he has made a diligent search and a reasonable inquiry in an
23 effort to comply with the request, to the extent it can be understood [CCP 2031.230].
24 Responding Party is unable to comply with the request as he is not aware of the existence
25 of“... agreement between .. .” him“... and these requesting parties . . .” constituting “. . .
26 modification, addendum confirmation, termination or alteration.” [CCP 2031.230].
27 Responding Party is informed and believes and thereon responds that any such documents are in
28 Mt
HopKINs & CARLEY 697\3516628.3 -6-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”],
b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230].
Objection. The “. . . requesting parties . . .” July 26, 2019 payment demand [Exhibit B
to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] is addressed to
Plaintiff, by “. . . requesting parties . . ..” does not seek payment from NMS, and Plaintiff
tendered of payment in full to “. . . requesting parties . . .” via certified funds August 8, 2019.
“... requesting parties . . .” have possession of the August 8, 2019 correspondence from
Plaintiff's counsel as well as the enclosed Official Checks. Therefore, the payment demand
having been fully satisfied through tender by a party to whom the payment demand was addressed
10 by “.. . requesting parties . . .”, the “... ownership, past or present, of the stock of. . .’” NMS,
11 including “. . . modification, addendum, confirmation, termination or alteration.” is
12 irrelevant, and discovery thereof is not reasonable calculated to lead to the discovery of
13 admissible evidence [CCP 2017.010].
14 REASON FURTHER RESPONSE SHOULD BE COMPELLED:
i After a catalog of boilerplate and meritless objections, the response states that the
16 substantive portion of the response is limited to material as to which no objection is being made.
17 The response does not identify what has been withheld as required by CCP § 2031.240 and which
18 of the objections apply to what has been withheld. The objections are meritless.
19 The assertion that the request fails to adequately and reasonably designate the documents,
20 tangible things, or other property either by specifically describing each individual item or by
21 reasonably particularizing each category of and that the demand includes capitalized words
22 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included
23 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous.
24 The capitalized words “DOCUMENTS/MATERIALS?” are, in fact, defined in the request at page
25 5-6.
26 Nor is the request in any way vague or not reasonably particularized. Even if they were
27 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.”
28 Where the “nature of the information sought is apparent, the proper solution is to provide an
HopKINs & CARLEY 697\3516628.3 -7-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499,
509. This is the type of objection treated as a “nuisance” objection, exposing the responding
party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR
833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858,
859.
The assertion that the request the burden, expense, and intrusiveness of the demand clearly
outweighs the likelihood that the information sought will lead to the discovery of admissible
evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is
equally frivolous. Of course, burden is not a proper objection. The proper objection is one of
10 “undue” burden or undue expense. See CCP § 2031.210(d). This response does not identify the
11 documents falling within any category of item in the demand to which an objection is being made
12 as required by CCP 2031.240.
13 The claim that the only relevant “... agreement . . .” between “. . . requesting parties
14 ...” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiffs
i Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties
16 ...” and Plaintiff's performance via tender of payment in full to “. . . requesting parties . . .” via
17 certified funds August 8, 2019. “. .. requesting parties . . .” have possession of the August 8,
18 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks is meritless.
19 Information and documents must be provided information sought relevant to the “subject
20 matter” of the pending action or to the determination of a motion in that action. CCP § 2017.010.
21 This is a broad standard. It extends to any information that reasonably might lead to other
22 evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of
23 reason, logic and common sense. Lipton v. Sup.Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 CA4th
24 1599, 1611, 56 CR2d 341, 348. Admissibility at trial is not required. Rather, the test is whether
25 the information sought might reasonably lead to other evidence that would be admissible. CCP §
26 2017.010 ; see Davies v. Sup.Ct. (State of Calif.) (1984) 36 C3d 291, 301, 204 CR 154, 161;
27 Volkswagen of America, Inc. v. Sup.Ct. (Rusk) (2006) 139 CA4th 1481, 1490-1491, 43 CR3d
28 723, 728. To be relevant for discovery purposes, it need only be “possible” that information in
HopKINs & CARLEY 697\3516628.3 -8-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
a particular subject area could be relevant or admissible at the time of trial. Maldonado v. Sup.Ct.
(ICG Telecom Group, Inc.) (2002) 94 CA4th 1390, 1397, 115 CR2d 137, 142-143. The
“relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible
evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting
discovery, particularly where the precise issues in the case are not yet clearly established.
Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 C3d 785, 790, 183 CR 810, 813,
fns. 7-8.
Agreements concerning ownership, past or present, of the stock of National Mailing
Services, Inc., including any modification, addendum, confirmation, termination or alteration are
10 clearly relevant as to who is entitled to company stock.
11 Similarly the claim that the requesting party already has certain referenced documents is
12 not a proper response. The requesting party only has what it believes to be some relevant
13 documents. Only by a production can it be confirmed that the parties have no dispute as to the
14 authenticity and content of documents.
i As the objections are boilerplate and meritless objections, the withholding of the
16 identification production of documents is improper. Further the Code requires that materials that
17 are being withheld due to objection be identified.
18 Further, the substantive portion of the response dissects the request, changes it to include
19 the word “constituting” instead of “including” and selectively responds to a re-crafted request.
20 Even worse, Plaintiff then attempts to further qualify the response as limited to Plaintiff's
21 “understanding” of a request that he effectively crafted. Plaintiff must provide a straightforward
22 and non-evasive response to the Request as written.
23 DEMAND FOR PRODUCTION NO. 3:
24 Any and all DOCUMENTS/MATERIALS evidencing each agreement and/or note
25 concerning sums due these requesting parties, past or present, including any modification.
26 FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 3:
27 Objection. The demand is not reasonably calculated to lead to discovery of admissible
28 evidence [CCP 2017.010]. The only relevant “... agreement . . .” between “. . . requesting
HopKINs & CARLEY 697\3516628.3 -9-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
parties . . .”” and Responding Party is the July 26, 2019 payment demand [Exhibit B to
Plaintiff’s Complaint For Specific Performance filed September 4, 2019] by “. . . requesting
parties . . .” and Plaintiff's performance via tender of payment in full to “. . . requesting parties
...” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the
August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks.
Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence [CCP
2017.020].
Objection. The demand is employed in a manner and to an extent that it causes
10 unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]].
11 Objection. The request fails to adequately and reasonably designate the documents,
12 tangible things, or other property either by specifically describing each individual item or by
13 reasonably particularizing each category of item [CCP 2031.030[e][1]].
14 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,”
i commonly defined by counsel, but no definitions are included in the demand leaving the request
16 vague, ambiguous, over-broad, and indecipherable.
17 Without waiver of the objection, Responding Party responds:
18 The production, inspection, and related activity will be allowed in part (i-e., to the extent
19 the request is understood by him), and all documents in the requested category that are in his
20 possession and to which no objection is being made will be included in the production [CCP
21 2031.220].
22 Responding Party affirms he has made a diligent search and a reasonable inquiry in an
23 effort to comply with the request, to the extent it can be understood [CCP 2031.230].
24 Responding Party is unable to comply with the request as he is not aware of the existence
25 of“... agreement between .. .” him“... and these requesting parties . . .” constituting “. . .
26 modification, addendum confirmation, termination or alteration.” [CCP 2031.230].
27 Responding Party is informed and believes and thereon responds that any such documents are in
28 Mt
HopKINs & CARLEY 697\3516628.3 -10-
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”],
b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230].
Objection. The “. . . requesting parties . . .” July 26, 2019 payment demand [Exhibit B
to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] is addressed to
Plaintiff, by “. . . requesting parties . . ..” does not seek payment from NMS, and Plaintiff
tendered of payment in full to “. . . requesting parties . . .” via certified funds August 8, 2019.
“... requesting parties . . .” have possession of the August 8, 2019 correspondence from
Plaintiff's counsel as well as the enclosed Official Checks. Therefore, the payment demand
having been fully satisfied through tender by a party to whom the payment demand was addressed
10 by “.. . requesting parties . . .”, the “... ownership, past or present, of the stock of. . .’” NMS,
11 including “. . . modification, addendum, confirmation, termination or alteration.” is
12 irrelevant, and discovery thereof is not reasonable calculated to lead to the discovery of
13 admissible evidence [CCP 2017.010].
14 REASON FURTHER RESPONSE SHOULD BE COMPELLED:
i After a catalog of boilerplate and meritless objections, the response states that the
16 substantive portion of the response is limited to material as to which no objection is being made.
17 The response does not identify what has been withheld as required by CCP § 2031.240 and which
18 of the objections apply to what has been withheld. The objections are meritless.
19 The assertion that the request fails to adequately and reasonably designate the documents,
20 tangible things, or other property either by specifically describing each individual item or by
21 reasonably particularizing each category of and that the demand includes capitalized words
22 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included
23 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous.
24 The capitalized words “DOCUMENTS/MATERIALS?” are, in fact, defined in the request at page
25 5-6.
26 Nor is the request in any way vague or not reasonably particularized. Even if they were
27 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.”
28 Where the “nature of the information sought is apparent, the proper solution is to provide an
HopKINs & CARLEY 697\3516628.3 ell
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499,
509. This is the type of objection treated as a “nuisance” objection, exposing the responding
party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR
833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858,
859.
The assertion that the request the burden, expense, and intrusiveness of the demand clearly
outweighs the likelihood that the information sought will lead to the discovery of admissible
evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is
equally frivolous. Of course, burden is not a proper objection. The proper objection is one of
10 “undue” burden or undue expense. See CCP § 2031.210(d).
11 The claim that the only relevant “... agreement . . .” between “. . . requesting parties . .
12 -” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiff’s
13 Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties . .
14 .” and Plaintiff's performance via tender of payment in full to “. . . requesting parties . . .” via
i certified funds August 8, 2019. “. . . requesting parties . . .” have possession of the August 8,
16 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks are
17 meritless.
18 Information and documents must be provided information sought relevant to the “subject
19 matter” of the pending action or to the determination of a motion in that action. CCP § 2017.010.
20 This is a broad standard. It extends to any information that reasonably might lead to other
21 evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of
22 reason, logic and common sense. Lipton v. Sup.Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 CA4th
23 1599, 1611, 56 CR2d 341, 348. Admissibility at trial is not required. Rather, the test is whether
24 the information sought might reasonably lead to other evidence that would be admissible. CCP §
25 2017.010 ; see Davies v. Sup.Ct. (State of Calif.) (1984) 36 C3d 291, 301, 204 CR 154, 161;
26 Volkswagen of America, Inc. v. Sup.Ct. (Rusk) (2006) 139 CA4th 1481, 1490-1491, 43 CR3d
27 723, 728 . To be relevant for discovery purposes, it need only be “possible” that information in
28 a particular subject area could be relevant or admissible at the time of trial. Maldonado v. Sup.Ct.
HopKINs & CARLEY 697\3516628.3 ele
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
(ICG Telecom Group, Inc.) (2002) 94 CA4th 1390, 1397, 115 CR2d 137, 142-143. The
“relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible
evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting
discovery, particularly where the precise issues in the case are not yet clearly established.
Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 C3d 785, 790, 183 CR 810, 813,
fns. 7-8. The agreements that led to the payment demand notice are indisputably directly
relevant.
Similarly the claim that the requesting party already has certain referenced documents is
not a proper response. The requesting party only has what it believes to be some relevant
10 documents. Only by a production can it be confirmed that the parties have no dispute as to the
11 authenticity and content of documents.
12 As the objections are boilerplate and meritless objections, the withholding of the
13 identification production of documents is improper. Further the Code requires that materials that
14 are being withheld due to objection be identified.
i Further, the substantive portion of the response dissects the request, changes it to include
16 the word “constituting” instead of “including” and selectively responds to a re-crafted request.
17 Even worse, Plaintiff then attempts to further qualify the response as limited to Plaintiff's
18 “understanding” of a request that he effectively crafted. Plaintiff must provide a straightforward
19 and non-evasive response to the Request as written.
20 DEMAND FOR PRODUCTION NO. 4:
21 Any and all DOCUMENTS/MATERIALS evidencing each agreement concerning
22 security for sums claimed due by these requesting parties, past or present, including any
23 modification, addendum, confirmation, termination or alteration.
24 FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 4:
25 Objection. The demand is not reasonably calculated to lead to discovery of admissible
26 evidence [CCP 2017.010]. The only relevant “. .. agreement . . .” between “. . . requesting
27 parties . . .” and Responding Party is the July 26, 2019 payment demand [Exhibit B to
28 Plaintiffs Complaint For Specific Performance filed September 4, 2019] by “. . . requesting
HopKINs & CARLEY 697\3516628.3 else
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
parties . . .” and Plaintiff’s performance via tender of payment in full to “. . . requesting parties
...” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the
August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks.
Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence [CCP
2017.020].
Objection. The demand is employed in a manner and to an extent that it causes
unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]].
Objection. The request fails to adequately and reasonably designate the documents,
10 tangible things, or other property either by specifically describing each individual item or by
11 reasonably particularizing each category of item [CCP 2031.030[ce][1]].
12 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,”
13 commonly defined by counsel, but no definitions are included in the demand leaving the request
14 vague, ambiguous, over-broad, and indecipherable.
i Without waiver of the objection, Responding Party responds:
16 The production, inspection, and related activity will be allowed in part (i-e., to the extent
17 the request is understood by him), and all documents in the requested category that are in his
18 possession and to which no objection is being made will be included in the production [CCP
19 2031.220].
20 Responding Party affirms he has made a diligent search and a reasonable inquiry in an
21 effort to comply with the request, to the extent it can be understood [CCP 2031.230].
22 Responding Party is unable to comply with the request as he is not aware of the existence
23 of“... agreement between . . .” him “. .. and these requesting parties . . .” constituting “. . .
24 modification, addendum confirmation, termination or alteration.” [CCP 2031.230].
25 Responding Party is informed and believes and thereon responds that any such documents are in
26 the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”],
27 b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230].
28 Mt
HopKINs & CARLEY 697\3516628.3 elas
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
Objection. The “. . . requesting parties . . .” July 26, 2019 payment demand [Exhibit B
to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] is addressed to
Plaintiff, by “. . . requesting parties . . ..” does not seek payment from NMS, and Plaintiff
tendered of payment in full to “. . . requesting parties . . .” via certified funds August 8, 2019.
“"., requesting parties . . .” have possession of the August 8, 2019 correspondence from
Plaintiff's counsel as well as the enclosed Official Checks. Therefore, the payment demand
having been fully satisfied through tender by a party to whom the payment demand was addressed
by “.. . requesting parties . . .”, the “. .. ownership, past or present, of the stock of. . .’ NMS,
including “. . . modification, addendum, confirmation, termination or alteration.” is
10 irrelevant, and discovery thereof is not reasonable calculated to lead to the discovery of
11 admissible evidence [CCP 2017.010].
12 REASON FURTHER RESPONSE SHOULD BE COMPELLED:
13 After a catalog of boilerplate and meritless objections, the response states that the
14 substantive portion of the response is limited to material as to which no objection is being made.
i The response does not identify what has been withheld as required by CCP § 2031.240 and which
16 of the objections apply to what has been withheld. The objections are meritless.
17 The assertion that the request fails to adequately and reasonably designate the documents,
18 tangible things, or other property either by specifically describing each individual item or by
19 reasonably particularizing each category of and that the demand includes capitalized words
20 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included
21 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous.
22 The capitalized words “DOCUMENTS/MATERIALS” are, in fact, defined in the request at page
23 5-6.
24 Nor is the request in any way vague or not reasonably particularized. Even if they were
25 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.”
26 Where the “nature of the information sought is apparent, the proper solution is to provide an
27 appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499,
28 509. This is the type of objection treated as a “nuisance” objection, exposing the responding
HopKINs & CARLEY 697\3516628.3 ello
ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
SAN JOSE PALO ALTO
AND REQUEST FOR MONETARY SANCTIONS
party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR
833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858,
859.
The assertion that the request the burden, expense, and intrusiveness of the demand clearly
outweighs the likelihood that the information sought will lead to the discovery of admissible
evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is
equally frivolous. Of course, burden is not a proper objection. The proper objection is one of
“undue” burden or undue expense. See CCP § 2031.210(d).
Preview
Perry J. Woodward (State Bar No. 183876) Electronically Filed pwoodward@hopkinscarley.com by Superior Court of CA, Liam J. O’Connor (State Bar No. 246638) County of Santa Clara, loconnor@hopkinscarley.com on 5/20/2020 5:49 PM HOPKINS & CARLEY A Law Corporation Reviewed By: P. Lai The Letitia Building Case #19CV354297 70 S First Street Envelope: 4358828 San Jose, CA 95113-2406 mailing address: P.O. Box 1469 San Jose, CA 95109-1469 Telephone: (408) 286-9800 Facsimile: (408) 998-4790 Attorneys for Defendants Marc E. Poirier and Anne E. Poirier, 10 trustees of The Poirier Family Revocable Trust Dated June 10, 1987 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SANTA CLARA 14 JEREMY ROVINSKE, CASE NO. 19CV354297 i Plaintiff, SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER 16 Vv. RESPONSES TO THE POIRIERS’ DEMANDS FOR PRODUCTION OF 17 MARC E. POIRIER AND ANNE E. DOCUMENTS (SET ONE), REQUESTS POIRIER trustees of the Poirier Family FOR ADMISSION (SET ONE), FORM 18 Revocable Trust Dated June 10, 1987, INTERROGATORIES (SET TWO); et al., REQUEST FOR MONETARY 19 SANCTIONS Defendants. 20 Date: Time: 21 Dept.: Judge: 22 File Date: September 4, 2019 23 AND RELATED CROSS-ACTION Trial Date: Not Set 24 25 Pursuant to Rule 3.1345 of the California Rules of Court, Defendants and Cross- 26 Complainants Marc E. Poirier and Anne E. Poirier (the “Poiriers”) submits this Separate 27 Statement in Support of their Motion to Compel Further Responses to the Poiriers’ Demands for 28 Production (Set One), Requests for Admission (Set One), and Form Interrogatories (Set Two), HopKINs & CARLEY 697\3516628.3 ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE #PALO ALTO AND REQUEST FOR MONETARY SANCTIONS and For Monetary Sanctions against Plaintiff and Cross-Defendant Jeremy Rovinske (“Rovinske”) and his counsel. DEMANDS FOR PRODUCTION DEMAND FOR PRODUCTION NO. 1: Any and all DOCUMENTS/MATERIALS evidencing each agreement between you and these requesting parties including any modification, addendum, confirmation, termination or alteration. FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 1: Objection. The demand is not reasonably calculated to lead to discovery of admissible 10 evidence [CCP 2017.010]. The only relevant “... agreement . . .” between “. . . requesting 11 parties . . .” and Responding Party is the July 26, 2019 payment demand [Exhibit B to 12 Plaintiff’s Complaint For Specific Performance filed September 4, 2019] by “. . . requesting 13 parties . . .” and Plaintiffs performance via tender of payment in full to “. . . requesting parties 14 ...” via certified funds August 8, 2019. “.. . requesting parties . . .” have possession of the i August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. 16 Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the 17 likelihood that the information sought will lead to the discovery of admissible evidence [CCP 18 2017.020]. 19 Objection. The demand is employed in a manner and to an extent that it causes 20 unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]]. 21 Objection. The request fails to adequately and reasonably designate the documents, 22 tangible things, or other property either by specifically describing each individual item or by 23 reasonably particularizing each category of item [CCP 2031.030[e][1]]. 24 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,” 25 commonly defined by counsel, but no definitions are included in the demand leaving the request 26 vague, ambiguous, over-broad, and indecipherable. 27 //1 28 Mt HopKINs & CARLEY 697\3516628.3 -2- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS Without waiver of the objection, Responding Party responds: The production, inspection, and related activity will be allowed in part (i-e., to the extent the request is understood by him), and all documents in the requested category that are in his possession and to which no objection is being made will be included in the production [CCP 2031.220]. Responding Party affirms he has made a diligent search and a reasonable inquiry in an effort to comply with the request, to the extent it can be understood [CCP 2031.230]. Responding Party is unable to comply with the request as he is not aware of the existence of “... agreement between . . .” him“... and these requesting parties . . .” constituting “. .. 10 modification, addendum confirmation, termination or alteration.” [CCP 2031.230]. 11 Responding Party is informed and believes and thereon responds that any such documents are in 12 the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”], 13 b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230]. 14 REASON FURTHER RESPONSE SHOULD BE COMPELLED: i After a catalog of boilerplate and meritless objections, the response states that the 16 substantive portion of the response is limited to material as to which no objection is being made. 17 The response does not identify what has been withheld as required by CCP § 2031.240 and which 18 of the objections apply to what has been withheld. The objections are meritless. 19 The assertion that the request fails to adequately and reasonably designate the documents, 20 tangible things, or other property either by specifically describing each individual item or by 21 reasonably particularizing each category of and that the demand includes capitalized words 22 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included 23 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous. 24 The capitalized words “DOCUMENTS/MATERIALS?” are, in fact, defined in the request at page 25 5-6. 26 Nor is the request in any way vague or not reasonably particularized. Even if they were 27 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.” 28 Where the “nature of the information sought is apparent, the proper solution is to provide an HopKINs & CARLEY 697\3516628.3 -3- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499, 509. This is the type of objection treated as a “nuisance” objection, exposing the responding party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR 833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858, 859. The assertion that the request the burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is equally frivolous. Of course, burden is not a proper objection. The proper objection is one of 10 “undue” burden or undue expense. See CCP § 2031.210(d). This response does not identify the 11 documents falling within any category of item in the demand to which an objection is being made 12 as required by CCP 2031.240. 13 The claim that the only relevant “... agreement . . .” between “. . . requesting parties 14 ...” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiffs i Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties 16 ...” and Plaintiff's performance via tender of payment in full to “. . . requesting parties . . .” via 17 certified funds August 8, 2019. “. .. requesting parties . . .” have possession of the August 8, 18 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks is meritless. 19 Information and documents must be provided information sought relevant to the “subject 20 matter” of the pending action or to the determination of a motion in that action. CCP § 2017.010. 21 This is a broad standard. It extends to any information that reasonably might lead to other 22 evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of 23 reason, logic and common sense. Lipton v. Sup.Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 CA4th 24 1599, 1611, 56 CR2d 341, 348. Admissibility at trial is not required. Rather, the test is whether 25 the information sought might reasonably lead to other evidence that would be admissible. CCP § 26 2017.010 ; see Davies v. Sup.Ct. (State of Calif.) (1984) 36 C3d 291, 301, 204 CR 154, 161; 27 Volkswagen of America, Inc. v. Sup.Ct. (Rusk) (2006) 139 CA4th 1481, 1490-1491, 43 CR3d 28 723, 728. To be relevant for discovery purposes, it need only be “possible” that information in HopKINs & CARLEY 697\3516628.3 -4- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS a particular subject area could be relevant or admissible at the time of trial. Maldonado v. Sup.Ct. (ICG Telecom Group, Inc.) (2002) 94 CA4th 1390, 1397, 115 CR2d 137, 142-143. The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 C3d 785, 790, 183 CR 810, 813, fns. 7-8. The agreements that led to the payment demand notice are indisputably directly relevant. Such agreements frame the payment obligations and rights of the parties. Furthermore, other 10 agreements between the parties may affect the obligations between the parties. Only the Plaintiff 11 knows what he contends to be the full and complete agreements between the parties, and only 12 upon review of Plaintiffs production can Defendants determine Plaintiff's contention. In 13 addition, only upon the production of all agreements between the parties can Defendants 14 determine what are the integrated and unambiguous written agreements, and/or whether parol i evidence is required to explain their terms. 16 As the objections are boilerplate and meritless objections, the withholding of the 17 identification production of documents is improper. Further the Code requires that materials that 18 are being withheld due to objection be identified. 19 Further, the substantive portion of the response dissects the request, changes it to include 20 the word “constituting” instead of “including” and selectively responds to a re-crafted request. 21 Plaintiff must provide a straightforward and non-evasive response to the Request as written. 22 DEMAND FOR PRODUCTION NO. 2: 23 Any and all DOCUMENTS/MATERIALS evidencing each agreement concerning 24 ownership, past or present, of the stock of National Mailing Services, Inc., including any 25 modification, addendum, confirmation, termination or alteration. 26 FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 2: 27 Objection. The demand is not reasonably calculated to lead to discovery of admissible 28 evidence [CCP 2017.010]. The only relevant “... agreement . . .” between “. . . requesting HopKINs & CARLEY 697\3516628.3 -5- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS parties . . .”” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties . . .” and Plaintiff's performance via tender of payment in full to “. . . requesting parties ...” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence [CCP 2017.020]. Objection. The demand is employed in a manner and to an extent that it causes 10 unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]]. 11 Objection. The request fails to adequately and reasonably designate the documents, 12 tangible things, or other property either by specifically describing each individual item or by 13 reasonably particularizing each category of item [CCP 2031.030[e][1]]. 14 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,” i commonly defined by counsel, but no definitions are included in the demand leaving the request 16 vague, ambiguous, over-broad, and indecipherable. 17 Without waiver of the objection, Responding Party responds: 18 The production, inspection, and related activity will be allowed in part (i-e., to the extent 19 the request is understood by him), and all documents in the requested category that are in his 20 possession and to which no objection is being made will be included in the production [CCP 21 2031.220]. 22 Responding Party affirms he has made a diligent search and a reasonable inquiry in an 23 effort to comply with the request, to the extent it can be understood [CCP 2031.230]. 24 Responding Party is unable to comply with the request as he is not aware of the existence 25 of“... agreement between .. .” him“... and these requesting parties . . .” constituting “. . . 26 modification, addendum confirmation, termination or alteration.” [CCP 2031.230]. 27 Responding Party is informed and believes and thereon responds that any such documents are in 28 Mt HopKINs & CARLEY 697\3516628.3 -6- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”], b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230]. Objection. The “. . . requesting parties . . .” July 26, 2019 payment demand [Exhibit B to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] is addressed to Plaintiff, by “. . . requesting parties . . ..” does not seek payment from NMS, and Plaintiff tendered of payment in full to “. . . requesting parties . . .” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. Therefore, the payment demand having been fully satisfied through tender by a party to whom the payment demand was addressed 10 by “.. . requesting parties . . .”, the “... ownership, past or present, of the stock of. . .’” NMS, 11 including “. . . modification, addendum, confirmation, termination or alteration.” is 12 irrelevant, and discovery thereof is not reasonable calculated to lead to the discovery of 13 admissible evidence [CCP 2017.010]. 14 REASON FURTHER RESPONSE SHOULD BE COMPELLED: i After a catalog of boilerplate and meritless objections, the response states that the 16 substantive portion of the response is limited to material as to which no objection is being made. 17 The response does not identify what has been withheld as required by CCP § 2031.240 and which 18 of the objections apply to what has been withheld. The objections are meritless. 19 The assertion that the request fails to adequately and reasonably designate the documents, 20 tangible things, or other property either by specifically describing each individual item or by 21 reasonably particularizing each category of and that the demand includes capitalized words 22 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included 23 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous. 24 The capitalized words “DOCUMENTS/MATERIALS?” are, in fact, defined in the request at page 25 5-6. 26 Nor is the request in any way vague or not reasonably particularized. Even if they were 27 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.” 28 Where the “nature of the information sought is apparent, the proper solution is to provide an HopKINs & CARLEY 697\3516628.3 -7- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499, 509. This is the type of objection treated as a “nuisance” objection, exposing the responding party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR 833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858, 859. The assertion that the request the burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is equally frivolous. Of course, burden is not a proper objection. The proper objection is one of 10 “undue” burden or undue expense. See CCP § 2031.210(d). This response does not identify the 11 documents falling within any category of item in the demand to which an objection is being made 12 as required by CCP 2031.240. 13 The claim that the only relevant “... agreement . . .” between “. . . requesting parties 14 ...” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiffs i Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties 16 ...” and Plaintiff's performance via tender of payment in full to “. . . requesting parties . . .” via 17 certified funds August 8, 2019. “. .. requesting parties . . .” have possession of the August 8, 18 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks is meritless. 19 Information and documents must be provided information sought relevant to the “subject 20 matter” of the pending action or to the determination of a motion in that action. CCP § 2017.010. 21 This is a broad standard. It extends to any information that reasonably might lead to other 22 evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of 23 reason, logic and common sense. Lipton v. Sup.Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 CA4th 24 1599, 1611, 56 CR2d 341, 348. Admissibility at trial is not required. Rather, the test is whether 25 the information sought might reasonably lead to other evidence that would be admissible. CCP § 26 2017.010 ; see Davies v. Sup.Ct. (State of Calif.) (1984) 36 C3d 291, 301, 204 CR 154, 161; 27 Volkswagen of America, Inc. v. Sup.Ct. (Rusk) (2006) 139 CA4th 1481, 1490-1491, 43 CR3d 28 723, 728. To be relevant for discovery purposes, it need only be “possible” that information in HopKINs & CARLEY 697\3516628.3 -8- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS a particular subject area could be relevant or admissible at the time of trial. Maldonado v. Sup.Ct. (ICG Telecom Group, Inc.) (2002) 94 CA4th 1390, 1397, 115 CR2d 137, 142-143. The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 C3d 785, 790, 183 CR 810, 813, fns. 7-8. Agreements concerning ownership, past or present, of the stock of National Mailing Services, Inc., including any modification, addendum, confirmation, termination or alteration are 10 clearly relevant as to who is entitled to company stock. 11 Similarly the claim that the requesting party already has certain referenced documents is 12 not a proper response. The requesting party only has what it believes to be some relevant 13 documents. Only by a production can it be confirmed that the parties have no dispute as to the 14 authenticity and content of documents. i As the objections are boilerplate and meritless objections, the withholding of the 16 identification production of documents is improper. Further the Code requires that materials that 17 are being withheld due to objection be identified. 18 Further, the substantive portion of the response dissects the request, changes it to include 19 the word “constituting” instead of “including” and selectively responds to a re-crafted request. 20 Even worse, Plaintiff then attempts to further qualify the response as limited to Plaintiff's 21 “understanding” of a request that he effectively crafted. Plaintiff must provide a straightforward 22 and non-evasive response to the Request as written. 23 DEMAND FOR PRODUCTION NO. 3: 24 Any and all DOCUMENTS/MATERIALS evidencing each agreement and/or note 25 concerning sums due these requesting parties, past or present, including any modification. 26 FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 3: 27 Objection. The demand is not reasonably calculated to lead to discovery of admissible 28 evidence [CCP 2017.010]. The only relevant “... agreement . . .” between “. . . requesting HopKINs & CARLEY 697\3516628.3 -9- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS parties . . .”” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties . . .” and Plaintiff's performance via tender of payment in full to “. . . requesting parties ...” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence [CCP 2017.020]. Objection. The demand is employed in a manner and to an extent that it causes 10 unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]]. 11 Objection. The request fails to adequately and reasonably designate the documents, 12 tangible things, or other property either by specifically describing each individual item or by 13 reasonably particularizing each category of item [CCP 2031.030[e][1]]. 14 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,” i commonly defined by counsel, but no definitions are included in the demand leaving the request 16 vague, ambiguous, over-broad, and indecipherable. 17 Without waiver of the objection, Responding Party responds: 18 The production, inspection, and related activity will be allowed in part (i-e., to the extent 19 the request is understood by him), and all documents in the requested category that are in his 20 possession and to which no objection is being made will be included in the production [CCP 21 2031.220]. 22 Responding Party affirms he has made a diligent search and a reasonable inquiry in an 23 effort to comply with the request, to the extent it can be understood [CCP 2031.230]. 24 Responding Party is unable to comply with the request as he is not aware of the existence 25 of“... agreement between .. .” him“... and these requesting parties . . .” constituting “. . . 26 modification, addendum confirmation, termination or alteration.” [CCP 2031.230]. 27 Responding Party is informed and believes and thereon responds that any such documents are in 28 Mt HopKINs & CARLEY 697\3516628.3 -10- ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”], b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230]. Objection. The “. . . requesting parties . . .” July 26, 2019 payment demand [Exhibit B to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] is addressed to Plaintiff, by “. . . requesting parties . . ..” does not seek payment from NMS, and Plaintiff tendered of payment in full to “. . . requesting parties . . .” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. Therefore, the payment demand having been fully satisfied through tender by a party to whom the payment demand was addressed 10 by “.. . requesting parties . . .”, the “... ownership, past or present, of the stock of. . .’” NMS, 11 including “. . . modification, addendum, confirmation, termination or alteration.” is 12 irrelevant, and discovery thereof is not reasonable calculated to lead to the discovery of 13 admissible evidence [CCP 2017.010]. 14 REASON FURTHER RESPONSE SHOULD BE COMPELLED: i After a catalog of boilerplate and meritless objections, the response states that the 16 substantive portion of the response is limited to material as to which no objection is being made. 17 The response does not identify what has been withheld as required by CCP § 2031.240 and which 18 of the objections apply to what has been withheld. The objections are meritless. 19 The assertion that the request fails to adequately and reasonably designate the documents, 20 tangible things, or other property either by specifically describing each individual item or by 21 reasonably particularizing each category of and that the demand includes capitalized words 22 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included 23 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous. 24 The capitalized words “DOCUMENTS/MATERIALS?” are, in fact, defined in the request at page 25 5-6. 26 Nor is the request in any way vague or not reasonably particularized. Even if they were 27 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.” 28 Where the “nature of the information sought is apparent, the proper solution is to provide an HopKINs & CARLEY 697\3516628.3 ell ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499, 509. This is the type of objection treated as a “nuisance” objection, exposing the responding party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR 833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858, 859. The assertion that the request the burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is equally frivolous. Of course, burden is not a proper objection. The proper objection is one of 10 “undue” burden or undue expense. See CCP § 2031.210(d). 11 The claim that the only relevant “... agreement . . .” between “. . . requesting parties . . 12 -” and Responding Party is the July 26, 2019 payment demand [Exhibit B to Plaintiff’s 13 Complaint For Specific Performance filed September 4, 2019] by “. . . requesting parties . . 14 .” and Plaintiff's performance via tender of payment in full to “. . . requesting parties . . .” via i certified funds August 8, 2019. “. . . requesting parties . . .” have possession of the August 8, 16 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks are 17 meritless. 18 Information and documents must be provided information sought relevant to the “subject 19 matter” of the pending action or to the determination of a motion in that action. CCP § 2017.010. 20 This is a broad standard. It extends to any information that reasonably might lead to other 21 evidence that would be admissible at trial. Thus, the scope of permissible discovery is one of 22 reason, logic and common sense. Lipton v. Sup.Ct. (Lawyers’ Mut. Ins. Co.) (1996) 48 CA4th 23 1599, 1611, 56 CR2d 341, 348. Admissibility at trial is not required. Rather, the test is whether 24 the information sought might reasonably lead to other evidence that would be admissible. CCP § 25 2017.010 ; see Davies v. Sup.Ct. (State of Calif.) (1984) 36 C3d 291, 301, 204 CR 154, 161; 26 Volkswagen of America, Inc. v. Sup.Ct. (Rusk) (2006) 139 CA4th 1481, 1490-1491, 43 CR3d 27 723, 728 . To be relevant for discovery purposes, it need only be “possible” that information in 28 a particular subject area could be relevant or admissible at the time of trial. Maldonado v. Sup.Ct. HopKINs & CARLEY 697\3516628.3 ele ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS (ICG Telecom Group, Inc.) (2002) 94 CA4th 1390, 1397, 115 CR2d 137, 142-143. The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 C3d 785, 790, 183 CR 810, 813, fns. 7-8. The agreements that led to the payment demand notice are indisputably directly relevant. Similarly the claim that the requesting party already has certain referenced documents is not a proper response. The requesting party only has what it believes to be some relevant 10 documents. Only by a production can it be confirmed that the parties have no dispute as to the 11 authenticity and content of documents. 12 As the objections are boilerplate and meritless objections, the withholding of the 13 identification production of documents is improper. Further the Code requires that materials that 14 are being withheld due to objection be identified. i Further, the substantive portion of the response dissects the request, changes it to include 16 the word “constituting” instead of “including” and selectively responds to a re-crafted request. 17 Even worse, Plaintiff then attempts to further qualify the response as limited to Plaintiff's 18 “understanding” of a request that he effectively crafted. Plaintiff must provide a straightforward 19 and non-evasive response to the Request as written. 20 DEMAND FOR PRODUCTION NO. 4: 21 Any and all DOCUMENTS/MATERIALS evidencing each agreement concerning 22 security for sums claimed due by these requesting parties, past or present, including any 23 modification, addendum, confirmation, termination or alteration. 24 FURTHER RESPONSE TO DEMAND FOR PRODUCTION NO. 4: 25 Objection. The demand is not reasonably calculated to lead to discovery of admissible 26 evidence [CCP 2017.010]. The only relevant “. .. agreement . . .” between “. . . requesting 27 parties . . .” and Responding Party is the July 26, 2019 payment demand [Exhibit B to 28 Plaintiffs Complaint For Specific Performance filed September 4, 2019] by “. . . requesting HopKINs & CARLEY 697\3516628.3 else ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS parties . . .” and Plaintiff’s performance via tender of payment in full to “. . . requesting parties ...” via certified funds August 8, 2019. “... requesting parties . . .” have possession of the August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. Objection. The burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence [CCP 2017.020]. Objection. The demand is employed in a manner and to an extent that it causes unwarranted annoyance, undue burden, and unnecessary expense [CCP 2023.010[c]]. Objection. The request fails to adequately and reasonably designate the documents, 10 tangible things, or other property either by specifically describing each individual item or by 11 reasonably particularizing each category of item [CCP 2031.030[ce][1]]. 12 Objection. The demand includes capitalized words “DOCUMENTS/MATERIALS,” 13 commonly defined by counsel, but no definitions are included in the demand leaving the request 14 vague, ambiguous, over-broad, and indecipherable. i Without waiver of the objection, Responding Party responds: 16 The production, inspection, and related activity will be allowed in part (i-e., to the extent 17 the request is understood by him), and all documents in the requested category that are in his 18 possession and to which no objection is being made will be included in the production [CCP 19 2031.220]. 20 Responding Party affirms he has made a diligent search and a reasonable inquiry in an 21 effort to comply with the request, to the extent it can be understood [CCP 2031.230]. 22 Responding Party is unable to comply with the request as he is not aware of the existence 23 of“... agreement between . . .” him “. .. and these requesting parties . . .” constituting “. . . 24 modification, addendum confirmation, termination or alteration.” [CCP 2031.230]. 25 Responding Party is informed and believes and thereon responds that any such documents are in 26 the possession, and under the control of, a) National Mailing Service, Inc. [hereinafter “NMS”], 27 b) requesting parties, and/or c) Angelle Rovinske [CCP 2031.230]. 28 Mt HopKINs & CARLEY 697\3516628.3 elas ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS Objection. The “. . . requesting parties . . .” July 26, 2019 payment demand [Exhibit B to Plaintiff’s Complaint For Specific Performance filed September 4, 2019] is addressed to Plaintiff, by “. . . requesting parties . . ..” does not seek payment from NMS, and Plaintiff tendered of payment in full to “. . . requesting parties . . .” via certified funds August 8, 2019. “"., requesting parties . . .” have possession of the August 8, 2019 correspondence from Plaintiff's counsel as well as the enclosed Official Checks. Therefore, the payment demand having been fully satisfied through tender by a party to whom the payment demand was addressed by “.. . requesting parties . . .”, the “. .. ownership, past or present, of the stock of. . .’ NMS, including “. . . modification, addendum, confirmation, termination or alteration.” is 10 irrelevant, and discovery thereof is not reasonable calculated to lead to the discovery of 11 admissible evidence [CCP 2017.010]. 12 REASON FURTHER RESPONSE SHOULD BE COMPELLED: 13 After a catalog of boilerplate and meritless objections, the response states that the 14 substantive portion of the response is limited to material as to which no objection is being made. i The response does not identify what has been withheld as required by CCP § 2031.240 and which 16 of the objections apply to what has been withheld. The objections are meritless. 17 The assertion that the request fails to adequately and reasonably designate the documents, 18 tangible things, or other property either by specifically describing each individual item or by 19 reasonably particularizing each category of and that the demand includes capitalized words 20 “DOCUMENTS/MATERIALS,” commonly defined by counsel, but no definitions are included 21 in the demand leaving the request vague, ambiguous, over-broad, and indecipherable is frivolous. 22 The capitalized words “DOCUMENTS/MATERIALS” are, in fact, defined in the request at page 23 5-6. 24 Nor is the request in any way vague or not reasonably particularized. Even if they were 25 not, it would not render the requests “vague, ambiguous, over-broad, and indecipherable.” 26 Where the “nature of the information sought is apparent, the proper solution is to provide an 27 appropriate response.” Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 149 Cal. Rptr. 499, 28 509. This is the type of objection treated as a “nuisance” objection, exposing the responding HopKINs & CARLEY 697\3516628.3 ello ATTORNEYS AT LAW SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES SAN JOSE PALO ALTO AND REQUEST FOR MONETARY SANCTIONS party to sanctions. See Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 CA3d 898, 903, 275 CR 833, 835; see also Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 377, 25 CR2d 857, 858, 859. The assertion that the request the burden, expense, and intrusiveness of the demand clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence and/or will cause unwarranted annoyance, undue burden, and unnecessary expense is equally frivolous. Of course, burden is not a proper objection. The proper objection is one of “undue” burden or undue expense. See CCP § 2031.210(d).