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1 CLAIRE E. COCHRAN (SBN 222529)
LAW OFFICES OF CLAIRE COCHRAN, P.C.
2 100 PINE STREET, SUITE 1250 ELECTRONICALLY
SAN FRANCISCO, CA 94111
3 TELEPHONE: (415) 580- 6019 F I L E D
FACSIMILE: (415) 745- 3301 Superior Court of California,
County of San Francisco
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Attorneys for Plaintiff, 08/25/2021
5 Nathan Peter Runyon Clerk of the Court
BY: ERNALYN BURA
Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 NATHAN PETER RUNYON, CASE NO. CGC-19-581099
11 Plaintiff,
12 v. PLAINTIFF’S REPLY TO
DEFENDANT’S OPPOSITION TO
13 PAYWARD, INC., a California Corporation COMPEL FURTHER RESPONSES
d/b/a KRAKEN; and KAISER NG an FROM PAYWARD, INC. TO
14 individual and DOES 1-50, inclusive, SUPPLEMENTAL REQUESTS FOR
PRODUCTION OF DOCUMENTS AND
15 PRIVILEGE LOG; DECLARATION OF
Defendant. CLAIRE COCHRAN IN SUPPRT
16 THEREOF
17 [Concurrently Filed Herewith: Declaration of
Claire E. Cochran in Support Thereof]
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Complaint Filed: March 27, 2020
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGED LOG
1 TO ALL PARTIERS AND THEIR ATTORNEY OF RECORD:
2 Plaintiff Peter Nathan Runyon (“Plaintiff” or “Mr. Runyon”) submits the following reply
3 to Defendant Payward, Inc.’s (“Defendant” or “Payward”) Opposition to Plaintiff’s Motion to
4 Compel Further Responses to Plaintiff’s Supplemental Requests for Production of Documents and
5 Privilege Log.
6 I. INTRODUCTION
7 Although the Plaintiff submitted to the Court twelve pages of opposition to the Plaintiff’s
8 Motion to Compel Further Responses, the Motion is not much more than mudslinging, maintained
9 by a plethora of personal attacks against Plaintiff’s Counsel. The issues in this Motion to Compel
10 are simple; the Defendant has failed to observe the rules of Discovery three-fold as follows: (1)
11 The Defendant has refused to produce documents that are unprivileged and relevant in this action;
12 (2) The Defendant has refused to provide adequate information in its privilege log to enable the
13 Plaintiff to determine the merit of any alleged privilege asserted; and (3) The Defendant has
14 refused to identify which documents it has produced in response to each request when asked to do
15 so by Plaintiff. The three failures have resulted in an abuse of the discovery process, and leaves
16 the Plaintiff without remedy where the Defendant refuses to abide by the Court’s rules on
17 discovery, hindering the Plaintiff’s case in chief1.
18 II. LEGAL ARGUMENT
19 a. The Separate Statement in Support of the Motion to Compel is not
20 Improper.
21 As was raised more than several times in the Defendant’s Opposition is the notion that the
22 Separate Statement in support of the Plaintiff’s Motion to Compel is improper, and as such the
23 Motion to Compel should be denied. While in Mills v. U.S. Bank (2008) 166 Cal.App.4th 871,893
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Counsel has received notice of a sur reply filed by Payward today. Plaintiff addresses these contentions in the
25 Declaration of Claire Cochran (attached) herein. Plaintiff does not believe that the ruling on the summary judgment
motion in any way moots his requests, Payward's defense to Mr. Runyon's claims are that he failed to finish his
26 "projects" at work and had received written warnings about these projects. These projects include, and relate to, the
discovery requests propounded in this action. A review of the Declaration of Kaiser Ng filed in Support of his
27 Summary Judgment Motion (paragraphs 5, 6, 7, 8, 9, 10, 11, 20, 36, 37, 38, 39-42, 52, 53, 54, 55, 61), illustrates
Payward’s defense in this matter and shows that the requests in this motion are discoverable in this matter, despite the
28 ruling. (Exh. 4 to Cochran Decl.)
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 the Court did deny a motion to compel based on the fact that the separate statement was
2 “extremely confusing,” because it “grouped together requests” and did not provide word-for-word
3 responses. That is not the case here. While the Defendant wears out the fact that the failure to list
4 each response to each Request for Production is fatal, that is not necessarily the case. While a
5 Court may rule in its discretion to continue or deny a motion to compel based on the separate
6 statement, a Court may also in its discretion compel further answers where a Separate Statement is
7 incomplete or not provided to the Court. See Sinaiko Healthcare Consulting, Inc. v. Pacific
8 Healthcare Consultants et al. (2015) 148 Cal.App.4th 390, fn. 14 [opining that a Court may in its
9 discretion grant a motion to compel absent a separate statement]. Furthermore, CCP § 2031.310
10 provides that a Court may in lieu of a Separate Statement, accept a concise outline of the discovery
11 request, and the response/failures in response to each. Cal. Code of Civ. Pro. § 2031.310. The
12 Separate Statement at question does not relist each meritless, boilerplate responses raised by the
13 Defendant to each of its Requests, however, the Plaintiff also does not seek mass, unidentifiable
14 documents responsive to numerous Requests. It instead concisely seeks six (6)
15 documents/categories of documents that are identified and relevant. This presentation of separate
16 facts does not create the same confusion akin to Mills, and contrary to Defendants belabored
17 argument that the Motion must be thrown out per se, the Court could consider the Motion within
18 its discretion even in the absence of the Separate Statement provided. The Plaintiff states both its
19 factual and legal reasons to compel the further response, identifies for the Court and for
20 Defendants what Request each document is responsive to, even when responsive to multiple.
21 Restating the Defendant’s boilerplate objections would not have clarified the Separate Statement
22 in any way. The Plaintiff is seeking six identified documents, not fishing for the existence of
23 documents that may or may not exist. There is no confusion created by the Plaintiff’s separate
24 statement, and the Court in its discretion may grant the motion to compel.
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 b. The Documentation Requested by Plaintiff is Relevant to Support the
2 Plaintiff’s Claim That He was Retaliated Against, and the Motion to
3 Compel Defendant’s Failure to Produce Them Should be Granted.
4 Aside from the personal attacks on counsel, the Defendant’s Opposition dwells on the fact
5 that Plaintiff’s fraud claims are “false” and have been “disproven.” Defendant Payward has used
6 the filing of its Opposition as an opportunity to violate various protective orders regarding
7 confidential testimony, settlement offers, as well as arbitration awards in a wholly unrelated case.
8 See Declaration of Claire Cochran ¶¶ 11-18; Exhibit A. The reference to these documents aside
9 from being a violation of the laws of this state, are just another bad faith attempt to get
10 inadmissible evidence in front of this Court, as they provide not a single shred of evidence that
11 lends itself to the Defendant’s failure to follow the rules of discovery in this case. That was the
12 sole purpose of the Plaintiff’s Motion to Compel. Instead, the defendant hijacked a tool used for
13 discovery, and instead chose to distract from those issues in its opposition (this is what is called a
14 red herring argument). The Plaintiff was not on trial in the separate and unrelated arbitration
15 matter, he merely served as a witness. Although the Defendant spends significant time expressing
16 the sentiment that the Plaintiff’s claim that Payward, Inc. and Defendant Kaiser Ng have been
17 disproven, they have not been, they are questions in front of the Court now. As is well outlined in
18 the Plaintiff’s operative complaint, the Plaintiff was retaliated against and subject to adverse
19 employment action due to his status as a disabled veteran, any document that tends to prove or
20 disprove any disputed fact that is of consequence in the complaint is relevant and discoverable.
21 Cal. Evid. Code § 210. This includes any documents that tend to support or contradict Defendant’s
22 own legal arguments in this case and reasons behind Plaintiff’s termination. Defendants’ repeated
23 failure to produce these documents by summarily concluding that the issue has been settled in
24 another case is bad faith and constitutes an abuse of the discovery process.
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 c. Defendant’s Privilege Log is Grossly Deficient, and the Defendant has
2 Refused to Provide Plaintiff with Requisite Information to Determine the
3 Merit of any Alleged Claim to Privilege.
4 With regard to the Defendant’s privilege logs, Defendant beats the dead horse argument
5 that the Plaintiff is time-barred from seeking redress from the Defendant’s repeated failure to
6 provide adequate privilege logs, citing to Cal. Code Civ. Pro. § 2031.310(c). The relevant section
7 provides a propounding party 45 days to file a motion to compel further response to: (1)
8 incomplete statement of compliance; (2) an evasive/inadequate/incomplete representation of
9 inability to comply; (3) meritless or too general of objections cited in responses. Very plainly, the
10 legislature did not list supplemental privilege logs in this section, yet the Defendant cites it as its
11 sole evidence that the Plaintiff is time-barred from seeking redress for its continued flouting of the
12 rules of discovery. The Defendant cites no case law to stand for the proposition that it sets in front
13 of this Court. In interpreting statutes, our primary goal is to give effect to the Legislature's intent in
14 enacting the law. "'To determine intent, "'The court turns first to the words themselves for the
15 answer.'"' [Citation.]" In re Littlefield (1993) 5 Cal. 4th 122, 130. "If the words of the statute are
16 clear, the court should not add to or alter them to accomplish a purpose that does not appear on the
17 face of the statute or from its legislative history. [Citations.]" People v. Knowles (1950) 35 Cal. 2d
18 175, 183. The Defendant seeks to insert a limitation on a request for supplemental privilege logs
19 where the legislature did not provide for it.
20 Instead, the Plaintiff directs the Court to Catalina Island Yacht Club v. Superior Court,
21 where the Court held that “When confronted with a deficient privilege log that fails to provide the
22 necessary information to rule on attorney-client and work product objections, a trial court may
23 order the responding party to provide a further privilege log that includes the necessary
24 information to rule on those objections,” and further, and that a Court may impose monetary
25 sanctions, evidence sanctions, or terminating sanctions for providing a deficient privilege log, and
26 persisting to fail to provide the Court with information requisite to determine the merit of
27 assertions of privilege. 242 Cal.App. 4th 1116, 1120-21. The statute does not limit the redress of
28 an inadequate privilege log to 45 days, and even so, the Defendant served its supplemental
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 privilege logs, suffering from the same inadequacies on Plaintiff well within 45 days of the
2 Plaintiff’s filing of its Motion to Compel.
3 d. Defendant’s Failure to Direct Plaintiff to Documents Responsive to Its
4 Request is An Abuse of the Discovery Process.
5 Although the Defendant failed to address the Plaintiff’s argument that it failed to direct the
6 Plaintiff to which documents are responsive to which request, the Opposition filed by the Plaintiff
7 further highlights the issue. As stated on page three (3), the Defendant admittedly produced more
8 than 7,000 pages in response to the Plaintiff’s Request for Production, yet refuses to date to
9 provide Plaintiff with direction as to which documents are responsive to which requests as very
10 clearly required by Cal. Civ. Pro. § 2031.280. The Plaintiff has requested numerous times that the
11 Defendant abide by its duties under the Discovery Act in this regard, but the Defendant has not
12 only failed to do so, but has failed to provide the Court with any reason for doing so in its
13 Opposition. This further evidences the Defendant’s bad faith. It has been the Defendant’s aim to
14 “paper” the Plaintiff and refuse to provide guidance regarding which documents are actually
15 responsive to the Plaintiff’s carefully crafted requests. When approached with a request to meet
16 and confer on this issue, and the unreasonable burden that was placed on Plaintiff to seek out
17 which documents amongst the near 8,000 pages was responsive to certain categories that the
18 Defendant alleges it produced documents responsive to, the Defendant refused to oblige as
19 required by law. In its responses, the Defendant alleges it produced documents responsive to
20 categories: 59, 60, 61, 62, 63, 64, 76, and 81, however will not inform Plaintiff of the Bates
21 numbers of documents responsive to each. The Defendants’ failure is defenseless, which is likely
22 why it was not addressed in the Defendant’s Opposition. Accordingly, the Plaintiff requests that
23 the Defendant be ordered to identify which documents are responsive the categories enumerated
24 above.
25 e. Defendant’s Request For Sanctions is Improper.
26 The Defendant claims that the Plaintiff should be liable for sanctions in the amount of
27 $12,973.50 because: (1) the request for documents was meant solely to “harass” Payward, (2) the
28 Plaintiff failed to meet and confer regarding its request for the employee handbook, performance
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 improvement plans, and performance reviews, and (3) that the claims to inadequacies of the
2 privilege log lack merit. In response to the Defendant’s first point, the Plaintiff made numerous
3 attempts to sort out the failure to produce informally, and would also have preferred not to bring a
4 motion to compel documents that it needs to build its case for trial. This sort of “tit-for-tat”
5 gamesmanship displayed by Defendant is merely a distraction from the issues presented in the
6 Plaintiff’s Motion to Compel – the Defendant’s failure to abide by the discovery rules. As is
7 stressed numerous times by the Defendant in its opposition, this is a rather standard employment
8 matter, yet the Defendant clings to documents that reflect standards that Payward employees are
9 held to, and documents that reflect any shortcomings in the Defendant’s performance in the
10 workplace. The Plaintiff has knowledge of the existence of these documents as he has come into
11 contact with them in the course of his employment with Payward. Lastly the claim that the
12 Plaintiff’s request for adequate information to assess the merit of assertions of privilege is hardly
13 without merit. It is well established that where a responding party asserts privilege, it must provide
14 sufficient factual information for other parties to evaluate the merits of that claim. TRG Civil
15 Litigation Series: California Discovery Citations (TRG 2018) § 5:18; Hernandez v. Sup. Ct.
16 (2003) 112 CA 4th 285. Such a privilege log shall include: (1) identification of each document that
17 privilege is claimed for; (2) its author; (3) recipients; (4) date of preparation; (5) specific privilege
18 claimed. Hernandez, supra, 112 CA 4th at pg. 291-92. The Defendant has failed to do that in any
19 of its logs it has produced to Plaintiff. The Defendant cannot claim that documents are attorney-
20 client privileged, but fail to provide the authors and recipients of documents. The Plaintiff has
21 attempted numerous times to obtain the information to no avail, and was forced to file this motion
22 to compel. The motion was not brought to “harass” the Defendant, and certainly is meritorious
23 given the Defendant’s refusal to abide by the discovery rules of this state, and of this Court.
24 Accordingly, the Defendant’s request for sanctions in the amount of $12,973.50 is not only
25 improper, but it is unconscionable.
26 III. CONCLUSION
27 For the reasons stated above, and pursuant to evidence presented in support of the
28 Plaintiff’s Motion to Compel, the Plaintiff respectfully requests the Court: (1) grant the Plaintiff’s
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 Motion to Compel the production of supplemental documents as outlined by the Plaintiff’s Motion
2 to Compel, (2) compel the Defendants to provide requisite information in order to determine the
3 merit of its assertions to privilege as required by law; (3) compel the Defendants to observe their
4 duty to direct Plaintiff to which documents are responsive to which requests, as required by law;
5 (4) deny the Defendant’s request for sanctions in the amount of $12,973.50.
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Date: August 25, 2021 Respectfully Submitted,
10 THE LAW OFFICES OF CLAIRE COCHRAN
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Claire Cochran, Esq.
14 Attorneys for Plaintiff, Nathan Peter Runyon
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 DECLARATION OF CLAIRE E. COCHRAN
2 I, Claire Cochran, declare:
3 1. I am an attorney duly licensed to practice law in the State of California. I am the founding
4 partner of the Law Offices of Claire Cochran. My firm was retained as counsel for Nathan
5 Peter Runyon (“Runyon” or “Plaintiff”) in the litigation entitled, Nathan Peter Runyon v.
6 Payward, Inc. and Kaiser Ng., San Francisco County Superior Court Case No.: CGC-19-
7 581099.
8 2. On May 27, 2021, Plaintiff propounded on Defendant Payward, Request for Admissions,
9 Set One, Request for Production of Documents, Set Two, and Special Interrogatories, Set
10 One. On May 28, 2021, Plaintiff propounded Special Interrogatories, Set Two. Copies of
11 those discovery requests were included with the Plaintiff’s Motion to Compel.
12 3. On July 8, 2021, Defendant Payward provided responses to those discovery requests. A
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true and correct copy of Payward’s responses were included with the Plaintiff’s Motion to
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Compel.
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4. On July 13, 2021, Plaintiff propounded on Defendant Payward Supplemental Special
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Interrogatories, and Request for Production of Documents for any information/documents
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acquired after the initial round of discovery. A true and correct copy of those requests were
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included with the Plaintiff’s Motion to Compel.
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5. Defendant Payward has produced deficient Privilege Logs with each of its document
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productions. True and correct copies of those privilege logs were included with the
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Plaintiff’s Motion to Compel.
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6. On July 16, 2021, Plaintiff attempted to meet and confer with Defendant regarding
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deficiencies in its responses to Plaintiff’s Request for Production of Documents, Set Two.
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A true and correct copy of that was included with the Plaintiff’s Motion to Compel.
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7. On July 19, 2021, Payward sent its supplemental responses, as well as documents Bastes-
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numbered PAYWARD006982 – PAYWARD007252. A true and correct copy of that
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correspondence was included with the Plaintiff’s Motion to Compel.
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 8. On July 22, 2021, Plaintiff’s counsel exchanged further correspondence with Defendant’s
2 counsel regarding impermissible redactions. A true and correct copy of that
3 correspondence was included with the Plaintiff’s Motion to Compel.
4 9. On July 25, 2021, Defendant’s counsel sent a letter responding to Plaintiff’s July 16, 2021,
5 attempt to meet and confer informing Plaintiff that it would not be producing any further
6 documents or information. A true and correct copy of that correspondence was included
7 with the Plaintiff’s Motion to Compel.
8 10. The Plaintiff’s Motion to Compel was filed with the Court, and served on the Defendant on
9 August 4, 2021.
10 11. On August 18, 2021, the Defendant served on the Plaintiff its Opposition to the Motion to
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Compel. As exhibits to the Declaration of Kimberly Pallen in support of the Motion, the
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Defendant attached:
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a. Exhibit C – Confidential Testimony of Connie Wong in an unrelated matter
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b. Exhibit D – A settlement offer protected by Cal. Rules of Evid. § 1152
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c. Exhibit E – A confidential arbitration demand for an unrelated matter
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d. Exhibit F – A confidential interim Arbitration Award in an unrelated matter
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12. The aforementioned confidential and protected documents were filed in violation of a
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protective order in place in that matter, not under seal with this Court, and do not provide a
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shred of support of any of the defenses to failure to produce or follow the rules of
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discovery in the Defendant’s Opposition.
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13. Defendant Payward has not subpoenaed those confidential documents from the arbitration,
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and has not provided notice to Ms. Wong’s counsel that they intended to breach the
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protections afforded to her third-party protected/consumer documents in its Opposition to a
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Motion to Compel.
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14. Defendant Payward has not requested that judicial notice be taken of the documents, nor
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have the Defendants sought to authenticate those documents in any way.
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 15. The arbitration award (Exhibit F) is not final, and is yet another abuse of the Discovery
2 process, and failure to follow the rules set by the Court to admit those documents as
3 evidence.
4 16. On August 18, 2021, I attempted to meet and confer regarding the impermissible use of
5 these documents by the Defendant in support of its Motion. The Defendant’s counsel
6 responded that Exhibits C, D, E, and F were not confidential, but that it would “as a
7 courtesy” remove Exhibit F from its filing. A true and correct copy of that correspondence
8 is attached hereto as Exhibit 1 (Cochran Letter to Defendant Payward)
9 17. Attached hereto as Exhibit 2 is a true and correct copy of Mr. Lavigne’s response.
10 18. Attached hereto as Exhibit 3 is a true and correct copy of correspondence from Counsel
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for 3rd party witness wherein he designates Ms. Wong’s deposition transcript and
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arbitration documents are considered confidential.
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19. The improper use of these documents to support an unrelated motion compel further
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evidence Defendants,’ and their counsel’s refusal to play by the rules.
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20. Today, August 25, 2021, I received a filed letter from opposing counsel, in essence, a sur
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reply brief, in which they argue that because of the summary judgment ruling in this matter
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much of Plaintiff's requests are mooted. First, Plaintiff has not withdrawn any requests to
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compel documents following the summary judgment ruling, evidence in this case is
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intertwined with Payward's defense, that Pete Runyon did poor work on his various work
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projects, including his Country Code task AND his work on the Carta Project. These
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contentions are laid out clearly in Kaiser Ng's Declaration attached to the Summary
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Judgment Motion. Even if Plaintiff's whistleblower claims are no longer at issue, his work
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product and projects ARE in play and are clearly discoverable. The information sought by
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Plaintiff in this motion relates to his work product, projects, and his ability to get them
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done and completed well. This evidence cannot and will not be divorced from this case
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simply because of a summary judgment ruling, Plaintiff is entitled to rebuttal evidence to
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demonstrate that he was doing his projects. A review of Ng's Declaration, attached herein,
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
1 clearly sets forth Payward's defense in this case, and Plaintiff is entitled to any and all
2 necessary evidence for him to defend himself at trial, including all of the documents before
3 the Court in this motion. Attached hereto as Exhibit 4 is a true and correct copy of the
4 Declaration of Kaiser Ng (redacted) filed in support of the summary judgment motion in
5 this case. To the extent that Payward wants documents excluded from evidence at trial, a
6 motion in limine can be filed to that end. However, a broad-brush approach to eliminating
7 documents responsive to Plaintiff’s requests simply because Defendant deems them to be
8 “moot” is not appropriate in this instance. The documents sought (and a full and complete
9 privilege log) are inextricably linked to the Defenses’ arguments in this case and are
10 discoverable by Plaintiff.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
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correct. Executed on this 25th day of August 2021, in San Francisco, CA.
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__________________________
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Claire Cochran
17 Attorney for Plaintiff,
Nathan Peter Runyon
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PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO
SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG
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1 CLAIRE E. COCHRAN (SBN 222529) LAW OFFICES OF CLAIRE COCHRAN, P.C. 2 100 PINE STREET, SUITE 1250 ELECTRONICALLY SAN FRANCISCO, CA 94111 3 TELEPHONE: (415) 580- 6019 F I L E D FACSIMILE: (415) 745- 3301 Superior Court of California, County of San Francisco 4 Attorneys for Plaintiff, 08/25/2021 5 Nathan Peter Runyon Clerk of the Court BY: ERNALYN BURA Deputy Clerk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 NATHAN PETER RUNYON, CASE NO. CGC-19-581099 11 Plaintiff, 12 v. PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION TO 13 PAYWARD, INC., a California Corporation COMPEL FURTHER RESPONSES d/b/a KRAKEN; and KAISER NG an FROM PAYWARD, INC. TO 14 individual and DOES 1-50, inclusive, SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS AND 15 PRIVILEGE LOG; DECLARATION OF Defendant. CLAIRE COCHRAN IN SUPPRT 16 THEREOF 17 [Concurrently Filed Herewith: Declaration of Claire E. Cochran in Support Thereof] 18 Complaint Filed: March 27, 2020 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGED LOG 1 TO ALL PARTIERS AND THEIR ATTORNEY OF RECORD: 2 Plaintiff Peter Nathan Runyon (“Plaintiff” or “Mr. Runyon”) submits the following reply 3 to Defendant Payward, Inc.’s (“Defendant” or “Payward”) Opposition to Plaintiff’s Motion to 4 Compel Further Responses to Plaintiff’s Supplemental Requests for Production of Documents and 5 Privilege Log. 6 I. INTRODUCTION 7 Although the Plaintiff submitted to the Court twelve pages of opposition to the Plaintiff’s 8 Motion to Compel Further Responses, the Motion is not much more than mudslinging, maintained 9 by a plethora of personal attacks against Plaintiff’s Counsel. The issues in this Motion to Compel 10 are simple; the Defendant has failed to observe the rules of Discovery three-fold as follows: (1) 11 The Defendant has refused to produce documents that are unprivileged and relevant in this action; 12 (2) The Defendant has refused to provide adequate information in its privilege log to enable the 13 Plaintiff to determine the merit of any alleged privilege asserted; and (3) The Defendant has 14 refused to identify which documents it has produced in response to each request when asked to do 15 so by Plaintiff. The three failures have resulted in an abuse of the discovery process, and leaves 16 the Plaintiff without remedy where the Defendant refuses to abide by the Court’s rules on 17 discovery, hindering the Plaintiff’s case in chief1. 18 II. LEGAL ARGUMENT 19 a. The Separate Statement in Support of the Motion to Compel is not 20 Improper. 21 As was raised more than several times in the Defendant’s Opposition is the notion that the 22 Separate Statement in support of the Plaintiff’s Motion to Compel is improper, and as such the 23 Motion to Compel should be denied. While in Mills v. U.S. Bank (2008) 166 Cal.App.4th 871,893 24 1 Counsel has received notice of a sur reply filed by Payward today. Plaintiff addresses these contentions in the 25 Declaration of Claire Cochran (attached) herein. Plaintiff does not believe that the ruling on the summary judgment motion in any way moots his requests, Payward's defense to Mr. Runyon's claims are that he failed to finish his 26 "projects" at work and had received written warnings about these projects. These projects include, and relate to, the discovery requests propounded in this action. A review of the Declaration of Kaiser Ng filed in Support of his 27 Summary Judgment Motion (paragraphs 5, 6, 7, 8, 9, 10, 11, 20, 36, 37, 38, 39-42, 52, 53, 54, 55, 61), illustrates Payward’s defense in this matter and shows that the requests in this motion are discoverable in this matter, despite the 28 ruling. (Exh. 4 to Cochran Decl.) 2 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 the Court did deny a motion to compel based on the fact that the separate statement was 2 “extremely confusing,” because it “grouped together requests” and did not provide word-for-word 3 responses. That is not the case here. While the Defendant wears out the fact that the failure to list 4 each response to each Request for Production is fatal, that is not necessarily the case. While a 5 Court may rule in its discretion to continue or deny a motion to compel based on the separate 6 statement, a Court may also in its discretion compel further answers where a Separate Statement is 7 incomplete or not provided to the Court. See Sinaiko Healthcare Consulting, Inc. v. Pacific 8 Healthcare Consultants et al. (2015) 148 Cal.App.4th 390, fn. 14 [opining that a Court may in its 9 discretion grant a motion to compel absent a separate statement]. Furthermore, CCP § 2031.310 10 provides that a Court may in lieu of a Separate Statement, accept a concise outline of the discovery 11 request, and the response/failures in response to each. Cal. Code of Civ. Pro. § 2031.310. The 12 Separate Statement at question does not relist each meritless, boilerplate responses raised by the 13 Defendant to each of its Requests, however, the Plaintiff also does not seek mass, unidentifiable 14 documents responsive to numerous Requests. It instead concisely seeks six (6) 15 documents/categories of documents that are identified and relevant. This presentation of separate 16 facts does not create the same confusion akin to Mills, and contrary to Defendants belabored 17 argument that the Motion must be thrown out per se, the Court could consider the Motion within 18 its discretion even in the absence of the Separate Statement provided. The Plaintiff states both its 19 factual and legal reasons to compel the further response, identifies for the Court and for 20 Defendants what Request each document is responsive to, even when responsive to multiple. 21 Restating the Defendant’s boilerplate objections would not have clarified the Separate Statement 22 in any way. The Plaintiff is seeking six identified documents, not fishing for the existence of 23 documents that may or may not exist. There is no confusion created by the Plaintiff’s separate 24 statement, and the Court in its discretion may grant the motion to compel. 25 /// 26 /// 27 /// 28 /// 3 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 b. The Documentation Requested by Plaintiff is Relevant to Support the 2 Plaintiff’s Claim That He was Retaliated Against, and the Motion to 3 Compel Defendant’s Failure to Produce Them Should be Granted. 4 Aside from the personal attacks on counsel, the Defendant’s Opposition dwells on the fact 5 that Plaintiff’s fraud claims are “false” and have been “disproven.” Defendant Payward has used 6 the filing of its Opposition as an opportunity to violate various protective orders regarding 7 confidential testimony, settlement offers, as well as arbitration awards in a wholly unrelated case. 8 See Declaration of Claire Cochran ¶¶ 11-18; Exhibit A. The reference to these documents aside 9 from being a violation of the laws of this state, are just another bad faith attempt to get 10 inadmissible evidence in front of this Court, as they provide not a single shred of evidence that 11 lends itself to the Defendant’s failure to follow the rules of discovery in this case. That was the 12 sole purpose of the Plaintiff’s Motion to Compel. Instead, the defendant hijacked a tool used for 13 discovery, and instead chose to distract from those issues in its opposition (this is what is called a 14 red herring argument). The Plaintiff was not on trial in the separate and unrelated arbitration 15 matter, he merely served as a witness. Although the Defendant spends significant time expressing 16 the sentiment that the Plaintiff’s claim that Payward, Inc. and Defendant Kaiser Ng have been 17 disproven, they have not been, they are questions in front of the Court now. As is well outlined in 18 the Plaintiff’s operative complaint, the Plaintiff was retaliated against and subject to adverse 19 employment action due to his status as a disabled veteran, any document that tends to prove or 20 disprove any disputed fact that is of consequence in the complaint is relevant and discoverable. 21 Cal. Evid. Code § 210. This includes any documents that tend to support or contradict Defendant’s 22 own legal arguments in this case and reasons behind Plaintiff’s termination. Defendants’ repeated 23 failure to produce these documents by summarily concluding that the issue has been settled in 24 another case is bad faith and constitutes an abuse of the discovery process. 25 /// 26 /// 27 /// 28 /// 4 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 c. Defendant’s Privilege Log is Grossly Deficient, and the Defendant has 2 Refused to Provide Plaintiff with Requisite Information to Determine the 3 Merit of any Alleged Claim to Privilege. 4 With regard to the Defendant’s privilege logs, Defendant beats the dead horse argument 5 that the Plaintiff is time-barred from seeking redress from the Defendant’s repeated failure to 6 provide adequate privilege logs, citing to Cal. Code Civ. Pro. § 2031.310(c). The relevant section 7 provides a propounding party 45 days to file a motion to compel further response to: (1) 8 incomplete statement of compliance; (2) an evasive/inadequate/incomplete representation of 9 inability to comply; (3) meritless or too general of objections cited in responses. Very plainly, the 10 legislature did not list supplemental privilege logs in this section, yet the Defendant cites it as its 11 sole evidence that the Plaintiff is time-barred from seeking redress for its continued flouting of the 12 rules of discovery. The Defendant cites no case law to stand for the proposition that it sets in front 13 of this Court. In interpreting statutes, our primary goal is to give effect to the Legislature's intent in 14 enacting the law. "'To determine intent, "'The court turns first to the words themselves for the 15 answer.'"' [Citation.]" In re Littlefield (1993) 5 Cal. 4th 122, 130. "If the words of the statute are 16 clear, the court should not add to or alter them to accomplish a purpose that does not appear on the 17 face of the statute or from its legislative history. [Citations.]" People v. Knowles (1950) 35 Cal. 2d 18 175, 183. The Defendant seeks to insert a limitation on a request for supplemental privilege logs 19 where the legislature did not provide for it. 20 Instead, the Plaintiff directs the Court to Catalina Island Yacht Club v. Superior Court, 21 where the Court held that “When confronted with a deficient privilege log that fails to provide the 22 necessary information to rule on attorney-client and work product objections, a trial court may 23 order the responding party to provide a further privilege log that includes the necessary 24 information to rule on those objections,” and further, and that a Court may impose monetary 25 sanctions, evidence sanctions, or terminating sanctions for providing a deficient privilege log, and 26 persisting to fail to provide the Court with information requisite to determine the merit of 27 assertions of privilege. 242 Cal.App. 4th 1116, 1120-21. The statute does not limit the redress of 28 an inadequate privilege log to 45 days, and even so, the Defendant served its supplemental 5 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 privilege logs, suffering from the same inadequacies on Plaintiff well within 45 days of the 2 Plaintiff’s filing of its Motion to Compel. 3 d. Defendant’s Failure to Direct Plaintiff to Documents Responsive to Its 4 Request is An Abuse of the Discovery Process. 5 Although the Defendant failed to address the Plaintiff’s argument that it failed to direct the 6 Plaintiff to which documents are responsive to which request, the Opposition filed by the Plaintiff 7 further highlights the issue. As stated on page three (3), the Defendant admittedly produced more 8 than 7,000 pages in response to the Plaintiff’s Request for Production, yet refuses to date to 9 provide Plaintiff with direction as to which documents are responsive to which requests as very 10 clearly required by Cal. Civ. Pro. § 2031.280. The Plaintiff has requested numerous times that the 11 Defendant abide by its duties under the Discovery Act in this regard, but the Defendant has not 12 only failed to do so, but has failed to provide the Court with any reason for doing so in its 13 Opposition. This further evidences the Defendant’s bad faith. It has been the Defendant’s aim to 14 “paper” the Plaintiff and refuse to provide guidance regarding which documents are actually 15 responsive to the Plaintiff’s carefully crafted requests. When approached with a request to meet 16 and confer on this issue, and the unreasonable burden that was placed on Plaintiff to seek out 17 which documents amongst the near 8,000 pages was responsive to certain categories that the 18 Defendant alleges it produced documents responsive to, the Defendant refused to oblige as 19 required by law. In its responses, the Defendant alleges it produced documents responsive to 20 categories: 59, 60, 61, 62, 63, 64, 76, and 81, however will not inform Plaintiff of the Bates 21 numbers of documents responsive to each. The Defendants’ failure is defenseless, which is likely 22 why it was not addressed in the Defendant’s Opposition. Accordingly, the Plaintiff requests that 23 the Defendant be ordered to identify which documents are responsive the categories enumerated 24 above. 25 e. Defendant’s Request For Sanctions is Improper. 26 The Defendant claims that the Plaintiff should be liable for sanctions in the amount of 27 $12,973.50 because: (1) the request for documents was meant solely to “harass” Payward, (2) the 28 Plaintiff failed to meet and confer regarding its request for the employee handbook, performance 6 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 improvement plans, and performance reviews, and (3) that the claims to inadequacies of the 2 privilege log lack merit. In response to the Defendant’s first point, the Plaintiff made numerous 3 attempts to sort out the failure to produce informally, and would also have preferred not to bring a 4 motion to compel documents that it needs to build its case for trial. This sort of “tit-for-tat” 5 gamesmanship displayed by Defendant is merely a distraction from the issues presented in the 6 Plaintiff’s Motion to Compel – the Defendant’s failure to abide by the discovery rules. As is 7 stressed numerous times by the Defendant in its opposition, this is a rather standard employment 8 matter, yet the Defendant clings to documents that reflect standards that Payward employees are 9 held to, and documents that reflect any shortcomings in the Defendant’s performance in the 10 workplace. The Plaintiff has knowledge of the existence of these documents as he has come into 11 contact with them in the course of his employment with Payward. Lastly the claim that the 12 Plaintiff’s request for adequate information to assess the merit of assertions of privilege is hardly 13 without merit. It is well established that where a responding party asserts privilege, it must provide 14 sufficient factual information for other parties to evaluate the merits of that claim. TRG Civil 15 Litigation Series: California Discovery Citations (TRG 2018) § 5:18; Hernandez v. Sup. Ct. 16 (2003) 112 CA 4th 285. Such a privilege log shall include: (1) identification of each document that 17 privilege is claimed for; (2) its author; (3) recipients; (4) date of preparation; (5) specific privilege 18 claimed. Hernandez, supra, 112 CA 4th at pg. 291-92. The Defendant has failed to do that in any 19 of its logs it has produced to Plaintiff. The Defendant cannot claim that documents are attorney- 20 client privileged, but fail to provide the authors and recipients of documents. The Plaintiff has 21 attempted numerous times to obtain the information to no avail, and was forced to file this motion 22 to compel. The motion was not brought to “harass” the Defendant, and certainly is meritorious 23 given the Defendant’s refusal to abide by the discovery rules of this state, and of this Court. 24 Accordingly, the Defendant’s request for sanctions in the amount of $12,973.50 is not only 25 improper, but it is unconscionable. 26 III. CONCLUSION 27 For the reasons stated above, and pursuant to evidence presented in support of the 28 Plaintiff’s Motion to Compel, the Plaintiff respectfully requests the Court: (1) grant the Plaintiff’s 7 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 Motion to Compel the production of supplemental documents as outlined by the Plaintiff’s Motion 2 to Compel, (2) compel the Defendants to provide requisite information in order to determine the 3 merit of its assertions to privilege as required by law; (3) compel the Defendants to observe their 4 duty to direct Plaintiff to which documents are responsive to which requests, as required by law; 5 (4) deny the Defendant’s request for sanctions in the amount of $12,973.50. 6 7 8 9 Date: August 25, 2021 Respectfully Submitted, 10 THE LAW OFFICES OF CLAIRE COCHRAN 11 12 13 Claire Cochran, Esq. 14 Attorneys for Plaintiff, Nathan Peter Runyon 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 DECLARATION OF CLAIRE E. COCHRAN 2 I, Claire Cochran, declare: 3 1. I am an attorney duly licensed to practice law in the State of California. I am the founding 4 partner of the Law Offices of Claire Cochran. My firm was retained as counsel for Nathan 5 Peter Runyon (“Runyon” or “Plaintiff”) in the litigation entitled, Nathan Peter Runyon v. 6 Payward, Inc. and Kaiser Ng., San Francisco County Superior Court Case No.: CGC-19- 7 581099. 8 2. On May 27, 2021, Plaintiff propounded on Defendant Payward, Request for Admissions, 9 Set One, Request for Production of Documents, Set Two, and Special Interrogatories, Set 10 One. On May 28, 2021, Plaintiff propounded Special Interrogatories, Set Two. Copies of 11 those discovery requests were included with the Plaintiff’s Motion to Compel. 12 3. On July 8, 2021, Defendant Payward provided responses to those discovery requests. A 13 true and correct copy of Payward’s responses were included with the Plaintiff’s Motion to 14 Compel. 15 4. On July 13, 2021, Plaintiff propounded on Defendant Payward Supplemental Special 16 Interrogatories, and Request for Production of Documents for any information/documents 17 acquired after the initial round of discovery. A true and correct copy of those requests were 18 included with the Plaintiff’s Motion to Compel. 19 5. Defendant Payward has produced deficient Privilege Logs with each of its document 20 productions. True and correct copies of those privilege logs were included with the 21 Plaintiff’s Motion to Compel. 22 6. On July 16, 2021, Plaintiff attempted to meet and confer with Defendant regarding 23 deficiencies in its responses to Plaintiff’s Request for Production of Documents, Set Two. 24 A true and correct copy of that was included with the Plaintiff’s Motion to Compel. 25 7. On July 19, 2021, Payward sent its supplemental responses, as well as documents Bastes- 26 numbered PAYWARD006982 – PAYWARD007252. A true and correct copy of that 27 correspondence was included with the Plaintiff’s Motion to Compel. 28 9 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 8. On July 22, 2021, Plaintiff’s counsel exchanged further correspondence with Defendant’s 2 counsel regarding impermissible redactions. A true and correct copy of that 3 correspondence was included with the Plaintiff’s Motion to Compel. 4 9. On July 25, 2021, Defendant’s counsel sent a letter responding to Plaintiff’s July 16, 2021, 5 attempt to meet and confer informing Plaintiff that it would not be producing any further 6 documents or information. A true and correct copy of that correspondence was included 7 with the Plaintiff’s Motion to Compel. 8 10. The Plaintiff’s Motion to Compel was filed with the Court, and served on the Defendant on 9 August 4, 2021. 10 11. On August 18, 2021, the Defendant served on the Plaintiff its Opposition to the Motion to 11 Compel. As exhibits to the Declaration of Kimberly Pallen in support of the Motion, the 12 Defendant attached: 13 a. Exhibit C – Confidential Testimony of Connie Wong in an unrelated matter 14 b. Exhibit D – A settlement offer protected by Cal. Rules of Evid. § 1152 15 c. Exhibit E – A confidential arbitration demand for an unrelated matter 16 d. Exhibit F – A confidential interim Arbitration Award in an unrelated matter 17 12. The aforementioned confidential and protected documents were filed in violation of a 18 protective order in place in that matter, not under seal with this Court, and do not provide a 19 shred of support of any of the defenses to failure to produce or follow the rules of 20 discovery in the Defendant’s Opposition. 21 13. Defendant Payward has not subpoenaed those confidential documents from the arbitration, 22 and has not provided notice to Ms. Wong’s counsel that they intended to breach the 23 protections afforded to her third-party protected/consumer documents in its Opposition to a 24 Motion to Compel. 25 14. Defendant Payward has not requested that judicial notice be taken of the documents, nor 26 have the Defendants sought to authenticate those documents in any way. 27 28 10 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 15. The arbitration award (Exhibit F) is not final, and is yet another abuse of the Discovery 2 process, and failure to follow the rules set by the Court to admit those documents as 3 evidence. 4 16. On August 18, 2021, I attempted to meet and confer regarding the impermissible use of 5 these documents by the Defendant in support of its Motion. The Defendant’s counsel 6 responded that Exhibits C, D, E, and F were not confidential, but that it would “as a 7 courtesy” remove Exhibit F from its filing. A true and correct copy of that correspondence 8 is attached hereto as Exhibit 1 (Cochran Letter to Defendant Payward) 9 17. Attached hereto as Exhibit 2 is a true and correct copy of Mr. Lavigne’s response. 10 18. Attached hereto as Exhibit 3 is a true and correct copy of correspondence from Counsel 11 for 3rd party witness wherein he designates Ms. Wong’s deposition transcript and 12 arbitration documents are considered confidential. 13 19. The improper use of these documents to support an unrelated motion compel further 14 evidence Defendants,’ and their counsel’s refusal to play by the rules. 15 20. Today, August 25, 2021, I received a filed letter from opposing counsel, in essence, a sur 16 reply brief, in which they argue that because of the summary judgment ruling in this matter 17 much of Plaintiff's requests are mooted. First, Plaintiff has not withdrawn any requests to 18 compel documents following the summary judgment ruling, evidence in this case is 19 intertwined with Payward's defense, that Pete Runyon did poor work on his various work 20 projects, including his Country Code task AND his work on the Carta Project. These 21 contentions are laid out clearly in Kaiser Ng's Declaration attached to the Summary 22 Judgment Motion. Even if Plaintiff's whistleblower claims are no longer at issue, his work 23 product and projects ARE in play and are clearly discoverable. The information sought by 24 Plaintiff in this motion relates to his work product, projects, and his ability to get them 25 done and completed well. This evidence cannot and will not be divorced from this case 26 simply because of a summary judgment ruling, Plaintiff is entitled to rebuttal evidence to 27 demonstrate that he was doing his projects. A review of Ng's Declaration, attached herein, 28 11 PLAINTIFF’S REPLY TO OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION AND PRIVILEGE LOG 1 clearly sets forth Payward's defense in this case, and Plaintiff is entitled to any and all 2 necessary evidence for him to defend himself at trial, including all of the documents before 3 the Court in this motion. Attached hereto as Exhibit 4 is a true and correct copy of the 4 Declaration of Kaiser Ng (redacted) filed in support of the summary judgment motion in 5 this case. To the extent that Payward wants documents excluded from evidence at trial, a 6 motion in limine can be filed to that end. However, a broad-brush approach to eliminating 7 documents responsive to Plaintiff’s requests simply because Defendant deems them to be 8 “moot” is not appropriate in this instance. The documents sought (and a full and complete 9 privilege log) are inextricably linked to the Defenses’ arguments in this case and are 10 discoverable by Plaintiff. 11 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and 12 correct. 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