Preview
1 Kimberly Pallen (SBN 288605)
kimberly.pallen@withersworldwide.com
2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY
(admitted Pro Hac Vice)
3 christopher.lavigne@withersworldwide.com F I L E D
Superior Court of California,
Withers Bergman LLP County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 08/17/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE
Facsimile: 415.549 2480 Deputy Clerk
6
Attorneys for Defendants Payward, Inc., a
7 California Corporation d/b/a Kraken; and
Kaiser Ng, an individual
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099
13 Plaintiff, DEFENDANTS’ RESPONSE TO
PLAINTIFF’S SEPARATE STATEMENT
14 v. IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSES FROM
15 PAYWARD, INC., a California Corporation PAYWARD, INC.
d/b/a KRAKEN; and Kaiser NG, an
16 individual; and DOES 1 through 50, inclusive, Filed Concurrently with: Opposition Brief to
Plaintiff’s Motion to Compel Further
17 Defendants. Responses to Supplemental Requests for
Production of Documents and Privilege Log;
18 Declaration of Kimberly A. Pallen
19 Date: August 30, 2021
Time: 9:00 a.m.
20 Dept.: 302
21 The Hon. Ethan P. Schulman, Dept. 302
22 Action Filed: November 26, 2019
Trial Date: September 13, 2021
23
24 Defendants/Responding Party Payward, Inc. d/b/a Kraken and Kaiser Ng (collectively
25 referred to herein as “Defendants” or “Payward”), hereby object to Plaintiff’s Motion to Compel
26 Further Responses from Payward, Inc. to Supplemental Requests for Production of Documents
27 and Privilege Log (the “Motion”) served by Nathan Peter Runyon (“Plaintiff” or “Runyon”) as
28 follows.
NY28571/0001-US-9748317/2
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
1 At the outset, Payward requests that the Court deny the motion, and disregard Plaintiff’s
2 Separate Statement in Support of Motion to Compel Further Responses (the “Separate
3 Statement”), on the basis that the separate statement does not comply with California Rule of
4 Court 3.1345(c). See Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 (denying plaintiff’s
5 motion to compel because it “did not set forth the full response to each of the discovery requests”
6 as required CRC 3.1345(c).) Similar to the separate statement in Mills, here, Runyon does not
7 provide Payward’s responses to the requests purportedly at issue. Rather, like in Mills, Runyon’s
8 “separate statement repeatedly grouped together several discovery requests,” and the section
9 setting forth a statement of the factual and legal reasons for compelling further responses . . . was
10 extremely confusing because it did not indicate which of the specific discovery requests the
11 various factual and legal reasons related to, and thus did not fulfill the requirement that the
12 statement address the factual and legal reasons for compelling ‘each mater in dispute.’” Ibid. This
13 violates the portion of CRC 3.1345 that states that “[t]he separate statement must be full and
14 complete so that no person is required to review any other document in order to determine the full
15 request and the full response.” The appellate court in Mills held as follows: “We conclude that
16 because Plaintiffs did not comply with the requirements of [CRC 3.1345], the trial court was well
17 within its discretion to deny the motion to compel discovery on that basis.” Mills, 166 Cal. App.
18 4th at 893.
19 I. RESPONSE TO “OUTSTANDING DOCUMENTS AND RESPECTIVE
20 REQUESTS”
21 Payward responds by noting that the Separate Statement does not comply with California
22 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate
23 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008)
24 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the
25 full response to each of the discovery requests” as required CRC 3.1345(c).)
26 Moreover, Plaintiff’s request for certain Google spreadsheets and Mr. Ng’s entire
27 DocuSign history, along with his complaints regarding entries on Payward’s privilege log,
28 represent nothing more than Plaintiff’s last-ditch effort to harass Payward. CCP § 2023.010(c)
NY28571/0001-US-9748317/2 2
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
1 (“Misuses of the discovery process include . . . Employing a discovery method in a manner or to
2 an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and
3 expense.”). These documents are irrelevant to Plaintiff’s remaining claims, and he does nothing to
4 justify these requests. Indeed, Plaintiff’s “summary of relevant facts” only reference his few
5 remaining disability claims, and do not mention his vesting-schedule fraud claim.
6 Regarding the document bearing Bates numbers PAYWARD 4792-93, Payward properly
7 responded that it had “already produced responsive and non-privileged documents in its
8 possession, custody and control responsive to this Request.” As Payward has explained multiple
9 times to Runyon’s counsel, this document is a privileged draft Board document that was withheld
10 on privilege grounds and appears in Payward’s August 19, 2020, Supplemental Privilege Log.
11 Indeed, the email attaching this document, and the document itself, appear on lines 634 and 635,
12 respectively, of the privilege log.
13 Regarding Request No. 71, that request seeks documents “created by Runyon tracking
14 country codes and related OPEC data.” (Plaintiff’s Sep. Stmt. at 3:7-9.) Payward responded to this
15 request that it would produce “any additional responsive, non-privileged documents” it was “able
16 to locate after a diligent search and reasonable inquiry.” After performing this search, Payward
17 was unable to locate any additional responsive documents, including the Google document
18 reference in PAYWARD005166.
19 Runyon does not dispute this. Instead he simply states, without any support at all, that this
20 particular document will reflect “concerns the Plaintiff brought up regarding Payward’s operations
21 and inability to receive revenue from certain countries.” (Mot. to Compel at 8.) This unsupported
22 lawyer argument presents no evidence making this wishful thinking true. Richard Strick, M.D.,
23 Inc. v. United Ret. Plan Consultants, Inc., No. 2:16-cv-08206-AFM, 2018 WL 6004529, at *4
24 (C.D. Cal. July 13, 2018) (“[I]t is insufficient for Plaintiffs merely to present a lawyer’s argument
25 without evidence.”); Nelson, 184 Cal. App. 3d at 452-53. And as illustrated directly above, this
26 argument is simply not true.
27 Regarding Plaintiff’s motion to compel Payward’s alleged “Employee Handbook,”
28 “Performance Reviews,” and “Performance Improvement Plan,” Plaintiff never met and conferred
NY28571/0001-US-9748317/2 3
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
1 with Payward about these documents. CCP § 2023.010(i). Furthermore, regardless of the outcome
2 of the motion to compel, Defendants should be granted monetary sanctions for Plaintiff’s failure to
3 meet and confer regarding production of these documents. CCP § 2023.020.
4 Additionally, these documents are completely vague and do not exist. Had Runyon’s
5 counsel met and conferred with Payward prior to making this motion, she would know this.
6 Payward does not have, and never has had, an employee handbook. Runyon testified as to the
7 existence of a Payward employee handbook, but when questioned about this after his deposition
8 testimony, Runyon revealed he was referring to a handbook offered by Payward’s third-party
9 payroll company, TriNet. Had Ms. Cochran conferred with Payward about this, it would have
10 directed to her to seek this document from third-party TriNet. However, in an abundance of
11 caution, Payward has downloaded a copy of TriNet’s “Worksite Employee Handbook,” and has
12 produced it to Plaintiff.
13 Payward is unclear what Runyon’s counsel is referring to when she references
14 “Performance Reviews.” As Payward made clear in its reply in support of its motion for summary
15 adjudication, Mr. Ng provided written and verbal reviews of Runyon’s work. Payward has
16 produced all of these written reviews to Runyon.
17 Lastly, it is unclear what Runyon’s counsel is referring to when she refers to a
18 “Performance Improvement Plan.” Runyon’s counsel questioned Mr. Ng about this, and Mr. Ng
19 testified that is not “aware of any individual receiving a performance improvement plan.”
20 II. RESPONSE TO “PRIVILEGE LOG”
21 Payward responds by noting that the Separate Statement does not comply with California
22 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate
23 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008)
24 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the
25 full response to each of the discovery requests” as required CRC 3.1345(c).)
26 Moreover, as explained to Runyon’s counsel, her concerns regarding Payward’s August
27 19, 2020, privilege log are untimely and have been resolved with Runyon’s counsel, Ms.
28 Sorensen. From November 2020 to February 2021, Payward’s counsel corresponded with Ms.
NY28571/0001-US-9748317/2 4
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
1 Sorensen about entries on the privilege log that she claimed were not privileged. Payward’s
2 counsel explained to her that all of the entries she questioned were drafts of Board minutes sent to
3 our client by its then-lawyers, or that reflected legal advice from outside counsel. Furthermore,
4 Payward’s counsel informed Ms. Sorensen in February 2021 that Runyon’s time to file a motion
5 to compel pertaining to any privilege logs had expired, and if he wanted to file a motion to
6 compel, Payward would oppose it on that basis, among others. Runyon never filed a motion to
7 compel. Therefore, he is time barred from moving to compel at this late stage. See CCP §
8 2031.310(c).
9 Regardless, as Payward’s counsel told Ms. Sorensen, the privilege log entries Runyon
10 complains of in his motion (rows 629 – 636) are indeed drafts of Board consents and are, as such,
11 privileged. For Ms. Cochran to ignore this and raise the entries again nine months after Ms.
12 Sorensen raised them, and at the close of discovery, smacks of mal-intent. Runyon’s statement that
13 “Defendants have repeatedly failed” to provide additional information about these privilege log
14 entries (Plaintiff’s Sep. Stmt. at 7) is completely disingenuous. 1 Payward has explained that these
15 entries reflect privilege draft board documents and privileged communications attaching those
16 board documents.
17 Moreover, Runyon’s counsel does not challenge Payward’s assertion of privilege over
18 these draft board documents. Instead, she appears to argue that Payward has waived its attorney-
19 client privilege wholesale. (Plaintiff’s Sep. Stmt. at 6.) This is the first Payward is hearing of this
20 argument. Regardless, the notion that Payward conducted some pre-litigation internal
21 investigation, has put the adequacy of that investigation at issue, or took ameliorative action based
22 on that investigation is invented from whole cloth. Cf. Wellpoint Health Networks, Inc. v. Superior
23 Court (1997) 59 Cal. App. 4th 110. Instead, this is a typical litigation; when Runyon filed this
24
1
25 Runyon’s counsel makes numerous unsupported and completely false statements in the motion to
compel and separate statement. For example, she claims “Plaintiff has identified several
26 redactions/exemptions from production made by Defendant which it claims were made on the
grounds of privilege, however, Defendants offer no explanation how the document is privileged.
27 The Defendant has large areas of redaction in documents that are key to this litigation but fails to
28 give justification as to the nature of the redactions.” This is simply not true. Plaintiff’s counsel has
not identified any such redactions, and she cites nothing in the record to indicate she has.
NY28571/0001-US-9748317/2 5
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
1 lawsuit, Payward hired undersigned counsel and undertook to gather facts and defend itself.
2 Nothing in this standard scenario suggests any privilege was waived. Additionally, Runyon’s
3 counsel appears to argue in the improper separate statement that Payward’s entire privilege log is
4 inadequate. (Id. at 5-6.) This is wholly improper. Runyon’s counsel’s sole meet and confer letter
5 on this issue identified only specific entries 630-636 on the privilege log that she wanted
6 additional information for. Again, Payward has repeatedly explained what these entries are. To the
7 extent Runyon is now challenging Payward’s entire privilege log, the motion to compel must be
8 denied because she failed to meet and confer with Payward about this challenge.
9 III. RESPONSE TO “FAILURE TO DIRECT PLAINTIFF TO RESPONSIVE
10 DOCUMENTS TO ITS REQUEST”
11 Payward responds by noting that the Separate Statement does not comply with California
12 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate
13 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008)
14 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the
15 full response to each of the discovery requests” as required CRC 3.1345(c).)
16 Payward has fulfilled our obligations under Code of Civil Procedure § 2031.280(a), which
17 requires that “[a]ny documents or categories of documents produced in response to a demand for
18 inspection . . . shall be identified with the specific request number to which the documents
19 respond.” Payward provided the specific request numbers to which the documents respond in our
20 cover letters accompanying our previous productions.
21 IV. RESPONSE TO “GOOD CAUSE TO COMPEL”
22 Payward responds by noting that the Separate Statement does not comply with California
23 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate
24 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008)
25 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the
26 full response to each of the discovery requests” as required CRC 3.1345(c).)
27 By citing Best Products, Inc. v. Superior Court (2004) 119 Cal. App. 4th 1181, 1190,
28 Runyon appears to argue in the improper separate statement that Payward’s entire privilege log is
NY28571/0001-US-9748317/2 6
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
1 inadequate. (Id. at 5-6.) This is wholly improper. Runyon’s counsel’s sole meet and confer letter
2 on this issue identified only specific entries 630-636 on the privilege log that she wanted
3 additional information for. Again, Payward has repeatedly explained what these entries are. To the
4 extent Runyon is now challenging Payward’s entire privilege log, the motion to compel must be
5 denied because she failed to meet and confer with Payward about this challenge.
6 Runyon also appears to argue that Payward has waived its attorney-client privilege
7 wholesale. (Plaintiff’s Sep. Stmt. at 6.) This is the first Payward is hearing of this argument.
8 Regardless, the notion that Payward conducted some pre-litigation internal investigation, has put
9 the adequacy of that investigation at issue, or took ameliorative action based on that investigation
10 is invented from whole cloth. Cf. Wellpoint Health Networks, Inc. v. Superior Court (1997) 59
11 Cal. App. 4th 110. Instead, this is a typical litigation; when Runyon filed this lawsuit, Payward
12 hired undersigned counsel and undertook to gather facts and defend itself. Nothing in this standard
13 scenario suggests any privilege was waived.
14 V. CONCLUSION
15 Payward respectfully requests that this Court disregard the Separate Statement and deny
16 the Motion because of the Separate Statement’s noncompliance with the California Rules of
17 Court. See Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to
18 compel because it “did not set forth the full response to each of the discovery requests” as required
19 CRC 3.1345(c).)
20
21 DATED: August 17, 2021 WITHERS BERGMAN LLP
22
23
By:
24 Kimberly A. Pallen
Christopher N. LaVigne
25 Attorneys for Defendants Payward, Inc., a
California Corporation d/b/a Kraken; and
26
Kaiser Ng, an individual
27
28
NY28571/0001-US-9748317/2 7
W I THER S
B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL
REQUESTS FOR PRODUCTION OF DOCUMENTS
Preview
1 Kimberly Pallen (SBN 288605) kimberly.pallen@withersworldwide.com 2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY (admitted Pro Hac Vice) 3 christopher.lavigne@withersworldwide.com F I L E D Superior Court of California, Withers Bergman LLP County of San Francisco 4 505 Sansome Street, 2nd Floor San Francisco, California 94111 08/17/2021 Clerk of the Court 5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE Facsimile: 415.549 2480 Deputy Clerk 6 Attorneys for Defendants Payward, Inc., a 7 California Corporation d/b/a Kraken; and Kaiser Ng, an individual 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099 13 Plaintiff, DEFENDANTS’ RESPONSE TO PLAINTIFF’S SEPARATE STATEMENT 14 v. IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES FROM 15 PAYWARD, INC., a California Corporation PAYWARD, INC. d/b/a KRAKEN; and Kaiser NG, an 16 individual; and DOES 1 through 50, inclusive, Filed Concurrently with: Opposition Brief to Plaintiff’s Motion to Compel Further 17 Defendants. Responses to Supplemental Requests for Production of Documents and Privilege Log; 18 Declaration of Kimberly A. Pallen 19 Date: August 30, 2021 Time: 9:00 a.m. 20 Dept.: 302 21 The Hon. Ethan P. Schulman, Dept. 302 22 Action Filed: November 26, 2019 Trial Date: September 13, 2021 23 24 Defendants/Responding Party Payward, Inc. d/b/a Kraken and Kaiser Ng (collectively 25 referred to herein as “Defendants” or “Payward”), hereby object to Plaintiff’s Motion to Compel 26 Further Responses from Payward, Inc. to Supplemental Requests for Production of Documents 27 and Privilege Log (the “Motion”) served by Nathan Peter Runyon (“Plaintiff” or “Runyon”) as 28 follows. NY28571/0001-US-9748317/2 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS 1 At the outset, Payward requests that the Court deny the motion, and disregard Plaintiff’s 2 Separate Statement in Support of Motion to Compel Further Responses (the “Separate 3 Statement”), on the basis that the separate statement does not comply with California Rule of 4 Court 3.1345(c). See Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 (denying plaintiff’s 5 motion to compel because it “did not set forth the full response to each of the discovery requests” 6 as required CRC 3.1345(c).) Similar to the separate statement in Mills, here, Runyon does not 7 provide Payward’s responses to the requests purportedly at issue. Rather, like in Mills, Runyon’s 8 “separate statement repeatedly grouped together several discovery requests,” and the section 9 setting forth a statement of the factual and legal reasons for compelling further responses . . . was 10 extremely confusing because it did not indicate which of the specific discovery requests the 11 various factual and legal reasons related to, and thus did not fulfill the requirement that the 12 statement address the factual and legal reasons for compelling ‘each mater in dispute.’” Ibid. This 13 violates the portion of CRC 3.1345 that states that “[t]he separate statement must be full and 14 complete so that no person is required to review any other document in order to determine the full 15 request and the full response.” The appellate court in Mills held as follows: “We conclude that 16 because Plaintiffs did not comply with the requirements of [CRC 3.1345], the trial court was well 17 within its discretion to deny the motion to compel discovery on that basis.” Mills, 166 Cal. App. 18 4th at 893. 19 I. RESPONSE TO “OUTSTANDING DOCUMENTS AND RESPECTIVE 20 REQUESTS” 21 Payward responds by noting that the Separate Statement does not comply with California 22 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate 23 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008) 24 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the 25 full response to each of the discovery requests” as required CRC 3.1345(c).) 26 Moreover, Plaintiff’s request for certain Google spreadsheets and Mr. Ng’s entire 27 DocuSign history, along with his complaints regarding entries on Payward’s privilege log, 28 represent nothing more than Plaintiff’s last-ditch effort to harass Payward. CCP § 2023.010(c) NY28571/0001-US-9748317/2 2 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS 1 (“Misuses of the discovery process include . . . Employing a discovery method in a manner or to 2 an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and 3 expense.”). These documents are irrelevant to Plaintiff’s remaining claims, and he does nothing to 4 justify these requests. Indeed, Plaintiff’s “summary of relevant facts” only reference his few 5 remaining disability claims, and do not mention his vesting-schedule fraud claim. 6 Regarding the document bearing Bates numbers PAYWARD 4792-93, Payward properly 7 responded that it had “already produced responsive and non-privileged documents in its 8 possession, custody and control responsive to this Request.” As Payward has explained multiple 9 times to Runyon’s counsel, this document is a privileged draft Board document that was withheld 10 on privilege grounds and appears in Payward’s August 19, 2020, Supplemental Privilege Log. 11 Indeed, the email attaching this document, and the document itself, appear on lines 634 and 635, 12 respectively, of the privilege log. 13 Regarding Request No. 71, that request seeks documents “created by Runyon tracking 14 country codes and related OPEC data.” (Plaintiff’s Sep. Stmt. at 3:7-9.) Payward responded to this 15 request that it would produce “any additional responsive, non-privileged documents” it was “able 16 to locate after a diligent search and reasonable inquiry.” After performing this search, Payward 17 was unable to locate any additional responsive documents, including the Google document 18 reference in PAYWARD005166. 19 Runyon does not dispute this. Instead he simply states, without any support at all, that this 20 particular document will reflect “concerns the Plaintiff brought up regarding Payward’s operations 21 and inability to receive revenue from certain countries.” (Mot. to Compel at 8.) This unsupported 22 lawyer argument presents no evidence making this wishful thinking true. Richard Strick, M.D., 23 Inc. v. United Ret. Plan Consultants, Inc., No. 2:16-cv-08206-AFM, 2018 WL 6004529, at *4 24 (C.D. Cal. July 13, 2018) (“[I]t is insufficient for Plaintiffs merely to present a lawyer’s argument 25 without evidence.”); Nelson, 184 Cal. App. 3d at 452-53. And as illustrated directly above, this 26 argument is simply not true. 27 Regarding Plaintiff’s motion to compel Payward’s alleged “Employee Handbook,” 28 “Performance Reviews,” and “Performance Improvement Plan,” Plaintiff never met and conferred NY28571/0001-US-9748317/2 3 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS 1 with Payward about these documents. CCP § 2023.010(i). Furthermore, regardless of the outcome 2 of the motion to compel, Defendants should be granted monetary sanctions for Plaintiff’s failure to 3 meet and confer regarding production of these documents. CCP § 2023.020. 4 Additionally, these documents are completely vague and do not exist. Had Runyon’s 5 counsel met and conferred with Payward prior to making this motion, she would know this. 6 Payward does not have, and never has had, an employee handbook. Runyon testified as to the 7 existence of a Payward employee handbook, but when questioned about this after his deposition 8 testimony, Runyon revealed he was referring to a handbook offered by Payward’s third-party 9 payroll company, TriNet. Had Ms. Cochran conferred with Payward about this, it would have 10 directed to her to seek this document from third-party TriNet. However, in an abundance of 11 caution, Payward has downloaded a copy of TriNet’s “Worksite Employee Handbook,” and has 12 produced it to Plaintiff. 13 Payward is unclear what Runyon’s counsel is referring to when she references 14 “Performance Reviews.” As Payward made clear in its reply in support of its motion for summary 15 adjudication, Mr. Ng provided written and verbal reviews of Runyon’s work. Payward has 16 produced all of these written reviews to Runyon. 17 Lastly, it is unclear what Runyon’s counsel is referring to when she refers to a 18 “Performance Improvement Plan.” Runyon’s counsel questioned Mr. Ng about this, and Mr. Ng 19 testified that is not “aware of any individual receiving a performance improvement plan.” 20 II. RESPONSE TO “PRIVILEGE LOG” 21 Payward responds by noting that the Separate Statement does not comply with California 22 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate 23 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008) 24 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the 25 full response to each of the discovery requests” as required CRC 3.1345(c).) 26 Moreover, as explained to Runyon’s counsel, her concerns regarding Payward’s August 27 19, 2020, privilege log are untimely and have been resolved with Runyon’s counsel, Ms. 28 Sorensen. From November 2020 to February 2021, Payward’s counsel corresponded with Ms. NY28571/0001-US-9748317/2 4 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS 1 Sorensen about entries on the privilege log that she claimed were not privileged. Payward’s 2 counsel explained to her that all of the entries she questioned were drafts of Board minutes sent to 3 our client by its then-lawyers, or that reflected legal advice from outside counsel. Furthermore, 4 Payward’s counsel informed Ms. Sorensen in February 2021 that Runyon’s time to file a motion 5 to compel pertaining to any privilege logs had expired, and if he wanted to file a motion to 6 compel, Payward would oppose it on that basis, among others. Runyon never filed a motion to 7 compel. Therefore, he is time barred from moving to compel at this late stage. See CCP § 8 2031.310(c). 9 Regardless, as Payward’s counsel told Ms. Sorensen, the privilege log entries Runyon 10 complains of in his motion (rows 629 – 636) are indeed drafts of Board consents and are, as such, 11 privileged. For Ms. Cochran to ignore this and raise the entries again nine months after Ms. 12 Sorensen raised them, and at the close of discovery, smacks of mal-intent. Runyon’s statement that 13 “Defendants have repeatedly failed” to provide additional information about these privilege log 14 entries (Plaintiff’s Sep. Stmt. at 7) is completely disingenuous. 1 Payward has explained that these 15 entries reflect privilege draft board documents and privileged communications attaching those 16 board documents. 17 Moreover, Runyon’s counsel does not challenge Payward’s assertion of privilege over 18 these draft board documents. Instead, she appears to argue that Payward has waived its attorney- 19 client privilege wholesale. (Plaintiff’s Sep. Stmt. at 6.) This is the first Payward is hearing of this 20 argument. Regardless, the notion that Payward conducted some pre-litigation internal 21 investigation, has put the adequacy of that investigation at issue, or took ameliorative action based 22 on that investigation is invented from whole cloth. Cf. Wellpoint Health Networks, Inc. v. Superior 23 Court (1997) 59 Cal. App. 4th 110. Instead, this is a typical litigation; when Runyon filed this 24 1 25 Runyon’s counsel makes numerous unsupported and completely false statements in the motion to compel and separate statement. For example, she claims “Plaintiff has identified several 26 redactions/exemptions from production made by Defendant which it claims were made on the grounds of privilege, however, Defendants offer no explanation how the document is privileged. 27 The Defendant has large areas of redaction in documents that are key to this litigation but fails to 28 give justification as to the nature of the redactions.” This is simply not true. Plaintiff’s counsel has not identified any such redactions, and she cites nothing in the record to indicate she has. NY28571/0001-US-9748317/2 5 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS 1 lawsuit, Payward hired undersigned counsel and undertook to gather facts and defend itself. 2 Nothing in this standard scenario suggests any privilege was waived. Additionally, Runyon’s 3 counsel appears to argue in the improper separate statement that Payward’s entire privilege log is 4 inadequate. (Id. at 5-6.) This is wholly improper. Runyon’s counsel’s sole meet and confer letter 5 on this issue identified only specific entries 630-636 on the privilege log that she wanted 6 additional information for. Again, Payward has repeatedly explained what these entries are. To the 7 extent Runyon is now challenging Payward’s entire privilege log, the motion to compel must be 8 denied because she failed to meet and confer with Payward about this challenge. 9 III. RESPONSE TO “FAILURE TO DIRECT PLAINTIFF TO RESPONSIVE 10 DOCUMENTS TO ITS REQUEST” 11 Payward responds by noting that the Separate Statement does not comply with California 12 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate 13 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008) 14 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the 15 full response to each of the discovery requests” as required CRC 3.1345(c).) 16 Payward has fulfilled our obligations under Code of Civil Procedure § 2031.280(a), which 17 requires that “[a]ny documents or categories of documents produced in response to a demand for 18 inspection . . . shall be identified with the specific request number to which the documents 19 respond.” Payward provided the specific request numbers to which the documents respond in our 20 cover letters accompanying our previous productions. 21 IV. RESPONSE TO “GOOD CAUSE TO COMPEL” 22 Payward responds by noting that the Separate Statement does not comply with California 23 Rule of Court 3.1345(c). Payward further responds by requesting that this portion of the Separate 24 Statement be disregarded by the Court based on its noncompliance. See Mills v. U.S. Bank (2008) 25 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to compel because it “did not set forth the 26 full response to each of the discovery requests” as required CRC 3.1345(c).) 27 By citing Best Products, Inc. v. Superior Court (2004) 119 Cal. App. 4th 1181, 1190, 28 Runyon appears to argue in the improper separate statement that Payward’s entire privilege log is NY28571/0001-US-9748317/2 6 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS 1 inadequate. (Id. at 5-6.) This is wholly improper. Runyon’s counsel’s sole meet and confer letter 2 on this issue identified only specific entries 630-636 on the privilege log that she wanted 3 additional information for. Again, Payward has repeatedly explained what these entries are. To the 4 extent Runyon is now challenging Payward’s entire privilege log, the motion to compel must be 5 denied because she failed to meet and confer with Payward about this challenge. 6 Runyon also appears to argue that Payward has waived its attorney-client privilege 7 wholesale. (Plaintiff’s Sep. Stmt. at 6.) This is the first Payward is hearing of this argument. 8 Regardless, the notion that Payward conducted some pre-litigation internal investigation, has put 9 the adequacy of that investigation at issue, or took ameliorative action based on that investigation 10 is invented from whole cloth. Cf. Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 11 Cal. App. 4th 110. Instead, this is a typical litigation; when Runyon filed this lawsuit, Payward 12 hired undersigned counsel and undertook to gather facts and defend itself. Nothing in this standard 13 scenario suggests any privilege was waived. 14 V. CONCLUSION 15 Payward respectfully requests that this Court disregard the Separate Statement and deny 16 the Motion because of the Separate Statement’s noncompliance with the California Rules of 17 Court. See Mills v. U.S. Bank (2008) 166 Cal. App. 4th 871, 893 (denying plaintiff’s motion to 18 compel because it “did not set forth the full response to each of the discovery requests” as required 19 CRC 3.1345(c).) 20 21 DATED: August 17, 2021 WITHERS BERGMAN LLP 22 23 By: 24 Kimberly A. Pallen Christopher N. LaVigne 25 Attorneys for Defendants Payward, Inc., a California Corporation d/b/a Kraken; and 26 Kaiser Ng, an individual 27 28 NY28571/0001-US-9748317/2 7 W I THER S B ERGMA N LLP DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO SUPPLEMENTAL REQUESTS FOR PRODUCTION OF DOCUMENTS