Calcor Space Facility, Inc. v. Superior Court

• Decision Date: 28 February 1997
• Docket Number: No. G020021,G020021
• Citation: 61 Cal.Rptr.2d 567,53 Cal.App.4th 216
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1618, 97 Daily Journal D.A.R. 3023 CALCOR SPACE FACILITY, INC., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; THIEM INDUSTRIES, INC., et al., Real Parties in Interest.

Page 567

61 Cal.Rptr.2d 567

53 Cal.App.4th 216, 97 Cal. Daily Op. Serv. 1618,

97 Daily Journal D.A.R. 3023

CALCOR SPACE FACILITY, INC., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent;

THIEM INDUSTRIES, INC., et al., Real Parties in Interest.

No. G020021.

Court of Appeal, Fourth District, Division 3, California.

Feb. 28, 1997.

As Modified March 7, 1997.

Review Denied May 28, 1997.

Heller, Ehrman, White & McAuliffe, Jon L. Rewinski, Kindel & Anderson, and Elena R. Baca, Los Angeles, for Petitioner.

No appearance for Respondent The Superior Court of Orange County.

RYLAARSDAM, Associate Justice.

We hold a subpoena under Code of Civil Procedure section 2020, subdivision (d) (all further statutory references are to the Code of Civil Procedure) must describe the documents to be produced with reasonable particularity. Generalized demands, insupportable by evidence showing at least the potential evidentiary value of the information sought, are not permitted. When responding to a motion for a protective order, the party seeking such discovery must supply evidence demonstrating a reasonable relationship between the materials sought to be produced and the issues involved in the case. We therefore issue a writ of mandate directing the trial court to vacate orders compelling a nonparty to produce materials in response to a subpoena describing generalized broad categories of materials rather than specific documents or, at least, categories of documents or materials which are reasonably particularized in relation to the manner in which the producing party maintains such records.

FACTS

Delco Systems Operations contracted with Rockwell International to supply Trainable Gun Mount Systems (gun mounts). Delco, in turn, contracted with Thiem Industries, Inc. to produce some of these gun mounts. The contracts required the gun mounts be manufactured in accordance with designated specifications. The marriage between Delco and Thiem was not a happy one. Delco claimed Thiem failed to meet the specifications and ultimately refused to accept the gun mounts. Instead Delco contracted with Calcor Space Facility, Inc. to supply the mounts. Not surprisingly, litigation resulted.

Thiem sued Delco on various theories, in essence contending Delco failed to adequately coordinate and manage the project and failed to provide Thiem with adequate and timely engineering information. Delco's cross-complaint followed. It also asserted various theories, contending Thiem failed to meet the specifications and otherwise delivered defective gun mounts.

In the course of the litigation, Thiem served a subpoena under section 2020 on Calcor's custodian of records demanding Calcor, a nonparty and Thiem's competitor, to, in effect, produce all materials in its possession relating to gun mounts, going back nearly ten years. The subpoena fails to identify any specific document but merely describes broad categories of documents and other materials. The categories of materials to be produced are described in an attachment to the subpoena which runs some 12 pages, including almost 3 pages of "definitions" and another 3 pages of "instructions." Typical of the scope of the demand is the so-called definition of "documents" and "writings," which itself runs almost a page and which includes such items as "business records, orders, invoices, statements, bills, books of account, ledgers, books, circulars, brochures, advertisements, bulletins, instructions, minutes, diaries, calendars, logs, schedules, drawings, photographs, charts, statistical, accounting, and financial statements, workpapers, notebooks, data sheets and every tangible thing produced by handwriting, typewriting, printing, ... and all such data or information stored on computer-related media, ..."

As examples of the categories of material demanded, we quote the first four of thirty-two requests: "REQUEST NO. 1. [p] The Gun Mounts, including but not limited to documents relating to the design, modification, engineering manufacture, testing, rejection, revision, modification, or acceptance of the Gun Mounts or any subassemblies or components manufactured in connection with the Gun Mount Project. [p] REQUEST NO. 2. [p] All purchase orders, amendments to purchase orders, engineering change orders, drawings, specifications, invoices, rejection reports, accident reports and Material Review Board ('MRB') authorization reports relating to the Gun Mounts or the Gun Mount Project. [p] REQUEST NO. 3. [p] All requests for quotation ('RFQ') or requests for proposal ('RFP') in connection with the Gun Mounts or the Gun Mount Project. [p] REQUEST NO. 4. [p] All bid materials, including but not limited to cost estimates, labor estimates, and production time estimates prepared for and submitted by Calcor in connection with the Gun Mount Project." As noted, each of these 32 "requests" is expanded Calcor filed a motion for a protective order contending the subpoena was unreasonably burdensome and overly broad for service on a nonparty, sought confidential and proprietary information and was not limited to materials relevant to the subject matter of the suit between Delco and Thiem. Peter Webber, Calcor's Vice President, stated in a declaration his corporation had three contracts with Delco for gun mounts, only one of which related to the mounts which were the subject of the controversy between the parties to the litigation. He also declared that there were thousands of documents fitting the categories described in the subpoena and that these documents were kept in various departments of the company. Webber stated "to respond to the Subpoena, Calcor would have to review the correspondence and general files in all of its departments," and this project "would take two people a minimum of two and one-half to three weeks of full-time effort." In addition, the declaration states: "The Calcor documents which describe Calcor's methodology all indicate that the documents and the information contained in the documents is considered company confidential."

                by 6 pages of "definitions" and "instructions."   Although facially detailed and particularized, the demand, in effect, is very simple.  It orders Calcor to produce everything in its possession which has anything to do with gun mounts (including the gun mount assemblies themselves)
                

Thiem countered with a motion to compel Calcor to comply with the subpoena. No evidence contradicting Mr. Webber's declaration was submitted. In their points and authorities which, of course, are not evidence, Thiem's counsel justified compelling production of the subpoenaed materials as follows: "Following Delco's improper rejection of Thiem's work, Delco hired Calcor, at a vastly increased price, to construct another set of gun mounts. The plans, drawings, and specifications used by Calcor were substantially different from those used for the Thiem project, and indeed incorporated a large number of changes previously suggested by Thiem but rejected at the time by Delco.... These engineering changes and modifications, as implemented by Calcor, highlight Delco's mismanagement of the Thiem project as well as the manifest design defects in Delco's drawings which allegedly rendered the gun mounts unsuitable for the Air Force's purposes.... Delco, for its part, has asserted that Thiem is responsible to cover the costs incurred by Delco in connection with its having to hire Calcor. There is thus an obvious issue as to why Calcor was hired and as to what necessitated the immense increase in costs associated with the gun mount project."

The trial court essentially denied Calcor's motion and granted Thiem's motion. Following our issuance of the alternative writ herein, the court modified its order, limiting the categories of materials to be produced, requiring Calcor to serve a log of documents as to which a privilege was asserted and providing for a protective order covering documents containing proprietary information. Petitioner objected to dismissal of the writ following this modification of the trial court's order and we proceeded to hear the matter.

DISCUSSION

Calcor's contentions that the requirement it produce the materials is unduly burdensome and that the bulk of the materials requested lack relevancy (even under the expansive discovery test) are well taken. Whether served on a party or a nonparty, the procedure here used to compel production of documents and other materials represents an outrageous abuse of the discovery system, and exemplifies the misuses to which the discovery statutes are prone absent judicial consideration for the great burdens which may be imposed on parties and nonparties alike.

Some time ago, this court recognized the potential for such abuse in Mannino v. Superior Court (1983) 142 Cal.App.3d 776, 191 Cal.Rptr. 163, when we noted "We are also aware the discovery process is subject to frequent abuse and, like a cancerous growth, can destroy a meritorious cause or defense...." (Id. at p. 778, 191 Cal.Rptr. 163.) Our observations of the day to day practice of law lead us to conclude this cancer is spreading and judges must become more aggressive in curbing these abuses. Courts must insist discovery devices be used as tools

to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.

The Unreasonable Burden Sought to be Imposed on Calcor

Both sections 2020 (dealing with inspection demands on nonparties) and 2031 (dealing with inspection demands on parties) require records sought to be produced be designated "either by specifically describing each individual item or by reasonably particularizing each category of item." (§§ 2020, subd. (d)(1), 2031, subd. (c)(1).) Obviously the demanding party cannot specifically describe an individual item without first ascertaining its existence. Since the above-quoted phrase must be read as a whole, there is no...