Plaintiff cannot shield cell phone records that his claim makes relevant

Ortiz v. LLC, No. 17-cv-03820-JSW (MEJ) (N.D. Cal. May 25, 2018).

In this employment dispute, the court concluded that the plaintiff lacked possession or control over the cell phone account listed in his wife’s name. However, it chastised the plaintiff’s attorneys for their behavior and ordered the plaintiff to provide sufficient information for the defendant to subpoena those records.

The plaintiff, Michael Ortiz, claimed that his former employers, including Golden State, failed to compensate him for all the hours he worked. Ortiz also alleged that Golden State didn’t allow him adequate breaks during the day.

During discovery, Ortiz failed to produce his cell phone records. In March 2018, the court ordered him to produce those records by April 6.

Still, Ortiz refused. Three weeks after the production deadline, he advised Golden State that he could not obtain the records. Ortiz explained that because the account was in his “non-party wife’s name,” he lacked “possession or control” of the records. Ortiz stated that he had “sought to obtain the records through his wife” but inexplicably could not. Further, he “refused to provide his wife’s name and address” to Golden State. Ortiz did not explain his delay in advising Golden State or the court that his wife controlled the account.

Ortiz claimed that he had “personal reasons” to keep his relationship with his wife “private.” The court found this justification unpersuasive. While the court concluded that Ortiz did not have possession or control of the cell phone records, that did not excuse his failure to cooperate. This case hinges on Ortiz’s argument that Golden State improperly failed to pay him for the hours he worked or provide him with breaks. As such, Ortiz put his daily activities squarely at issue, making the cell phone records relevant.

The court ordered Ortiz to provide the account holder’s name and address to Golden State so that it could subpoena the cell phone records. In addition, it ordered Ortiz to file an explanation for “why he cannot obtain the records” directly.

Finally, the court noted that Ortiz’s conduct was “more appropriate to a party appearing in pro se” than to someone with five attorneys. It admonished counsel to behave more professionally, noting that Ortiz “cannot wait until the eleventh hour” to explain his difficulties with discovery. While the court did not impose sanctions, it explicitly reserved the right to do so.

In an order shortly after this opinion, the court noted that “in a span of three months, the parties have sought court intervention in nine discovery disputes.” This case is likely far from over.

Takeaways on Explaining Delays

If you encounter difficulty producing relevant information in discovery — or if you object to the relevance of requested information — don’t delay discussing it. Here, both the plaintiff and his counsel dragged their feet in either producing information or explaining why they couldn’t do so. Had they promptly advised opposing counsel of the problem, they could have entirely avoided court intervention. Instead, the court is now primed to sanction the plaintiff for any further obfuscation.

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