73 Cal.App.5th 179
Cal. Ct. App.2021Background
- Park sued his former attorneys for interfering with his attempts to buy two cardrooms and subpoenaed the California DOJ for electronically stored information (emails/texts) from DOJ employees.
- DOJ’s search identified hundreds of thousands of potentially responsive ESI, produced very few documents, and reported a labor-intensive review; a discovery referee was appointed to resolve disputes.
- The referee ordered production of responsive, nonprivileged ESI but the DOJ moved under CCP §1985.8(l) for protection and to shift costs of compliance to Park, citing significant expense and burdens of review.
- The referee and trial court repeatedly found some DOJ costs compensable but inadequately documented or excessive; they recommended reducing potentially recoverable costs by 50% and shifting those reduced amounts to Park (initial $32,836.25, later $111,618.75 adopted in Oct. 2020).
- Park appealed the October 2020 order; the Court of Appeal treated the order as a collateral final determination and affirmed, awarding DOJ costs on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Oct. 2020 order is appealable | Park: order is a monetary sanction appealable under §904.1(a)(12) | DOJ: order is a collateral final determination resolving Park–DOJ dispute | Court: not a sanction but is appealable as a final collateral matter; appeal allowed |
| Proper standard for shifting costs under CCP §1985.8(l) | Park: §1985.8(l) requires qualitative "undue" standard focused on equitable factors and cannot rest on "significant expense" test from Fed. R. Civ. P. 45 | DOJ: federal Rule 45 caselaw is persuasive; court may consider expense significance plus equitable factors | Court: §1985.8(l) grants discretion; significance of costs is relevant and may be considered together with equitable/factual factors; no misapplication |
| Adequacy of DOJ’s proof and 50% reduction of claimed costs | Park: DOJ’s billing was vague/overstated; 50% allowance still too high and not supported | DOJ: even with documentation flaws, it showed significant undue expense warranting partial cost-shifting | Court: referee reasonably discounted poorly supported/excessive claims by 50%; trial court did not abuse discretion in awarding $111,618.75 |
Key Cases Cited
- Vasquez v. California School of Culinary Arts, Inc., 230 Cal.App.4th 35 (2014) (discusses California ESI discovery rules)
- Legal Voice v. Stormans, Inc., 738 F.3d 1178 (9th Cir. 2013) (distinguishes Rule 45 cost-shifting from sanctions; cost-shifting is mandatory)
- Weatherford v. City of San Rafael, 2 Cal.5th 1241 (2017) (statutory structure can inform interpretation of discovery statutes)
- Toshiba Am. Electronic Components v. Superior Court, 124 Cal.App.4th 762 (2004) (distinguishes use of "shall" and parallels federal discovery guidance)
- Marsh v. Mountain Zephyr, Inc., 43 Cal.App.4th 289 (1996) (collateral order exception allows appeal of final determinations resolving separate collateral matters)
- Michael Wilson & Partners, Ltd. v. Sokol Holdings, Inc., [citation="520 F. App'x 736"] (10th Cir. 2013) (affirming reduction of inadequately supported third-party discovery costs)