InfoSpan Inc. v. Emirates NBD Bank PJSC
InfoSpan Inc. v. Emirates NBD Bank PJSC
2015 WL 13917013 (C.D. Cal. 2015)
February 10, 2015

Gandhi, Jay C.,  United States Magistrate Judge

Failure to Produce
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Summary
The court denied the defendant's motion to compel the production of the plaintiff's tax returns and established an expedited procedure for future discovery disputes.
InfoSpan Inc. et al.
v.
Emirates NBD Bank PJSC
Case No. SA CV 11-1062 JVS (ANx)
United States District Court, C.D. California
Filed February 10, 2015

Counsel

Terry W. Bird, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow, David Boyd, Pro Hac Vice, David L. Zifkin, James Wells Harrell, Jonathan M. Shaw, Melissa B. Willett, Melissa B. Felder Zappala, Paul Weiss Rifkind Wharton and Garrison LLP, Naeun Rim, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow, Los Angeles, CA, Nandan R. Padmanabhan, Boies Schiller and Flexner LLP, Santa Monica, CA, William A. Isaacson, Washington DC, DC, for InfoSpan Inc. et al.
Daniel Scott Schecter, Nima H. Mohebbi, Latham and Watkins LLP, Los Angeles, CA, Steven M. Bauer, Latham and Watkins LLP, San Francisco, CA, for Emirates NBD Bank PJSC.
Gandhi, Jay C., United States Magistrate Judge

Proceedings: (IN CHAMBERS) ORDER DENYING DEFENDANT'S MOTION TO COMPEL

*1 Due to Judge Nakazato's unavailability, Defendant's motion to compel will be adjudicated by this Court.

 

The motion is DENIED.

 

California law recognizes a privilege against the disclosure of tax returns and provides three generally-recognized exceptions: (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. See Schnabel v. Superior Court of Orange Cnty., 5 Cal. 4th 704, 718-21 (1993); Weingarten v. Superior Court of San Diego Cnty., 102 Cal. App. 4th 268, 274 (2002).

 

Here, Defendant contends that Plaintiff's development cost allegation has “placed directly in issue” its expenses incurred in connection with the development of SpanCash. Defendant also contends that the “total dearth of any documents” produced by Plaintiff to substantiate its damages claim justifies the production of the tax returns, including Plaintiff's incomplete responses to other discovery. Lastly, the requested tax returns are “relevant” and “critical” to test Plaintiff's assertion that SpanCash has independent economic value. None of these contentions are persuasive.

 

First, Defendant's own expert disagrees on the relevancy of development costs for SpanCash technology vis-a-vis liability or damages in this essentially trade secret misappropriation case. Here, the gravamen of this lawsuit seems to be whether Plaintiff developed and deployed a SpanCash system, whether Defendant's products and/or their features mirror that system, whether Defendant's products and/or their features were developed through other avenues, whether the features of Plaintiff's system at issue are protectable, and the market value of those lost assets (if trade secrets and if misappropriated). How much was spent developing the SpanCash technology appears to be, if not impertinent, largely peripheral to the key issues in this case.

 

Second, turning to the “total dearth of any documents,” that argument is untenable. The ZHS audit report readily identifies its “basis of preparation,” including particular “source” documents. Plus, there is Plaintiff's damages expert's report. And to the extent any of Plaintiff's other discovery responses are improper, Defendant should move to compel on that basis.

 

Third and finally, Defendant makes no showing that the tax returns will reveal the “independent economic value” of SpanCash (or, perhaps more accurately, its particular features) and, as previously mentioned, Defendant's own expert doubts whether development costs have any bearing here.

 

In sum, on this particular record, Defendant fails to make the requisite showing to compel the production of tax returns. See, e.g., Bowerman v. Field Asset Svcs., Inc., 2013 WL 6057043, at *2 (N.D. Cal. Nov. 14, 2013); Freaner v. Valle, 2012 WL 4486293, at *3 (S.D. Cal. Sept. 28, 2012).

 

Going forward, in light of the paramount interest of a just, speedy, and inexpensive determination of this action, see Fed. R. Civ. P. 1, the Court relieves the parties of the joint stipulation requirement in connection with discovery disputes under Local Rule 37. In the event future discovery disagreements arise, which the Court does not anticipate, then the parties shall jointly contact the Courtroom Deputy Clerk and request a telephonic hearing for three mutually-agreed upon dates and times, subject to the Court's availability, and the parties shall file letter briefs on the CM/ECF system, not to exceed five (5) pages, five (5) calendar days before the scheduled hearing.

 

*2 This expedited procedure is not an invitation for the parties and their counsel to simply resort to court intervention to resolve every conceivable dispute, necessary or unnecessary, meritorious or not. Instead, the Court is endeavoring to provide an effective and efficient means of addressing discovery disputes for the parties and their veteran, able counsel, after the parties fully and diligently meet and confer, after they cooperate in good faith, after they propose reasonable compromises, and after they have surgically narrowed the disputes to critical issues.

 

The Court thanks the parties and their counsel for their professionalism.

 

It is so ordered.