California Cases January 10, 2024: VibrantCare Rehab. v. Deol

Case Description

1

ORDER

ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

This action was filed on April 16, 2020. ECF No. 1. The operative First Amended Complaint is located at ECF No. 23. Presently before the court is plaintiff's motion to compel a forensic examination of defendant Kiran Doel's email and electronic devices. ECF No. 63. The parties filed the required joint statement, and several declarations in support of the joint statement. ECF Nos. 65, 66, 67, 68. Fact discovery in this action closes on February 7, 2024. ECF No. 59. The motion to compel was submitted on the papers. ECF No. 69. For or the reasons set forth below, the motion is DENIED.

I. BACKGROUND

Plaintiff VibrantCare is one of the largest providers of outpatient physical and occupational therapy services in the Western United States. ECF No. 23 at 2. Plaintiff hired defendant Kiran Deol in March of 2018 as a corporate recruiter. Id. In that role, Deol was 1

2

responsible for finding, soliciting, and hiring qualified therapists for VibrantCare's operations. Doel later promoted to Director of Recruiting, where she was responsible for the oversight of recruiting operations in multiple states. Id. According to VibrantCare's operative Amended Complaint, Doel had access to VibrantCare's confidential information and trade secrets regarding its vendor and referral network, patient scheduling system, business strategies, costs and payment structure, margins, and other highly sensitive information, which she used to attract candidates. Id.

On January 19, 2020, Doel gave notice of her resignation effective January 31, 2020. Id. VibrantCare alleges that it later discovered that by the time she resigned, Deol had been offered and accepted the position of Director of Talent Acquisition for Golden Bear Physical Therapy and Sports Injury Center, Inc. (“Golden Bear”), a direct competitor of VibrantCare's in Northern California. Id. Plaintiff alleges that Doel misappropriated a significant amount of VibrantCare's confidential, proprietary, and trade secret information before her resignation; specifically, Deol allegedly emailed VibrantCare's highly sensitive information and confidential patient information to her personal e-mail account in the days before her final workday with VibrantCare. Id. at 3. Plaintiff alleges that defendant violated the VibrantCare Employee Agreement she had signed, and brings a breach of contract claim. ECF No. 23. Plaintiff also brings claims for unfair competition, breach of fiduciary duty, violation of the Defend Trade Secrets Act, and violation of the California Uniform Trade Secrets Act. Id. at 9-13.

The parties have been progressing through discovery. VibrantCare asserts that it has served multiple discovery requests seeking to uncover the extent of Doel's misappropriation. Specifically, VibrantCare believes that Doel misappropriated the following documents prior to terminating her employment with VibrantCare: (1) a list of 162 physical therapy candidates with whom she was in contact on behalf of VibrantCare (“Candidate List”); (2) a highly confidential analysis prepared by other VibrantCare employees analyzing VibrantCare's referral sources and setting forth VibrantCare's business strategy in working with those sources in the future (“Referral Log Analysis”); (3) a highly confidential report detailing the percentages of cancelled appointments at VibrantCare locations in several states (“Patient Cancel Report”); and (4) other

3

confidential information pertaining to VibrantCare's vendors and business strategies. ECF No. 65 at 4.

In response to a request for production seeking all documents which refer or relate to information Doel acquired at VibrantCare, Doel stated that she produced a document which was initially an attachment to an email, but that she deleted the original email in or around February 2020. Nordlander Dec., ¶ 4, Ex. B, Deol's Response To Request for Production No. 17. Doel wrote, “[a]t or near to the time when Defendant deleted the Deleted Email, Defendant retitled the document to its present form solely to ensure that she did not directly interact for business purposes with any candidates with whom she was involved in recruiting while working for VibrantCare. Defendant has no present memory of any other email subject to this request for production that was sent from her VibrantCare email account to any other of her email accounts and thereafter deleted.” Id. The produced document is the “Candidate List-the list of 162 VibrantCare physical therapy candidates Deol prepared and forwarded to her personal email and saved her to work computer at Golden Bear.” ECF No. 65 at 5. VibrantCare contends that Doel's response “vaguely alludes to Deol having deleted additional responsive documents, [and] is a tacit acknowledgement of the fact that Deol has failed to produce the Patient Cancel Report and Referral Log Analysis emails that Deol transferred to her personal email account on January 28, 2020, three days before the conclusion of Deol's employment.” Id. at 6.

VibrantCare served subsequent requests for production seeking, specifically, the Patient Cancel Report and the Referral Log Analysis, but Doel responded that she had no responsive documents to produce. ECF No. 65 at 5. VibrantCare then served Interrogatory No. 17, which directed Deol to “[s]tate the time, date, and reason YOU deleted or destroyed any DOCUMENT containing or relating to VIBRANTCARE BUSINESS INFORMATION that YOU sent from kdeol@vibrantcarerehab.com to any non-VIBRANTCARE email address . . . .,” and Deol repeated her earlier response that she deleted the Candidate List email at some point in February 2020, but that she does not recall deleting any other emails. Nordlander Dec., ¶ 7, Ex. E. Finally, VibrantCare served Request for Production No. 52 and 54 directing Doel to produce the digital copies of her desktop computer and Kirandeol7@hotmail.com email account that Deol has

4

indicated her former attorneys prepared. Deol objected and has refused to make the production.

The parties met and conferred and, unable to resolve the issue, VibrantCare brought this motion for a forensic examination of plaintiff's devices.

II. LEGAL STANDARDS

The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure 26(b)(1). The current Rule states:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed.R.Evid. 401. Relevancy to the subject matter of the litigation “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Relevance, however, does not establish discoverability; in 2015, a proportionality requirement was added to Rule 26. Under the amended Rule 26, discovery must be proportional to the needs of the case.

A party seeking to compel discovery has the initial burden to establish that its request is proper under Rule 26(b)(1). If the request is proper, the party resisting discovery has the burden of showing why discovery was denied; they must clarify and support their objections. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). General or boilerplate objections, without explanation, are not prohibited but are insufficient as a sole basis for an objection or privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005).

5

III. DISCUSSION

In the absence of evidence to the contrary, plaintiff is required to accept defendant's sworn statement that responsive documents/devices do not exist. See e.g ., Sanchez v. County of Sacramento Sheriff's Dep't, No. 2:19-CV-01545 MCE AC, 2021 WL 2292776, *3, 2021 U.S. Dist. LEXIS 105549, *3 (E.D. Cal. June 4, 2021); Mootry v. Flores, 2014 WL 3587839, *2, 2014 U.S. Dist. LEXIS 98941, *4 (E.D. Cal. 2014) (“Defendants cannot be required to produce documents that do not exist. Absent evidence to the contrary, which has not been presented, Plaintiff is required to accept Defendants' response no such documents exist.”). Here, Deol submitted an affidavit stating that she has no responsive documents: “I deleted VibrantCare emails from my personal email account [after ending work at VibrantCare], including the email containing a list of prospective physical therapists. I separately maintained a copy of that attached list on my Golden Bear issued laptop so that I would know the individuals that I should avoid contacting so that VibrantCare would not accuse me of violating the non-solicitation provision it claimed bound my post-employment actions.” ECF No. 68 at 1.

Plaintiff has failed to put forth any concrete evidence that that Doel is being untruthful in her assertions or that she was incomplete in her search. Instead, plaintiff argues that Deol “claims that she transferred VibrantCare's confidential and trade secret information to her personal email account for purposes of performing her job duties in the days prior to the end of her employment” and VibrantCare believes - for no specific reason - that this statement is untrue. ECF No. 65 at 14. VibrantCare argues that a forensic examination is necessary because “forensic evidence that Deol accessed, transferred, or modified the files at issue after her last day of work would disprove this already highly dubious explanation.” Id. VibrantCare goes on to argue that “Deol also claims that her destruction of evidence occurred before and was totally unrelated to VibrantCare sending her a February 14, 2020 cease-and-desist letter. VibrantCare anticipates the forensic examination will show that Deol's destruction of evidence occurred after she had notice of VibrantCare's claims against her.” Id. VibrantCare has not identified any basis for its belief that a forensic examination will undermine Doel's statements. Twisting Doel's responses to construe them as “tacit admissions” of evidence destruction and generalized hunches that Doel is being

6

untruthful are not enough to support this motion. Without a specific factual basis for defendant's belief that Doel is being untruthful, the court will not order a forensic fishing expedition seeking to undermine her testimony.

IV. CONCLUSION

For the foregoing reasons, plaintiff's motion to compel a forensic investigation (ECF No. 66) is DENIED.

IT IS SO ORDERED.