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Attorneys’ Fee Award Overturned Because Plaintiff’s ESI Request Not “Clearly Frivolous”

Posted on February 2nd, 2015

In Bertoli et al. v. City of Sebastopol, et al., No.A132916 (Ct. App. Ca. Jan. 20, 2015), the California Court of Appeals considered an eDiscovery dispute involving a plaintiff’s use of California’s Public Records Act.

Plaintiff, who was rendered permanently physically and mentally disabled after being hit by a car while walking in a crosswalk, served Public Records Act requests of Defendant City of Sebastopol.  Plaintiff’s requests expressly sought electronically stored information (ESI) and email correspondence in anticipation of her personal injury lawsuit.

The City initially cooperated and produced many records but a dispute arose after Plaintiff served an additional 62 ESI requests, including requests to search private computers that Plaintiff believed could contain responsive documents. The City made suggestions to narrow the requests, and Plaintiff offered to pay for a third-party eDiscovery vendor to assist with the searches, but ultimately the parties could not reach an agreement. Plaintiff filed a Petition for Writ of Mandate under the Public Records Act for relief.

The trial court denied the Petition, characterizing the requests to be an “unprecedented fishing expedition,” an “alarming invasion of property rights,” and an “extravagant use of limited city resources.” Pursuant to the Public Records Act, the court deemed the petition “clearly frivolous” and ordered that Plaintiff pay the City’s attorneys’ fees.  Plaintiff appealed.

While the Court of Appeals agreed that the underlying requests were “overly aggressive, unfocused, and poorly drafted,” it reversed the trial court’s attorneys’ fee award, concluding that Plaintiff’s Petition was not, in fact, “clearly frivolous” based on the following factors:

  • Plaintiff did not file the Petition for any improper purpose, such as harassment or delay.
  • The Petition was no less legitimate simply because Plaintiff requested the ESI in anticipation of a personal injury suit.
  • Plaintiff’s request for additional ESI was reasonable because Plaintiff had evidence that additional undisclosed ESI existed.
  • It was not “clearly frivolous” for Plaintiff to take the position that public government documents might exist on private computers.
  • To merit attorney fees under the Public Records Act, the court had to determine that “any reasonable attorney” would agree that the Petition was “totally without merit.” The court could not reach that conclusion, especially considering that the law on ESI is still evolving in the Public Records Act arena.

ILS – Plaintiff eDiscovery Experts

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