Motion to Compel Production Responsive to Second Set of Requests for Production
2025CUBT045643: HARLAN WERNER, et al. vs ALYSSA CROSBY, AS EXECUTOR OF THE WILL OF DANIEL CROSBY, DECEASED 07/16/2026 in Department 21 Motion to Compel PRODUCTION RESPONSIVE TO SECOND SET OF REQUESTS FOR PRODUCTION
Tentative Rulings. Parties and counsel appearing for oral argument should address the tentative decision. Parties may submit on the tentative decision by email, with a copy to all other parties in the matter, to courtroom21@ventura.courts.ca.gov before 8:00 a.m. on the day set for the hearing, with a subject line that includes SUBMISSION ON TENTATIVE, Case Number, Title and Party. If fewer than all parties submit on the tentative, the hearing will proceed, and the tentative ruling is subject to change. The clerk cannot advise if you should still appear or not. The decision of whether to appear for a hearing is to be made by the parties and their counsel. (Dept. 21 Rules & Procedures, p. 4, § II.I.)
The following is a statement of the Courts tentative ruling. The Court may adopt, modify or reject the tentative ruling after hearing. The tentative ruling has no legal effect unless and until adopted by the Court.
Motion: The Art of the Game, Inc.s and SPS-Art Incorporateds Motion to Compel Production Responsive to Second Set of Requests for Production (Opposed)
Tentative Ruling:
Plaintiffs/Cross-Defendants The Art of the Game, Inc. (AOTG) and SPS-Art Incorporateds (SPS) motion to compel further compliance with Request for Production No. 32 is GRANTED IN PART and DENIED in PART.
Defendant/Cross-Complainant shall preserve the subject iPhone and shall not alter, erase, reset, update, dispose of, or otherwise modify it. Defendant/Cross-Complainant Alyssa Crosby shall cooperate with a controlled forensic inspection of the cell phone(s) used by Crosby to perform work on behalf of SPS from 2020 to July 19, 2024. The examination shall be non-destructive and performed at Plaintiffs/Cross-Defendants expense.
The motion is DENIED to the extent it seeks unrestricted or unfettered access by Plaintiffs/Cross-Defendants or their counsel to all contents of the device.
The parties are ordered to meet and confer either in person, over the telephone or via videoconference regarding the scheduling of the forensic inspection of the cell phone(s) and the search terms to be utilized during the inspection. At least 3 days prior to the meet and confer session, Plaintiff is to provide Defendant with a list of search terms and categories of data to be used during the inspection. To the extent Defendant has retained a forensic expert, the Defendants forensic expert shall be permitted to be present, along with Defendant and Defense
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2025CUBT045643: HARLAN WERNER, et al. vs ALYSSA CROSBY, AS EXECUTOR OF THE WILL OF DANIEL CROSBY, DECEASED
counsel, for the entire duration of the inspection to observe the inspection process. Defendant and/or Defendants expert shall access the cell phone(s) without providing the credentials directly to Plaintiff or Plaintiffs expert. At the inspection, should Defendant and/or Defendants expert not be able to access the cell phone(s), then Plaintiffs forensic expert shall be entitled to attempt to access the cell phone(s). The parties shall also meet and confer on a protective order addressing any non-relevant and private information contained within the cell phone(s) that might be accessed by way of this inspection.
This meet and confer shall be completed within 15 days of the date of this ruling. The inspection shall be completed within 45 days of the date of this ruling.
The competing requests for monetary sanctions are DENIED.
Counsel for Plaintiff is to give notice within two (2) court days.
Discussion:
1. Evidentiary objections
Bradley Tyer Declaration
Objection No. 1 is SUSTAINED IN PART and OVERRULED IN PART. Tyer may testify that he received and forwarded the forensic professionals communication. The objection is sustained insofar as the statement is offered to establish the technical conclusion that the iPhone could not be accessed.
Objection No. 2 is SUSTAINED IN PART and OVERRULED IN PART. The objection is sustained as to assertions that other persons necessarily retained retrievable copies of all relevant texts and that Plaintiffs have unrestricted access to them. It is overruled as to Tyers testimony concerning his own communications with opposing counsel.
Objection No. 3 is SUSTAINED IN PART and OVERRULED IN PART. The objection is sustained as to Tyers opinion that other sources could supply all relevant texts and that there was no reason to inspect the phone. It is otherwise overruled as to his personal communications.
Objection No. 4 is SUSTAINED IN PART and OVERRULED IN PART. Tyer may state that he transmitted documents reflecting Apple Store expenses. The objection is sustained as to whether those expenses concerned the subject iPhone, whether reimbursement occurred, and whether Daniel Crosby used the phone for personal and business purposes.
Objection No. 5 is SUSTAINED, except as to the limited fact that Tyer transmitted expense documents to opposing counsel.
2025CUBT045643: HARLAN WERNER, et al. vs ALYSSA CROSBY, AS EXECUTOR OF THE WILL OF DANIEL CROSBY, DECEASED
Lara Shapiro Declaration
Objection No. 6 is SUSTAINED IN PART and OVERRULED IN PART. Shapiro may testify concerning the volume of the laptop production and what Plaintiffs did or did not identify during the discovery discussions. The objection is sustained as to assertions concerning Plaintiffs subjective motives, bad faith, intent to oppress, or purpose to cause emotional distress, and as to legal characterizations of Werners declaration.
Objection No. 7 is SUSTAINED IN PART and OVERRULED IN PART. The objection is overruled as to Shapiros participation in the discovery process, her review of the litigation file and production, and the contents of the parties communications. It is sustained as to speculation concerning Plaintiffs beliefs, motives, future conduct, and intent.
Alyssa Crosby Declaration
Objection No. 8 is SUSTAINED IN PART and OVERRULED IN PART. Crosby may testify that she contacted the forensic professional, provided the phone information, received a response, and forwarded it to counsel. The objection is sustained insofar as the statement is offered to prove that the iPhone was technologically inaccessible.
Objection No. 9 is SUSTAINED IN PART and OVERRULED IN PART. Exhibit 1 may be considered to establish notice, the course of the meet-and-confer process, and Crosbys reason for not shipping the phone. It may not be considered for the truth of the forensic professionals technical conclusion.
Objection No. 10 is SUSTAINED IN PART and OVERRULED IN PART. Crosby may testify concerning her own concerns and emotional reaction. The objection is sustained as to legal conclusions concerning defamation and intentional infliction of emotional distress and as to speculation regarding another persons purpose.
Objection No. 11 is SUSTAINED IN PART and OVERRULED IN PART. The objection is sustained as to legal conclusions concerning defamation and litigation privilege. It is overruled as to Crosbys perception that statements were personal attacks and her testimony concerning their effect on her.
Objection No. 12 is SUSTAINED.
Objection No. 13 is SUSTAINED IN PART and OVERRULED IN PART. The objection is sustained as to Werners and his attorneys alleged motives and intentions. It is overruled as to Crosbys testimony that she read the statements and experienced emotional distress.
Objection No. 14 is SUSTAINED IN PART and OVERRULED IN PART. The objection is sustained as to argumentative characterizations and predictions of continuing misconduct. It is overruled as to Crosbys personal concern regarding the privacy of family information.
2025CUBT045643: HARLAN WERNER, et al. vs ALYSSA CROSBY, AS EXECUTOR OF THE WILL OF DANIEL CROSBY, DECEASED
Objection No. 15 is SUSTAINED, except that Crosby may testify concerning her subjective privacy concerns.
2. Motion to compel RFP No. 32
Plaintiffs/Cross-Defendants have shown good cause. The evidence indicates that Daniel Crosby managed the companies finances and daily operations, regularly used the iPhone(s) for business calls, texts, and applications, and had the phone bill paid by SPS. The alleged misuse of corporate funds is central to the litigation, Daniel Crosby cannot be examined, and the laptop production reportedly contained no text messages and may not include all relevant business emails. These facts reasonably support the conclusion that the phone may contain unique, relevant evidence concerning the claims and defenses.
The approximately 12,000-page laptop production does not establish that the phones contents would be cumulative. A phone may contain text messages and application data that were not stored on or downloaded to the laptop.
Defendant/Cross-Complainant has nevertheless established legitimate privacy concerns. The phone appears to have been used for both personal and business purposes and may contain communications, photographs, medical information, and information concerning living family members and minor children. Although Daniel Crosbys own privacy rights may not have survived his death, the privacy rights of living third parties remain. TBG Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443 is also distinguishable because the employee there used employer-provided equipment and had expressly consented to monitoring.
Those privacy interests warrant a limited forensic protocol, not complete denial of discovery.
The evidence also does not establish that the phone is wholly inaccessible. The forensic professional did not inspect the device and stated only that her available method did not support brute-force access to a disabled iPhone 14 running iOS 17.5.1. The present showing does not establish that no other qualified examiner or method could access the device.
In sum, the motion is GRANTED in PART and DENIED in PART as described above.
The competing requests for monetary sanctions are DENIED. Plaintiffs/Cross-Defendants request was adequately stated in the notice of motion notwithstanding its omission from the caption, but Defendant/Cross-Complainant acted with substantial justification in opposing unrestricted production of a mixed-use personal device containing potentially private third-party information. Defendant/Cross-Complainants sanctions request was not properly noticed or supported as required by CCP § 2023.040.
Counsel for Plaintiff is to give notice within two (2) court days.
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