MEMORANDUM OPINION AND ORDER
RONALD GUZMAN, District Judge
The plaintiff has moved to take the deposition of Scott Jones, Senior Forensic Examiner at Forensicon. Mr. Jones performed an analysis of the defendants' computers in connection with American Family's motion for sanctions/rule to show cause. The latter motion was one of a number of such motions in this case. Mr. Jones ultimately produced a report, which has been provided to American Family and to the Roths. The case is set for trial on October 25, 2010 and the pre-trial order is due September 8, 2010. Discovery, of course, was closed long ago.
The matter of the examination by Forensicon has been in play since at least May 1, 2008 [125, 131-132] and has been the subject of controversy for years. See e.g., Docket #175, 278. Neither Mr. Scott nor anyone else at Forensicon was ever designated as an expert by American Family, and of course, the only kind of testimony he could get was that of an expert. See Rule 702, Federal Rules of Evidence. Nonetheless, quite recently, after finally receiving the Forensicon report, American Family subpoenaed Mr. Jones to be deposed, presumably because it planned to call him as a witness on behalf of American Family at trial. When the defendants objected, American Family filed a motion for permission to depose Mr. Jones even though "there was enough discovery here to choke a horse. . . ." Walker v. Sheahan, 526 F.3d 973, 978 (7th Cir. 2008). Perhaps concluding that my prior involvement in discovery supervision in this case put me "in the best position to decide the proper scope of discovery," id., Judge Guzman referred the matter here.
This case is now more than five years old. American Family has had a virtually unlimited opportunity to take discovery regarding the underlying matters that are part of Mr. Scott's report. Indeed, American Family has argued throughout these proceedings that the evidence of the defendants' perfidy is overwhelming and incontestable, and that they have destroyed documents and computers and evidence in their computers, thereby proving overwhelmingly (albeit circumstantially) under the doctrine of spoliation their liability to American Family. Nonetheless, the motion implicitly argues that the matters in the Forensicon report are necessary for use at trial. But if that is true, one may question reasonably why long ago American Family did not alert either me or Judge Guzman that there was a possibility (indeed, a significant likelihood given American Family's repeated insistence that the Roths were unrepentant scoundrels) that they planned to use Forensicon as a witness at trial. Deadlines count. At least in this Circuit. See Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 1996) ("we live in a world of deadlines . . . the practice of law is no exception . . . when parties wait until the last minute to comply with a deadline, they are playing with fire"); In re Sulfuric Acid Antitrust Litigation, 230 F.R.D. 527, 533 (N.D.Ill. 2005).
Counsel for American Family conceded at the hearing that he understood the Forensicon report, and indeed, its conclusions are virtually self-explanatory. It is simply unnecessary for American Family to take discovery on the topic of the report to know what Mr. Jones has concluded. Mr. Jones is not adverse to American Family, and, as counsel for American Family conceded, he is available for informal conversations and discussions with American Family regarding his report. If anything, as prior proceedings regarding payment by the Roths to Forensicon demonstrated, Mr. Jones is anything but favorable to the Roths.
The question of whether Mr. Jones can even be a witness at trial is not for me to decide. But what is clear is that a deposition at this late date is not necessary in order for American Family to assess whether it would like Mr. Jones to be a witness or to know what he will say if allowed to testify. And it is beyond debate that he will never be called by the Roths, given the conclusions in his report and the incredible acrimony that existed between him and the Roths in connection with his bill for the examination.
"[D]iscovery, like all matters of procedure, has ultimate and necessary boundaries," Hickman v. Taylor, 329 U.S. 495, 507 (1947), and these "`limits grow more formidable as the showing of need decreases.'" Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U. A., 657 F.2d 890, 904 (7th Cir. 1981). The discovery rules are not a ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney's interest. Parties are entitled to a reasonable opportunity to investigate the facts-and no more. Sommerfield v. City of Chicago, 613 F.Supp.2d 1004, 1020 (N.D.Ill. 2009). "[E]nough is enough," Williams v. Shinseki, 2010 WL 1274233, 4 (7th Cir. 2010), is a theme that echoes throughout Seventh Circuit cases dealing with excessive discovery. See e.g., Walker v. Sheahan, 526 F.3d 973, 981 (7th Cir. 2008); Banos v. City of Chicago, 398 F.3d 889, 893 (7th Cir. 2005) ("Throughout this litigation, the City has been subjected to long delays and voluminous discovery. Enough is enough."). That caution applies here.
The plaintiff's motion does not explain why a deposition is necessary or why at this late date American Family should be allowed to take the deposition of a person who was never designated as even a possible expert, although his existence was known years ago and the outcome of his examination was, given American Family's view of the case, a foregone conclusion — and it was one that would not be favorable to the defendants. Nor does the motion cite any case that would arguably justify my exercising discretion to allow Mr. Jones to be deposed on the eve of trial. Indeed the motion cites no cases. But even had it done so, that would not have been outcome-determinative.
Judges are called upon to manage notoriously crowded dockets. "Necessarily, they must have substantial discretion as they manage their dockets." Reales v. Consolidated Rail Corp., 84 F.3d 993, 996 (7th Cir. 1996). See also Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Semien v. Life Insurance Co. of N.A., 436 F.3d 805, 813 (7th Cir. 2006); Rule 26(c), Federal Rules of Civil Procedure; Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002). Discretion denotes the absence of a hard and fast rule, Langnes v. Green, 282 U.S. 531, 541 (1931); Pruitt v. Mote, 2006 WL 3802822 (7th Cir. 2006); Rogers v. Loether, 467 F.2d 1110, 1111-12 (7th Cir. 1972) (Stevens, J.). Indeed, on virtually identical facts, two decision makers can arrive at opposite conclusions, both of which constitute appropriate exercises of discretion. United States v. Banks, 546 F.3d 507, 508 (7th Cir. 2008). See also Johnson v. Daley, 339 F.3d 582, 593-594 (7th Cir. 2003) ("the district judge's substantial discretion, see Hensley v. Eckerhart, 461 U.S. 424, 437-38 (1983), which implies deferential appellate review of fee awards, ensures inconsistency."). In the context of this case, I choose to exercise my discretion and deny the motion, to deposeose Scott Jones [319].
Both sections 8330, subdivision (b)(1) and 8331, subdivision (f) provide that in any subsequent action to enforce the rights of a member to inspect membership records of the corporation, the corporation has the burden of proving that the member will allow use of the information for purposes unrelated to the person's interest as a member or that the alternative method it proposes will reasonably and in a timely manner achieve the purpose set forth in the demand.
Thus, in reviewing the trial court's order, we must determine (1) whether the trial court's determination that the member will not permit the membership list to be used for an improper purpose is supported by substantial evidence, and (2) whether the alternative proposed by the corporation was reasonable.
A. Substantial Evidence Supports Miller's Proper Purpose
The trial court's order is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of the correctness of the order. ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [ 275 Cal.Rptr. 797, 800 P.2d 1227].) "When a finding of fact is attacked on the ground that there, is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact." ( Primm v. Primm (1956) 46 Cal.2d 690, 693 [ 299 P.2d 231].) "Substantial evidence is evidence that is `reasonable, credible, and of solid value'; such that a reasonable trier of fact could make such findings. [Citation.] [¶] It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence." ( In re Sheila B. (1993) 19 Cal.App.4th 187, 199 [ 23 Cal.Rptr.2d 482].)
Miller repeatedly asserted in his communications to WorldMark his intent to use the membership information solely to contact other members regarding his proposed petition to amend the corporation's bylaws. WorldMark's contrary evidence consisted of its claim that Bill Stephan, one of the 36 members who signed an endorsement of Miller's petition, was the director of sales and marketing for a company in direct competition with Wyndham.
Inherent in the trial court's ruling was the finding that WorldMark's speculation in this regard was not sufficient to meet its burden of proving that "the member will allow use of the information for purposes unrelated to the person's interest as a member. . . ." (§ 8330, subd. (b)(1).) Miller's representations regarding his intent to use the information solely for a proper purpose constitutes sufficient evidence to support the trial court's finding on that issue.
B. The Alternative Was Unreasonable
The trial court made several findings with respect to the reasonableness of the alternative presented by WorldMark. It found that the cost to Miller of the proposed alternative would be $1 per member for alternative mailing, resulting in a cost of over $260,000. It also found the alternative did not comport with section 7.1 of WorldMark's bylaws, which provides that the membership register shall be made available to any member for inspection and copying upon reasonable notice. The trial court found that the Policies and Procedures for requests to inspect and copy the membership register passed by the board were a violation of the bylaws that had not been shown to be in compliance with the provisions for modification of the bylaws.
WorldMark argues for the first time in its reply brief that Miller never tendered evidence that the cost of mailing under the alternative would be at least $260,000. Arguments raised for the first time in the reply brief are untimely and may be disregarded. ( Hernandez v. Vitamin Shoppe Industries Inc. (2009) 174 Cal.App.4th 1441, 1461, fn. 10 [95 Cal.Rptr.3d 7341.) In any event, we may take judicial notice under Evidence Code section 452, subdivision (h), that the current cost of a first-class stamp is 44 cents, thus for postage alone (not including the cost of paper, copying, sorting, and handling) the cost to mail 260,000 first-class letters would be $114,400, an amount that is still prohibitive for the average member.
In determining whether the alternative offered by WorldMark was reasonable, we look to the purposes of the statutory scheme, as well as the purpose of Miller's request. The obvious purpose of the statute is twofold: to allow members access to the membership list for purposes related to their interests as members, and to protect the sensitive nature of a nonprofit corporation's membership lists.
The comments based on the legislative committee summary to section 6330, which deals with public benefit nonprofit corporations and which contains language virtually identical to section 8330, states in part:
"A danger exists in allowing too free an access to membership lists; however, the potential for abuse must be balanced against a member's legitimate needs and rights to utilize lists in election contests and for purposes reasonably related to a member's interest.
"The old nonprofit law allowed one member to gain access to a membership list for a purpose reasonably related to the member's interest as a member. However, a member had to bring suit to enforce this right if the corporation refused to provide the list. The new nonprofit law adopts the former law as to the rights of a single member except that it allows the corporation to provide a `reasonable alternative.' . . .
". . . The committee felt that the above provisions would draw a proper balance between a member's need for adequate access to membership lists and the need of a corporation to protect itself from wrongful exploitation of an important asset." (Corns. Based on Legis. Com. Summary, Deering's Ann. Corp. Code (2009 ed.) foll. § 6330, p. 209.)
We derive from Miller's numerous requests that in addition to wanting the membership list for the proper purpose of contacting the membership about bylaw changes, he specifically requested e-mail addresses in order to distribute his materials in an inexpensive and timely manner, so they could be considered at the annual meeting of the WorldMark board scheduled to occur approximately two and one-half months after his first request. The process proposed by WorldMark would have served its own interest in protecting the membership list, but would have failed to satisfy either of the interests asserted by Miller.
Although Miller's purpose of contacting the membership prior to the 2008 annual meeting can no longer be accomplished, his purpose of having his proposed bylaw amendments distributed to the membership and put up for a vote may still be accomplished at a future meeting.
The cost of contacting and distributing information to other members is a legitimate factor in determining the reasonableness of any alternative. It is especially pertinent to the consideration of this case, where the membership of the corporation is extremely large, making the cost of contacting the other members by conventional mail such a significant factor that, as a practical matter, a member is completely prohibited from attempting to contact other members for corporate business. The costs go even higher when a third party is paid to physically sort, copy, and mail the information.
The proposed alternative also would not have accomplished Miller's purpose in a timely manner. Although Miller sent his original request some two and one-half months prior to the annual meeting, WorldMark did not propose its alternative until October 15, 2008, only eight days before the scheduled meeting. At that point the only way to transmit the information in a timely manner was electronically.
Section 8330, subdivision (c) provides that the "corporation may, within ten business days after receiving a demand . . . deliver to the person or persons making the demand a written offer of an alternative method of achieving the purpose identified in said demand without providing access to or a copy of the membership list."
WorldMark argues that the trial court erred in assuming that member e-mail addresses were required to be produced under section 8330. WorldMark reasons that the cost of mailing the information through a third party mail house would not have been significantly more expensive than Miller's cost of mailing the information himself, especially since WorldMark offered to share the cost associated with using the mail house.
However, we shall conclude in the next part that the language of part 8330, read in the light of allied sections, is sufficiently broad to encompass e-mail addresses in light of the obvious purpose of the statute. Thus, in determining what constituted a reasonable alternative for purposes of sections 8330 and 8331, the trial court could consider options that involved the electronic transfer of the information to the members, including e-mail.
II E-mail Addresses
WorldMark argues it had no obligation to disclose the e-mail addresses of its members because neither section 8330 nor its own bylaws required it to do so, and because it does not own the membership roster, which it claims is owned by Wyndham.
WorldMark's claim that e-mail addresses are not part of its membership register, if accurate, is relevant only to its disclosure requirements under its own bylaws, since section 8330 et seq., do not include the term "membership register." Even if e-mail addresses are not considered part of the membership register under WorldMark's bylaws, this fact would not invalidate WorldMark's obligation to disclose the e-mail addresses as required by statute or under other terms of its bylaws.
Section 7.1(a) of the WorldMark bylaws states that the "Membership register (including mailing addresses and telephone numbers)" must be made available for inspection and copying by any member. However, in addition to the membership register, WorldMark must also make available its articles, bylaws, declaration, rules, books of account, minutes of proceedings, " and all other records of the Program maintained by the Club or its Manager. . . ." (§ 7.1(a), italics added.) This inclusive language is broad enough to encompass the e-mail addresses of its members.
Moreover, as indicated, section 8330 provides for the disclosure of the members' names, addresses, and voting rights. WorldMark argues that this language does not include e-mail addresses because the statute was enacted in 1978, and at the time it was passed the Legislature did not contemplate the inclusion of e-mail addresses. We disagree.
Although section 8330 has not been amended since its enactment, allied sections within the statutes governing nonprofit corporations have been amended since the advent of electronic mail. The ultimate purpose of these amendments is to allow electronic communication for the purpose of communicating with shareholders regarding the corporation's business.
Both parties also point to the Vacation Ownership and Time-share Act of 2004 (Bus. Prof. Code, § 11210 et seq.). WorldMark cites it to show that the language is similar to that of the Corporations Code, and does not specify e-mail addresses. Respondents cite it to show more expansive language which they contend would include e-mail addresses. Neither party contends the time-share act is applicable here.
Thus section 8320 was amended in 2004, as part of legislation providing for the use of electronic communications, to provide that the "record of [the corporation] members . . . their names and addresses and the class of membership held by each . . . [¶] . . . shall be kept either in written form or in any other form capable of being converted into clearly legible tangible form "( Id., subds. (a) (b); Stats. 2004, ch. 254, § 27.) The distinction between a tangible form and one that is not, clearly includes an electronic form that can be made into a tangible form. This reading is supported by the simultaneous enactment of sections 8321 and 8322, which allow certain financial information of the corporation to be distributed annually via "electronic transmission by the corporation (Section 20)." (Stats 2004, ch. 254, §§ 28, 29.)
In the same enactment section 5079, which applies to section 8330 by virtue of section 5002, was amended to provide that the term "[w]ritten" includes "an electronic transmission by a corporation that satisfies the requirements of Section 20." (Stats. 2004, ch. 254, § 13.) Section 20 specifically includes electronic mail within the definition of an electronic transmission.
"`Written' or `in writing' includes facsimile, telegraphic, and other electronic communication as authorized by this code, including an electronic transmission by a corporation that satisfies the requirements of Section 20." (§ 5079.)
Section 20 provides: "`Electronic transmission by the corporation' means a communication (a) delivered by (1) facsimile telecommunication or electronic mail when directed to the facsimile number or electronic mail address, respectively, for that recipient on record with the corporation, (2) posting on an electronic message board or network which the corporation has designated for those communications, together with a separate notice to the recipient of the posting, which transmission shall be validly delivered upon the later of the posting or delivery of the separate notice thereof, or (3) other means of electronic communication, (b) to a recipient who has provided an unrevoked consent to the use of those means of transmission for communications under or pursuant to this code, and (c) that creates a record that is capable of retention, retrieval, and review, and that may thereafter be rendered into clearly legible tangible form. However, an electronic transmission under this code by a corporation to an individual shareholder or member of the corporation who is a natural person, and if an officer or director of the corporation, only if communicated to the recipient in that person's capacity as a shareholder or member, is not authorized unless, in addition to satisfying the requirements of this section, the consent to the transmission has been preceded by or includes a clear written statement to the recipient as to (a) any right of the recipient to have the record provided or made available on paper or in nonelectronic form, (b) whether the consent applies only to that transmission, to specified categories of communications, or to all communications from the corporation, and (c) the procedures the recipient must use to withdraw consent."
WorldMark points to other statutes that specifically reference both addresses and electronic mail addresses, and argues that these indicate the Legislature made a deliberate choice to exclude e-mail addresses from section 8330. For example, Civil Code section 1798.91, subdivision (a)(2) defines individually identifiable information to mean information that "includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the individual's name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual's identity." (Italics added.)
However, the term "address" as used in section 8330 is sufficiently broad to include e-mail addresses. (6) Even before the advent of the Internet and electronic mail, the term "address" was defined as: "[t]he location at which a particular organization or person may be found or reached." (The American Heritage Dict. (New College ed. 1981) p. 15.) An e-mail address fits within this definition because it is a location, albeit an electronic location, at which a person or organization can be reached. Nothing in the statute limits the term "address" to mean only a physical street address. One could not seriously argue that the term excludes post office boxes. An electronic mail address is nothing more than an electronic post office box.
Where, as here, the term used in the statute is susceptible to more than one reasonable interpretation, we may look to the purpose the Legislature sought to achieve and the statutory scheme of which the statute is a part. ( Polster v. Sacramento County Office of Education (2009) 180 Cal.App.4th 649, 663 [ 103 Cal.Rptr.3d 291].) The Legislature could not have intended in 1978 that the term "addresses" specifically would include e-mail addresses, since the concept of widespread and instantaneous communication by electronic mail was the stuff of science fiction in 1978. Nevertheless, as noted, the code, of which section 8330 is a part, was amended in 2004 to provide for electronic communications to and from nonprofit mutual benefit corporations and their members, including specifically e-mail. The purposes implicit in the enactment of the amendments were to provide for the disclosure of records the corporation maintained electronically and to allow the corporation to communicate information to and from its members via electronic mail. (§§ 20, 5079, 8320, 8321, 8322.)
Furthermore, the legislative purpose of the statute indicates the Legislature would have intended the inclusion of e-mail addresses in the original statute had it anticipated the existence of such. The comments based on the legislative committee summary indicate the purpose of the statute was to balance a member's legitimate right to contact the membership for election contests or purposes reasonably related to the member's interest, against the potential for abuse in allowing too free an access. (Coms. Based on Legis. Com. Summary, Deering's Ann. Corp. Code, supra, foll. § 6330, p. 209.)
The addition of e-mail addresses would do nothing to upset the balance that the Legislature sought to achieve. Such balancing was accomplished by the process of allowing the corporation to propose a reasonable alternative. The use of e-mail addresses to achieve this goal does not affect the balance. Thus, the corporation may either give the list of member e-mail addresses to a requesting member for a proper purpose, or propose an alternative in which it sends the requested information to the membership via e-mail, without disclosing the e-mail addresses to the requesting member.
Our holding does not mean that a corporation will be unable to prevent the disclosure of e-mail addresses or physical mailing addresses in the future. Miller originally presented WorldMark with an alternative that would have satisfied the concerns of both sides — the transmission by WorldMark of Miller's petition via e-mail. This would have accomplished a quick and inexpensive dissemination of the material to the WorldMark membership without necessitating the disclosure of membership information. However, WorldMark rejected the request, and that alternative is no longer at issue here. The important point in terms of the individual member's access, is that in this day and age of instantaneous electronic transmission of data, a corporation may not insist on a slower and more expensive form of communication when a member requests a form of electronic communication and the corporation has the capability of complying with the request.
In this case, because of the extremely large membership and the resulting cost of copying and mailing any kind of communication to each member, denial of the right to contact other members by e-mail effectively denies a member the right to contact other members for a proper purpose. Such a result would unfairly upset the balance sought by the enactment of this legislation, and cannot be a result that the Legislature intended.
The application of an expanded definition of the term "address" to section 8330 fulfills the direction that "courts must be sufficiently receptive to the notion of adapting legal principles to address societal changes brought upon by new technologies, [and] where, as here, the issue involves an interpretation of existing statutes, we must maintain our usual deference to the Legislature in such matters and ask ourselves first how that body would have handled the problem if it had anticipated it. [Citation.]" ( People v. Butler (1996) 43 Cal.App.4th 1224, 1229 [ 51 Cal.Rptr.2d 150].) "This is a particularly apt formulation of the standard in cases of emerging technology lest our laws be interpreted only in light of yesterday's accomplishments." ( Id. at p. 1235.)
We are not persuaded differently by the cases cited by Wyndham, Citizens for Civic Accountability v. Town of Danville (2008) 167 Cal.App.4th 1158 [ 84 Cal.Rptr.3d 684] ( Citizens) and InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129 [ 88 Cal.Rptr.3d 808] ( InSyst). InSyst held that delivery of instructions to obtain an electronic copy of a judgment did not amount to service of a file-stamped copy of the judgment for purposes of triggering the time in which to appeal. ( Id. at p. 1140.) However, the court indicated that a superior court clerk could electronically serve a triggering document if electronic service had been authorized. ( Id. at p. 1139.) The court's decision turned on whether an e-mail explaining where to obtain a document was the same as actually transmitting the document. The decision is not helpful to our analysis.
Citizens, supra, 167 Cal.App.4th 1158, also involved whether an e-mail from the superior court clerk directing the parties to a Web site where they could find an electronic copy of the judgment was the equivalent of service of a file-stamped copy of the judgment. ( Id. at p. 1160.) Citizens held that the time for appeal was triggered only by the mailing of the judgment via the United States Postal Service. ( Ibid.) However, the court recognized that the term "mail" was reasonably susceptible of multiple meanings, and resolved the ambiguity by applying the principle that ambiguities should be resolved in favor of preserving the right to appeal. ( Id. at p. 1163.) That principle is not at play in this case.
We reject WorldMark's claim that it does not "own" the e-mail addresses of its members, but that such addresses are "owned" by Wyndham. WorldMark's bylaws provide that a member may inspect and copy all records of the vacation owner program, whether maintained by the corporation or by its manager (Wyndham). Moreover, Miller presented evidence that WorldMark's online reservation system operated via the e-mail addresses of the participating members, and that its online proxy/ballot voting system also utilizes the members' e-mail addresses. WorldMark may not thwart a member's legitimate attempt to communicate via e-mail by claiming that it does not "own" the addresses of its own members.
The bylaws provide that a member's access to such documents must be "for a purpose reasonably related to his interests as a Member." Thus, Wyndham's alarm that any member would be able to access the Social Security numbers or consumer credit histories of other members is unfounded.
III Miller's Demand Satisfied Section 8330
We reject WorldMark's argument that Miller's request did not comply with section 8330, subdivision (b)(2). Subdivision (b)(2) states that the right of inspection and copying may be exercised by: "The authorized number of members for a purpose reasonably related to the members' interest as members." The "authorized number of members" is defined in section 5036, which also provides that any right that may be exercised by the authorized number may be exercised "by a member with written authorizations obtained within any 11-month period from members who, in the aggregate, hold the equivalent voting power. Any such authorization shall specify the right to be exercised thereunder and the duration thereof (which shall not exceed three years)." ( Id., subd. (d).) WorldMark claims Miller's authorizations were inadequate because they did not specify the duration of the authorization.
However, section 8330 provides that the rights of inspection and copying may be exercised either by a single member or by the authorized number of members. Thus, it was not necessary for Miller to obtain authorizations from any other members in order to exercise his right of inspection and copying.
IV Scope of 8330 Request
WorldMark argues the trial court should not have allowed the Wixons to intervene, or considered WorldMark's bylaws in determining the scope of disclosure in a section 8330 proceeding. We disagree.
We will not reverse the order either because the trial court allowed the Wixons to intervene or because the trial court considered the bylaws when making its determination. The intervention of the Wixons has no bearing on our determination, and our conclusion that the e-mail addresses must be disclosed is based upon statute, not upon WorldMark's bylaws.
Finally, WorldMark rejected respondents' postjudgment request for the disclosure of its membership register in electronic form because the trial court order did not require disclosure in electronic form. Our review of the relevant statutory framework indicates that if the records are maintained in electronic form, a member may request that such records be turned over in electronic form. Section 8310 provides that if a record subject to inspection and copying under the statute is not maintained in written form, the corporation must make the record available in written form. That section provides that the terms "written" and "in writing" also include "cathode ray tube and similar electronic communications methods." Section 5079, which has been amended since section 8310 was last amended in 1982, further provides that the terms "[w]ritten" and "in writing" include "facsimile, telegraphic, and other electronic communication as authorized by this code. . . ."
The first sentence of section 8310 provides: "If any record subject to inspection pursuant to this chapter is not maintained in written form, a request for inspection is not complied with unless and until the corporation at its expense makes such record available in written form." Substituting the word "electronic" for the word "written," as both sections 8310 and 5079 indicate we must, we conclude that if a record is maintained in electronic form, the corporation must make the record available in electronic form or written form, at the member's request.
We shall therefore modify the trial court's order to provide for the disclosure of the information in electronic form or written form at the option of respondents. Respondents need not make any further request for information.
DISPOSITION
The trial court's order is modified to provide that the information Miller seeks, including e-mail addresses, shall be made available to him in electronic form at his option and that no further written demand is necessary. If any member's address is not in electronic form WorldMark shall provide a written copy of such address to Miller. Consistent with the trial court's order, Miller or his duly appointed representative must acknowledge in writing his agreement not to use or allow use of the membership information for commercial or other purposes not reasonably related to the affairs of the club. In all other respects the judgment (order) is affirmed. The stay is vacated upon finality of the judgment. Costs are awarded to Robin Miller and interveners.
Robie, J., and Cantil-Sakauye, J., concurred.
Petitions for a rehearing were denied September 13, 2010, and on August 25, 2010, the opinion was modified to read as printed above. The petitions of all appellants for review by the Supreme Court were denied December 1, 2010, S186940.