eDiscovery Assistant

Littlefield v. NutriBullet, LLC

2017 WL 10439791 (C.D. Cal. 2017)

November 3, 2017

Segal, Suzanne H., United States Magistrate Judge

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Summary

The court granted the Motion to Compel and ordered the defendant to produce all relevant ESI, including emails, user guides, and other documents. The court also awarded the plaintiffs $10,000 in attorney's fees and costs and granted in part the plaintiffs' Ex Parte Application for sanctions related to the defendant's failure to appear for its 30(b)(6) deposition.

Additional Decisions

WENDY LITTLEFIELD, et al., Plaintiffs,
v.
NUTRIBULLET, L.L.C., Defendant

Case No. CV 16-6894 MWF (SSx)

United States District Court, C.D. California

Filed November 03, 2017

Counsel

Boris Treyzon, Aaron Lavine, Derek S. Chaiken, Douglas A. Rochen, Abir Cohen Treyzon Salo LLP, Los Angeles, CA, Yolanda M. Medina, Abir Cohen Treyzon Salo LLP, Santa Ana, CA, for Plaintiffs.
Aaron Lavine, Boris Treyzon, Abir Cohen Treyzon Salo LLP, Bradley P. Childers, Leslie Anne Burnet, Alana C. Martinez, Acker and Whipple APC, R. Bryan Martin, Walter M. Yoka, Yoka and Smith LLP, Sidney K. Kanazawa, McGuireWoods LLP, Kenneth Reed Chiate, Quinn Emanuel Urquhart Oliver and Hedges, Los Angeles, CA, for Defendant.

Segal, Suzanne H., United States Magistrate Judge

MEMORANDUM DECISION AND ORDER: (1) GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND ORDERING FURTHER RESPONSES; (2) GRANTING IN PART PLAINTIFFS’ REQUEST FOR MONETARY SANCTIONS; (3) GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ EX PARTE APPLICATION FOR SANCTIONS UNDER RULE 37 FOR DEFENDANT’S FAILURE TO APPEAR AT 30(b)(6) DEPOSITION AND TO PRODUCE DOCUMENTS; AND (4) DENYING DEFENDANT’S EX PARTE APPLICATION FOR LEAVE TO FILE UNTIMELY OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL (Dkt. Nos. 58, 62, 64)

INTRODUCTION

*1 On October 6, 2017, Plaintiffs Wendy Littlefield and Darryl Littlefield (collectively, “Plaintiffs”) filed a Motion to Compel Further Production of Documents from Defendant NutriBullet, L.L.C. (“Defendant”) and for monetary sanctions in the amount of $16,200. (“MTC,” Dkt. No. 58). In support of the MTC, Plaintiffs filed the declaration of Derek S. Chaiken and accompanying exhibits. (“Chaiken MTC Decl.,” Dkt. No. 58-1). Because Defendant did not file an Opposition by the October 17 deadline, on October 18, 2017, Plaintiffs filed a Notice of Non-Opposition, which noted Defendant’s failure to oppose the MTC and requested that Defendant be precluded from offering oral argument at the hearing. (“Notice,” Dkt. No. 61 at 2). On October 20, 2017, Defendant filed an Ex Parte Application for Leave to File an Opposition to the MTC on the ground of excusable neglect, (“Leave Application” or “Leave Appl.,” Dkt. No. 64), supported by the declarations of Ian A. Stewart, (“Stewart Leave Appl. Decl.,” Dkt. No. 64-1), and Jason M. Yang. (“Yang Leave Appl. Decl.,” Dkt. No. 64-2). On October 23, 2017, Plaintiffs filed an Opposition to Defendant’s Leave Application, (“Leave Opp.,” Dkt. No. 65), including the declaration of Aaron Lavine. (“Lavine Leave Opp. Decl.,” Dkt. No. 66).

On October 19, 2017, Plaintiffs filed an Ex Parte Application for evidentiary sanctions against Defendant for failure to produce a 30(b)(6) witness for a noticed deposition on October 11, 2017, and for Defendant’s failure to produce documents requested in the deposition notice. (“30(b)(6) Sanctions Appl.,” Dkt. No. 62). Plaintiffs filed another declaration of Derek S. Chaiken in support of the Application. (“Chaiken 30(b)(6) Sanctions Decl.,” Dkt. No. 62-1). On October 20, 2017, Defendant filed an Opposition to the Application, (“30(b)(6) Sanctions Opp.,” Dkt. No. 63), including another declaration by Ian A. Stewart. (“Stewart 30(b)(6) Sanctions Decl.,” Dkt. No. 63-1).

Although Plaintiffs set the hearing on the MTC for October 31, 2017, out of concern for the fast-approaching discovery cut-off date of November 15, 2017, the Court requested that the Parties participate in a telephonic hearing on October 27, 2017, which was held on that date. For the reasons stated on the record and discussed below, the Court GRANTS Plaintiffs’ Motion to Compel, GRANTS IN PART Plaintiffs’ Request for Monetary Sanctions, GRANTS IN PART and DENIES IN PART Plaintiffs’ 30(b)(6) Sanctions Application, and DENIES Defendant’s Leave Application.

II.

FACTUAL BACKGROUND

In the operative Third Amended Complaint (“TAC,” Dkt. No. 42), Plaintiffs allege that on January 21, 2016, Wendy Littlefield attempted to use Defendant’s product, a household blender called the NutriBullet 900, when “suddenly it malfunctioned, causing severe injuries” to her right hand. (Id. ¶¶ 9-10). The TAC asserts claims for negligence, strict product liability, and breach of implied warranty of merchantability as to Plaintiff Wendy Littlefield, and loss of consortium as to Plaintiff Darryl Littlefield. (Id. ¶¶ 17-48).

*2 Plaintiffs initiated this action on September 14, 2016. Pursuant to the Court’s Amended Scheduling Order, the discovery cut-off is November 15, 2017. (Dkt. No. 55 at 1).

A. The Requests For Production

On June 21, 2017, Plaintiff Wendy Littlefield propounded her first set of Requests for Production Documents (“RFP”) to Defendant. (Chaiken MTC Decl. ¶ 9). On July 28, 2017, the same day that the Court approved the Parties’ stipulated protective order, (see Dkt. No. 53), Defendant served its responses to Plaintiffs’ RFPs. (Chaiken MTC Decl. ¶ 11). On July 31, 2017, Defendant amended its responses and served its initial production of documents, consisting of ten pages of product warnings on NutriBullet packaging, 1100 pages of manuals and user guides, ten pages of advertisements, two pages of warranty information, and one insurance policy. (Id. ¶ 12.)

Because Plaintiffs deemed this production insufficient, on August 2, 2017, Plaintiffs contacted Defendant requesting that Defendant amend its responses and provide further responsive documents. (Id. ¶ 13). On August 3, 2017, the Parties held a telephonic conference in which Defendant’s counsel stated that Defendant needed additional time to produce the requested documents. (Id. ¶ 14). On August 11, 2017, Defendant produced approximately four hundred additional pages of documents, consisting primarily of a user guide, recipe books and meal plans, and various unsorted emails, with redactions, concerning changes to warnings adopted by Defendant, its parent company (Capital Brands, LLC), and affiliated subsidiaries (Homeland Housewares, LLC). (Id. ¶ 15).

On August 16, 2017, the Parties held another conference call to discuss Defendant’s document production. (Id. ¶ 16). Although Plaintiffs had requested all testing documents as part of their RFPs, Defendant required that Plaintiffs request specific tests from a list Defendant provided. (Id.). On August 21 2017, Plaintiffs identified fourteen tests. (Id. ¶ 17).

On August 23 and 24, 2017, Plaintiffs requested an update on the status of document production and advised Defendant that it must provide a verification along with the supplemental production. (Id. ¶¶ 18-19). On August 25, 2017, Defendant provided a verification for its written responses, but did not produce additional documents. (Id. ¶ 20). That same day, Plaintiffs once again inquired about the status of the production of testing documents, but Defendant did not reply to counsel’s email. (Id. ¶ 21). Defendant similarly ignored emails sent on August 29 and 30, 2017 requesting a status update. (Id. ¶¶ 22-23).

In a telephonic conference on August 31, 2017, Defendant’s counsel stated that Defendant had design and testing documents, but that they were all in Chinese or another foreign language. Plaintiffs requested production of these documents. Defendant’s counsel further stated that he believed that documents related to customer complaints and Defendant’s customer service had been produced. However, Plaintiffs’ counsel informed him that these documents had not been produced and that Plaintiffs would move to compel their production if they were not received by September 5, 2017. (Id.¶ 24). On September 5, Plaintiffs’ counsel left a telephone message for Defendant’s counsel stating that no documents had been received and that Plaintiffs would file a motion to compel. (Id. ¶ 25).

*3 Pursuant to Local Rule 37-1, Plaintiffs’ counsel emailed Defendant’s counsel on September 6, 2017 requesting an in-person conference of counsel. (Id. ¶ 26). The email attached Plaintiffs’ portion of a proposed Joint Stipulation for the MTC.[1] (Id.). On September 11, 2017, counsel met at Defendant’s counsel’s office for approximately 2.5 hours. (Id. ¶ 27). During the meeting, the Parties agreed that Plaintiff would memorialize in writing the categories of documents that Defendant stated it would produce. (Id.). Plaintiffs’ counsel forwarded the list to Defendant on September 12, 2017. (Id. ¶ 28).

In light of Defendant’s silence, Plaintiffs’ counsel sent Defendant a status request on September 14, 2017. (Id. ¶ 29). On September 17, 2017, still not having heard from Defendant, Plaintiffs’ counsel requested that Defendant complete its portion of the proposed Joint Stipulation by September 24, 2017. (Id. ¶ 30).

On September 18, 2017, Defendant’s counsel responded to Plaintiffs’ email and promised to produce some documents by September 22, 2017. (Id. ¶ 31). On September 22, 2017, Defendant’s counsel asked for more time to bates stamp the documents. (Id. ¶ 33). On September 25, 2017, Defendant’s counsel emailed 109 pages of documents to Plaintiffs, which consisted solely of a transcript dated August 10, 2017 concerning a complaint to Defendant about a laceration injury caused by a NutriBullet product and certain documents prepared by UL, LLC, a third party, which included the same testing certification provided by Defendant in its initial disclosures. (Id. ¶ 34). Later on September 25, 2017, Plaintiffs emailed Defendant stating that the production was inadequate and requesting supplementation. (Id. ¶ 35).

Except for a production of approximately ten or eleven “heavily redacted pages,” which Plaintiffs’ counsel informed the Court at the hearing had been produced by Defendant after the MTC was filed, Defendant has produced no further documents. (Id. ¶ 36; see also Transcript, October 27, 2017, at 5). Because Defendant never completed its portion of the Joint Stipulation, Plaintiffs filed the MTC as a regularly noticed motion on October 6, 2017.

B. The 30(b)(6) Deposition

While Plaintiffs were endeavoring to obtain documents from Defendant, on September 5, 2017, Plaintiffs served a 30(b)(6) deposition notice and request for production of documents on Defendant, setting the deposition and production for October 11, 2017. (Chaiken 30(b)(6) Sanctions Decl. ¶ 3). The Notice listed thirty-four topics and included thirty-six document requests. (Id.).

Defendant did not serve objections to the Notice of Deposition nor did Defendant seek a protective order to stop the deposition. Nevertheless, late in the morning on October 10, 2017, the day before the deposition was to take place, Defendant’s counsel sent Plaintiffs an email cancelling the deposition due to unidentified “emergency conflicts.” (Id. ¶ 4). On October 11, 2017, Plaintiffs obtained a Certificate of Nonappearance and certification of Defendant’s failure to produce the documents requested in the Notice of deposition. (Id. ¶ 5).

*4 On October 12, 2017, Plaintiffs informed Defendant in writing of their intention to seek issue and evidentiary sanctions based on the untimely cancellation of the deposition. (Id. ¶ 6). According to Plaintiffs, Defendant has never responded to their October 12 letter. (Id.). Plaintiffs’ Ex Parte30(b)(6) Sanctions Application followed on October 19, 2017.

III.

SCOPE OF PERMISSIBLE DISCOVERY

Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:

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 “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. “Proportionality focuses on the marginal utility of the discovery sought.” In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D. N.Y. 2016) (internal quotation marks and citation omitted).

The revisions to Rule 26 make clear that the right to discovery, even plainly relevant discovery, is not limitless. As one court explained,

The 2015 amendments to Rule 26(b)(1) emphasize the need to impose “reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” The fundamental principle of amended Rule 26(b)(1) is “that lawyers must size and shape their discovery requests to the requisites of a case.” The pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. This requires active involvement of federal judges to make decisions regarding the scope of discovery.

Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. Jan. 11, 2016)(quoting John Roberts, 2015 Year-End Report on the Federal Judiciary 6 (Dec. 31, 2015) (internal citations omitted)); see also Fed. R. Civ. P. 26advisory committee notes (2015 amendments) (“The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.”); Salazar v.McDonald’s Corp., 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016) (“[T]he revised rule places a shared responsibility on all the parties to consider the factors bearing on proportionality before propounding discovery requests, issuing responses and objections, or raising discovery disputes before the courts.”).

IV.

DISCUSSION

A. Plaintiffs’ Motion To Compel Further Production Of Documents

1. Standard

Pursuant to Federal Rule of Civil Procedure 34(a), a party may request documents “in the responding party’s possession, custody, or control.” “The phrase ‘possession, custody or control’ is in the disjunctive and only one of the numerated requirements need be met.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). “Control is defined as the legal right to obtain documents on demand.” United States v. Int’l Union of Petroleum &Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).

*5 Rule 34(b) requires the requesting party to describe the items to be produced with “reasonable particularity.” Fed. R. Civ. P. 34(b)(1). “The test for reasonable particularity is whether the request places a party upon reasonable notice of what is called for and what is not.” Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (internal quotation marks omitted); see also Regan-Touhy v. Walgreen Co., 526 F.3d 641, 649-50 (10th Cir. 2008) (“Though what qualifies as ‘reasonabl[y] particular’ surely depends at least in part on the circumstances of each case, a discovery request should be sufficiently definite and limited in scope that it can be said ‘to apprise a person of ordinary intelligence what documents are required and [to enable] the court ... to ascertain whether the requested documents have been produced.’ ”) (quoting Wright & Miller, 8A Federal Practice and Procedure § 2211, at 415).

Following a reasonable investigation to locate responsive materials, a responding party must serve a written response to each request either stating that it will produce copies of the documents requested or identifying the grounds for any objection. The December 1, 2015 revisions to the Federal Rules amended Rule 34 to require that objections to requests for production be stated with specificity, and that the responding party affirmatively state whether any documents are being withheld pursuant to an objection. The 2015 Advisory Committee Notes to Rule 34 explain:

Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language from Rule 33(b)(4) [pertaining to interrogatories], eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection ... [¶] Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34request must state whether anything is being withheld on the basis of the objection. ... [T]he producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection.

Fed. R. Civ. P. 34, Advisory Committee Notes (2015 Amendment).

In a typical case in which confidential information must be produced, a protective order is in place before substantive discovery responses are served. See Amgen, Inc. v. Elanex Pharms., Inc., 160 F.R.D. 134, 137 (W.D. Wash. 1994) (“[B]efore discovery can begin in earnest[,] a protective order must be instituted because much of the information that [plaintiff] seeks is confidential research and proprietary commercial information.”). The Court entered a protective order in this case on July 28, 2017.

2. Defendant Must Supplement Its Document Production And Written Responses

Defendant failed to provide its portion of the Joint Stipulation and subsequently failed to timely file an Opposition to the MTC. The only explanation offered for these violations of the Rules is that the firm representing Defendant was experiencing staffing changes. (Stewart Leave Decl. ¶¶ 2-6). The Court finds that the proffered justification for failing to participate in the Joint Stipulation process and failing to file a timely Opposition to the Motion fails to satisfy the substantial justification standard under Rule 37 and does not constitute “excusable neglect.” Mere difficulties in staffing are insufficient grounds for a complete failure over several weeks to return Defendant’s portion of the Joint Stipulation or even to file a timely response to the MTC after failing to comply with the Court’s Local Rules governing Joint Stipulations.[2] Accordingly, Defendant’s Ex ParteApplication for leave to file an untimely opposition to the MTC is DENIED.[3]

*6 However, even if Defendant had filed a timely Opposition, the Court would still grant the MTC on the merits, certainly as to the majority of the requested documents. The Court finds that the request to compel the following items is justified, as Defendant has failed to show either why production would be burdensome or why the request does not seek relevant information. The type of information sought is proportionate to the needs of the case, and indeed is routinely requested in product liability cases. The Court ORDERS that Defendant provide supplemental written responses (withdrawing the general objections and the improper objections to the individual requests) and produce supplemental documents within five days of the date of this Order, to the extent responsive documents exist in its possession, custody, or control. If Defendant has already served supplemental responses, Defendant is nevertheless required to re-do those responses within five days of this order if the supplemental responses do not comply with what the Court has ordered. If documents responsive to the RFPs have already been produced since the date of the hearing, Defendant shall clearly state this fact in its revised written responses, and shall identify the bates stamp numbers for the produced documents. To the extent that Defendant determines, after a reasonable search, that no responsive documents exist, it shall affirmatively state this fact in its revised written responses.

Defendant is ORDERED to produce all responsive documents, within their possession, custody or control:

a. All communications with all consumers who reported a malfunction, including explosion, of their NurtriBullet blender, suffered laceration-type injuries from use of Defendant’s products and all documents related to those reports, including documents related to Defendant’s actions stemming from those reports, including Defendant’s customer service manuals, intake forms, investigation forms for said reports and their preservation from 2013 forward, (RFP Nos. 1, 2, 4, 5, 7, 8, 15, 16, 17, 19);

b. All documents related to any studies, testing or risk assessment experiments for NutriBullet blenders (RFP No. 10);

c. All documents regarding the design of the product, including all changes to the design and implementation thereof (RFP No. 12);

d. All documents related to the changes made to the user guides including all proposed changes and documents relating thereto (RFP No. 18);

e. All complaints, correspondence, claims or notice of litigation regarding the product (RFP No. 26); and

f. All insurance policies related to the product (RFP No. 28).

If documents are withheld, Defendant must state the basis for the withholding or failure to produce, sufficient for the parties to hold a meaningful discussion about the withheld or non-produced documents.

B. Request For Monetary Sanctions

Plaintiffs seek an award of $16,200 for the attorney’s fees and costs they incurred in bringing the MTC. (MTC at 12). Rule 37 provides specific direction regarding sanctions if a discovery motion is granted:

If the [discovery motion] is granted -- or if the disclosure or requested discovery is provided after the motion was filed -- the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising the conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.

Fed. R. Civ. P. 37(a)(5)(A). However, if the non-prevailing party can demonstrate “substantial justification” for its motion, nondisclosure, or opposition, Rule 37 provides that the court may deny sanctions. Fed. R. Civ. P. 37(a)(5)(A)(ii).

Because Defendant’s refusal to cooperate in the Joint Stipulation process and failure to file a timely Opposition are without substantial justification, sanctions are warranted here. Defendant had the opportunity to explain to the Court why sanctions are inappropriate, both in a written opposition and at the hearing, but failed to present any meritorious argument against sanctions.

While the Court finds that Defendant’s failure to file its portion of the Joint Stipulation, failure to file a timely opposition, failure to produce responsive documents and failure to generally monitor this case falls below the standards to which the Court expects all parties to adhere and undoubtedly contributed to the amount of time Plaintiffs were required to spend on negotiations leading up to the MTC, the requested amount is excessive. The Court therefore exercises its discretion to award Plaintiffs only part of the fees and costs they claim to have incurred in litigating what should have been a routine and unremarkable discovery matter, as it appears that some of the Plaintiffs’ efforts were duplicative. Accordingly, the Court ORDERS that the requested sanctions of $16,200 be reduced and AWARDS Plaintiffs $10,000 in attorney’s fees and costs. Defendant is cautioned that the failure to strictly follow this Court’s Local Rules in any future discovery dispute may result in the imposition of greater sanctions.

C. Plaintiffs’ Ex Parte Application For Sanctions Related To Defendant’s Failure To Appear For Its 30(b)(6) Deposition

1. Standards

a. 30(b)(6) Depositions

*7 It is not literally possible to depose a corporation. Instead, information from a corporation must be sought from natural persons who can speak on behalf of the corporation. Hooker v. Norfolk Southern Railway Company, 204 F.R.D. 124, 125 (S.D. Indiana 2001). Federal Rule of Civil Procedure 30(b)(6) therefore provides in relevant part:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify.

Fed. R. Civ. P. 30(b)(6). The purpose of a Rule 30(b)(6) deposition is to provide sworn corporate admissions that are binding on the corporation.[4]For “Rule [30(b)(6) ] to effectively function, the requesting party must take care to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). A corporation must make a good faith effort to prepare a 30(b)(6) witness to “fully and unevasively answer questions about the designated subject matter ....” Apple, Inc. v. Samsung Electronics Co., Ltd., 2012 WL 1511901 at *2 (N.D. Cal. Jan. 27, 2012) (internal quotation marks omitted); see also Alexander v. F.B.I., 486 F.R.D. 137, 143 (D. D.C. 1998) (“Rule 30(b)(6) witnesses must be prepared and knowledgeable, but they need not be subjected to a ‘memory contest.’ ”).

b. Evidentiary Sanctions

*8 Federal Rule of Civil Procedure 37(b)(2)(A) provides that “[i]f a party or a party’s officer, director, or managing agent ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” As the Ninth Circuit has explained,

Rule 37(b) of the Federal Rules of Civil Procedure provides a wide range of sanctions for a party’s failure to comply with court discovery orders. In ascending order of harshness, the district court may: require the delinquent party or his attorney to pay the reasonable expenses, including attorney’s fees, incurred by the innocent party as a result of the failure to obey the order; strike out portions of pleadings; deem certain facts as established for purposes of the action or preclude admission of evidence on designated matters; dismiss all or part of the action; or render a default judgment against the disobedient party. The choice among the various sanctions rests within the discretion of the district court. Fed. R. Civ. P. 37(b)(2).

United States v. Sumitomo Marine & Fire Ins. Co., Ltd., 617 F.2d 1365, 1369 (9th Cir. 1980) (internal case citations omitted). “Rule 37 sanctions must be just and must be specifically related to the particular ‘claim’ that was at issue in the order to provide discovery.” In re Rubin, 769 F.2d 611, 615 (9th Cir. 1985). Sanctions of dismissal or default pursuant to Rule 37are limited to cases where the party’s non-compliance is due to willfulness, fault, or bad faith. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). In reviewing the propriety of lesser sanctions, the Ninth Circuit will “examine whether the trial court considered the relevant factors and whether the severity of the sanction is warranted by the conduct involved.” In re Rubin, 769 F.2d at 616.

More specifically, Rule 37(d) provides that sanctions may be imposed when a person designated under Rule 30(b)(6) “fails, after being served with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(a)(A). Authorized sanctions under Rule 37(d)(3) include, among other actions, all of sanctions authorized under Rule 37(b)(2)(A) described above, including evidentiary sanctions. Fed. R. Civ. P. 37(d)(3).

2. Defendant Must Make Its 30(b)(6) Witnesses Available For Deposition On An Expedited Basis

Defendant’s failure to appear for a noticed 30(b)(6) deposition with the fact discovery deadline fast approaching is grounds to GRANT IN PART Plaintiffs’ Ex Parte Application. Although evidentiary and issue sanctions are not yet warranted (and because the deposition non-appearance is partially explained by Defendant’s counsel’s family emergency), sanctions are DENIED. However, an order for the 30(b)(6) deposition to occur is necessary. The Court ORDERS that the date and time of November 10, 2017 at 9 a.m. at Plaintiffs’ counsel’s office be reserved for the 30(b)(6) deposition previously scheduled for October 11, 2017. The Court ORDERS that Plaintiffs may exercise the option to hold this 30(b)(6) deposition on November 10 if Plaintiffs find it necessary.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion To Compel is GRANTED and the request for monetary sanctions is GRANTED IN PART. Additional documents and supplemental written responses as required by this Order shall be produced within five days of the date of this Order. In its new supplemental responses, Defendant shall strictly comply with the rule by objecting with specificity, if necessary, and identifying if any documents are actually withheld pursuant to the objection. Defendant’s “general objections” are stricken as noncompliant with the current version of Rule 34.

*9 The Court awards Plaintiffs $10,000 in sanctions under Rule 37. Defendant shall make arrangements for payment to Plaintiffs within 14 days of the date of this Order.

Plaintiffs’ Ex Parte 30(b)(6) Sanctions Application is GRANTED IN PART and DENIED IN PART. Plaintiffs may proceed with a 30(b)(6) deposition on November 10, 2017 at 9 a.m. at Plaintiffs’ counsel’s office. However, issue or evidentiary sanctions are not yet warranted on this record.

IT IS SO ORDERED.

[1]

Typically an initiating party will forward its portion of a Joint Stipulation after the conference of counsel. Pursuant to Local Rule 37-2.2, within seven days of receipt of the moving party’s portion of the Joint Stipulation, the opposing party is required to send back its “portion of the stipulation, together will all declarations and exhibits to be offered in support of [Defendant’s] position.” (C.D. Cal. L.R. 37-2.2). Here, however, Defendant never provided Plaintiffs with its portion of the Joint Stipulation. (Chaiken MTC Decl. ¶ 6).

[2]

Indeed, Defendant’s failure to timely Oppose the Motion would be ground enough, on its own, to grant the MTC. (See Local Rule 7-12) (failure to oppose may be deemed consent to the granting of the motion). If Defendant had legitimate concerns about the requested documents, it was obligated to raise those specific concerns in a properly filed Joint Stipulation or timely Opposition to the MTC. Its failure to do so may be construed as a waiver of such objections. See, e.g., Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008) (opposing party waives arguments by not raising them in an opposition); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss under local rule by deeming the failure to oppose as consent to granting the motion); Mack–University LLC v. Halstead, 2007 WL 4458823, at *4 n. 4 (C.D. Cal. Sept. 25, 2007) (where a party “failed to oppose or in any way respond” to a motion, “[p]ursuant to local Rule 7–12, the Court could grant [p]laintiffs’ [m]otion on this ground alone”); Ferrin v. Bias, 2003 WL 25588274, at *1 n. 1 (C.D. Cal. Jan. 2, 2003) (“Under Local Rule 7–12, failure to file an opposition may be deemed consent to the granting of the motion”).

[3]

While the Court denies Defendant’s request to file an untimely written opposition to the MTC, the Court did afford Defendant ample opportunity at the hearing to state its opposition to the MTC. While Defendant attempted to argue that the RFPs were overbroad and that production would be unduly burdensome, it did not seriously challenge Plaintiffs’ right to obtain the information sought by the RFPs to the extent that responsive documents exist and are in Defendant’s possession. (See, e.g., Transcript at 25).

[4]

Courts have taken different positions on the degree to which 30(b)(6) testimony is binding on a corporation. As one court has explained:

Some courts suggest that an agency is [absolutely] bound by the testimony of its Rule 30(b)(6) designee. Other courts hold that “testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes,” and that such testimony does not “bind” the designating entity “in the sense of [a] judicial admission.” A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630, 637 (7th Cir.2001). This treats the testimony as that of any witness, making it subject to correction and/or impeachment. Other courts adopt a middle ground and hold that a party cannot rebut the testimony of its Rule 30(b)(6) witness when, as here, the opposing party has relied on the Rule 30(b)(6) testimony, and there is no adequate explanation for the rebuttal.

Coalition for a Sustainable Delta v. John McCamman, 725 F. Supp. 2d 1162, 1171 (E.D. Cal. 2010) (footnotes omitted; collecting cases). The Ninth Circuit “has yet to decide this issue.” Id.; see also AngioScore, Inc. v. TriReme Medical, Inc., 2015 WL 4040388, at *24 (N.D. Cal. July 1, 2015) (adopting the “middle ground” and holding, “[i]n the absence of specific direction from the Ninth Circuit,” that “defendants cannot rebut the testimony of their Rule 30(b)(6) witness when ... the opposing party has relied on the Rule 30(b)(6) testimony” and there is “no adequate explanation for the rebuttal offered at trial”).