eDiscovery Assistant

Natural-Immunogenics Corp. v. Newport Trial Grp.

2017 WL 10562989 (C.D. Cal. 2017)

June 28, 2017

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Summary

The court granted the motion to compel responses to ESI, including requests for admissions and documents. The court found that NIC had waived any work product objections and must produce all documents responsive to the requests. The court also found that NIC must produce documents regarding other litigation, such as the Deviant.Art.com matter, in response to the requests. The motion to compel responses to Special Interrogatories was denied.

Additional Decisions

NATURAL-IMMUNOGENICS CORP., a Florida corporation, Plaintiff,
v.
NEWPORT TRIAL GROUP, a California corporation; Scott J. Ferrell, a California resident; Ryan M. Ferrell, an Arizona resident; Victoria C. Knowles, a California resident; David Reid, a California Resident; Andrew Lee Baslow, a California resident; Andrew Nilon, a California resident; Sam Pfleg, a California resident; Matthew Dronkers, a California resident; Taylor Demulder, a Nevada resident; Sam Schoonover, a California resident; Giovanni Sandoval, an Arizona resident; and Does 1 through 10, inclusive, Defendants

Case No: 8:15 CV-02034-JVS (JCGx)

United States District Court, C.D. California

Signed June 28, 2017

Counsel

Eric J. Awerbuch, Peter A. Arhangelsky, Joshua S. Furman, Jonathan W. Emord, Pro Hac Vice, Emord and Associates PC, Gilbert, AZ, Leah M. Kaufman, LMK Strategies and Research, Santa Ana, CA, for Plaintiff.
David J. Darnell, Saleem K. Erakat, James M. Sabovich, Edward Susolik, Daniel J. Callahan, Stephanie A. Sperber, Callahan & Blaine APLC, Santa Ana, CA, for Defendants.

Chapman, Rosalyn (Ret.), Special Master

ORDER GRANTING, IN PART, AND DENYING, IN PART, NEWPORT TRIAL GROUP'S MOTION TO COMPEL REQUESTS FOR ADMISSIONS, PRODUCTION OF DOCUMENTS, AND ANSWERS TO SPECIAL INTERROGATORIES; AND DENYING REQUEST FOR FEES

*1 On June 6, 2017, Defendant Newport Trial Group (“NTG”) filed a Joint Stipulation (“Jt. Stip.”) [Dkt. 337] and the supporting declaration of David J. Darnell with exhibits (“Darnell Decl.”). [Dkt. 337-1]. On June 20, 2017, NTG filed a supplemental memorandum (“Supp. Memo.”) [Dkt. 351], and Plaintiff Natural-Immunogenics, Inc. (“NIC”) filed a supplemental memorandum. [Dkt. 352].

On June 22, 2017, the Special Master issued a Tentative Order granting, in part, and denying, in part, the motion to compel written discovery. Oral argument was held telephonically on June 27, 2017, before Hon. Rosalyn Chapman, Special Master. Joshua Furman and Peter A. Arhangelsky, attorneys with the law firm Emord & Associates (“The Emord Firm”), appeared on behalf of Plaintiff NIC; David Darnell and Stephanie Sperber, attorneys with the law firm Callahan & Blaine APLC, appeared on behalf of NTG; and Brendan M. Ford, a partner with the law firm Ford & Diulio PC, appeared on behalf of other individual defendants who served as plaintiffs in litigation brought by NTG (collectively, “non-NTG Defendants”).

Relevant Procedural History.

This action commenced on December 7, 2015, when NIC filed its original complaint against NTG Defendants and non-NTG Defendants. On May 10, 2016, NIC filed its Second Amended Complaint for Damages and Injunctive Relief (“SAC”) against defendants, raising claims for: (1) malicious prosecution, against Defendants NTG, Scott J. Ferrell, Ryan M. Ferrell, David Reid, Victoria C. Knowles, Andrew Lee Baslow, Andrew Nilon and Giovanni Sandoval; (2) violation of Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961, 1962c & 1964, by wire fraud, mail fraud, extortion, obstruction of justice, bribery and witness tampering, against all defendants;[1] (3) conspiracy to violate RICO, 18 U.S.C. §§ 1961, 1962(d) & 1964(c), against all defendants; and (4) unfair competition in violation of California Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq., against all defendants.[2] [Dkt. 92]. Plaintiff NIC seeks compensatory damages, exemplary or punitive damages under California Civil Code section 3294, treble damages under RICO, injunctive relief, an accounting, attorney fees and costs, and other relief. Id.

District Judge Selna describes the gravamen of NIC's claims in the SAC as identifying two litigation schemes employed by defendants: a false advertising scheme and a wiretapping scheme. [Dkt. 157]. He notes that the SAC identifies four lawsuits filed in connection with the false advertising scheme: (1) Andrew Nilon v. Natural-Immunogenics Corp., 12 CV-0930-LAB-BGSx (S.D. Cal. 2012 (removed from San Diego County Superior Court)(“Nilon”); (2) Sam Pfleg v. Nature's Way Products, Inc., 12 CV 01018-LAB-BLM (S.D. Cal. 2012 (removed from San Diego County Superior Court) (“Nature's Way”); (3) Matthew Dronkers v. Kiss My Face LLC, 12 CV 01151-JAH (S.D. Cal. 2012) (“Kiss My Face”); and (4) Morales, et al. v. Magna Inc., 10 CV 1601-EDL (N.D. Cal. 2010) (“Bobba”). And he further notes that the SAC identifies four lawsuits filed in connection with the wiretapping scheme: (1) Andrew Nilon v. ChromaDex Inc., No. 56-2013-00436790-CU (Ventura County Superior Court) (“ChromaDex”); (2) Taylor Demulder v. Carter-Reed Co., 12 CV 0333-BTM-MDD (S.D. Cal. 2012) (“Carter-Reed”); (3) Sam Schoonover v. Himalaya Drug. Co., 12 CV 1782-JLS-RBB (S.D. Cal. 2012)(“Himalaya Drug”); and (4) Raquel Torres v. Nutrisystem Inc., 12 CV 1854-CJC-JPR (C.D. Cal. 2012 (removed from Orange County Superior Court) (“Nutrisystem”). Id.

*2 As to Nilon and the false advertising scheme, Judge Selna states:

In March 2012, [NTG] and its attorneys Scott Ferrell, Ryan Ferrell, Knowles and Reid filed a consumer class action lawsuit against [NIC] for making false and misleading statements in connection with its [dietary supplement and homeopathic] Sovereign Silver product. Nilon served as lead plaintiff and class representative. [NIC] alleges that the lawsuit was fraudulent: [NTG] bribed Nilon to both (1) serve as the lead plaintiff and class representative and (2) fraudulently allege that he purchased [NIC]'s products and relied on [NIC]'s false and misleading statements when purchasing the product. [NIC] further alleges that this action was part of [NTG]'s broader scheme to bring fraudulent consumer class action lawsuits against corporate defendants for the improper purpose of extracting out-of-court settlements from these defendants.

[Dkt. 157]. Plaintiff NIC represents that its claim for compensatory damages is “limited to the recovery of attorney fees and costs it spent in defending Nilon....” [Dkt. 237]. In its Amended Initial Disclosures, NIC further represents that the total attorney fees and costs spent defending Nilon was $246,552.52. [Dkt. 258-1 at 39-40].

II.

The Discovery Disputes.

On March 21, 2017, NTG served on NIC: (a) Requests for Admissions (“RA”), Set 1; Requests for Production of Documents (“RPD”) (Set 2); and Special Interrogatories (“SI”) (Set One); NIC served objections and responses on April 17, 2017. Darnell Decl. ¶¶ 1-2. On May 10, 2017, after meeting and conferring with NTG, NIC served NTG with Revised Responses to the RA. Id. ¶¶ 3-6.

NTG seeks to compel responses to 54 separate discovery requests, specifically RA Nos. 7 and 9-11, RPD Nos. 29-62, 65-68, 77, 79, 88 and 99-101, and SI Nos. 1-6. Jt. Stip. at 1:1-5. As to all of these discovery requests, NTG complains that NIC's objections are baseless and the responses are inadequate. Id. at 1:11-15. NTG seeks to compel proper responses from NIC and attorney fees for bringing the motion to compel. Id. at 14:15.

NIC argues, on the other hand, that NTG overwhelmed it with discovery on March 16, 2017, serving 495 document requests, two sets of requests for admission, and two sets of interrogatories. Jt. Stip. at 1:16-2:3. With a short time to respond, the fact that there are so few discovery requests in dispute shows NIC's good faith responses. Id. at 2:4-10. Moreover, most of the information NTG seeks has been produced through redundant discovery responses; NIC has logged 928 documents that are designated privileged and many of those documents are responsive to NTG's requests.[3] Id. at 2:12, 26-28. The requests for admission appear directed at NIC's counsel as part of a campaign to disqualify them, and are a fishing expedition. Id. at 3:16-24. Finally, NIC objects to NTG's motion combining different types of discovery. Id. at 4:2-10.

III.

DISCUSSION

*3 The scope of discovery in the federal courts is governed by Rule 26(b)(1), which allows “discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” considering six key factors. Fed.R.Civ.P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

Generally, the purpose of discovery is to “make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” United States v. Procter & Gamble, 358 U.S. 677, 682 (1958). In other words, discovery is to “remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Moon v. SCP Pool Corp., 232 F.R.D. 633, 635-36 (C.D. Cal. 2005); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). “The discovery process is subject to the overriding limitation of good faith. Callous disregard of discovery responsibilities cannot be condoned.” Asea, Inc. v. Southern Pac. Trans. Co., 669 F.2d 1242, 1246 (9th Cir. 1982).

For this reason, “[t]he party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Duran v. Cisco Systems, Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D. 573, 575 (C.D. Cal. 2005).). In light of these principles, general or boilerplate objections are improper. Jane Doe v. Archdiocese of Portland in Oregon, 717 F. Supp.2d 1120, 1126 (D. Or. 2010); Duran, 258 F.R.D. at 379.

IV.

Requests for Admissions

Rule 36 provides:

A party may serve upon any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.

Fed.R.Civ.P. 36(a)(1). The Advisory Committee Notes to the 1970 Amendment to Rule 36 explain the purposes of the rule: “Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first, to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be.” As the Ninth Circuit has stated: “The purpose of Rule 36(a) is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial.” Asea, Inc., 669 F.2d at 1245; In re Heritage Bond Litig., 220 F.R.D. 624, 626 (C.D. Cal. 2004).

For a party to answer a request for admissions:

[i]f a matter is not admitted, the party must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial shall fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest....

Fed.R.Civ.P. 36(a)(4). And for a party to object to a request for admissions, “[t]he grounds for objecting to a request must be stated.” Fed.R.Civ.P. 36(a)(5).

“The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served.” Fed.R.Civ.P. 36(a)(6); Asea, 669 F.2d at 1247. NTG seeks to compel NIC: to provide a proper response to RA No. 7 or for the Court to order that the request be deemed admitted; and to respond to RA Nos. 9-11. As to RA No.7, NTG complains that NIC's response is deficient in that it does not state clearly what NIC is admitting; NIC disagrees. As to RA Nos. 9-11, NTG complains that NIC's objections are not well-taken; whereas, NIC contends that its objections of work product, relevancy, and vague and ambiguous have merit.

*4 Request No. 7 asks NIC to: “Admit that EMORD knew in August 2015 that Clark Baker had communicated with Andrew Nilon using a false identity.” Jt. Stip. at 5-8. In its Revised Response, NIC made numerous objections and then stated:

Admitted in part, Denied in part: NIC denies that EMORD knew Baker had communicated with Andrew Nilon using an alias until after August 25, 2015. EMORD was not aware that Baker ... had used an alias when communicating with Nilon earlier in August 2015.

Id. NIC then proceeded to make other statements, which are irrelevant and improper under Rule 34. The Special Master grants NTG's motion to compel an admission to RA No. 7; strikes the irrelevant and improper statements in response to RA No. 7; and deems NIC's partial admission to RA No. 7 to be: “NIC admits that EMORD knew on August 25, 2015, that Baker had communicated with Andrew Nilon using a false identity.”

RA Nos. 9-11 generally seek admissions related to NIC's Sovereign Silver Product. RA No. 9 asks NIC to admit that it “will not argue at the trial in this action that NIC's Sovereign Silver Product provides immune support.” RA No. 10 asks NIC to admit that “there was no probable cause to allege in Nilon v. NIC that NIC's Sovereign Silver Product does not provide immune support.” And RA No. 11 asks NIC to admit that “the allegation in Nilon v. NIC that NIC's Sovereign Silver Product does not provide immune support was untruthful.”

The Special Master, having reviewed the requests for admissions and considered the parties' arguments, sustains NIC's work product objection to RA No. 9 and overrules NIC's objections to RA Nos. 10 and11. Thus, NTG's motion to compel is denied as to RA No. 9 and is granted as to RA Nos. 10 and 11.

Requests for the Production of Documents

Rule 34 allows a party to seek documents or electronically stored information within the scope of Rule 26(b). Fed.R.Civ.P. 34(a)(1). “Each request “must describe with reasonable particularity each item or category of items to be inspected....” Fed.R.Civ.P. 34(b)(1)(A). A party, in responding “[f]or each item or category, ... must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons....” Fed.R.Civ.P. 34(b)(2)(B).

Under Rule 34, “[a]n objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad.” Adv. Comm. Notes to 2015 Amendment. Further, “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed.R.Civ.P. 34(b)(2)(C). This means that “an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection.” Adv. Comm. Notes to 2015 Amendment.

NTG sees to compel NIC to produce documents responsive to RPD Nos. 29-62, 65-68, 77, 79, 88 and 99-101. NTG groups the requests for documents into six categories relating to: (1) NIC's Sovereign Silver Product (RPD Nos. 99-101) (like RA Nos. 9-11); (2) communications with Baker (RPD Nos. 29-58); (3) communications with third parties regarding the pending lawsuit (RPD Nos. 59-62); (4) communications with Scott Vick (RPD Nos. 65-66); (5) communications with third parties identified in NIC's Rule 26 Initial Disclosures (RPD Nos. 67-68); and (6) NIC's claims involving Sandoval's purchase of Sovereign Silver (RPD Nos. 77, 79 and 88).

(1) RPD Nos. 99-101:

*5 RPD No. 99 seeks documents supporting NIC's “contention that NIC's Sovereign Silver Product provides immune support.” RPD No. 100 seeks documents supporting NIC's “contention that there was no probable cause to allege in Nilon v. NIC that NIC's Sovereign Silver Product does not provide immune support.” And RPD No. 101 seeks documents supporting NIC's “contention that the allegation in Nilon v. NIC that NIC's Sovereign Silver Product does not provide immune support was false.”

In response to these three document requests, NIC made General Objections, which the parties have not provided, and also objected on the grounds of relevancy, proportionality, and that the requests are vague and ambiguous and overbroad. As to relevancy, NIC objects that NTG is improperly focusing on the merits of the underlying Nilon litigation. That is not improper; the Nilon case is the focus of NIC's malicious prosecution claim. As such, RPD Nos. 100 and 101 clearly seek are relevant information. However, RPD No. 99 is not phrased in terms of allegations in the Nilon action (as are RPD Nos. 100-101), but as NIC's current contention; thus, it does not seek information relevant to the claims or defenses in this action. NIC's other objections are frivolous boilerplate objections. Moreover, these document requests are akin to contention interrogatories which are expressly allowed under Rule 33. See, e.g, Nat'l Academy of Recording Arts & Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 680 (C.D. Cal. 2009) (“Rules 33 and 34 are cumulative, not alternative.” (internal quotation marks and citations omitted).).

In the Joint Stipulation, NIC raises for the first time a work product objection. However, NIC did not raise a work product objection when it responded to RPD Nos. 99-101; thus, NIC has waived any work product objections to these requests. See Fed.R.Civ.P. 26(b)(5)(A) (“When the party withholds information otherwise discoverable by claiming the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim....”).

For the above reasons, the Special Master sustains NIC's objections to RPD No. 99 and overrules NIC's objections to RPD Nos. 100-101. Thus, the motion to compel is denied as to RPD No. 99 and is granted as to RPD Nos. 100-101.

(2) RPD Nos. 29-58:

RPD Nos. 29 and 44 seek all communications between either NIC or the Emord Firm and Baker “that refer or relate to the claims and allegations at issue in this case.” RPD Nos. 30-35 and 45-50 seek communications between either NIC or the Emord Firm and Baker relating to six of the named plaintiffs in the lawsuits identified in the SAC, i.e., Sam Pfleg, Matthew Dronkers, Taylor Demulder, Sam Schoonover, Dan Bobba, and Raquel Torres. RPD No. 36 seeks communications between either NIC or the Emord Firm and Baker “that refer or relate to the any other current or former client of [NTG].” And RPD Nos. 37-43 and 52-58 seek communications between either NIC or the Emord Firm and Baker relating to seven of the eight lawsuits identified in the SAC, i.e., ChromaDex, Nature's Way, Kiss My Face, Carter-Reed, Himalaya Drug, Bobba, and Nutrisystem.

In response to these document requests, NIC made General Objections, which the parties have not provided, and also objected on several other grounds, including relevancy, proportionality, overbreadth, vague and ambiguous, redundant, attorney-client privilege, work product doctrine and common interest doctrine. Additionally, NIC stated: “Concerning the relevant time period leading into the filing of this case (which is the only relevant time period for this inquiry), NIC has produced responsive information or provided privilege logs for communications withheld.”

*6 NTG contends that during the meet-and-confer process, NIC refused to explain “the relevant time period.” Darnell Decl. ¶¶ 4, 6, Exh. 1. This presents a problem, NTG asserts, since it is unable to find documents or entries on the privilege logs that would be responsive to RPD Nos. 30-35, 38-43, 45-50 and 52-58. Id. ¶ 7. NTG further argues that NIC's responses are evasive or incomplete within the meaning of Rule 37(a)(4) and, thus, must be treated as a failure to answer. If no responsive documents exist, NIC must so state. Finally, NTG notes that the boilerplate objections of relevancy, vague and ambiguous, overbreadth should be excluded from any amended responses ordered by the court.

NIC argues that, in compliance with Judge Gandhi's order, “general discovery into Clark Baker's investigatory role would be relevant ...[; thus,] NIC produced or logged all communications and documents exchanged through May 2016. NIC produced all non-privileged communications and documents exchanged with Clark Baker. NIC's privilege logs reflect over 2,000 Baker communications and documents....” Jt. Stip. at 52:19-21 (emphasis in original).[4] In the Joint Stipulation, NIC explains that the relevant time period is the period during which Baker performed investigative services for NIC, which predated the filing of the SAC in May 2016. NIC further asserts that since Baker engaged the Emord Firm to represent him on April 14, 2016, all communications after that date, or as of May 2016, are subject to work product protection and attorney-client privilege. On the other hand, NTG notes that even assuming documents predating the filing of the action are privileged, NIC has not identified a starting date for those documents. Supp. Memo. at 2.

The Special Master finds that NIC's responses to these requests for documents are evasive and incomplete; the vague reference to “the relevant time period” does not comply with Rule 34. Further, having reviewed the document requests and considered the parties' arguments, the Special Master finds no merit to NIC's objections and overrules them. As such, NTG's motion to compel responses to RPD Nos. 29-58 is granted.

(3) RPD Nos. 59-62:

RPD Nos. 59 and 60 seek communications between either NIC or the Emord Firm “and any third party from May 22, 2015 through the present that refer or relate to the claims and allegations at issue in this case.” RPD Nos. 61 and 62 seek communications between either NIC or the Emord Firm “and any party that has been issued a subpoena in this case or that subpoenaed party's counsel.” During the meet-and confer process, NTG limited RPD Nos. 61 and 62 to the same time period as RPD Nos. 59 and 60, i.e., May 22, 2015 through the present. Darnell Decl. ¶ 4, Exh. 1.

NIC made General Objections to the requests, which the parties did not provide, and also objected on the grounds of relevancy, proportionality, overbreadth, and the work product doctrine. On the other hand, NTG argues that these requests are not overly broad, as they cover only a two year period, and the work product doctrine cannot protect documents shared with third parties; if shared, it is waived. Supp. Memo. at 3-4.

The Special Master, having reviewed the document requests and considered the parties' arguments, sustains NIC's objections to RPD Nos. 59-60 on the ground that the requests are overbroad and, thus, disproportionate to the needs of the case within the meaning of Rule 26(b)(1); however, NIC's objections to RPD Nos. 61-62 are overruled. Accordingly, the motion to compel is denied as to RPD Nos. 59-60 and is granted as to RPD Nos. 61-6. As the Special Master finds no merit to NIC's work product objection, NIC shall not withhold documents on privilege grounds and shall produce all documents responsive to RPD Nos. 61-62.

(4) RPD Nos. 65-66:

*7 RPD Nos. 65 and 66 seek any communications between either NIC or the Emord Firm and “Scott Vick from October 1, 2015 through the present.” NIC made General Objections to these requests, which the parties did not provide, and also objected on the grounds of relevancy, proportionality and overbreadth, noting the requests have no limitation as to subject matter. In the Joint Stipulation, NIC also objects that the requests are duplicative of discovery propounded to Vick by subpoena; however, no evidence supports this objection. The overbreadth objection, NIC explains in the Joint Stipulation, focuses on other litigation that is not part of this case, such as the DeviantArt.com matter, citing Dkt. 198. On the other hand, NTG argues, since NIC identified Vick in the Initial Disclosures under Rule 26(a), Vick may be a witness for NIC; thus, the requests are relevant.

The Special Master, having reviewed the document requests and considered the parties' arguments, sustains, in part, NIC's objections of relevancy and overbreadth as to documents regarding other litigation, such as the Deviant.Art.com matter (Dkt. 198); NTG's motion to compel responses to RPD Nos. 65-66 is granted, as limited.

(5) RPD Nos. 67-68:

RPD Nos. 67-68 seek communications between either NIC or the Emord Firm “and any person that [sic] has been identified in NIC's Rule[ ] 26(a) Disclosures in this case.” During the meet-and-confer process, NTG agreed to limit the “communications” to claims at issue in this litigation. Darnell Decl. ¶ 4, Exh. 1.

NIC made General Objections, which the parties did not provide, and also objected that the requests are overbroad, without any temporal limitation, and amount to a blanket requests for NIC's counsel's litigation files.[5] On the other hand, NTG argues that the requests clearly are relevant as the persons are identified in the disclosures because they have information pertaining to the case; limiting the requests to claims at issue is sufficient. The Special Master, having reviewed the document requests and considered the parties' arguments, sustains NIC's objections that the requests are overbroad due to a time period; thus, the motion to compel is denied as to RPD Nos. 67-68.

(6) RPD Nos. 77, 79 and 88:

RPD No. 77 seeks all documents “relating to the subject matter of Benjamin Quinto's December 8, 2016 declaration.” RPD No. 79 seeks all documents “relating to the subject matter of Benjamin Quinto's March 17, 2017 declaration (Docket No. 247-1).” RPD No. 88 seeks all documents “relating to [NIC's] policies, procedures, methodologies, and systems generating invoices for offers of [NIC's] products.”

NIC made General Objections, which the parties did not provide, and also objected on the grounds of relevancy, proportionality, vague and ambiguous, and overbreadth. In the Joint Stipulation, NIC claims that these requests are duplicative of other document requests or evidence produced; however, no evidence supports these claims. On the other hand, NTG contends that RPD Nos. 77 and 79 seek to confirm or rebut information NIC voluntarily provided when its principal (Benjamin Quinto) submitted declarations in this case, and RPD No. 88 challenges the reliability of evidence offered by NIC.

*8 The Special Master, having reviewed the document requests and considered the parties' arguments, sustains NIC's objection of overbreadth as to RPD No. 88 and overrules NIC's objections to RPD Nos. 77 and 79; provided however, RPD Nos. 77 and 79 are limited to documents Benjamin Quinto reviewed in preparing his two declarations. Otherwise, as NIC notes, the requests are overly broad as they seek all documents relating to the “subject matter” of the declarations. Thus, the motion to compel is granted, as limited, as to RPD Nos. 77 and 79 and is denied as to RPD No. 88.

VI.

Interrogatories

SI Nos. 1-3 ask for the name, address and telephone number (“the requested information”) of each individual NIC, NIC's investigator, the Emord Firm or the Emord Firm's investigator “has contacted related to allegations or claims in this case.” Jt. Stip. at 78:8-10. SI Nos. 4-6 ask for the requested information of each current or former client of NTG that NIC, NIC's investigator, the Emord Firm or the Emord Firm's investigator “has contacted.”

NIC objected to each of the interrogatories on the grounds of relevancy, proportionality, overbreadth, and privilege. As to overbreadth, NIC argues that the interrogatories broadly could include family members and friends with whom counsel discussed the allegations of the case, which are a matter of public record. Further, NIC asserts that it provided “a comprehensive list of individuals with potential relevant information” in its Rule 26(a) Initial Disclosures, but information about who was interviewed is protected by the work product doctrine. On the other hand, NTG contends that the work product doctrine does not apply as the information does not seek mental impressions that would reveal NIC's strategy.

In order to address the parties' dispute, the Special Master limits SI Nos. 1-3 to the requested information for those individuals identified in NIC's Rule 26(a) Initial Disclosures -- not family members, friends or others with whom NIC's principals, counsel and investigators may have casually discussed the case. Doing this, the focus of the parties' dispute is the scope of the work product doctrine, which was first articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). Holmgren v. State Farm Mut. Ins. Co., 976 F.2d 573, 576 (9th Cir. 1992). “The primary purpose of the work product rule is to ‘prevent exploitation of a party's efforts in preparing for litigation.’ ” Id. (quoting Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1494 (9th Cir. 1989).)

“There are two kinds of work product – ordinary work product and opinion work product. Ordinary work product includes raw factual information. Opinion work product includes counsel's mental impressions, conclusions, opinions or legal theories.” Baker v. General Motors Corp., 309 F.3d 1051, 1054 (8th Cir. 2000). Ordinary work product establishes a qualified immunity which is to be determined upon a showing of necessity or good cause. Admiral Ins. Co., 881 F.2d at 1494; see also United States v. Nobles, 422 U.S. 225, 239 (1975) (“The privilege derived from the work-product doctrine is not absolute.”).

Rule 26(b)(3) addresses both ordinary and opinion work product, differentiating between the two types in Subdivisions (A) and (B). Subdivision (A) provides:

Ordinarily, a party may not discover documents ... that are prepared in anticipation of litigation or for trial by or for another party or its representative.... But, subject to Rule 26(b)(4)[pertaining to experts], those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

*9 Fed.R.Civ.P.26(b)(3)(A). Subdivision (B) provides that “[i]f the court orders discovery of those materials, it must protect against disclosures of the mental impressions, conclusions, opinions, or legal theories of a party's attorney ... concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(B).

Many courts hold that the information NTG seeks is protected by the work product doctrine. See, e.g., In re Ashworth, Inc. Sec. Litig., 213 F.R.D. 385, 389-90 (S.D. Cal. 2002); In re MTI Tech. Corp. Sec. Litig. II, 2002 WL 32344347 (C.D. Cal. 2002); Mass. v. First Nat'l Supermarkets, Inc., 112 F.R.D.149, 152 (D. Ma. 1986). Other courts have found, especially in certain types of cases, that information identifying witnesses is not work product as it does not disclose counsel's tactical or strategic thoughts. See, e.g., Hatamian v. Advanced Micro Devices, Inc., 2015 WL 5604392 (N.D. Cal. 2015); In re Cathode Ray Tube, 2015 WL 12953930 (N.D. Cal. 2015); In re Amgen Inc. Sec. Litig., 2013 WL 12139088 (C.D. Cal. 2013); Plumbers & Pipefitters Local Union No. 630 v. Arbitron, Inc., 278 F.R.D. 335 (S.D. N.Y. 2011); In re Harmonics, Inc. Sec. Litig., 245 F.R.D. 424 (N.D. Cal. 2007); E.E.O.C. v. Jewel Food Stores, Inc., 231 F.R.D. 343 (N.D. Il. 2005).

The Special Master finds that SI Nos. 1-6 seek ordinary or factual work product, which is subject to qualified protection under Subdivision (A) of Rule 26(b)(3); not opinion work product, as NIC argues. Under Rule 26(b)(3)(A), ordinary work product may be discovered if the requesting party shows the information is relevant and proportional to the claims and defenses and “otherwise discoverable under Rule 26(b)(1).” As NIC has disclosed the identities of the individuals in its Rule 26(a) Initial Disclosures, NTG has shown that the information is relevant and proportional under the first prong of Subdivision (A).

However, NTG has not met its burden under the second prong of Subdivision (A) to show that it “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Since NTG knows the identities of the individuals named in NIC's Rule 26(a) Initial Disclosures, nothing prevents NTG from directly contacting those individuals and asking whether NIC interviewed them. Similarly, as NTG knows the identities of its current and former clients, nothing prevents NTG from directly contacting them and asking if NIC interviewed them. And NTG has not explained why it has substantial need for the information to prepare for trial and why it would be an undue hardship for it to obtain the information by other means. Accordingly, NIC's work product objections to SI Nos. 1-6 are sustained, and NTG's motion to compel responses to SI Nos. 1-6 is denied.

VII.

Reasonable Expenses

NTG seeks attorney fees under Rule 37(a). When a discovery motion is granted, in part, and denied, in part, Rule 37(a) provides that the court “may, after giving an opportunity to be heard, apportion the reasonable expenses” for the motion. Fed.R.Civ.P. 35(a)(5)(C). The Special Master, exercising her discretion under Rule 37(a)(5)(C), concludes that each party should bear its own reasonable expenses as to the motion to compel. Thus, NTG's request for reasonable expenses for bringing the motion to compel is denied.

ORDER

*10 1. Newport Trial Group's motion to compel Plaintiff Natural-Immunogenics, Inc. to answer Request for Admissions Nos. 7 and 9-11 is granted, in part, and denied, in part:

a. As to RA No. 7, the motion to compel admission is granted; all irrelevant and improper statements in response to RA No. 7 are stricken; and RA No. 7 is deemed partially admitted to read: “NIC admits that EMORD knew on August 25, 2015, that Baker had communicated with Andrew Nilon using a false identity.”

b. The motion to compel an answer to RA No. 9 is denied; and

c. the motion to compel an answer to RA Nos. 10 and 11 is granted, and NIC shall answer these requests for admissions without any objections, no later than fourteen (14) days from the date of this Order.

2. Newport Trial Group's motion to compel Plaintiff Natural-Immunogenics, Inc. to produce documents responsive to Request for Production of Documents Nos. 29-62, 65-68, 77, 79, and 100-101 is granted, in part, and denied, in part:

a. The motion to compel is granted as to RPD Nos. 29-58, 61-62, 65-66 (except Deviant.Art.com documents), 77, 79, and 100-101; and no later than fourteen (14) days from the date of this Order, NIC shall comply with subsections (i) through (iii) or subsection (iv) as to each RPD:

(i) NIC shall produce all responsive documents without any objections; provided, however, NIC may claim attorney-client privilege and/or work product protection in response to RPD Nos. 29-58, but not any other document requests, and shall contemporaneously produce a privilege log for any documents withheld on attorney-client and/or work product grounds;

(ii) NIC's responses to RPD Nos. 29-58 shall state the dates of “the relevant time period” for documents produced or identified on the privilege logs; and

(iii) if it chooses, NIC does not need to produce responsive documents that it has previously produced to NTG or listed on privilege logs; provided, however, in response to a particular request, NIC shall identify by Bates number(s) the responsive document(s) previously produced or cite the entries on the privilege logs (if any); or

(iv) if there are no documents responsive to a particular request, NIC shall state it has no responsive documents and NIC's principal shall verify the statement under oath.

b. The motion to compel is denied as to RPD Nos. 59-60, 67-68, 88 and 99.

3. Newport Trial Group's motion to compel Plaintiff Natural-Immunogenics, Inc. to respond to Special Interrogatories Nos. 1-6 is denied.

4. Newport Trial Group's request for reasonable expenses is denied, pursuant to Rule 37(a)(5)(C).

5. The Case Manager shall file and serve the Order on the parties and the District Court.

[1]

On November 14, 2016, Plaintiff NIC filed a Statement describing its RICO claims. [Dkt. 201].

[2]

On August 1, 2016, District Judge Selna granted, in part, and denied, in part, defendants' motions to dismiss and Defendant NTG's anti-SLAPP motion to strike. [Dkt. 157]. Specifically, Judge Selna granted NTG Defendants' motion to dismiss the claims under 18 U.S.C. § 1962(c)-(d) against Defendant Victoria Knowles and non-NTG Defendants' motion to dismiss the claims against Defendants Sam Pfleg, Matthew Dronkers, Taylor Demulder and Sam Schoonover under 18 U.S.C. § 1962(c) and the UCL; and granted NTG Defendants' anti-SLAPP motion to strike all allegations under the UCL on behalf of the general public. Id.

[3]

The Special Master notes that throughout the Joint Stipulation, NIC makes factual representations that are not supported by evidence, such as declarations with attachments. These statements are merely two of many examples. See also e.g., Jt. Stip. at 3:8-11 (“In September 2016, NIC reproduced Baker documents and communications using line-by-line redactions ... Then again, in April 2017, NIC gratuitously reproduced Baker invoices and eliminated many redactions.”); 54:20-21 (“NIC has already produced all records responsive to that period.”); 76:23 (“NIC produced records in response to that request...”). Without evidence, the Special Master does not accept these statements as true.

[4]

Once again, the Special Master notes that NIC has not produced any evidence to support these factual representations in opposition NTG's motion to compel RPD Nos. 29-58.

[5]

In the Joint Stipulation, NIC raises for the first time additional objections not made in its responses to RPD Nos. 67-68. For example, NIC claims that the requests conflict with the discovery limitations set forth by Judge Selna in the July 2016 Order; some communications may be protected by attorney-client privilege and work product doctrine, as disclosure of communications with witnesses is similar to disclosing witness interviews. The objection of conflict with Judge Selna's July 2016 Order may come within the rubric of “overbroad”; but the objections of attorney-client privilege and work product protection do not. NIC's failure to timely raise the latter objections when responding to the document requests waives any privilege. Fed.R.Civ.P. 26(b)(5)(A).