After considering the motions and record, the undersigned recommends the Honorable Ronald B. Leighton deny Plaintiff’s Motion to Strike (Dkt. 96), Defendant’s request to strike Plaintiff’s Motion to Compel (Dkt. 90, pp. 14-15, n.8), and Plaintiff’s Motion to Compel (Dkt. 83). The undersigned further recommends Judge Leighton grant Defendant’s Motion to Compel (Dkt. 96).

I. Plaintiff’s Motion to Strike (Dkt. 96) and Defendant’s Request to Strike Plaintiff’s Motion to Compel (Dkt. 90, pp. 14-15, n.8)

On February 14, 2019, Plaintiff filed an 18-page Motion to Compel. Dkt. 83. In the Response to Plaintiff’s Motion to Compel, Defendant requested the Court strike Plaintiff’s motion “or disregard the pages beyond page 12” because the Local Civil Rules limit motions to compel to 12 pages. Dkt. 90, pp. 14-15 n.8; Local Civil Rule (“LCR”) 37(a)(2), LCR 7(d)(3)-(4).

Additionally, on March 4, 2019 – three days after Plaintiff’s Motion to Compel became ready for consideration – Defendant’s attorney filed a “Supplemental Declaration ... Regarding Plaintiff’s Motion to Compel” (“Declaration”). Dkt. 95. On March 5, 2019, Plaintiff filed the Motion to Strike, arguing the Court should strike the Declaration because Defendant filed it as an unauthorized surreply. See Dkt. 96; LCR 7(g)(2) (limiting surreplies to requests to strike material contained in or attached to a reply brief).

While both parties committed violations of the rules, the undersigned recommends Judge Leighton consider the filings. However, the undersigned recommends Judge Leighton decline to consider any future documents filed in violation of the Local Civil Rules. The undersigned admonishes counsel for their violations.

II. Plaintiff’s Motion to Compel (Dkt. 83)

Plaintiff moves for the Court to order Defendant to produce documents in response to Plaintiff’s First Requests for Production (“RFPs”) and overrule the qualifying statements Defendant wrote in its answers to Plaintiff’s First Set of Interrogatories (“Interrogatories”). Dkt. 83. Defendant opposes Plaintiff’s motion, primarily arguing it is premature. Dkt. 90.

A party may obtain discovery regarding any nonprivileged information that is relevant to any claim or defense in the case. Fed. R. Civ. P. 26(b)(1). When a party believes the responses to his discovery requests are incomplete, or contain unfounded objections, he may move the court for an order compelling disclosure. Fed. R. Civ. P. 37(a). The movant must show he conferred, or made a good faith effort to confer, with the party opposing disclosure before seeking court intervention. Id.; see also LCR 37(a)(1).

*2 Plaintiff served its RFPs and Interrogatories on Defendant on December 21, 2018. See Dkt. 83-1. Defendant responded to the discovery requests on January 22, 2019. See Dkt. 83-1. In a letter accompanying the responses, Defendant’s attorney wrote Defendant would produce documents in response to the RFPs “as expeditiously as possible,” and “may produce documents on a rolling basis.” Id. Since then, counsel have continued to engage in discussions regarding Defendant’s production. See, e.g., Dkt. 91, Yanick Dec., ¶¶ 6-8; Dkt. 95, Gohmann Bigelow Dec., p. 42-44, 61-65. Defendant’s attorney indicated at the telephonic conferences held on March 14, 2019 and March 26, 2019 that Defendant continued to produce documents in response to the RFPs and expected to complete production in April 2019. Defendant’s counsel also stated the parties continued to refine the search methodology for the discovery of electronically stored information to facilitate production of responsive documents. Furthermore, Defendant’s attorney stated at the March 26, 2019 telephonic hearing that Defendant agreed to produce discovery related to Ponds 3B and 3D, thereby resolving the only substantive issue in Plaintiff’s Motion to Compel.

Plaintiff additionally challenges the qualifying statements Defendant submitted with its interrogatory responses. See Dkt. 83, pp. 15-17. Yet the parties provided limited briefing on the Interrogatories, instead primarily focusing on Defendant’s production in response to the RFPs. See id.; see also Dkt. 90, 93. Accordingly, the undersigned finds the Court’s involvement on the Interrogatories not warranted at this time.

Because Defendant is producing items in response to Plaintiff’s requests, the parties to continue to discuss this production, and no substantive disputes in this motion remain, the undersigned recommends Judge Leighton deny Plaintiff’s Motion to Compel (Dkt. 83).

III. Defendant’s Motion to Compel (Dkt. 97)

Defendant moves for an order compelling Plaintiff to produce documents and information on three substantive areas. Dkt. 97. Plaintiff maintains these areas concern issues that are not relevant to the case. Dkt. 101.

As a preliminary matter, Plaintiff requests the Court deny Defendant’s Motion to Compel because Defendant does not address Plaintiff’s other objections to Defendant’s discovery requests. Dkt. 101, p. 4. At the telephonic hearing held March 26, 2019, counsel indicated they continued to meet and confer regarding Plaintiff’s other objections and resolved several of those objections. Counsel for Defendant stated he was “confident” the parties would be able to “address those objections” through their own correspondence. Because counsel continue to meet and confer on these objections, the undersigned recommends Judge Leighton deny Plaintiff’s request and consider the merits of Defendant’s Motion to Compel.

A party may, as stated above, obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense in the case. Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. Thus, the scope of discovery is broad. Oppenheimer Fund, Inc. v. Sanders, 98 U.S. 340, 351 (1978).

First, Defendant seeks documents and information related to the drafting history of the parties' agreements. Dkt. 97, pp. 5-7. Defendant contends such discovery is relevant because the parties dispute the meanings of key terms in their agreements, including the Master Services Agreement (“MSA”). Id. at p. 5. Plaintiff counters that “neither party has alleged any claim or defense regarding ambiguity that requires extrinsic evidence[.]” Dkt. 101, p. 8. Plaintiff also argues Judge Leighton analyzed the relevant MSA provisions in the Order Granting Motion for Preliminary Injunction and found them unambiguous. Id. at pp. 8-9 (citing Dkt. 34).

The pleadings show the parties disagree over the meaning of terms in their agreements. See, e.g., Dkt. 1, ¶¶ 50-51, 77-79, 83-86; Dkt. 27, ¶¶ 51, 77-79, 83-86. As such, discovery regarding the agreements' drafting history is relevant because it “may lead to the discovery of admissible evidence regarding interpretation of the [agreements'] terms.” See Ivy Hotel San Diego, LLC v. Houston Casualty Co., 2011 WL 13240367, at *4 (S.D. Cal. Oct. 20, 2011) (finding the moving party “entitled to explore through discovery facts relevant to its own theories regarding the meaning of contractual terms,” even if the non-moving party “disagrees with [those] theories on the merits”).

*3 Moreover, although Judge Leighton discussed agreement terms in the injunctive order, the standard for a preliminary injunction differs from that of the scope of discovery. The Court in a preliminary injunction evaluates the “likelihood of success on the merits.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 20 (2008). But in the discovery context, the Court assesses whether the information is “relevant to any party’s claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). “Relevant information for purposes of discovery is information reasonably calculated to lead to the discovery of admissible evidence.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (quotation marks and citation omitted). Here, because the parties dispute the meanings of terms in the agreements, Defendant’s request regarding the drafting history of the parties' agreements is relevant to claims and defenses in this case.

Second, Defendant seeks to overrule Plaintiff’s objections to providing documents and information relating to the period prior to May 25, 2018. Dkt. 97, pp. 7-11. Plaintiff objects to providing any discovery predating May 25, 2018 because it argues the MSA limits Defendant to disputing invoices prior to May 25, 2018.[2] Dkt. 101, pp. 11-12. Defendant asserts affirmative defenses and counterclaims alleging Plaintiff overbilled Defendant from December 2014 to March 15, 2018. Dkt. 17, p. 17 ¶ 1; pp. 21-22 ¶¶ 16, 22, 24. Defendant also alleges a counterclaim for breach of the duty of good faith and fair dealing which, on its face, is indefinite. See Dkt. 27, p. 24 ¶¶ 35-39. Accordingly, documents and information regarding the period prior to May 25, 2018 are relevant to claims and defenses in this action.

Third, Defendant seeks to compel Plaintiff to produce discovery related to Plaintiff’s financial condition. Dkt. 97, pp. 11-12. Plaintiff contends documents and information related to its finances are not relevant to the issues in this case. Dkt. 101, pp. 5-6. The MSA states either party may terminate the MSA if an “event of default” occurs. Dkt. 4-7, p. 13. In relevant part, an “event of default” includes a party’s failure to (1) pay amounts due within 30 days of written notice from the non-defaulting party, or (2) pay its debts as they fall due. Id. In the Complaint, Plaintiff alleges no event of default occurred. Dkt. 1, ¶ 96. Defendant denies this allegation, and further asserts an affirmative defense alleging Plaintiff materially breached the MSA by overbilling Defendant and failing to cure this “default.” Dkt. 27, p. 13 ¶ 96; p. 17 ¶ 1; see also id. at p. 19 ¶ 10. In addition, in the Report and Recommendation currently pending on Plaintiff’s Motion to Quash, the undersigned determined financial documents relating to Plaintiff’s alleged default are within the scope of relevant discovery. Dkt. 102, p. 5. Because both parties stated allegations pertaining to Plaintiff’s financial condition, these documents are relevant, discoverable evidence.

As Defendant requests documents and information relevant to the claims and defenses in this case, the undersigned recommends Judge Leighton grant Defendant’s Motion to Compel (Dkt. 97).

IV. Requests for Attorney’s Fees

Plaintiff and Defendant each request attorney’s fees and expenses for the motions to compel. Dkt. 83, p. 13; Dkt. 97, p. 12; Dkt. 101, p. 13. The undersigned finds an award of attorney’s fees and expenses not appropriate at this time and recommends Judge Leighton deny the parties' requests.

V. Conclusion

*4 In conclusion, the undersigned recommends Judge Leighton deny Plaintiff’s Motion to Strike (Dkt. 96), Defendant’s request to strike Plaintiff’s Motion to Compel (Dkt. 90, pp. 14-15, n.8), and Plaintiff’s Motion to Compel (Dkt. 83). The undersigned also recommends Judge Leighton grant Defendant’s Motion to Compel (Dkt. 97).

The parties may file written objections to this Report and Recommendation on or before April 9, 2019. See Dkt. 52, p. 2 (“The parties shall have a reasonable time to object.”); see also Fed. R. Civ. P. 53(f)(2) (allowing the Court to set the time for objections). The Clerk is directed to set the matter for consideration on April 12, 2019, as noted in the caption.

The undersigned refers to the two defendants in this action – Transalta Centralia Mining LLC and Transalta Corporation – as “Defendant.”

Plaintiff similarly argues the injunctive order limited the relevant period of discovery to May 25, 2018. Dkt. 101, p. 11. Yet as explained above, such argument is unpersuasive given the differing standards for injunctive orders and discovery. Furthermore, Judge Leighton made no such discovery rulings. See Dkt. 34.