I. INTRODUCTION

*1 On March 15, 2019, Plaintiff Softketeers, Inc. (“Plaintiff”) filed a Complaint against Regal West Corporation d/b/a Regal Logistics (“Regal”), Vu Ho Inc., Thai Tran Inc., Don Mai Inc., Rand Neeves (allegedly Regal's Vice President), Vu Ho, Thai Quoc Tran, Don Mai, and Trung Ngoc Doan (collectively, with Dong Bao Pham, “Defendants”) asserting purported claims for copyright infringement, federal trade secret misappropriation, California trade secret misappropriation, breach of contract, tortious interference with contractual relations, and quantum meruit. Dkt. 1 (“Complaint”). Plaintiff alleges in 2000, Regal, a logistics services provider, retained Plaintiff, a software company, to develop warehouse management software (“WMS”) for use, under a nonexclusive license, by Regal, with Plaintiff retaining ownership of the software, subject to several copyright registrations. Id. ¶¶ 16-18, 21, 27-28, 32. Plaintiff alleges the WMS was put into use by Regal in 2001, with Plaintiff continuing to develop enhancements providing ongoing maintenance services to Regal. Id. ¶¶ 19, 21-22, 30. Plaintiff alleges Regal and others misappropriated Plaintiff's proprietary software source code for use by Regal. Id. ¶¶ 35-37.

On May 6, 2019, the Honorable James V. Selna, United States District Court Judge, granted Plaintiff's Motion for a Preliminary Injunction, which, among other things, limited defendants' ability to use the software at issue. Dkt. 47 at 1-4, 19; Dkt. 48 (“Preliminary Injunction”). Following a motion to dismiss that was granted in part and denied in part, Plaintiff filed a First Amended Complaint that, among other things, added defendant Dong Bao Pham, another former contractor with Plaintiff now allegedly working for Regal. Dkt. 101 (“FAC”). Defendants have answered the FAC and filed counterclaims against Plaintiff and Minh Khai Nguyen. Dkt. 114, 123. Plaintiff and Nguyen filed a motion to dismiss the counterclaims and Defendants filed a motion to supplement the counterclaims. See Dkt. 136, 148, 150, 177, 189, 192. The parties also filed cross-motions for sanctions. Dkt. 176, 178. On November 19, 2019, Judge Selna issued a sealed order regarding the motion to dismiss, motion for leave to supplement, and cross-motions for sanctions. Dkt. 229.

Separately, following briefing by the parties, on November 14, 2019, Judge Selna issued an Order re Counsel's Access to Source Code which governs the access to the source code held in the custody of Integrity Legal Corp. (“Integrity”), a third-party vendor, by counsel for Defendants. Dkt. 223 (“Source Code Access Order”). The Source Code Access Order provides, among other things, that any inspection of source code in the custody of Integrity by counsel “will occur at Integrity, on Integrity-suppled equipment conforming to the requirements of Paragraph 10(b) of the Protective Order.” Dkt. 223 at 2.

On November 5, 2019, Defendants filed a Motion (Dkt. 209-6) and Joint Stipulation in Support of Motion to Compel Plaintiff to Produce Source Code (Dkt. 209, “Source Code Motion”), supported by declarations and exhibits (Dkt. 209-1 to 209-4). In light of the Source Code Access Order and its apparent connection to the Source Code Motion, on November 15, 2019, the Court issued an order directing the parties to meet and confer regarding the impact of the Source Code Access Order on the Source Code Motion, including discussing whether the intervening order narrowed or could, with further discussions among counsel, narrow the issues on the pending motion, and file a Joint Report regarding those discussions. Dkt. 224. On November 20, 2019, the parties filed their Joint Report, stating that “The parties believe they have successfully resolved their dispute regarding the production of [Plaintiff's] source code for inspection.” Dkt. 227 (“Joint Report”) at 2. The Joint Report further stated that “The parties have not fully resolved their dispute regarding whether the individual developers ... should be permitted to participate in any inspection of the source code for the software at issue in this litigation,” which involves two “sub-issues,” that is, whether such participation is permitted under (1) the Preliminary Injunction and (2) the stipulated Protective Order (Dkt. 141). Joint Report at 3. The parties advised that the first issue, relating to the Preliminary Injunction, is no longer at issue, but the issue under the Protective Order remains. Id. Thereafter, on November 21, 2019, the parties filed their respective Supplemental Memoranda regarding the Source Code Motion. Dkt. 234, 235.

*2 Separately, on November 7, 2019, Defendants filed a Motion to Compel Plaintiffs to Provide Further Responses to Discovery (Dkt. 216, “Motion to Compel Further Responses”, and collectively, with the Source Code Motion, “Motions”), with a supporting Joint Stipulation, portions of which were filed under seal (219-1, “Jt. Stip.”) and declarations and exhibits (Dkt. 216-1 to 216-4), and on November 21, 2019, Plaintiff filed a Supplemental Memorandum. Dkt. 233.

The Motions, having been fully briefed, came on regularly for hearing on December 5, 2019. Having considered the materials filed in support of and in opposition to the Motions and the argument of counsel at the hearing, for the reasons stated on the record and the hearing and as set forth below, the Court rules as follows.

II. RELEVANT LAW

“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.” Fed. R. Civil P. (“Rule”) 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 remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted).

Under Rule 34(a)(1), a party may serve on any other party requests, within the scope of Rule 26(b), to produce or permit inspection of, among other things, “(A) any designated documents or electronically stored information.” Such requests “must describe with reasonable particularity each item or category of items to be inspected ... [and] must specify a reasonable time, place, and manner for the inspection ....” Rule 34(b)(1)(A), (B). The party responding to a request for production must, “[f]or each item or category, ... either state that inspection ... will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(B). “An 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.” Rule 34(b)(2)(C). A party responding to a request for production must then complete the production “no later than the time for inspection specified in the request or another reasonable time specified in the response. Rule 34(b)(2)(B). A propounding party may move for an order compelling an answer or production to a request for production if the responding party fails to produce documents or fails to respond as requested under Rule 34. Rule 37(a)(3)(B)(iv). An evasive or incomplete answer or response is treated as a failure to answer or respond. Rule 37(a)(4).

Pursuant to Rule 33, “[a]n interrogatory may relate to any matter that may be inquired into under Rule 26(b).” Rule 33(a)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Rule 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity.” Rule 33(b)(4). If the answer to an interrogatory may be determined by examining a party's business records, and “if the burden of deriving or ascertaining the answer will be substantially the same for either party,” the responding party may answer by specifying (and making available) the records in sufficient detail to allow the interrogating party to locate and them as readily as the propounding party. Rule 33(d). Reliance upon business records in a foreign language without a translation “ ‘runs afoul of Rule 33(d).’ ” Shinedling v. Sunbeam Prods. Inc., 2013 WL 12171959, at *7 (C.D. Cal. Oct. 25, 2013) (quoting Nature's Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 440-41 (E.D.N.Y. 2011); cf. Toyo Tire & Rubber Co., Ltd. v. CIA Wheel Grp., 2016 WL 6246383, at *2 (C.D. Cal. Jan. 14, 2016) (denying motion to compel responding party producing foreign language documents as part of Rule 26 initial disclosures and requests for production to provide translation, noting a “different outcome might be warranted” if the document were “referenced in an interrogatory response under Rule 33(d) ...”). A propounding party may move for an order compelling an answer to an interrogatory if “a party fails to answer an interrogatory submitted under Rule 33.” Rule 37(a)(3)(B)(iii). An evasive or incomplete answer or response is treated as a failure to answer. Rule 37(a)(4).

*3 A party responding to discovery should use common sense and attribute ordinary definitions to terms in discovery requests. Advanced Visual Image Design, LLC v. Exist, Inc., 2015 WL 4934178, at *6 (C.D. Cal. Aug. 18, 2015) (citing Bryant v. Armstrong, 285 F.R.D. 596, 606 (S.D. Cal. 2012)). Parties have an “obligation to construe ... discovery requests in a reasonable manner.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007); see also King-Hardy v. Bloomfield Bd. of Educ., 2002 WL 32506294, *5 (D. Conn. Dec. 8, 2002) (finding the responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity); McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....”) (internal quotation marks omitted).

“Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw–Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted)). Once the minimal showing or relevance is made, “[t]he party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998).

III. DISCUSSION

A. The Source Code Motion

The Source Code Motion relates to three Requests for Production (“RFP”), Nos. 3, 4, and 5, that request: “A copy of each and every version of every Source Code file in which You” claim exclusive [RFP No. 3] / claim non-exclusive [RFP No. 4] / do not claim [RFP No. 5] “copyright or trade secret rights.” Dkt. 209 at 6-8. In the Joint Report and at the hearing, the parties agree that the only remaining issue in the Source Code Motion was to what extent the individual developer defendants could have access to source code under the terms of the Protective Order.

Here, although Protective Order does not list the individual defendants as persons who may have access to material designated as Highly Confidential—Source Code, it does specify that “the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information” may be provided access.” See Dkt. 141, ¶ 9.3(f).

In its operative complaint, Plaintiff alleges that defendants Ho, Tran, Mai, Doan, and Pham were, at various times in the past, independent contractors of Plaintiff who, prior to working for Regal, “work[ed] on” the Software at issue in the case. FAC, ¶¶ 26, 27. Plaintiff further alleges:

*4 FAC, ¶ 36, 38. Defendants concede that the developer defendants were authors or recipients of the source code at issue or otherwise possessed or knew of the information contained therein. Dkt. 235 at 2.

At the time it stipulated to the Protective Order, Plaintiff was aware that the developer defendants were “author[s] or recipient[s]” of the relevant source or “otherwise possessed or knew the information” as described in paragraph 9.3(f) in the Protective Order because Plaintiff had alleged as much in the FAC. Although Plaintiff now claims allowing the developer defendants access to the source code would cause competitive harm to Plaintiff, Plaintiff did not raise such an objection in its Responses to RFP Nos. 4-5. See Dkt. 209 at 6-8. In fact, in the closest analogous objection in its Responses, Plaintiff objected “to the extent [the RFP] seeks the production of confidential materials prior to the entry of a suitable protective order in this Action.” Id. As Plaintiff stipulated to the Protective Order, it was suitable to Plaintiff, meaning the confidentiality objection has been fully addressed.

Plaintiff's reliance on Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992), to which it did not cite in its Responses to RFP Nos. 3-5, does not alter the outcome. In Brown Bag, the parties, through outside counsel, stipulated to an “attorneys' eyes only” protective order. Id. at 1469. Thereafter, the plaintiff's outside counsel withdrew and the plaintiff was represented solely by a newly hired inside counsel who was its “sole legal advisor.” Id. at 1469-70. The defendant moved for a protective order to restrict the plaintiff's in-house counsel from accessing “attorney's eyes only” information. Id. at 1469. The assigned magistrate judge issued an order granting a protective order, requiring the plaintiff to hire an independent consultant, legal or otherwise, to review the “attorneys' eyes only” material, and, had the consultant opined that the material was necessary to pursue the litigation, it could have sought leave of court on an item-by-item basis to share such material with in-house counsel. Id. The Ninth Circuit found the district court “did not abuse its discretion in issuing the protective order, noting, among other things, that the “attorneys' eyes only” material was not itself “relevant” to the claim at issue. Id. at 1471. The present case is a far cry from Brown Bag. First, the Protective Order in this case governing with whom source code materials can be shared was not entered over Plaintiff's objection; rather, it was entered with Plaintiff's agreement. Second, unlike in Brown Bag the objecting party created the need for a new protective order by replacing outside counsel; here, by contrast, no change of circumstances warrants alteration of the agreed-to Protective Order. Third, whereas in Brown Bag the material at issue was not relevant to the action, the source code here goes to the heart of the action. Plaintiff accuses the individual developer defendants of working on the underlying software and improperly transferring the source code to Regal, while at the same time seeks to bar those defendants from having access to the source code to defend themselves against those allegations. The material at issue here is, unlike the material at issue in Brown Bag, relevant to Plaintiff's claims.

*5 Plaintiff also argues that the individual developers did not author all of the source code, and thus they should not be permitted to “freely roam[ ] through thousands of files they did not author.” Dkt. 234 at 4. The Court notes that in the SAC, Plaintiff did not delineate which developer defendants worked on what portions of the software or allege which developer defendant transferred which portion of the source code to Regal; rather, Plaintiff made group “and/or” allegations. See, e.g., FAC, ¶¶ 26, 27, 36, 38. Regardless, the Court is not in a position to determine, file by file or line by line, which defendants will have access to what portions of the source code other than to direct that the parties comply with the Protective Order and, to the extent applicable, Judge Selna's Source Code Access Order.

As narrowed by agreement of the parties in the Joint Request, the Source Code Motion is GRANTED. Plaintiff shall make the requested electronically stored information available within five business days of the date of this Order, at a reasonable time and place that accords, where applicable, with the dictates of the Source Code Access Order.

B. The Motion to Compel Further Responses

The Motion to Compel Further Responses challenges Plaintiff's responses to Interrogatory Nos. 1-6, 11, and 15 and RFP Nos. 10, 16-18, 85, and 86. The Court has reviewed the discovery requests and the responses thereto and, based on the authorities cited above and the reasons stated at the hearing, finds that Plaintiff has fairly responded. In addition, this ruling, as to Interrogatory No. 11, is also based upon Plaintiff's counsel's representation that, based on his understanding, neither Plaintiff nor Nguyen filed any copyright applications with the United States Copyright Office prior to March 2019. As noted at the hearing, as to Interrogatory No. 15, had the interrogatory been phrased in the form of a contention interrogatory, rather than referencing reasons behind redactions of Copyright Office filings, the result may have been different. Further, the Court's denial is without prejudice to Defendant serving further, more narrowly tailored interrogatories or requests for production. And as with all discovery responses, a party who does not disclose information in responses or supplemental responses runs the risk at trial of exclusion of any responsive information not disclosed (see Rule 26(c)(1)) or cross-examination regarding the prior failure to disclose. With respect to RFP Nos. 10, 16, 17, 85, and 86, the ruling is also based on Plaintiff counsel's representations in the Joint Stipulation, the Supplemental Memorandum, and at the hearing. Lastly, at the hearing, Defendants withdrew the motion as to RFP No. 18.

As a result, for the foregoing reasons and for the reasons stated at the hearing, the Motion to Compel Further Responses is denied.

IV. CONCLUSION AND ORDER

For the reasons above, the Source Code Motion (Dkt. 209) is GRANTED, subject to the terms set forth above, and the Motion to Compel Further Responses (Dkt. 216) is DENIED. The Court finds that payment of expenses is not warranted as the parties' respective positions in the Motions were substantially justified.

IT IS SO ORDERED.

1 : 10

Initials of Clerk: mba