*1 Pending before the Court is Plaintiff Jiae Lee's Motion to Compel and For Sanctions Regarding Defendants' Discovery Violations and Abuses (“MTC”), supported by the declaration of counsel Joshua J. Pollack (“Pollack Decl.”).[1] (Dkt. No. 82). Defendant Dong Yeoun Lee, aka Damon Lee, filed an Opposition (“Opp.,” Dkt. No. 94), supported by the amended declaration of counsel Daniel E. Park. (“Park Decl.,” Dkt. No. 99).[2] Plaintiff filed a Reply (“Reply”), supported by the supplemental declaration of Joshua J. Pollack, (“Pollack Supp. Decl.”). (Dkt. No. 105). The Court has taken the matter under submission without a hearing pursuant to Local Rule 7-15. For the reasons stated below, Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART. The Request for attorney's fees under Rule 37 is DENIED. However, Defendants shall pay for a court reporter and provide Plaintiff with one copy of the transcripts of the supplemental 30(b)(6) depositions of CGI and Buja Equity authorized by this Order.

I. BACKGROUND FACTS AND ALLEGATIONS

This is a diversity action for fraud, negligent misrepresentation, conversion, breach of fiduciary duty, and unjust enrichment. Plaintiff alleges that Defendants Damon Lee and his girlfriend, Grace Min, fraudulently induced her to invest in a Coffee Bean & Tea Leaf (“Coffee Bean”) franchise at Children's Hospital Los Angeles (“CHLA”). According to Plaintiff, beginning in 2016, Damon Lee, Grace Min, and Damon Lee's son, Jeffrey Lee, engaged in a series of meetings with her to persuade her to invest in a purported business opportunity on the false pretense that they had been authorized to open a Coffee Bean franchise at CHLA. (Complaint ¶¶ 4-5).[3] Plaintiff entered into an investment agreement with Damon Lee's company, Creative Global Associates (“CGI”), concerning the franchise, which was signed by Damon Lee on behalf of CGI as its CEO, on September 28, 2016. (Dkt. No. 62-1, Exh. 1 at 7-8) (continuous pagination). Plaintiff states that even though she delivered $600,000 to Defendants, there is no Coffee Bean franchise at CHLA and there are no plans to open one in the future with CGI. (Complaint ¶ 6). Plaintiff further alleges that Buja Equity, which it claims is not affiliated with CGI[4] and is controlled by Damon Lee's son Jeffrey, has “purportedly entered into a vendor lease agreement with CHLA,” thereby usurping “the very investment opportunity that was promised” to Plaintiff. (MTC at 3 n.3).

II. SCOPE OF PERMISSIBLE DISCOVERY

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

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. “The relevance standard is commonly recognized as one that is necessarily broad in scope in order ‘to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.’ ” Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)); see also Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017) (“Even after the 2015 amendments, courts continue to recognize that discovery relevance remains ‘broad’ in scope.”); Wagafe v. Trump, 2018 WL 348470, at *1 (W.D. Wash. Jan. 10, 2018) (“[T]the scope of discovery is broad.”). “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).

While the scope of permissible discovery may be broad, because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. The 2015 amendments to Rule 26 “were designed to protect against over-discovery and to emphasize judicial management of the discovery process, especially for those cases in which the parties do not themselves effectively manage discovery.” Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 308 (S.D. Ind. 2016); see also Davita HealthCare Partners, Inc. v. United States, 125 Fed. Cl. 394, 398 (2016) (the 2015 amendments to the Federal Rules “contribute to the overall goal of regulating the time and expense of litigation”). However, the larger and more complex the case, the more even relatively voluminous discovery may be considered proportional. The party resisting discovery bears the burden of showing why discovery should not be allowed. Doutherd v. Montesdeoca, 2018 WL 3008867, at *2 (E.D. Cal. June 15, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

III. DISCOVERY DEMANDED OF DAMON LEE AND CGI

A. Requests for Production of Documents

Plaintiff contends that Damon Lee admitted in his depositions, both individually and as CGI's 30(b)(6) witness, that documents responsive to her production requests exist that have not been produced, including specifically: (1) documents showing the transfer of Plaintiff's money to the U.S.; (2) an alleged memo by a CGI accounting employee showing whether CGI ever received Plaintiff's money; (3) documents showing how Plaintiff's money was spent; (4) CGI's accounting books; and (5) documents showing purported investors and shareholders of CGI. (MTC at 10-11). More generally, Plaintiff contends that Damon Lee has failed to produce documents supporting his underlying contentions that she contends Defendants “must have,” such as corporate records showing that Plaintiff's money went to the CGI Paramount and Little Tokyo Coffee Bean projects, as Damon Lee testified, among other documents. (Id. at 13).

*3 Additionally, Plaintiff contends that Defendants have failed to produce documents responsive to RFP Nos. 17, 18 and 37, regarding Defendants' assets, wealth and financial condition, despite an October 2, 2020 Court order requiring them to do so. (Dkt. No. 16). Instead, Plaintiff maintains that “CGI has produced only five franchise agreements and only a small number of financial documents.” (Id. at 17). Finally, Plaintiff complains that Defendants' productions in October 2020 on the eve of Damon Lee's individual and 30(b)(6) depositions were in an unusable format and thus could not, and still cannot, be reviewed. (MTC at 5, 23). Plaintiff states that instead of producing documents in the industry standard format of 1-bit .tiff files with load files, Plaintiff produced them as individual 24-bit .tiff files without load files. (Pollock Decl. ¶ 35). According to Plaintiff, although Defendants have “proposed instead to produce all of their documents in hard copy, or have [Plaintiff's counsel's] litigation support team visit CGI to download them to a flash drive,” these proposals “are not feasible in the era of electronic discovery and the COVID-19 environment.” (Id.).

Damon Lee maintains that Defendants have produced “more than 4,000 pages of documents” in response to Plaintiff's discovery requests. (Opp. at 6). With respect to the five categories of documents that Damon Lee admitted to having in his October 9 and 13 depositions, Defendants state that they “have produced all documents in their possession, custody, or control that relate to these categories of documents.” (Id. at 8). Specifically, Defendants state that the following documents are responsive to the categories cited by Plaintiff: (1) regarding the transfer of Plaintiff's money from Korea to the US, Defendants have produced all transfer records from Grace Min's family account and from Grace Min's business acquaintances to CGI, (Park Decl., Exhs. 1-2); (2) regarding CGI's receipt of Plaintiff's money, Defendants have produced the transfer records in Exhibits 1 and 2 and Plaintiff has a receipt from Damon Lee for $600,000, which Plaintiff produced in discovery, (id., Exh. 3); (3) regarding how Plaintiff's money was spent, Defendants have produced cost summaries, receipts and invoices related to the Paramount Coffee Bean and Little Tokyo Coffee Bean projects (id., Exhs. 4-5); (4) regarding CGI's accounting books, Defendants state that they were already produced to Plaintiff in CGI's bankruptcy case, so they are already in Plaintiff's possession and reproducing them in this action would be unduly burdensome; and (5) regarding CGI's shareholders and investors, Defendants claim that they do not have any responsive documents because “CGI has recently emerged from Chapter 11 bankruptcy and its transactional lawyer is currently preparing its restructuring,” which should be completed by the end of January 2021, at which time Defendants will produce them. (Opp. at 8-9).

Damon Lee further states that he has produced all documents supporting his contentions that: Plaintiff's money was invested in alternative Coffee Bean locations, and that her money was transferred to the Korean bank accounts of an individual named ShinChul Kang and a company named Nonga. (Id. at 9-10). Damon Lee also contends that he produced documents showing his assets, wealth and financial condition responsive to RFP Nos. 17, 18 and 37. (Id. at 10). In addition to five Coffee Bean franchise agreements, Damon Lee produced the Deed of Trust for his home, his closed personal and joint bank accounts, and a record of his outstanding balance on his credit card. (Id. at 10-11 (citing Park Decl., Exh. 8)). Damon Lee maintains that he “does not have any other personal bank accounts and savings accounts and does not own any other properties besides residential housing, stocks, or businesses.” (Opp. at 11 (citing Park Decl. ¶ 14)). Finally, Defendants maintain that they produced the October 2020 documents in PDF format, “which is reasonably usable and how the documents were kept in the ordinary course of business.” (Opp. at 8; see also Park Decl. ¶ 3).

Federal Rule of Civil Procedure 34 requires production of responsive documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). “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).

*4 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:

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

At the same time, the court cannot order a party to produce documents that do not exist. A mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., Bethea v. Comcast, 218 F.R.D. 328, 329 (D. D.C. 2003) (requesting party's suspicion that responding party failed to produce responsive documents does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D. D.C. 2000) (a party's mere suspicion that its opponent must have documents that it claims not to have does not warrant granting a motion to compel). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (defendants' assertion that they are unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”); Ayala v. Tapia, 1991 WL 241873, at *2 (D. D.C. Nov. 1, 1991) (denying motion to compel where moving party could not identify documents that were withheld).

1. Documents Identified by Damon Lee in His Depositions

*5 At his depositions in October 2020, Damon Lee testified that certain documents exist, which Plaintiff asserts were not produced. For many of these categories of documents -- showing whether Plaintiff's money was actually transferred to the US, whether CGI ever received Plaintiff's money, and how Plaintiff's money was spent -- Defendants state that all relevant documents in Damon Lee's and CGI's possession, custody or control have been produced, and that no responsive documents have been withheld. (Opp. at 8-9). The Court cannot order a party to produce documents that do not exist. However, Damon Lee's admissions at least call into question whether the specific documents he identified and promised to look for actually exist and may have been inadvertently overlooked. (See MTC at 10 (citing Pollock Decl., Exh. 1)). Accordingly, counsel for Defendants is ORDERED to confer with his client and conduct a good faith search for any potentially responsive documents identified by Damon Lee in his deposition testimony, and to serve amended written responses within fourteen days of the date of this Order either confirming that all responsive documents have already been produced or stating that any responsive unproduced documents will be produced. The written responses must also indicate what steps counsel and his client took to search for responsive documents. Should any such documents exist, they must be produced concurrently with the amended written responses.

Defendants also assert that they are not obligated to produce CGI's accounting books because they were produced to Plaintiff in CGI's bankruptcy case and it would be “unduly burdensome” to produce them again in this action. (Opp. at 9). Defendants' contention is not persuasive. Because Defendants have already gathered CGI's accounting books, the books should be readily available and easy to produce in this action. Furthermore, the mere fact that Defendants produced CGI's accounting books in another action does not mean that they are available for use in this action, as there may be restrictions in the bankruptcy case on the dissemination and use of materials produced in that action. Additionally, Plaintiff is entitled to any additional accounting documents that may have been discovered since the production in the bankruptcy case. Accordingly, Plaintiff's Motion to Compel is GRANTED to the extent that it seeks production of CGI's accounting books. Defendants shall serve updated written responses and copies of the accounting books and any other relevant, responsive records that have not been previously produced within fourteen days of the date of this order.

Finally, Defendants state that they cannot produce documents showing the shareholders and investors of CGI because CGI's transactional lawyer is currently preparing CGI's restructuring. (Opp. at 9). This, too, is not persuasive because Plaintiff is entitled to any documents showing CGI's shareholders and investors prior to the current restructuring, should any such documents exist. Accordingly, Plaintiff's Motion to Compel is GRANTED to the extent that it seeks production of documents showing CGI's shareholders and investors from September 2016 to the present. Documents created before September 2016 must be produced to the extent that they reveal the identities of persons who were still CGI's shareholders and investors at any point from September 2016 forward. Defendants shall produce amended written responses within fourteen days of the date of this Order either confirming that no relevant documents exist or stating that any responsive unproduced documents will be produced. Should any such documents exist, they must be produced concurrently with the amended written responses.

2. Documents Supporting Defendants' Contentions

Plaintiff's vague objections that Defendants have failed to produce documents to “support their contentions” fail to provide evidence establishing that specific unproduced documents actually exist. Instead, Plaintiff states that “Damon Lee and CGI must have corporate records” to support particular assertions, (MTC at 13 (emphasis added)), and asserts that Damon Lee's purported “refusal” to disclose details about certain parts of his defense “is telling.” (Id. at 14). For example, with respect to Damon Lee's alleged instruction to Plaintiff to transfer funds to the Kang Shin Chul and Nonga accounts in Korea, Plaintiff states, “Since Damon Lee refuses to provide any of the requested discovery on this topic, the only conclusion that can be drawn is that such discovery would prove that the money went to Kang but was never moved to the U.S., never reached CGI, and was never used towards the CHLA project. Instead, Damon Lee used [Plaintiff's] investment money to pay off Kang,” to whom CGI owed a debt. (Id. at 14-15). However, Plaintiff's beliefs about documents that Damon Lee and CGI “must have,” or what the absence of documentary evidence to support Defendants' contentions may mean, are simply not a sufficient basis for this Court to order production of documents that Defendants contend do not exist or have already been produced. Accordingly, Plaintiff's Motion to Compel production of documents supporting Defendants' contentions is DENIED.

3. Documents Responsive to RFP Nos. 17, 18 and 37

*6 Plaintiff argues that Damon Lee and CGI “should be ordered to produce all documents responsive to RFP Nos. 17-18 and 37, including all franchise agreements to which they are a party in or out of the United States and all documents that relate to their current assets, including cash, real estate, and stock or ownership interests.” (MTC at 17) (footnote omitted). Plaintiff insists that Damon Lee is a party to Coffee Bean franchise agreements outside the United States, in addition to the domestic stores he admits to having, apparently based on his deposition testimony about conditions found in Coffee Bean franchise agreements:

(Pollock Decl., Exh. 12 at 129-130 (transcript of Damon Lee deposition transcript dated October 13, 2020) (emphasis added)). Furthermore, because this testimony concerned Coffee Bean's purported waiver of the $1.5 million basic investment requirement and the $5 million net worth requirement for the CHLA Coffee Bean store under construction, Plaintiff maintains that “there must be a franchise agreement for the CHLA store,” which Defendants did not produce. (Reply at 6).

Plaintiff also notes that Defendants' production of closed bank account statements from 2019 does not explain how Damon Lee made auto-payments on his credit cards between September to November 2020 to cover outstanding balances. (Id. at 7) (citing Dkt. No. 96-8 at 47-57). Accordingly, Plaintiff maintains that Damon Lee has “other, open bank accounts, and hidden away assets and financial resources, which he is using to cover his expenses” and which he did not disclose. (Id.).

Damon Lee, however, insists that he has produced all documents related to his personal financial condition, including the franchise agreements for five Coffee Bean stores, among other documents. (Opp. at 10). The Court notes that the deposition testimony highlighted by Plaintiff for the proposition that Damon Lee has an interest in Coffee Bean franchises outside of the United States appears more ambiguous that Plaintiff contends. In his deposition, Damon Lee acknowledged that he has five Coffee Bean stores, but states only that he “did a lot of work” for Coffee Bean in several countries outside of the United States -- he does not state that he has an ownership interest Coffee Bean franchises in those countries. However, the Court is troubled by Plaintiff's arguments regarding a franchise agreement for the CHLA Coffee Bean store and the source of funding for Damon Lee's credit card payments in 2020. Accordingly, counsel for Defendants is ORDERED to confer with his client and conduct a good faith search for any potentially responsive documents to RFP Nos. 17, 18 and 37, and to serve amended written responses within fourteen days of the date of this Order either confirming that all responsive documents have already been produced or stating that any responsive unproduced documents will be produced. The written responses must also indicate what steps counsel and his client took to search for responsive documents. Should any such documents exist, they must be produced concurrently with the amended written responses.

4. Production Format

*7 Plaintiff maintains that Defendants produced documents in October 2020 in 24-bit format without load files. (Pollock Decl. ¶ 35). Defendants state that they produced documents as PDFs, as they were kept in the ordinary course of business. (Park Decl. ¶ 3). Confusingly, in the proposed order submitted with the MTC, Plaintiff seeks an order requiring Defendants to:

(Proposed Order, Dkt. No. 82-51, at 3). The Court was simply unable to tell from the MTC and Opposition whether Defendants produced documents in a format acceptable to Plaintiff (i.e., PDF). However, Plaintiff clarified in her Reply that while Damon Lee's “initial productions comprised a few large PDF files that randomly aggregated individual documents,” in October 2020, he “reproduced these initial productions, and included several hundred pages of new documents[,] as *.tiff files ... without any load files,” which Plaintiff could not access. (Reply at 5)

Federal Rule of Civil Procedure 34(b)(2)(E) provides in relevant part that unless otherwise stipulated or ordered by the court,

Fed. R. Civ. P. 34(b)(2)(E).

Assuming the accuracy of Plaintiff's representations that the last-minute productions of documents in October 2020 were not provided in a usable format, such as PDFs, the Court finds that Defendants must re-produce them in a readable format.

Defendants state that they produced their electronic records as they were stored in the ordinary course of business, and conclude that by doing so, they have satisfied their obligations under Rule 34. However, the Rule does not permit Defendants to unilaterally make that choice. Instead, the Rule provides that “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34 34(b)(2)(E)(ii) (emphasis added). Here, Plaintiff's First Set of Requests for Production of Documents did specify the format in which Defendants' electronically-stored information was to be produced. (See Pollock Decl., Exh. 2 at 6 ¶ 7). If, for whatever reason, Defendants could not produce electronically stored information in the format demanded by Plaintiff, it was incumbent upon Defendants' counsel to notify Plaintiff's counsel of the problem and to come to an alternate arrangement. Defendants were not entitled simply to produce documents in whatever format they desired once a demand for a specific format was made in the production requests.

Accordingly, Plaintiff's Motion to Compel the re-production of documents bates labeled D_000001 to D_004072 is GRANTED, but only to the extent that Defendants have not in fact produced those documents as individual PDFs, which Plaintiff has indicated would be an acceptable alternate format. Defendants shall produce the October 2020 electronic documents as individual PDFs within fourteen days of the date of this Order. However, to the extent that Defendants have produced the documents bates labeled D_000001 to D_004072 as individual PDFs, the Motion to Compel their re-production is DENIED as MOOT.

B. 30(b)(6) Deposition Witness

*8 Plaintiff states that Damon Lee was woefully unprepared to testify as CGI's 30(b)(6) witness as he admitted that he did “virtually nothing” to prepare to testify on CGI's behalf. Plaintiff emphasizes that Damon Lee admitted that he did not review any documents and did not speak to any current or former CGI employees. (MTC 17). Furthermore, Plaintiff states that Damon Lee “was unable to answer basic questions any designee should have known about CGI, such as the book value, capitalization, reorganization status, and worth of CGI; whether the CGI bankruptcy was disclosed to CHLA; his role in the reorganized CGI; his current position at CGI, who are the directors of CGI; and whether his existing Coffee Bean franchises are profitable,” all of which topics were called for by the deposition notice. (Id. at 6). Plaintiff further states that she was “sandbagged” by Defendants' last minute productions on October 8 and 12, 2020 -- literally the days before the depositions of Damon Lee in his individual capacity and as CGI's corporate witness. (Id. at 18).

Defendants argue that all of the questions that Damon Lee was unable to answer “relate to CGI's bankruptcy and restructuring,” which is not expected to be complete until the end of January 2021. (Opp. at 11). Defendants further state that they “will produce documents related to the restructuring once finalized and believe that these documents will answer any questions that Damon Lee was unable to answer during his deposition.” (Id.). However, if the anticipated supplemental production does not adequately address Plaintiff's questions, Defendants state that “a supplemental 30(b)(6) deposition can be discussed at that point.” (Id.).

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:

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 and to “curb the ‘bandying’ by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of the facts that are clearly known to the organization and thereby to it.” Fed. R. Civ. P. 30(b)(6) (advisory committee's note).[5] 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). “Rule 30(b)(6) witnesses must be prepared and knowledgeable, but they need not be subjected to a ‘memory contest.’ ” Alexander v. F.B.I., 486 F.R.D. 137, 143 (D. D.C. 1998). While 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 ... that task becomes less realistic and increasingly impossible as the number and breadth of noticed subject areas expand.” Apple, Inc. v. Samsung Electronics Co., Ltd., 2012 WL 1511901 at *2 (N.D. Cal. Jan. 27, 2012) (internal quotation marks omitted); see also Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan. 2000) (“An overbroad Rule 30(b)(6) notice subjects the noticed party to an impossible task.”).

*9 Although Damon Lee may not have been able to fully answer questions about CGI's pending post-restructuring organization, he should have been able to answer some questions -- even if he needed to qualify his answers to reflect his purportedly limited knowledge -- about CGI's book value, capitalization, value, profitability, directors and his position within the company, as well as whether CGI's bankruptcy was disclosed to CHLA. A 30(b)(6) witness cannot reasonably be expected to testify about minutiae but must make a reasonable effort to educate himself about the noticed topics before the deposition. Furthermore, it was entirely improper of Defendants to ambush Plaintiff on the eve of the depositions with additional document productions, particularly after having previously represented that Defendants' productions were complete. Accordingly, Plaintiff's Motion to Compel is GRANTED to the extent that it seeks another 30(b)(6) deposition of CGI, to be taken within twenty-one days of the date of this Order at CGI's expense. However, the deposition shall not exceed four hours and shall be limited in scope to those questions that Damon Lee was unable to answer in the first 30(b)(6) deposition or that arise from the documents produced by Defendants in October 2020 or at any point thereafter. Defendants are responsible for paying for the court reporter and for providing one copy of the transcript to Plaintiff's counsel.[6]

C. Production of Witness Joseph Paek for Deposition

According to Plaintiff, Joseph Paek is identified in Damon Lee's Rule 26(a) initial disclosures as an “independent business development consultant” and a potential witness with discoverable information that Defendants may use at trial “concerning CGI and Mr. Damon Lee's efforts in opening a Coffee Bean store at CHLA, and the progress of this Project.” (Pollack Decl., Exh. 20 at 3). Plaintiff further notes that Joseph Paek appeared as Damon Lee's representative, along with Damon Lee's counsel, at a settlement meeting on December 3, 2019. (Id. ¶ 51; see also Reply at 8). Although Plaintiff has attempted to serve a subpoena (and amended subpoena) on Paek at the address provided by Damon Lee in his initial disclosures, Plaintiff's process server has informed Plaintiff's counsel that Paek is evading service. (See Pollack Decl., Declaration of Non-Service, Exh. 23).

Defendants' counsel represents that “Joseph Paek is not my client, and ... [h]e has not authorized my law firm to accept service o[f] any subpoena.” (Park Decl. ¶ 15). Counsel further asserts that the address for Paek in Damon Lee's initial disclosures “was/is the only known address by Defendant Lee and his counsel.” (Id. ¶ 16).

The initial disclosure of fact witnesses is governed by Federal Rule of Civil Procedure 26(a)(1)(A)(i), which requires each party to identify:

*10 Fed. R. Civ. P. 26(a)(1)(A)(i). “The purpose of Rule 26(a) is to allow the parties to adequately prepare their cases for trial and to avoid unfair surprise.” Russell v. Absolute Collection Services, Inc., 763 F.3d 385, 396 (4th Cir. 2014). “[T]he goal of the initial disclosure requirement is to ‘accelerate the exchange of basic information about the case and to eliminate paper work involved in requesting such information.’ ” United States ex rel. Hunt v. Merck-Medco Managed Care, LLC, 223 F.R.D. 330, 333 (E.D. Pa. 2004) (quoting Rule 26(a), 1993 advisory committee notes).

In particular, the disclosure of witness information under Rule 26(a)(1) serves “two primary purposes. First, it enables a party directly to interview or depose the witness or collect evidence from the witness to test his or her statements. And, second, it allows a party to develop its own evidence through available sources, such as its own employees, to rebut the witness's statements.” F.T.C. v. Sysco Corp., 308 F.R.D. 19, 22 (D. D.C. 2015); see also Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 263 F.R.D. 1, 5 (D. D.C. 2009) (purpose of Rule 26(a) disclosures is to “assist other parties in deciding which depositions will actually be needed”) (quoting Rule 26(a), 1993 advisory committee notes).

However, Rule 26(a)(1)(A)(i) requires the identification only of persons whom a party “may use” to support its claims or defenses, “not everyone with knowledge about the subject matter.” Chen-Oster v. Goldman, Sachs & Co., 114 F. Supp. 3d 110, 129 (S.D. N.Y. 2015) (“In a case such as this that concerns firm-wide structure and policies, every manager, and, indeed, every employee, is a potential witness; yet it would hardly further the purpose of the rule if counsel were to produce a roster of the entire firm as part of its initial disclosure.”); Harris v. Advance America Cash Advance Centers, Inc., 288 F.R.D. 170, 171 (S.D. Ohio 2012) (Rule 26(a)(1)(A)(i) requires disclosure only of those witnesses a party may use to support claims or defenses because the “distinct purpose” of the Rule is to “alert the opponent to the existence of a witness whose testimony may be helpful to the disclosing party”). The initial disclosure requirement should be applied “with common sense ... keeping in mind the salutary purposes that the rule is intended to accomplish.” Fitz, Inc. v. Ralph Wilson Plastics Co., 174 F.R.D. 587, 589 (D. N.J. 1997).

Defendants have identified third-party Joseph Paek as a witness with discoverable information and have provided Paek's address and telephone number in their initial disclosures. (Pollack Decl., Exh. 20 at 3). While it appears that Paek may be attempting to evade service, Defendants' counsel represents that he does not represent Paek and has not been authorized to accept service on his behalf. The Court cannot compel Defendants to produce Paek for his deposition, as they do not control him. Accordingly, Plaintiff's Motion to Compel Damon Lee to produce Joseph Paek for deposition is DENIED.

D. Requests for Admission (“RFA”)

Plaintiff contends that because Damon Lee and CGI failed to respond to her requests for admission, the requests should be deemed admitted. (MTC at 19). However, because Plaintiff did not timely serve the RFAs, Defendants were under no obligation to respond to them.

Pursuant to the Court's Scheduling Order, the non-expert discovery cut-off was October 26, 2020. (Dkt. No. 32 at 1). Judge Kronstadt's Standing Orders explain that the discovery cut-off date is “the final day for completion of nonexpert discovery ....” (Dkt. No. 10 at 39). Federal Rule of Civil Procedure 36 provides that a responding party has thirty days to serve responses to requests for admission. Fed. R. Civ. P. 36(1)(3).

*11 Accordingly, any requests for admission had to be served by September 26, 2020 in order to provide the responding party the full thirty-day window to serve responses before the close of discovery. However, Plaintiff did not serve RFAs on Damon Lee and CGI until October 16, 2020 -- a mere ten days before the discovery cut-off. See Pollack Decl., Exh. 15 (RFAs to DL); Exh. 16 (RFAs to CGI)). Because the thirty-day response deadline fell after the close of fact discovery, Defendants were under no obligation to respond to the RFAs. See, e.g., Bishop v. Potter, 2010 WL 2775332, at *1 (D. Nev. July 14, 2010) (defendants were not required to respond to RFAs served sixteen days before the discovery cut-off because “for discovery requests to be timely, the requesting party must serve them at least 30 days before the discovery cutoff in order to allow the other party sufficient time to respond”); Lee v. Ballesteros, 2015 WL 4872664, at *1 (E.D. Cal. Aug. 12, 2015) (“Given that the requests for admission were not served sufficiently in advance of the [discovery] deadline, they were untimely and Plaintiff was not obligated to serve a response.”); Wendell v. Johnson & Johnson, 2013 WL 1741704, at *5 (N.D. Cal. Apr. 22, 2013) (defendants not required to respond to RFAs served on the discovery cut-off because RFAs are discovery devices that must be served thirty days before the cut-off to be timely); Low v. Stanton, 2009 WL 55896, at *9 (E.D. Cal. Jan. 7, 2009) (denying motion to compel responses to requests for admission because the RFAs were not served sufficiently in advance of the discovery cut-off); Jones v. Wells Fargo Bank, N.A., 2015 WL 136141, at *1 (W.D. La. Jan. 9, 2015) (RFAs served nineteen days before discovery cut-off were untimely).

In the Reply, (Reply at 8), Plaintiff relies on Wyles v. Sussman, 445 F. Supp. 3d 751, 756 (C.D. Cal. 2020), for the proposition that even when requests for admission are untimely served, the receiving party must still “ ‘promptly object or move for a protective order’ based on the untimeliness of the requests.” Wyles, 445 F. Supp. 3d at 756 (quoting Hadley v. United States, 45 F.3d 1345, 1350 (9th Cir. 1995)). The Court notes that the Hadley court expressly acknowledged that an “argument may be made that [plaintiff] had no obligation to respond to the requests because they themselves were served late,” and that the government's “tardy service” of the RFAs was a “factor the district court to consider” in determining whether to deem the RFAs admitted against plaintiff. Id. These cases, however, are of no help to Plaintiff here because CGI and Damon Lee did serve objections to the RFAs on November 16, 2020, in which they correctly contended that Plaintiff's RFAs were untimely and required no response. (See Pollack Decl., Exh. 17 at 2). The Court is simply unable to understand the legal basis on which Plaintiff contends that a discovery cut-off is of no consequence when serving RFAs, particularly when the responding parties objected to service on timeliness grounds. Accordingly, Plaintiff's Motion to Compel admissions by Damon Lee and CGI is DENIED.

IV. DISCOVERY DEMANDED OF BUJA EQUITY

A. Requests for Production of Documents

Plaintiff contends that Buja Equity must be ordered to search for and produce documents without objection. (MTC at 20). According to Plaintiff, although Buja Equity has represented that it has no documents, this representation is “not credible” in light of Defendants' contention that Buja Equity is a “legitimate company.” (Id.). Plaintiff argues that “[t]he lack of such documents and records would call into question the credibility of Defendants' entire position and story in this case.” (Id.). Plaintiff further notes that “CGI failed to disclose Buja Equity [in bankruptcy proceedings], which means that either CGI lied to the Bankruptcy Court or Buja Equity is not a CGI entity and not the entity called for under the Investment Agreement.” (Id. at 21). Defendants merely state that Buja Equity has “produced all the documents in its possession, custody, or control at this time, and will produce any other documents it will have after the restructuring is completed at the end of January 2021.” (Opp. at 15).

Plaintiff may believe that Buja Equity “must have” documents that it is withholding, but it offers no evidence to support that belief and contradict Buja Equity's representation that it does not. The Court cannot compel the production of documents that do not exist. Furthermore, it is unclear to the Court why Defendants are unwilling to take Buja Equity's word at face value on this matter because, as Plaintiff argues, the lack of documents undermines Defendants' “entire position and story in this case.” (MTC at 20; see also Reply at 9). Accordingly, Plaintiff's Motion to Compel is DENIED to the extent that it seeks an order requiring Buja Equity to produce documents.

B. Failure to Produce Properly Prepared 30(b)(6) Witness

*12 Jeffrey Lee testified as Buja Equity's 30(b)(6) representative. Plaintiff states that he was unprepared, and he expressly testified that he did not do anything to prepare for his deposition apart from speaking to Defendants' counsel approximately 50 minutes before the deposition started. (MTC at 7) (citing Pollock Decl., Exh. 14). He did not review any potentially relevant materials or, perhaps more importantly in light of Buja Equity's apparent representation that no documents exist, speak to any employees or representatives of Buja Equity. (Id.). According to Plaintiff, Jeffrey Lee was unable to answer questions about:

(Id. at 7) (citing Pollock Decl., Exh. 14 (deposition of J. Lee)). All of these topics were noticed in the notice of deposition. (Pollock Decl., Exh. 11 at 10-13).

Defendants state that Jeffrey Lee was unable to answer questions about the restructuring of CGI because the restructuring is still ongoing. However, Defendants state that they will “produce all documents in their possession, custody or control related to Buja when those documents become available after the restructuring is completed.” (Opp. at 15). Defendants further maintain that if the documents to be produced do not adequately respond to any questions Plaintiff might have, “a supplemental Rule 30(b)(6) deposition to cover this document production can be discussed at that point.” (Id.).

It is clear that Jeffrey Lee was utterly unprepared to testify on Buja Equity's behalf. Whatever Buja Equity's relation is to CGI, CGI's restructuring simply has no bearing on whether Buja Equity has ever had board meetings, for example, or whether Damon Lee was ever the chairman of Buja Equity, or whether, at the time Buja Equity was formed, it was a “corporate affiliate in any way shape or form with CGI.” (Pollock Decl., Exh. 14 at 66, PDF page no. 19). Jeffrey Lee's constant assertions of “I do not recall” and apparent complete lack of preparation are suggestive of bad faith. Accordingly, Plaintiff's Motion to Compel a supplemental deposition of Buja Equity is GRANTED. Buja Equity shall be responsible for paying for a court reporter and shall provide one copy of the deposition transcript to Plaintiff. The deposition shall take place within twenty-one days of the date of this Order. It shall not exceed seven hours and shall be unlimited in scope.

V. REQUEST FOR RULE 37 SANCTIONS

Plaintiff seeks reimbursement of attorney's fees incurred in bringing this motion as sanctions under Federal Rule of Civil Procedure 37. (MTC at 22-23). Rule 37 provides in relevant part:

*13 Fed. R. Civ. P. 37(a)(5)(A). Conversely, if the discovery motion is denied, the court must require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses, including attorney's fees, incurred in opposing the motion. Id. 37(a)(5)(B). Finally, if the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Id. 37(a)(5)(B).

However, if the non-prevailing party can demonstrate “substantial justification” for its motion, nondisclosure, or opposition, Rule 37 provides that the court must deny sanctions. Fed. R. Civ. P. 37(a)(5)(A)(ii). “There is no bright line standard for ‘substantial justification,’ and courts must use discretion when deciding whether opposition to a motion to compel is substantially justified.” Brown v. State of Iowa, 152 F.R.D. 168, 173 (S.D. Iowa 1993). “[C]ourts have generally focused on ‘the quality of the justification and the genuineness of the dispute [and whether] an impartial observer would agree that a party had good reason to withhold discovery[ ]’ when determining whether opposition is substantially justified.” Id. (quoting Alvarez v. Wallace, 107 F.R.D. 658, 662 (W.D. Tex. 1985)).

The purpose of the rule is to “protect courts and opposing parties from delaying or harassing tactics during the discovery process.” Cunningham v. Hamilton Cnty., 527 U.S. 198, 208 (1999). The intent of the drafters of Rule 37, as revised, was to “encourage the awarding of expenses and fees wherever applicable.” Id. (internal quotation marks omitted); see also LM Ins. Corp. v. ACEO, Inc., 276 F.R.D. 592, 593 (N.D. Ill. 2011) (“Fee shifting when the judge must rule on discovery disputes encourages their voluntary resolution ....”).

Here, the Court has granted Plaintiff's Motion to Compel only in part and has found that several of Defendants' objections to the Motion are well taken. Accordingly, because both parties bear some responsibility for the instant dispute, the Court finds that sanctions are not warranted under Rule 37. Accordingly, Plaintiff's request for sanctions under Rule 37 is DENIED. However, as explained above, pursuant to the Court's inherent power to impose sanctions, Defendants must pay for the court reporter and provide Plaintiff with the transcript of each of the supplemental depositions of CGI and Buja Equity authorized by this Order.

VI. CONCLUSION

For the reasons stated above, Plaintiff's Motion to Compel and for Sanctions is GRANTED IN PART and DENIED IN PART. The Request for attorney's fees under Rule 37 is DENIED. However, Defendants shall pay for a court reporter and provide Plaintiff with one copy of the transcripts of the supplemental 30(b)(6) depositions of CGI and Buja Equity authorized by this Order.