Rojas v. Bosch Solar Energy Corp.
Rojas v. Bosch Solar Energy Corp.
2020 WL 8617414 (N.D. Cal. 2020)
August 28, 2020
Cousins, Nathanael M., United States Magistrate Judge
Summary
The court denied the Plaintiffs' request to compel documents in the possession of Bosch's counsel K&L Gates, as the Plaintiffs had not shown that Bosch had a legal right to obtain any documents in the possession of K&L Gates or had control over K&L Gates. The court also denied the Plaintiffs' request for sanctions against Bosch for failing to timely produce a privilege log, and ordered Bosch to produce a privilege log of withheld responsive documents by September 11, 2020. No fees or costs were awarded.
Additional Decisions
STEVE R. ROJAS and ANDREA ROJAS, Plaintiffs,
v.
BOSCH SOLAR ENERGY CORPORATION, Defendant
v.
BOSCH SOLAR ENERGY CORPORATION, Defendant
Case No. 18-cv-05841 BLF (NC)
United States District Court, N.D. California
Signed August 28, 2020
Counsel
David Michael Birka-White, Birka-White Law Offices, Steven Todd Knuppel, Law Offices of Steven T. Knuppel, Danville, CA, Charles E. Schaffer, Pro Hac Vice, David Charles Magagna, Jr., Pro Hac Vice, Levin Sedran and Berman LLP, Philadelphia, PA, John D. Green, Russell E. Taylor, Farella Braun + Martel LLP, San Francisco, CA, for Plaintiffs.Matthew Gordon Ball, K&L Gates LLP, San Francisco, CA, John William Edward Rotunno, Pro Hac Vice, Joseph C. Wylie, II, Pro Hac Vice, K and L Gates LLP, Chicago, IL, for Defendant.
Cousins, Nathanael M., United States Magistrate Judge
ORDER AFTER REHEARING ON PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS BY DEFENDANT BOSCH AND MOTION FOR SANCTIONS AGAINST BOSCH
*1 In this case plaintiffs Steve and Andrea Rojas sue defendant Bosch Solar Energy Corporation for breach of warranty and related claims arising out of alleged defects in solar panels manufactured and sold by Bosch. Plaintiffs own ground-mounted solar panels allegedly manufactured by Bosch. They seek to represent a class of solar panel customers. ECF 53 (Second Amended Complaint) ¶ 216. Before the Court is Plaintiffs' motion to compel document discovery and to sanction defendant Bosch. ECF 106.
I. PROCEDURAL HISTORY OF PLAINTIFFS' DISCOVERY MOTION
In their motion to compel at ECF 106, Plaintiffs sought to compel the production of certain documents by Bosch, to compel amended interrogatory responses, and requested sanctions from Bosch for the asserted non-production. ECF 106. The documents demanded by Plaintiffs were “all documents responsive to the First and Third Document Requests.” ECF 106 at 6:9; ECF 103 (separate statement of facts). In the First Document Request set, Plaintiffs propounded 25 individual requests; the Third Document Request set had 7 individual requests. ECF 103. Bosch separately filed its responses attached to ECF 107.
After hearings on June 3 and 17, 2020, I denied Plaintiffs' motion. ECF 121. Plaintiffs sought review of the June 17 order (ECF 128) and the trial judge, District Court Judge Beth Labson Freeman, granted in part. ECF 137. Judge Freeman referred the document requests and sanctions issues back to me so that I could articulate the reasons for my discovery ruling. Id. The parties then filed an update at ECF 141 and proposed orders at ECF 142 (Bosch) and 144 (Rojas). I held a further hearing on July 29. See ECF 152 (hearing transcript).
This order intends to resolve each of the disputed issues remanded by Judge Freeman in ECF 137. This order supersedes the June 17 decision as far it addressed the Plaintiffs' document requests and request for sanctions. In summary, this order addresses these issues: (1) the sufficiency of Plaintiffs' document requests, sets one and three; (2) Bosch's objections and responses; (3) whether Bosch must produce documents in the possession of affiliated entities Bosch Solar Services GmbH and Robert Bosch Tool Corporation; (4) whether Bosch waived the attorney-client privilege by failing to provide a privilege log; and (5) whether Bosch should be sanctioned under Fed. R. Civ. P. 37.
This order intentionally does not address: (1) the protocol for Bosch's retention and plaintiffs' inspection of solar panels, and Plaintiffs' second set of inspection requests, which were addressed in a separate set of orders (ECF 133, 150, 151); and (2) Bosch's interrogatory responses, which Plaintiffs did not challenge in their motion for review (see ECF 137 at 3:21–22).
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 34, a party may serve on another party a request to produce documents and other tangible things within the responding party's possession, custody, or control. Fed. R. Civ. P. 34(a)(1). The scope of the request is governed by Rule 26(b), which allows a party to obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 34(a)(1); Fed. R. Civ. P. 26(b)(1).
*2 Each request must describe “with reasonable particularity” the items or categories of items to be produced. Fed. R. Civ. P. 34(b)(1)(A). The party to whom the request is directed must respond in writing within 30 days after being served with the request. Fed. R. Civ. P. 34(b)(2)(A). The response, as to each item or category, must either state that inspection or production will be permitted or state with specificity the grounds for objecting to the request, including the reasons. Fed. R. Civ. P. 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.” Fed. R. Civ. P. 34(b)(2)(C).
If the responding party fails to respond or to produce the requested documents, the requesting party may move for an order compelling production. Fed. R. Civ. P. 37(a)(3)(B). For purposes of Rule 37(a), “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to produce the discovery in an effort to obtain the discovery without court action. Fed. R. Civ. P. 37(a)(1).
If the motion to compel is granted, or if the requested discovery is provided after the motion was filed, the Court must award payment of the movant's reasonable expenses and attorney's fees, unless certain exceptions apply under Fed. R. Civ. P. 37(a)(5)(A). If the motion to compel is denied, the Court may issue a protective order and must award payment of the respondent's reasonable expenses and attorney's fees, unless certain exceptions apply under Fed. R. Civ. P. 37(a)(5)(B).
III. ANALYSIS
A. Plaintiffs' Document Requests
The Court begins with a review of the disputed document requests. In the First Set, Plaintiffs agreed to amend Nos. 21 and 22, leaving 23 requests for Court review. ECF 103 at 30. In the Third Set, Plaintiffs agreed to refine Nos. 5 and 6, leaving 5 requests for Court review. ECF 103 at 39.
Of the 28 total document requests presented by Plaintiffs, almost all of them fail to describe with “reasonable particularity” the item or category of items to be inspected as required by Fed. R. Civ. P. 34(b)(1)(A). With the exception of Set One Nos. 3 and 4, each request by the Plaintiffs includes a defining subject matter phrase asking for documents “RELATED TO” or “RELATING TO” something. For example, Set One Request No. 1 seeks “ALL DOCUMENTS RELATED TO BOSCH's quality control procedures for the assembly or manufacture of the SOLAR PANELS.” ECF 103 at 3. Set One Request No. 9 seeks “ALL DOCUMENTS RELATING TO COMMUNICATIONS between YOU and ANY PLAINTIFF or ANY PERSON acting or purporting to act on behalf of ANY PLAINTIFF.” ECF 103 at 13. And Set Three Request No. 1 seeks “ALL COMMUNICATIONS between YOU and KILOWATT RELATING TO the SOLAR PANELS.” ECF 103 at 33.
This order finds that these sweeping “all documents” and “all communications” relating to a variety of topics do not describe with “reasonable particularity” what categories of documents Bosch should be producing. Fed. R. Civ. P. 34(b)(1)(A); Koeper v. BMW of N. Am. LLC, 2018 WL 6016915, at *2 (C.D. Cal. May 21, 2018). A secondary consequence of these vague requests is that Plaintiffs have not shown that the requested documents are proportional to the needs of the case under Fed. R. Civ. P. 26(b)(1).
Accordingly, the Court DENIES Plaintiffs' motion to compel as to Set One, Nos. 1, 2, and 7–25, and Set Three Nos. 1–4 and 7. The denial is without prejudice to Plaintiffs serving amended document requests that comply with Rules 26 and 34. On the other hand, the Court finds that Set One, Requests Nos. 3 and 4 are reasonably particular, relevant, and proportional to the needs of the case. The Court GRANTS the motion to compel as to those requests.
B. Bosch's Responses and Objections to Document Requests
*3 Next, the Court considers Bosch's responses and objections to document request Sets One and Three. See ECF 103. The Court looks through the legal lens of Fed. R. Civ. P. 34(b)(2).
One particular type of response and objection asserted by Bosch merits attention. In its response to some of the document requests, Bosch asserted objections but then stated that “Subject to and without waiving the foregoing General and Specific Objections” Bosch would conduct a “reasonable search” and produce specified categories of documents. See, e.g., Response to Set One No. 6, ECF 103 at 5–6. Rule 34(b)(2)(C) requires that “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.” Fed. R. Civ. P. 34(b)(2)(C). Here, the Court finds that Bosch substantially complied with this rule. Its response identified where it was withholding documents and reasonably defined which categories would be produced. Generally, the Court finds that Bosch complied with Rule 34(b)(2).
As to Set One, requests Nos. 3 and 4 specifically (the only requests that the Court finds were described by Plaintiffs with reasonable particularity), Bosch agreed to produce “non-privileged versions or drafts of the warranty document attached as Exhibit A to the SAC after the entry of a mutually agreed-upon confidentiality order.” ECF 103 at 6, 7. The Court approved a stipulated protective order on October 2, 2019, at ECF 68. So as to those two requests, Bosch must produce all non-privileged responsive documents in its possession, custody or control by September 11, 2020. The Court will consider next the parameters of documents in Bosch's “possession, custody or control.”
C. The Scope of Documents in Bosch's “Possession, Custody, or Control”
The defendant Bosch Solar Energy Corporation (“Bosch”) does not dispute that it must produce responsive non-privileged documents in its “possession, custody, or control” under Rule 34. The central dispute is whether defendant Bosch must produce documents possessed by non-party entities Robert Bosch Tool Corporation (a Delaware corporation, “Bosch Tool”) and Bosch Solar Services GmbH (a German entity, “Bosch GmbH”). Defendant Bosch states that it does not own or control either of these entities and that the entities do not own or control it. ECF 107 at 20.
As a threshold issue, Bosch's counsel indicated that they offered to accept a Rule 45 document subpoena from Plaintiffs to Bosch Tool (ECF 152 at 12:11-15) and to produce responsive documents. But instead of accepting this practical suggestion that would have allowed the discovery to move ahead, Plaintiffs' counsel opted to pursue this motion to compel against Bosch. ECF 152 at 13–14.
Plaintiffs' theory is that Bosch Tool and Bosch GmbH are agents of defendant Bosch, so they should be compelled to produce responsive documents. ECF 152 at 5–7. Plaintiffs urge the Court to follow the reasoning of the court in St. Jude Medical S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 638 (D. Ore. 2015). There, the Oregon district court found that “control” under Rule 34 “may be established by the existence of a principal-agent relationship.” 305 F.R.D. at 308. That court in a fact-specific analysis found that European affiliates of a U.S. subpoena recipient were deemed to have documents in the “control” of the subpoena recipient. Id. at 308–09.
*4 Defendant Bosch responds that it does not control Bosch Tool and Bosch GmbH as there is no legal mechanism by which it can require Bosch Tool and Bosch GmbH to provide documents to Bosch. ECF 107 at 21. Bosch urges the Court to follow In re Citric Acid Litigation, 191 F.3d 1090, 1107–08 (9th Cir. 1999). In that case, the Ninth Circuit considered whether the trial court erred in denying a motion to compel documents possessed by a Swiss affiliate to a U.S. partnership. The Ninth Circuit affirmed the trial court and confirmed that the “legal control” test is the proper one. 191 F.3d at 1107. “Control is defined as the legal right to obtain documents upon demand.” Id.
A recent decision of this Court by Chief Magistrate Judge Joseph C. Spero declined an invitation to read St. Jude to stand for the proposition that control may be based on the “close nature” in a corporate relationship. M.G. v. Bodum USA, Inc., 2020 WL 1667410, at *3 (N.D. Cal. Apr. 3, 2020). This order agrees with Bodum. The agency argument advanced by Plaintiffs in this case does not square with the “legal control” test set forth in Citric Acid. Plaintiffs have not shown that Bosch has a legal right to obtain the requested documents from Bosch Tool or Bosch GmbH. Consequently, Plaintiffs' request to compel document production from Bosch Tool and Bosch GmbH is denied.[1]
A second dispute is whether documents in the possession of defendant Bosch's outside legal counsel K&L Gates are necessarily within the control of client Bosch for purposes of Rule 34. Plaintiffs' reply brief (ECF 110 at 12) and proposed order (ECF 144 at 6) misleadingly quote an earlier decision of this court, Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., No. 16-cv-00647 EJD (VKD), 2019 WL 428782, at *2 (N.D. Cal. 2019). In that case Magistrate Judge Virginia DeMarchi wrote that “A party's documents that happen to be in the possession of a party's counsel are generally considered within that party's possession, custody, or control for purposes of discovery from a party.” 2019 WL 428782, at *2 (citing Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013)). But Plaintiffs here deleted the “A party's” from their citation to the Optronic case, making it appear that her order would apply to documents of a non-party possessed by counsel. See ECF 110 at 12; ECF 144 at 6.
“A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). Here, the Plaintiffs have not shown that Bosch has a “legal right” to obtain any documents in the possession of K&L Gates or has “control” over K&L Gates for purposes of Rule 34. Plaintiffs' request to compel documents in the possession of Bosch's counsel K&L Gates is therefore denied.
D. Bosch's Failure to Produce a Privilege Log
Next, Plaintiffs ask the Court to find that Bosch has waived its privilege objections by failing to timely produce a privilege log. ECF 106 at 22–24. Fed. R. Civ. P. 26(b)(5) sets forth the rules for asserting a privilege claim. In Burlington N. & Santa Fe Ry. Co. v. U.S. District Court, 408 F.3d 1141, 1148–49 (9th Cir. 2005), the Ninth Circuit set forth a framework for assessing privilege waiver:
*5 “... a district court should make a case-by-case determination, taking into account the following factors: the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard. These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” 408 F.3d at 1148–49.
Applied here in a “holistic reasonableness analysis,” I find that Bosch has not waived privilege by failing to produce a privilege log. Burlington, 408 F.3d at 1148–49. As discussed above, the document requests from Plaintiffs were almost all deficiently defined under Rule 34, the magnitude was vast, Plaintiffs pursued documents from non-party entities Bosch Tool and Bosch GmbH, the Covid pandemic slowed down all litigation activity, and this order finds that Plaintiffs' counsel refused to take yes for an answer and to agree to reasonable compromises that would have advanced the discovery process. Furthermore, at the July 29 hearing Bosch agreed to provide a log within 14 days. Accordingly, unless it has done so already, Bosch is ordered to produce a privilege log of withheld responsive documents by September 11, 2020. The motion for waiver is denied.
E. Plaintiffs' Motion for Sanctions
Finally, Plaintiffs seek discovery sanctions of $149,214.50 for Bosch's alleged “persistent bad faith,” “tactical evasion,” and “disingenuous assertion of absence of control.” ECF 106 at 21, 16, and 19 (motion); ECF 144 at 7 (proposed order).
The request for sanctions is denied. First, on the merits, the Court has denied most of the relief requested by Plaintiffs and has sustained Bosch's objections. Second, the Court finds that Bosch's responses and objections were “substantially justified” under Fed. R. Civ. P. 37(a)(5)(A)(ii). Third, upon review of the complete record, the Court is not persuaded that Bosch and its counsel have engaged in bad faith or asserted disingenuous assertions of absence of control. Finally, given that Plaintiffs' counsel declined to serve a Rule 45 subpoena on Bosch Tool that would have advanced discovery, the Court finds that “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(iii).
IV. CONCLUSION
Plaintiffs' motion to compel is therefore GRANTED in part and DENIED in part.
• As to document request Set One, Requests Nos. 3 and 4, Bosch must produce all non-privileged responsive documents in its possession, custody or control by September 11, 2020. The remainder of the motion to compel documents is denied.
• Bosch must produce a privilege log by September 11.
• The motion to compel production of documents by Bosch Tool and Bosch GmbH is denied.
• The motion for sanctions is denied.
• No fees or costs are awarded.
• The Court will separately address the solar panel retention and inspection protocol. ECF 150.
IT IS SO ORDERED.