RG Abrams Ins. v. Law Offices of C.R. Abrams
RG Abrams Ins. v. Law Offices of C.R. Abrams
2021 WL 4805315 (C.D. Cal. 2021)
August 10, 2021
Audero, Maria A., United States Magistrate Judge
Summary
The court found that ESI was relevant to the case and ordered Defendants to supplement their responses to RFPs 101 through 111 and produce all nonprivileged responsive documents, as well as serve a privilege log identifying any documents withheld pursuant to privilege. The court also gave due weight to information contained in the Real Rate Report, a publication that provides data-driven benchmarking for attorney hourly rates, in its decision.
Additional Decisions
RG ABRAMS INSURANCE, and ROBIN GOLTSMAN Plaintiffs,
v.
THE LAW OFFICES OF C.R. ABRAMS et al. Defendants.
AND RELATED CROSS-ACTIONS
v.
THE LAW OFFICES OF C.R. ABRAMS et al. Defendants.
AND RELATED CROSS-ACTIONS
Case No. 2:21-cv-00194-FLA-MAAx
United States District Court, C.D. California
Filed August 10, 2021
Counsel
Alden J. Parker, Fisher and Phillips LLP, Sacramento, CA, Drew M. Tate, Fisher and Phillips LLP, Los Angeles, CA, Michael A. Slater, Patricia L. Peden, Burke Williams and Sorensen LLP, Oakland, CA, for Plaintiffs RG Abrams Insurance, Robin Goltsman.Timothy J. Donahue, Law Offices of Timothy Donahue, Orange, CA, for Christopher R. Abrams, Rinelli Law Group, Sarah Rinelli, Jack R. Mills, Robin Armstrong, Cynthia Wooten, The Law Offices of C.R. Abrams, P.C.
Audero, Maria A., United States Magistrate Judge
AMENDED ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DEFENDANTS TO SUPPLEMENT THEIR DISCOVERY RESPONSES (ECF NO. 123)
I. INTRODUCTION
*1 Before the Court is Plaintiff Robin Goltsman's Motion to Compel Defendants' Supplemental/Further Supplemental Reponses to Plaintiff Robin Goltsman's Request for Production of Documents, Set Two (“Motion”). (ECF No. 123.) The Motion was filed jointly by Plaintiff Robin Goltsman (“Plaintiff”) and Defendants Christopher R. Abrams (“Defendant Abrams”), Sarah Rinelli, Jack R. Mills, Cynthia Wooten, and Robin Armstrong (collectively, “Defendants”), in the form of a Joint Stipulation as required by Central District of California Local Civil Rule [1] 37-2. C.D. Cal. L.R. 37-2. Through the Motion, Plaintiff seeks an order compelling Defendants to further supplement their responses to Plaintiff's requests for production of documents (“RFP”) Nos. 101 through 111, and to supplement their responses to Plaintiff's RFP Nos. 112 through 117. (Mot. 4[2].) Plaintiff also seeks $4,020.00 as her reasonable expenses for bringing the Motion. (Id. at 21–23.)
In support of her position in the Motion, Plaintiff filed the Declaration of Michael A. Slater (“Slater Declaration”) (Slater Decl., ECF No. 123-1), and its accompanying Exhibits A through G (Pl.'s Exs. A–G, ECF Nos. 123-2–123-8). In support of their position in the Motion, Defendants filed the Declaration of Timothy Donahue (“Donahue Declaration”) (Donahue Decl., ECF No. 123-9), and its accompanying Exhibits 1 through 5 (Defs.' Exs. 1–5, ECF Nos. 123-10–123-14).
Having read and considered the papers presented by the parties, the Court finds the Motion suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. Accordingly, the hearing set for July 6, 2021 is hereby VACATED and taken off calendar. For the reasons set forth below, Plaintiff's Motion is GRANTED in part and DENIED in part.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Allegations
This case is proceeding on the basis of Plaintiff's Complaint, filed February 20, 2020 in the United States District Court for the Northern District of California (“Complaint”). (Compl., ECF No. 1.) The case was transferred to the United States District Court for the Central District of California on January 12, 2021. (See id; see also ECF Nos. 71–73.) The allegations of the Complaint are presented in great detail in the December 28, 2020 Order of Magistrate Judge Robert M. Illman (ECF No. 70) and, because of their length, need not be repeated here. For purposes of this Motion, the Court summarizes the allegations as follows:[3] Plaintiff employed the Defendants in her trust and estates business around the year 2000. (Complaint 6–7.) In or around 2010, Plaintiff and Defendant Abrams restructured the business into two separate companies—RG Abrams Insurance and the CR Abrams Law Firm. (Id. at 7.) In 2016, Plaintiff and Defendant Abrams again restructured the business which, by 2019, proved to be a less than harmonious arrangement. (Id. at 8–9.) Plaintiff, along with two of the Defendants, started a separate business of pre-paid legal services without Defendant Abrams. (Id. at 9.) While Plaintiff was out of town in December 2019, Defendant Abrams and the two Defendants whom Plaintiff believed were working for her, took Plaintiff's client database, her marketing software, and her computer in order to start their own business. (Id. at 10.) On this basis, Plaintiff brings claims of violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030(g)), and a number of related state law claims. (Id. at 1, 11–20.)
B. The Discovery Dispute
*2 On March 2, 2021, Plaintiff served upon all of the Defendants an identical set of requests for production of documents. (Mot. 4.) The requests at issue in this Motion are RFP Nos. 101 through 117. (Id.) RFP Nos. 101 through 111 are detailed below. The Motion does not provide the language of RFP Nos. 112 through 117 and, scour as the Court did through the accompanying declarations and their exhibits to find RFP Nos. 112 through 117, it was unable to find them. (See generally Mot.; Slater Decl.; Donahue Decl.; Pl.'s Exs. A–G; Defs.' Exs. 1–5.)
Request No. 101: Please produce YOUR COMMUNICATIONS with PLAINTIFF from 2016 to 2018 in which YOU and PLAINTIFF discuss YOUR compensation in connection with BUSINESS ACTIVITIES.
Request No. 102: Please produce YOUR COMMUNICATIONS with PLAINTIFF from 2018 to the present in which YOU and PLAINTIFF discuss YOUR compensation in connection with BUSINESS ACTIVITIES.
Request No. 103: Please produce YOUR COMMUNICATIONS with DEFENDANTS from 2016 to 2018 in which YOU and DEFENDANTS discuss YOUR compensation in connection with BUSINESS ACTIVITIES.
Request No. 104: Please produce YOUR COMMUNICATIONS with DEFENDANTS from 2018 to the present in which YOU and DEFENDANTS discuss YOUR compensation in connection with BUSINESS ACTIVITIES.
Request No. 105: Please produce YOUR COMMUNICATIONS with PLAINTIFF from 2016 to 2018 in which YOU and PLAINTIFF discuss PLAINTIFF's compensation in connection with BUSINESS ACTIVITIES.
Request No. 106: Please produce YOUR COMMUNICATIONS with PLAINTIFF from 2018 to the present in which YOU and PLAINTIFF discuss PLAINTIFF's compensation in connection with BUSINESS ACTIVITIES.
Request No. 107: Please produce YOUR COMMUNICATIONS with DEFENDANTS from 2016 to 2018 in which YOU and DEFENDANTS discuss PLAINTIFF's compensation in connection with BUSINESS ACTIVITIES.
Request No. 108: Please produce YOUR COMMUNICATIONS with DEFENDANTS from 2018 to the present in which YOU and DEFENDANTS discuss PLAINTIFF's compensation in connection with BUSINESS ACTIVITIES.
Request No. 109: Please produce YOUR text messages with DEFENDANTS from November 1, 2019, through November 30, 2019.
Request No. 110: Please produce YOUR text messages with DEFENDANTS from December 1, 2019, through December 31, 2019.
Request No. 111: Please produce the client database alleged in the Complaint to have been taken from PLAINTIFF by DEFENDANTS without PLAINTIFF's consent.
(Mot. 7–8.)
On April 1, 2021, each of the Defendants served responses, which Plaintiff contends were identical. (Id. at 4.) Following extensive meet and confer efforts, each Defendant served identical supplemental responses to RFP Nos. 101 through 111, but not to RFP Nos. 112 through 117. (Id.) Again, the Motion fails to provide Defendants' original objections to RFP Nos. 112 through 117 and the Court was unable to find them in the accompanying declarations and exhibits. (See generally Mot.; Slater Decl.; Donahue Decl.; Pl.'s Exs. A–G; Defs.' Exs. 1–5.)
Plaintiff now seeks to compel a further supplemental response and production of documents to RFP Nos. 101 through 111 and a supplemental response and production of documents to RFP Nos. 112 through 117. (Mot. 4.) In addition, Plaintiff seeks an award of the reasonable expenses she incurred in bringing the Motion, specifically attorneys' fees in the amount of $4,020.00. (Id. at 21–23.)
III. ANALYSIS
A. Legal Standard
Federal Rule of Civil Procedure [4] 26(b)(1) governs the scope of discovery in federal cases and provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1). Rule 401 of the Federal Rules of Evidence provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. But relevance alone does not justify discovery. As a general matter, Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information,” even if that information is not ultimately admitted at trial. Comcast of L.A., Inc. v. Top End Int'l, Inc., No. CV 03-2213-JFW(RCx), 2003 U.S. Dist. LEXIS 18640, at *6 (C.D. Cal. July 2, 2003).
*3 In addition to relevance, Rule 26(b)(1) requires that the discovery be proportional to the needs of the case. Fed. R. Civ. 26(b)(1). Proportionality is determined by a consideration of the following factors: “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.” Id. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.
Further, the court “must limit the frequency or extent of discovery” pursuant to Rule 26(b)(2) if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
Rule 34 governs requests for production of documents. It allows a party to serve on any other party “a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... items in the responding party's possession, custody, or control[,]” including, inter alia, documents and electronically stored information. Fed. R. Civ. P. 34(a). The responding party must serve its answers and any objections to requests for production of documents within thirty days after being served with the requests, unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 34(b)(2). The grounds for an objection must be stated with specificity. Fed. R. Civ. P. 34(b)(2)(B). The responding party must state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 34(b)(2)(C).
A requesting party that is dissatisfied with discovery responses made under the federal rules may move to compel further responses pursuant to Rule 37(a). Fed. R. Civ. P. 37(a). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance.” Nguyen v. Lotus by Johnny Dung Inc., 8:17-cv-01317-JVS-JDE, 2019 U.S. Dist. LEXIS 122787, at *5 (C.D. Cal. June 5, 2019). “The party who resists discovery has the burden to show discovery should not be allowed,” as well as “the burden of clarifying, explaining, and supporting its objections.” Comcast, 2003 U.S. Dist. LEXIS 18640, at *6 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).
B. The Court Denies Plaintiff's Motion Regarding RFP Nos. 112 through 117 Without Prejudice.
Although Plaintiff seeks an order compelling Defendants to provide supplemental responses to RFP Nos. 112 through 117, she provides no information regarding those requests. The Court does not have before it the language of RFP Nos. 112 through 117 or Defendants' responses thereto.
Local Rule 7-6 provides as follows:
Evidence on Motions. Factual contentions involved in any motion and opposition to motions shall be presented, heard, and determined upon declarations and other written evidence (including documents, photographs, deposition excerpts, etc.) alone, except that the Court may, in its discretion, require or allow oral examination of any declarant or any other witness.
C.D. Cal. L.R. 7-6.
In the absence of the factual predicate necessary for the Court to analyze the parties' arguments regarding RFP Nos. 112 through 117, the Court declines to compel Defendants to supplement their responses thereto. The Court therefore DENIES without prejudice Plaintiff's request for an order compelling supplemental responses to RFP Nos. 112 through 117.
C. The Court OVERRULES the General Objections Defendants Assert in the Motion.
*4 Beyond the objections asserted in Defendants' supplemental responses to RFP Nos. 101 through 111, discussed below, Defendants raise additional objections in the Motion. However, those objections are not asserted as to any specific request, and instead appear to be general objections applicable to all requests. The Court rules on Defendants' general objections first and then turns to Defendants' specific objections asserted in their supplemental responses to RFP Nos. 101 through 111.
As a threshold matter, general objections are prohibited. See Bretana v. Int'l Collection Corp., No. C07-05934 JF (HRL), 2008 U.S. Dist. LEXIS 79334, at *3–4, (N.D. Cal. Sept. 22, 2008) (“Answers to discovery (and any grounds for objection) must be stated with specificity as to each request.... Defendants' blanket objections are inadequate.” (citing Rule 34(b)(2))); see also C.D. Cal. L.R. 34-2 (“Responses and Objections. The party responding or objecting to requests for production shall quote each request for production in full immediately preceding the statement of any response or objection thereto.”) On this basis alone, Defendants' general objections, asserted in the Motion only, are OVERRULED. In addition, Defendants' general objections are OVERRULED for the independent reasons stated below.
1. The Court Overrules Defendants' General Harassment/Abuse of Legal Process Objection.
Defendants generally object that Plaintiff's discovery constitutes “harassment and an abuse of the legal process” because there is a pending motion to dismiss for lack of jurisdiction and discovery should not proceed until that motion is resolved (“Harassment/Abuse of Legal Process Objection”). (Mot. 6–7.) Defendants are correct that a motion to dismiss for lack of jurisdiction currently is pending before the Court and is set for hearing on July 2, 2021 (“Motion to Dismiss”). (Mot. to Dismiss, ECF No. 119.) However, the Court finds this objection to be nothing more than a disguised request to stay discovery pending resolution of a motion. But nothing in Judge Aenlle-Rocha's Initial Standing Order issued February 18, 2021 (ECF No. 81) or his order modifying the Scheduling Order issued on April 23, 2021 (ECF No. 107) provides for a stay of discovery pending resolution of undecided motions. To the contrary, Judge Aenlle-Rocha's Initial Standing Order provides that the parties should propound discovery before the Scheduling Conference “[u]nless there is a likelihood that, upon motion by a party, the court would order that the discovery be stayed.” (ECF No. 81 at 4 (emphasis added).) Here, Defendants have filed no such motion and, to the extent they seek that their opposition to the Motion be construed as such a request, the Court DENIES the request because a stay of discovery must be requested of Judge Aenlle-Rocha, not Judge Audero. (Id.) Moreover, the discovery requests at issue were served on March 2, 2021 (Mot. 6), almost three months before Defendants filed the Motion to Dismiss. In any event, that a party may believe that the other party's lawsuit and discovery constitute harassment is not a proper basis upon which to refuse to respond to discovery. See Fed. R. Civ. P. 26(b). Accordingly, Defendants' Harassment/Abuse of Legal Process Objection is OVERRULED.
2. The Court Overrules Defendants' General Loose Language Objection.
Next, Defendants generally object that Plaintiff's requests are worded in a such a “loose, disjunctive, vague and extremely overbroad” manner as to justify Defendants' responses (“Loose Language Objection”). (Mot. 7.) They explain that, pursuant to this Court's order, Defendant Abrams sat for a one-hour deposition so that Plaintiff could “fix and focus [the] loose verbiage” of their discovery requests. (Id.) However, Defendants misstate the purpose of this Court's deposition order. The Court ordered Defendant Abrams to sit for a one-hour deposition not to “fix loose language” as Defendants contend, but rather so that Plaintiff could gather information in support of her request to forensically examine Defendant Abrams's electronic devices. (ECF Nos. 95, 103.) In any event, Defendants fail to identify the “loose, disjunctive, vague and extremely overbroad” discovery language to which they object. (See generally Mot.) Moreover, as detailed below, the Court finds that RFP Nos. 101 through 111 are sufficiently precise to warrant further responses. Accordingly, Defendants' Loose Language Objection is OVERRULED.
3. The Court Overrules Defendants' General Redundancy and Proportionality Objection.
*5 Defendants generally object that, because Plaintiff has inspected and audited Defendant Abrams's computers but has not yet produced any findings, Plaintiff's “questions are redundant and abusive and unnecessary and do not meet proportionality requirements [of] Rule 26(b)” (“Redundancy and Proportionality Objection”). (Mot. 7.) However, this objection misses the mark. While it is correct that Defendant Abrams's computers have been ordered to be forensically inspected, and while it is possible that some of the information sought in RFP Nos. 101 through 111 might be, or has been, found through that inspection, that does not categorically mean that the Defendants other than Defendant Abrams do not have documents responsive to these requests in their own personal devices or files, or otherwise within their possession, custody or control. See Fed. R. Civ. P. 34(a)(1). Nor does it categorically mean that Defendant Abrams, whose devices were ordered inspected, is relieved of his obligation to produce responsive documents not contained within those devices, but still within his possession, custody or control. See id. Moreover, Defendants provide no authority for their apparent proposition that an ongoing inspection of electronic devices somehow obviates or otherwise stays Defendants' obligations to respond to Plaintiff's other discovery requests. (See generally Mot.) With respect to Defendants' proportionality concerns, the Court notes that, other than uttering the word “proportional” and pointing to Rule 26(b)(1) (see generally Mot.), Defendants fail to meet their burden of specifying how the discovery sought through RFP Nos. 101 through 111 is disproportional to the needs of the case. See Comcast, 2003 U.S. Dist. LEXIS 18640, at *6 ((citing Blankenship, 519 F.2d at 429). On this basis, Defendants' Redundancy and Proportionality Objection is OVERRULED.
4. The Court Overrules Defendants' General Good Cause Objection.
Defendants generally object that “[P]laintiff has not shown and cannot show good cause to justify the motion” (“Good Cause Objection”). (Mot. 7.) However, “good cause” is not required to bring a motion to compel discovery. Rule 37(a) provides as follows:
(1) In general. On notice to other parties and all affected persons, a party may move for an order compelling ... discovery. 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 make ... discovery in an effort to obtain it without court action.
* * *
* * *
(B) To Compel a Discovery Response. A party seeking discovery may move for an order compelling ... production, or inspection. This motion may be made if:
* * *
(iv) a party fails to produce documents or fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.
Fed. R. Civ. P. 37(a).
Thus, to bring a motion to compel, Plaintiff need only satisfy the requirements that it has served discovery requests and that Defendants have failed to respond adequately and produce documents or allow inspection in response thereto. Id. This, Plaintiff has done: Plaintiff served her document requests on each Defendant on March 2, 2021 (Mot. 4), and Defendants, asserting only objections, have not permitted this discovery or inspection (id. at 4–6.) Defendant does not dispute these facts. (See generally Mot.) On this basis, Plaintiff has established the proper basis upon which to bring a motion to compel. Accordingly, Defendants' Good Cause Objection is OVERRULED.
5. The Court Overrules Defendants' General Vindictiveness Objection.
Finally, Defendants generally object to the discovery on the ground that, based upon Plaintiff's deposition testimony, “it is clear[ ] that she is a vindictive, disgruntled, scorch and burn litigant with revenge on her mind”—which Defendants contend “is an important fact,” presumably for this Motion (“Vindictiveness Objection”). (Mot. 7.) Defendants submit excerpts of Plaintiff's deposition transcript—specifically pages 39–42, 50–52, 68–69, 97, 168–170, 173, 288–289, 292–293. (Defs.' Ex. 5, ECF No. 123-14, at 2–19.) The Court's review of these excerpts reveals that they do not support Defendants' characterization of Plaintiff as vindictive. These excerpts generally describe the business relationship Plaintiff had with Defendants; Plaintiff's belief that Defendants, as her former employees whom she believes she took good care of financially, took her marketing materials without her permission; that Defendants used what they took from Plaintiff with non-substantive changes; that Plaintiff was devastated, betrayed, and insulted; that Plaintiff did not photograph her office when she first returned to it after her property was taken; that Defendants left one computer, which Plaintiff gave to her grandson; that Plaintiff did not report this theft to the police, the postal service, or her insurance; that Plaintiff offered Defendants $300,000 to get her database back; that she believes Defendants are “unscrupulous” “liars and thieves” who are failing in the business at this time; and that Defendants will have to live with themselves for what they did to Plaintiff. (Id.) Even if these excerpts evidenced vindictiveness—which they do not—Defendants offer no authority for their apparent proposition that they are excused from responding to the discovery of a vindictive party (see generally Mot.), and the Court is aware of none. Accordingly, Defendants' Vindictiveness Objection is OVERRULED.
D. The Court OVERRULES the Specific Objections Defendants Assert in Their Supplemental Responses to RFP Nos. 101 Through 111.
*6 Defendants assert a number of objections to RFP Nos. 101 through 111.[5] Notably absent from Defendants' supplemental responses is a relevancy objection as to any of these requests. (See Mot. 8, 13.) Accordingly, the Court accepts Defendants' concession of relevancy and does not analyze whether this Rule 26(b)(1) requirement is met as to RFP Nos. 101 through 111. With respect to Defendants' other objections, the Court notes that it is not always clear where one objection ends and another begins. Still, the Court follows the parties' categorization as detailed in the Motion and addresses each objection in turn.
1. The Court Overrules Defendants' Vagueness Objection to RFP Nos. 101 through 111.
Defendants assert the following vagueness objection:
Responding party objects on the grounds that this request lacks specificity, as to the subject matter being requested, and is vague, ambiguous and overbroad. Marchand -v- Mercy 22 F. 3rd 933, 938 (9th Cir 1994). Tumbling -v- Merced 262 F. R. D. 509, 515 (E.D. Cal 2009). Because this request is “couched in such broad language, as to make arduous the task of deciding which of numerous documents may conceivably fall within its scope”. Johnson -v- Kraft 238 F.R.D. 645, 658 (D. Kan. 2006) .... The request cannot be responded to as written.
(“Vagueness Objection”). (Mot. 8.)
Plaintiff argues that this objection is disingenuous and reflects a failure by Defendants to exercise common sense to attribute the ordinary definitions to terms and phrases. (Mot. 15.) Plaintiff alleges that defense counsel did not “meaningfully respond” to Plaintiff's counsel's offers to meet-and-confer regarding the meaning of these requests. (Id. at 15–16.) Defendants claim that Defendant Abrams sat for a one-hour deposition to assist in clarifying the meaning of these requests and that Plaintiff has failed to heed this Court's instructions to narrow requests that seek “ALL, ANY” documents. (Id. at 16.)
The Court fails to understand what is vague, ambiguous, or unintelligible about RFP Nos. 101 through 111. RFP Nos. 101 through 108 seek communications between and among the parties (each answering Defendant, on the one hand, and Plaintiff or the other Defendants, on the other), during specified periods of time (2016 to 2018, and 2018 to the present) regarding specific subject matters (Defendants' compensation for the business activities at issue, and Plaintiff's compensation for the business activities). (Mot. 7–8.) RFP Nos. 109 and 110 seek text messages between each answering Defendant, on the one hand, and the other Defendants, on the other, during two specified periods (November 2019 and December 2019). (Id. at 8.) RFP No. 111 seeks the client database alleged in the Complaint to have been taken from Plaintiff by Defendants. (Id.) Despite referring to these requests as “nebulous, wordy, confusing” (id. at 16), Defendants fail to state specifically what is confusing about the requests. On this basis, the Court OVERRULES Defendants' Vagueness Objection as to RFP Nos. 101 through 111.
2. The Court Overrules Defendants' Undue Burden Objection to RFP Nos. 101 through 111.
*7 Although the parties seem to concur that Defendants have asserted an undue burden objection (see Mot. 18–20), the Court does not find an express undue burden objection in Defendants' supplemental responses (see id. at 8.) Nevertheless, the Court construes the following language as Defendants' undue burden objection: “Because this request is ‘couched in such broad language, as to make arduous the task of deciding which of numerous documents may conceivably fall within its scope’. Johnson -v- Kraft 238 F.R.D. 645, 658 (D. Kan. 2006)” (“Undue Burden Objection”). (Id.)
To succeed on an undue burden objection, the party resisting discovery has the burden of establishing that the request is unduly burdensome. Pham v. Wal-Mart Stores, Inc., No. 2:11-cv-00148-KJD-GWF, 2011 U.S. Dist. LEXIS 130038, at *8 (D. Nev. Nov. 9, 2011). To satisfy this burden, Defendants, as the resisting party, must provide “sufficient detail regarding the time, money, and procedures required to produce the requested documents.” Id. Indeed, this detail must come in the form of evidentiary declarations supporting such objections. See A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (“[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.” (citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996))).
Plaintiff disagrees with Defendants' contention that RFP Nos. 101 through 111 are unduly burdensome and notes that, in any event, it is Defendants' burden to establish the facts that support such an objection, and they have failed to do so. (Mot. 19–20 (citations omitted).) Defendants respond that Plaintiff has “failed to explain the basis for [her] position” or to provide “at least some fact” to justify discovery, that Plaintiff ignores her own admissions at her deposition that Plaintiff is “[t]rying to punish or get even” with Defendants because she “feels rejected and abandoned by defendants,” and that Plaintiff has “engaged in lawyer shopping [and] forum shopping.” (Id. at 20.)
Defendants' arguments are unavailing. First, they miss the mark altogether. As Defendants do not raise a relevancy concern regarding RFP Nos. 101 through 111 (Mot. 8, 13), it is not Plaintiff's burden to explain her bases for these requests. To the contrary, it is Defendants' burden, as the parties resisting discovery, to clarify, explain, and support their Undue Burden Objection, and demonstrate why discovery should not be allowed on that basis. See Bible v. Rio Props., Inc., 246 F.R.D. 614, 618 (C.D. Cal. 2007). Moreover, although Defendants insist that Plaintiff's deposition testimony evidences the retaliatory or vindictive nature of this lawsuit (Mot. 6, 7, 18, 20), there is no evidence before the Court to support this allegation. As detailed above, the excerpts of Plaintiff's deposition that Defendants offer to establish this point have nothing to do with her intent in bringing the lawsuit. Second, Defendants offer no evidence regarding the burden that answering this discovery purportedly would impose on Defendants. (See generally Mot.) In the absence of any declarations under penalty of perjury offering evidence establishing the nature and extent of the burden, the Court has no basis upon which to find any burden here, let alone the requisite level of “undue” burden. See In re Toys “R” US-Delaware, Inc., No. M 08-1980 MMM (FMOx), 2010 U.S. Dist. LEXIS 130884, at *20–21 (C.D. Cal. July 29, 2010). On this basis, the Court OVERRULES Defendants' Undue Burden Objection to RFP Nos. 101 through 111.
3. The Court Overrules Defendants' Rule 34(b)(2)(C) Objection to RFP Nos. 101 through 111.
*8 Plaintiff notes that Defendants assert a Rule 34(b)(2)(C) objection only to RFP Nos. 112 through 117, and Defendants do not dispute this. (Mot. 20.) However, the Court also finds this objection in Defendants' supplemental responses to RFP Nos. 101 through 111. (Id. at 8.) In the interest of completeness, the Court rules on Defendants' assertion of this objection as to RFP Nos. 101 through 111. The Rule 34(b)(2)(C) objection states as follows:
Responding party is unable to say whether response of [sic] material is being withheld on the basis of the objections asserted. FRCP 34(b)(2)(C).
(“Rule 34(b)(2)(C) Objection”). (Id.)
Rule 34(b)(2)(C) is clear: if a party withholds responsive matter on the basis of an objection, it must so state. See Fed. R. Civ. P. 34(b)(2)(C). Plaintiffs argue that they have no way of determining whether Defendants' responses to these requests are complete in light of Defendants' stated uncertainty regarding whether documents are being withheld pursuant to objection. (Mot. 20.) Defendants respond by pointing to the forensic inspection protocol for Defendant Abrams's devices, to which the parties agreed, purportedly as providing confirmation that Defendants' discovery responses are complete. (Id.) In addition, Defendants argue that Plaintiff is equitably estopped from asking whether any responsive materials are being withheld because of Plaintiff's own assertion of the same objection to Defendants' discovery. (Id. at 20–21.)
Defendants' Rule 34(b)(2)(C) Objection fails. First, Defendants' argument regarding the forensic inspection of Defendant Abrams's devices has been addressed, and overruled, above. Second, Defendants' equitable estoppel argument does not carry the day. It is true, as Defendants point out, that Plaintiff herself asserted this exact objection—almost word for word—in her responses to Defendants' discovery. (Defs.' Ex. 4, ECF No. 123-13, at 3 (“Responding Party is unable to state whether responsive material is being withheld of [sic] the bases of the objections asserted.” (citing Rule 34(b)(2)(C)).) While Plaintiff's current position against Defendants' use of the Rule 34(b)(2)(C) Objection is, indeed, disingenuous, it does not render Defendants' use of the objection any more proper. Plaintiff's faults in answering discovery, while obvious (and disturbing given her position here), are not before this Court. The Motion was brought to address disputes related to Plaintiff's discovery requests—not Defendants'—and defense counsel “should not seek this Court's approval of a ‘tit for tat’ approach to litigation.” Acushnet Co. v. Birdie Golf Ball Co., Inc., 166 F.R.D. 42, 43 (S.D. Fla. 1996). The Federal Rules do not contain a provision “authorizing a litigant to behave only as well as his opponent.” Id. Here, Defendants either are or are not withholding documents; they know whether they are, and if so, should know the basis for any objections authorizing such withholding. A statement that they do not know if they are withholding responsive documents on the basis of an objection is not an option under Rule 34(b)(2)(C). Fed. R. Civ. P. 34(b)(2)(C). On this basis, Defendants' Rule 34(b)(2)(C) Objection is OVERRULED.
5. The Court Overrules Defendants' Privilege Objection to RFP Nos. 101 through 111.
Defendants assert the following privilege objection as to each of RFP Nos. 101 through 111:
Responding party further objects to this request on the grounds that it seeks attorney work product and privileged attorney-client communications, and identification of documents is work product.
*9 (“Privilege Objection”). (Mot. 8.)
Plaintiff argues that Defendants' Privilege Objection is incomplete because Defendants have failed to comply with Rule 26(b)(5)(A) by providing a description of the matters withheld pursuant to privilege in a manner that, without disclosing privileged information, would allow Plaintiff to assess the privilege claim. (Id. at 9–10.) Plaintiff notes that only Defendant Abrams has served a privilege log but that, despite this Court's instructions regarding the content of the log (“Privilege Log Order”) (Priv. Log Order, ECF No. 95), his amended privilege log states only:
Responding party provides this amended privilege log as discussed with magistrate judge: Nothing having been requested, is being withheld on the basis of privilege.
Responding party reserves the right to amend and supplement this log based upon further discovery, depositions and the subpoenas which may take place in the action.
Defendants respond by arguing that Plaintiff is equitably estopped from compelling Defendants to serve a privilege log because Plaintiff herself has failed to serve a privilege log in response to Defendants' discovery. (Mot. 11.) However, Defendants then argue that “Plaintiffs [sic] privilege log is evasive, sidestepping and wholly noncompliant with” this Court's Privilege Log Order. (Id. (citing Priv. Log Order).) Defendants further argue it is Plaintiff's burden to not seek privileged discovery and that Defendant Abrams sat for a one-hour deposition to assist Plaintiff in narrowing the issues. (Id.) Defendants finally argue that Plaintiff has made no motion to compel, or met and conferred regarding the alleged inadequacy of, Defendants' privilege logs. (Id.)
All of Defendants' arguments fail. As a starting point, Defendants' equitable estoppel argument is a non-starter for the reasons stated above. Next, Defendants' argument that it is Plaintiff's burden to not seek privileged discovery misses the mark. Plaintiff is not seeking privileged discovery here. She seeks only that Defendants serve their privilege logs, identifying any documents withheld pursuant to privilege, so that she can determine whether such documents are properly withheld. Next, Defendants' argument that Plaintiff has not met and conferred about privilege logs is patently incorrect. As evidenced by this Court's Privilege Log Order, to which Defendants themselves point, the parties not only met and conferred about privilege logs, but they also participated in an informal discovery conference which resulted in this Court's issuance of the Privilege Log Order, requiring Defendant Abrams to serve a compliant privilege log and providing specific direction as to its content. (Priv. Log Order 2.) Moreover, while Plaintiff may not have moved to compel a privilege log at that time, that informal discovery conference was a prerequisite to bringing such a motion, which she does here. On this basis, Defendants' objection that they be required to serve a privilege log is OVERRULED. With respect to Defendant Abrams, any objection he may have had regarding service of a privilege log was OVERRULED through the Court's Privilege Log Order, and that Order is reaffirmed here. To be clear, the Court overrules only Defendants' objection to serving a privilege log in the first instance; it does not rule as to the propriety of any privilege Defendants may assert.
5. The Court Overrules Defendants' Overbreadth Objection as to RFP Nos. 101 through 111.
*10 Defendants assert the following overbreadth objection:
This request is also grossly overbroad seeking documents regarding all claims without specifically identifying the documents actually requested. Responding party cannot begin to know what documents plaintiff is seeking.... Responding party is willing to meet and confer to narrow the requests, specifically identify documents and “product” in documents in good faith.[7]
(“Overbreadth Objection”). (Mot. 8.)
Plaintiff disagrees with Defendants that RFP Nos. 101 through 111 are overbroad. She contends instead that these requests “seek specific communications with specific temporal and/or substantive parameters.” (Id. at 17.) The Court agrees. Defendants' reference to this Court's warning to Plaintiff that document requests seeking “any and all” documents pertaining to a particular matter likely would be considered overbroad (id. at 18) has no bearing here because, as detailed above, RFP Nos. 101 through 111 are not the “any and all” requests against which the Court cautioned (see id. at 7–8).
Defendants' only response to Plaintiff's argument is that Plaintiff's lawsuit “is an attempt to harass” Defendants by “abusively and unreasonably requesting a broad swath of documents.” (Id. at 18.) They note that as attorneys, they have an absolute, mandated duty to protect their clients and that this obligation includes protecting not only the matters of their clients but also their identities. (Id.) They add: “Plaintiff ignores their [sic] burden of proof. Plaintiff ignores the facts of this case. Plaintiff ignores the reality of defendant's position in society and in the eyes of the law.” (Id.)
Defendants' appeal to the privileged nature of their communications with their clients and their obligation to protect them does not support their Overbreadth Objection. As a starting point, Defendants offer no facts to support their argument that RFP Nos. 101 through 110 will yield privileged client communications. (See generally Mot.) RFP Nos. 101 through 108 seek communications between and among the parties (each answering Defendant, on the one hand, and Plaintiff or the other Defendants, on the other), during specified periods of time (2016 to 2018, and 2018 to the present) regarding specific subject matters (Defendants' compensation for the business activities at issue, and Plaintiff's compensation for the business activities). (Id. at 7–8.) RFP Nos. 109 through 110 seek text messages between each answering Defendant, on the one hand, and the other Defendants, on the other, during a limited two-month period—November 2019 and December 2019. (Id. at 8.) To the extent Defendants' Privilege Objection is intended to imply that there exists an attorney-client relationship among the Defendants themselves, Defendants fail to provide such facts. (See generally Mot.) Moreover, to the extent that these communications do contain privileged matter, Defendants' remedy is to assert a privilege objection and identify the matter in a privilege log, not to decline to produce any nonprivileged responsive documents that may exist.
*11 Defendants' reference to privilege also does not support their Overbreadth Objection to RFP No. 111—which seeks the client database alleged in the Complaint to have been taken from Plaintiff by Defendants. Indeed, it is for this very reason that the parties crafted, and the Court ordered, a Forensic Examination Protocol for the examination of Defendant Abrams's devices, which protocol provides a procedure for identifying and withholding privileged documents. (ECF No. 112.) But that is a concern that is properly addressed by a privilege objection, not an overbreadth objection. On this basis, Defendants' Overbreadth Objection is OVERRULED.
E. The Court GRANTS Plaintiff's Request for the Attorneys' Fees She Expended in Bringing the Motion in the Amount of $1,855.00.
Plaintiff asks the Court to award her the attorneys' fees expended in the bringing of the Motion in the amount of $4,020.00. For the reasons set forth below, the Court GRANTS Plaintiff's request and awards Plaintiff the sum of $1,855.00.
1. Legal Standard
Pursuant to Rule 37(a)(5)(C), if a discovery motion is granted in part and denied in part, “the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). Courts may apply Rule 37(a)(5)(C) “to roughly approximate the movant's level of success” when a motion to compel is decided with mixed results. Morgan Hill Concerned Parents Ass'n v. Cal. Dep't of Educ., No. 2:11-CV-03471-KJM-AC, 2017 U.S. Dist. LEXIS 114293, at *14 (E.D. Cal. July 21, 2017) (citations omitted); see also SVI, Inc. v. Supreme Corp., No. 2:16-cv-01098-JAD-NJK, 2018 U.S. Dist. LEXIS 234686, at *6–7 (D. Nev. Mar. 7, 2018) (awarding one-half of the expenses requested given that the moving party prevailed on one of two overarching issues before the Court).
Rule 37(a)(5)(C) refers to “reasonable expenses for the motion,” whereas Rule 37(a)(5)(A) refers to “reasonable expenses incurred in making the motion.” Fed. R. Civ. P. 37(a)(5)(A), (C). Notwithstanding the difference in syntax, “[t]he primary difference between Rule 37(a)(5)(A) and Rule 37(a)(5)(C) is that an award is discretionary under Rule 37(a)(5)(C)” — whereas, under Rule 37(a)(5)(A), the award is mandatory. Barlow v. Herman, No. 2:13-cv-00033-JAD-CWH, 2015 U.S. Dist. LEXIS 25707, at *9 (D. Nev. Feb. 26, 2015). “Ultimately, the analysis underlying a decision under either subsection is the same and the arguments pertaining to the exceptions under Rule 37(a)(5)(A) are equally applicable to the determination of whether fees and costs should be apportioned under Rule 37(a)(5)(C).” Id. at *9–10; see also Blair v. CBE Grp., Inc., No. 13cv134-MMA (WVG), 2014 U.S. Dist. LEXIS 131228, at *7 (S.D. Cal. Sep. 16, 2014) (“[T]he analysis underlying an award of reasonable expenses pursuant to either Rule 37(a)(5)(A) or Rule 37(a)(5)(C) is the same.”); Bal Seal Eng'g, Inc. v. Nelson Prods., Inc., No. 8:13-cv-01880-JLS-KESx, 2018 U.S. Dist. LEXIS 239699, at *12 n.3 (C.D. Cal. Feb. 12, 2018) (apportioning moving party's requested expenses where it “indisputably obtained the ‘large part’ of the relief that it sought” (citing Blair, 2014 U.S. Dist. LEXIS 131228, at *7)).
Rule 37(a)(5)(A) provides that, before granting an award of reasonable expenses, a court must determine whether any of the three exceptions to the rule apply. Fed. R. Civ. P. 37(a)(5)(A). Pursuant to these exceptions, the Court may not order this payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). The party contesting the discovery sanction on a properly brought motion under Rule 37(a)(5) bears the burden of establishing substantial justification or that other circumstances make an award of expenses unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).
*12 Finally, Rule 37(a)(5)(C) permits a court to impose sanctions after affording an opportunity to be heard. Fed. R. Civ. P. 37(a)(5)(C). However, the Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the decisionmaking process, district court did not abuse its discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the issue.” (citations omitted)); Lynch v. Cassavetes, 2014 U.S. Dist. LEXIS 195015, at *10 (C.D. Cal. Oct. 1, 2014) (finding that an opportunity to be heard is satisfied by an opportunity to respond in writing).
2. Defendants Have Been Afforded an Opportunity to Be Heard on the Attorneys' Fees Issue.
Applying the above framework, the Court concludes that neither oral argument nor an evidentiary hearing would be of assistance in determining whether to award sanctions or the amount of attorneys' fees to be awarded under Rule 37(a)(5)(C). Defendants received notice of Plaintiff's request for attorneys' fees when Plaintiff provided them with her portion of the joint stipulation so that they could include their responsive arguments. See C.D. Cal. L.R. 37-2.2. And, indeed, Defendants responded to Plaintiff's argument, albeit by noting instead that “[i]t is defendant [sic], not Plaintiff, who is entitled to an award of attorney's fees.” (Mot. 24.) But the only circumstance under which Defendants could obtain an award of attorneys' fees in connection with Plaintiff's Motion is if Plaintiff's Motion were denied in full, a circumstance not present here. Fed. R. Civ. P. 37(a)(5)(B). In any event, holding a hearing to have the parties' counsel restate what already is in the Motion and in their under-oath declarations would be a waste of time and resources. The Court finds that it has sufficient evidence of the facts it needs to make a determination regarding the amount of attorneys' fees to be awarded here. On this basis, the Court makes its ruling without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.
2. Plaintiff is Entitled to Her Attorneys' Fees Because Defendants' Responses and Objections Were Not Substantially Justified and No Circumstances Exist to Make Such an Award Unjust.
Having preliminarily determined that Plaintiff is entitled to her reasonable expenses pursuant to Rule 37(a)(5)(C), the Court next turns to the question whether any of the Rule 37(a)(5)(A) exceptions apply to bar such an award. They do not.
Defendants make no argument that the first exception—that the movant filed the motion before attempting in good faith to obtain the discovery without court action (Fed. R. Civ. P. 37(a)(5)(A)(i))—applies here. (See generally Mot.) Plaintiff exceeded her pre-filing obligations by not only complying with the Court's revised pre-filing procedures of two rounds of written meet-and-confer efforts, but also by giving Defendants an additional opportunity to supplement their responses before filing the Motion, which, according to Plaintiff, proved to be of no avail. (See Mot. 21.)
Defendants also do not argue that the second exception—that the opposing party's response or objection was substantially justified (Fed. R. Civ. P. 37(a)(5)(A)(ii))—applies. (See generally Mot.) Both the Ninth Circuit and the Supreme Court have offered guidance regarding the standard for establishing “substantial justification” sufficient to avoid a discovery sanction. In Hyde, the Ninth Circuit stated that “a good faith dispute concerning a discovery question might, in the proper case, constitute ‘substantial justification ....’ ” Hyde, 24 F.3d at 1171 (citation omitted). The Supreme Court has explained that the standard is “satisfied if there is a ‘genuine dispute’... or ‘if reasonable people could differ as to the appropriateness of the contested action.’ ” Pierce v. Underwood, 487 U.S. 552, 565 (1998) (citations and alterations omitted).
*13 As a threshold matter, Defendants do not argue that their discovery positions were substantially justified. (Mot. 24.) Rather, they contend that it is they who are entitled to an award of attorneys' fees because Plaintiff's Motion “is unnecessary, fraught with misrepresentations, unsupported by any fact and only designed to harass and burden Goltsmans [sic] ‘enemies.’ ” (Id.)
As detailed above, not one of Defendants' objections is well-taken. Rather than offer explanations and/or clarify their objections in order to justify their failure to produce responsive documents, Defendants argue that Plaintiff's lawsuit is improper, accuse Plaintiff of vindictiveness and ill-motives, confuse legal issues and standards, and generally fail to address head-on the legal arguments raised by Plaintiff. For these reasons, the Court is unable to conclude that Defendants' responses and/or objections were ones on which reasonable people could differ or that were justified in any way, let alone “substantially” justified, as required to satisfy the exception here.
Defendants also do not argue that the third exception—that other circumstances make an award of expenses unjust (Fed. R. Civ. P. 37(a)(5)(A)(iii)—applies here. (See generally Mot.) And the Court can find no evidence of such a circumstance.
For these reasons, the Court concludes that Plaintiff is entitled to the reasonable expenses, including attorneys' fees, she expended in the bringing of the Motion, apportioned to reflect roughly her level of success, as discussed below.
3. Plaintiff is Entitled to an Award of $1,855.00.
When an award of attorneys' fees is authorized, the court must calculate the proper amount of the award to ensure that it is reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983). In the Ninth Circuit, the court must perform a two-step process to determine the reasonableness of any fee award. Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, the Court determines the “lodestar figure.” See Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). “The ‘lodestar’ is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citation omitted). Second, where appropriate, the Court may adjust the lodestar amount based on several factors adopted by the Ninth Circuit in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), known as the Kerr factors:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
Kerr, 526 F.2d at 70.
A strong presumption exists “that the lodestar figure represents a reasonable fee.” Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996). The Ninth Circuit has made clear that “[o]nly in rare instances should the lodestar figure be adjusted on the basis of other considerations.” Id. (citations omitted). “Under the lodestar approach, many of the Kerr factors have been subsumed as a matter of law.” Id. (citation omitted). The Kerr factors that are subsumed within the initial lodestar calculation are “(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation,” “(4) the results obtained,” and “(5) the contingent nature of the fee agreement.” Id. at 364 n.9 (citations omitted). “Adjusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable hours or reasonable hourly rate at the first step ... is a disfavored procedure.” Id. (citation omitted).
*14 The party seeking the award of fees must submit evidence to support the request. Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Specifically, the party must support the request with evidence regarding the “number of hours worked and the rates claimed.” Id. The party opposing the fee request bears the “burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in submitted affidavits.” Common Cause v. Jones, 235 F.Supp.2d 1076, 1079 (C.D. Cal. 2002) (quoting Gates, 987 F.2d at 1397).
Plaintiff requests $4,020.00 in attorneys' fees based upon the following lodestar calculation: 11.5 hours spent by Plaintiff's counsel, a fourth-year associate at Burke, Williams & Sorensen, LLP, at an hourly rate of $350.00.[8] (Mot. 22–23; Slater Decl. 3–5) Defendant challenges neither the hours spent in bringing the Motion nor the hourly rate requested. (Id. at 24.) Nevertheless, the Court conducts an independent review of both to ensure that the lodestar requested is appropriate for this Motion. For the reasons stated below, the Court awards Plaintiff the sum of $1,855.00 in reasonable expenses expended in the bringing of the Motion.
a. The Hours Billed by Plaintiff Are Comparable to Others Approved In this District.
As a threshold matter, the Court finds that Plaintiff's documented 11.5 hours fall well short of those awarded in this district. See, e.g., Nguyen v. Regents of the Univ. of Cal., No. 8:17-cv-00423-JVS-KESx, 2018 U.S. Dist. LEXIS 226622, at *10–11 (C.D. Cal. May 18, 2018) (approving 36.1 hours for the preparation of a joint stipulation); Dish Network L.L.C. v. Jadoo TV, Inc., No. 2:18-cv-9768-FMO (KSx), 2019 U.S. Dist. LEXIS 221869, at *18 (C.D. Cal. Nov. 8, 2019) (approving 32 hours for the preparation of a discovery motion).
b. Some of the Hours Billed by Plaintiff Warrant Reduction Because They May Not Pertain to the Preparation of the Motion.
Plaintiff requests $1,155.00 in expenses for researching the legal issues related to Defendants' objections (3.3 hours at $350.00 per hour), and $2,870.00 in expenses for preparing the motion and accompanying declaration (8.2 hours at $350.00 per hour). (Slater Decl. 3–5.)
The Local Rules require opposing counsel to meet and confer before bringing a discovery motion. C.D. Cal. L.R. 37-1. Citing similar local rules, other Ninth Circuit district courts have found that “fees associated with the initial meet and confer process logically should not always be included in a fee award.” Matlink, Inc. v. Home Depot U.S.A., Inc., No. 07-cv-1994-DMS (BLM), 2008 U.S. Dist. LEXIS 124318, at *15 (S.D. Cal. Oct. 27, 2008); see also Aevoe Corp. v. AE Tech Co., LTD, No. 2:12-cv-00053-GMN-NJK, 2013 U.S. Dist LEXIS 135755, at *24 (D. Nev. Sept. 20, 2013) (“[A]ttorneys' fees are generally not awarded in this District for time spent meeting and conferring on motions to compel.”); Rothrock v. Int'l Ass'n of Heat & Frost Insulators, No. 15-cv-2412 DMS (JLB), 2016 U.S. Dist. LEXIS 149868, at *14 (S.D. Cal. Oct. 27, 2016) (“[H]ours spent meeting and conferring generally should not be included in an attorneys' fees award.”).
However, under appropriate limited circumstances, a fee award may be proper where a party fails to participate in a good faith meet-and-confer, or otherwise obstructs the resolution process. See Matlink, 2008 U.S. Dist LEXIS 124318, at *15 (noting that such hours should generally not be included in a fee award, but awarding fees for half of such hours where opposing party “stonewalled” the meet and confer process); Grimsley v. Charles River Labs., No. 3:08-cv-482, 2010 U.S. Dist. LEXIS 93071-LRH-VPC, at *4, 8 (D. Nev. Aug. 13, 2010) (affirming magistrate judge's award of fees for time spent on meet and confer efforts for party opposing motion to compel where movant failed to comply with a court order to make a “sincere effort to resolve [the] discovery disputes”).
*15 Plaintiff asserts that Defendants “failed to meaningfully meet and confer or to bring their responses to [this discovery] into compliance with the federal discovery rules.” (Mot. 21 (citing Pl.'s Exs. B and D, ECF Nos. 123-3, 123-5).) But regardless of the level of Plaintiff's frustration with the meet-and-confer process, these efforts would have been required whether or not a motion were ever filed. I.R. v. City of Fresno, No. 1:12-cv-558 AWI GSA, 2013 U.S. Dist. LEXIS 76969, at *19 (E.D. Cal. May 31, 2013). Plaintiff has not presented evidence that Defendants ignored the meet and confer process altogether, as opposed to engaging in a manner that was unsatisfactory to Plaintiff. To the contrary, both parties provide evidence that Defendants responded to Plaintiff's meet-and-confer letters and participated in the meet-and-confer process related to the issues raised in this Motion. (Pl's Exs. B, D; Defs' Ex. 1.) The Court therefore declines to award expenses relating to meet-and-confer efforts.
Still, it is unclear whether the 3.3 hours of researching the legal issues related to Defendants' objections were spent in preparation for the meet-and-confer efforts or in preparation of the Motion. This is because the entries are not dated and the issues, for obvious reasons, overlap. (See Slater Decl. 3–5.) Courts reviewing hours billed for purposes of a lodestar calculation have the discretion to discount hours that are impermissibly vague and do not appear to pertain to the preparation of the discovery motion. For example, in Dubose v. County of Los Angeles, No. CV 09-7832 CAS (AJWx), 2012 U.S. Dist. LEXIS 81362, at *14–18 (C.D. Cal. June 11, 2012), the court imposed a 20% across-the-board reduction on fees because they were, among other things, not related to the motion. Id. Similarly, in Sandoval v. Yeter, CV 18-0867-CBM (JPRx), 2019 U.S. Dist. LEXIS 227406, at *9–10 (C.D. Cal. Oct. 31, 2019), the court discounted time entries on the ground that they were not for motion-related work. Id.
In that the Court is unable to determine whether the 3.3 research hours were spent in the preparation of the Motion, the Court will discount those hours altogether. Accordingly, the hours for which the Court will award attorneys' fees are reduced by 3.3 hours, resulting in a subtotal of 8.2 hours (11.5 hours less 3.3 hours equals 8.2 hours).
c. Some of the Hours Billed by Plaintiff Warrant Reduction Because the Motion Was Denied in Part.
The remaining 8.2 hours must be apportioned to reflect the fact that the Court only partially granted the Motion. Fed. R. Civ. P. 37(a)(5)(C). The Motion sought to compel Defendants' further supplemental responses to RFP Nos. 101 through 111 and supplemental responses to RFP Nos. 112 through 117, for a total of seventeen RFPs. The Court granted Plaintiff Motion as to RFP Nos. 101 through 111 and denied the Motion as to RFP Nos. 112 through 117. Thus, Plaintiff's level of success equals roughly eleven-seventeenths (11/17) of the Motion. Apportioning the remaining 8.2 hours to reflect this success rate, the Court concludes that Plaintiff is entitled to 5.3 hours of work (8.2 hours multiplied by 11/17 equals 5.3 hours).
d. The Hourly Rates Claimed by Plaintiff Are Reasonable and Commensurate with the Prevailing Rate.
Plaintiff claims an hourly rate of $350.00 for Mr. Slater. (Mot. 23; Slater Decl. 3.) Defendants do not dispute the reasonableness of this rate. (See generally Mot.) In determining whether the hourly rate billed is reasonable for purposes of an attorneys' fees award, the Court must ensure that the requested rates “are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006) (noting that the party seeking fees must prove that the rate charged is in line with the “prevailing market rate of the relevant community.” (citation omitted)). The burden is on the fee applicant “to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community....” Camacho, 523 F.3d at 980 (citation omitted). For this purpose, “the relevant community is the forum in which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). “[R]ates outside the forum may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.” Id. (internal quotation marks and citation omitted). Accordingly, the relevant community here is the Central District of California. In addition, the court may rely on its own experience to determine a reasonable hourly rate. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). Finally, in exercising its discretion in setting a fee, the court must assess the “reasonableness of the fee in light of the totality of the circumstances.” Jordan v. Multonah County, 815 F.2d 1258, 1262 n.7 (9th Cir. 1987).
*16 Plaintiff's counsel does not attest to his background and experience. (See generally Slater Decl.) Nor does Plaintiff offer a declaration of an attorneys' fees expert. (See generally Mot.) Instead, Plaintiff's counsel attests only to the fact that he is “an associate in [his] fourth year of law practice.” (Slater Decl. 3.) In addition, Plaintiff notes that her counsel's hourly rate previously was approved in this matter by the United States District Court for the Northern District of California in connection with two pre-transfer motions. (Mot. 23 (citing ECF Nos. 69 at 2 (awarding Plaintiff $1,400 in attorneys' fees because of Defendants' unreasonable conduct), 71 at 7 (awarding Plaintiff $5,250 in attorneys' fees because of Defendants' lack of cooperation in service of process under Rule 4(d)).) Finally, Plaintiff notes that, according to the Wolters Kluwer 2020 Real Rate Report (Mid-Year Update) (“Real Rate Report”)[9], her counsel's hourly rate falls below the median billing rate of $565.00 per hour for associate attorneys of similar seniority in Los Angeles in the second quarter of 2020. (Id. ) With this, the Court is persuaded that an hourly rate of $350.00 for Plaintiff's counsel is appropriate here.
e. The Re-Calculated Lodestar Results In an Attorneys' Fees Award of $1,855.00 and No Kerr Adjustment is Necessary.
The Court re-calculates the lodestar for a total of $1,855.00 (5.3 hours multiplied by $350.00 per hour). Neither party requests an adjustment to the lodestar based on the Kerr factors. (See generally Mot.) Indeed, upon a review of the Kerr factors not already subsumed within the lodestar, the Court sees no reason to make such an adjustment. On this basis, the final attorneys' fee award pursuant to Rule 37(a)(5)(C) is $1,855.00.
IV. CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
1. All Defendants shall further supplement their responses to RFP Nos. 101 through 111, consistent with the Court's findings above and Rule 34, and produce all nonprivileged responsive documents, by no later than fifteen days after the date of this Order.
2. To the extent Defendants withhold responsive matter pursuant to an objection, they must so state within the response consistent with Rule 34(b)(2)(C).
3. To the extent responsive documents are withheld pursuant to privilege, Defendants must serve a privilege log identifying that matter by no later than fifteen days after the date of this Order. The privilege log that shall include the following information on a document-by-document basis:
a. the attorney(s) and client(s) involved in the communication;
b. the nature of the document;
c. the source of the document or the person who created the document;
d. the sender(s) of the document (if appropriate);
e. all recipients of the document (if appropriate);
f. all persons known to have been furnished the document or otherwise informed of its contents (if appropriate);
g. the date the document was generated, prepared, or dated; and
h. all privileges upon which the document is being withheld.
In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3 (9th Cir. 1989)); see also Trejo v. Macy's, Inc., No. 5:13-cv-02064-LHK (PSG), 2014 U.S. Dist. LEXIS 35464, at *5 (N.D. Cal. Mar. 17, 2014) (listing similar factors).
4. Defendants shall pay to Plaintiff, jointly and severally, the sum of $1,855.00 as her reasonable expenses in bringing the Motion. This payment shall be made no later than thirty days after the date of this Order.
Footnotes
Unless otherwise stated, all further references to “Local Rules” shall be to the Central District of California Local Civil Rules.
Pinpoint citations of page numbers in the Order refer to the page numbers appearing in the ECF-generated headers of cited documents.
The Court summarizes the allegations and claims in the Complaint. In doing so, the Court does not opine on the veracity or merit of Plaintiff's allegations and claims, nor does the Court make any findings of fact.
All further references to “Rule” are to the Federal Rules of Civil Procedure.
Plaintiff notes that Defendants also asserted certain objections to RFP Nos. 112 through 117. However, because the Court does not address those RFPs for the reasons stated above, here the Court rules only on the objections asserted as to RFP Nos. 101 through 111. As a result, the Court does not rule on Defendants' privacy objection asserted only as to RFP Nos. 112, 113, and 116 (Mot. 11–13); relevancy objection asserted only as to RFP No. 117 (id. at 13–15); and already exchanged/equally available objection asserted only as to RFP Nos. 112 through 115 and 117 (id. at 16–17).
Although Plaintiff claims to have attached Defendant Abrams's privilege log to the Motion as an exhibit to the Slater Declaration (Mot. 10, fn. 4), no such document is attached. Nevertheless, Defendant Abrams does not dispute Plaintiff's quotation of the privilege log. (See generally Mot.)
It is unclear whether this last sentence is intended as a stand-alone offer to meet-and-confer about each RFP or whether it is part of Defendants' overbreadth concern. Given the language offering to “narrow the requests,” the Court construes this as part of Defendants' Overbreadth Objection.
The Court notes that 11.5 hours multiplied by an hourly rate of $350.00 equals $4,025.00.
The Court gives due weight to information contained in the Real Rate Report, a publication that provides data-driven benchmarking for attorney hourly rates. See, e.g., Smith v. Cnty. of Riverside, No. EDCV 16-227 JGB (KKx), 2019 U.S. Dist. LEXIS 170421, at *5 (C.D. Cal. June 17, 2019) (“[A] number of district courts in California have relied on the Real Rate Report.”). The information provided by the Real Rate Report is persuasive because, rather than using self-reported rates aggregated across all practice areas throughout the country, as appear in other surveys, it reflects actual legal billing through paid and processed invoices disaggregated for location, experience, firm size, areas of expertise, industry, and practice areas. (See Real Rate Report 4.)