RG Abrams Ins. v. Law Offices of C.R. Abrams
RG Abrams Ins. v. Law Offices of C.R. Abrams
2021 WL 4974618 (C.D. Cal. 2021)
July 14, 2021
Audero, Maria A., United States Magistrate Judge
Summary
The court found that the defendants had failed to provide a complete response and production of documents within their possession, custody, or control, including ESI. The court also took judicial notice of ESI, such as documents on file in federal or state courts, as long as the accuracy of the source could not reasonably be questioned.
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 July 14, 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.Timothy J. Donahue, Law Offices of Timothy Donahue, Orange, CA, for Defendants 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
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DEFENDANTS' SUPPLEMENTAL RESPONSES TO PLAINTIFF ROBIN GOLTSMAN'S REQUESTS FOR PRODUCTION, SET ONE (ECF NO. 127)
I. INTRODUCTION
*1 Before the Court is Plaintiff Robin Goltsman's Motion to Compel Defendants' Supplemental Reponses to Plaintiff Robin Goltsman's Requests for Production, Set One (“Motion”). (ECF No. 127.) The Motion was filed jointly by Plaintiff Robin Goltsman (“Plaintiff”) and Defendants Christopher Abrams (“Defendant Abrams”), Sarah Rinelli (“Defendant Rinelli”), Jack R. Mills (“Defendant Mills”), Cynthia Wooten (“Defendant Wooten”), and Robin Armstrong (“Defendant Armstrong”) (collectively “Defendants”), in the form of a Joint Stipulation as required by Central District of California Local Civil Rule [1] 37-2. Through the Motion, Plaintiff seeks, and Defendants oppose, (1) an order overruling Defendants' General Objections to Plaintiff's Request for Production, Set One (“RFP Set One”) (Mot. 10[2]); (2) an order overruling Defendants' objections asserted as to the specific requests for production (“RFP”) (id. at 11–31); (3) an order compelling Defendant Abrams to further supplement his substantive response to RFP No. 4 (id. at 31–37); and (4) an award of attorneys' fees pursuant to Federal Rule of Civil Procedure [3] 37(a)(5)(A) in the amount of $2,940.00 (id. at 37–40.)
In support of her requests, Plaintiff filed the Declaration of Michael A. Slater (“Slater Declaration”) (Slater Decl., ECF No. 127-1, at 1–6), the Amended Declaration of Michael A. Slater (“Amended Slater Declaration”) (Am. Slater Decl., ECF No. 131 at 1–6), and their accompanying Exhibits A through R (Pl.'s Ex. A[4] (ECF No. 131 at 7–16); Ex. B (id. at 17–20); Ex. C (id. at 21–25); Ex. D (id. at 26–28); Ex. E (id. at 29–31); Ex. F (id. at 32–36), Ex. G (id. at 37–39); Ex. H (id. at 40–43); Ex. I (id. at 44–57); Ex. J (id. at 58–70); Ex. K (id. at 71–83); Ex. L (id. at 84–95); Ex. M (id. at 96–109); Ex. N (id. at 110–122); Ex. O (id. at 123–134); Ex. P (id. at 135–146); Ex. Q (id. at 147–158); Ex. R (id. at 159–170)). In support of their opposition, Defendants filed the Declaration of Timothy Donahue (“Donahue Declaration”) (Donahue Decl., ECF No. 127-1 at 44–48), and its accompanying Exhibits 1 through 9-2[5] (Defs.' Ex. 1 (id. at 49–52); Ex. 2 (id. at 53–117); Ex. 3 (id. at 119–31); Ex. 4 (id. at 132–36); Ex. 5 (id. at 137–56); Ex. 6 (id. at 157–63); Ex. 7 (id. at 164–72); Ex. 8 (id. at 173–78); Ex. 9-1 (id. at 179– 213); Ex. 9-2 (id. at 214–22)).
*2 Having read and considered the papers 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 20, 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 U.S. District Court for the Northern District of California (“Complaint’ ”). (Compl., ECF No. 1.) The case was transferred to the Central District of California on January 12, 2021. (Id.) 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. Stated simply, Plaintiff alleges she 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 concerns—RG Abrams Insurance and the C.R. Abrams Law Firm. (Id. at 7.) In 2016, Plaintiff and Defendant Abrams 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.) While Plaintiff was out of town in December 2019, Defendant Abrams and two other 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.)
B. The Discovery Dispute
On September 4, 2020, Plaintiff served RFP Set One on each of the Defendants. (See Mot. 5.) Although Plaintiff contends that each Defendant was served with “an identical set” of RFP Set One (id.), in fact they were not identical: RFP Set One to Defendant Abrams contains 48 requests (Pl.'s Ex. I); RFP Set One to Defendant Mills contains 42 requests (Pl.'s Ex. K); RFP Set One to Defendant Rinelli contains 53 requests (Pl.'s Ex. M); RFP Set One to Defendant Wooten contains 36 requests (Pl.'s Ex. O); and RFP Set One to Defendant Armstrong contains 36 requests (Pl.'s Ex. Q). On October 5, 2020, each of the Defendants served responses, and, on April 19, 2021, Defendant Abrams served supplemental responses —all of which were, according to Plaintiff, “largely identical.” (SeeMot. at 5, 32.) Each response contains general objections (labeled “General Objection”), as well as objections directed at specific requests. (Pl.'s Exs. J[6], L, N, P, R.) No response contains the required Rule 34(b)(2)(B) statement that inspection will be permitted or that each Defendant will produce copies of the documents in lieu of permitting an inspection. ( Pl.'s Exs. J, L, N, P, R.) A few responses identify a responsive document or contain a statement that no documents exist or that Plaintiff has possession of a responsive document. (See Pl.'s Exs. J, L, N, P, R.)Each response notes that “Defendant reserves the right to amend and supplement this response based upon depositions and subpoenas.” (Pl.'s Exs. J, L, N, P, R.)
III. ANALYSIS
A. Legal Standard
Federal Rule of Civil Procedure [7] 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).
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 responses 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). Local Civil Rule 34-1 of the Northern District of California—the district where the case was pending at the time of Defendants' responses—provides that “[a] response to a request for production or inspection made pursuant to Fed. R. Civ. P. 34(a) must set forth each request in full before each response or objection.” N.D. Cal. L. R. 34-1. So too does Local Rule 34-2, the corresponding rule in the Central District of California—the district where the case was pending at the time of Defendant Abrams's supplemental responses. C.D. Cal. L.R. 34-2 (“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.”) In addition, for each item or category requested, “the response must either state that inspection ... will be permitted as requested ... [or] ... that it will produce copies of documents or of electronically stored information instead of permitting inspection.” Fed. R. Civ. P. 34(b)(2)(B). Further, the production must “be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Id. Any grounds for objection must be stated with specificity. Id. 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).
*4 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 OVERRULES Defendants' General Objections.
Each Defendant asserted the following general objections to Plaintiff's RFP Set One:
GENERAL OBJECTION: responding party search [sic] and does not waive with respect to any requested category, attorney-client privilege, attorney work product, individual privacy rights, third-party privacy rights, trade secrets, confidential private communications, proprietary business privacy and privileges.
(“General Objections”). (Pl.'s Exs. J, L, N, P, R).
Plaintiff contends that the General Objections are improper as they do not comply with the specificity requirements Rule 34(b)(2)(C). (Mot. 10.) Defendants respond that Plaintiff's argument “has nothing to do with the merits,” and “is unnecessarily nitpicky under the specific facts of this case and [the] proportionality rules mandated by [Rule] 26(b)(1).” (Id.) Defendants note that, despite these objections, they “offered to clean up this issue” but received no response from Plaintiff before she filed the Motion. (Id.)
The Court agrees with Plaintiff—and, from Defendants' response, it appears they concede this point. The Ninth Circuit long has held that “boilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005); see also 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 Fed. R. Civ. P. 33(b)(1)(B), 33(b)(3), 34(b)(2), and 36(a)(4))). On this basis, Defendants' General Objections are OVERRULED.
C. The Court OVERRULES Defendants' Specific Objections.
In addition to their General Objections, Defendants assert specific objections in response to the requests contained in RFP Set One. The Court addresses each below.
1. The Court OVERRULES Defendants' Attorney-Client Privilege and Work Product Objections.
Each Defendant asserts attorney-client privilege and/or work product objections as to many of the requests in RFP Set One. (See Mot. 11; Pl.'s Exs. J, L, N, P, R.) The Court does not list each request individually here because Plaintiff does not claim that the privileges are not proper as to any of specific request, but rather contends that these objections are incomplete because Defendants fail to provide a supporting privilege log. (Mot. 11–12.) When asserted, the objections are part of a sentence of objections, and state some iteration of the following: “attorney work product,” “attorney-client privilege,” and “attorney-client work product.” (“Privilege Objection”). (Pl.'s Exs. J, L, N, P, R.)
*5 Plaintiff contends that Defendants' Privilege Objection is incomplete because Defendants have failed to comply with Rule 26(b)(5)(A), which requires 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. (Mot. 11.) 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.
(Mot. 11; see also Pl.'s Ex. F.)
Defendants respond by arguing that Plaintiff has the burden of proof of justifying the discovery requested; that the requests are excessively overbroad, ambiguous, and all-encompassing, and it is not Defendants' burden to re-draft the requests; that it is Plaintiff's burden to comply with Rule 26(b)(1); that the requests are “deliberately designed to violate the attorney-client privilege, a sacrosanct privilege”; that attorney-client privileged documents are absolutely privileged; that Defendants Abrams and Rinelli, as attorneys, and their respective legal secretaries, work for clients and provide them with strategies, research and other legal processes, the disclosure of which is unnecessary and would violate the privilege; that Plaintiff has failed to acknowledge Defendants' trade secrets; that the requests seek privileged tax records and financial records; and that there is no justification for this motion or these requests in light of Plaintiff's deposition testimony. (Mot. 12–13.)
All of Defendants' arguments fail. As a starting point, with the exception of the specific argument related to the privileges, none of the other arguments respond to Plaintiff's concerns. Moreover, Defendants' argument that it is Plaintiff's burden to comply with Rule 26(b)(1), which the Court interprets as an 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 properly are withheld.
On this basis, Defendants' Privilege Objection that they be required to serve a privilege log is OVERRULED as to all Defendants except Defendant Abrams. 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 given that the latter is not before the Court at this time.
2. The Court OVERRULES Defendants' Taxpayer and Expert Consultant Privilege Objections.
Defendants Abrams, Wooten, and Rinelli assert a taxpayer privilege and an expert consultant privilege to a handful of requests. (See Mot. 13; Pl.'s Exs. J, N, P.) Defendant Mills asserts only an expert consultant privilege to two requests. (See Mot. 13; Pl.'s Ex. L.) Again, the Court does not list each request individually here because Plaintiff does not challenge the applicability of such privileges as to any specific request, but rather contends that Defendants fail to identify any existing taxpayer or expert consultant privileges and provide information in support of those privileges. (Mot. 13–14.) When asserted, the objections are part of a sentence of objections, and state only “taxpayer privilege” and “expert consultant privilege/work product.” (“Taxpayer and Expert Consultant Privilege Objections”). (Pl.'s Exs. J, L, N, P.)
*6 Plaintiff contends that Defendants' Taxpayer and Expert Consultant Privilege Objections are improper for two reasons: first, because Defendants fail to cite any legal authority that supports such privileges; and second, because if such privileges exist and are applicable, Defendants have failed to provide a privilege log so that Plaintiff may evaluate whether the privileges are properly asserted. (Mot. 13–14.) Defendants do not respond to Plaintiff's argument. (See generally Mot.)
Defendants' failure to respond to Plaintiff's argument is fatal to their Taxpayer and Expert Consultant Privilege objections. The burden is on the party resisting discovery to establish the privilege or risk waiving it. See Khademi v. S. Orange Cnty. Cmty. Coll. Dist., 194 F. Supp. 2d 1011, 1027 (C.D. Cal. 2002) (“A judge is the impartial umpire of legal battles, not a [party's] attorney. [S]he is neither required to hunt down arguments [the parties] keep camouflaged, nor required to address perfunctory and undeveloped arguments .... To the extent that [Defendant] failed to develop any additional argument[s] or provide any legal support for them, [it] has waived them.” (alterations in original) (quoting Williams v. Eastside Lumberyard & Supply Co., No. 99 CV 4237 JPG, 2001 U.S. Dist. LEXIS 22379, at *7 (S.D. Ill. Mar. 23, 2001))). Having failed to respond to Plaintiff's argument, Defendants have waived their Taxpayer and Expert Consultant Privileges.
On this basis, Defendants' Taxpayer and Expert Consultant Privilege Objection is OVERRULED.
3. The Court OVERRULES Defendants' Privacy Objection.
Each Defendant asserts a privacy objection as to many of the requests in RFP Set One. (See Mot. 14; Pl.'s Exs. J, L, N, P, R.) The Court does not list each request individually here because Plaintiff does not challenge the applicability of the privacy objection to any specific request, but rather contends that the objection is not stated with the specificity required by Rule 34(b)(2)(B). (Mot. 14–15.) When asserted, the objections are part of a sentence of objections, and state some iteration of “invasion of privacy,” “violates California Constitution Article 1 Section 1,” “violates California Consumer Act, Civil 1798.150,” “violates insurance/medical privacy Civil Code 56.265,” “violates financial privacy rights Savon -v- Superior (1975) 15 Cal 3rd 1,” “violates individual and consumer privacy. Hill -v- National (1994) 10 Cal App 4th 1. Harding -v- Superior (1992) 10 Cal App 4h 7, 10.” (“Privacy Objection”). (Pl.'s Exs. J, L, N, P, R (typographical errors in original).)
Plaintiff argues that Defendants' Privacy Objection lacks legal authority and violates the specificity requirement of Rule 34(b)(2)(B). (Mot. 14–15.) Plaintiff also contends that the balancing of interests—the need for disclosure, on the one hand, against the potential harm to the subject of the disclosure, on the other—weighs in favor of disclosure. (Id. at 14 (citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 1447 (11th Cir. 1984); Rubin v. Regents of Univ. of Cal., 114 F.R.D. 1, 2 (N.D. Cal. 1986).) Plaintiff argues that Defendants have not articulated the harm they would suffer from disclosure of this information. (Mot. 15.) In addition, Plaintiff contends that any privacy concerns adequately can be addressed through a protective order—an offer Plaintiff made to Defendants, but which Defendants have failed to address. (Id.; see also Pl.'s Exs. A, B, D.)
Defendants respond that they timely responded to RFP Set One; that Plaintiff has not shown good cause under the facts of this case; that Defendants are licensed attorneys and insurance professionals and that they “have made clear that they will not and cannot wave [sic] important rights and privileges”; that the requests are “identical, cut and paste [sic],” “boilerplate, cookie-cutter ... without regard to the specifics of each defendant”; that the parties have met and conferred but that Plaintiff “did nothing” from October 5, 2020 to May 4, 2021; that Defendants served supplemental responses in an effort to narrow any issues; that Defendant Abrams gave a one-hour deposition “as a way to avoid all the wasted time and energy with these sloppily drafted discovery requests”; that Plaintiff failed to adhere to this Court's modified pre-filing meet-and-confer procedure; that Defendant Abrams's electronic devices were inspected in a “broad sweeping inspection, covering decades of legal records” which “is more than sufficient to satisfy the needs of this case, especially, in light not justice [sic]; and that “gamesmanship and financial burden are the primary motivating factors behind all of this which is the purpose behind Rule 26(b)(1).” (Mot. 15–18.) Because these arguments are repeated throughout the Motion, the Court will refer to them as the Defendants' “General Arguments.”
*7 The Ninth Circuit has recognized a constitutionally protected privacy interest in avoiding disclosure of personal matters. See Normal-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998); Breed v. U.S. Dist. Ct. for Northern Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976). However, the right of privacy is not an absolute bar to discovery and courts must balance the need for the information against the claimed privacy right. Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 U.S. Dist LEXIS 11002, at *16 (E.D. Cal. Jan. 30, 2007) (“Unlike a privilege, the right of privacy is not an absolute bar to discovery.”); Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.”); see also E.E.O.C. v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“[T]he right to privacy is not a recognized privilege or absolute bar to discovery, but instead is subject to the balancing of needs.”).
Here, Defendants' privacy challenge fails. To begin with, Defendants fail to establish in the first instance that there exists a reasonable right of privacy to the information sought by any of the requests at issue. (See Mot. 15–17.) Instead, as detailed above, they make assertions that do not come close to resembling a privacy argument. (Id.) A party asserting a privacy objection must establish first that there exists a reasonable right of privacy to the information sought to be disclosed. Christian v. County of Los Angeles, No. 2:18-cv-05792-CJC (JDEx), 2020 U.S. Dist. LEXIS 157307, at *6–8 (C.D. Cal. Jan. 28, 2020) (finding privacy claim unavailing without a showing of a reasonable right to privacy). Defendants have not offered any reasoning or case law to support their assertion that the information sought here through the multiple requests at issue is protected by the right of privacy. (See id.) Moreover, it is not lost on the Court that this purported privacy concern is one of Defendants' own making in that they decline to enter into a stipulated protective order that would shield their private information from the public. (See id.) See Artis v. Deere & Co., 276 F.R.D. 348, 352–53 (N.D. Cal. 2011) (ordering disclosure of names, addresses, and telephone numbers subject to a protective order limiting the use of the information to the parties in the litigation and protecting it from public disclosure). While a decision to not enter into a stipulated protective order is Defendants' prerogative, Defendants make this decision at their own peril in that, in so doing, they undermine their own argument that the information at issue is confidential. See, e.g., Brooks v. Motsenbocker Advanced Devs., Inc., No. 07cv773 BTM (NLS), 2008 U.S. Dist. LEXIS 1350, at *11 (S.D. Cal. Jan. 8, 2008) (overruling privacy objection where responding parties seeking to protect documents from disclosure failed to take any steps to protect the information, such as entering into a stipulated protective order or moving for their own protective order before their deadline to respond). Moreover, even if Defendants had shown a right of privacy exists for the information sought here, they fail to explain how their purported privacy interests will be harmed by the disclosure of this information. (See Mot. 15–18.)
On this basis, the Court OVERRULES Defendants' Privacy Objection.
4. The Court OVERRULES Defendants' Trade Secrets Objection.
Each Defendant asserts a trade secrets objection as to many of the requests in RFP Set One. (See Mot. 18; Pl.'s Exs. J, L, N, P, R.) The Court does not list each request individually here because Plaintiff does not challenge the applicability of the trade secrets objection to any specific request, but rather contends that that the objection is lacking in legal support. (Mot. 18.) When asserted, the objections are part of a sentence of objections, and state some iteration of “trade secrets” and “confidential trade secrets” (“Trade Secrets Objection”). (Pl.'s Exs. J, L, N, P, R.)
*8 Plaintiff contends that she is “unaware of any legal authority in which ‘trade secrets’ has been held to be a valid objection to discovery,” and that, despite her requests through meet-and-confer letters, Defendants have not addressed this issue. (Mot. 18.) In response, Defendants assert their General Arguments. (Id. at 18–20.) In addition, Defendants argue that they filed a motion to dismiss that contains a request for a stay of the action, which, at the time of the filing of the Motion was set for hearing on July 2, 2021;[8] that the parties met and conferred regarding Defendants' pending motion to dismiss and a possible motion by Defendants for spoliation of evidence; that Plaintiff's failure to appear for her deposition constitutes a de facto and unilateral stay; that Plaintiff's motion is without merit, is brought in bad faith and justifies sanctions; that RFP Set One is at best “intrusive and abusive” and at worst “intrusive, sloppy and unnecessary, and just running up fees”; that Plaintiff threatened to “burn down of [her] houses litigating this case;” and that Plaintiff is “bitter and unjustifiably so,” and “has revenge on her mind, not justice.” (Id. at 19–20.) Because these arguments are repeated through the Motion, the Court names them the “Motion to Dismiss Arguments.”
“[T]here is no absolute privilege for trade secrets and similar confidential information.” Upjohn Co. v. Hygieia Biological Labs., 151 F.R.D. 355, 358 (E.D. Cal. 1993) (citation and quotation marks omitted); see also Gonzales v. Google, Inc., 234 F.R.D. 674, 685 (N.D. Cal. 2006); Davis v. Leal, 43 F. Supp. 2d 1102, 1110 (E.D. Cal. 1999) (“[T]he trade secrets privilege is not absolute, but requires a balancing of the need for protecting the secret with the needs of the case”). To resist discovery of a trade secret, “a party must first demonstrate by competent evidence that the information sought through discovery is a trade secret and that disclosure of the secret might be harmful.” Upjohn Co., 151 F.R.D. at 358 (citations omitted.) Where this showing is made, “the burden shifts to the party seeking discovery to establish that the disclosure of trade secrets is relevant and necessary to the action.” (Id.); see also Davis, 43 F. Supp. 2d at 1110. Once relevancy and necessity have been established, the Court must “weigh the risk of disclosure of the trade secret to unauthorized parties with the risk that a protective order will impede prosecution or defense of the claims.” Trevino v. ACB Am., Inc., 232 F.R.D. 612, 617 (N.D. Cal. 2006). Nonetheless, “[o]nce the moving party has established relevance and necessity, the discovery is virtually always ordered.” Bare Escentuals Beauty, Inc. v. Costco Wholesale Corp., No. 07CV90, 2007 U.S. Dist. LEXIS 90893, at *6–7 (S.D. Cal. Dec. 11, 2007) (citations and quotation marks omitted). In addition, Rule 26(c)(1)(G) states that a party may obtain a protective order “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G).
Here, Defendants fail to provide any information to aid the Court in its determination that the documents sought contain trade secrets in the first instance. (See Mot. 18–20.) Moreover, even if they had demonstrated that the information sought was a trade secret, they have failed to establish that disclosure of the secret might be harmful. (Id.) Finally, as with their Privacy Objection, Defendants' refusal to stipulate to a protective order that would shield their trade secret information from the public is a concern of their own making, and significantly undermines their contention that the information sought contains trade secrets.
On this basis, the Court OVERRULES Defendants' Trade Secrets Objection.
5. The Court OVERRULES Defendants' Vagueness Objection.
Each Defendant asserts a vagueness objection as to many of the requests in RFP Set One. (See Mot. 21; Pl.'s Exs. J, L, N, P, R.) The Court does not list each request individually here because Plaintiff does not challenge the applicability of this objection as to any specific request, but rather contends that the objections are “disingenuous.” (Mot. 21–22.) When asserted, the objection is part of a sentence of objections, and states some iteration of “vague ambiguous and unintelligible” sometimes with commas and sometimes without, “vague and ambiguous,” and “vague.” (“Vagueness Objection”). (Pl.'s Exs. J, L, N, P, R.) The Court also construes the following questions in Defendants' responses as a Vagueness Objection: “Communications between who & who?,” “Communications with whom?,” “Communications between who?,” and “Payments by whom?” (Id.)
*9 Plaintiff argues that Defendants' Vagueness Objection is disingenuous and reflects a failure by Defendants to “exercise reason and common sense to attribute ordinary definitions to terms and phrases.” (Mot. 21 (quoting Pulsecard, Inc. v. Discover Card Servs. Inc., 168 F.R.D. 295, 310 (D. Kan. 1996)).) Plaintiff notes that, despite written meet-and-confer efforts regarding the meaning of these requests, Defendants still have failed to “disambiguate” the requests. (Id. at 21–22, & n.8.) In response, Defendants assert their General Arguments and their Motion to Dismiss Arguments. (Id. at 18–24.)
A party that objects to discovery as vague or ambiguous bears the burden to show such vagueness or ambiguity. Mollica v. County of Sacramento, No. 2:19-cv-2017 KJM DB, 2021 U.S. Dist. LEXIS 111271, at *3 (E.D. Cal. June 14, 2021) (citations omitted). “ ‘The responding party should exercise common sense and attribute ordinary definitions to the terms in discovery requests.’ ” Id. (quoting Bryant v. Armstrong, 285 F.R.D. 596, 606 (S.D. Cal. 2012)).
Defendants have not carried their burden. As a threshold matter, Defendants do not explain what is vague or ambiguous about the requests at issue, or what, in those requests, causes them difficulty in framing an intelligent response. See Montgomery v. Wal-Mart Stores, Inc., No. 12cv3057-JLS (DHB), 2015 U.S. Dist. LEXIS 191953, at *9 n.1 (S.D. Cal. Sept. 4, 2015) (noting that a vagueness objection will be overruled where the interrogatory is not so vague and ambiguous as to preclude the responding party from providing an “intelligent response.”). (See Mot. 22–24.) Without this information, the Court is unable to determine the propriety of Defendants' Vagueness Objection.
On this basis, the Court OVERRULES Defendants' Vagueness Objection.
6. The Court OVERRULES Defendants' Equally Available Objection.
In response to a number of requests in RFP Set One, Defendants Wooten, Rinelli, Mills, and Armstrong assert the objection that the matter sought by those requests is equally available to Plaintiff. (See Mot. 24; Pl.'s Exs. L, N, P, R.) The Court does not list each request individually here because Plaintiff does not challenge the applicability of this objection as to any specific request, but rather contends that the objection is insufficient to resist discovery. (See Mot. 24–25.) When asserted, the objections are part of a sentence of objections, and state only “equally available” (“Equally Available Objection”). (Pl.'s Exs. L, N, P, R.)
Plaintiff argues that the Equally Available Objection is unavailing and insufficient to resist a discovery request. (Mot. 24–25 (citing Nat'l Acad. Of Recording Arts & Scis., Inc. v. On Point Events, LP, 256 F.R.D. 678 (C.D. Cal. 2009), Mills v. Billington, 2008 WL 11388757, at *3 (D.D.C. July 28, 2008).) In response, Defendants assert their General Arguments and their Motion to Dismiss Arguments. (Id. at 25–27.)
The Court agrees with Plaintiff that an objection that the information sought is equally available to the requesting party is inappropriate. “Courts have unambiguously stated that [the ‘equally available’] objection is insufficient to resist a discovery request.” Nat'l Acad. Of Recording Arts & Scis., Inc., 256 F.R.D. at 682 (citations and quotation marks omitted).
On this basis, the Court OVERRULES Defendants' Equally Available Objection.
7. The Court OVERRULES Defendants' Undue Burden Objection.
In response to a number of requests in RFP Set One, each of the Defendants asserts the objection that they are unduly burdensome. (See Mot. 27; Pl.'s Exs. J, L, N, P, R) The Court does not list each request individually here because Plaintiff does not challenge the applicability of this objection as to any specific request, but rather contends that Defendants fail to provide the detail necessary to support the objection. (Mot. 27–28.) When asserted, the objection is part of a sentence of objections, and states some iteration of “unduly burdensome,” “unduly burdensome oppressive and harassing,” and “unduly burdensome and harassing” (“Undue Burden Objection”). (Pl.'s Exs. J, L, N, P, R.)
*10 Plaintiff contends that Defendants' assertion of the Undue Burden Objection is improper as they have failed to show grounds in support of the objection, including sufficient detail regarding the time, money, and procedures required to produce the requested documents. (Mot. 27–28 (citing 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).) Plaintiff further notes that a party may not resist discovery merely because a production of documents may be time consuming and expensive. (Mot. 28 (citing In re Toys “R” Us-Delaware, Inc. Litig., No. ML 08-1980 MMM (FMOx), 2010 U.S. Dist. LEXIS 130884, at *20–22 (C.D. Cal. July 29, 2010)).) In response, Defendants reiterate their General Arguments and their Motion to Dismiss Arguments. (Id. at 28–30.)
To succeed on an undue burden objection, the party resisting discovery has the burden of establishing that the request is unduly burdensome. Pham, 2011 U.S. Dist. LEXIS 130038, at *8. 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. This detail must come in the form of evidentiary declarations supporting such objections. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996).)
Defendants' arguments are unavailing. They offer no evidence regarding the burden that answering this discovery purportedly would impose on Defendants. (See Mot. 28–30.) 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 “undue” burden. See In re Toys “R” US-Delaware, Inc., 2010 U.S. Dist. LEXIS 130884, at *20–21.
On this basis, the Court OVERRULES Defendants' Undue Burden Objection.
8. To the Extent Defendants are Withholding Responsive Documents Pursuant to Any Objection Without So Stating, Defendants' Responses Violate Rule 34(b)(2)(C).
Plaintiff contends that it is impossible to determine whether Defendants' responses to RFP Set One are complete because, despite having asserted myriad objections, Defendants fail to indicate whether any responsive documents are being withheld on the basis of those objections. (Mot. 30–31.) Defendants do not respond to this argument. (Id. at 31.) Instead, the section of the Motion that would present their response states only “[...].” (Id.)
Rule 34(b)(2)(C) is clear: if a party withholds responsive matter on the basis of an objection, it must so state. Fed. R. Civ. P. 34(b)(2)(C). Here, none of Defendants' responses indicate whether they are withholding responsive material pursuant to Rule 34(b)(2)(C). (See Pl.'s Exs. J, L, N, P, R.) Because Rule 34(b)(2)(C) does not impose an affirmative obligation that a party state it is not withholding documents, the absence of a Rule 34(b)(2)(C) statement implies that Defendants are not withholding responsive material. However, given Defendants' repeated assertion that they “reserve[ ] the right to amend and supplement this response based upon depositions and subpoenas” (Pl.'s Exs. J, L, N, P, R), it is unclear to the Court—and apparently to Plaintiff as well—whether Defendants are withholding documents.
Rule 34(b)(2)(B) requires that a document production “be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.” Fed. R. Civ. P. 34(b)(2)(B). Rule 26(e) requires that a party responding to a request for production supplement or correct its response upon learning that the response is incomplete or incorrect. Fed. R. Civ. P. 26(e). Because Rule 26(e) requires such supplementation, Defendants' reservation of the right to supplement a discovery response implies their acknowledgment that the response is incomplete.
*11 Here, the RFP Set One served on each of the Defendants specifies that production must be completed “within thirty (30) days ....” (Pl.'s Exs. I at 1–2; K at 1; M at 1; O at 1–2; Q at 1–2.) Given a service date of September 4, 2020 (Mot. 5), Defendants' complete production—without reservation of right to supplement—was due October 4, 2020. In turn, Defendants do not specify a different, “reasonable time” in which their respective document productions will be completed. (See Pl.'s Exs. J, L, N, P, R.) In light of Defendants' repeated reservation of right to supplement their responses, the Court finds Defendants' respective responses to RFP Set One to be deficient.
On this basis, the Court GRANTS Plaintiff's Motion as to RFP Set One. Defendants are ORDERED to supplement their responses to RFP Set One to bring their responses into compliance with the Rules and the Court's rulings above. Specifically, they must provide a complete response, known to Defendants as of the date of the supplementation, and a complete production of documents, within Defendants' possession, custody or control, as of the date of the supplementation.
D. Abrams's Response to RFP No. 4 Must Be Further Supplemented to Comport with the Court's RFP No. 4 Order, but Otherwise Need Not Be Supplemented.
Plaintiff next seeks an order compelling Defendant Abrams to further supplement his response to RFP No. 4, which requests as follows:
Request for Production No. 4: All DOCUMENTS RELATING TO money due, owed, or payable to Robin Goltsman from YOU and/or The Law Offices of C.R. Abrams, INCLUDING but not limited to what was commonly referred to as “the note” and/or “monthly backup reconciliation,” from 2010 to the present.[9]
(Mot. 31; Pl.'s Ex. I at 51.)
In his original response, Defendant Abrams responded as follows:
Responding party objection [sic] overbroad, invasion of privacy, taxpayer privilege, unduly burdensome and not relevant or likely to lead to the discovery of admissible evidence. Defendant reserves the right to amend and supplement this response based upon depositions and subpoenas.
(Mot. 31; Pl.'s Ex. J at 60.)
On April 14, 2021, the Court held an informal discovery conference regarding, among other things, Defendant Abrams's response to RFP No. 4, which Plaintiff contended was deficient. After conferring with the parties, the Court ordered as follows:
Defendant Christopher Abrams shall supplement his response to Request for Production No. 4 to state that, subject to the asserted objections, after a diligent search and reasonable inquiry, there are no further nonprivileged documents responsive to this request. To the extent Defendant Abrams withheld in connection with his original response and/or is withholding in connection with this supplemental response any privileged documents, he shall so identify them in a Privilege Log to be served. Defendant Abrams's verified supplemental response shall be served no later than April 19, 2021.
(“Court's RFP No. 4 Order.”) (RFP 4 Order, ECF No. 95 (emphasis in original.)
On April 19, 2021, Defendant Abrams served the following supplemental response:
Objection, vague, ambiguous, overbroad, harassing, unduly burdensome. Objection attorney work product attorney-client privilege “all documents ... “relating to” harassing, vague, over-broad, invasion of privacy, third-party privilege, excessive based on the needs of this case. Without waiving this objection there is nothing due Goldsman. There is nothing owed to Goltsman. There is nothing payable to Goltsman. Thus, and therefore nothing. No documents exist. No such documents have ever existed, falling within this category. Responding party has already produced the note, which conclusively establishes that it is Goltsman who owes the money, which she refuses to pay. That is the subject of one of the several cross complaints against Goltsman.
*12 (Mot. 32.)
In a June 5, 2021 meet-and-confer letter regarding RFP No. 4, Plaintiff clarified that RFP No. 4 seeks the following documents:
(1) The document referred to by and between the parties as “the monthly backup reconciliation,” from October 2019 to the present;
(2) The document referred to by and between the parties as “the note,” from October 2019 to the present;
(3) The document referred to by and between the parties as the “sales report,” from October 2019 to the present; and
(4) The document referred to by and between the parties as the “seminar stats,” from October 2019 to the present.
(Mot. 34; Pl.'s Ex. A at 15–16.)
Plaintiff argues that Defendant Abrams's supplemental response is deficient for four reasons. (Mot. 32–34.) First, it violates this Court's RFP No. 4 Order in that it does not provide the required, under-oath attestation that Defendant Abrams has “conducted a diligent search and reasonable inquiry” and that “there are no further nonprivileged documents responsive to this request.” (RFP 4 Order 1.) Second, RFP No. 4 is not overbroad in that it does not seek “large or general categories of ... documents,” but instead “modifies a sufficiently specific type of information, document or event.” (Mot 32–33 (quoting Adobe Sys. Inc. v. Christenson, No. 2:10-cv-00422-LRH-GWF, 2011 U.S. Dist. LEXIS 16977, at *32 (D. Nev. Feb. 7, 2011) (ellipses in original)).) Third, Defendants “may not continue ... to avoid answering questions by indicating that nothing is ‘owed’ to Ms. Goltsman, such as money payments or the computer alleged to have been stolen from Ms. Goltsman by Defendants.” (Mot. 33.) Plaintiff claims that “[t]his is made clear and required by the Court's December 28, 2020, Order on this issue.” (Id. at 33 (citing Dec. 28, 2020 Order, ECF No. 70).) Fourth, in any event, Plaintiff has narrowed RFP No. 4 to detail the four specific types of documents sought and the period for which they are sought, going back to 2019 rather than to 2010. (Id. at 34.) In response, Defendants reiterate their General Arguments and their Motion to Dismiss Arguments. (Id. at 34–37.)
The Court agrees with Plaintiff in part and disagrees in part. As to Plaintiff's first argument, the Court agrees that Defendant Abrams has not complied with the Court's RFP No. 4 Order in that he has not provided the required attestation regarding his search.
As to Plaintiff's second argument, the Court agrees that Defendant Abrams's overbreadth objection is unavailing. “Merely stating that an interrogatory is overbroad does not suffice to state a proper objection.... Instead, the objecting party must specify which part of a request is overbroad, and why.” Franklin v. Smalls, No. 09cv1067 MMA(RBB), 2012 U.S. Dist. LEXIS 150312, at *69–70 (S.D. Cal. Oct. 18, 2012) (citations and quotation marks omitted). Here, Defendant Abrams fails to articulate a legitimate basis for his contention that RFP No. 4 is overbroad. See Thomas v. Cate, 715 F. Supp. 2d 1012, 1032 (E.D. Cal. 2010). For this reason alone, the Court OVERRULES Defendant Abrams's overbreadth objection. See Thomas, 715 F. Supp. 2d at 1032; Franklin, 2012 U.S. Dist. LEXIS 150312, at *70. In addition, the Court finds that, contrary to Defendant Abrams's assertions, RFP No. 4 is specific and clearly delimited. It seeks documents related to money due, owed, or payable to Plaintiff by Defendant Abrams and/or Defendant Law Offices of C.R. Abrams since 2010, the date on which Plaintiff and Defendant Abrams restructured their joint business into two separate concerns—RG Abrams Insurance and the C.R. Abrams Law Firm. (Mot. 31; Pl.'s Ex. I at 51; Compl. 7.) Accordingly, for this additional reason, the Court OVERRULES Defendant Abrams's overbreadth objection.
*13 That said, the Court disagrees with Plaintiff's third and fourth arguments. As to Plaintiff's third argument, the December 28, 2020 Order does not state or even imply, as Plaintiff contends, that Defendants may not continue to avoid answering questions by indicating that nothing is owed to Ms. Goltsman. (Mot. 33.) To the contrary, United States Magistrate Judge Robert M. Illman wrote the following about RFP No. 4:
Plaintiffs move to compel Abrams's response to RFP No. 4 which seeks all documents relating to money due, owed, or payable to Goltsman from Abrams or his law firm. Abrams contends that he owes Plaintiff nothing and that there are no documents responsive to this request. Accordingly, Goltsman's request to compel documents which Abrams maintains do not exist is DENIED.
(Dec. 28 Order 10.) The excerpt from the December 28, 2020 Order that Plaintiff quotes in the Motion is not at all related to RFP No. 4. (Mot. 33–34.) Instead, it is related to RFP No. 17, through which Plaintiff sought to compel Defendant Wooten “to produce and tender a mirror image of the hard drive of Plaintiff's allegedly stolen marketing computer.” (Dec. 28 Order 16.) The Court finds nothing in the December 28, 2020 Order that in any way supports Plaintiff's insinuation that Defendants have been ordered by Judge Illman to cease their refusal to answer discovery based upon a contention that nothing is owed to Plaintiff. (See generally id.)
The Court also disagrees with Plaintiff's fourth argument that RFP No. 4 has been sufficiently narrowed and clarified such that Defendant Abrams now may further supplement his response. (Mot. 34.) Defendant Abrams has responded to RFP No. 4 as written. RFP No. 4 seeks documents related to money due, owed, or payable to Plaintiff by Defendant Abrams or his law firm. (Mot. 31; Pl.'s Ex. I at 51.) As such, it presumes a specific fact as a condition precedent to production—that money is or was, in fact, due, owed, or payable to Plaintiff. But this is a fact that Defendant Abrams disputes: “There is nothing owed to Goltsman. There is nothing payable to Goltsman.... [Abrams] has already produced the note[10], which conclusively establishes that it is Goltsman who owes the money, which she refuses to pay.” (Mot. 32.) Accordingly, as the condition precedent to production is not satisfied, no production is required. Indeed, Defendant Abrams clearly states: “Thus, and therefore nothing. No documents exist. No such documents have ever existed, falling within this category.” (Id.) Plaintiff's after-the-fact proposal to Defendants and request to the Court that RFP No. 4 be re-written is unavailing. First, Defendant Abrams is under no obligation to accept Plaintiff's re-write of the request, and there is no evidence that he did. (See generally Mot.) Second, the Court cannot re-write RFP No. 4, as it already has been properly answered. If RFP No. 4 were written to request what, after further consideration, Plaintiff now wants, the Court likely would compel such a production. However, “it is not the province of the Court to rewrite discovery requests.” Mycosafe Diagnostics GMBH v. Life Techs. Corp., No. 13cv93-BTM (MDD), 2013 U.S. Dist. LEXIS 193543, at *4 (S.D. Cal. Oct. 9, 2013).
*14 On this basis, the Court GRANTS in part and DENIES in part Plaintiff's request for an order compelling Defendant Abrams to provide a further supplemental response to RFP No. 4. Defendant Abrams is ORDERED to provide a further supplemental response that complies with the Court's RFP No. 4 Order. However, the Court does not order Defendant Abrams to further supplement his response, and related document production, in any other manner.
E. The Court GRANTS Plaintiff's Request for Attorneys' Fees Expended in the Bringing of the Motion in the Amount of $2,030.00.
Plaintiff asks the Court to award her the $2,940.00 in attorneys' fees she expended in the bringing of the Motion. For the reasons set forth below, the Court GRANTS Plaintiff's request and awards her the sum of $2,030.00.
1. Legal Standard
Pursuant to Rule 37(a)(5)(A), if a discovery motion is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party of the attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including the attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). However, Rule 37(a)(5)(A) also provides that “the court must 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.” Id. The party contesting the discovery sanction under Rule 37 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).
2. Plaintiff is Entitled to Her Attorneys' Fees Because Defendants' Responses and Objections Were Not Substantially Justified and Other Circumstances Do Not Exist to Make Such an Award Unjust.
Rule 37(a)(5)(A) mandates that a court award reasonable expenses, including attorneys' fees, where upon the granting of a discovery motion. Fed. R. Civ. P. 37(a)(5)(A). However, before granting such a request, a court must determine whether any of the three exceptions to the rule apply. Id.
The first exception—that the movant filed the motion before attempting in good faith to obtain the discovery without court action—does not apply. 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 additional time in which to supplement their responses, which proved to be of no avail. (Mot. 5–6, 37.)
The second exception—that the opposing party's response or objection was substantially justified—also does not apply because, outside of Defendant Abrams's supplemental response to RFP No. 4, Defendants' discovery positions were not substantially justified. 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).
*15 As a threshold matter, Defendants do not argue that their discovery positions were substantially justified. (Mot. 39.) Rather, they contend that it is they who are entitled to an award of attorneys' fees because Plaintiff “unnecessarily inflat[ed] and [ran] up the fees in this case.” (Id. at 40.)
As detailed above, Defendants' resistance to discovery is well-taken only as to Defendant Abrams's supplemental response RFP No. 4. Otherwise, Defendants do not offer explanations or clarify their objections to the other RFPs in order to justify their failure to produce responsive documents. Rather, Defendants repeat throughout the Motion stream-of-consciousness digressions—the General Arguments and the Motion to Dismiss Arguments—that not only confuse legal issues and standards, but also are inconsequential and unresponsive to Plaintiff's arguments. For these reasons, the Court is unable to conclude that, with the exception of RFP No. 4, 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.
The third exception—that other circumstances make an award of expenses unjust—also does not apply. Defendants do not argue that other circumstances would make an award of expenses unjust. (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.
3. Plaintiff is Entitled to an Award of $2,030.00.
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). Some of 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).
*16 The party seeking the award of fees must submit evidence to support the request. Van Gerwen v. Guar. 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 $2,940.00 in attorneys' fees based upon the following lodestar calculation: 8.4 hours spent by Plaintiff's counsel, a fourth-year associate at Burke, Williams & Sorensen, LLP, at an hourly rate of $350.00. (Mot. 37–39.) Defendant does not challenge the requested hourly rate nor the hours spent in bringing the Motion. (Id. at 39–40.) 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 $2,030.00 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 8.4 hours spent working on the Motion 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 Bringing of the Motion.
Plaintiff requests $665.00 in fees for researching the legal issues related to Defendants' objections (1.9 hours at $350.00 per hour), and $2,275.00 in fees for preparing the motion and accompanying declaration (6.5 hours at $350.00 per hour). (Am. Slater Decl. 5–6.)
The Local Rules require opposing counsel to meet and confer before bringing a discovery motion. C.D. Cal. L.R. 37-1. Citing similar 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 the fee award.” Matlink, Inc. v. Home Depo U.S.A., Inc., No. 07-cv-1994, 2008 U.S. Dist. LEXIS 124318, at *15 (S.D. Cal. Oct. 27, 2008); see also Aevoe Corp. v. AE Tech Co., LTD, No. 12-cv-00053, 2013 U.S. Dist LEXIS q135755, 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, 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. 08-cv-482, 2010 U.S. Dist. LEXIS 93071, 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”).
*17 Plaintiff asserts that Defendants “fail[ed] to bring their responses to [RFP Set One] into compliance with the federal discovery rules” and “fail[ed] to meaningfully meet and confer.” (Mot. 37 (citing Pl.'s Exs. A–E).) But regardless of the level of Plaintiff's frustration with the meet-and-confer process, these efforts would have been required regardless of whether a motion ever was filed. I.R. v. City of Fresno, No. 12-cv-558, 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. The Court therefore declines to award expenses relating to meet-and-confer efforts.
Still, it is unclear whether the 1.9 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 overlap. (Am. Slater Decl. 5–6.) 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 grounds that they were not for motion-related work. Id.
In that the Court is unable to determine whether the 1.9 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 1.9 hours, resulting in a subtotal of 6.5 hours (8.4 hours less 1.9 hours).
c. Some of the Hours Billed by Plaintiff Warrant Reduction Because the Motion Was Denied in Part.
The remaining 6.5 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 an order overruling eight of Defendants' objections—the General Objections, Privilege Objections, Taxpayer and Expert Consultant Objections, Privacy Objection, Trade Secrets Objection, Vagueness Objection, Equally Available Objection, Undue Burden Objection—and an order compelling Defendant Abrams's further supplemental response to RFP No. 4. The Court granted Plaintiff's Motion as to the eight objections and largely denied the Motion as to RFP No. 4. Thus, Plaintiff's level of success equals roughly eight-ninths (8/9) of the Motion. Apportioning the remaining 6.5 hours to reflect this success rate, the Court concludes that Plaintiff is entitled to 5.8 hours of work (6.5 hours multiplied by 8/9).
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. 39; Am. Slater Decl. 5.) 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).
*18 Plaintiff's counsel does not attest to his background and experience. (See generally Am. 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.” (Am. Slater Decl. 5.) Although the Court notes that Plaintiff's Motion is somewhat lacking in evidence supporting her counsel's fees, the Court takes judicial notice of its own docket and notes that Plaintiff's 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.[11] (ECF Nos. 69 at 2 (awarding Plaintiff $1,400.00 in attorneys' fees because of Defendants' unreasonable conduct), 71 at 6 n.4, 7 (awarding Plaintiff $5,250.00 in attorneys' fees because of Defendants' lack of cooperation in service of process under Rule 4(d)).) Plaintiff's counsel's hourly rate also was approved by this Court in two prior discovery motions. (ECF No. 128 at 33–34; ECF No. 134 at 43–44.) Finally, the Court notes that, according to the Wolters Kluwer 2020 Real Rate Report (Mid-Year Update) (“Real Rate Report”),[12] Plaintiff's 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.
d. The Re-Calculated Lodestar Results In an Attorneys' Fees Award of $2,030.00 and No Kerr Adjustment is Necessary.
The Court recalculates the lodestar for a total of $2,030.00. This is calculated as 5.8 hours (8.4 requested hours less 1.9 deducted hours yields 6.5 hours, adjusted by 8/9) 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 that are not already subsumed within the lodestar, the Court sees no reason to make such an adjustment. On this basis, the final fee award is $2,030.00.
IV. CONCLUSION
For the reasons stated above, the Court ORDERS as follows:
1. All Defendants shall supplement their responses to RFP Set One, consistent with the Court's findings above, and produce all nonprivileged responsive documents withheld pursuant to the overruled objections by no later than fifteen days after the date of this Order.
2. All supplemental responses shall quote each request for production in full immediately preceding the statement of any response or objection thereto. C.D. Cal. L.R. 34-2.
3. To the extent any of Defendants' respective searches for responsive documents yields no responsive documents, he/she/they shall state, under oath, in their respective supplemental responses to each individual request, that he/she/they has/have conducted a diligent search and reasonable inquiry in an effort to comply with the request and that no nonprivileged documents responsive to that request are within that Defendant's possession, custody, or control. In addition, Defendants must explain the reason for their non-compliance, e.g., “the document never existed, has been lost or stolen, was inadvertently destroyed, or is not in the possession, custody, or control of the responding party.” Judge Virginia A. Phillips & Judge Karen L. Stevenson, Prac. Guide: Fed. Civ. Pro. Before Trial ¶ 11:1913 (2021).
*19 4. To the extent any of the Defendants withholds responsive documents pursuant to an objection, he/she/they must so state within the response consistent with Rule 34(b)(2)(C). Specifically, they must provide a complete response, known to Defendants as of the date of the supplementation, and a complete production of documents, within Defendants' possession, custody or control, as of the date of the supplementation.
5. To the extent responsive documents are withheld pursuant to privilege, any Defendant so withholding must serve a privilege log identifying that matter 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, *5 (N.D. Cal. Mar. 17, 2014) (listing similar factors).
6. Defendant Abrams shall provide a further supplemental response to RFP No. 4 that complies with the Court's RFP No. 4 Order, affirmed here.
7. Defendants shall pay to Plaintiff, jointly and severally, the sum of $2,030.00 as reasonable expenses in bringing the Motion, pursuant to Rule 37(a)(5)(C). 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.
Unless otherwise stated, all further references to “Rules” shall be to the Federal Rules of Civil Procedure.
Exhibits A through J were attached to both the Slater Declaration and the Amended Slater Declaration. For ease of reference, the Court cites to the exhibits attached to the Amended Slater Declaration.
Plaintiff filed two exhibits labeled “Exhibit 9.” Accordingly, the Court re-names these exhibits as “Exhibit 9-1” for the first, and “Exhibit 9-2” for the second.
The parties have not provided Defendant Abrams's supplemental responses, except as to RFP No. 4.
All further references to “Rule” are to the Federal Rules of Civil Procedure.
No ruling has been issued as of the issuance of this Order.
Defendant does not contend that the defined terms (indicated in bold capital letters) are vague or ambiguous. (See Mot. 34–37.) Accordingly, it is not necessary for the Court to include the definitions provided in RFP Set One.
Plaintiff contends that this is not the “note” sought by RFP No. 4. She explains that Plaintiff “signed what the parties called ‘the note’ every month they conducted business,” which note represented Plaintiff's “obligation to pay $50 per trust processed, after which time [Abrams] would give [Plaintiff] the money from sales to hold in abeyance until the trusts were processed.” (Mot. 33.) But if this is what Plaintiff seeks, she should have written RFP No. 4 in that way.
See Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); Harris v. County of Orange, 682 F.3d 1126, 1131–32 (9th Cir. 2012) (court may take judicial notice of “documents on file in federal or state courts.”).
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. County 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.)