*1 On July 30, 2021, the parties in this action filed a Joint Stipulation (alternatively “JS” (ECF No. 60-1)) in support of their positions regarding defendants' Motion (“Motion” or “Mot.” (ECF No. 60)) seeking to compel Warner Bros. Entertainment Inc. (“WB” or “plaintiff”) to: (1) produce documents responsive to defendants' Requests for Production of Documents (“RFP”) numbers 2-4, 6-13, and 15-16; and (2) fully respond to Interrogatory number 1. (JS at 1). Defendants also submitted the declaration of their counsel Heidi H. Tandy (“Tandy Decl.”) with exhibits; plaintiff submitted the declaration of its counsel Andrew J. Thomas (“Thomas Decl.”) with exhibits. On September 1, 2021, defendants filed their Supplemental Memorandum (alternatively “Supp'l Mem.”), along with the declaration of their counsel Amy Thomas Brantly (“Brantly Supp'l Decl.”) with exhibits. (ECF No. 70). Having considered the pleadings submitted in connection with the Motion, the Court has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for September 15, 2021, is ordered off calendar. See Local Rule 7-15.

By way of background, on December 23, 2020, defendants served the subject written discovery on plaintiff. (JS at 1 (citing Tandy Decl. ¶ 2 Exs. A, B)). Plaintiff served its responses on March 4, 2021, and responded generally that it would produce documents after a protective order was entered in this action. (Id.). The next day, on March 5, 2021, the Court issued the Protective Order. (ECF No. 56).

Defendants acknowledge that WB's counsel has confirmed that “there are no requests for production to which it will not be producing documents, or interrogatories to which it will not be providing a substantive response,” but assert that, notwithstanding these representations, no documents have been provided in response to many of defendants' RFPs, and WB's response to Interrogatory No. 1 “remains insufficient.” (JS at 1 (citing Tandy Decl. ¶ 19)). They state they have “continually requested production [of responsive documents] ... and yet the only additional documents that have been produced are approximately 1000 cease and desist letters to third parties, and one ‘proactive’ document created by RedBubble in 2019 which was attached to correspondence between RedBubble and WB.” (Id. at 2).

Defendants also complain that despite plaintiff's counsel's agreement to conduct a meet and confer call with defendants either the week of June 21, 2021, or June 28, 2021, plaintiff's counsel was not available until July 7, 2021, when the meet and confer took place. (Id.). At that conference, plaintiff's counsel purportedly represented that plaintiff would amend its Interrogatory responses and produce additional responsive documents before the parties' scheduled mediation on July 20, 2021, but “failed to produce all critical responsive documents ... [and] also failed to properly supplement its answer to Interrogatory No. 1,” putting defendants “at a significant disadvantage by WB's delays, prevarications, and failure to properly respond to discovery.” (Id. at 3).

*2 Plaintiff responds that defendants “have gone to great lengths to manufacture a dispute where none exists,” in order to drive up litigation costs and portray WB's “good faith discovery efforts in a false light.” (Id.). It notes that -- as acknowledged by defendants -- it has already confirmed that it will not withhold any category of responsive documents and agreed to supplement its response to Interrogatory number 1,[1] which it did for the second time on July 27, 2021. (Id.). It states that it also produced 1,488 additional documents on July 13, 2021, and supplemental responses to defendants' RFPs and Interrogatories on July 16, 2021. (Id. at 5 (citing Thomas Decl. ¶ 5)). Plaintiff contends that defendants never met and conferred regarding “any claimed deficiencies in its supplemental responses” to RFP numbers 8, 12, and 15, which were served six days before defendants provided their portion of the JS to WB. (Id. at 3-4). It also states that it provided its second supplemental response to Interrogatory number 1 on July 27, 2021, and produced “related documents” on July 29, 2021. (Id. (citing Thomas Decl. ¶¶ 5, 9)).

Plaintiff generally submits that the Motion should be denied because plaintiff has already agreed to comply with “all of Defendants' requests that are at issue in this motion.” (Id.). It also argues that the Motion is “procedurally deficient” with respect to RFP numbers 8, 12, and 15, because it served supplemental responses about which defendants never met and conferred. (Id. (citing Fed. R. Civ. P. 37(a)(1); C.D. Cal. L.R. 37-1)). Plaintiff points out that “the parties have already agreed in principle to extend the discovery period in this matter [to beyond August 27, 2021,] so that they can complete document and deposition discovery in an orderly fashion.” (Id. at 6). Indeed, on August 24, 2021, the District Judge granted in part the parties' stipulation to extend the case schedule, and the discovery cut-off date is now November 29, 2021. (ECF Nos. 65, 67).

Defendants suggest that plaintiff's strategy is clear: “provide incomplete or inadequate responses to ... requests, stonewall attempts to meet and confer, belatedly provide inadequate supplementary responses, and then claim that the meet and confer process needs to begin again, or that the Court should deny relief ... because [plaintiff] has agreed to provide discovery at some future point.” (Def'ts' Supp'l Mem. at 1).

The Subject Discovery

RFP Numbers 3, 4, 6, 10, 13, and 16

Defendants contend that in response to RFP numbers 3, 4, 6, 10, 13, and 16,[2] WB asserted a “litany of specific objections,” but then agreed to produce responsive documents after the entry of a protective order. (JS at 9). They argue that despite the Protective Order being in place in this action since March 5, 2021, no responsive documents have been produced. (Id. (citing Tandy Decl. ¶¶ 9, 19 & Exs. C, D, I)).

Plaintiff responds that the Motion should be denied as moot because it has “either already complied or agreed to comply” with these requests. (Id. (citing Tandy Decl. ¶¶ 9, 19 & Exs. C, D, I; Thomas Decl. ¶¶ 2-5, 7, 9)). It states that in its supplemental Interrogatory responses, it identified by Bates number “where documents responsive to these requests were included in its initial production in March.” (Id. (citing Thomas Decl. ¶ 4 Ex. 2)). It also notes that the parties agreed “that they would provide ‘rolling’ productions of documents” as they were reviewed and became available to produce. (Id. at 10 (citing Thomas Decl. ¶ 4)). WB states it has “abided by that agreement and has made two substantial productions since March 2021 -- totaling 1,488 documents and 5,192 pages.” (Id. (citing Thomas Decl. ¶ 5)).

*3 Plaintiff also represents that “[t]o the extent [it] discovers additional documents responsive” to RFP numbers 6, 13, and 16, it will produce them, and “to the extent [it] has not produced documents responsive to Request Nos. 3, 4, and 10, those will be produced as promptly as possible as part of its rolling production.” (Id. at 11).

Defendants respond that these requests were served more than eight months ago and, “with ten weeks left until discovery closes, there is no reasonable basis for [plaintiff's] wholesale failure to produce the documents at issue.” (Def'ts' Supp'l Mem. at 5). They assert that if plaintiff does not “move from agreeing to produce documents to actually producing them,” they will be prejudiced in their ability to prepare for trial and to conduct fact discovery, including depositions. (Id.).

The Court agrees with defendants that plaintiff's agreement to comply with these requests is not the same is its compliance with that agreement by way of producing responsive documents. Furthermore, in the almost five weeks since the Motion was filed, and despite its representation that it would be producing documents “as promptly as possible,” plaintiff has not produced any additional documents. (See id. at 5 n.3 (noting that in the more than a month that has passed between the filing of the Motion and the filing of defendants' Supplemental Memorandum, plaintiff “has not produced any responsive documents”). Accordingly, the Motion is not moot as suggested by plaintiff.

Based on plaintiff's representation that it has been and will be producing documents responsive to these RFPs, defendants' Motion is granted. Plaintiff has had since March 2021 to search for and produce the responsive documents, and the discovery cutoff date of November 29, 2021, is rapidly approaching. Thus, to the extent they have not already been produced, no later than September 20, 2021, plaintiff shall produce all documents responsive to RFP numbers 3, 4, 6, 10, 13, and 16 in its possession, custody, or control. If plaintiff determines that it has no additional responsive documents to produce in response to one or more the these RFPs, then no later than September 20, 2021, it shall provide defendants with a declaration, signed under penalty of perjury by a corporate representative, so stating, and identifying the requests for which it has no additional responsive documents.

RFP Numbers 2, 7, 9, and 11

Defendants again contend that for each of these requests, WB asserted a “litany of specific objections,” but then agreed to “produce non-privileged documents that reasonably can be determined to be responsive to this request following the entry of a Protective Order by the Court.” (JS at 14). They again argue that despite the Protective Order being in place since March, “no documents have been produced except for one document responsive to Request No. 7.” (Id. (citing Tandy Decl. ¶¶ 5-19 & Exs. F-O)).

Defendants also complain that plaintiff's qualification that it will only produce documents “that ‘reasonably’ can be determined to be responsive,” is unclear, and plaintiff has not explained “what methods it will use in making this determination.” (Id.). As a result, defendants “cannot be sure how WB is conducting its search and what documents it will be producing.” (Id.). Defendants also assert that there is no authority supporting WB's assertion “that it can unilaterally determine what is reasonable to produce.” (Id.).

*4 Plaintiff observes that defendants have again conceded that WB has agreed to produce documents responsive to these requests and, therefore, contends that defendants' Motion is moot. (Id.). It states that it takes its “discovery obligations seriously, including [its] duty to ‘reasonably and diligently search for and produce responsive documents’ and ‘construe discovery requests in a reasonable manner.’ ” (Id. at 14-15 (citation omitted)). It explains that its statement that it will produce documents that “reasonably can be determined to be responsive,” “is merely an affirmation that it will conduct reasonable and diligent searches for documents responsive to Defendants' overly broad, vague, and ambiguous, document requests.” (Id. at 15).

Plaintiff states that if defendants have specific concerns about deficiencies in these responses, it “will work to resolve those concerns,” but asserts that defendants “have raised no such specific concerns to-date.” (Id.).

Defendants reply that plaintiff's explanation regarding what it meant when it stated that it will search for documents that reasonably can be determined to be responsive, “makes no sense” given that plaintiff “selectively inserted the qualification on its agreement to produce in response to some requests and not others.” (Def'ts' Supp'l Mem. at 4). They assert that in light of plaintiff's objections that the requests are overbroad, unduly burdensome, disproportionate, vague, and ambiguous, “this is not an academic question,” because plaintiff has “refused to discuss what documents it is searching for, or what documents it considers to be ‘reasonably responsive.’ ” (Id.). They state that plaintiff should be “required to clearly state what it is agreeing to search for and produce so that [defendants] can make [their] own determination of whether the limits” imposed by plaintiff are reasonable. (Id.).

Again, the Court determines that plaintiff's agreement to comply with these requests, or to search for what it deems to be “reasonably responsive” documents, is not the same as its compliance with its agreement to comply with these requests by way of producing responsive documents, or to comply with the Federal Rules of Civil Procedure by conducting a reasonable and diligent search for responsive documents. Furthermore, as previously discussed, plaintiff has not provided any argument to support its objections to these requests. Accordingly, the Motion is not moot as suggested by plaintiff.

Based on plaintiff's representations that it will be producing documents responsive to these RFPs and that it recognizes its obligation under the Federal Rules of Civil Procedure to conduct a reasonable and diligent search for responsive documents, defendants' Motion is granted with respect to RFP numbers 2, 7, 9, and 11. As with the above RFPs, plaintiff has had since March 2021 to search for and produce the responsive documents, and the discovery cutoff date is rapidly approaching. Thus, to the extent they have not already been produced, no later than September 20, 2021, plaintiff shall conduct a reasonable and diligent search and produce documents responsive to RFP numbers 2, 7, 9, and 11 in its possession, custody, or control. If plaintiff determines that it has no additional responsive documents to produce in response to one or more the these RFPs, then no later than September 20, 2021, it shall provide defendants with a declaration, signed under penalty of perjury by a corporate representative, so stating and identifying the requests for which it has no additional responsive documents.

RFP Numbers 8, 12, and 15

Defendants state that with respect to these requests, plaintiff originally provided only blanket objections, and “mere days before the parties' long-scheduled mediation,” it provided its supplemental responses. (JS at 19). They assert that plaintiff's continued vague and ambiguous objections to the terms “Respondent” (which defendants state was clearly defined in the instructions to refer to WB), and “recitation of services” (a term of art in trademark law practice), show plaintiff's “lack of good faith in responding to these requests.” (Id.). Defendants suggest that plaintiff amended its responses to state that it would produce responsive documents after “[r]ecognizing that its objections were ill-founded” but, in any event, “has not actually produced any such documents.” (Id.).

*5 Plaintiff responds that -- as acknowledged by defendants -- on July 16, 2021, it supplemented its responses and agreed to comply with these requests, and defendants “now complain that Warner Bros. did not produce responsive documents in the six days that passed between the service of Warner Bros.' supplemental responses and Defendants['] service of this joint stipulation.” (Id.). Plaintiff argues that because it has already agreed to produce responsive documents, defendants' Motion is moot; that defendants failed to meet and confer regarding these supplemental responses in violation of the Federal Rules of Civil Procedure and this Court's Local Rules; and that defendants' claim that WB has not produced documents responsive to these requests is “patently unreasonable” in light of the fact that WB only agreed to comply with these requests on July 16, 2021. (Id. at 20).

Plaintiff also represents that it will “conduct a reasonably diligent search for documents responsive to these requests and will produce documents on a rolling basis, as they are reviewed and become available for production.” (Id. at 20-21).

Although plaintiff may have supplemented its responses and agreed to comply with these requests, in the almost five weeks that have passed since the Motion was filed, and in the almost seven weeks since July 16, 2021, when it states it “agreed to comply,” it has not produced any responsive documents. (See Def'ts' Supp'l Mem. at 5 n.4). Thus, defendants' claim that plaintiff has not produced documents responsive to these requests is far from “patently unreasonable.” As previously noted, plaintiff's agreement to comply with these requests is not the same is its compliance with that agreement by way of actually producing responsive documents. Accordingly, the Motion is not moot as suggested by plaintiff.

Based on plaintiff's representation that it will produce responsive documents to these RFPs, defendants' Motion is granted with respect to RFP numbers 8, 12, and 15. To the extent they have not already been produced, no later than September 20, 2021, plaintiff shall conduct a reasonable and diligent search and produce documents responsive to RFP numbers 8, 12, and 15 in its possession, custody, or control. If plaintiff determines that it has no responsive documents to produce in response to one or more the these RFPs, then no later than September 20, 2021, it shall provide defendants with a declaration, signed under penalty of perjury by a corporate representative, so stating, and identifying the requests for which it has no additional responsive documents.

Interrogatory Number 1

This Interrogatory asked plaintiff to identify all individuals with knowledge of the allegations set forth in paragraph 8 of plaintiff's March 13, 2020, Complaint. (JS at 21). In its initial response, plaintiff objected on various privilege grounds, and responded that “In-house counsel at Warner Bros.” had such knowledge. (Id.). It also stated that it would “provide further non-privileged information responsive to this interrogatory following the entry of a Protective Order.” (Id.). In its supplemental response, plaintiff stated the same objections and expanded the list to include several other individuals and groups (such as WB's “Clip and Still Department,” and members of the Hogwarts Running Club and the Potterhead Running Club Facebook group). (Id.).

Defendants complain that rather than identifying actual individuals, WB responded by naming “departments within its multinational corporation.” (Id. at 22). They argue that if plaintiff knows, for instance, of any specific “members of the Hogwarts Running Club/Potterhead Running Club Facebook group,” who have responsive knowledge, then it should identify them. (Id.).

Plaintiff responds that it has already agreed to supplement its response to identify “the individual complainant who submitted the complaint at issue in Paragraph 8 of the Amended Complaint,” and on July 20, 2021, plaintiff's counsel informed defendants' counsel that during the week of July 26, 2021, plaintiff would “identify this individual by name ... as well as produce documents referring to this individual by name.” (Id. (citing Thomas Decl. ¶ 7)). Plaintiff points out that “just two days later,” defendants provided their portion of the JS to plaintiff. (Id. (citing Thomas Decl. ¶ 8)). Plaintiff argues, therefore, that defendants' Motion with respect to Interrogatory number 1 should be denied as moot, especially in light of the fact that it served its second supplemental response to this Interrogatory on July 27, 2021, and produced related documents on July 29, 2021. (Id. (citing Thomas Decl. ¶ 9)).

*6 In their Supplemental Memorandum, defendants explain that after promising to identify the individual complainant by name, when it served its third response to this Interrogatory (after being served with the Joint Stipulation), plaintiff “still identifie[d] ‘[i]n-house counsel,’ unnamed WB employees, [and] unnamed ‘members’ of RTI running clubs and Facebook Groups” and, while it identified the individual “consumer,” it “improperly designated the witness's name as ‘Attorneys Eyes Only.’ ” (Def'ts' Supp'l Mem. at 3 (citing Brantly Supp'l Decl. ¶¶ 2-3)). They state that they commenced meet and confer discussions on July 28, 2021, with respect to the Attorneys' Eyes Only designation, and that “[o]ver a month later, WB has not provided legal authority for its designation and has refused to respond to [defendants'] promise that the witness's identity could be designated as ‘Confidential’ for the purposes of discovery.” (Id. (citing Brantly Supp'l Decl. ¶¶ 4, 5 & Ex. A)). Defendants point out that in the Joint Stipulation plaintiff only stated that it agreed to serve a supplemental response and “did not inform the Court that its supplemental response completely failed to address what is at issue in this motion -- WB's failure to identify individual witnesses as requested,” and “offers no defense of its failure to identify the actual persons with knowledge of the allegations in paragraph 8” of plaintiff's First Amended Complaint. (Id. at 3-4).

The Court notes that plaintiff appears to have supplemented its response to Interrogatory number 1 with the identity of the individual mentioned in paragraph 8 of the Complaint -- albeit designated as Attorneys' Eyes Only -- but failed to provide individual names with respect to the individuals within the groups it had generally identified as having knowledge of the allegations in paragraph 8 of the First Amended Complaint. The issue of plaintiff's designation of the individual complainant's name as Attorneys' Eyes Only is not currently before this Court (although defendants indicate they are preparing a separate motion for the Court's consideration).[3] (Id. at 3 n.2). However, defendants' argument that plaintiff should be required to identify individual members of the various groups it identified as having knowledge of the allegations in paragraph 8 of the First Amended Complaint is before the Court.

Defendants' Motion to compel further response to Interrogatory number 1 is granted in part. No later than September 20, 2021, plaintiff shall provide a further supplemental response to Interrogatory number 1 identifying the names of individual witnesses in the groups it previously identified only as “in-house counsel,” employees in WB's “Clip and Still Department,” and “members of the Hogwarts Running Club/Potterhead Running Club Facebook group.” (See Tandy Decl. Ex. D).

To the extent plaintiff -- based on a claim of attorney-client privilege or the work product doctrine -- withholds any documents the Court has ordered to be produced, no later than September 20, 2021, plaintiff must provide defendant with a sufficiently detailed privilege log to enable defendant to evaluate the applicability of the privilege or other protection asserted. Fed. R. Civ. P. 26(b)(5); see The Rutter Group, Cal. Practice Guide, Fed. Civ. Proc. Before Trial, Form 11:A (Privilege Log). Clarke v. Am. Comm. Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992); see The Rutter Group, Cal. Practice Guide, Fed. Civ. Proc. Before Trial, Form 11:A (Privilege Log). Failure to provide sufficient information may constitute a waiver of the privilege. See Eureka Fin. Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991).

To the extent the Court's Order herein requires plaintiff to produce documents that contain confidential, private, proprietary, and confidential information, those concerns are adequately addressed by the protective order previously issued in this action. (ECF Nos. 55, 56).

IT IS SO ORDERED.

In light of plaintiff's representation that it will not withhold any category of documents responsive to the document requests, its agreement to supplement its response to Interrogatory number 1, and its general failure to provide argument supporting its objections to the requests, the Court overrules plaintiff's objections that the requests are overbroad, vague and/or ambiguous, unduly burdensome, and not relevant and/or proportional to the needs of the case.

The parties have grouped the requests together “where the production deficiencies are the same for each request.” (JS at 6 n.5).

The Court anticipates that the parties, working together cooperatively and in good faith as required by the Court's Local Rules, the Federal Rules of Civil Procedure, and the Central District Court's Civility and Professionalism Guidelines (which can be found at http://www.cacd.uscourts.gov/attorneys/admissions/ civility-and-professionalism-guidelines), will be able to resolve the issue of plaintiffs' Attorneys' Eyes Only designation without the need for Court intervention.