I. INTRODUCTION

*1 Before the Court is Plaintiffs' Motion for Leave to File a Motion to Compel Entity Defendants' Responses to Plaintiff's Requests for Production of Documents Set One (“Leave Motion”). (Leave Mot., ECF No. 280). The Motion was filed by Plaintiffs/Counter-Defendants RG Abrams Insurance and Robin Goltsman (“Plaintiffs”). Through the Leave Motion, Plaintiffs seek (1) leave from the Court's October 1, 2021 discovery cut-off deadline to file[1] Plaintiffs' proposed Motion to Compel Entity Defendants' Responses to Plaintiff's [Robin Goltsman's] Requests for Production of Documents, Set One (“RFP-1 Motion”); and (2) an order that the Entity Defendants pay to Plaintiffs, pursuant to 28 U.S.C. § 1927 and this Court's inherent powers, the sum of $2,835.00 as and for the attorneys' fees Plaintiffs incurred in preparing the Leave Motion. (See generally Leave Motion.)

In support of the Leave Motion, Plaintiffs filed the Declaration of Michael A. Slater in Support of Plaintiffs' Motion for Leave to File a Motion to Compel Entity Defendants' Responses to Plaintiff's Requests for Production, Set One (“Slater Leave Declaration”) (Slater Leave Decl., ECF No. 280-1, at 1–7)[2], and its accompanying Exhibits A through K (Pls.' Leave Ex. A (ECF No. 280-1 at 8–9); (Pls.' Leave Ex. B (id. at 10–22); (Pls.' Leave Ex. C (id. at 23–43); (Pls.' Leave Ex. D (id. at 44–48); (Pls.' Leave Ex. E (id. at 49–51); (Pls.' Leave Ex. F (id. at 52–56); (Pls.' Leave Ex. G (id. at 57–59); (Pls.' Leave Ex. H (id. at 60–62); (Pls.' Leave Ex. I (id. at 63–66); (Pls.' Leave Ex. J (id. at 67–68); (Pls.' Leave Ex. K (id. at 69–77).)

As ordered by the Court, Plaintiffs' proposed RFP-1 Motion was embedded within the Leave Motion. (RFP-1 Mot., ECF No. 280, at 27–40.) In support of the RFP-1 Motion, Plaintiff filed the Declaration of Michael A. Slater in Support of Plaintiff's Motion to Compel Entity Defendants' Responses to Plaintiff's Requests for Production of Documents, Set One (“Slater RFP-1 Declaration”) (Slater RFP-1 Decl., ECF No. 280, at 43–47) and its accompanying RFP-1 Exhibits A through G (Pls.' RFP-1 Ex. A (id. at 48–49); Pls.' RFP-1 Ex. B (id. at 50–62); Pls.' RFP-1 Ex. C (id. at 63–83); Pls.' RFP-1 Ex. D (id. at 84–88); Pls.' RFP-1 Ex. E (id. at 89–91); Pls.' RFP-1 Ex. F (id. at 92–96); Pls.' RFP-1 Ex. G (id. at 97–102).)

*2 The Entity Defendants filed an Opposition to Plaintiffs' Motion for Leave to File Motion to Compel Responses from Entity Defendants, Set One (“Opposition”). (Opp'n, ECF No. 286.) Through their Opposition, they argue that the Leave Motion should not be denied and seek attorneys' fees in the amount of $6,412.00. (See generally Opp'n.) In support of the Opposition, the Entity Defendants filed the Declaration of Timothy Donohue (“Donahue Declaration”) (Donahue Decl., ECF No. 286-1, at 1–7, and its accompanying Exhibit A (Defs.' Ex. A (ECF No. 286-1 at 8–10).)

Plaintiff filed a Reply Memorandum in Support of Plaintiffs' Motion for Leave to File a Motion to Compel Entity Defendants' Responses to Plaintiff's Requests for Production of Documents, Set One (“Reply”). (Reply, ECF No. 290.) In addition to providing a response to the Entity Defendants' Opposition, Plaintiff seeks an additional $1,260.00 for attorneys' fees incurred in the preparation of the Reply. (See generally Reply.) In support of the Reply, Plaintiff filed the Supplemental Declaration of Michael A. Slater in Support of Reply Memorandum in Support of Plaintiff's Motion for Leave to File a Motion to Compel Entity Defendants' Responses to Plaintiff's Requests for Production of Documents, Set One (“Slater Supplemental Declaration”). (Slater Suppl. Decl., ECF No. 290-1.)

Plaintiffs note in their Reply that the Entity Defendants did not file an opposition to the RFP-1 Motion. (Reply 5.) While the Entity Defendants were ordered to file an opposition to each of the Leave Motion and the RFP-1 Motion (ECF No. 274 at 3–4), they filed only the single Opposition, which does not differentiate between their opposition to each of the two motions. However, a review of the Opposition reveals an apparent intent by the Entity Defendants to, therein, oppose both the Leave Motion and the RFP-1 Motion. On page 7, the header states: “MOTIONS SHOULD BE DENIED.” (Opp'n 7.) In addition, some of the arguments raised by the Entity Defendants appear to pertain only to the RFP-1 Motion, including harassment (id. at 3–4); lack of relevance (id. at 5); violation of Judge Robert M. Illman's order (id. at 6–7); proportionality (see id. at 8–9); privacy (id. at 9); attorney-client privilege (id. at 9–10). On this basis, the Court construes the Entity Defendants' Opposition as their response to both the Leave Motion and the RFP-1 Motion.

Upon review of the papers filed by the parties, the Court concludes that a hearing is not necessary and that the Leave Motion and the RFP-1 Motion are suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons set forth below, the Court GRANTS Plaintiffs' Leave Motion but DEFERS its ruling on Plaintiffs' request for attorneys' fees so that it may rule on this and other pending attorneys' fees requests (see ECF Nos. 274 at 2; 256 at 26–32) together. In addition, the Court GRANTS Plaintiffs' RFP-1 Motion, including a portion of the attorneys' fees sought therein.

II. THE COURT GRANTS PLAINTIFFS' LEAVE MOTION.

Through the Leave Motion, Plaintiffs seek leave to file the RFP-1 Motion after the discovery cut-off date of October 1, 2021. Judge Aenlle-Rocha has given to the undersigned both the authority and the discretion to decide motions for leave to file certain discovery motions after the discovery cut-off date. (ECF No. 271 at 6.) Pursuant to that authority, this Court exercises its discretion and GRANTS Plaintiffs' Leave Motion (except, as noted above, as to the attorneys' fees sought therein, which decision is deferred to a later date).

*3 The proposed RFP-1 Motion seeks to compel the Entity Defendants The Law Offices of C.R. Abrams, PC and Rinelli Law Group, PC (together, “Entity Defendants”) to respond to Plaintiff Robin Goltsman's RFP-1. In seeking leave to file the RFP-1 Motion, Plaintiffs argue that the RFP-1 Motion is necessitated because the Entity Defendants responded to Plaintiff's RFP-1 with objections only and provided no substantive responses or responsive documents. (RFP-1 Mot. 32; Pls.' RFP-1 Ex. C.) In support of the Leave Motion, Plaintiffs explain that they could not have conducted the RFP-1 discovery any sooner or brought the RFP-1 Motion any earlier because counsel for the defendants “misrepresented [to Plaintiff's counsel] for more than a year that the Entity Defendants were not [ ] legal entities amenable to suit.” (Leave Mot. 14–15 (italics omitted).) Plaintiffs aver that it was not until Defendant Christopher Abrams testified at his deposition, nearly one year after the purported misrepresentation by counsel for the defendants, that The Law Offices of C.R. Abrams, in fact, was a legal entity amenable to suit, that Plaintiffs resumed their service efforts and thereafter perfected service. (Id. at 15.) Plaintiffs note that they served RFP-1 on the Entity Defendants on August 28, 2021 and could not have brought the RFP-1 Motion until after service of their responses, which were served on September 27, 2021—the eve of the October 1, 2021 discovery cut-off. (Id. at 15–16; see also Pls.' RFP-1 Ex. C.) Plaintiffs explain that they did not commence the meet-and-confer process to address Entity Defendants' discovery deficiencies until after Judge Aenlle-Rocha's October 27, 2021 ruling denying the Entity Defendants' motion to quash service of process on them. (Leave Mot. 15–16.) Plaintiffs aver that they commenced the required meet-and-confer process one week thereafter, on November 4, 2021. (Id. at 16; see also Pls.' RFP-1 Ex. D.)

Based on these facts, Plaintiffs argue that the Leave Motion should be granted because they (1) diligently pursued the discovery sought by RPF-1 and could not have pursued it sooner; (2) they could not have brought the RFP-1 Motion before the October 1, 2021 cut-off date; (3) the RFP-1 Motion seeks relevant evidence; (4) the evidence sought by RFP-1 will aid this Court in the disposition of this case at summary judgment and/or trial; and (5) Plaintiffs will be severely prejudiced if they are unable to obtain the materials sought by the RFP-1 Motion. (Leave Mot. 8, 13–19.)

The manner in which the Entity Defendants have chosen to present their response to Plaintiffs' Leave Motion and RFP-1 Motion makes it difficult to distill which of the many arguments set forth in their single, undifferentiated Opposition goes to which motion. Certainly, this approach fails to comport with this Court's order that the Entity Defendants' file an opposition to each motion (ECF No. 274 at 3–4), and their obligation to make their arguments specifically and distinctly. Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (Courts “review only issues which are argued specifically and distinctly”) (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)). Nevertheless, as best as the Court can understand the Entity Defendants' Opposition, they appear to oppose the Leave Motion on the following grounds: (1) discovery was cut off on October 1, 2021; Plaintiffs have not been diligent and offer no explanation for their delay; no order authorizes the filing of the RFP-1 Motion; and therefore the RFP-1 Motion is brought “for the sole purpose of harassment and misuse of the legal process and without good cause” (Opp'n 2–4); (2) Plaintiffs did not engage in a good faith meet-and-confer process before filing the Leave Motion (id. at 2–3); (3) the Leave Motion ignores that the undersigned and Judge Aenlle-Rocha already have ruled on this request and thus violates the rules for motions for reconsideration (id. at 3, 8); and (4) Plaintiffs do not address “proper or controlling legal authorities [or] the prior court orders” (id. at 8).[3]

The Court is persuaded that Plaintiffs could not have pursued the discovery sought by RFP-1 and brought the RFP-1 Motion any sooner than they have, and certainly not before the October 1, 2021 discovery cut-off. Indeed, Plaintiffs contend that they were misled by counsel for the defendants for almost a year regarding the viability of the two corporate entities as proper defendants. (Leave Mot. 15.) They note that they returned to pursuing the discovery through RFP-1 as soon as they learned that, in fact, the Entity Defendants could be sued (id.) and Judge Aenlle-Rocha denied the motion of the Entity Defendants to quash summons on that ground (id. at 16).

*4 Notably, the Entity Defendants do not dispute these facts. (See generally Opp'n.) They argue only that Plaintiffs should have figured out that the Entity Defendants were amenable to suit since the corporate information about the Entity Defendants was publicly available. (Opp'n 7 (“The [E]ntity [D]efendants were standing in broad daylight, the entire time, a matter of public record with the Secretary of State.”) But this wholly ignores the waste of resources and time that was occasioned by the defendants' having misled Plaintiffs to begin with.

Nor do the Entity Defendants dispute Plaintiffs' evidence that, as soon as they learned the information that they considered would permit the discovery they sought, they proceeded without delay. (Leave Mot. 15–16.) Indeed, they do not dispute that Plaintiffs served the discovery at issue shortly after perfecting service of summonses on the Entity Defendents, and commenced the meet-and-confer process one week after Judge Anelle-Rocha's adverse ruling on the Entity Defendants' motion to quash service. (See generally Opp'n.)

The Entity Defendants' arguments to the contrary are without merit. While they are correct that discovery in this case was cut off on October 1, 2021, this Court expressly authorized the filing of the Leave Motion for the specific purpose of determining whether to allow the filing of the RFP-1 Motion. (ECF No. 274 at 3–4.) Accordingly, the Court cannot find that the Leave Motion was filed either for purposes of harassment or in the absence of good faith.

In addition, it is factually incorrect that Plaintiffs did not participate in good faith meet-and-confer efforts before filing the Leave Motion. The parties exchanged multiple letters and phone calls regarding the Leave Motion as required by Local Rule 7-3, including Plaintiffs' unsuccessful requests that the Entity Defendants stipulate to the filing of the RFP-1 Motion in order to obviate the need for the Leave Motion. (Slater Leave Decl. ¶¶ 9–13; Pls.' Leave Exs. J, K.) Moreover, given that the parties met and conferred from November 10, 2021 through November 19, 2021 (Slater Leave Decl. ¶¶ 9–13), the Entity Defendants' description of the parties' efforts to resolve the Leave Motion dispute—that Plaintiffs made a mockery of the meet-and-confer process because they devoted only seconds to the Entity Defendants' arguments and rejected them out of hand (Opp'n 2)—is not an accurate depiction of Plaintiffs' efforts, which include eight pages of written communications as well as phone calls exchanged by the parties across nine days. (Id.)

Further, the Entity Defendants are incorrect that the requests of the Leave Motion already have been considered and denied such that the Leave Motion violates Local Rule 7-17. As a starting point, the Central District of California does not have a Local Rule 7-17. See generally C.D. Cal. L. Rs. Moreover, to the extent the Entity Defendants intended to reference Local Rule 17-7, which governs the resubmission of motions previously acted upon by a judge of this Court, that rule is inapplicable here because neither the Leave Motion nor its request to file the RFP-1 Motion were ever before either Judge Aenlle-Rocha as the Entity Defendants contend. Nor were they before the undersigned. To the extent the Entity Defendants rely on this Court's denial of Plaintiffs' earlier ex parte applications for relief from the Rule 37 joint stipulation requirement to file certain discovery motions (ECF No. 227), and this Courts's subsequent denial of Plaintiffs' motion for reconsideration of same (ECF No. 235), such reliance is misplaced for two reasons. First, the ex parte applications at issue (ECF Nos. 218, 219, 223) were denied “without prejudice,” not on their merits, but rather on the procedural ground that, in effect, they constituted a request to modify Judge Aenlle-Rocha's scheduling order, a request the undersigned does not have authority to entertain, but that Judge Aenlle-Rocha ultimately granted. (ECF Nos. 227 at 4, 6; 271.) Second, the ex parte applications sought leave to file three discovery motions that were unrelated to the RFP-1 Motion for which Plaintiffs seek leave here: a motion to compel a Rule 34 inspection of Defendants Rinelli's and Mills's computer devices (ECF No. 218), a motion to compel the individual defendants' supplemental responses to Plaintiffs' Request for Production Set Three (ECF No. 219), and a motion for protective order pertaining to the deposition of Plaintiffs' retained expert (ECF No. 223). Thus, it cannot be said that either this Leave Motion or the requested RFP-1 Motion have been ruled upon in this case.

*5 Finally, the Entity Defendants also are incorrect that the Leave Motion fails to address legal authorities or prior court orders. Every argument raised by Plaintiffs in the Leave Motion is fully supported by legal authorities—in fact, its Table of Authorities lists 29 cases, countless federal and state statutes, and federal and local rules. (Leave Mot. 4–7.) Moreover, the Entity Defendants fail to point to any court order that Plaintiffs ignore through their Leave Motion.

On this basis, the Court concludes that Plaintiffs have been diligent in pursuing the discovery sought through RFP-1 and did not delay in bringing the Leave Motion. For this reason, the Court GRANTS Plaintiffs' Leave Motion and turns now to the merits of the RFP-1 Motion.

III. THE COURT GRANTS PLAINTIFFS' RFP-1 MOTION.

A. Plaintiffs' Allegations

This case is proceeding on the basis of the Complaint, filed by Plaintiffs RG Abrams Insurance and Robin Goltsman (collectively, “Plaintiffs”) on February 20, 2020 (Compl., ECF No. 1), and four counter-claims as follows: Abrams's counter-claim against Robin Goltsman and RG Abrams Insurance (collectively, “Counter-Defendants”), filed April 22, 2020 (ECF No. 19); Rinelli's and Mills's counter-claim against Counter-Defendants, filed June 12, 2020 (ECF No. 23); Wooten's and Armstrong's Counter-Claim against Counter-Defendants, filed June 12, 2020 (ECF No. 24); and Law Office of C.R. Abrams's and Rinelli Law Group's counter-claim against Counter-Defendants and Core Seminars, filed December 13, 2021 (ECF No. 282). The case was transferred to the United States District Court for the Central District of California on January 12, 2021. (ECF Nos. 71–73.)

The allegations of the Complaint are presented in great detail in the December 28, 2020 Order of Magistrate Judge Robert M. Illman (ECF No. 70) and, because of their length, need not be repeated here. For purposes of this Motion, the Court summarizes the relevant allegations as follows:[4] Goltsman employed Abrams in her trust and estates business around the year 2000. (Compl. 6–7.) In or around 2010, Goltsman and Abrams restructured the business into two separate companies—RG Abrams Insurance and the CR Abrams Law Firm. (Id. at 7.) In 2016, Goltsman and Abrams hired Rinelli and Mills and again restructured the business which, by 2019, proved to be a less than harmonious arrangement. (Id. at 8–9.) Goltsman, along with Rinelli and Mills, started a separate business of pre-paid legal services without Abrams. (Id. at 9–10.) In December 2019, Goltsman decided to downsize her business and laid off both Rinelli and Armstrong, who had worked for Goltsman as a legal secretary. (Id. at 10.) However, Goltsman paid Armstrong $5,000.00 to pick up and deliver her business mail while she was away from the office. (Id.) Goltsman told Mills and Wooten that she would continue to employ them. (Id.) While Goltsman was out of town in December 2019, Abrams, together with Rinelli, Mills, Armstrong, and Wooten, took Goltsman's client database, her marketing software, and her computer in order to start their own business. (Id. at 10.) On this basis, Plaintiffs bring claims of violation of the Computer Fraud and Abuse Act (18 U.S.C. § 1030(g)), and a number of related state law claims. (Id. at 1, 11–20.)

*6 The Court does not summarize the allegations contained in the four Counter-Claims as they bear no relevance to this Motion.

B. The Discovery Dispute

Plaintiff Robin Goltsman served each of the Entity Defendants with identical sets of RFP-1. (Pls.' RFP-1 Ex. B.) Each of the Entity Defendants served identical objections to their respective RFP-1. (Pls.' RFP-1 Ex. C.) As to each request, each Entity Defendant responded identically, asserting the following objections:

(See generally id.)

Following the required meet-and-confer efforts (see Pls.' RFP-1 Exs. D–G), Plaintiffs now seek an order overruling the Entity Defendants' objections and compelling their supplemental responses and production of documents to RFP-1. (See generally RFP-1 Mot.)

IV. ANALYSIS

A. Legal Standard

Rule 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:

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). 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).

*7 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., No. 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. Plaintiffs Have Satisfied Their Pre-Filing Meet-and-Confer Obligation.

The Entity Defendants argue that the RFP-1 Motion should be denied because Plaintiffs have not satisfied their pre-filing meet-and-confer obligations. (Opp'n 2–3.)[5] They note that Plaintiffs and their counsel “made a mockery of the meet and confer process” by responding to their meet-and-confer letters “within seconds, no less than a few minutes,” rejecting “everything out of hand,” and giving no consideration to their position “in the seconds that elapsed.” (Id.)

The Court disagrees. A motion to compel brought pursuant to Rule 37(a) “must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make ... discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). Local Rule 37-1 sets forth the procedure by which the parties must engage in the required pre-filing meet-and-confer efforts. C.D. Cal. L.R. 37-1. However, upon request and agreement of the parties, the Court modified the Local Rule 37-1 pre-filing procedure to require two rounds of written, good-faith meet-and-confer communications, each responded to within no more than 48 hours (“Modified Local Rule 37-1 Protocol”). (ECF Nos. 115, 139.)

While it is notable that Plaintiffs do not provide the required Rule 37(a) certification in RFP-1 (see generally RFP-1 Mot.), they nevertheless provide convincing evidence that they complied with their meet-and-confer obligation by following the Modified Local Rule 37-1 Protocol. Specifically, on November 4, 2021, Plaintiffs commenced the first round of written communications detailing the deficiencies in the Entity Defendants' responses to RFP-1. (See Pls.' RFP-1 Ex. D.) The Entity Defendants responded on November 8, 2021 (two days late). (See Pls.' RFP-1 Ex. E.) Plaintiffs responded on the same day (see Pls.' RFP-1 Ex. F), and the Entity Defendants further responded two days later (see Pls.' RFP-1 Ex. G). On November 23, 2021, Plaintiffs commenced the process of preparing the joint stipulation on the discovery motion, as required by Local Rule 37-2, asking the Entity Defendants to insert their contribution to the joint stipulation. (Pls.' RFP-1 Ex. H at 101–02.) Plaintiffs then sent the Entity Defendants a reminder email on November 30, 2021—the day on which their contribution was due—and advised that if Plaintiffs did not receive their contribution, they would file the motion unilaterally. (Id. at 101.)

*8 On this basis, the Court concludes that Plaintiffs have satisfied their pre-filing meet-and-confer obligations as to RFP-1.

C. The Discovery Sought Through RFP-1 Is Both Relevant to Plaintiffs' Claims and Proportional to the Needs of the Case.

Rather than quote the twenty-four discovery requests served on each of the Entity Defendants (see generally Pls.' RFP-1 Ex. B), the Court groups them into the following general categories: insurance policies held by the Entity Defendants (RFP-1 No. 1); documents and communications concerning Plaintiffs (RFP-1 No. 2); documents related to the corporate governance and net worth of the Entity Defendants (RFP-1 No. 3); business and financial records of the Entity Defendants (RFP-1 Nos. 4–7, 9, 10, 17); records of payments to the employees of the Entity Defendants, the individual defendants, and the employees of the individual defendants, including payroll records (RFP-1 Nos. 8, 11–14, 18–23); business development records related to seminar presentations (RFP-1 No. 15); business agreements between the Entity Defendants and Plaintiffs and/or any Defendant (RFP-1 Nos. 16, 24). (See Pls.' RFP-1 Ex. B at 52–55.)

It is unclear to the Court whether the Entity Defendants' “unnecessary Rule 26(b)” objection in their discovery responses (see generally Pls.' RFP-1 Ex. C) constitutes a relevance objection. The Opposition, however, asserts a relevance argument as follows:

(Opp'n 5.) In addition, the Opposition asserts a proportionality argument, as follows:

(Id. at 8–9 (errors in original preserved).)

Plaintiffs explain—albeit in the context of the Leave Motion rather than the RFP-1 Motion—that the discovery sought by RFP-1 has “a tendency to make Plaintiffs' claims against all Defendants (including conspiracy and violation the Computer and Fraud and Abuse Act) more likely.” (Leave Mot. 16–17.) They add that the information sought also goes “directly to Plaintiffs' damages claims against all Defendants (including punitive damages)” and the ability of the Entity Defendants “to pay any judgments against them.” (Id. at 17.) Other than the Entity Defendants' assertion that Plaintiffs do not explain the relevance of RFP-1—which is patently incorrect—and rhetorical questions regarding whether the requests of RFP-1 seek matter that is relevant to the case, they make no argument to the contrary. (See generally Opp'n.)

The Court agrees with Plaintiffs. This case involves claims by Plaintiffs that the individual defendants stole Plaintiff Robin Goltsman's computer and her marketing materials and used them in carrying out of the business of the Entity Defendants and to enrich themselves. (See generally Compl.) Certainly, documents that reveal the corporate structure, financial activities, insurance coverage, and/or net worth of the Entity Defendants inform the question of punitive damages. See, e.g., LL B Sheet 1, LLC v. Loskutoff, No. 16-cv-02349-BLF (HRL), 2016 U.S. Dist. LEXIS 179371, at *3 (N.D. Cal. Dec. 28, 2016) (citing Vieste, LLC v. Hill Redwood Dev., No. C-09-04024 JSW (DMR), 2011 U.S. Dist. LEXIS 29137, at *5 (N.D. Cal. Mar. 9, 2011) (“Discovery of Defendant's net worth and financial condition is clearly relevant to the issue of punitive damages.”)); Covarrubias v. Ocwen Loan Servicing, LLC, No. ED CV 17-904-FMO (SPx), 2018 U.S. Dist. LEXIS 104882, at *6 (C.D. Cal. June 21, 2018) (finding “information related to a defendant's current net worth and financial condition is ‘clearly relevant to the issue of punitive damages’ ” (quoting Vieste, 2011 U.S. Dist. LEXIS 29137, at *5)). In addition, documents revealing information about the business relationship between and among the Entity Defendants and the individual defendants could inform Plaintiffs' conspiracy allegations and claim. Indeed, the Court can think of no more relevant a document in this case than documents and communications concerning Plaintiff and the financial agreement between her and the Entity Defendants, especially where such discovery is properly limited to the period commencing 2015, the year before the business relationship between Plaintiffs and the Entity Defendants and the individual defendants went awry. Finally, it cannot be questioned that documents showing the business that the Entity Defendants were able to develop from the seminar presentations—those using the marketing materials Plaintiffs claim the defendants stole from them—are anything but relevant to the questions of (1) business losses suffered by Plaintiffs when deprived of the ability to use those very marketing materials, and (2) enrichment by the Entity Defendants through the use of the marketing materials. In sum, the Court concludes that all of the requests in RFP-1 are relevant to Plaintiffs' claims.

*9 Although Plaintiffs do not address the Entity Defendants' proportionality argument (see generally RFP-1 Mot.; Reply), the Court notes that such argument also fails. Other than their bald assertion that the request is not proportional to the needs of the case (Opp'n 8–9), the Entity Defendants offer no facts in support of such assertion (see generally Opp'n). They argue that Rule 26(b)(1) lists six factors to be considered in determining the proportionality of a discovery request, but address only one—“Defendants' financial wherewithal”—which the Court construes as a reference to the fourth factor—“the parties' resources.” Fed. R. Civ. P. 26(b)(1). The reliance of the Entity Defendants on Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB, 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016), for this argument, however, is misplaced. (Opp'n 9.) Elkharwily involved a request for production of emails and text messages, and in that case, the court found that the defendant had met its burden of showing that retrieving the electronically stored information would result in an undue burden and cost. 2016 U.S. Dist. LEXIS 99795 at *7. Although the court considered proportionality under Rule 26(b) in reaching its decision, nothing in the case refers to or otherwise relates to the financial wherewithal of the producing party. See id. at *6–9. In any event, the Entity Defendants neither offer evidence regarding their financial wherewithal, nor, more importantly, explain how their financial wherewithal impacts their ability to respond to RFP-1. (See generally Opp'n.)

Based on the foregoing, the Court concludes that Plaintiffs have satisfied their burden to establish that the information Plaintiff seeks through RFP-1 is relevant to the claims or defenses in this case and proportional to the needs of the case, all in satisfaction of Rule 26(b)(1). Fed. R. Civ. P. 26(b)(1).

D. The Court OVERRULES All of the Objections Asserted by the Entity Defendants.

Having determined that the documents Plaintiffs seek through RFP-1 satisfy the relevance and proportionality requirements of Rule 26(b)(1), the Court now turns to the propriety of the objections interposed by the Entity Defendants against this discovery. Although not easily discerned from the Opposition, the Court is able to identify the following objections to the RFP-1 Motion[6]: (1) the discovery was accompanied by an illegal and improper proof of service (Pls.' RFP-1 Ex. C); (2) the discovery violates the orders of Judge Robert M. Illman, the prior Magistrate Judge while the case was pending in the Northern District of California (Opp'n 6–7); the discovery invades protected privacy interests (id. at 9); the discovery invades the attorney-client privilege (id. at 9–10); and the Motion constitutes harassment and is intended to disrupt the legal proceedings (id. at 3–4).[7] The Court reviews each in turn.

The Entity Defendants object to the discovery on the basis that Plaintiffs' proof of service was “illegal [and] fraudulent” (“Improper Proof of Service Objection”). (See Pls.' RFP-1 Ex. C.) However, they do not explain this objection in their Opposition, and no other information is available to the Court from which it could determine the viability of Plaintiffs' proof of service. Whatever the Entity Defendants' objection to the proof of service may be, it is clear that they did, in fact, receive Plaintiff's RFP-1 in that they served their objections thereto on September 27, 2021. (See id.) The Entity Defendants provide no facts to support the notion that the proof of service was either illegal or fraudulent, and, in any event, cite no authority for the principle that an illegal or fraudulent proof of service on a discovery request somehow excuses compliance with discovery requests that were not only received but also responded to. (See generally Opp'n.)

*10 On this basis, the Court OVERRULES the Entity Defendants' Improper Proof of Service Objection.

Although not interposed as an objection in their responses to RFP-1, the Entity Defendants argue that Plaintiffs' RFP-1 Motion should be denied because it ignores an earlier order by Judge Illman denying Plaintiffs' discovery as grossly overbroad (“Judge Illman Objection”). (Opp'n 6.) They explain that Judge Illman issued an order on December 28, 2020 that characterized Plaintiff's approach to discovery as “scattergun,” at times appearing to be “totally untethered from the substance of the allegations,” while “at other times appear[ing] to be wholly unconcerned with the sort of narrowing and tailoring of discovery requests[8] designed to avoid seeking irrelevant and private information that is clearly outside the scope of permissible discovery.” (Id. (quoting ECF No. 70 at 6).) On this basis, the Entity Defendants conclude that RFP-1 is another instance of this “untethered, scattergun” discovery and that Plaintiffs are “judge shopping.” (Id.)

Plaintiffs respond that the Entity Defendants' arguments that Plaintiff is “judge shopping” bears no relevance to the merits of the RFP-1 Motion and that, to the extent the Entity Defendants so contend, they have failed to explain such relevance. (Reply 11.)

The Court agrees with Plaintiffs that the Entity Defendants' Judge Illman Objection is without merit. Judge Illman's December 28, 2020 order did not address RFP-1 at all or any request like those contained in RFP-1; indeed, RFP-1 was not propounded until August 28, 2021, eight months after that order. (See Pls.' RFP-1 Ex. B.)

On this basis, the Court OVERRULES the Entity Defendants' Judge Illman Objection.

The Entity Defendants interpose a number of California statutory privacy objections in their responses to RFP-1. (Pls.' RFP-1 Ex. C.) In the RFP-1 Motion, Plaintiffs argue that the objection should be overruled because the Entity Defendants have not met their burden to “establish first that there exists a reasonable right of privacy to the information sought to be disclosed.” (RFP-1 Mot. 35–36.) They note that the Entity Defendants cannot meet this burden as a matter of law because California's constitutional privacy right does not apply to corporations, such as them. (Id. at 35 (citing Valdez v. Travelers Indem. Co. of Conn., No. 12-04307-SBA (KAW), 2013 U.S. Dist. LEXIS 109154, at *17–18 (N.D. Cal. Aug. 2, 2013)); SCC Acquisitions, Inc. v. Superior Ct. of Orange Cnty., 243 Cal. App. 4th 741, 75–56 (2015)).) Plaintiffs add that they have a compelling need for the discovery in order “to get to the merits of the claims at issue in this litigation,” and that they “have no other way of accessing the information sought.” (Id. (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).) Moreover, they note that the privacy concern of the Entity Defendants is undermined by their failure to enter into, or otherwise seek, a protective order. (Id.)

*11 The Entity Defendants respond that Plaintiffs' Motion should be denied because:

(“Privacy Objection”). (Opp'n 9–10 (errors in original preserved).)

The Court agrees with Plaintiff and concludes that the Entity Defendants' Privacy Objection is without merit. As a starting point, the Entity Defendants fail to establish that there exists a reasonable right of privacy to the information sought by any of the RFP-1 requests. (See generally Opp'n.) 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). The Entity Defendants have offered no reasoning or legal authority to support their assertion that the information sought here is protected by the right of privacy. (See generally Opp'n.)

As a starting point, the Court notes that the California privacy rights asserted by the Entity Defendants—California Consumer Privacy Act, California Information Privacy Act, California Privacy Rights Act, and Article 1, Section 1 of the California Constitution—are not applicable in this discovery proceeding. Indeed, even to the extent the California constitution and these California statutes create a privilege—which this Court does not decide here—only federal law on privilege applies in cases, such as this one, involving federal question jurisdiction. See United States v. Zolin, 491 U.S. 554, 562 (1989) (citing Fed. R. Evid. 501); see also Hardie v. National Collegiate Athletic Ass'n, No. 13cv346-GPC (DHB), 2013 U.S. Dist. LEXIS 165312, at *9 (S.D. Cal. Nov. 20, 2013) (“Because jurisdiction in this action is based upon a federal question, California's privacy laws are not binding on this court.”); Kalinoski v. Evans, 377 F. Supp. 2d 136, 140–41 (D.D.C. 2005) (“The Supremacy Clause of the United States Constitution (as well as Federal Rule of Evidence 501) prevent a State from directing a federal court with regard to the evidence it may order produced in the adjudication of a federal claim.”).

Nevertheless, while there is no federal law counterpart to California's privacy statutes, federal courts recognize a right of privacy implicit in Rule 26. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984) (noting that “[a]lthough [Rule 26(c)] contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule”). Indeed, courts in the Ninth Circuit have recognized a limited corporate privacy interest. See e.g., Lazaro v. Lomarey, Inc., No. C 09-02013 RMW (PVT), 2010 U.S. Dist. LEXIS 101346, at *4–5 (N.D. Cal. Sept. 14, 2010) (finding corporate privacy interest in gross revenues information); Echostar Satellite LLC v. Viewtech, Inc., No. 07cv1273 W (AJB), 2009 U.S. Dist. LEXIS 142428, at *8 (S.D. Cal. July 11, 2009) (finding corporate interest in the non-disclosure of its confidential financial records). However, to the extent such a privacy interest exists, “corporations have a lesser right to privacy than human beings and are not entitled to claim a right to privacy in terms of a fundamental right, [although] some right to privacy exists.’ ” Lazaro, 2010 U.S. Dist. LEXIS 101346, at *5 (quoting Whitall v. Henry Schlein, Inc., No. CIV S-05-1629 WBS GGH, 2006 U.S. Dist. LEXIS 96622, at *9 (E.D. Cal. Apr. 5, 2006)); Echostar, 2009 U.S. Dist. LEXIS 142428, at *6 (privacy rights enjoyed by businesses are “much less robust than those enjoyed by individuals”); Housing Rights Ctr. v. Sterling, 2004 U.S. Dist. LEXIS 28877, at *16–17 (C.D. Cal. Dec. 6, 2004) (wholly owned private companies do not have privacy rights equivalent to that of the individuals who own them because the defendant company that seeks “the many benefits of the corporate form ... must also accept the disadvantages”). Indeed, “[p]rivacy rights accorded artificial entities are not stagnant, but depend on the circumstances.” Whitall, 2006 U.S. Dist. LEXIS 96622, at *9. Courts routinely have found that a corporation's privacy rights may give way where the information requested is material, not available from another source, and protected from disclosure by a protective order. See, e.g., Lazaro, 2010 U.S. Dist. LEXIS 101346, at *5 (requiring production of corporate tax returns); Whitall, 2006 U.S. Dist. LEXIS 96622, at *14 (ordering production of growth and profitability forecasts).

*12 Here, the Court finds that a proper balancing of the competing interests weighs in favor of granting the discovery Plaintiffs seek. On one side of the scale, as discussed above, the discovery is relevant to Plaintiffs' claims. On the other side of the scale, the Entity Defendants have not offered or suggested any alternative means by which Plaintiff may obtain this information. (See generally Opp'n.)

Importantly, any risk of harm can be mitigated through a protective order. As already noted by this Court on multiple occasions (see ECF Nos. 134 at 14–15; 146 at 14–15; 248 at 25; 283 at 14–15, n.4; 287 at 33; 309 at 23–26), it is not lost on the Court that this purported privacy concern, raised by the individual defendants in prior motions, is one of their own making in that they decline to enter into a stipulated protective order that would shield their private information from the public. 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). Despite the Court's many admonitions on the subject (ECF Nos. 134 at 14–15; 146 at 14–15; 248 at 25; 283 at 14–15, n.4; 287 at 33; 309 at 26–28), the defendants here, including the Entity Defendants now, persist in their unwillingness to protect the privacy interests they so fervently have claimed (ECF Nos. 123 at 9–10; 126 at 9–62, 71–73; 127 at 15–18; 200 at 117; 276 at 6, 18; 278 at 9–10, 284 at 8–9; 285 at 7; 286 at 9) by entering into a protective order, and yet continue to assert their same privacy objections (see Opp'n 9). While a decision to not enter into a stipulated protective order is within the prerogative of the Entity Defendants, they 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).

The authorities offered by the Entity Defendants do not support their Privacy Objection. They rely on Henson v. Turn, Inc., No. 15-cv-01497-JSW (LB), 2018 U.S. Dist. LEXIS 181037 (N.D. Cal. Oct. 22, 2018), for the proposition that “privacy concerns outweigh[ ] discovery interests.” (Opp'n 9 (citing Henson, 2018 U.S. Dist. LEXIS 181037.) But Henson is inapposite here. As a threshold matter, Henson involves the forensic inspection of cell phones for browsing history and cookie data, and does not address financial privacy concerns at all. 2018 U.S. Dist. LEXIS 181037 at *8–13. Moreover, the court in Henson did not make the wholesale statement of the law that Defendants suggest. Rather, the court held more specifically that the request for an unlimited forensic inspection of cell phones, or alternatively a production of the full web browsing history and cookie data of the cell phone, violated Rule 26(b)(1) because it “threaten[ed] to sweep in documents and information that [were] not relevant to the issues in [the] case.” Henson, 2018 U.S. Dist. LEXIS 181037, at *14, 24–25. Finally, Henson does not involve corporate documents or an assertion of corporate privacy rights. See generally Henson. Here, the Court has concluded that the documents sought by RFP-1 are relevant. Accordingly, Henson does not support the Entity Defendants' privacy objections.

*13 The reliance of the Entity Defendants on Pertile v. GM, LLC, No. 1:15-cv-00518-WJM-NYW, 2016 U.S. Dist. LEXIS 34674 (Mar. 17, 2016), equally is misplaced. They rely on Pertile for the proposition that “parties [sic] confidentiality concerns, [sic] outweigh[ ] the need for otherwise relevant discovery.” (Opp'n 8.) But Pertile is inapposite here. Pertile is a product liability and negligence case where the court was called upon to decide whether a vehicle manufacturer should be compelled to produce native format data related to its finite element analysis, a computer technology used to create a mathematical simulation of real-world behavior of physical objects. Pertile, 2016 U.S. Dist. LEXIS 34674, at *4–7. Finding that the requested information constituted proprietary and trade secret information, the court balanced the harm associated with the disclosure of the defendants' information against its relevance and plaintiff's need. Id. at *9–17. The court concluded that the discovery sought by the plaintiffs was not “so central to the claims in dispute that their discovery must be compelled.” Id. at *17–18. Here, the Entity Defendants make no trade secret objection and, in any event, the Court has found the matters sought by RFP-1 central to the case. Thus, Pertile does not touch upon, let alone support, the Entity Defendants' Privacy Objection.

The efforts of the Entity Defendants to distinguish Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975), and LL B Sheet 1, 2016 U.S. Dist. LEXIS 179371, at *3, do not advance their privacy argument. (Opp'n 9–10.) Indeed, the Entity Defendants are correct that neither Blankenship nor LL B Sheet 1 are relevant to their privacy argument. (Id.) The Court suspects that it is for this very reason that Plaintiffs do not rely on LLB Sheet 1 for any purpose in the RFP-1 Motion, and rely on Blankenship only for the unrelated notion that a party resisting discovery bears the burden of clarifying, explaining, and supporting its objections. (RFP-1 Mot. 32 (citing Comcast of L.A., Inc. v. Toop End Int'l Inc., 2003 U.S. Dist. LEXIS 18640, at *6 (citing Blankenship)).)

On this basis, the Court OVERRULES the Entity Defendants' Privacy Objection.

The Entity Defendants interpose an attorney-client privilege objection in their responses to RFP-1.[9] (Pls.' RFP-1 Ex. C.) In the RFP-1 Motion, Plaintiffs argue that the objection should be overruled because the Entity Defendants failed to support the objection with a privilege log or by providing information sufficient to substantiate their assertion of privilege. (RFP-1 Mot. 33.) In addition, they ask the Court to find that the Entity Defendants' failure to provide this information constitutes waiver of the privilege in connection with their response to RFP-1. (Id. at 33–34.)

The Entity Defendants respond that Plaintiffs' Motion should be denied because:

(“Attorney-Client Privilege Objection”). (Opp'n 9 (errors in original preserved).)

*14 The attorney-client privilege in federal question cases, such as this, is governed by federal common law. Clarke v. Am. Com. Nat. Bank, 974 F.2d 127, 129 (9th Cir. 1992). A party asserting the attorney-client privilege bears the burden of establishing the existence of the attorney-client relationship and the privileged nature of any communication. United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citations omitted). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” Id. (internal quotation marks and citation omitted). An eight-part test determines if a communication is privileged:

Id. (citation omitted).

Where, as here, the client is a corporation, unique issues arise in applying the privilege. Admiral Ins. Co. v. U.S. Dist. Ct., 881 F.2d 1486, 1492 (9th Cir. 1989). “As fictitious entities, corporations can seek and receive legal advice and communicate with counsel only through individuals empowered to act on behalf of the corporation.” Id.; see also United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (“ ‘As an inanimate entity, a corporation must act through agents. A corporation cannot speak directly to its lawyers.’ ” (quoting Commodity Futures Trading Comm'n v. Weintraub, 474 U.S. 343, 348 (1985)). According to the Supreme Court, in the corporate context, the privilege applies to communications by any corporate employee regardless of position when the communications concern matters within the scope of the employee's corporate duties and the employee is aware that the information is being furnished to enable the attorney to provide legal advice to the corporation. Upjohn Co. v. United States, 449 U.S. 383, 394 (1981); Admiral Ins. Co., 881 F.2d at 1492. Whether the privilege applies to particular statements is a mixed question of fact and law. United States v. Richey, 632 F.3d 559, 563 (9th Cir. 2011). Each case must be evaluated to determine whether application of the privilege would further its underlying purpose. Upjohn, 449 U.S. at 396–97.

Communications between non-attorneys within a corporation made for the purpose of obtaining or relaying legal advice also may be protected by the attorney-client privilege. See, e.g., Williams v. Sprint/United Mgmt. Co., 238 F.R.D. 633, 640 (D. Kan. 2006) (finding that privilege attaches to communications exclusively between human resources personnel that were made for the purpose of obtaining legal advice). As one court explained:

Sandrade, Ltd. v. General Elec. Co., 150 F.R.D. 539, 545 (E.D. N.C. 1993) (internal citations omitted).

Here, the Entity Defendants have provided neither a declaration from any employee in support of their privilege assertion, nor a privilege log or information in any form from which Plaintiffs could, upon receipt of their objections, determine whether the Entity Defendants' assertion of the Attorney-Client Privilege properly applies to any documents withheld. (See generally Pls.' RFP-1 Ex. C.) The Entity Defendants argue instead that Rule 26(b)(5)(A), which requires that they provide such information, does not apply here in both the absolute and also because the information sought by RFP-1 “is not otherwise discoverable.” (Opp'n 10.) They are wrong on both counts.

*15 As a threshold matter, the Court has determined that the information sought by RFP-1 is relevant to Plaintiffs' claims and proportional to the needs of the case. (See supra Section IV.C.) Moreover, contrary to the Entity Defendants' unsupported assertion, Rule 26(b)(5)(A) governs the procedure for withholding documents under privilege. It states:

Fed. R. Civ. P. 26(b)(5)(A). On its face, Rule 26(b)(5)(A) does not require that a requesting party ask for a log of claimed privileges; rather, it is the responding party's duty to offer one. United States v. Union Pac. R.R. Co., No. CIV 06-1740 FCD KJM, 2007 U.S. Dist. LEXIS 40178, at *10 (E.D. Cal. May 23, 2007). Thus, Rule 26(b)(5)(A) applies here to the extent the Entity Defendants are withholding documents pursuant to a privilege objection, and it is their obligation to produce such a log.

Having found that Rule 26(b)(5)(A) applies here and that Entity Defendants were, pursuant thereto, under an affirmative obligation to produce a privilege log or sufficient information to assess the privilege, the Court now turns to Plaintiffs' argument that the Entity Defendants have waived the attorney-client privilege by failing to produce a privilege log in connection in the first instance. (RFP-1 Mot. 33–34.) The Entity Defendants counter that the privilege is absolute, that any waiver of the privilege must be express, and that they have not expressly waived the privilege. (Opp'n 10 (citing United States v. Sanmina Corp., 968 F.3d 1107 (9th Cir. 2020)).

In analyzing how Rule 34 and Rule 26(b)(5) interact, the Ninth Circuit long ago instructed in Burlington Northern & Santa Fe RR Co. v. United States District Court, 408 F.3d 1142 (9th Cir. 2005), that while “boilerplate objections or blanket refusals [to produce documents] inserted into a response to a Rule 34 request ... are insufficient to assert a privilege,” a “per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34's 30-day time limit” must be rejected. Burlington, 408 F.3d at 1149. Instead, explained the Ninth Circuit, the determination of waiver should be made on a case-by-case basis, using the 30-day period as a default guideline, and considering the following factors:

*16 Id. The Ninth Circuit went on to guide the courts that “[t]hese factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” Id. Applying these tenets, the Ninth Circuit found that the district court in Burlington did not err in finding waiver of the privilege where the privilege log was submitted five months after the Rule 34 30-day period, there were no factors mitigating the late production, the producing party was “a sophisticated corporate litigant and a repeat player” in the subject matter of the underlying lawsuit, an “overly burdensome” objection was “hard to justify” given that many of the same documents already had been produced in a previous lawsuit, and the untimely privilege log “failed to correlate [specified] documents with specific document requests,” and was the subject of substantive changes along the way. Id. at 1149–50.

Here, applying the Burlington Northern factors in “the context of a holistic reasonable analysis,” the Court concludes that the Entity Defendants have waived any protection they may have had under the Attorney-Client Privilege objection as to the documents responsive to RFP-1. As to the first Burlington Northern factor—sufficiency of information—the Court finds that the Entity Defendants failed to provide any—let alone sufficient—information to enable Plaintiffs to evaluate whether any withheld document—also not identified—is privileged. (See generally Pls.' Ex. C.) As a starting point, despite now arguing that their assertion of the Attorney-Client Privilege Objection is proper, the Entity Defendants failed in their responses and fail here to identify documents withheld on the basis of a privilege, itself a violation Rule 34(b)(2)(C). Fed. R. Civ. P. 34(b)(2)(C) (“An objection must state whether any responsive materials are being withheld on the basis of that objection.”) Moreover, because their objections are not accompanied by a privilege log and do not otherwise provide any information about the titles, descriptions, or subject matter of any withheld document (id.), the Entity Defendants fail to meet the Burlington Northern first requirement of sufficiency.

As to the second Burlington Northern factor—timeliness of the objection and accompanying information—the Court finds that, while the Attorney-Client Objection was timely asserted, the accompanying information is wholly untimely; in fact, the Entity Defendants still had not complied with the obligation to provide information supporting the privilege as of the December 10, 2021 filing of the RFP-1 Motion—three and a half months after Entity Defendants served their responses to RFP-1. (See generally Pls.' RFP-1 Ex. C.) Nor have the Entity Defendants made any efforts to produce a privilege log since the filing of the RFP-1 Motion. In fact, the Entity Defendants offer no indication that the required information is forthcoming at all or that they need additional time in which to produce a privilege log; to the contrary, they fail to address this issue altogether. (See generally Opp'n.) On this basis, the Court concludes that the Entity Defendants fail to meet the Burlington Northern second requirement of timeliness.

As to the third Burlington Northern factor—the magnitude of the document production—the Court finds that the Entity Defendants provide no evidence to support an argument that the largess of their respective productions justifies the failure to provide a privilege log. Indeed, they have produced no documents at all in response to RFP-1 and have failed to identify the size of their respective productions or the quantity of documents they are withholding on the basis of the Attorney-Client Privilege Objection. On this basis, the Court concludes that the Entity Defendants fail to meet the Burlington Northern third requirement of magnitude.

As to the fourth Burlington Northern factor—particular circumstances making responding to discovery unusually easy or difficult—the Court finds that the Entity Defendants again fail to provide any evidence indicating or otherwise suggesting any difficulty in making their respective document productions. (See generally Opp'n.) On this basis, the Court concludes that the Entity Defendants fail to meet the Burlington Northern fourth requirement of unusual circumstances.

*17 The reliance by the Entity Defendants on Sanmina—in support of their argument that they never waived the privilege—is misplaced. (Opp'n 10.) In Sanmina, a case involving a worthless stock deduction on a federal tax return, the Ninth Circuit answered the question whether Sanmina waived the attorney-client privilege by voluntarily disclosing to its outside accounting advisors, for the purpose of producing a valuation report that would be given to the IRS, certain memoranda prepared by its in-house counsel. See Sanmina, 968 F.3d at 1115. In analyzing whether waiver had occurred, the Ninth Circuit explained that an express waiver “ ‘occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public.’ ” Id. at 1116–17 (quoting Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir. 2003)). Based upon these tenets, the Ninth Circuit held that, because Sanmina disclosed the memoranda of its in-house counsel to a third-party for a non-legal purpose, it had expressly waived the attorney-client privilege. Id. at 1118–19. Whatever value the holding in Sanmina may have in the context of voluntary disclosure of privileged documents, it bears no significance here because Plaintiffs' waiver argument is premised on the Entity Defendants' failure to produce a privilege log, not their disclosure of privileged information to a third party.

The Court recognizes that waiver is a severe outcome. However, given that all factors here weigh in favor of finding waiver, the Court notes that this is not even a close call. Porter v. City & County of San Francisco, No. 16-cv-03771-CW (DMR), 2018 U.S. Dist LEXIS 151349, at *17–18 (N.D. Cal. Sept. 5, 2018) (waiver typically is reserved for situations where nearly all of the factors articulated in Burlington Northern “weigh in favor of waiver” and “where a party repeatedly engages in inexcusable or unjustifiable conduct.”) First, the Entity Defendants have failed to produce privilege logs or otherwise provide the information necessary to assess their privilege claim. Second, the Entity Defendants make no efforts in their briefing to explain how their generic and boilerplate objections satisfy their burden of establishing the applicability of the asserted privilege as to any document. On this basis, the Court has no grounds to find, as the Entity Defendants ask, that they have not waived the privilege.

Indeed, this case is unlike the cases in which courts have declined to find waiver in that, in all such cases, the responding party produced a privilege log that, while untimely, was sufficiently detailed to permit the necessary review or at least to demonstrate a good faith effort at compliance. See, e.g., Coal. for a Sustainable Delta v. Koch, No. 1:08-CV-00397 OWW GSA, 2009 U.S. Dist. LEXIS 100728, at *11–14 (E.D. Cal. Oct. 15, 2009) (finding reasonable defendant's assertion of privilege two months after initial production date where the production involved 80,000 documents and thousands of emails and the privilege log sufficiently described the withheld documents); Carl Zeiss Vision Int'l GmbH v. Signet Armolite, No. CIV 07CV-0894DMS POR, 2009 U.S. Dist. LEXIS 111877, at *13–15 (S.D. Cal. Dec. 1, 2009) (declining to find waiver despite a nine-month delay in production of privilege log and despite some deficiencies in the privilege log's descriptions of documents withheld because the privilege log that ultimately was produced contained sufficient information to amount to a good faith effort at compliance); Humphreys v. Regents of the Univ. of Cal., No. C 04-03808 SI, 2006 U.S. Dist. LEXIS 34769, at *3 (N.D. Cal. May 23, 2006) (declining to find waiver because the privilege log, though untimely, contained “sufficient information to constitute a good faith effort at compliance”); Quality Inv. Props. Santa Clara v. Serrano Elec., Inc., No. C 09-5376 LHK (PSG), 2011 U.S. Dist. LEXIS 41006, at

*10–11 (N.D. Cal. Apr. 11, 2011) (finding no waiver where privilege log was served 31 days late, but the production involved 11,976 documents of which 300 were withheld, and the production was difficult given the intervening holidays, the absence of general counsel, and the breadth of the requests).

To the contrary, this case is more akin to, if not exactly like, the cases in which courts affirmatively have found waiver of the privilege. See, e.g., Loop Al Labs Inc. v. Gatti, No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 64348, at *8–11 (N.D. Cal. May 13, 2016) (finding waiver where the privilege log was served seven months late and after fact discovery had closed, and contained no information regarding the titles of the withheld documents or otherwise identifying their subject matter); Chao v. Mazzola, No. C-04-4949 PJH (EMC), 2006 U.S. Dist. LEXIS 58874, at *3–4 (N.D. Cal. Aug. 10, 2006) (finding privilege waived as to documents for which no privilege log was produced, and concluding that “[t]o permit production of additional privilege logs now would require the Court to order an additional round of briefing and another hearing in order to evaluate them.”); Sunterra Corp. v. Perini Bldg. Co., No. 2:04-cv-00784 MCE PAN, 2009 U.S. Dist. LEXIS 20535, at *24–25, 29–30 (E.D. Cal. Mar. 10, 2009) (finding waiver based upon, among other things, failure to comply with privilege log requirement); Dorf & Stanton Commc'ns. v. Breweries, 100 F.3d 919, 923 (Fed. Cir. 1996) (affirming finding of waiver where producing party “failed to provide a complete privilege log demonstrating sufficient grounds for taking the privilege” (internal quotation marks and citation omitted)); Vieste, LLC v. Hill Redwood Dev., No. C-09-04024 JSW (DMR), 2010 U.S. Dist. LEXIS 126607, at *28–31 (N.D. Cal. Nov. 18, 2010) (finding it “well within this Court's discretion to order a waiver of all documents that appear for the first time on [the defendants' second] privilege log,” and setting order to show cause why privilege is not waived for failure to include documents on privilege log); Desilva v. Allergan United States, No. 8:19-cv-01606-JLS (JDEx), 2020 U.S. Dist. LEXIS 188545, at *18–21 (C.D. Cal. Sept. 1, 2020) (finding waiver where no privilege log was produced, response was inadequate under Rule 34(b)(2)(B) (statement permitting inspection or production), privilege was untimely asserted, and responding party failed to defend the privilege); Infoeuro Grp. v. Aetna Life Ins. Co., No. CV 16-5083 AB(JCx), 2018 U.S. Dist. LEXIS 223873, at *21–22 (C.D. Cal. Nov. 28, 2018) (finding waiver of privilege as to document request for which privilege log was ordered but not produced); Porter, 2018 U.S. Dist. LEXIS 151349, at *17–20 (finding waiver where boilerplate objections were unaccompanied by a privilege log, the parties agreed to a narrowing of the discovery, and responding party failed to meet and confer regarding its overbreadth concerns and to respond to the arguably valid portion of the requests); La Verne Firefighters Ass'n, Local 3624 v. City of La Verne, No. CV 17-08743 GW (AFMx), 2018 U.S. Dist. LEXIS 227221, at *9–11 (C.D. Cal. Sept. 5, 2018) (finding waiver where no privilege log was served despite two and a half months and several opportunities in which to do so, the court's setting forth the specific requirements for the log, no showing that the document production was so large or complicated that the creation of a privilege log would not be feasible, and the court's conclusion from its review of unredacted documents that privilege was not at issue).

*18 The Court is further persuaded that a finding of waiver is warranted given the inexcusable circumstances present here. To be sure, this is not the first time the Court has admonished the defendants in this case—two of whom are the sole principals of each of the Entity Defendants—regarding the proper manner of asserting the attorney-client privilege. Indeed, commencing as early as April 14, 2021, and continuing through the present date, the Court has issued to these defendants no less than twelve (12) orders requiring the production of a privilege log (and specifying its contents[10]) where documents are withheld pursuant to privilege. (See ECF Nos. 95 at 2; 104 at 2–3; 112 at 4; 134 at 11–12, 45; 139 at 2; 146 at 9–10, 39–40; 162 at 2–4; 182 at 19–21, 35–36; 248 at 28–29, 44–45; 283 at 12–13; 287 at 37–44; 309 at 28–32, 36.) Indeed, Plaintiffs have exercised a great deal of patience and restraint in light of the numerous instances of non-compliance with their privilege claim obligations by the defendants in this case, having requested a finding of waiver for the first and only time in this RFP-1 Motion. (See generally ECF Nos. 123; 126; 127; 200; 276; 277.) Moreover, in addition to having been counseled by this Court on many occasions, it cannot be said that the principals of the Entity Defendants lack sophistication in these matters. Remarkably, they are attorneys themselves—Defendant Christopher Abrams, the principal of Entity Defendant The Law Offices of Christopher R. Abrams, P.C., is an attorney admitted to practice in California since December 1994, and Defendant Sarah M. Rinelli, the principal of Entity Defendant Rinelli Law Group, P.C., is as an attorney admitted to practice in California since June 2013.[11] In addition, the Entity Defendants have not even attempted to justify their privilege objections in their Opposition in any manner, let alone a sufficiently specific manner to allow the Court to conclude that a further opportunity is warranted because the privilege might apply. (See generally Opp'n.)

In sum, on the basis of the foregoing, the Court OVERRULES the Entity Defendants' Attorney-Client Privilege Objection as waived with respect to the documents sought through RFP-1, except as to any privileged communications involving trial counsel that post-date the filing of the Complaint which, if such documents exist and are withheld, must be logged in a privilege log as directed by this Court (see supra, 27 n. 9).

The Entity Defendants object that Plaintiffs' RFP-1 requests are abusive and harassing. (Pls.' RFP-1 Ex. C.) In the RFP-1 Motion, Plaintiffs interpret these objections as one of “undue burden” and argue that the Entity Defendants have failed to provide any factual support for the objection which, as such, should be overruled. (RFP-1 Mot. 34.)

The Entity Defendants respond that Plaintiffs' Motion should be denied because it is brought for purposes of harassment and disruption of the litigation and the Scheduling Order presently in place. They state:

*19 (“Abuse/Harassment/Disruption Objection”). (Opp'n 3–5.) In support, the Entity Defendants generally note that Plaintiffs have not established good cause for, or explained, their discovery delays given that all depositions were completed “with no more questions and no reservation or stipulation for such a motion as this.” (Id. at 3.) The Entity Defendants conclude that “the law does not engage trifles [or] idle acts such as granting motions when discovery remains ‘unchanged,’ ” and that “Plaintiff is attempting to disrupt the scheduling orders and play the system.” (Id. at 3–4.)

Plaintiffs reply that, to the extent the Entity Defendants contend that the RFP-1 Motion is intended to harass, they “fail to explain how said purported conduct is true and/or relevant to this Court's resolution of the [Motion].” (Reply 9.)

The Court neither interprets the Entity Defendants' Harassment/Disruption Objection as one of undue burden nor addresses it as such. Nevertheless, the Court agrees with Plaintiff that, other than their bald assertions, the Entity Defendants' Abuse/Harassment/Disruption Objection is devoid of any factual support. See generally Sager v. USAA Cas. Ins. Co., No. SA CV 12-1015 FMO (MLGx), 2014 U.S. Dist. LEXIS 45690, at *12 (C.D. Cal. Mar. 31, 2014) (declining to address a party's argument where that party “fail[ed] to point to a single fact that is in dispute or cite to any caselaw to support his assertions”). Moreover, the Court notes that, even if the Entity Defendants could establish that Plaintiffs' RFP-1 is intended to harass them, such is not a proper basis upon which to withhold discovery. Fed. R. Civ. P. 26(b)(1) (nonprivileged matter is discoverable if it is relevant to the claims or defenses in the case and proportion to the needs of the case).

On this basis, the Court OVERRULES the Entity Defendants' Abuse/Harassment/ Disruption Objection.

E. The Court GRANTS in Part Plaintiffs' Rule 37(a)(5)(A) Request for Reasonable Expenses Incurred in the Bringing of the Motion.

Plaintiffs seek an award of the reasonable expenses they incurred in the bringing of the RFP-1 Motion pursuant to Rule 37(a)(5)(A), in the amount of $3,045.00 ($1,785.00 for the Motion and $1,260.00 for the Reply). (Mot. 36–40; Reply 14.) For the reasons stated below, the Court GRANTS this request in part.

Pursuant to Rule 37(a)(5)(A), if a discovery motion is granted, the Court must “require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). Rule 37(a)(5)(A) also provides that, before granting an award of reasonable expenses, a court must determine whether any of the three exceptions to the rule apply. Id. Pursuant to these exceptions, the Court may not order this payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). The party contesting the discovery sanction on a properly brought motion under Rule 37(a)(5) bears the burden of establishing substantial justification or that other circumstances make an award of expenses unjust. See Hyde & Drath v.

Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).

*20 With respect to the required “opportunity to be heard” before Rule 37(a) sanctions are awarded, the Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the decisionmaking process, district court did not abuse its discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the issue.” (citations omitted)); Lynch v. Cassavetes, 2014 U.S. Dist. LEXIS 195015, at *10 (C.D. Cal. Oct. 1, 2014) (finding that an opportunity to be heard is satisfied by an opportunity to respond in writing).

Applying the above framework, the Court concludes that neither oral argument nor an evidentiary hearing would be of assistance in determining whether to award sanctions or the amount of attorneys' fees to be awarded under Rule 37(a)(5)(C). The Entity Defendants received notice of Plaintiffs' request for attorneys' fees upon service of the RFP-1 Motion. (See RFP-1 Mot. 36–40.) And, indeed, they responded to Plaintiffs' attorneys' fees request noting that Plaintiffs spent only “a few seconds reviewing defendant's position” and that “[t]he alleged meet and confer was done entirely in bad faith.” (Opp'n 11.) In addition, the Entity Defendants seek an award of their own attorneys' fees in the amount of $6,412.00 as against Plaintiff Robin Goltsman, her lawyer Michael Slater, and her law firm Burke-Williams. (Id. at 11–12; Donahue Decl. ¶ 16.) Holding a hearing to have the parties' counsel restate what already is in the Motion and in their under-oath declarations would be a waste of time and resources. The Court finds that it has sufficient evidence of the facts it needs to make a determination regarding the amount of attorneys' fees to be awarded here. On this basis, the Court makes its ruling without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.

In any event, in an effort to streamline the discovery dispute resolution process, the parties have waived their right to an opportunity to be heard before sanctions are awarded. (ECF No. 115, at 3 (“The parties waive their rights under Rule 37(a)(5) to an opportunity to be hard where a discovery motion seeks reasonable expenses, including attorneys' fees, and, unless otherwise ordered by the Court, will submit to the Court's ruling on the papers as filed.”).)

On this basis, the Court makes its ruling without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.

Rule 37(a)(5)(A) mandates that a court award reasonable expenses, including attorneys' fees, 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. Plaintiffs satisfied their pre-filing obligations by complying with the Court's revised pre-filing procedures of two rounds of written meet-and-confer efforts. (Pls' RFP-1 Exs. D–G.) In addition, Plaintiffs satisfied their Local Rule 37-2 obligation to attempt to submit the motion as a joint stipulation by forwarding their portion of the joint stipulation to the Entity Defendants and sending them a reminder to submit their portion so that it could be filed with the Court. (Pls.' Ex. H.) The Entity Defendants offer no evidence that they responded to this reminder. (See generally Opp'n.) Accordingly, consistent with their warning, Plaintiffs pursued their RFP-1 Motion unilaterally. (Id. (“If I do not receive Entity Defendants' contribution, I will have no choice but to file the motion to compel unilaterally.”).)

*21 The second exception—that the opposing party's response or objection was substantially justified—also does not apply because, as set forth above, not one of the Entity Defendants' objections is well-taken. 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).

As a threshold matter, the Entity Defendants do not argue that their discovery positions were substantially justified. (See generally Opp'n.) Rather, they contend only that Plaintiffs' meet-and-confer efforts were minimal and not in good faith. (Opp'n 11). However, the parties' documents tell a different story. Plaintiffs participated in the required written meet-and-confer process by sending to the Entity Defendants no less than approximately seven pages of single-spaced legal argument. (Pls.' Exs. D, F.) If page-count is the yardstick—and the Entity Defendants do not argue otherwise—it is the Entity Defendants who failed to adequately meet and confer, responding with less than three pages of double-spaced argument. (Pls.' Exs. E, G.)

As detailed above, the Entity Defendants do not offer any explanations or clarify their objections to RFP-1 in order to justify their failure to produce responsive documents. Rather, they repeat stream-of-consciousness digressions throughout their Opposition that not only confuse legal issues and standards, but also are inconsequential and unresponsive to Plaintiffs' arguments. For these reasons, the Court is unable to conclude that the Entity 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. The Entity Defendants do not argue that other circumstances would make an award of expenses unjust. (See generally Opp'n.) And the Court can find no evidence of such a circumstance.

For these reasons, the Court concludes that Plaintiffs are entitled to the reasonable expenses, including attorneys' fees, they expended in the bringing of the Motion.

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:

*22 Kerr, 526 F.2d at 70.

A strong presumption exists “that the lodestar figure represents a reasonable fee.” Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir. 1996). The Ninth Circuit has made clear that “[o]nly in rare instances should the lodestar figure be adjusted on the basis of other considerations.” Id. (citations omitted). “Under the lodestar approach, many of the Kerr factors have been subsumed as a matter of law.” Id. (citation omitted). The Kerr factors that are subsumed within the initial lodestar calculation are “(1) the novelty and complexity of the issues, (2) the special skill and experience of counsel, (3) the quality of representation,” “(4) the results obtained,” and “(5) the contingent nature of the fee agreement.” Id. at 364 n.9 (citations omitted). “Adjusting the lodestar on the basis of subsumed reasonableness factors after the lodestar has been calculated, instead of adjusting the reasonable hours or reasonable hourly rate at the first step ... is a disfavored procedure.” Id. (citation omitted).

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).

Plaintiffs request $3,045.00 in attorneys' fees based upon the following lodestar calculation: 8.7 hours (5.1 on the RFP-1 Motion and 3.6 on the Reply) spent by Plaintiffs' counsel, a fourth-year associate at Burke, Williams & Sorensen, LLP, at an hourly rate of $350.00. (Mot. 36–40; Slater RFP-1 Decl. ¶¶ 7–11; Reply 14; Slater Suppl. Decl. ¶¶ 18–20.) Other than claiming that Plaintiffs' counsel spent minimal time meeting and conferring regarding the issues raised in the RFP-1 Motion, the Entity Defendants challenge neither the specific hours spent by Plaintiffs' counsel nor the hourly rate requested. (See Opp'n 11–12 (in discussing Plaintiffs' counsel's hourly rate, the Entity Defendants note: “These figures are not disputed.”).) 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 Plaintiffs the sum of $2,415.00 in reasonable expenses expended in the bringing of the RFP-1 Motion.

As a threshold matter, the Court finds that Plaintiffs' documented 8.7 hours fall well short of those awarded in this district. See, e.g., Nguyen v. Regents of the Univ. of Cal., No. 8:17-cv-00423-JVS-KESx, 2018 U.S. Dist. LEXIS 226622, at *9–12 (C.D. Cal. May 18, 2018) (approving 38.9 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). They also fall in line with or short of the number of hours this Court has awarded in this case for prior discovery motions. (ECF Nos. 134 at 42 (7.6 hours); 146 at 38 (5.8 hours); 189 at 25 (10.9 hours); 306 at 6 (12.6 hours); 283 at 24 (accepting 8.6 hours but apportioning to 2.65 hours for success rate); 287 at 60 (accepting 9.3 hours but discounting to 3.6 hours for success rate).

*23 Plaintiffs request $1,785.00 for the 5.1 hours spent in the preparation of the RFP-1 Motion and $1,260.00 for the 3.6 hours spent in the preparation of the Reply. (Slater RFP-1 Decl. ¶ 8; Slater Suppl. Decl. ¶ 20.) As noted above, the Entity Defendants object to an unspecified number of hours on the ground that Plaintiffs' meet-and-confer efforts were minimal and not in good faith. (Opp'n 11.)

The Local Rules require opposing counsel to meet and confer before bringing a discovery motion. C.D. Cal. L.R. 37-1. Citing similar local rules, other Ninth Circuit district courts have found that “fees associated with the initial meet and confer process logically should not always be included in a fee award.” Matlink, Inc. v. Home Depot U.S.A., Inc., No. 07-cv-1994-DMS (BLM), 2008 U.S. Dist. LEXIS 124318, at *15 (S.D. Cal. Oct. 27, 2008); see also Aevoe Corp. v. AE Tech Co., LTD, No. 2:12-cv-00053-GMN-NJK, 2013 U.S. Dist LEXIS 135755, at *24 (D. Nev. Sept. 20, 2013) (“[A]ttorneys' fees are generally not awarded in this District for time spent meeting and conferring on motions to compel.”); Rothrock v. Int'l Ass'n of Heat & Frost Insulators, No. 15-cv-2412 DMS (JLB), 2016 U.S. Dist. LEXIS 149868, at *14 (S.D. Cal. Oct. 27, 2016) (“[H]ours spent meeting and conferring generally should not be included in an attorneys' fees award.”).

However, under appropriate limited circumstances, a fee award may be proper where a party fails to participate in a good faith meet-and-confer, or otherwise obstructs the resolution process. See Matlink, 2008 U.S. Dist LEXIS 124318, at *15 (noting that such hours should generally not be included in a fee award, but awarding fees for half of such hours where opposing party “stonewalled” the meet and confer process); Grimsley v. Charles River Labs., No. 3:08-cv-482, 2010 U.S. Dist. LEXIS 93071-LRH-VPC, at *4, 8 (D. Nev. Aug. 13, 2010) (affirming magistrate judge's award of fees for time spent on meet and confer efforts for party opposing motion to compel where movant failed to comply with a court order to make a “sincere effort to resolve [the] discovery disputes”).

Here, the Entity Defendants' argument seeking a reduction of hours for inadequate meet-and-confer efforts is without merit because Plaintiffs do not seek recompense for meet-and-confer hours. As evidenced by the Slater RFP-1 Declaration and the Slater Supplemental Declaration, none of the work for which Plaintiffs seek attorneys' fees involves meeting and conferring; rather, all hours for which attorneys' fees are sought involve the preparation of the RFP-1 Motion and Reply, as well as the evidence and the declarations in support of each. (Slater RFP-1 Decl. ¶ 8; Slater Suppl. Decl. ¶ 20.) Accordingly, the Court will not deduct hours from those claimed by Plaintiffs on this ground.

Still, the Court is not persuaded that Plaintiffs are entitled to all of the attorneys' fees they seek through the RFP-1 Motion because some of the hours claimed here do not pertain to the RFP-1 Motion. According to the Reply and the Slater Supplemental Declaration, all of the hours claimed in connection with the Reply are in response to the Entity Defendants' Opposition to the Leave Motion and the RFP-1 Motion. (Reply 14; Slater Suppl. Decl., ¶ 20.) However, because the Entity Defendants' Opposition pertains in an undifferentiated manner to both the Leave Motion and the RFP-1 Motion, with some arguments overlapping between the two, it is difficult for the Court to distinguish the arguments in Plaintiffs' Reply between those pertaining to the Leave Motion and those pertaining to the RFP-1 Motion. Accordingly, in the exercise of its discretion, the Court will allocate 1.8 hours of the work done on the Reply to the Leave Motion[12] and 1.8 hours to the RFP-1 Motion.

*24 On this basis, the Court will award attorneys' fees for 6.9 hours spent on the RFP-1 Motion (5.1 hours) and the Reply (1.8 hours).

Plaintiffs claim an hourly rate of $350.00 for Mr. Slater. (RFP-1 Mot. 39–40; Slater RFP-1 Decl. ¶ 14.) The Entity Defendants affirmatively state that they do not dispute this rate. (Opp'n 12.) 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. (citation and quotation marks 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).

Here, Plaintiffs do not offer a declaration of an attorneys' fees expert. (See generally Mot.) Instead, Plaintiffs' counsel attests to his background and experience as follows:

(Slater RFP-1 Decl. ¶ 14.) In addition, Plaintiffs note that, according to the Wolters Kluwer 2020 Real Rate Report (Mid-Year Update) (“Real Rate Report”)[13], their 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. (RFP-1 Mot. 39.) With this, the Court is persuaded that an hourly rate of $350.00 for Plaintiffs' counsel is appropriate here. This is consistent with prior discovery rulings in this matter by the Northern District of California and this Court finding that the hourly rate of $350.00 for Mr. Slater was reasonable. (See ECF Nos. 71 at 6 n.4; 134 at 43–44; 146 at 36–37; 182 at 33–34; 189 at 23–25; 248 at 41–43; 283 at 25–27; 287 at 60–62.)

*25 The Court re-calculates the lodestar for a total of $2,415.00 (6.9 hours multiplied by $350.00 per hour). Neither party requests an adjustment to the lodestar based on the Kerr factors. (See generally Mot.) Indeed, upon a review of the Kerr factors not already subsumed within the lodestar, the Court sees no reason to make such an adjustment.

F. The Court DENIES the Entity Defendants' Request for Attorneys' Fees Expended in Opposing the Motion.

The Entity Defendants ask the Court to award them the attorneys' fees they expended in opposing the Motion. (Opp'n 11–12; Donahue Decl. ¶ 16.) Although they do not specify an amount of fees requested in the Opposition itself (see generally Opp'n), defense counsel Timothy Donahue states in his declaration that the Entity Defendants seek $6,412.00, based on the following calculation: a lodestar of nine (9) hours of legal work multiplied by Mr. Donahue's hourly rate of $475.00, further enhanced by a “1.5 multiplier” for unspecified reasons (Donahue Decl. ¶ 16).[14]

The Court may not award the Entity Defendants' attorneys' fees because they did not prevail in opposing Plaintiffs' discovery motion. See Fed. R. Civ. P. 37(a)(5)(B) (providing for attorneys' fees for a party who successfully opposes a motion to compel). Accordingly, an order granting the Entity Defendants' reasonable expenses in opposing the Motion is not warranted and, as such, their request for an award of attorneys' fees is DENIED.

V. CONCLUSION

For the reasons set forth above, Plaintiffs' Motion is GRANTED. Consistent with the Court's discussion herein, the Court ORDERS as follows:

Despite Plaintiffs' repeated insistence (here and in other filings) that the October 1, 2021 cut-off date was the last day to file discovery motions rather than to hear them, this is incorrect. The October 1, 2021 cut-off date always has been the last day to hear discovery motions, except as to the extension through December 30, 2021 to hear the limited set of discovery motions pending as of that date. ECF Nos. 170 at 4; 209; 271 at 4 n.2 (“For the avoidance of doubt, the court clarifies that the September 9, 2021 order extended the deadline to hear or resolve all discovery motions that were pending as of September 9, 2021.... The order did not permit the filing of additional discovery motions after September 9, 2021, absent Magistrate Judge Audero's consent.”)

Pinpoint citations to page numbers in this Order refer to page numbers appearing in the ECF-generated headers of cited documents.

The legal arguments that appear in the Opposition but are not addressed in this section are construed as Defendants' response to the RFP-1 Motion and are addressed below.

The Court summarizes the allegations and claims in the Complaint. In doing so, the Court neither opines on the veracity or merit of the allegations and claims, nor makes any findings of fact.

Because it is unclear whether Defendants' argument that Plaintiffs “never attempted a true good faith meet and confer regarding all the pertinent issues” is asserted with respect to the Leave Motion or the RFP-1 Motion or both (see Opp'n 2–3), the Court considers it as to both motions. (See supra, Section II.)

As noted above, because the Opposition does not differentiate between the Entity Defendants' arguments in response to each of the Leave Motion and the RFP-1 Motion, the Court construes the arguments listed here as their response to the RFP-1 Motion. (See supra Section II; 2 n.2.)

The Entity Defendants also raise the following argument: “On April 22, 2021 (Dkt 103) the magistrate denied in part and granted in part inspection of devices with protections in place. Demand was served on the individual Christopher Abrams. Part of defendant's objection was that the devices did not belong to the individual, they belong to the law firm. The magistrate indicated that this does not matter. Thus, plaintiff new and should have known and could have and should have performed this discovery, from the law firms, over a year ago. Plaintiff deliberately delayed the action, to play more law & motion games and waste time and run-up legal fees.” (Opp'n 7 (errors in original preserved).) The Court finds this passage incomprehensible in the absolute as well as in the context of this Motion. Accordingly, the Court does not address this as a purported objection.

Defendants misquote this passage as “... wholly concerned with the shorter narrowing and tailoring of discovery requests ...” (Opp'n 6.)

The Entity Defendants also interpose a work product doctrine objection in their responses. (Id.) However, despite Plaintiffs' argument against same (RFP-1 Motion 33), the Entity Defendants do not address this argument in their Opposition, and instead argue only in favor of their attorney-client objection (see generally Opp'n 9–10). Accordingly, the Court considers the work product doctrine objection abandoned by the Entity Defendants. In any event, because the Entity Defendants have failed to comply with their privilege obligations with respect to any documents protected by the work product doctrine, their work product objection is OVERRULED for the same reasons as is the Attorney-Client Privilege Objection.

The Court has ordered these individual defendants that their privilege logs must contain the following information on a document-by-document basis: (a) the attorney(s) and client(s) involved; (b) the nature of the document; (c) the source of the document or the person who created the document; the sender(s) of the document (if appropriate); (d) all recipient(s) of the document (if appropriate); (e) all persons known to have been furnished the document or otherwise informed of its contents (if appropriate); (f) the date the document was generated, prepared, or dated; and (g) all privileges upon which the document is being withheld. In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3 (9th Cir. 1989)); see also Trejo v. Macy's, Inc., No. 5:13-cv-02064-LHK (PSG), 2014 U.S. Dist. LEXIS 35464, at *5 (N.D. Cal. Mar. 17, 2014) (listing similar factors).

See Attorney Profile for Christopher Ross Abrams, The State Bar of California, https://apps.calbar.ca.gov/attorney/Licensee/Detail/174313 (last visited Jan. 18, 2022)); Attorney Profile for Sarah M. Rinelli, The State Bar of California, https://apps.calbar.ca.gov/attorney/Licensee/Detail/290450 (last visited Jan. 18, 2022). 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.”); Davis v. Hollins Law, 25 F. Supp. 3d 1292, 1298 n.5 (E.D. Cal. 2014) (taking judicial notice of State Bar of California website regarding attorneys' dates of admission to bar).

As noted above, the Court will consider these 1.8 hours when it considers Plaintiffs' request for attorneys' fees in connection with the Leave Motion, deferred to a later time.

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.)

This lodestar actually calculates to $6,412.50.