I. INTRODUCTION

*1 Before the Court is Plaintiffs' Motion to Compel Rule 34 Inspections of Defendants' Cell Phone Devices (“Motion”). (Mot., ECF No. 278.) The Motion was filed jointly by Plaintiff/Counter-Defendant Robin Goltsman (“Plaintiff”) and Defendants/Counter-Claimants Christopher R. Abrams, Sarah Rinelli, Jack R. Mills, Cynthia Wooten, and Robin Armstrong (collectively, “Defendants”), in the form of a Joint Stipulation as required by Central District of California Local Civil Rule (“Local Rule”) 37-2. C.D. Cal. L.R. 37-2. The title of the Motion reflects that it is brought by more than one Plaintiff. (Mot. 1.[1] (“Plaintiffs' Motion to Compel Rule 34 Inspection of Defendants' Cell Phone Devices”).) Indeed, according to the Complaint (“Complaint”), there are two Plaintiffs in this matter: Plaintiff RG Abrams Insurance and Plaintiff Robin Goltsman. (See Compl., ECF No. 1.) However, as noted above, the notice on the Motion indicates that the Motion was brought by only Robin Goltsman on the Plaintiffs' side. (Mot. 2.) Still, references throughout the Motion are to “Plaintiffs” rather than “Plaintiff.” (See, e.g., Mot. 4 (“PLAINTIFFS' INTRODUCTION”); 10 (“PLAINTIFFS' LEGAL ARGUMENT”); 13 (“PLAINTIFFS' REQUEST FOR ATTORNEYS' FEES & COSTS”); 17 (“PLAINTIFFS' CONCLUSION”). Accordingly, the Court interprets the Motion as having been brought by both Plaintiffs and issues this Order on that basis.

Through the Motion, Plaintiffs seek (1) an order compelling Rule 34 inspections of Defendants' cell phone devices; and (2) an award of attorneys' fees pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a)(5)(A) in the amount of $3,010.00. (Mot. 2, 7, 10–12, 13–17.) In support of their requests, Plaintiffs filed the Declaration of Michael A. Slater (“Slater Declaration”) (Slater Decl., ECF No. 278-1, at 1–5), and its accompanying Exhibits A through K (Pls.' Ex. A (id. at 6–16); Ex. B (id. at 17–18); Ex. C (id. at 19–20); Ex. D (id. at 21–23); Ex. E (id. at 24–26); Ex. F (id. at 27–30), Ex. G (id. at 31–33); Ex. H (id. at 34–36); Ex. I (id. at 37–62); Ex. J (id. at 63–65); Ex. K (id. at 66–68).) Defendants oppose the Motion and seek an award of attorneys' fees in the amount of $4,275.00. (Mot. 7–10, 12–13, 17, 18.) In support of their opposition, Defendants filed the Declaration of Timothy Donahue in Opposition to Motion for Cell Phone Inspection (“Donahue Declaration”) (Donahue Decl., ECF No. 278-2.)

Having read and considered the papers presented by the parties, the Court finds the Motion suitable for disposition without a hearing. See Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. For the reasons set forth below, Plaintiffs' Motion is GRANTED IN PART and DENIED IN PART.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Plaintiffs' Allegations

This case is proceeding on the basis of Plaintiffs' Complaint, filed February 20, 2020 (Compl.), 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)—all filed in the United States District Court for the Northern District of California; and Law Offices of C.R. Abrams and Rinelli Law Group's Counter-Claim against Robin Goltsman, RG Abrams Insurance, and Core Seminars, Inc., filed in the Central District of California on 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.)

*2 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:[2] 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.)

The Court does not summarize the allegations contained in the counter-claims as they bear no relevance to this Motion.

B. The Discovery Dispute

Plaintiffs served a Rule 34 demand for inspection of Defendants' cell phone devices on August 27, 2021 (via mail) and August 28, 2021 (via email), noticing the inspection for September 27, 2021. (Mot. 4; see also Pls.' Ex. A (Rule 34 Demand); Pls.' Ex. B (Proof of Service re: Aug. 27, 2021 mail service); Pls.' Ex. D (Proof of Service re: Aug. 28, 2021 email service.) Plaintiffs demanded that Defendants produce “all cell phone device[s] each Defendant used from November 1, 2019, for inspection, copying, and subsequent forensic examination” by Plaintiffs' forensic expert, Setec Investigations, Inc., of the following three categories of materials: (1) “Each Defendant's text messages sent to and received from all other Defendants from November 1, 2019, through November 30, 2019”; (2) “Each Defendant's text messages sent to and received from all other Defendants ... from December 1, 2019, through December 31, 2019”; and (3) “Each Defendant's text messages sent to and received from all other Defendants ... from January 1, 2020, through the date Setec conducts the inspection and copying described herein.” (Pls.' Ex. A. at 8.)

Defendants objected to the cell phone inspections, arguing that Plaintiffs' August 27, 2021 proof of service was “defective” and “fraudulent” because it was not signed; the inspection demand was “overbroad,” “harassing,” “unnecessary [under] Rule 26(b),” and sought information protected by attorney-client privilege, attorney work product, Defendants' privacy rights, and “spousal communication, medical, psychological, political vote, and trade secrets” privileges; Plaintiffs' attorney made up “abusive” and “arbitrary” rules regarding COVID-19 safety; and Plaintiffs were not diligent in seeking the requested discovery. (Pls.' Ex. F at 28–29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65.) In addition, Defendants did not appear on September 27, 2021 in accordance with the inspection demand. (Mot. 4; Pls.' Ex. E at 25.)

Following unsuccessful meet-and-confer efforts (see Mot. 4–7; Pls.' Exs. E–H), Plaintiffs now seek an order compelling the Rule 34 inspection of Defendants' cell phone devices.

III. 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. “Relevance under Rule 26(b)(1) is defined broadly.” O.L. v. City of El Monte, No. 2:20-cv-00797-RGK (JDEx), 2021 U.S. Dist. LEXIS 58722, at *4 (C.D. Cal. Jan. 11, 2021). But relevance alone does not justify discovery. As a general matter, Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information,” even if that information is not ultimately admitted at trial. Comcast of L.A., Inc. v. Top End Int'l, Inc., No. CV 03-2213-JFW(RCx), 2003 U.S. Dist. LEXIS 18640, at *6 (C.D. Cal. July 2, 2003).

*3 In addition to relevance, Rule 26(b)(1) requires that the discovery be proportional to the needs of the case. Fed. R. Civ. 26(b)(1). Proportionality is determined by a consideration of the following factors: “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

Further, the court “must limit the frequency or extent of discovery” pursuant to Rule 26(b)(2) if:

Fed. R. Civ. P. 26(b)(2)(C).

Rule 34 permits a party to “serve on any other party a request within the scope of Rule 26(b) ... to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Fed. R. Civ. P. 34(a)(2). “Because requests for inspection under Rule 34 must be within the scope of Rule 26(b), the degree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection.” Manclark v. Oceans Marine Elecs., Inc., No. 8:19-cv-00218-MCS (JDEx), 2020 U.S. Dist. LEXIS 246793, at *5 (C.D. Cal. Oct. 16, 2020) (quotation marks and citation omitted).

The party responding to a request for inspection “must respond in writing within 30 days after being served,” stating “for each item or category” either that inspection “will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(A), (B).

A party requesting inspection of property may seek an order compelling such inspection when the requested party “fails to respond that inspection will be permitted—or fails to permit inspection—as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iv). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance.” Nguyen v. Lotus by Johnny Dung Inc., 8:17-cv-01317-JVS-JDE, 2019 U.S. Dist. LEXIS 122787, at *5 (C.D. Cal. June 5, 2019). “The party who resists discovery has the burden to show discovery should not be allowed,” as well as “the burden of clarifying, explaining, and supporting its objections.” Comcast, 2003 U.S. Dist. LEXIS 18640, at *6 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)).

B. The Court FINDS that Plaintiffs' Proposed Rule 34 Inspection is Relevant and Proportional to the Needs of the Case Pursuant to Rule 26(b)(1) with Respect to Defendants' Text Messages from November 1, 2019 through June 30, 2020.

As stated above, Plaintiffs seek a Rule 34 inspection of Defendants' cell phone devices with regard to three categories of text messages: (1) “Each Defendant's text messages sent to and received from all other Defendants from November 1, 2019, through November 30, 2019”; (2) “Each Defendant's text messages sent to and received from all other Defendants ... from December 1, 2019, through December 31, 2019”; and (3) “Each Defendant's text messages sent to and received from all other Defendants ... from January 1, 2020, through the date Setec conducts the inspection and copying described herein.” (Pls.' Ex. A. at 8; see also Mot. 5.)

*4 Plaintiffs argue that the text messages sought to be inspected are relevant to the Plaintiffs' claims that: “(1) Defendants conspired together to take Ms. Goltsman's computer and client database (as well as the location of Ms. Goltsman's computer and client database)[;] (2) Defendants' [sic] conspired to interfere with Plaintiffs' prospective economic advantage; [and] (3) Defendants' [sic] conspired to breach their contracts with Plaintiff Robin Goltsman.” (Mot. 11 (citing Compl. ¶¶ 10, 17, 46, 59.) They add that the communications sought “may also evidence, as alleged in Plaintiffs' Complaint, Defendants' alleged agreement to pay Ms. Goltsman insurance commissions at varying rates over the course of her contemplated retirement.” (Id.) Defendants argue that Plaintiffs have failed to meet their burden of showing relevance.[3] (Mot. 12–13.) However, “[r]elevance under Rule 26(b)(1) is defined broadly,” Manclark, 2020 U.S. Dist. LEXIS 246793, at *4, and is determined based on the allegations in the complaint, see Trabulsi v. Wells Fargo Bank, Nat'l Ass'n, No. 8:17-cv-02088-JLS-SK, 2018 U.S. Dist. LEXIS 227807, at *2 (C.D. Cal. Aug. 21, 2018). Defendants' communications with each other—including any text message communications—during the time period of November and December 2019 are particularly relevant because it was during this time period, in December 2019, that Plaintiffs allege that Defendants conspired with one another to enter Goltsman's office and steal her marketing software, computer, and other business materials. (See Compl. ¶¶ 16–18.) Indeed, in its August 10, 2021 Amended Order granting Goltsman's first motion to compel, the Court ordered Defendants to respond to Requests for Production (“RFP”) Nos. 109 and 110 seeking these text messages. (Aug. 10, 2021 Order, ECF No. 182, at 5, 35.) If no such text messages exist—as Defendants appear to contend (see Mot. 12–13)—then the Rule 34 inspection will merely confirm this assertion and will not impose an undue burden on Defendants.

The Court also finds that Defendants' text messages during the months of January to June 2020 are relevant to the claims and allegations asserted in the Complaint. As the Court understands it, while Plaintiffs allege that Defendants' conspiracy to take Ms. Goltsman's computer and client database and to breach their contracts occurred in November and December 2019, Plaintiffs' allegations with regard to Defendants' conspiracy to interfere with Plaintiffs' prospective economic advantage are not constrained to this particular time period; instead, given the nature of this conspiracy as alleged, it is possible it continued into 2020. Thus, the Court FINDS that Plaintiffs' proposed Rule 34 inspection meets the relevance and proportionality requirements of Rule 26(b) with respect to Defendants' text messages from November 1, 2019 through June 30, 2020, and OVERRULES Defendants' relevance objection as to these text messages. See Manclark, 2020 U.S. Dist. LEXIS 246793, at *9 (permitting Rule 34 inspection upon finding that the party seeking the inspection had demonstrated relevance and the resisting party had not shown that the inspection would result in a disproportionate burden).

However, the Court reaches a different result with respect to Defendants' text messages dating from July 1, 2020 to the date of the Rule 34 inspection. Because such communications occurred more than six months after the key events of December 2019, they may be only marginally relevant to the claims and defenses at issue in this case. On the other hand, this category covers roughly a year and a half of text messages between the Defendants, and as Defendants note (see Mot. 9–10), the proposed inspection is not limited to any search terms or key words (see Pls.' Ex. A. at 7–15.) Based on the information before the Court at this time, the Court FINDS that such an inspection should not be permitted at this time because the potential burden to Defendants outweighs the marginal relevance of any text messages in this category. See Manclark, 2020 U.S. Dist. LEXIS 246793, at *5 (“Because requests for inspection under Rule 34 must be within the scope of Rule 26(b), the degree to which the proposed inspection will aid in the search for truth must be balanced against the burdens and dangers created by the inspection.”); see also, e.g., Safeco Ins. of Am. v. Monroe, No. EDCV 15-1471-RGK (KKx), 2016 U.S. Dist. LEXIS 190260, at *10 (C.D. Cal. Jan. 11, 2016) (limiting scope of Rule 34 inspection based on burden to opposing party and moving party's acknowledgment that less burdensome discovery methods could narrow scope of inspection). Thus, it is hereby ORDERED that Plaintiffs' Motion is DENIED with respect to the text messages between July 1, 2020 and the date of the Rule 34 inspection. However, this denial is without prejudice to Plaintiffs' ability to renew their request for inspection as to Defendants' text messages dating from July 1, 2020 if Plaintiffs are able to demonstrate, through more than speculation, that relevant communications may have continued, or in fact did continue, beyond June 30, 2020.

C. The Court OVERRULES Defendants' Remaining Objections.

*5 Defendants assert a number of objections to Plaintiffs' Motion. (See Mot. 7–10, 12–13; Pls.' Exs. F, H, J.) The Court addresses each objection in turn.

Defendants appear to argue that they were excused from complying with Plaintiffs' Rule 34 inspection demand because Plaintiffs' initial proof of service was unsigned (see Pls.' Ex. A at 16) and was therefore “fraudulent” and “illegal” (see Mot. 7; see also Pls.' Ex. F at 28.) However, it is clear that Defendants did in fact receive Plaintiffs' demand. Defendants served their objections to the demand on September 27, 2021. (Pls.' Exs. J, K.) Defendants' attorney also acknowledged receipt of the demand in his October 21, 2021 meet-and-confer letter, stating that he “was able to locate a notice dated August 28, 2021,” but that the inspection “was not calendared” due to the improper proof of service. (Pls.' Ex. F at 28.) Defendants cite no authority for the principle that an unsigned proof of service excuses compliance with discovery requests that were, in fact, properly served. (See generally Mot.; see also Pls.' Ex. F.) In any event, Plaintiffs have now provided a signed proof of service. (See Pls.' Ex. B at 18.)

On this basis, the Court OVERRULES Defendants' objection regarding Plaintiffs' proof of service.

Defendants argue that Plaintiffs served their Rule 34 inspection demand too late in the discovery process, demonstrating a lack of diligence or a lack of need for the information, as well as prejudicing Defendants by scheduling the inspection for September 27, 2021, only four days before the October 1, 2021 cut-off date for fact discovery. (Mot. 8–9, 12; see ECF No. 170.) Because Judge Aenlle-Rocha now has extended the discovery cut-off (related only to discovery motions that Judge Audero may grant Plaintiffs leave to file) until May 15, 2022 (ECF No. 271), any objection that Defendants are prejudiced by the timing of the request now is moot. Further, Defendants do not cite any authority to support their argument that Plaintiffs must show that they have been diligent in their discovery requests; the fact that Plaintiffs served the Rule 34 inspection demand and scheduled the inspection before the discovery cut-off is sufficient. In any event, Plaintiffs explain that they waited for Defendants' responses to RFP Nos. 109 and 110 before serving the Rule 34 inspection demand. (Mot. 5–6.) This was a reasonable course of action, as Defendants' production of any responsive text messages might have obviated the need for an inspection of Defendants' cell phone devices and would have been less burdensome than a Rule 34 inspection.

On this basis, the Court OVERRULES Defendants' objections based on the timing of Plaintiffs' Rule 34 inspection demand.

In response to Plaintiffs' Rule 34 inspection demand, Defendants asserted “numerous privileges, including attorney-client, work-product, spousal communication, medical, psychological, political vote, and trade secrets.” (Pls.' Ex. F at 29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65; see also Mot. 6 n.3.) However, such objections are both premature and unsupported. First, these objections are conclusory because Defendants have not produced a privilege log or provided any factual detail or citations to legal authority to support their privilege claims. (See generally Mot.) Moreover, Plaintiffs' forensic examination protocol for the Rule 34 device inspection provides Defendants with the opportunity to object to the disclosure of specific information on privilege grounds and to provide a privilege log supporting Defendants' privilege claims. (Pls.' Ex. A at 12–13.)

*6 On this basis, the Court OVERRULES Defendants' privilege objections, without prejudice to Defendants' ability to raise such objections in response to the specific findings of Plaintiffs' forensic expert, accompanied by the required privilege log.

Defendants also assert that the Rule 34 inspection of their cell phone devices will violate their right to privacy. (Mot. 9; Pls.' Ex. F at 28–29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65.) Although they cite various provisions—Article One of the California Constitution, the California Consumer Privacy Act, the Information Privacy Act, and the California Privacy Rights Act—they do not provide any detail regarding the alleged infringement of their right to privacy. (Mot. 9; Pls.' Ex. F at 28–29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65.)

The Ninth Circuit has recognized a constitutionally protected privacy interest in avoiding disclosure of personal matters. See Normal-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998); Breed v. U.S. Dist. Ct. for Northern Dist. of Cal., 542 F.2d 1114, 1116 (9th Cir. 1976). However, the right of privacy is not an absolute bar to discovery and courts must balance the need for the information against the claimed privacy right. Allen v. Woodford, No. CV-F-05-1104 OWW LJO, 2007 U.S. Dist LEXIS 11002, at *16 (E.D. Cal. Jan. 30, 2007) (“Unlike a privilege, the right of privacy is not an absolute bar to discovery.”); Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (“Resolution of a privacy objection or request for a protective order requires a balancing of the need for the information sought against the privacy right asserted.”); see also E.E.O.C. v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 395 (E.D. Cal. 2009) (“[T]he right to privacy is not a recognized privilege or absolute bar to discovery, but instead is subject to the balancing of needs.”).

Here, Defendants' privacy challenge fails. To begin with, Defendants fail to establish in the first instance that there exists a reasonable right of privacy to the information sought. (Mot. 9; Pls.' Ex. F at 28–29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65.) Instead, as noted above, they merely assert that the inspection will violate their privacy rights under various state law provisions. (See Mot. 9; Pls.' Ex. F at 28–29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65.).) A party asserting a privacy objection must establish first that there exists a reasonable right of privacy to the information sought to be disclosed. Christian v. County of Los Angeles, No. 2:18-cv-05792-CJC (JDEx), 2020 U.S. Dist. LEXIS 157307, at *6–8 (C.D. Cal. Jan. 28, 2020) (finding privacy claim unavailing without a showing of a reasonable right to privacy). Defendants have not offered any reasoning or case law to support their assertion that the information sought here is protected by the right of privacy. Moreover, it is not lost on the Court that this purported privacy concern is one of Defendants' own making in that they decline to enter into a stipulated protective order that would shield their private information from the public. See Artis v. Deere & Co., 276 F.R.D. 348, 352–53 (N.D. Cal. 2011) (ordering disclosure of names, addresses, and telephone numbers subject to a protective order limiting the use of the information to the parties in the litigation and protecting it from public disclosure). While a decision to not enter into a stipulated protective order is Defendants' prerogative, Defendants make this decision at their own peril in that, in so doing, they undermine their own argument that the information at issue is confidential.[4] See, e.g., Brooks v. Motsenbocker Advanced Devs., Inc., No. 07cv773 BTM (NLS), 2008 U.S. Dist. LEXIS 1350, at *11 (S.D. Cal. Jan. 8, 2008) (overruling privacy objection where responding parties seeking to protect documents from disclosure failed to take any steps to protect the information, such as entering into a stipulated protective order or moving for their own protective order before their deadline to respond). Moreover, even if Defendants had shown a right of privacy exists for the information sought here, they fail to explain how their purported privacy interests will be harmed by the disclosure of this information. (See Mot. 9; Pls.' Ex. F at 28–29; Pls.' Ex. H at 35; Pls.' Ex. J at 64–65.) Thus, the Court concludes that Defendants have not met their “burden of clarifying, explaining, and supporting” their right-to-privacy objection. Comcast, 2003 U.S. Dist. LEXIS 18640, at *6 (citing Blankenship, 519 F.2d at 429).

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

Plaintiffs' forensic inspection protocol for the Rule 34 inspection contains the following section entitled “COVID-19 Safety Protocols”:

(Pls.' Ex. A at 10.)

Defendants object that Plaintiffs' COVID-19 safety protocols are “abusive” and “arbitrary.” (Mot. 9; see also Pls.' Ex. J at 65.) However, they do not explain why these protocols are abusive or arbitrary. (See generally Mot.; Pls.' Ex. F.) Plaintiffs counter that the protocols are “common-sense” measures that are required by the building where the inspection will occur. (Mot. 6 n.3.) Nor do Defendants explain why the safety protocols for this inspection should be different than those contained in the Rule 34 Forensic Examination Protocol that the parties negotiated with the assistance of this Court and that this Court issued as an Order on April 30, 2021. (Compare Pls.' Ex. A at 10 with Rule 34 Forensic Examination Protocol (ECF No. 111 at 2 (“All persons present at the forensic acquisition will take reasonable steps to ensure COVID-19 safety protocols are taken, including but not limited to, wearing face masks and ensuring that physical distancing between persons (unless the parties agree to a shorter distance) is observed. Defendants will be responsible for ensuring that sufficient physical space is available during the forensic acquisition to allow for this social distancing.”)).) Because Defendants have not explained which specific aspects of Plaintiffs' COVID-19 safety protocols are “arbitrary,” “abusive,” or otherwise create hardship for them, the Court finds that Defendants have not met their “burden of clarifying, explaining, and supporting” this objection. Comcast, 2003 U.S. Dist. LEXIS 18640, at *6 (citing Blankenship, 519 F.2d at 429).

On this basis, the Court OVERRULES Defendants' Objection based on Plaintiffs' COVID-19 safety protocols.

D. The Court GRANTS IN PART and DENIES IN PART Plaintiffs' Request for the Attorneys' Fees They Expended in Bringing the Motion in the Amount of $927.50.

Plaintiffs asks the Court to award them the attorneys' fees expended in the bringing of the Motion in the amount of $3,010.00. (Mot. 13–17.) For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Plaintiffs request and awards Plaintiffs the sum of $927.50.

Pursuant to Rule 37(a)(5)(C), if a discovery motion is granted in part and denied in part, “the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). Courts may apply Rule 37(a)(5)(C) “to roughly approximate the movant's level of success” when a motion to compel is decided with mixed results. Morgan Hill Concerned Parents Ass'n v. Cal. Dep't of Educ., No. 2:11-CV-03471-KJM-AC, 2017 U.S. Dist. LEXIS 114293, at *14 (E.D. Cal. July 21, 2017) (citations omitted); see also SVI, Inc. v. Supreme Corp., No. 2:16-cv-01098-JAD-NJK, 2018 U.S. Dist. LEXIS 234686, at *6–7 (D. Nev. Mar. 7, 2018) (awarding one-half of the expenses requested given that the moving party prevailed on one of two overarching issues before the Court).

*8 Rule 37(a)(5)(C) refers to “reasonable expenses for the motion,” whereas Rule 37(a)(5)(A) refers to “reasonable expenses incurred in making the motion.” Fed. R. Civ. P. 37(a)(5)(A), (C). Notwithstanding the difference in syntax, “[t]he primary difference between Rule 37(a)(5)(A) and Rule 37(a)(5)(C) is that an award is discretionary under Rule 37(a)(5)(C)” — whereas, under Rule 37(a)(5)(A), the award is mandatory. Barlow v. Herman, No. 2:13-cv-00033-JAD-CWH, 2015 U.S. Dist. LEXIS 25707, at *9 (D. Nev. Feb. 26, 2015). “Ultimately, the analysis underlying a decision under either subsection is the same and the arguments pertaining to the exceptions under Rule 37(a)(5)(A) are equally applicable to the determination of whether fees and costs should be apportioned under Rule 37(a)(5)(C).” Id. at *9–10; see also Blair v. CBE Grp., Inc., No. 13cv134-MMA (WVG), 2014 U.S. Dist. LEXIS 131228, at *7 (S.D. Cal. Sep. 16, 2014) (“[T]he analysis underlying an award of reasonable expenses pursuant to either Rule 37(a)(5)(A) or Rule 37(a)(5)(C) is the same.”); Bal Seal Eng'g, Inc. v. Nelson Prods., Inc., No. 8:13-cv-01880-JLS-KESx, 2018 U.S. Dist. LEXIS 239699, at *12 n.3 (C.D. Cal. Feb. 12, 2018) (apportioning moving party's requested expenses where it “indisputably obtained the ‘large part’ of the relief that it sought” (citing Blair, 2014 U.S. Dist. LEXIS 131228, at *7)).

Rule 37(a)(5)(A) provides that, before granting an award of reasonable expenses, a court must determine whether any of the three exceptions to the rule apply. Fed. R. Civ. P. 37(a)(5)(A). Pursuant to these exceptions, the Court may not order this payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)–(iii). The party contesting the discovery sanction on a properly brought motion under Rule 37(a)(5) bears the burden of establishing substantial justification or that other circumstances make an award of expenses unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994).

Finally, Rule 37(a)(5)(C) permits a court to impose sanctions after affording an opportunity to be heard. Fed. R. Civ. P. 37(a)(5)(C). However, the Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” requirement. Paladin Assocs. v. Montana Power Co., 328 F.3d 1145, 1164–65 (9th Cir. 2003) (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the decisionmaking process, district court did not abuse its discretion by ruling on the briefing); see also Pac. Harbor Cap., Inc. v. Carnival Airlines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000) (“an opportunity to be heard does not require an oral or evidentiary hearing on the issue.” (citations omitted)); Lynch v. Cassavetes, No. 13-4317 DSF(JC), 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). Defendants received notice of Plaintiffs' request for attorneys' fees when Plaintiffs provided them with their portion of the joint stipulation so that they could include their responsive arguments. See C.D. Cal. L.R. 37-2.2. And, indeed, Defendants responded to Plaintiffs' argument, albeit only by arguing that it is Defendants who are entitled to an award of attorneys' fees. (Mot. 17.) But the only circumstance under which Defendants could obtain an award of attorneys' fees in connection with Plaintiffs' Motion is if Plaintiffs' Motion were denied in full—a circumstance not present here.

*9 In any event, holding a hearing to have the parties' counsel restate what already is in the Motion and in their under-oath declarations would be a waste of time and resources. The Court finds that it has sufficient evidence of the facts it needs to make a determination regarding the amount of attorneys' fees to be awarded here. Moreover, 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.

Having preliminarily determined that Plaintiffs are entitled to their reasonable expenses under Rule 37(a)(5)(C), the Court next turns to the question whether any of the Rule 37(a)(5)(A) exceptions apply to bar such an award. They do not.

Defendants argue that the first exception under Rule 37(a)(5)(A)(i) applies because Plaintiffs failed to meet and confer before filing the Motion. (Mot. 17.) However, this is incorrect: the parties completed two rounds of written meet-and-confer efforts before Plaintiffs filed the Motion, as required by this Court's modified discovery protocol. (See Mot. 4–7; Pls.' Exs. E–H.)

Next, the Court considers whether the second exception—that the opposing party's responses or objections were substantially justified—applies. Fed. R. Civ. P. 37(a)(5)(A)(ii). 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 ....’ ” 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).

While Defendants assert that their discovery positions were “substantially justified” under Rule 37(a)(5)(A)(ii), they do not provide any reasoning or citations to authority to support this assertion. (Mot. 17.) As detailed above, not one of Defendants' objections is well-taken. Thus, the Court is unable to conclude that Defendants' objections were ones on which reasonable people could differ or that were justified in any way, let alone “substantially” justified, as required to satisfy the exception here.

Defendants do not argue that the third exception—that other circumstances make an award of expenses unjust (Fed. R. Civ. P. 37(a)(5)(A)(iii))— applies here. (See generally Mot.) And the Court can find no evidence of such a circumstance.

For these reasons, the Court concludes that Plaintiffs are entitled to the reasonable expenses, including attorneys' fees, she expended in the bringing of the Motion, apportioned to reflect roughly her level of success, as discussed below.

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:

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. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000). Specifically, the party must support the request with evidence regarding the “number of hours worked and the rates claimed.” Id. The party opposing the fee request bears the “burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in submitted affidavits.” Common Cause v. Jones, 235 F.Supp.2d 1076, 1079 (C.D. Cal. 2002) (quoting Gates, 987 F.2d at 1397).

Plaintiffs request $3,010.00 in attorneys' fees based upon the following lodestar calculation: 8.6 hours spent by Plaintiffs' counsel, a fourth-year associate at Burke, Williams & Sorensen, LLP, at an hourly rate of $350.00. (Mot. 13–17; Slater Decl. ¶¶ 10–12.) Defendants challenge neither the hours spent in bringing the Motion nor the hourly rate requested. (See generally Mot.) 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 $927.50 in reasonable expenses expended in the bringing of the Motion.

As a threshold matter, the Court finds that Plaintiffs' counsel's documented 8.6 hours fall well short of those awarded in this district. See, e.g., Nguyen v. Regents of the Univ. of Cal., No. 8:17-cv-00423-JVS-KESx, 2018 U.S. Dist. LEXIS 226622, at *10–11 (C.D. Cal. May 18, 2018) (approving 36.1 hours for the preparation of a joint stipulation); Dish Network L.L.C. v. Jadoo TV, Inc., No. 2:18-cv-9768-FMO (KSx), 2019 U.S. Dist. LEXIS 221869, at *18 (C.D. Cal. Nov. 8, 2019) (approving 32 hours for the preparation of a discovery motion).

*11 Plaintiffs' counsel's 8.6 hours must be apportioned to reflect the fact that the Court only partially granted the Motion. Fed. R. Civ. P. 37(a)(5)(C). The Motion sought to compel a Rule 34 inspection of Defendants' cell phone devices with respect to three categories of Defendants' text messages: (1) “Each Defendant's text messages sent to and received from all other Defendants from November 1, 2019, through November 30, 2019”; (2) “Each Defendant's text messages sent to and received from all other Defendants ... from December 1, 2019, through December 31, 2019”; and (3) “Each Defendant's text messages sent to and received from all other Defendants ... from January 1, 2020, through the date Setec conducts the inspection and copying described herein.” (Pl.'s Ex. A. at 8; see also Mot. 5.) If Plaintiffs' Motion were granted in full, this would cover Defendants' text messages from November 2019 through December 2021—a total of 26 months. Because the Court granted Plaintiffs' Motion in part, as to Defendants' text messages from November 2019 until June 2020, Plaintiffs' level of success equals eight/twenty-sixth (8/26) of the Motion. Apportioning the 8.6 hours to reflect this success rate, the Court concludes that Plaintiffs are entitled to 2.65 hours of work (8.6 hours multiplied by 8/26 equals 2.65 hours).

Courts reviewing hours billed for purposes of a lodestar calculation have the discretion to discount hours that are impermissibly vague and do not appear to pertain to the preparation of the discovery motion. For example, in Dubose v. County of Los Angeles, No. CV 09-7832 CAS (AJWx), 2012 U.S. Dist. LEXIS 81362, at *14–18 (C.D. Cal. June 11, 2012), the court imposed a 20% across-the-board reduction on fees because they were, among other things, not related to the motion. Id. Similarly, in Sandoval v. Yeter, CV 18-0867-CBM (JPRx), 2019 U.S. Dist. LEXIS 227406, at *9–10 (C.D. Cal. Oct. 31, 2019), the court discounted time entries on the ground that they were not for motion-related work. Id.

Here, there is no basis upon which to reduce Plaintiffs' counsel's billed hours. The billing entries are clear and concise and reflect work associated with the preparation of the Motion: reviewing and analyzing what sanctions were available for Defendants' failure to attend the Rule 34 inspection; preparing the Motion and Plaintiffs' portion of the Joint Stipulation (referred to by Mr. Slater as the “Memorandum of Points and Authorities”); preparing the Slater Declaration; preparing the Proposed Order; and reviewing the supporting evidence and preparing Plaintiffs' exhibits. (Slater Decl. ¶ 12.)

Plaintiffs claim an hourly rate of $350.00 for Mr. Slater. (Mot. 16–17; Slater Decl. ¶ 10.) Defendants do not dispute the reasonableness of this rate. (See generally Mot.) In determining whether the hourly rate billed is reasonable for purposes of an attorneys' fees award, the Court must ensure that the requested rates “are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Carson v. Billings Police Dep't, 470 F.3d 889, 891 (9th Cir. 2006) (noting that the party seeking fees must prove that the rate charged is in line with the “prevailing market rate of the relevant community.” (citation omitted)). The burden is on the fee applicant “to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community....” Camacho, 523 F.3d at 980 (citation omitted). For this purpose, “the relevant community is the forum in which the district court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997). “[R]ates outside the forum may be used if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case.” Id. (internal quotation marks and citation omitted). Accordingly, the relevant community here is the Central District of California. In addition, the court may rely on its own experience to determine a reasonable hourly rate. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). Finally, in exercising its discretion in setting a fee, the court must assess the “reasonableness of the fee in light of the totality of the circumstances.” Jordan v. Multonah County, 815 F.2d 1258, 1262 n.7 (9th Cir. 1987).

*12 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 Decl. ¶ 10.) In addition, Plaintiffs note that, according to the Wolters Kluwer 2020 Real Rate Report (Mid-Year Update) (“Real Rate Report”)[5], 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. (Mot. 16–17.) 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 No. 71 at 6 n.4; ECF No. 134 at 43–44; ECF No. 146 at 36–37; ECF No. 182 at 33–34; ECF No. 189 at 23–25.)

The Court calculates the lodestar for a total of $927.50 (2.65 hours multiplied by $350.00 per hour). Neither party requests an adjustment to the lodestar based on the Kerr factors. (See generally Mot.) Indeed, upon a review of the Kerr factors not already subsumed within the lodestar, the Court sees no reason to make such an adjustment. On this basis, the final attorneys' fee award pursuant to Rule 37(a)(5)(C) is $927.50.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' Motion, and ORDERS as follows:

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

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

While Defendants assert that this Court previously denied Plaintiff's motion to inspect Defendant Abrams's cell phone device (see Mot. 9), this appears to be a misreading of the Court's April 22, 2021 Order granting in part and denying in part Plaintiff's requests to inspect certain computer devices belonging to the Defendants (see April 22, 2021 Order re: Informal Discovery Conference, ECF No. 103).

The Court notes that it has made this observation about Defendants' refusal to enter into a protective order twice in prior discovery orders. (ECF Nos. 134 at 14–15; 146 at 14–15.) Nevertheless, Defendants persist in their unwillingness to protect the privacy interests they so fervently have claimed (see ECF Nos. 126 at 9–62, 71–73; 127 at 15–18; 276 at 6, 18), and claim here (Mot. 9), by entering into a protective order, and yet continue to assert their same privacy objections.

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.)