Skye Orthobiologics, LLC v. CTM Biomedical, LLC
Skye Orthobiologics, LLC v. CTM Biomedical, LLC
2022 WL 3134122 (C.D. Cal. 2022)
June 28, 2022
Castillo, Pedro V., United States Magistrate Judge
Summary
The court granted the motion to compel the production of documents related to the subject matter of the action, including financial documents and customer names and contact information. The court also found that the documents sought by RFP Nos. 44-47, which are Telegram application messages, do not exist and ordered the responding party to provide a supplemental declaration, under oath, affirming that no such documents exist no later than 14 days from the date of the order. This is important for verifying the existence of ESI in order to ensure that all relevant documents are produced in a timely manner.
Additional Decisions
SKYE ORTHOBIOLOGICS, LLC, et al., Plaintiff,
v.
CTM BIOMEDICAL, LLC, et al., Defendants
v.
CTM BIOMEDICAL, LLC, et al., Defendants
Case No. CV 20-3444 MEMF (PVCx)
United States District Court, C.D. California
Filed June 28, 2022
Counsel
Michael Forman, Laura Kelly St Martin, John James Aumer, Ryan D. Saba, Rosen Saba LLP, El Segundo, CA, Francesca Dioguardi, Justin L. Wilson, Rosen Saba LLP, Beverly Hills, CA, for Plaintiff.Paul T. Martin, Thomas H. Case, Hennelly and Grossfeld LLP, Los Angeles, CA, Matthew K. Parker, Pro Hac Vice, Hodgson Russ LLP, New York, NY, Robert J. Fluskey, Jr., Pro Hac Vice, Ryan K. Cummings, Pro Hac Vice, Hodgson Russ LLP, Buffalo, NY, for Defendants, CTM Biomedical, LLC, Bryan Banman, Pablo Seoane.
Hassan Elrakabawy, Todd A. Cavanaugh, David Vincent Moore, Nathan Andrew Guest, Yukevich Cavanaugh, Los Angeles, CA, for Defendants, Gardner Rogers.
Hassan Elrakabawy, Todd A. Cavanaugh, Nathan Andrew Guest, Yukevich Cavanaugh, Los Angeles, CA, for Defendants, Veterans Medical Distributors, Inc.
Saam Takaloo, Arash Beral, Blank Rome LLP, Los Angeles, CA, for Defendants, Mike Stumpe.
Michael Roy Williams, Carlos Aaron Nevarez, Bienert Katzman Littrell Williams LLP, San Clemente, CA, for Defendants, Nathan Boulais.
Matthew K. Parker, Hodgson Russ LLP, New York, NY, for Defendants, CTM Medical, Inc.
Castillo, Pedro V., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS
I. INTRODUCTION
*1 Plaintiffs Skye Orthobiologics, LLC and Human Regenerative Technologies, LLC (collectively, “Plaintiffs”) filed a motion to compel production of documents against Defendant Nathan Boulais (“Boulais”) on May 24, 2022. (“Motion,” Dkt. No. 153). The parties submitted a Joint Stipulation in connection with the Motion pursuant to Local Rule 37-2, (“Jt. Stip.,” Dkt. No. 153-1), which was supported by the declaration of Ryan D. Saba and accompanying exhibits. (“Saba Decl.,” Dkt. No. 153-2).[1] On May 31, 2022, Plaintiffs filed an optional supplemental memorandum as permitted by Local Rule 37-2.3. (“Supp. Memo.,” Dkt. No. 154).
On June 21, 2022, the Court held a hearing via Zoom. For the reasons stated below and on the record at the hearing, Plaintiffs' Motion is GRANTED IN PART and DENIED IN PART. Boulais shall serve supplemental discovery responses and documents as required by this Order no later than fourteen days from the date of this Order.
II. ALLEGATIONS OF THE FOURTH AMENDED COMPLAINT
This matter arises from the alleged appropriation of Plaintiffs' trade secrets by Bryan Banman, one of Plaintiffs' former executives, and Banman's creation of a new business, CTM Biomedical, LLC and CTM Medical, Inc. (collectively, “CTM”), which compete in the same business space as Plaintiffs. In the operative Fourth Amended Complaint, (“4AC,” Saba Decl., Exh. 1, Dkt. No. 153-3), Plaintiffs allege that Banman and others, including Defendant Boulais, conspired to violate RICO by misappropriating Plaintiffs' customer lists, customer order history, specific customer pricing/discount rates, pricing lists, sales materials, and billing guidelines to help form CTM and interfere with Plaintiffs' legitimate business interests. (Id. ¶ 146). During the relevant period, Boulais was an independent sales representative who acted as an independent contractor for Plaintiffs and a number of other, unrelated companies. (Id. ¶¶ 143-145; see also Jt. Stip. at 4). Plaintiffs allege that Boulais, as a sales representative for CTM while he was still purporting to represent Plaintiffs, attempted to convince customers to switch their business from Plaintiffs to CTM. (4AC ¶¶ 147-159). The only claims alleged against Boulais are for violations of civil RICO, (id. ¶¶ 162-181), and conspiracy to violate civil RICO. (Id. ¶¶ 182-187).
III. PROCEDURAL BACKGROUND
On February 3, 2022, Plaintiffs filed the 4AC, which added two new parties to this action: CTM Medical, Inc. and Nathan Boulais. (Jt. Stip. at 2). On March 4, 2022, Plaintiffs served their first set of Requests for Production of Documents on Boulais. (Saba Decl., Exh. 2, Dkt. No. 153-4). Boulais responded on April 4, 2022. (Id., Exh. 3, Dkt. No. 153-5). The parties began to meet and confer to address Plaintiffs' concerns about the adequacy of Boulais's responses on April 19, 2022. (Id. ¶ 5). As required by this Court's November 1, 2021 Order, (id., Exh. 4), prior to filing the instant Motion, the parties met and conferred via Zoom. (Id. ¶ 8). A copy of the transcript of the conference of counsel is attached to Saba's declaration at Exhibit 5. Despite the parties' efforts, the parties were not able to resolve all of their differences. The fact discovery cut-off in this matter is October 12, 2022. (Id., Exh. 6 at 3).
IV. SCOPE OF PERMISSIBLE DISCOVERY
*2 Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. “The relevance standard is commonly recognized as one that is necessarily broad in scope in order to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Raya v. Barka, 2022 WL 686460, at *4 (S.D. Cal. Mar. 8, 2022) (quoting Doherty v. Comenity Capital Bank & Comenity Bank, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017); internal quotation marks omitted); see also Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017) (“Even after the 2015 amendments, courts continue to recognize that discovery relevance remains ‘broad’ in scope.”). “The proportionality inquiry [in Rule 26(b)(1)] focuses, at bottom, on analyzing the marginal utility of the discovery being sought.” V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 314 (D. Nev. 2019) (citing In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D. N.Y. 2016)).
While the scope of permissible discovery may be broad, because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. The 2015 amendments to Rule 26 “were designed to protect against over-discovery and to emphasize judicial management of the discovery process, especially for those cases in which the parties do not themselves effectively manage discovery.” Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 308 (S.D. Ind. 2016); see also Davita HealthCare Partners, Inc. v. United States, 125 Fed. Cl. 394, 398 (2016) (the 2015 amendments to the Federal Rules “contribute to the overall goal of regulating the time and expense of litigation”). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw-Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted); see also DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”).
V. DISCUSSION
A. RFP Nos. 1-3 (Financial Documents)
1. The Disputed Requests And Responses
*3 Plaintiffs seek three kinds of financial documents from Boulais:
RFP No. 1: All IRS Form W-2s issued to you for the years 2018 to the present.
RFP No. 2: All IRS Form 1099s issued to you for the years 2018 to the present.
RFP No. 3: Your tax returns for the years 2018 to the present.
Response to RFP Nos. 1, 2 and 3: Responding Party incorporates by this reference his General Responses and Continuing Objections set forth above. Additionally, this Request seeks documents not relevant to the subject matter of this action, nor reasonably calculated to lead to the discovery of admissible evidence. Responding Party further objects to the extent the request seeks documents protected by the attorney-client privilege, the attorney work product doctrine, the tax return privilege, or any other applicable privilege or protection. This Request seeks documents and information that are equally obtainable by the propounding party from another source that is more convenient, less burdensome or less expensive. This request is not proportional to the needs of the case and the likelihood that the documents requested will lead to admissible evidence is outweighed by the unreasonable expense and undue burden imposed on Responding Party.
(Jt. Stip. at 5-6; Saba Decl., Exh. 3 at 1-3).
2. The Parties' Contentions
Plaintiffs contend that Boulais's “payment and tax return” information is relevant to their RICO causes of action because the documents will show “whether or not [Boulais] profited from the schemes alleged and how he was compensated for his involvement in the alleged schemes.” (Jt. Stip. at 8) (citing, inter alia, A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006) (tax returns and related documents are relevant to civil RICO claims)). Furthermore, Plaintiffs argue that Boulais's “entire financial condition,” regardless of the source of the money, is relevant to their economic damages and punitive damages claims. (Id.) (citing, inter alia, Vieste, LLC v. Hill Redwood Dev., 2011 WL 855831, at *1 (N.D. Cal. Mar. 9, 2011) (“Discovery of Defendants' net worth and financial condition is clearly relevant to the issue of punitive damages.”)). Plaintiffs maintain that the requests are not overbroad because they are limited to the period between 2018 and the present, (Jt. Stip. at 8); the documents are not privileged and will be protected from public disclosure by the Stipulated Protective Order, (id. at 9); and the information sought is not available from other sources. (Id.).
Boulais states that he is “happy” to produce his W-2s and 1099 forms from CTM, or documents that reflect his compensation from CTM, because those are the only financial documents conceivably relevant to Plaintiffs' claims. (Id. at 10). Boulais argues that even though Plaintiffs allege that the purported “RICO conspiracy” was the formation and operation of CTM, the documents requested “go well beyond anything that would show” his profit from that business. (Id. at 9-10). According to Boulais, because he is an independent sales representative who sells for “numerous companies,” he receives 1099 forms from companies that have nothing to do with Plaintiffs or the claims and defenses in this case. (Id. at 10). The information requested in RFP Nos. 1-3 is therefore “dramatically broader than anything that would be relevant” and its production would be disproportionate to the needs of the case. (Id. at 9). Boulais further contends that even though a defendant's financial condition may be relevant to punitive damages, tax returns do not show a taxpayer's net worth, and W-2s and 1099 forms “even less so.” (Id. at 10). Finally, Boulais argues that while tax returns are not absolutely privileged under federal law, they do enjoy a “qualified privilege” such that to obtain their production, a requesting party must show that it “clearly appears they are relevant to the subject matter” and there is a “compelling need” for the information contained therein, neither of which Plaintiffs have established. (Id. at 10) (quoting Gattegno v. Pricewaterhousecoopers, LLP, 205 F.R.D. 70, 72-73 (D. Conn. 2001)).
3. Ruling
*4 “In federal question cases, federal privilege law applies.” N.L.R.B. v. North Bay Plumbing, Inc., 102 F.3d 1005, 1009 (9th Cir. 1996). “State privilege doctrine, whether derived from statutes or court decisions, is not binding on federal courts in these kinds of cases.” Kelly v. City of San Jose, 114 F.R.D. 653, 655 (N.D. Cal. 1987). In particular, “the question of the existence and scope of the taxpayer's privilege, if any, to withhold tax return information is to be determined by federal law” in a federal question case. Heathman v. United States District Court, 503 F.2d 1032, 1034 (9th Cir. 1974).
Under federal law, tax returns and related documents “do not enjoy an absolute privilege from discovery.” Premium Services Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975); Heathman, 503 F.2d at 1035 (26 U.S.C. § 6103(a)(2) restricts the dissemination of tax returns only by the government and does not otherwise make copies of tax returns privileged). “Nevertheless, a public policy against unnecessary public disclosure [of tax returns] arises from the need, if the tax laws are to function properly, to encourage taxpayers to file complete and accurate returns.” Premium Services Corp., 511 F.2d at 229.
Courts generally apply a two-pronged test to balance the liberal scope of discovery and the policy favoring the confidentiality of tax returns. See Farber, 234 F.R.D. at 191; Hilt v. SFC Inc., 170 F.R.D 182, 189 (D. Kan. 1997). First, the court must find that the returns are relevant to the subject matter of the action. Second, the court must find that there is a compelling need for the returns because the information contained therein is not otherwise readily obtainable. Farber, 234 F.R.D. at 191. “The party seeking production has the burden of showing relevancy, and once that burden is met, the burden shifts to the party opposing production to show that other sources exist from which the information is readily obtainable.” Hilt, 170 F.R.D. at 189 (internal citations and quotations omitted). However, courts often distinguish tax returns from “less intrusive” financial documents such as W-2 forms, 1099 forms, and paystubs. Conforto v. Mabus, 2014 WL 3896079, at *9 (S.D. Cal. Aug. 8, 2014) (ordering plaintiff to produce W-2 forms instead of tax returns pursuant to the parties' agreement); Garedakis v. Brentwood Union Sch. Dist., 2016 WL 1133715, at *4 (N.D. Cal. Mar. 23, 2016) (production of plaintiff's personnel records, including W-2 forms, did not impermissibly invade right to privacy); Nat.-Immunogenics Corp. v. Newport Trial Grp., 2017 WL 10562762, at *5 (C.D. Cal. June 27, 2017) (ordering production of 1099 forms as “alternate source” of the information in defendant's tax returns).
At the hearing on the Motion, Boulais offered two cases, not cited in the briefs, for the proposition that his tax returns are not discoverable. In the first case, Bangkok Broadcasting & T.V. Co., LTD v. IPTV Corp, 2010 WL 11523703 (C.D. Cal. Feb. 12, 2010) (unpublished), the Court found that Plaintiff failed to demonstrate how individual tax returns could be relevant to the claims of infringement against corporate defendants and further found that the individual defendants' right to privacy outweighed Plaintiff's need for the requested documents in denying RFPs seeking tax returns. In the second case, Harris v. 68-444 Perez Inc., 2020 WL 9259817 (C.D. Cal. Sept. 8, 2020) (unpublished), the Court found that “it is not clear on the record whether the financial information plaintiffs seek is otherwise available in defendants' other financial records,” and ordered the parties to meet and confer. While these cases are not binding authority, they are persuasive to the extent that they highlight the special sensitivity of tax returns.
*5 Different considerations apply to the production of other financial documents. The Court finds that RFP No. 1, requesting W-2s issued to Boulais for the years 2018 to the present, and RFP No. 2, requesting Form 1099s issued to Boulais for the years 2018 to the present, are relevant to the subject matter of this action, specifically to any economic or punitive damages Plaintiff may have suffered. However, the Court must also determine whether there is a compelling need to disclose the information because it is not otherwise readily available. The Court finds that production of the W-2s and 1099s sought by Plaintiff is a less intrusive means to gain the financial information which Plaintiff seeks, and that the information is not readily available from other sources, and thus orders production of all relevant documents sought in RFP No. 1 and RFP No. 2. To that extent, the motion to compel is GRANTED, and Plaintiff is ORDERED to produce his W-2s and Form 1099s from any source from 2018 to the present within fourteen days of the date of this Order. However, as to RFP No. 3, which seeks tax returns for the year 2018 to the present, the Court finds that there has not been a showing of compelling need for the tax returns on the ground that the information is not otherwise readily attainable. Indeed, at the hearing on the motion, Plaintiff indicated that there are pending interrogatories and requests for production which seek information about Boulais' financial condition. Because tax returns contain other information, i.e., information of a personal nature such as dependents, income from a spouse, deductions, credits, and much other information which may not otherwise be relevant to this lawsuit and for which the right to privacy is strong, and because the Court finds that there has not been a sufficient showing of a compelling need for the tax returns as the W-2s and 1099 forms may provide the financial information sought, the motion to compel with respect to RFP No. 3 is DENIED.
B. RFP Nos. 56-57 (Customer Names And Contact Information)
1. The Disputed Requests And Responses
Plaintiff seek documents identifying CTM's and Boulais's customers:
RFP No. 56: All Documents that identify the names and contact information of any customers of CTM Biomedical, LLC from June 1, 2018 to the present.
RFP No. 57: All Documents that identify the names and contact information of any of your customers from June 1, 2018 to the present.
Response to RFP Nos. 56-57: Responding Party incorporates by this reference his General Responses and Continuing Objections set forth above. Additionally, this Request seeks documents or things not in Responding Party's possession, custody, or control. This request is not proportional to the needs of the case and the likelihood that the documents requested will lead to admissible evidence is outweighed by the unreasonable expense and undue burden imposed on Responding Party.
Subject to and without waiving these or any continuing objections, Responding Party responds as follows: After a reasonable search and diligent inquiry, Responding Party is unable to comply with this Request because such documents do not exist.
(Jt. Stip. at 11; Saba Decl., Exh. 3 at 34-35).
2. The Parties' Contentions
Plaintiffs argue that the documents sought by RFP Nos. 56 and 57 are relevant to its claims that Boulais was a “key player” in the conspiracy to misappropriate their trade secrets, including customer lists, customer order history, specific customer pricing, etc. to help form CTM. (Jt. Stip. at 11) (quoting 4AC, Saba Decl., Exh. 1 ¶ 146). According to Plaintiffs, although Boulais agreed during the parties' Zoom conference to produce documents “sufficient to identify” CTM's and his customers from June 1, 2018 to the present, he has not done so. (Jt. Stip. at 11 (citing Saba Decl., Exh. 5 at 16:9-17:3); see also Supp. Memo. at 2 (re-affirming that Boulais still has not produced customer-identifying documents)). Boulais summarily contends that there is “no need for a motion to compel on these requests [because] Mr. Boulais agreed to produce documents sufficient to identify his customers and will do so.” (Jt. Stip. at 11).
3. Ruling
The parties do not dispute the relevancy of the documents sought by RFP Nos. 56 and 57, and Boulais has stated that he will produce them. At the hearing, Boulais indicated that there was “not a good excuse” why responsive documents had not yet been produced, and agreed to produce said documents. For this reason, the motion to compel as to the documents sought by RFP Nos. 56 and 57 is GRANTED. Boulais is ORDERED to produce responsive documents no later than 14 days from the date of this order.
C. RFP Nos. 44-47 (Telegram Application Messages)
1. The Disputed Requests And Responses
Plaintiffs seek all communications between Boulais and his co-Defendant Mike Stumpe concerning several different topics:
RFP No. 44: All Documents and/or Communications[2] by and between Mike Stumpe and you that identify, mention or concern Human Regenerative Technologies, LLC from June 1, 2017 to the present.
*6 RFP No. 45: All Documents and/or Communications by and between Mike Stumpe and you that identify, mention or concern Chris Sharp from June 1, 2017 to the present.
RFP No. 46: All Documents and/or Communications by and between Mike Stumpe and you that identify, mention or concern Human Regenerative Technologies, LLC from June 1, 2017 to the present.
RFP No. 47: All Documents and/or Communications by and between Mike Stumpe and you that identify, mention or concern Chris Sharp from June 1, 2017 to the present.
Response to RFP Nos. 44-47: Responding Party incorporates by this reference his General Responses and Continuing Objections set forth above. Additionally, this Request seeks documents and information that has already been produced in this action, is already in the Propounding Parties' possession, publicly available, or equally available to the Propounding Parties. This Request is duplicative of a previous Request. This Request seeks documents that are commercially sensitive or constitute a trade secret. This Request violates and unduly burdens the rights of privacy of Responding Party or third parties. This request is not proportional to the needs of the case and the likelihood that the documents requested will lead to admissible evidence is outweighed by the unreasonable expense and undue burden imposed on Responding Party.
Subject to and without waiving these or any continuing objections, Responding Party responds as follows: To the extent not already produced in this action, Responding Party will produce all non-privileged documents responsive to this Request within his possession, custody, or control.
(Jt. Stip. at 12; Saba Decl., Exh. 3 at 26-29).
2. The Parties' Contentions
While Boulais has produced documents responsive to these requests, Plaintiffs state that some of the text and WhatsApp messages that Boulais produced between himself and Defendant Mike Stumpe that suggest that additional messages may exist from the “Telegram” messaging app that were not produced. (Jt. Stip. at 12). Specifically, the messages that were produced include a message from Stumpe to Boulais asking if Boulais uses the “telegram messaging app” and if not, asking him to “please download it when you can, need to chat about a few things.” (Id. at 13). The messages further appear to indicate the Boulais did download the app and forwarded a conference code to Stumpe. (Id.). Plaintiffs state that at the Zoom conference of counsel, Boulais did not object to producing the messages if they still exist. (Id.) (citing Saba Decl., Exh. 5 at 17:4-16). However, Boulais has not produced any additional messages or confirmed their existence. In the event that there are no extant messages, Plaintiffs seek an order requiring Boulais to explain why the messages no longer exist, and permitting a third party vendor to examine Boulais's mobile device and computer to determine whether such messages exist and/or were deleted, and to attempt to recover the messages. (Id. at 14).
*7 Boulais's counsel states that Boulais confirmed that he has never sent or received Telegram messages, and therefore has no responsive documents to RFP Nos. 44-47, because no such documents ever existed. (Id.). Boulais further argues that Plaintiffs have not shown good cause for a forensic examination of his electronic devices by an outside vendor, and Plaintiffs have not made their own employees' electronic devices available for such an examination. (Id.). According to Boulais, Plaintiffs will have the opportunity to depose him and can question him under oath to test his representation that he has never sent or received any messages on the Telegram app. (Id.).
3. Ruling
The court cannot order a party to produce documents that do not exist. A mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., Bethea v. Comcast, 218 F.R.D. 328, 329 (D. D.C. 2003) (requesting party's suspicion that responding party failed to produce responsive documents does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D. D.C. 2000) (a party's mere suspicion that its opponent must have documents that it claims not to have does not warrant granting a motion to compel). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (defendants' assertion that they are unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”); Ayala v. Tapia, 1991 WL 241873, at *2 (D. D.C. Nov. 1, 1991) (denying motion to compel where moving party could not identify documents that were withheld).
Federal Rule of Civil Procedure 34(b)(2)(B) provides that a response to a request for production of documents “must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Accordingly, unlike Rule 33(b), which requires that responses to interrogatories be verified, “Rule 34(b) does not require a party's response to a document request to be verified by the party. Rather, responses to document requests need only be certified by an attorney or unrepresented party.” State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 222 (E.D. Pa. 2008) (emphasis in original); accord 1 Discovery Proceedings in Federal Court § 17:13 (3d ed.) (citing same). As one court explained, the disparity between Rule 33's verification requirement for interrogatory responses and Rule 34's lack of a verification requirement for responses to production requests may be explained by the Rules' differing functions:
Rule 33 requires a party to provide under oath a substantive answer to a question and requires the person giving that answer to verify the truth of the answer with his or her signature. In contrast, a response under Rule 34 need only indicate whether the party will comply with the document request, and if it will not, state any objections to the document request. Indicating compliance does not require a substantive answer, but rather is a ministerial task, and thus does not require a verification. Additionally, objections to the requests are governed by Rule 26(g). See Fed. R. Civ. P. 26(g) (providing that “[e]very ... discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name -- or by the party personally, if unrepresented” (emphasis added)).
*8 State Farm Mut. Auto. Ins. Co., 250 F.R.D. at 222 n.19.
However, where a response to a production request is neither a representation that responsive documents will be produced nor a legal objection to the request, but rather a representation that all responsive documents have already been produced or that no responsive documents exist in the responding party's possession, custody, or control, many courts require that the response be verified. See, e.g., Vazquez-Fernandez v. Cambridge College, Inc., 269 F.R.D. 150, 154 (D. P.R. 2010) (“[W]hen a response to a [request for] production for documents is not a production or an objection, but an answer, the party must answer under oath.”); Napolitano v. Synthes USA, LLC, 297 F.R.D. 194, 200 (D. Conn. 2014) (“[A] response that all documents have been produced does require attestation.”) (emphasis in original); Rayman v. Am. Charter Fed. Savings & Loan Ass'n, 148 F.R.D. 647, 651 (D. Neb. 1993) (noting that pursuant to the 1970 Advisory Committee comment to Rule 34(b), where the response to a production request is an assertion of fact akin to an interrogatory, “the proper procedure for making the response is mandated by Rule 33, which requires responses by the party under oath”)); Lever Your Bus., Inc. v. Sacred Hoops & Hardwood, Inc., 2021 WL 243308, at *14 (C.D. Cal. Jan. 25, 2021) (requiring responding party to “provide a verified response to RFP No. 16 clarifying either 1) all responsive, non-privileged documents in its possession have been produced after a diligent search and reasonable inquiry ... or 2) after a diligent search and reasonable inquiry, [responding party] has no documents in its possession, custody, or control responsive to the request”).
Boulais's written response to RFP Nos. 44-47 provided that he would produce documents in response to the requests, “[t]o the extent [they were] not already produced in this action.” (Saba Decl., Exh. 3 at 26-29). During the parties' conference of counsel, counsel for Boulais stated that he would “have to check” to see if messages on the Telegram app exist. (Id., Exh. 5 at 17:16). To the extent that Boulais is now maintaining that he does not have any Telegram app messages in his possession, custody, or control, his response is neither a promise to produce nor an objection to production, but an affirmative statement of fact.
At the hearing on this motion, Boulais conceded that if Telegram app documents exist, they should be turned over. Counsel for Boulais indicated that he had spoken with his client, who stated that he never used the Telegram app and that no messages exist. The Court finds that because it cannot order Boulais to provide documents which it asserts does not exist, the motion to compel as to RFP Nos. 44-47 is DENIED. However, Boulais is ORDERED to provide a supplemental declaration, under oath, affirming that no such documents exist no later than 14 days from the date of this order.
VII. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel is GRANTED IN PART and DENIED IN PART. Defendants are ORDERED to serve supplemental discovery responses and documents as required by this Order no later than fourteen days from the date of this Order.
Footnotes
When citing to exhibits, (Dkt. Nos. 153-3 - 153-8), the Court will follow the documents' internal pagination and not the CM/ECF-generated pagination on the Court's docket.
“Communications” is defined in the Request for Production (Set One) as:
Whenever used herein, the term “Communication” is used in its broadest sense and includes, but is not limited to, any transmittal and/or receipt of information or a Document, whether oral, written, or verbal or nonverbal, whether such was by chance, prearranged, formal or informal, oral or written, and specifically includes conversations in person, telephone conversations, instant messages, text messages, mobile phone or computer applications (such as WhatsApp or SnapChat), telegrams, letters or memoranda, formal statements, press releases, electronic mail transmissions, and newspaper articles.
(Jt. Stip. at 12; Saba Decl., Exh. 2 at 3).