RG Abrams Ins. v. Law Offices of C.R. Abrams
RG Abrams Ins. v. Law Offices of C.R. Abrams
2022 WL 18938246 (C.D. Cal. 2022)
January 10, 2022
Audero, Maria A., United States Magistrate Judge
Summary
The court ordered the defendants to supplement their responses to certain requests for production (RFP-3 Nos. 118 through 121) without objections, except for attorney-client privilege objections. The court also ordered the defendants to produce a privilege log for any documents withheld on the basis of the attorney-client privilege. The court emphasized that the privilege log must contain detailed information on a document-by-document basis. The court also warned that failure to comply with the discovery requests related to ESI may result in sanctions, including the imposition of attorneys' fees.
Additional Decisions
RG ABRAMS INSURANCE, and ROBIN GOLTSMAN, Plaintiffs,
v.
THE LAW OFFICES OF C.R. ABRAMS et al., Defendants.
AND RELATED CROSS-ACTIONS
v.
THE LAW OFFICES OF C.R. ABRAMS et al., Defendants.
AND RELATED CROSS-ACTIONS
Case No. 2:21-cv-00194-FLA-MAAx
United States District Court, C.D. California
Filed January 10, 2022
Audero, Maria A., United States Magistrate Judge
ORDER GRANTING PLAINTIFF ROBIN GOLTSMAN'S MOTION TO COMPEL DEFENDANTS' RESPONSES TO REQUEST FOR PRODUCTION, SET THREE; AND DENYING PLAINTIFF'S AND DEFENDANTS' REQUESTS FOR ATTORNEYS' FEES (ECF NO. 277)
I. INTRODUCTION
*1 Before the Court is Plaintiff's Motion to Compel Defendants' Responses to Requests for Production, Set Three (“Motion”). (Mot., ECF No. 277.) The Motion was filed by Plaintiff/Counter-Defendant Robin Goltsman (“Plaintiff”). Through the Motion, Plaintiff seeks an order compelling Defendants/Counter-Claimants Christopher R. Abrams, Sarah Rinelli, Jack R. Mills, Cynthia Wooten, and Robin Armstrong (collectively, “Defendants”) to supplement their responses to Plaintiff's Requests for Production, Set Three (Mot. 7–12[1]), and that Defendants pay Plaintiff's attorneys' fees incurred in preparing the Motion pursuant to Federal Rule of Civil Procedure (“Rule”) 37(a)(5)(A) in the amount of $2,450.00 (id. at 13–16). In support of the Motion, Plaintiff filed the Declaration of Michael A. Slater in Support of Plaintiff Robin Goltsman's Motion to Compel Defendants' Responses to Requests for Production, Set Three (“Slater Declaration”) (Slater Decl., ECF No. 277-1, at 1–4), and its accompanying Exhibits A and B (Pl.'s Ex. A (ECF No. 277-1 at 5–20); Pl.'s Ex. B (ECF No. 277-1 at 21–36)).
Defendants filed an Opposition to Robin Goltsman's Motion to Compel Responses from Defendants, to Set Three Request for Production (“Opposition”). (Opp'n, ECF No. 284.) Through their Opposition, Defendants oppose Plaintiff's Motion and seek attorneys' fees. (See generally Opp'n.) In support of the Opposition, Defendants filed the Declaration of Timothy Donohue (“Donahue Declaration”), which clarifies that Defendants seek attorneys' fees in the amount of $5,700.00. (Donahue Decl., ECF No. 284-1.)
Plaintiff filed a Reply Memorandum in Support of Plaintiff Robin Goltsman's Motion to Compel Defendants' Responses to Requests for Production, Set Three (“Reply”). (Reply, ECF No. 289.) In addition to providing a response to Defendants' Opposition, the Reply opposes Defendants' request for attorneys' fees and seeks an additional $1,295.00 for attorneys' fees incurred in the preparation of the Reply. (See generally Reply.) In support of the Reply, Plaintiff filed a Supplemental Declaration of Michael A. Slater in Support of Reply Memorandum in Support of Plaintiff Robin Goltsman's Motion to Compel Defendants' Responses to Requests for Production, Set Three (“Slater Supplemental Declaration”). (Slater Suppl. Decl., ECF No. 289-1.)
Finding that neither the Motion nor the Reply provided evidence that Plaintiff had satisfied her pre-filing meet-and-confer obligations required by Rule 37(a) and Central District of California Local Civil Rule (“Local Rule”) 37-1 as modified by this Court (ECF Nos. 115, 139), the Court ordered Plaintiff to amend Mr. Slater's declaration to either provide evidence of such efforts or, if no such efforts were undertaken, to explain the reason therefor. (ECF No. 291.) In response, Plaintiff filed the Amended Declaration of Michael A. Slater in Support of Plaintiff Robin Goltsman's Motion to Compel Defendants' Responses to Requests for Production, Set Three (“Slater Amended Declaration”). (Slater Am. Decl., ECF No. 297.)
*2 To give Defendants an opportunity to rebut Plaintiff's facts and arguments, as set forth in the Slater Amended Declaration, the Court allowed Defendants an opportunity to file an optional supplemental declaration. (ECF No. 304.) Defendants filed the Supplemental Declaration of Timothy Donahue in Opposition to Motion to Compel (“Donahue Supplemental Declaration”). (Donahue Suppl. Decl., ECF No. 305.)
Upon review of the papers filed by the parties, the Court concludes that a hearing is not necessary and that the Motion is 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 Plaintiff's Motion but DENIES Plaintiff's request for attorneys' fees.
II. FACTUAL AND PROCEDURAL BACKGROUND
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:[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.)
*3 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
On August 27, 2021, Plaintiff served each of Abrams, Rinelli, Mills, Armstrong, and Wooten with identical sets of Requests for Production of Documents, Set Three (“RFP-3”). (Pl.'s Ex. A.) RFP-3 requested as follows:
No. 118: The DOCUMENT referred to as the “monthly backup reconciliation” by YOU and/or any PLAINTIFF or DEFENDANT from June 2019 to the present.
No. 119: The DOCUMENT referred to as “the note” by YOU and/or any PLAINTIFF or DEFENDANT from June 2019 to the present.
No. 120: The DOCUMENT referred to as the “sales report” by YOU and/or any PLAINTIFF or DEFENDANT from June 2019 to the present.
No. 121: The DOCUMENT referred to as the “seminar stats” by YOU and/or any PLAINTIFF or DEFENDANT from June 2019 to the present.
Defendants served their respective responses on September 27, 2021. (Pl.'s Ex. B.) Each of their responses were identical, across Defendants and across requests. As to each request, each Defendant responded identically as follows:
Objection; illegal, fraudulent alleged proof of service by Tanya Lee, Rule 6. Objection overbroad, attorney-client privilege, attorney work product, harassing, unnecessary Rule 26(b), Rule 1. California Consumer Privacy Act, Information Privacy Act, CC 1798 et seq. California Privacy Rights Act, California Consumer Privacy Act, abusing and harassing, invasion of privacy Article 1 Section 1.
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. 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.
*4 Further, the court “must limit the frequency or extent of discovery” pursuant to Rule 26(b)(2) if:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(2)(C).
Rule 34 governs requests for production of documents. It allows a party to serve on any other party “a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... items in the responding party's possession, custody, or control[,]” including, inter alia, documents and electronically stored information. Fed. R. Civ. P. 34(a). The responding party must serve its responses and any objections to requests for production of documents within thirty days after being served with the requests, unless otherwise stipulated or ordered by the court. Fed. R. Civ. P. 34(b)(2). 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).
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. The Court Excuses Plaintiff's Failure to Satisfy Her Pre-Filing Meet-and-Confer Obligations in the Interest of Securing the Just, Speedy, and Inexpensive Determination of this Dispute.
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.)
*5 As noted above, Plaintiff filed this Motion without providing the required Rule 37(a)(1) certification that she had met and conferred with Defendants in good faith before filing the Motion. (See generally Mot.) Plaintiff also filed this Motion without providing any evidence that she had satisfied the Modified Local Rule 37-1 Protocol. C.D. Cal. L.R. 37-1. (ECF Nos. 115, 139; see generally Mot.)
Defendants contend that, in “never attempt[ing]a true good faith meet and confer,” Plaintiff and her counsel “made a mockery of the meet and confer process.” (Opp'n 2.) Defendants argue that Plaintiff responded to their meet-and-confer letters “no less than a few minutes after ... reject[ing] everything out of hand ... [with] no consideration given to defendant's [sic] position, in the seconds that elapsed.” (Id. at 2–3.) They note that Plaintiff “never addressed in the required meet and confer[ ] the proper or controlling legal authorities nor the prior court orders.” (Id. at 5 (citing ECF No. 274).) They add that “Plaintiff falsely alleges that a good faith meet and confer took place November 16, the motion was not filed until about (1) one month later, with no explanation for the delay.” (Id.)
Noting this deficiency, the Court ordered Plaintiff to file a declaration of counsel either detailing the meet-and-confer efforts in which Plaintiff had engaged prior to filing the motion or providing the reasons for not satisfying this obligation. (ECF No. 291.) Plaintiff filed the Slater Amended Declaration in response to the Court's order. (Slater Am. Decl.) Through the Slater Amended Declaration, Plaintiff concedes that she did not satisfy her pre-filing meet-and-confer obligation. (Id. at ¶ 103 (“Although I attempted to meet and confer with Defendants' counsel before filing the Motion, I did not meet and confer in the manner prescribed by Civil Local Rule 37-1 ....”).) Plaintiff provides three reasons why the Court nevertheless should consider the Motion: Reason 1: Plaintiff attempted to meet and confer using the procedures of Local Rule 7-3 rather than those of Local Rule 37-1; Reason 2: Defendants will not be prejudiced if the Court considers this Motion without the required pre-filing meet-and-confer; and Reason 3: Defendants do not challenge Plaintiff's failure to meet and confer. (Id. at ¶¶ 104–15.)
The Court then provided Defendants an opportunity to respond to the Slater Amended Declaration, which they did by filing the Donahue Supplemental Declaration. (Donahue Suppl. Decl.) Relevant to the meet-and-confer issue, Defendants' counsel raises the following arguments: (1) the Slater Amended Declaration exceeds the Court's order; (2) there was no meet and confer before filing the Motion; (3) Mr. Slater admits to waiting until the last minute to use a non-discovery meet-and-confer procedure with which he, in turn, failed to comply; (4) the Motion did not contain the required Rule 37(a)(1) meet-and-confer certification; and (5) Mr. Slater knew that Defendants' counsel was unavailable on the day he called to meet and confer because Defendants' counsel was defending Plaintiff's deposition of Defendant Christopher Abrams. (See generally id.)
For the reasons stated below, the Court is not persuaded by the Slater Amended Declaration, but nevertheless excuses Plaintiff's failure to satisfy her meet-and-confer obligations in the interest of a speedy resolution of this Motion. As a threshold matter, Defendant is correct that Plaintiff exceeded the Court's order. The order requested factual information—if Plaintiff met and conferred, and if not, why not—which Plaintiff answered in Reason 1. Reasons 2 and 3 constitute nothing more than legal argument asking the Court to disregard Plaintiff's non-compliance stated in Reason 1—argument not authorized by this Court. Accordingly, the Court could disregard Reasons 2 and 3. Nevertheless, because Reasons 2 and 3 do not change the Court's conclusion, the Court considers all of Plaintiff's reasons. The Court concludes that, taken together or individually, Reasons 1 through 3 are unconvincing.
*6 Plaintiff's Reason 1 is that, after Defendants served their responses to RFP-3 on September 27, 2021, Mr. Slater attempted to meet and confer with Defendants' counsel, Mr. Donahue, by telephoning him on October 1, 2021—in reliance on Local Rule 7-3 procedures because there would not have been time to exchange the four meet-and-confer letters in 48-hour intervals as required by the Modified Local Rule 37-1 Protocol—and that Mr. Donahue did not return his call, forcing Mr. Slater to file Plaintiff's Motion on October 1, 2021 without meeting and conferring. (Slater Am. Decl. ¶ 104.) Reason 1 is not persuasive for multiple reasons. First, Local Rule 7-3 does not apply to discovery motions. C.D. Cal. L.R. 7-3 (providing the procedure for pre-filing conference of counsel but excepting “discovery motions (which are governed by L.R. 37-1 through 37-4.”)). Second, even if Local Rule 7-3 were available to Plaintiff, she did not comply with that rule because the meeting of counsel did not take place, as required, seven days prior to the filing of the Motion. See id. Third, despite Plaintiff's insistence (here and in other filings), October 1, 2021 never was the last day to file discovery motions. Rather, October 1, 2021 was the fact discovery cut-off in this matter which, according to the definition of the Honorable Fernando Aenlle-Rocha, was the last day to “hear,” not “file,” discovery motions. (ECF No. 170.) Fourth, Mr. Slater does not explain why he waited until October 1, 2021—four days after Defendants served their September 27, 2021 RFP-3 responses—to initiate meet-and-confer discussions with Defendants' counsel. (See generally Slater Am. Decl.) And, while Mr. Slater contends that this four-day period would not have been sufficient to satisfy the four-letter-in-48-hour-intervals obligation (Slater Am. Decl. ¶ 105), he fails to acknowledge that the 48-hour interval is the longest a party could delay in responding, and that, indeed, the parties have a history of responding to each other's meet-and-confer letters on the same day (see, e.g., ECF Nos. 140-1 ¶¶ 2, 6, 8; 148-1 ¶¶ 4–6; 176-1 ¶ 10; 200-1 ¶¶ 7–14; 276-1 ¶¶ 3, 4; 279-1 ¶¶ 5–8; 280-1 ¶¶ 4, 5). Fifth, Mr. Slater well knew that Mr. Donahue was unavailable on October 1, 2021 because Mr. Donahue was defending Plaintiff's deposition of Defendant Christopher Abrams on that day. Still, rather than leave a message for Mr. Basinger, the other attorney on the case, Mr. Slater chose to leave a message for Mr. Donahue only. (Id. at ¶ 104.) Worse, it is unclear why Mr. Slater—who, according to Mr. Donahue, “was popping in and out of” the Abrams deposition (Donahue Suppl. Decl. ¶ 8)—did not use the opportunity during breaks or after the deposition to meet-and-confer with Mr. Donahue about the filing of this Motion, or ask his associate who was taking the deposition to do so. (See generally Slater Am. Decl.) Sixth, Mr. Slater conflates his meet-and-confer obligations at the time Plaintiff originally intended to file the Motion in October 2021, on the one hand, with his meet-and-confer obligations in filing the Motion in December 2021. Indeed, while Mr. Slater might have missed the window to meet and confer before filing the Motion on the purported October 1, 2021 fact discovery cut-off date, he still had ample opportunity—and more importantly, statutory obligation—to meet and confer with Defendants' counsel before filing the Motion in December 2021. Mr. Slater offers no evidence that he attempted to do so after his October 1, 2021 attempt but before Plaintiff's December filing. (See generally Slater Am. Decl.) In sum, Plaintiff's Reason 1 is wholly unconvincing.
So too is Plaintiff's Reason 2. Mr. Slater argues that Defendants will not be prejudiced if the Court considers the Motion because, in a July 14, 2021 order regarding related discovery, the Court noted that it likely would compel the discovery sought through what later was propounded as the requests that are the subject of this Motion, and thus Defendants had an opportunity to meet and confer for months. (Slater Am. Decl. ¶¶ 106–12 (citing ECF No. 146).) But this argument (1) puts the cart before the horse, (2) forces Defendants to anticipate discovery that was not served until months later, and (3) shifts the burden of initiating the meet-and-confer process to Defendants. The only facts that matter here are those related to RFP-3: Plaintiff served RFP-3 on August 27, 2021 (Pl.'s Ex. A); Defendants served their responses on September 27, 2021 (Pl.'s Ex. B); and Plaintiff waited until October 1, 2021 to initiate the meet-and-confer process (Slater Am. Decl. ¶ 104). Whatever may have occurred before August 27, 2021 does not compel a finding that Defendants should have anticipated the discovery at issue here and themselves commenced the meet-and-confer process months before that discovery was served.
Plaintiff's Reason 3 is equally unconvincing. Mr. Slater argues that Defendants do not challenge Plaintiff's meet-and-confer efforts here and contends that the Court should not make the argument for them. (Id. at ¶¶ 113–15.) Mr. Slater is correct that Defendants' objection to Plaintiff's purported meet-and-confer efforts is supported by facts that relate to a wholly different motion and meet-and-confer process. (Id. at 113 (citing Opp'n 2–3).) Indeed, Defendants' argument seems to be that although Plaintiff did engage in meet-and-confer efforts, such efforts were not in good faith. (Opp'n 2–3.) Nevertheless, Plaintiff's argument that the Court should not make Defendants' argument for them ignores the Court's own obligation to manage its docket and ensure that the rules and its own orders are followed. See Cisco Sys. v. Chung, No. 19-cv-07562-PJH, 2020 U.S. Dist. LEXIS 240028, at *9 (N.D. Cal. Dec. 21, 2020) (“It is well-established that a district court maintains ‘inherent authority to manage their dockets ... with a view toward the efficient and expedient resolution of cases' ... [which] includes the court's ability to enforce its prior orders.” (citations omitted)). Here, Rule 37(a) requires that the parties meet and confer before filing a discovery motion. Fed. R. Civ. P. 37(a). In support of that requirement, Local Rule 37-1 provides the procedure that must be followed in satisfying the Rule 37(a) meet-and-confer obligation. C.D. Cal. L.R. 37-1. Further, the parties asked the Court to modify the Local Rule 37-1 meet-and-confer procedure, and the Court did so by issuing the Modified Local Rule 37-1 Protocol. (ECF Nos. 115, 139.) It is clear that Plaintiff complied with none of these rules or procedures.
*7 The foregoing notwithstanding, the Court concludes that denying the Motion for Plaintiff's failure to meet and confer would not advance the mandate of Rule 1, which requires that the Court construe, administer, and employ the Federal Rules of Civil Procedure in a manner that “secure[s] the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The Court sees no value in denying the Motion on a procedural basis, which denial necessarily would be without prejudice to Plaintiff's re-filing of the Motion after meeting and conferring with Defendants' counsel. While the Court recognizes that the result of such meet-and-confer efforts could be that the discovery issues raised here are resolved and the Motion is obviated, the robust history of repeated and ongoing discovery resistance by Defendants (see, e.g., ECF Nos. 134, 146, 182, 189, 248, 283, 287, 306), as well as their Opposition arguments that this discovery should be denied (see generally Opp'n), foreshadow an opposite outcome. Given that this case has been ongoing for over two years and that the District Judge graciously has extended the discovery cut-off date on multiple occasions, the Court exercises its discretion to manage its docket and hereby EXCUSES Plaintiff's failure to meet-and-confer on the issues raised herein. Accordingly, the Court will decide the Motion on its merits.
C. The Discovery Sought Through RFP-3 Nos. 118 Through 121 is Both Relevant to Plaintiff's Claims and Proportional to the Needs of the Case.
It is unclear to the Court whether Defendants' “unnecessary Rule 26(b)” objection in their discovery responses (see generally Pl.'s Ex. B) constitutes a relevance objection. Defendants' Opposition, however, asserts a relevance argument as follows:
Seek relevant evidence? Not only is there no relevance, plaintiff has not even shown that there is any evidence at all.... Evidence will aid the Court? This unfounded opinion is false and unsubstantiated.... Not only is there no relevance, there is not even any evidence. Plaintiff has not shown otherwise.
(Opp'n 5.) In addition, Defendants' Opposition asserts a proportionality argument, as follows:
[T]o be relevant, plaintiff must address proportionality ... Rule 26(b)(1) and the rule itself lays out 6 factors. Plaintiff has addressed none of these. Defendant's financial wherewithal is a significant factor in denying the requested discovery. Elkharrwily -v-Fransciscan 15 – CV – 05579-RJB, 2016 WL 4061575 (W.D. Wash. July 29, 2016.
(Id. at 8.)
Plaintiff explains that the discovery sought by RFP-3 Nos. 118 through 121 is “perhaps the best and only way for Plaintiffs' to meaningfully prove up their damages claims: as the materials are the best evidence of the business Defendants transacted before December 2019 and ever since,” which in turn informs Plaintiffs' primary damages theory of disgorgement “of all ill-gotten gains using Plaintiffs' client database, computer and other proprietary business materials.” (Mot. 10.)
The Court not only agrees with Plaintiff now, but has indicated in a prior order that it would compel the production of the documents now sought through RFP-3 Nos. 118 through 121 (“Order on RFP-1”). (Order on RFP-1, ECF No. 146.) As explained in this Court's Order on RFP-1, RFP-3 Nos. 118 through 121 had their origin in a self-defeating document request propounded to Defendant Christopher Abrams, which sought as follows:
Request for Production No. 4: All DOCUMENTS RELATING TO money due, owed, or payable to Robin Goltsman from YOU and/or The Law Offices of C.R. Abrams, INCLUDING but not limited to what was commonly referred to as “the note” and/or “monthly backup reconciliation,” from 2010 to the present.
(Id. at 22–23.) In his response, Defendant Abrams responded that, because no monies were owed or payable to Plaintiff Goltsman, no such documents existed. (See id. at 24.) In a June 5, 2021 meet-and-confer letter, Plaintiff clarified that this request sought the documents referred to by the parties as “the monthly backup reconciliation,” “the note,” “the ‘sales report,’ ” and “the ‘seminar stats.’ ” (See id.) In Plaintiff's motion to compel this discovery, she argued, among other things, that her narrowing and clarification of the request resolved any specificity concerns Defendant Abrams had. (Id. at 25.) This Court disagreed, noting that “Plaintiff's after-the-fact proposal to Defendants and request to the Court that RFP No. 4 be re-written [was] unavailing” in that it was neither Defendant Abrams's obligation to accept Plaintiff's after-the-fact re-write nor the Court's obligation to re-write it in the context of a motion to compel. (Id. at 27.) Moreover, this Court declined to re-write Plaintiff's request to Defendant Abrams because it already had been properly answered. (Id.) However, this Court noted that if Plaintiff originally had written this request as Plaintiff then proposed, “the Court likely would compel such a production.” (Id.) Plaintiff thereafter propounded the re-written request, in its current form, as RFP-3 Nos. 118 through 121, to all Defendants. (Slater Suppl. Decl. ¶112.) As the Court noted in its Order on RFP-1, the information sought by Plaintiffs in what is now RFP-3 is discoverable. (Order on RFP-1 at 27.) Defendants' relevance argument therefore fails.
*8 Although Plaintiff does not address Defendants' proportionality argument (see generally Mot., Reply), the Court notes that such argument also fails. Other than Defendants' bald assertion that the request is not proportional to the needs of the case (Opp'n 8), they offer no facts in support of such assertion (see generally Opp'n). Defendants 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). Defendants' reliance 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 is misplaced. 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, Defendants neither offer evidence regarding their financial wherewithal, nor, more importantly, explain how their financial wherewithal impacts their ability to respond to RFP-3 Nos. 118 through 121. (See generally Opp'n.)
Based on the foregoing, the Court concludes that Plaintiff has satisfied her burden to establish that the information she seeks through RFP-3 Nos. 118 through 121 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 Defendants' Objections.
Having determined that the documents Plaintiffs seek through RFP-3 Nos. 118 through 121 satisfy the relevance and proportionality requirements of Rule 26(b)(1), the Court now turns to the propriety of the objections interposed by Defendants against this discovery. Although not easily discerned from the Opposition, the Court is able to identify the following objections: the discovery was accompanied by an illegal and improper proof of service; the discovery is outside the discovery cut-off period; 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; the discovery invades protected privacy interests; the discovery invades the attorney-client privilege; and the Motion constitutes harassment and is intended to disrupt the legal proceedings.[4] (See generally Opp'n.) The Court reviews each in turn.
1. The Court OVERRULES Defendants' “Improper Proof of Service Objection.”
Defendants object to the discovery on the basis that Plaintiffs' proof of service was “illegal [and] fraudulent.” (See Pl.'s Ex. B.) However, they do not explain this objection in their Opposition, and no other information is available to the Court from which the Court could determine the viability of Plaintiff's proof of service. Whatever Defendants' objection to the proof of service may be, it is clear that Defendants did, in fact, receive Plaintiffs' RFP-3 in that they served their objections thereto on September 27, 2021. (See id.) 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.)
*9 On this basis, the Court OVERRULES Defendants' Improper Proof of Service Objection.
2. The Court OVERRULES Defendants' “Discovery Cut-Off Objection.”
Defendants argue that Plaintiff's Motion should be denied because it seeks discovery outside the discovery cut-off date—identified by Plaintiff in the Motion's caption page as August 6, 2021, but then allegedly ignored—which Defendants contend, in turn, shows the absence of good cause to bring the Motion (“Discovery Cut-Off Objection”). (Id. at 2–4, 7, 9.) In support of the Discovery Cut-Off Objection, Defendants note the following points: that Plaintiff ignored the Court's September 9, 2021 order which (i) extended to December 30, 2021 the date to resolve only then-pending motions but otherwise left other deadlines—including the October 1, 2021 discovery cut-off date—unchanged, and (ii) which order was left intact even upon Plaintiff's motion for reconsideration (id. at 2–5 (citing ECF Nos. 209, 227, 230, 235)); that “[l]ack of good cause is presumed, where the motion is not brought within 5 days before the cutoff date” (id. at 3); that any inability by Plaintiff to bring the motion sooner “is entirely Plaintiff's fault in dragging out the litigation to waste time and money” (id. at 4); that the Motion itself is yet another vehicle to carry out Plaintiff's delay tactics (id. at 4, 5); and that Plaintiff was not diligent in conducting discovery and that, despite being “full of excuses,” she could and should have completed discovery, “almost [two] years ago now,” “long ago and before the discovery cutoff date” (id. at 6, 7).
Plaintiff indeed misstated the discovery cut-off date in the caption as August 6, 2021. (Mot. 1.) However, Plaintiff responds that any such misstatement is not relevant to the merits of the Motion and that, because Defendants fail to explain any such relevance, their argument should be disregarded. (Reply 3.) In addition, Plaintiff notes that Defendants' argument that Plaintiff's motion for reconsideration was denied should be disregarded, again because of Defendants' failure to explain the relevance of such circumstance. (Id. at 3–4.) Finally, Plaintiff argues that, contrary to Defendants' argument, “good cause” is not required to bring a motion to compel. (Id. at 4.)
The Court agrees with Plaintiff. The discovery cut-off date in this case was October 1, 2021. Plaintiff served RFP-3 on August 27, 2021 (Pl.'s Ex. A), and Defendants served their responses on September 27, 2021 (Pl.'s Ex. B). Nothing in this circumstance violates the discovery cut-off date. Plaintiff then sought through a series of motions, and ultimately was granted, leave to file this Motion after the discovery cut-off date. (ECF Nos. 256, 274.) Again, nothing in this circumstance violates the discovery cut-off date. That some of Plaintiff's motions may have failed to obtain the result ultimately obtained in this Court's December 9, 2021 order granting leave to file this Motion (ECF No. 274) is of no consequence here. Moreover, although Defendants repeat throughout their Opposition that Plaintiff lacks “good cause” to bring this Motion, they offer no authority, and the Court is aware of none, that “good cause” is a requirement for a motion to compel discovery or that lack of good cause is presumed where a motion to compel discovery is not brought within five days before the cutoff date. To the extent Defendants' argument is that good cause must be shown in a motion seeking leave to file a discovery motion, the Court already made the good-cause determination in granting leave to file this Motion. (See ECF No. 274 at 2 (adopting “good cause” finding of ECF No. 271 at 5–6).) On this basis, the Court OVERRULES Defendants' Discovery Cut-Off Objection.
3. The Court OVERRULES Defendants' “Judge Illman Objection.”
*10 Defendants argue that Plaintiff's Motion should be denied because Plaintiff:
never addressed the orders of Judge Illman or how they relate to plaintiff's own legal authorities that, “Admittedly, a motion for reconsideration should not be granted, absent highly unusual circumstances..” Marlyn v. Mucos 571F. 3rd 873, 880 (9th Cir. 2009). Plaintiff's motion does not comply with clearly violates Local Rule 17 – 7 and 17 – 8, which are controlling on resubmitted motions and motions for reconsideration. Plaintiff's arguments are disingenuous and do not constitute good cause, Illman order of December 28, 2020.... ¶¶ This precise form of discovery was shot down by Judge Illman. Plaintiff now engages in judge shopping.
(“Judge Illman Objection”). (Opp'n 7–8 (punctuation and citation errors in original.) Defendants 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[5] designed to avoid seeking irrelevant and private information that is clearly outside the scope of permissible discovery.” (Id. at 6 (quoting ECF No. 70 at 6).)
Plaintiff responds that Defendants' arguments that Plaintiff propounded RFP-3 for improper purposes and that Plaintiff is judge shopping bears no relevance to the merits of the Motion and that, to the extent Defendants so contend, they have failed to explain such relevance. (Reply 7.)
The Court agrees with Plaintiff that Defendants' Judge Illman Objection is without merit. First, although Defendants refer to “the orders of Judge Illman” in the plural (Opp'n 7), they point only to the December 28, 2020 order; accordingly, the Court addresses only that order. Second, Judge Illman's December 28, 2020 order did not address RFP-3 Nos. 118 through 121; indeed, these requests were not propounded until August 27, 2021, eight months after that order. Third, RFP-3 Nos. 118 through 121 were crafted in response to this Court's Order on RFP-1 in which this Court found that the discovery at issue (the same as that in Judge Illman's December 28, 2020 order) could not be compelled as then-written. (Order on RFP-1 at 27–28.)
In addition, Defendants' reliance on Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009), in support of the Judge Illman Objection, is misplaced. While the Ninth Circuit indeed does state in Marlyn Nutraceuticals that “a motion for reconsideration should not be granted, absent highly unusual circumstances,” Marlyn Nutraceuticals, 571 F.3d at 880, that holding is inapposite because that ship has sailed here. Plaintiff's Motion is not before the Court based upon a motion for reconsideration. Rather, it is before this Court based upon a properly-filed, and granted, motion for leave to file this, and other, discovery motions. (See ECF Nos. 256, 261, 271, 274.)
*11 Finally, Local Rules No. 17-7 and 17-8 (Opp'n 3 [6], 7) do not support Defendants' Judge Illman Objection. Local Rule 17-7 governs the resubmission of motions previously acted upon by a judge of this Court and requires that any subsequent motion for the same relief “be presented to the same judge whenever possible” and be supported by “a declaration setting forth the material facts and circumstances as to each prior motion, including the date and judge involved in the prior motion, the ruling, decision, or order made, and the new or different facts or circumstances claimed to warrant relief and why such facts or circumstances were not shown to the judge who ruled on the motion.” C.D. Cal. L.R. 17-7. But the relief sought by the Motion—an order compelling responses to RFP-3 Nos. 118 through 121—never has been ruled upon by this or any other Court, including, as noted above, by Judge Illman. Accordingly, Defendants' reliance on Local Rule 17-7 is unavailing. So too is Defendants' reliance on Local Rule 17-8, which governs motions for reconsideration. C.D. Cal. L.R. 17-8. As noted above, the Motion before the Court is not a motion for reconsideration of an order issued by either this Court or Judge Illman; rather, it is a motion to compel wholly new discovery requests.
On this basis, the Court OVERRULES Defendants' Judge Illman Objection.
4. The Court OVERRULES Defendants' “Privacy Objection.”
In addition to the California privacy objections Defendants interposed in their responses, they argue in their Opposition that Plaintiff's Motion should be denied because:
[p]rivacy is also another factor to be proven by plaintiff, and considered by the court. Plaintiff has proved nothing. The motion is based upon guesswork and supposition. Hansen -v-Turn, 15 – CV – 0497, 2018 WL 5281629 (N.D. Cal October 22, 2018) holding privacy concerns outweighed discovery interests. Pertile -v-General Motors 15 – CV – 00518, 2016 WL 1059450, 2—5 (D. Colo. March 17, 2016) finding parties confidentiality concerns, outweighed the need for otherwise relevant discovery.... ¶¶ Plaintiff has relied on the Blankenship case. That case has_nothing to do with this action. The objecting party, Hearst, was given another opportunity to present that good cause.
(“Privacy Objection”). (Opp'n 8–9 (punctuation and citation errors in original).)
Plaintiff argues that RFP-3 Nos. 118 through 121 do not seek Defendants' personal information over which they may have an expectation of privacy. (Mot. 10.) Moreover, they note that Defendants' privacy concern is undermined by their failure to enter into, or otherwise seek, a protective order. (Id. at 10–11.)
The Court agrees with Plaintiff and concludes that Defendants' Privacy Objection is without merit. As a starting point, Defendants fail to establish that there exists a reasonable right of privacy to the information sought by any of RFP-3 Nos. 118 through 121. (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). 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.)
Moreover, even if Defendants had shown a reasonable expectation of privacy as to the discovery sought here, this alone does not entitle them to the protection they seek. As a starting point, the Court notes that the California privacy rights asserted by 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 because, even to the extent they create a privilege, 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.”).
*12 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, 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). This privacy right encompasses financial and banking records. Net-Com Servs., Inc. v. Eupen Cable USA, Inc., No. CV 11-2553 PSG (SSx), 2012 U.S. Dist. LEXIS 207713, at *10 (C.D. Cal. Nov. 14, 2012) (citations omitted); see also Madrigal v. Allstate Indem. Co., No. CV 14-4242 SS, 2015 U.S. Dist. LEXIS 191875, at *18–19 (C.D. Cal. Apr. 22, 2015) (“right to privacy ‘embraces confidential financial information in whatever form it takes, whether that form be tax returns, checks, statements, or other account information’ ” (citation omitted)). A party asserting a right to privacy must provide evidence that the financial information is considered private and describe the steps he or she has taken to maintain the privacy of such records. See, e.g., Hanson-Poulsen v. Dep't of Def., No. 2:16-cv-05786-DMG-AFMx, 2020 U.S. Dist. LEXIS 76699, at *6 (C.D. Cal. Mar. 3, 2020) (overruling defendants' objections because they had submitted no evidence “that would substantiate [the] objections.”)
Still, 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.”). In applying this balancing test, courts should consider:
the purpose of the information sought, the effect that disclosure will have on the parties and on the trial, the nature of the objections urged by the party resisting disclosure, and ability of the court to make an alternative order which may grant partial disclosure, disclosure in another form, or disclosure only in the event that the party seeking the information undertakes certain specified burdens which appear just under the circumstances.
R. Prasad Indus. v. Flat Irons Env't Sols. Corp., No. CV-12-08261-PCT-JAT, 2014 U.S. Dist. LEXIS 84193, at *13 (D. Ariz. June 19, 2014) (citation omitted).
Here, the Court finds that a proper balancing of the competing interests weighs in favor of granting the discovery Plaintiff seeks. On one side of the scale, as discussed above, the discovery is relevant to Plaintiffs' claims. On the other side of the scale, Defendants have neither offered evidence that they consider and maintain these documents private nor explained any steps they have taken to protect these documents from disclosure. (See generally Opp'n.) Nor have Defendants offered any evidence or argument of any harm that would be caused by disclosure of the documents Plaintiff seeks. (See generally id.) In addition, Defendants have not offered or suggested any alternative means by which Plaintiff may obtain this information. (See generally id.)
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), 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). 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), Defendants 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; 286 at 9) by entering into a protective order, and yet continue to assert their same privacy 26 objections (see Opp'n 8–9). While a decision to not enter into a stipulated protective order is Defendants' prerogative, Defendants make this decision at their own peril in that, in so doing, they undermine their own argument that the information at issue is confidential. See, e.g., Brooks v. Motsenbocker Advanced Devs., Inc., No. 07cv773 BTM (NLS), 2008 U.S. Dist. LEXIS 1350, at *11 (S.D. Cal. Jan. 8, 2008) (overruling privacy objection where responding parties seeking to protect documents from disclosure failed to take any steps to protect the information, such as entering into a stipulated protective order or moving for their own protective order before their deadline to respond).
*13 Defendants' authorities do not support their Privacy Objection. Defendants 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 8 (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. Here, the Court has concluded that the documents sought by RFP-3 Nos. 118 through 121 are relevant. Accordingly, Henson does not support Defendants' privacy objections.
Defendants' reliance on Pertile v. GM, LLC, No. 1:15-cv-00518-WJM-NYW, 2016 U.S. Dist. LEXIS 34674 (Mar. 17, 2016), equally is misplaced. Defendants 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, Defendants make no trade secret objection and, in any event, the Court has found the matters sought by RFP-3 Nos. 118 through 121 central to the case. Thus, Pertile does not touch upon, let alone support, Defendants' Privacy Objection.
Defendants' efforts to distinguish Blankenship v. Hearst Corp., 519 F.2d 418 (9th Cir. 1975), and 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), do not advance their privacy argument. Indeed, Defendants are correct that neither Blankenship nor LL B Sheet 1 apply or have anything to do with this case. (Opp'n 9.) The Court suspects that it is for this very reason that Plaintiff neither mentions nor relies on either case for any purpose. (See generally Mot.; Reply.)
On this basis, the Court OVERRULES Defendants' Privacy Objection.
5. The Court OVERRULES Defendants' “Attorney-Client Privilege Objection.”
Defendants also appear to argue that Plaintiff's Motion should be denied because the discovery sought through RFP-3 Nos. 118 through 121 violates the attorney-client privilege. Defendants state:
Whether the attorney-client privilege applies, is a mixed question of fact and law, the scope of the ruling and the applicable legal standard is reviewed de novo. US -v-Ritchey 630 2F. 3rd 559 (9th Cir. 2011).... Privilege must be determined on a case by case basis and federal question cases, are generally governed by federal law, which is a question of common law. Trammel -v-United States 445 US 40 (1980). Rule 501. None of this has been addressed by plaintiff by embedded motion or otherwise.
(“Attorney-Client Privilege Objection”). (Opp'n 8 (grammatical, punctuation, and citation errors in original).)
*14 Defendants' Attorney-Client Privilege Objection is not, in any way, responsive to Plaintiff's limited concern that Defendants have failed to provide a legally adequate privilege log in support of the privilege objections they asserted in their responses. (See Mot. 9.) Contrary to Defendants' contention, Plaintiff is not challenging the substance of Defendants' Attorney-Client Privilege Objection or otherwise seeking to compel the production of documents Defendants contend are privileged. (See id.) Rather, Plaintiff seeks only that, to the extent Defendants are withholding documents pursuant to privilege, they be ordered to serve privilege logs identifying such documents so that Plaintiff may determine whether the documents are properly withheld. (Id.)
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:
(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communication relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived.
Id. (citation omitted).
Here, the documents at issue—documents to which the parties apparently have referred as “the monthly backup reconciliation,” “the note,” “the sales report,” and “the seminar stats”—are documents that were created and maintained by the parties, not their counsel. Defendants present no evidence that these documents somehow satisfy the eight-part privilege test. (See generally Opp'n.) Instead, Defendants raise two arguments in support of their Attorney-Client Privilege Objection, both unavailing.
First, Defendants argue that a case “cited by [P]laintiff”—United States v. Sanmina Corp., 968 F.3d 1107 (9th Cir. 2020)—actually supports Defendants' position by confirming “the absolute nature of the privilege [and] that the privilege must be expressly waived.” (Opp'n 9.) But Plaintiff neither cites nor relies on Sanmina for any purpose here. (See generally Mot., Reply.) Nevertheless, relying on the tenets they glean from Sanmina, Defendants then note that “[t]he privileges never been [sic] waived.” (Id.) But, this argument misses the mark because Defendants have not established that Plaintiff seeks any privileged documents and, therefore, waiver of privilege is not an issue here. Thus, Defendants' reliance on Sanmina to shield these documents pursuant to their Attorney-Client Privilege Objection is unavailing.
Second, Defendants argue that, contrary to Plaintiff's claims, Rule 26(b)(5)(A) does not apply here. (Opp'n 9–10.) Defendants are wrong. Rule 26(b)(5)(A) provides in relevant part:
When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
Fed. R. Civ. P. 26(b)(5)(A). Thus, Rule 26(b)(5)(A) applies to the extent that Defendants are withholding documents pursuant to a privilege claim. In that the Court already has found that the documents sought through RFP-3 Nos. 118 through 121 are relevant and proportional to the needs of the case, to the extent such documents exist, they must be produced unless privileged. To the extent the documents are privileged—which, as explained above, is doubtful—they may be withheld only if listed in a privilege log that is compliant with Rule 26(b)(5)(A).
*15 The Court already has provided guidance to the parties regarding what constitutes an adequate privilege log (see ECF No. 95), and reiterates that guidance here. The privilege log must contain the following information on a document-by-document basis:
(1) the attorney(s) and client(s) involved;
(2) the nature of the document;
(3) the source of the document or the person who created the document;
(4) the sender(s) of the document (if appropriate);
(5) all recipient(s) of the document (if appropriate);
(6) all persons known to have been furnished the document or otherwise informed of its contents (if appropriate);
(7) the date the document was generated, prepared, or dated; and
(8) 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).
On this basis, the Court OVERRULES Defendants' Attorney-Client Privilege Objection as to the documents sought through RFP-3 Nos. 118 through 121, unless Defendants can establish in their responses, with facts supporting the eight-part privilege test, that they are privileged in the first instance. As to any responsive documents that are privileged, the Court OVERRULES Defendants' Attorney-Client Privilege Objection to the extent Defendants rely on the objection to avoid producing a privilege log. To be clear, the Court overrules only Defendants' objection to producing a privilege log in the first instance; it does not rule as to the propriety of any privilege Defendants may assert, leaving that matter for another motion, should one be necessary and should this Court grant leave for its filing.
6. The Court OVERRULES Defendants' “Harassment/Disruption Objection.”
Defendants argue that Plaintiff's Motion should be denied because it is brought for purposes of harassment and disruption of the litigation. They state:
Plaintiff's motion, truth be told is for the sole purpose of harassment and misuse of the legal process in violation of Rule 1.... ¶¶ This is nothing but another attempt by [P]laintiff to play games and harass the [D]efendants and spin the wheel of law & motion, and to disrupt the orders of this [C]ourt. Plaintiff is attempting to disrupt the scheduling orders and game the system. This is another manufactured dispute by [P]laintiff.... ¶¶ This is nothing but a regurgitated knee-jerk harassment motion ... a sloppy replica of some outdated pleading.
(“Harassment/Disruption Objection”). (Opp'n 3–5.) In support, Defendants generally note that Plaintiff has not established good cause for, or explained, the 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.) Defendants conclude that “the law does not engage trifles ... [or] idle acts such as granting motions when discovery remains ‘unchanged’ ....” (Id.)
Plaintiff interprets Defendants' Harassment/Disruption Objection as one of undue burden and notes that Defendants have not met their burden of establishing, with sufficient detail and under-oath, the nature and extent of the claimed discovery burden. (Mot. 12; Reply 5–6.) In response to Defendants' argument that this Motion constitutes harassment or disruption, Plaintiff notes that Defendants “fail to explain how said purported conduct is true and/or relevant to this Court's resolution of the [Motion].” (Reply 6.)
*16 The Court does not interpret Defendants' Harassment/Disruption Objection as one of undue burden and does not address it as such. Nevertheless, the Court agrees with Plaintiff that, other than its bald assertion, the Harassment/Disruption Objection is devoid of any factual or legal 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”).
On this basis, the Court OVERRULES Defendants' Harassment/Disruption Objection.
E. The Court DENIES Plaintiff's Rule 37(a)(5)(A) Request for Reasonable Expenses Incurred in the Bringing of the Motion.
Plaintiff seeks an award of the reasonable expenses she incurred in the bringing of the Motion pursuant to Rule 37(a)(5)(A), in the amount of $3,745.00 ($2,450.00 for the Motion and $1,295.00 for the Reply). (Mot. 13–16; Reply 10.) For the reasons stated below, the Court DENIES this request.
1. Legal Standard
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).
2. Plaintiff Is Not Entitled to the Attorneys' Fees She Seeks.
Having preliminarily determined that Plaintiff might be entitled to her reasonable expenses pursuant to Rule 37(a)(5)(A) because her Motion was granted, the Court next turns to the question whether any of the Rule 37(a)(5)(A) exceptions apply to bar such an award. The Court concludes that the first exception applies.
Defendants appear to argue that the first exception—that Plaintiff filed the motion before attempting in good faith to obtain the discovery without court action (Fed. R. Civ. P. 37(a)(5)(A)(i))—applies here. (Opp'n 10.) They note that “Plaintiff never attempted to address the issues set forth in defendant's [sic] objections or meet and confer.” (Id.) They then add a contrary allegation that Plaintiff's meet-and-confer efforts were limited to a few seconds reviewing Defendants' position and that the entire meet-and-confer was done entirely in bad faith.” (Id.) As noted above, this last allegation clearly is taken from a different motion and unrelated meet-and-confer efforts because, as Plaintiff concedes, she did not satisfy her Rule 37(a) pre-filing meet-and-confer obligations. Nevertheless, the Court concludes that Plaintiff did not comply with the Rule 37(a) requirement that she, in good faith, confer or attempt to confer with Defendants in an effort to obtain the discovery she seeks to compel here without court action. Fed. R. Civ. P. 37(a)(5)(A)(i). While the Court excused Plaintiff's non-compliance in the interest of expediting the resolution of the Motion, the Court is aware of no similar interest that would support an excuse of such non-compliance for purposes of awarding sanctions.
*17 On this basis, the Court DENIES Plaintiff's request for $3,745.00 in reasonable expenses she incurred in the bringing of the Motion.
F. The Court DENIES Defendants' Request for Attorneys' Fees Expended in Opposing the Motion.
Defendants ask the Court to award them the attorneys' fees they expended in opposing the Motion. (Mot. 10–11.) Although Defendants do not specify the amount of fees requested in the Opposition itself (see generally Opp'n), defense counsel states in his declaration that Defendants seek $5,700.00, based on the following calculation: a lodestar of eight hours of legal work multiplied by Mr. Donahue's hourly rate of $475.00, enhanced by a “1.5 multiplier” for unspecified reasons (Donahue Decl. ¶ 15).
The Court may not award Defendants' attorneys' fees because they did not prevail in opposing Plaintiff's 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 Defendants' reasonable expenses in opposing the Motion is not warranted and, as such, Defendants' request for an award of attorneys' fees is DENIED.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs' Motion is GRANTED as to its substantive matters. Consistent with the Court's discussion herein, the Court ORDERS as follows:
1. Defendants shall supplement their responses to RFP-3 Nos. 118 through 121 without objections, except for attorney-client privilege objections that may be interposed where supported by evidence stated in the responses, and produce all nonprivileged documents responsive thereto by no later than January 31, 2021.
2. To the extent responsive documents are withheld on the basis of the attorney-client privilege, Defendants must so state pursuant to Rule 34(b)(2)(C) and produce a privilege log pursuant to Rule 26(b)(5)(A), consistent with the instructions provided above, by no later than January 31, 2021.
3. Defendants are hereby cautioned that failure to comply with this Order, including compliance on a timely basis, may result in the imposition of sanctions pursuant to Rule 37(b)(2)(A), which includes (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii). Defendants also are cautioned that instead of or in addition to the above sanctions, the Court could order them, their attorney, or both, to pay the reasonable expenses, including attorneys' fees, caused by their failure to comply with this Order.
Footnotes
Pinpoint cites citations of page numbers in the Order refer to the 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.
Because the bolded defined terms are not at issue in this Motion, the Court does not include the definitions here.
Defendants also raise the following argument: “Back 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 6–7 (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.)
On page 3 of the Opposition, Defendants refer to “Local Rule 7-17,” which they describe as referring “to a similar or related motion containing issues previously denied in whole or in part.” (Opp'n 3.) However, the Central District of California does not have a Local Rule 7-17. Given the subject matter noted by Defendants, the Court understands this reference to be to Local Rule 17-7.