*1 Plaintiff Glam and Glits Nail Design, Inc. (“Plaintiff”) moves for an order compelling Defendants Daniel Bui, Tu Bui, Alvin Bui, Andrew Bui, and iGel Beauty LLC (“Defendants”) to: (a) produce all non-privileged documents responsive to 37 different requests for production (RFPs); (b) identify the Bates ranges of the documents Defendants have already produced for each request; and (c) pay Plaintiff's reasonable expenses incurred in making the motion. See Dkt. 68.

Whenever I see a motion to compel like this one that involves a few dozen RFPs, the first thought is that the meet-and-confer process has failed. In my experience it's unlikely that a good-faith effort to resolve the issues results in a motion involving 37 different RFPs.

My review of the motion didn't prove differently. For the most part, both Plaintiffs and Defendants' discussion of the issues presented by the motion stays at a high level rather than dealing with each request individually as required by Local Rule 37. In short, Plaintiff is concerned that Defendants' document collection efforts left many stones unturned, while Defendants present what they did as a good-faith attempt to avoid any discovery disputes by turning over everything collected from Defendants' cloud storage and digital devices.

Overall, the motion presents a cautionary tale of what can happen when counsel do not discuss a discovery plan early in the case, especially when electronically stored information is involved. So now I'm presented with a hodge-podge of often murky issues and grievances, only some of which get specific enough to give me something concrete to decide.

Turning to those specific issues, I can identify four from the parties' papers. First, the parties dispute whether Defendants should be required to identify the Bates ranges of the documents produced in response to each of its requests. The Federal Rules permit a party to produce documents as they are kept in the usual course of business. See Fed. R. Civ. P. 34(b)(2)(E)(i) (“A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” (emphasis added)). But a party who does so must do more than just merely represent that the documents were produced as they were maintained.

Here, Defendants' counsel describes a process by which electronic records were collected from Defendants' cloud storage repositories and other digital devices (namely cellular phones). See Shaeffer Decl. ¶ 2. Counsel then describes a process by which the “default” was to produce “all files ... that had anything to do with [Defendants'] business.” Id. ¶ 12. The only records withheld, according to Defendants' counsel, were items that were “personal in nature like an email asking where one brother wants to go to dinner” and Defendants' tax returns. Id.

While that process may have been well-intentioned to avoid discovery disputes, it does not provide any assurance that the documents were produced as they were maintained. At the same time, I am sympathetic to Defendants' concern that being asked to identify what documents are responsive to well over 200 separate RFPs will be burdensome and unlikely to be valuable. I will accordingly defer to the end of the “process” described below for resolving further issues arising out of Plaintiff's motion my ruling on Defendants' request that Plaintiff identify Bates ranges.

*2 Second, the parties appear to dispute whether Daniel Bui's electronic communications via WeChat with Weida, Defendants' bottle and cap manufacturer in China, should be produced. Such communications appear to be responsive to Plaintiff's RFP Nos. 63, 220, and 223. Defendants' responses to those RFPs indicate that non-privileged responsive documents in their custody, possession, and control will be produced. And Defendants tell the Court that no responsive documents have been withheld. But in the very next breath Defendants say that to the extent Plaintiff wants to discuss the production of text messages, it has failed to meet-and-confer, and moreover hasn't produced its own text messages. The latter argument can be quickly disregarded. See Nat'l Academy of Recording Arts & Sciences, Inc. v. On Point Events, LP, 256 F.R.D. 678, 680 (C.D. Cal. 2009) (“[D]iscovery is not conducted on a “tit-for-tat” basis.”). And I'm not sure what there is to meet-and-confer about.[1] Defendants are ORDERED to produce any electronic communications with Weida within fourteen days.

Third, the parties dispute whether Defendants should be ordered to turn over their QuickBooks database. These electronic records are responsive to several of Plaintiff's RFPs (e.g., Nos. 46, 47, 76, 248). Financial information is routinely ordered produced subject to a protective order in intellectual property cases like this one. At the hearing, Defendants' counsel argued that an order requiring production of the entire database would not be proportional to the needs of the case as it would include sensitive financial information for products not involved in this litigation. But this is not an argument that appears in Defendants' portion of the joint stipulation, where Defendants argued little more than that ordering production of the database would be “improper.” It almost goes without saying, but I can't consider arguments that are not presented in the joint stipulation. Accordingly, under the “highly confidential” terms of the parties' protective order (Dkt. 30), Defendants are ORDERED to produce a complete copy of their QuickBooks database within fourteen days.

Fourth, Plaintiff seeks an order compelling Defendants to produce their tax returns. The production of tax returns presents heightened privacy considerations; I look to whether the moving party has shown both relevance and a compelling need to produce tax returns. See A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006). Plaintiff explains why it thinks tax returns are relevant, pointing to its alter ego allegations, but it does not explain why its need is compelling, i.e., why it cannot obtain from other sources information about, for example, commingling of funds. Indeed, given that I am ordering Defendants to produce their QuickBooks database on top of the financial information they have already produced, I conclude that the production of tax returns is unwarranted.

Having dealt with the concrete issues, I am left with the murky ones. As to those issues, including the issue of whether Defendants should be ordered to produce Bates ranges for specific RFPs, I now ORDER as follows. Plaintiff is directed to send to Defendants, by 5 pm PST on Friday, November 19, 2021, a letter of no more than 5 pages that identifies up to five additional orders it seeks from this Court. Defendants shall respond in a letter of their own by 5 pm PST on Monday, November 22, 2021. If any issues remain unresolved, the parties shall file a joint status report by noon on Tuesday, November 23, 2021 that attaches both letters only. The Court will conduct a further hearing on Plaintiff's motion on Wednesday, November 24, 2021, at 11:00 am. If additional issues remain after resolving five issues in this fashion, I will calendar additional proceedings on the 24th.