*1 On March 14, 2023, Jesse Santos Teixeira (“Plaintiff”) filed a Motion to Compel (“Motion”), seeking an order compelling further written discovery responses from Defendant BMW of North America, LLC (“Defendant”). ECF Docket No. (“Dkt.”) 15.

In this “lemon law” action, Plaintiff has alleged that Defendant breached its express and implied warranties for a BMW X5 M Competition that Plaintiff has under lease. Dkts. 15-1 at 9–10; 1-1 at 11–14. The primary issues in the case are whether the vehicle had a substantially impairing defect that was not repaired in a reasonable number of attempts and whether the vehicle was fit for the ordinary purposes for which vehicles are used. Id.

Plaintiff submits a detailed declaration with exhibits describing the history of the instant discovery dispute. After receiving production from Defendant pursuant to its initial Fed. R. Civ. P. 26 disclosures, Plaintiff believed there were significant omissions from the records, including records that Defendant should have created and maintained during their attempts to repair Plaintiff's vehicle. Declaration of Stephen Parnell ISO Plaintiff's Portions of Joint Stipulation of the Parties Re: Plaintiff's Motion to Compel (“Parnell Decl.”) ¶¶ 33-39, Exs. 11, 12. Plaintiff's counsel attempted to meet and confer with counsel for Defendant via a meet and confer letter and several calls, but Defendant was unresponsive. Parnell Decl. ¶¶ 40-46, Exs. 13, 14.

In an attempt to resolve the alleged deficiencies without immediate resort to motions, Plaintiff's counsel decided to proceed with written discovery instead of pursuing redress for the alleged omissions from the initial disclosures; accordingly, on September 30, 2022, Plaintiff's counsel propounded a set of Request for Production of Documents, Requests for Admission, and Interrogatories. Parnell Decl. ¶¶ 8-12, 47–50, 82, Exs. 2-5. Plaintiff sought documents they believed Defendant had withheld from its initial disclosures and sought documents related to the repair of the Vehicle and Defendant's compliance with or breach of its various duties under California's Song-Beverly Consumer Warranty Act. Id. In an attempt to get ahead of further discovery disputes, Plaintiff's counsel also suggested meeting and conferring about the meaning and scope of requests as well as any protective orders that might be necessary. Parnell Decl. ¶¶ 47-84, Ex. 15. Defense counsel agreed to enter a stipulated protective order based on the Los Angeles Superior Court model, but defense counsel did not follow up thereafter. Parnell Decl. ¶¶ 85-104, Ex. 15. Eventually, Plaintiff's counsel provided a similar protective order from another case as a model; defense counsel did not respond before serving responses several weeks later, on November 21, 2022. Parnell Decl. ¶¶ 105-07.

Plaintiff alleges that, in their responses, Defendant refused to produce any documents whatsoever, simply referring to its incomplete Fed. R. Civ. P. 26 production or to a nonexistent protective order, refused to provide a privilege log, and returned more boilerplate objections than substantive responses. Parnell Decl. ¶¶ 13-17, Exs. 6-9. Plaintiff also alleges that Defendant's responses were unverified. Parnell Decl. ¶¶ 108–11.

*2 After receiving Defendant's allegedly deficient responses, Plaintiff's counsel began making efforts to meet and confer. Parnell Decl. ¶¶ 112-127, Exs. 16-19. Plaintiff began by sending a meet and confer letter on December 20, 2022. Parnell Decl. ¶¶ 113–15, Exs. 16–17. Rather than calling as the letter requested, Defendant sent a letter on December 29, 2022; Plaintiff alleges the letter was confusing and non-responsive. Parnell Decl. ¶¶ 118–29, Exs. 18–19. Plaintiff's counsel began preparing their portion of the Joint Stipulation, and was able to reach counsel for Defendant via phone on February 6, 2023; after the call, Plaintiff's counsel memorialized the call in an email and attached portions of the Joint Stipulation. Parnell Decl. ¶¶ 129–34; Ex. 20. Plaintiff's counsel followed up on February 9, 2023. Parnell Decl. ¶¶ 135–36, Ex. 20. Defendant responded with a phone call and requested an extension of time to prepare their portion of the Joint Stipulation, which Plaintiff's counsel agreed to. Parnell Decl. ¶¶ 137–40. Plaintiff also sent an email laying out the specific production Plaintiff was seeking in a final attempt to resolve the issue without motion practice. Id. ¶¶ 141–44, Ex. 20.

Defendant sought a second extension of time, until March 7, 2023, to compile their portions of the Joint Stipulation; Plaintiff's counsel agreed because defense counsel stated they were preparing supplemental discovery that would obviate the need for the Motion. Parnell Decl. ¶¶ 145–46. By March 7, 2023, Defendant had failed to provide either their portions of the Joint Stipulation or the promised supplemental discovery, so Plaintiff's counsel sent a reminder email. Id. ¶¶ 148–49, Ex. 20. Defense counsel responded on March 8, 2023, stating that supplemental discovery would be sent shortly; counsel sent the discovery later that day, but mentioned nothing about the Joint Stipulation. Parnell Decl. ¶¶ 150–54, Exs. 21–22. Plaintiff alleges that the supplemental discovery was responsive to just one (1) request, and otherwise only included the warranty and owner's manuals. Parnell Decl. ¶¶ 155–57. Accordingly, Plaintiff proceeded to file the instant Motion on March 14, 2023. Dkt. 15.

The Motion seeks to compel further responses to fifty-two (52) Requests for Production (Nos. 1–52), seventeen (17) Interrogatories (Nos. 1–17), and fourteen (14) Requests for Admission (Nos. 1, 4–16). See Dkt. 15-1 at 4–214. Largely, Plaintiff alleges that, with respect to the Requests for Production, Defendant has failed to produce responsive documents or even clearly indicate whether responsive documents will be produced. Id. at 146–54. With respect to the Interrogatories, Plaintiff alleges that Defendant has failed to fully respond and issued improper objections. Id. at 188–197. With respect to the Requests for Admission, Plaintiff alleges that Defendant has either failed to respond or improperly objected. Id. at 213–22. Plaintiff also requests costs and fees incurred in bringing the Motion. Dkt. 15 at 2.

In opposition to the instant Motion, Defendant submits a six (6) page memorandum, supported by a two (2) page declaration, alleging only that Plaintiff has failed to comply with their meet and confer obligations under Fed. R. of Civ. P. 37 and Local Rule 37; Defendant does not make any efforts to meaningfully oppose Plaintiff's discovery requests on substantive grounds, aside from a cursory statement that the volume of Plaintiff's discovery requests is grossly disproportional to the needs of the case. Dkt. 17. Defendant argues that they have continued to comply with Plaintiff's discovery requests, and that Plaintiff's counsel reneged on an agreement to withdraw the Motion on the condition that Defendant produce further responsive documents and help coordinate depositions of personnel from six (6) different BMW dealerships. Declaration of Jacqueline Bruce Chinery (“Chinery Decl.”) ¶ 6. Defendant also cites the fact that the supervising attorney on this matter, Daniel Villegas, was engaged in a jury trial until March 24, 2023, and that immediately after had to attend to a family member in critical condition. Id. ¶ 7. Finally, Defendant opposes Plaintiff's request for costs and fees. Dkt. 17 at 5–6.

*3 In Plaintiff's Reply, Plaintiff's counsel contests Defendant's allegation that Plaintiff promised to withdraw the Motion; Plaintiff's counsel notes that they only promised to withdraw the Motion if Defendant performed specific actions, and that Plaintiff ultimately declined to withdraw the Motion during a March 29 phone call because Defendant had failed to perform those actions. Dkt. 18 at 2–3; Supplemental Declaration of Stephen Parnell in Support of Plaintiff's Reply to Plaintiff's Motion to Compel (“Parnell Supp. Decl.”) ¶¶ 22–26; Exs. 31, 32. Plaintiff also notes that, during the March 29 phone call, he addressed all of the specific deficiencies with Defendant's supplemental production in detail; Plaintiff's counsel memorialized the call in an email, which he attaches to Plaintiff's Reply. Dkt. 18 at 3; Parnell Supp. Decl. ¶¶ 24-35; Ex. 31.

Plaintiff's counsel acknowledges that they failed to request an informal discovery conference with the Court pursuant to the undersigned's procedures listed on the Court's website, as they only discovered the requirement after already having filed the Motion; however, Plaintiff's counsel maintains that he has been candid about his failure in that regard to both the parties and the Court and has otherwise made extensive good faith meet and confer efforts. Dkt. 18 at 5–6; Parnell Supp. Decl. ¶¶ 11–18.

Plaintiff also notes that, despite having communicated with several other attorneys, he has never once communicated with Daniel Villegas about this case; thus, Villeagas's unavailability does not factor into this dispute in any way. Dkt. 18 at 6; Parnell Supp. Decl. ¶54.

Plaintiff argues that the propounded discovery is only voluminous due to Defendant's own failure to disclose documents in their initial disclosures. Dkt. 18 at 8.

Finally, Plaintiff notes that Defendant did provide further supplemental responses after the Motion had already been filed, but alleges these responses are still deficient. Dkt. 18 at 7; Parnell Supp. Decl. ¶¶ 24-28, 34, 35; Exs. 25-27, 31, 32.

The Court finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Thus, the matter stands submitted.

A. PLAINTIFF HAS SATISFIED ITS MEET AND CONFER OBLIGATIONS

1. Applicable law

Prior to filing any motion to compel with the court, Federal Rule of Civil Procedure 37(a)(1) requires that the moving party certify that “the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37. Furthermore, Local Rule 37-1 requires that if any party wishes to file a motion related to discovery, the party filing the motion must “confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many disputes as possible.” L.R. 37-1.

If counsel are unable to resolve the dispute at the meet-and-confer conference, the parties must formulate a joint stipulation that complies with the requirements set forth by Local Rule 37-2.1. L.R. 37-2. Following the conference, the moving party must deliver their portion of the joint stipulation, “together with all declarations and exhibits to be offered in support of the moving party's position.” L.R. 37-2.2. The opposing party then delivers to the moving party the opposing party's portion of the joint stipulation. Id. “After the opposing party's material is added to the stipulation by the moving party's counsel, the stipulation shall be provided to opposing counsel, who shall sign it (electronically or otherwise) and return it to counsel for the moving party no later than the end of the next business day, so that it can be filed with the notice of motion.” Id. “The Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner under L.R. 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in a timely manner under L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added.” L.R. 37-2.4.

*4 Finally, the undersigned's procedures require that parties first request an informal telephonic discovery conference before filing any motion. See United States District Court, Central District of California, Judges' Requirements, Margo A. Rocconi, available at https://www.cacd.uscourts.gov/honorable-margo-rocconi (last visited April 18, 2023).

Meet and confer rules are in place to “encourage settlement, resolve disputes which need not involve the court ... thus saving the parties, the courts, and the taxpayers' limited time, money and resources.” Mull v. Motion Picture Indus. Health Plan, No. LA CV 12-06693-VBF, 2015 WL 11233510, at *1 (C.D. Cal. Oct. 5, 2015). “The failure of any counsel to comply with or cooperate in [the pre-filing conference of counsel or joint stipulation] procedures may result in the imposition of sanctions.” L.R. 37-4; see also L.R. 83-7 (“The violation of or failure to conform to any of these Local Rules may subject the offending party or counsel to ... [any] sanctions the Court may deem appropriate under the circumstances.”). However, if the court is convinced that execution of a good faith meet and confer “would not have aided the resolution of the dispute without judicial intervention,” then the court can overlook a party's failure to comply with the good faith meet and confer requirement. Castillo v. Bank of Am. N.A., No. 8:17-cv-00580-DOC-KESx, 2018 WL 6074580, at *2 (C.D. Cal. Sept. 28, 2018).

2. Analysis

As discussed above, Plaintiff's counsel has submitted a detailed declaration and supporting exhibits demonstrating that he has made extensive efforts to meet and confer with Defendant's counsel about the alleged deficiencies with Defendant's discovery. Over the course of several months, Plaintiff sent detailed meet and confer letters, sent reminder emails, and conducted multiple lengthy phone calls, all of which were memorialized in comprehensive emails. Even after Plaintiff began the process of compiling the Joint Stipulation, Plaintiff granted Defendant several extensions to compile their own portions of the Joint Stipulation, and specifically identified the alleged deficiencies with Defendant's production over the phone and via email. Even after filing the Motion, Plaintiff offered to withdraw the Motion if Defendants were to provide the requested discovery. Taken together, the Court finds that Plaintiff has done more than enough to satisfy their obligation to meet and confer in good faith under Fed. R. of Civ. P. 37 and Local Rule 37, particularly given the apparent lack of communication from Defendant.

Still, Defendant correctly notes, and Plaintiff admits, that Plaintiff neglected to comply with the undersigned's requirement to schedule an informal telephonic conference with the Court prior to filing the Motion. As an initial matter, Defendant appears to misunderstand that this is not a requirement of this Court's Local Rules, but rather a procedure listed on the undersigned's procedures website. In any case, it is undisputed that Plaintiff failed to comply with this procedure.

Ignorance is not typically an excuse for failing to seek out and follow the undersigned's established procedures. However, Plaintiff's counsel's conduct in attempting to remedy his failure to timely seek a telephonic conference with the Court does demonstrate its own sort of diligence. After learning of the requirement, Plaintiff immediately reached out to the Court to request a conference, even offering to withdraw the Motion if necessary. In fact, the Court gave Plaintiff leave to proceed with the Motion without a telephonic conference. Ultimately, the Court cannot find that Plaintiff's negligence in failing to request a pre-motion telephonic conference invalidates or otherwise outweighs their demonstrated diligence in attempting to resolve this dispute through extensive meet and confer efforts with Defendant.

*5 Indeed, Defendant's argument that this Court should deny the Motion for failure to comply with the meet and confer requirements is severely undercut by other facts, including: (1) the fact that Defendant themselves appear to misunderstand the source of the requirement for a pre-motion telephonic conference; (2) Defendant's failure to otherwise dispute Plaintiff's counsel's detailed account of his meet and confer efforts; (3) Defendant's failure to meaningfully contest the relevance of Plaintiff's discovery requests; (4) Defendant's failure to identify a specific burden that the requests impose; and (5) the overall brevity of the Opposition and supporting declaration. Taking all this together, it is difficult to give much weight to Defendant's argument that Plaintiff's motion should be denied for failure to meet and confer based solely on Plaintiff's failure to request a pre-motion telephonic conference.

B. PLAINTIFF'S MOTION SHOULD BE GRANTED BECAUSE DEFENDANT DOES NOT MEET THEIR BURDEN OF SHOWING THE DISCOVERY IS DISPROPORTIONATE

“It has long been settled in this circuit that the party resisting discovery bears the burden of showing why discovery should not be allowed.” United States ex rel. Poehling v. UnitedHealth Grp., Inc., No. CV 16-8697 MWF (SSX), 2018 WL 8459926, at *9 (C.D. Cal. Dec. 14, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”)).

As discussed above, here Defendant does not contest the relevance of the documents that Plaintiff seeks, nor do they otherwise meaningfully address the substance of Plaintiff's requests. Other than their argument concerning Plaintiff's alleged failure to fully meet and confer, Defendant offers only the conclusory statement that Plaintiff's discovery is grossly disproportional to the needs of the case, along with a citation to Fed. R. of Civ. P. 26(b)(1). See Dkt. 17.

Plaintiff's requests are not rendered disproportional merely because they are large in number or could require a large volume of responsive documents. See SGII, Inc. v. Martin, No. 819CV00541JVSKESX, 2021 WL 1593246 (C.D. Cal. Mar. 3, 2021) (finding party resisting discovery had failed to demonstrate a burden imposed by the production of directly relevant materials where the party cited only the volume of documents to show burden); see also Hall v. Mt Terrace AOAO, No. CV 16-00552 JMS-KS, 2017 WL 3000026, at *1 n.2 (D. Haw. Feb. 9, 2017) (noting that the plaintiff “complain[ed] about the volume of discovery requested of him” but that the defendants were “entitled to obtain certain discovery to defend themselves against Plaintiff's allegations”). Rather, Fed. R. of Civ. P. 26(b)(1) instructs that the proportionality analysis should include consideration of “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.” Fed. R. of Civ. P. 26(b)(1). Defendant does not substantively address any of these factors, nor do they address Plaintiff's arguments regarding the discovery's relevance, which are supported by a detailed declaration justifying each individual request. See Parnell Decl. ¶¶ 160–488. Under these circumstances, Defendant has failed to carry their burden to show the requested discovery is disproportional to the needs of the case or otherwise imposes an undue burden.

C. PLAINTIFF IS ENTITLED TO COSTS AND FEES

1. Applicable law

Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) (“Rule 37”), if a discovery motion is granted, “the court must, after giving an opportunity to be heard, 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,” unless the opposing party's objection was “substantially justified” or “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A).

2. Analysis

*6 Here, Defendant's position was not substantially justified. As noted above, notwithstanding their failure to request a pre-motion telephonic conference with the Court pursuant to the undersigned's procedures, Plaintiff satisfied their obligation to meet and confer in good faith under Fed. R. of Civ. P. 37 and Local Rule 37. Furthermore, Defendant has done virtually nothing to justify their argument that Plaintiff's requests are “grossly disproportional,” and have wholly failed to contest any of Plaintiff's comprehensive showings as to the relevance of their requests. Defendant does not argue there is any other circumstances that would make an award of expenses unjust. Accordingly, Defendant should be required to compensate Plaintiff for their costs and fees reasonably incurred in bringing the Motion.

Based upon the foregoing reasons, IT IS THEREFORE ORDERED that:

IT IS SO ORDERED.