Reflex Media Inc. v. Doe
Reflex Media Inc. v. Doe
2022 WL 20328162 (D. Nev. 2022)
August 25, 2022
Weksler, Brenda, United States Magistrate Judge
Summary
The Court granted in part and denied in part the Defendant's Motion to Compel, ordering the Plaintiff to supplement its responses to the Defendant's Request for Production of Documents and Interrogatories within the specified time frames. The Court also denied the Defendant's request for attorney's fees.
Additional Decisions
Reflex Media Inc., Plaintiff,
v.
Does No. 1, et al., Defendants
v.
Does No. 1, et al., Defendants
Case No. 2:18-cv-02423-RFB-BNW
United States District Court, D. Nevada
Filed August 25, 2022
Weksler, Brenda, United States Magistrate Judge
ORDER re ECF No. 291
*1 Before the Court is Defendant Aaron Wallace's motion to compel. ECF No. 291. Plaintiff Reflex Media Inc. opposed at ECF No. 299. Defendant did not file a reply.
The Court held a hearing on July 26, 2022. ECF No. 307.
I. Timeliness of Motion to Compel
As a threshold matter, the Court must first determine whether Defendant's motion to compel is timely.
“The Federal Rules of Civil Procedure and the Local Rules of this district do not specify a time limit for filing a motion to compel.” Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999). District courts have relied on different factors to determine when a motion to compel becomes untimely. For example, courts in this district have held that a motion to compel “may be filed after the close of discovery.” Id. And “[a]bsent unusual circumstances, it should be filed before the scheduled date for dispositive motions.” Id. Courts in this and other districts also consider a non-exhaustive list of other factors to determine whether a motion to compel is untimely:
(1) the length of time since expiration of the discovery deadline; (2) the length of time the moving party has known about the discovery; (3) whether the discovery deadline has been extended; (4) the explanation for the tardiness or delay; (5) whether dispositive motions have been scheduled or filed; (6) the age of the case; (7) any prejudice to the party from whom discovery is sought; and (8) disruption of the Court's schedule.
Herndon v. City of Henderson, 507 F. Supp. 3d 1243, 1247–48 (D. Nev. 2020). Importantly, these factors are neither binding on the Court nor exhaustive. Nonetheless, the Court applies them in this case.
Here, discovery closed on May 23, 2022, and the deadline for filing dispositive motions was June 27, 2022. ECF No. 266. Defendant's motion to compel was filed on June 27, 2022. Plaintiff filed a dispositive motion on the same day (June 27, 2022).
This sequence of events would cut against finding that Defendant's motion to compel is timely. But the Court has considered the other factors that, on balance, weigh in favor of finding that the motion was not unduly delayed. First, Plaintiff continued to provide Defendant with additional responsive documents regarding Defendant's Requests for Production well past the deadline for the responses, including on April 12, 2022 and May 12, 2022. ECF No. 291-9 at 2–4, ECF No. 291-10 at 2. In addition, Plaintiff and Defendant met and conferred regarding the issues raised in the instant motion to compel on June 24, 2022, at which point Plaintiff provided Defendant with additional supplemental documents. ECF No. 291-21 at 2. Three days later, Defendant filed the instant motion to compel.
Moreover, no date has been set for the joint pretrial order (or the trial) as this will depend on the outcome of the pending motion for summary judgment. Thus, granting the motion to compel will not unduly disrupt the Court's schedule.
Based on these circumstances and because “courts generally favor issues be decided on their merits,” Ignite Spirits, Inc. v. Consulting by AR, LLC, No. 221CV01590JCMEJY, 2022 WL 3346754, at *4 (D. Nev. Aug. 11, 2022) (citations omitted), the Court overrules Plaintiff's timeliness objection and will decide the motion on its merits. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985) (noting that “[t]he district court is given broad discretion in supervising the pretrial phase of litigation”); Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 WL 1575214, at *1 (E.D. Cal. June 2, 2009) (noting that “courts have discretion to hear a motion to compel after discovery cut-off”).
II. Requests for Production of Documents
A. Legal Standard
*2 Federal Rule of Civil Procedure 34 provides that a party may serve on another a request for production of documents, electronically stored information, or tangible things within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). Where a party fails to produce documents requested under Rule 34, the party propounding the request for production of documents may move to compel discovery. Fed. R. Civ. P. 37(a).
“The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Garces v. Pickett, No. 217CV0319JAMACP, 2021 WL 978540, at *2 (E.D. Cal. Mar. 16, 2021) (citations omitted). The opposing party is “required to carry a heavy burden of showing why discovery was denied.” Id. (citation omitted).
B. RFPs
As an initial matter, the Court finds the Requests[1] are relevant to this case.
Request No. 1: In Request No. 1, Defendant requests “All DOCUMENTS, WRITINGS, and COMMUNICATIONS that support any claim or defense raised by YOU in this litigation.” ECF No. 291-4 at 6. Plaintiff objected to this Request on grounds that it lacks “sufficient particularity.” Id.
The Court agrees with Plaintiff and finds that the Request lacks sufficient particularity as required under Rule 34(b)(1)(A). Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D. W. Va. 2000) (“Importantly, a document request is not reasonably particular if it merely requests documents ‘related to a claim or defense’ in the litigation.”). It also finds the Request overly burdensome. Aldapa v. Fowler Packing Co. Inc., 310 F.R.D. 583, 591 (E.D. Cal. 2015) (finding a party's request for all documents related to any of the allegations in the complaint “clearly overly burdensome”).
Accordingly, no further response from Plaintiff is required.
Request No. 2: In Request No. 2, Defendant requests “All notes or other contemporaneous and relevant WRITINGS or recordings (such as diaries, calendars, journals, and photographs) made by PLAINTIFF or its agents relating to the claims in this case.” ECF No. 291-4 at 6. Plaintiff objected on grounds that the Request lacks “sufficient particularity.” Id.
The Court agrees with Plaintiff and finds that the Request lacks sufficient particularity required under Rule 34(b)(1)(A). Kidwiler, 192 F.R.D. at 202. It also finds the Request overly burdensome. Aldapa, 310 F.R.D. at 591.
Accordingly, no further response from Plaintiff is required.
Request Nos. 4, 62–82, 84–113, 116–118, 126–127: Plaintiff's responses to these Requests state that it has produced all non-privileged, responsive documents. But Plaintiff did not provide a privilege log.
Defendant's position is that Plaintiff's refusal to provide a privilege log constitutes a waiver. ECF No. 291 at 10–11. Plaintiff counters that it was not required to provide a privilege log as Defendant's requests “were overbroad and unduly burdensome ....” ECF No. 299 at 23.
A party withholding information otherwise discoverable by claiming that the information is privileged must expressly make the claim of privilege and must describe the nature of the undisclosed discovery “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). “[A] proper assertion of privilege must be more specific than a generalized, boilerplate objection.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005). “[B]oilerplate objections or blanket refusals inserted into a response to a Rule 34 request for production of documents are insufficient to assert a privilege” and may result in a finding of waiver. Id. at 1149.
*3 To determine if a party has waived a privilege by failing to provide a privilege within Rule 34’s 30-day time limit, the Ninth Circuit has instructed district courts to apply the following factors “in the context of a holistic reasonableness analysis”:
the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard.
Id.
The Court has considered the Burlington factors and finds that Plaintiff did not waive the asserted privileges. Although the Court recognizes that the boilerplate objections make it difficult for both Defendant and the Court to “evaluate whether each of the withheld documents is privileged,” it also recognizes that the objections—though boilerplate—were served in a timely[2] manner and the magnitude of the document production in this case is high despite Plaintiff being a sophisticated corporate litigant. Id. at 1149.
But the Court does find that Plaintiff has not adequately supported its generalized argument of undue burden in providing a privilege log. Plaintiff relies on Aldapa v. Fowler Packing Co. Inc., 310 F.R.D. 583 (E.D. Cal. 2015) to argue that providing a privilege log is unduly burdensome. However, the Aldapa court found only that providing a privilege log in response to a RFP that asked for “all documents related to any of the allegations in the complaint” was unduly burdensome. Id. at 591 (emphasis added). Aldapa is distinguishable from this case. In the disputed Requests involving privileged documents, Defendant is not asking for all documents related to any of the allegations in the complaint. Rather, Defendant is asking for documents relating to specific allegations in Plaintiff's Third Amended Complaint. Importantly, Defendant is not asking for documents relating to every allegation Plaintiff makes in its 89-page TAC.
Accordingly, it is ordered that Plaintiff provide Defendant with a privilege log for any responsive documents withheld in compliance with Fed. R. Civ. P. 26(b)(5) within 10 days of this Order.
Request Nos. 7–61: Plaintiff objected to Requests 7–61[3] on grounds that the Request was not relevant. But for most of these Requests (with the exception of Request Nos. 18, 21, and 23), Plaintiff still produced responsive documents.
*4 Despite providing responsive documents, Plaintiff did not, as Defendant correctly points out, indicate whether any documents were withheld. Accordingly, Plaintiff is ordered to supplement its responses to Requests 7–17, 19–20, 22, 24–61 to indicate whether any documents were withheld within 10 days of this Order. If any documents were withheld due to privilege, Plaintiff must provide a privilege log.
III. Interrogatories
The parties dispute whether Defendant's Interrogatories were timely served. ECF Nos. ECF No. 291 at 12–13, ECF No. 299 at 18–20.
Fed. R. Civ. P. 33(b)(2) requires the responding party to respond within 30 days after being served with the interrogatories absent a stipulation or court order. This Rule implies that that the requesting party must file his discovery requests “at least 30 days before the discovery cutoff.” Christmas v. MERS, No. 2:09-CV-01389-RLH, 2010 WL 2695662, at *1–2 (D. Nev. July 2, 2010) (citation omitted). This is to “ensure that the other party has sufficient time to respond.” Aevoe Corp. v. AE Tech Co., No. 2:12-CV-00053-GMN, 2013 WL 4701192, at *1 (D. Nev. Aug. 30, 2013) (citation omitted). That said, “the Court has discretion to excuse the failure to comply with the deadline if it is not excessive.” Id. (citation omitted).
Here, the discovery cut-off was May 23, 2022. Defendant served his First Set of Interrogatories on April 27, 2022—about 27 days prior to the discovery cutoff. ECF No. 291-14 at 12. Because Plaintiff's response deadline fell after the discovery cutoff, Defendant's Interrogatories were untimely.
However, as noted above, “there is authority for the proposition that there may be exceptions to the deadline under certain circumstances, particularly where the failure to comply with the deadline is not excessive.” TV Interactive Data Corp. v. Sony Corp., 2012 U.S. Dist. LEXIS 56861, *14, 2012 WL 1413368 (citing Bishop v. Potter, 2010 U.S. Dist. LEXIS 85071, 2010 WL 2775332, at *2 (D. Nev. July 14, 2010)).
The Court finds that Defendant's delay was minimal. While the Court admonishes Defendant for not serving the Interrogatories earlier, this is not a situation where Defendant served the Interrogatories after the discovery cutoff date or even just days before the deadline. Moreover, this case is distinguishable from the facts in Bishop v. Potter, where the Hon. Judge Foley denied discovery requests filed only 16 days before the close of discovery. Accordingly, the Court will exercise its discretion and overrule Plaintiff's untimeliness objection. Bishop v. Potter, 2010 U.S. Dist. LEXIS 85071, *4, 2010 WL 2775332 (noting that “[t]he Court can excuse the failure to comply with the deadline if it is not excessive”); United States ex rel. Aflatooni v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir. 2002) (“District courts have wide latitude in controlling discovery ....”) (internal quotation marks and citation omitted). Plaintiff is therefore ordered to respond to Defendant's Interrogatories within 30 days of this Order.
IV. Depositions
Defendant seeks to depose Meg Bruno, Ruben Buell, and Daryl Webster. ECF No. 291 at 14–15. Plaintiff opposes, arguing that Defendant failed to notice the depositions. ECF No. 299 at 6.
While Defendant argues that he did not learn about Ms. Bruno, Mr. Buell, and Mr. Webster until he deposed Mr. Wey on May 19 of this year, he does not explain why he never noticed the depositions of these individuals. Because Defendant never noticed these depositions, the Court lacks the authority to compel Ms. Bruno, Mr. Buell, or Mr. Webster to appear for a deposition. See Fed. R. Civ. P. 30(b)(1) (“A party who wants to depose a person by oral questions must give reasonable written notice to every other party.”); see also Better Meat Co. v. Emergy, Inc., No. 221CV02338KJMCKD, 2022 WL 2990856, at *6 (E.D. Cal. July 28, 2022) (“Before a party can move to compel a deposition, it first must show that it served notice of the deposition and that the noticed deponent failed to attend.”) (citations omitted).
V. Conclusion
*5 IT IS ORDERED that Defendant Aaron Wallace's Motion to Compel (at ECF No. 291) is GRANTED IN PART and DENIED IN PART consistent with this Order.
IT IS FURTHER ORDERED that Plaintiff Reflex Media Inc. must supplement its responses to Defendant's Request for Production of Documents within 10 days of this Order.
IT IS FURTHER ORDERED that Plaintiff must respond to Defendant's Interrogatories within 30 days of this Order.
IT IS FURTHER ORDERED that the Court will exercise its discretion and deny Defendant's request for attorney's fees under Fed. R. Civ. P. 37.
Footnotes
A copy of the RFPs and responses can be found at ECF No. 291-4.
Defendant served its RFPs on February 8, 2022. ECF No. 291-2. Defendant officially responded on March 24, 2022. ECF No. 291-4. Although Plaintiff's responses were submitted more than 30 days after the RFPs were propounded, it seems—as neither party has indicated otherwise—that they were nonetheless timely.