eDiscovery Assistant

Johansen v. LoanDepot.com LLC

2021 WL 2497939 (C.D. Cal. 2021)

April 5, 2021

Early, John D., United States Magistrate Judge

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Summary

The Court denied a motion to compel discovery due to the failure of both parties to comply with the Local Rules. The Plaintiff failed to provide a joint stipulation, and the Defendant withdrew their objection after the Plaintiff forwarded their portion of the joint stipulation. The Court denied both parties' requests for expenses. The Electronically Stored Information in this case was the volume of emails identifying “LoanDepot,” “Corlead,” or “Five9” for RFP Nos. 12-14, which was necessary to determine the extent of the parties' liability.

Kenneth JOHANSEN
v.
LOANDEPOT.COM LLC, et al

Case No. 8:20-cv-00919-DOC (JDEx)

United States District Court, C.D. California

Filed April 05, 2021

Counsel

Rachel Kaufman, Kaufman PA, Miami, FL, Adam J. Schwartz, Adam J. Schwartz Attorney at Law, Los Angeles, CA, Anthony I. Paronich, Pro Hac Vice, Paronich Law PC, Hingham, MA, for Kenneth Johansen.
Eric J. Troutman, Shiqi Wang Borjigin, Squire Patton Boggs LLP, Jayesh Patel, Sharon A. Urias, Greenspoon Marder LLP, Los Angeles, CA, Meghan A. Quinn, Pro Hac Vice, Christina M. Lamoureux, Pro Hac Vice, Squire Patton Boggs LLP, Washington, DC, Daniel L. Delnero, Pro Hac Vice, Squire Patton Boggs LLP, Atlanta, GA, Jamey R. Campellone, Pro Hac Vice, Lawren A. Zann, Pro Hac Vice, Greenspoon Marder LLP, Fort Lauderdale, FL, for LoanDepot.com LLC, et al.

Early, John D., United States Magistrate Judge

Proceedings: Order Denying Plaintiff's Motion to Compel (Dkt. 77)

INTRODUCTION

*1 On May 19, 2020, Plaintiff Kenneth Johansen (“Plaintiff”) filed this action on his own behalf and ostensibly on behalf of others similarly situated alleging violations of the Telephone Consumer Protection Act (“TCPA”). Dkt. 1. On September 18, 2020, Plaintiff filed a First Amended Complaint against Defendants LoanDepot.com LLC and Ascendant Marketing Group, LLC[1] (“Defendant” or “Ascendant”). Dkt. 32.

On March 4, 2021, Plaintiff filed a Motion to Compel Defendant to provide further responses to Requests for Production of Documents without an accompanying Local Rule 37-2 Joint Stipulation based on Plaintiff's assertion that, under Local Rule 37-2.4(b), the otherwise applicable requirement for a Joint Stipulation was excused. Dkt. 77 (“Motion”). The Court previously vacated the hearing on the Motion. Defendant and Plaintiff timely filed their respective Opposition and Reply. Dkt. 79 (“Opposition” or “Opp.”); Dkt. 86 (“Reply”). The Motion is now fully briefed and ready for decision.

II.

RELEVANT PROCEDURAL BACKGROUND

The Motion concerns Plaintiff's Request for Production of Documents (“RFP”) Nos. 12-14, which Plaintiff asserts seek “communications that are critical to the fact intensive inquiry necessary to resolve the question of vicarious liability....” Motion at 5.

According to Plaintiff, the Motion was filed pursuant to Local Rules 6-1, 7-9, and 7-10, not Local Rules 37-2.1 and 37-2.2, because Defendant did not timely return its portion of the joint stipulation as required by Local Rule 37-2.2. See Notice of Motion at 2; Local Civil Rule (“L.R.”) 37-2.2, 37-2.4. Defendant, however, contends the Motion is improper, because “on March 3, 2021, Ascendant informed Plaintiff, in writing, that Ascendant waived its burdensome objection to RFP Nos. 12-14,” the objection that “is the subject of Plaintiff's Motion.” Opp. at 2. Defendant also states that “the Parties had not met and conferred in good faith regarding all of Ascendant's objections to RFP Nos. 12-14.” Id. at 4.

The Court notes the following from the parties' correspondence and evidence relating to the L.R. 37-1 pre-filing conferences and discussions between counsel preceding the filing of the Motion (Dkt. 77-2; Dkt. 79-1 to 79-7):

• On December 21, 2020, Plaintiff's counsel emailed Defendant's counsel requesting to confer “[p]ursuant to LR 37-1” regarding Plaintiff's responses to several of Defendant's discovery requests, including RFP Nos. 12-14. Plaintiff's counsel asserted RFP Nos. 12-14 “relate[ ] to both a willfulness analysis and vicarious liability analysis. If the volume of communications is disclosed we'd agree to provide ESI search terms if we believe it is appropriate based on the volume provided. Please advise.” Dkt. 77-2 at 5 (CM/ECF pagination).

• On January 5, 2021, counsel met and conferred. See Motion at 2. In an email confirming the parties' discussions, Plaintiff's counsel wrote, for RFP Nos. 12-14, “Ascendant will provide volume of emails that identify LoanDepot, Corlead, or Five9 and advise. The parties will further meet and confer regarding whether an ESI protocol and search terms are necessary and appropriate, and if so, regarding the terms of the protocol and search terms.” Dkt. 77-2 at 13-14; Dkt. 79-1.

*2 • On January 14, 2021, Plaintiff's counsel asked for a response as to “the open items from our meet and confer.... With regard to RFPs 12-14, 19, what volume of emails identify LoanDepot, Corlead, or Five9?” Dkt. 77-2 at 12.

• On January 18, 2021, Defendant's counsel wrote that she is “in the process of addressing” the points in Plaintiff's counsel's January 14 email and hopes “to provide ... a substantive update by end of day tomorrow (1/19)” Dkt. 77-2 at 11.

• On January 20, 2021, Plaintiff's counsel emailed Defendant's counsel stating “[W]e have not received a substantive response.” Dkt. 77-2 at 10. The same day, Defendant's counsel responded that “Ascendant is still in the process of determining the volume of emails containing the search terms/key words loanDepot, Corlead, and Five9. Please stand by.” Id.

• On January 29, 2021, Plaintiff's counsel again asked Plaintiff's counsel “what volume of emails identify LoanDepot, Corlead, or Five9?” Dkt. 77-2 at 21-22.

• On February 4 and 10, 2021, Plaintiff's counsel again requested Plaintiff's counsel's answer on the number of emails identifying “LoanDepot,” “Corlead,” or “Five9.” Dkt. 77-2 at 20-21.

• On February 10, 2021, Defendant's counsel responded to Plaintiff's counsel earlier emails, explaining she was in back-to-back depositions “for the last two weeks.” Dkt. 77-2 at 20. Defendant's counsel's response neither mentioned RFP Nos. 12-14 nor identified the volume of emails identifying “LoanDepot,” “Corlead,” or “Five9.” Id.

• On February 11, 2021, Plaintiff's counsel notified Defendant's counsel that Plaintiff “will also be moving to compel” on RFP Nos. 12-14, among other discovery requests, “as it has been more than 5 weeks since we met and conferred and Ascendant has done none of what it agreed to do, and you continue to ignore my emails requesting an update.” Dkt. 77-2 at 19. On the same day, the parties further conferred, but Plaintiff's counsel's email confirming the conference does not reflect that the parties discussed RFP Nos. 12-14. See id.; Motion at 2.

• On February 17, 2021, Defendant's counsel emailed Plaintiff's counsel about the “volume of emails identify[ing] LoanDepot, Corlead, or Five9” for RFP Nos. 12-14:

As I previously informed you, Ascendant is without an IT person and the requested searches were conducted by an individual without an IT background. Ascendant obtained the requested counts by typing in the search terms requested (i.e., “loanDepot,” “Corlead,” and “Five9”) into the search bar and seeing the volume of emails returned. Please note multiple emails could be implicated by one search return (because of email threading).

Additionally, please be advised that the below information is just counts (as you requested and Ascendant agreed to provide). Ascendant would be forced to engage an outside vendor to help collate all of these emails in a workable fashion for production purposes. As you know, I would then have to review these emails to determine whether they are even responsive to Plaintiff's Requests for Production. This overall process would be a burdensome task to say the least (both in terms of time and financial resources) for such a small business. Accordingly, at this time our objections stand.

*3 loanDepot (or a similar variant) was identified 2,974 times. Corlead (or a similar variant) was identified 407 times. Five9 (or a similar variant) was identified 2,450 times.

Dkt. 77-2 at 35-36; Dkt. 79-2.

• On February 19, 2021, Plaintiff's counsel emailed Defendant's counsel, stating “Plaintiff is seeking Court intervention on the issues addressed in the attached” and will “await” Defendant's “portion of this stipulation in the time proscribed by the rule.” Dkt. 77-2 at 35; Dkt. 79-3 at 2 (CM/ECF pagination). Neither party included the attachment of this email.

• On March 1, 2021, Defendant's counsel responded to Plaintiff's counsel's February 19 email, stating

I am just seeing this email from you from Friday and I wanted to respond to it as soon as I saw it. As I believe I informed you/your co-counsel previously, during the last 2 weeks I have been in countless depositions. I am now catching up with the rest of my case load.

I am surprised to see this Joint Stipulation asking for Ascendant's position; particularly because Ascendant did exactly what was asked of it if you read the email chain below. During the meet and confer conference, your co-counsel asked: “With regard to RFPs 12-14, 19, what volume of emails identify LoanDepot, Corlead, or Five9?”

As you can see below, on February 17, 2021, Ascendant provided the requested information. To date, the Parties have not met and conferred in good faith regarding Ascendant's objections to RFPs 12-14, 19. I am happy to do so this week now that we have the raw counts (as Plaintiff requested). Please let me know when you are available so we can work out this matter without the need for court intervention that my Client simply cannot afford to undertake.

Dkt. 77-2 at 40; Dkt. 79-4.

• Defendant's counsel replied to Plaintiff's counsel's March 1 email the same day:

We have met and conferred on the issue that is the subject of the Joint Stipulation. As you noted in your e-mail, “This overall process would be a burdensome task to say the least (both in terms of time and financial resources) for such a small business. Accordingly, at this time our objections stand.” We're moving to compel over that objection, which was the same objection as the meet and confers on this issue.

If your client wants to avoid judicial intervention, they can agree to produce all of the e-mails that were responsive to the searches by March 12, 2021.

Otherwise, provide your client's position on the Joint Statement by the close of business on March 3, 2021, which we are extending as a courtesy past the timeline set in LR 37.2.2, which expired last week and even though we did not receive a request for an extension.

Dkt. 77-2 at 39; Dkt. 79-5.

• On March 3, 2021, Defendant's counsel replied to Plaintiff's counsel's March 1 email:

While I disagree that there has been an actual conferral related to all of Ascendant's objections to RFPs 12-14 (and it appears you acknowledge that in your below email because you only focus on the burdensome objection), Ascendant does not have the resources to devote to the Rule 37 process. To that end, at this time Ascendant is willing to cooperate and drop its burdensome objection that is the subject of the Rule 37 Joint Letter and work to produce responsive documents to RFPs 12-14.

*4 As you know, Ascendant identified approximately 5,800 emails with the terms “Corlead”, “Five9”, or “loanDepot.” Can you please provide us search terms to apply to these emails so we can quickly review them to determine whether they are actually responsive to RFPs 12-14?

Dkt. 79-6 at 2 (CM/ECF pagination). Defendant's counsel explained that search terms are needed because RFP No. 12 “is overbroad on its face.” Id. Defendant's counsel also stated Plaintiff's “imposed deadline” of March 12 was “impractical and impossible to meet given Ascendant's limited resources. Ascendant will need additional time.” Id.

• Defendant's counsel replied to Plaintiff's counsel's March 3 the same day, proposing

that all of the responsive emails be produced, subject to an express clawback and no privilege waiver agreement for the production. That would allow your client to save the costs of an IT vendor and can be accomplished by March 12.

Dkt. 79-7 at 2 (CM/ECF pagination).

Plaintiff filed this Motion the next day on March 4.

III.

APPLICABLE LAW

The Local Civil Rules applicable in this district instruct:

Before filing any motion relating to discovery under F.Rs.Civ.P. 26-37, counsel for the parties must confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It is the responsibility of counsel for the moving party to arrange for this conference. If both counsel are located in the same county, the conference must take place in person at the office of the moving party's counsel unless the parties agree to meet someplace else. If both counsel are not located in the same county, the conference may take place telephonically. Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party serves a letter requesting such conference. The moving party's letter must identify each issue and/or discovery request in dispute, state briefly as to each such issue/request the moving party's position (and provide any legal authority the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought.

L.R. 37-1. If after the foregoing conference, counsel “are unable to settle their differences, they must formulate a written stipulation unless otherwise ordered by the Court.” L.R. 37-2.1 instructs, in part:

The stipulation must contain all issues in dispute and, as to each such issue, the contentions and points and authorities of each party. The stipulation may not refer the Court to any other documents. For example, if the sufficiency of an answer to an interrogatory is at issue, the stipulation must contain, verbatim, both the interrogatory and the allegedly insufficient answer, followed by each party's contentions as to that particular interrogatory, separately stated.... When a party states its contentions on a particular issue, such party must also state how it proposed to resolve the dispute over that issue at the conference of counsel.

L.R. 37-2.1. The moving party must deliver its portion of the joint stipulation to the other party after the parties' conference with “all declarations and exhibits to be offered in support of the moving party's position.” L.R. 37-2.2. Unless otherwise agreed, the opposing party must deliver its portion of the joint stipulation with all declarations and exhibits within 7 days of receipt of the moving party's materials. Id. Once the opposing party's material is added to the joint stipulation by the moving party, the opposing party must sign, electronically or otherwise, the completed document by the end of the next business day. Id.

*5 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. If such declaration accompanies the motion, then L.Rs. 6-1, 7-9 and 7-10 apply.

L.R. 37-2.4.

Failure “to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions” and filings that do not comply with the rules may be stricken and not considered. L.R. 37-4; see, e.g., United States v. Gorski, 2012 WL 12895831, at *2 (C.D. Cal July 9, 2012) (denying request to reconsider order striking an improper briefing filed in violation of L.R. 37, noting “the parties were required to set forth in the Joint Stipulation ‘all issues in dispute and, with respect to each such issue, the contentions and points and authorities of each party”).

Courts may deny discovery motions for failure to comply with the Local Rules' requirements for such motions. See Pina v. Lewis, 717 F. App'x 739, 740 (9th Cir. 2018) (district court may properly deny a motion to compel “for failing to comply with local rules”); see also Tri-Valley CARES v. U.S. Dep't of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a motion as the result of a failure to comply with local rules is well within a district court's discretion.”); Lumber Liquidators, Inc. v. Sullivan, 2012 WL 4464867, at *4 (C.D. Cal. Aug. 31, 2012) (denying discovery motion for failure to comply with L.R. 37-2); So v. Land Base, LLC, 2009 WL 2407954, at *2 (C.D. Cal. Aug. 4, 2009) (same).

IV.

DISCUSSION

As an initial matter, the Courts notes that Defendant's delay in responding to Plaintiff's legitimate inquiry into Defendant's burdensomeness objection was not justified here. However, that delay did not justify Plaintiff's filing the Motion after Defendant withdrew its burdensomeness objections for two reasons.

First, procedurally, the Motion does not comply with L.R. 37 in that Plaintiff has not shown he was entitled to proceed without a joint stipulation. Defendant's asserted failure to return its portion of a joint stipulation in a timely fashion is the only basis Plaintiff proffers to excuse the otherwise applicable joint stipulation requirement for a discovery motion. See Notice of Motion at 2; L.R. 37-2.4(b). In that regard, Plaintiff is correct that Defendant did not return its portion of the proffered joint stipulation within 7 days after it was forwarded. However, as noted above, under the L.R. 37 process, a prerequisite to the preparation and forwarding of a joint stipulation is a completed meet and confer process regarding all issues raised in such joint stipulation. Only after such a conference intended, in good faith, to eliminate as many disputes as possible between the parties, may a moving party send its portion of a joint stipulation. See L.R. 37-2. Here, the only issue about which the parties started to confer in connection with RFP Nos. 12-14 was the asserted burdensomeness of the requests, with Defendant agreeing to provide evidence in support of that objection. Albeit belatedly, Defendant eventually provided such evidence. Defendant did so before Plaintiff forwarded his portion of the joint stipulation. The parties apparently did not further confer regarding the evidence, and the process was not even completed as to that single objection before Defendant filed the Motion. The parties had not, based on the record before the Court, conferred regarding any other objection asserted in the responses to RFP Nos. 12-14. As a meet and confer process regarding all such objections is a prerequisite to seeking an order compelling production of documents, Plaintiff's forwarding of his portion of a joint stipulation was premature. As Plaintiff has not shown it was entitled to proceed with the preparation of a joint stipulation, Defendant's failure to provide its response did not violate L.R. 37-2.2, and Plaintiff therefore was not authorized to proceed with the Motion without such a joint stipulation under L.R. 37.2.4(b).

*6 Second, substantively, once Defendant withdrew its burdensomeness objection on March 3, 2021, the Motion, which then had not yet been filed, was rendered moot. As noted, based on the record before the Court, Defendant's burdensomeness objection was the only objection that was the subject of counsels' Local Rule 37-1 conferences. See Dkt. 77-2 at 39; Dkt. 79-5 (quoting Defendant's counsel's statement, “This overall process would be a burdensome task ... for such a small business. Accordingly, ... our objections stand,” and stating that Plaintiff is “moving to compel over that objection, which was the same objection as the meet and confers on this issue.”). Moreover, Plaintiff does not contest Defendant's characterization that Defendant's “burdensome objection ... was the subject of the Rule 37 Joint Stipulation” and “of the instant Motion.” Opp. at 4; see also id. at 5 (stating the Motion “appears to singularly focus on Ascendant's burdensome objection”). Nor does Plaintiff refute Defendant's statement that the parties have not met and conferred on Defendant's remaining objections to RFP Nos. 12-14. See Opp. at 4-5 (stating the Motion “fails to address Ascendant's other objections to” RFP Nos. 12-14); Dkt. 79-6 at 2. Given that Defendant already dropped its burdensomeness objection, which is the only objection substantively addressed in the meet and confer process and in the Motion, the Motion was moot before it was filed.

For those reasons, the Motion is DENIED.

In its Opposition, Defendant seeks an order directing Plaintiff to pay “for the attorneys' fees and costs Ascendant was forced to incur to respond to Plaintiff's improper Motion.” Opp. at 6. In Reply, Plaintiff contends, “[i]f there are sanctions to be imposed, it should be for Ascendant's deliberate failure to comply with the process this Court has in place for settling discovery disputes.” Reply at 4.

Under Rule 37 of the Federal Rules of Civil Procedure, when denying a motion, the Court “must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party ... who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B).

Here, the Court finds both parties acted without justification, rendering any award of expenses unjust. As set forth above, Defendant unjustifiably delayed in providing data supporting its burdensomeness objection, and then, after standing on the objection for weeks, withdrew the objection after Plaintiff forwarded its portion of a joint stipulation. As noted above, Plaintiff unjustifiably proceeded with this Motion without a joint stipulation and without meeting and conferring regarding all objections asserted. As each party acted without justification, an award of expenses to either party would be unjust here.

CONCLUSION AND ORDER

For the foregoing reasons, the Motion (Dkt. 77) is DENIED and the parties' cross-requests for awards of expenses are also DENIED.

IT IS SO ORDERED.

Footnotes

[1]

The First Amended Complaint names Ascend Marketing, LLC, as a defendant. On November 3, 2020, Ascendant Marketing Group, LLC, was substituted for Ascend Marketing, LLC. Dkt. 47, 48.