*1 On June 27, 2022, Jeffrey Kearns (“Plaintiff”), on his own behalf and putatively on behalf of others similarly situated, filed a complaint against Loandepot.com, LLC (“Defendant”). Dkt. 1. On August 26, 2022, Plaintiff filed a First Amended Complaint. Dkt. 18 (“FAC”). On August 19, 2022, Defendant filed, as relevant herein, Motions to: (1) Transfer (Dkt. 13); (2) Stay (Dkt. 16); and (3) Bifurcate Discovery (Dkt. 14) and, on September 9, 2023, Defendant filed additional Motions to: (4) Dismiss the FAC (Dkt. 22); and (5) Strike Class Allegations (Dkt. 23) (collectively, “Motions”). On November 4, 2022, following a hearing, the Honorable John W. Holcomb, United States District Judge, denied all of the Motions. Dkt. 40. As to the Motion to Bifurcate Discovery, Judge Holcomb ruled:

Dkt. 51 at 34. On December 2, 2022, in its portion of the parties' Rule 26(f) Joint Report, Defendant stated “it acknowledges the Court has denied its request for bifurcation and does not seek to have that issue relitigated at this time.” Dkt. 49 at 6. On December 16, 2022, Judge Holcomb issued a Scheduling Order setting a deadline to file a Motion for Class Certification on August 30, 2023, with a hearing on the issue scheduled for November 1, 2023. Dkt. 50.

On June 16, 2023, Defendant filed a Motion for Summary Judgment. Dkt. 62. Thereafter, on August 10, 2023, following a stipulation by the parties, Judge Holcomb stayed discovery pending a ruling on the Motion for Summary Judgment. Dkt. 79. Following briefing and a hearing, on September 29, 2023, Judge Holcomb denied Defendant's Motion for Summary Judgment and, after noting that discovery “was open,” reset the deadline for the filing of a Motion for Class Certification to January 26, 2024, with a hearing set for such a motion for April 30, 2024. Dkt. 88 at 31; Dkt. 91.

On October 9, 2023, Plaintiff filed the operative Second Amended Complaint, which states that it was filed with Defendant's consent. Dkt. 93 (“SAC”) at 1, n.1. The SAC asserts a single claim for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 22, seeking to certify a class of persons who received prerecorded cellular “robocalls” made by or on behalf of Defendant, selling goods or services of Defendant, from telephone numbers Defendant received from “LendingTree.” Defendant answered the SAC on October 23, 2023. Dkt. 100.

On November 7, 2023, Plaintiff filed a Local Rule (“L.R.”) 37-2 Joint Stipulation (Dkt. 101, “Joint Stipulation” or “Jt. Stip.”) in support of a Motion to Compel (“Motion”) Defendant to provide further responses to certain discovery requests Plaintiff served on November 23, 2022 (see Dkt. 101-1 at 16) seeking consumer call-related information, subsequently narrowed to only seek “class information related to the telephone numbers Defendant contacted from the leads it gathered from lendingtree.com—instead of telephone numbers Defendant contacted from all of its lead sources” (Jt. Stip. at 2), with supporting and opposing evidence (Dkt. 101-1 to 101-6). The parties each filed L.R. 37-2.3 Supplemental Memoranda on November 14, 2023. Dkt. 105, 106.

*2 While the Motion was pending, ten days before the hearing Plaintiff set for the Motion, Plaintiff filed a second Motion to Compel, supported by a 45-page Second Joint Stipulation (Dkt. 108, “Second Motion”) and more than 60 pages of additional material (Dkt. 108-1 to 108-10). Plaintiff did not notice the Second Motion for a hearing date, which the Court interprets to mean Plaintiff does not request a hearing on the Second Motion. Further, Plaintiff argues there is some urgency in ruling on the Second Motion as Plaintiff's deadline to file a class certification motion is January 26, 2024, and Defendant is, according to Plaintiff, “stonewalling” Plaintiff's discovery efforts “necessary to move for class certification.” Second Motion at 2. In addition, it appears that the requests for production at issue in the Second Motion, as discussed further below, are in material respects a subset of information sought in the Motion. Due to the apparent urgency of the Second Motion, the seeming overlap of the two motions, and as each party has set forth its position in the Second Motion with respect to the issues asserted therein, the Court finds that further briefing is not needed or warranted on the Second Motion.

Therefore, the Motion and the Second Motion are now fully briefed. The Court finds that the Motion and the Second Motion may appropriately be decided without further argument, vacates the hearing set for December 14, 2023 on the Motion, and rules as follows.

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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. Civ. P. (“Rule”) 26(b)(1). Relevance under Rule 26(b)(1) is defined broadly. See Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) (noting that relevance for discovery purposes remains broad even after the 2015 amendments of the Federal Rules of Civil Procedure). Moreover, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted).

Although relevance for discovery purposes is defined very broadly, it is not without boundaries. See, e.g., Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (“District courts need not condone the use of discovery to engage in ‘fishing expedition[s].’ ” (alteration in original)); Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947)); Rule 26(b)(2). District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)).

Under Rule 33, “[a]n interrogatory may relate to any matter that may be inquired into under Rule 26(b).” Rule 33(a)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Rule 33(b)(3). If the answer to an interrogatory may be determined by examining a party's business records, and “if the burden of deriving or ascertaining the answer will be substantially the same for either party,” the responding party may answer by specifying (and making available) the records in sufficient detail to allow the interrogating party to locate and identify them as readily as the propounding party. Rule 33(d). “The grounds for objecting to an interrogatory must be stated with specificity.” Rule 33(b)(4); see Moore v. Gipson, 2018 WL 746489, at *2 (E.D. Cal. Feb. 7, 2018) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981) (noting “objections should be plain enough and specific enough so that the court can understand in what way the interrogatories are alleged to be objectionable”)).

*3 Under Rule 34(a)(1), a party may serve on any other party requests, within the scope of Rule 26(b), to produce or permit inspection of, among other things, “any designated documents or electronically stored information” “in the responding party's possession, custody, or control.” Such requests “must describe with reasonable particularity each item or category of items to be inspected ... [and] must specify a reasonable time, place, and manner for the inspection ....” Rule 34(b)(1)(A), (B). The party responding to a request for production must, for “each item or category,” “either state that inspection ... will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Rule 34(b)(2)(C). Thus, “[a]n objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate, the objection should state the scope that is not overbroad,” and identify what is withheld based on the objection. Rule 34 Advisory Committee Notes (2015 Amendment). The Advisory Committee Notes further clarify that the 2015 amendment to Rule 34(b)(2)(C) “should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.”

A party who files a discovery-related motion bears the initial burden of informing the Court, at a minimum, of which discovery requests or responses are the subject of the motion. See Local Rule 37-2.1 (requiring a joint stipulation in support of a discovery motion “must contain all issues in dispute” and, if, for example, 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); see also Chester v. King, 2019 WL 4013354, at *4 (E.D. Cal. Aug. 26, 2019) (noting, “[a]t a minimum, as the moving party Plaintiff bears the burden of informing the court (1) which discovery requests are the subject of his motion to compel; (2) which of Defendant's responses are disputed; ....”).

“Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw-Hill Cos., Inc., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations omitted); see also DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”). Objections asserted in discovery responses but not raised in briefing on a discovery motion are also waived. MarketLinx, Inc. v. Indus. Access Inc., 2013 WL 12133884, at *2 (C.D. Cal. Jan. 2, 2013) (noting “objections that were raised in response to a particular discovery request, but were not argued in the [j]oint [s]tipulation, are deemed waived”) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999) (“When ruling upon a motion to compel, the court generally considers those objections which have been timely asserted and relied upon in response to the motion. It generally deems objections initially raised but not relied upon in response to the motion as abandoned.”)).

Unless otherwise noted, the following discussion relates to the Motion. Although the Joint Stipulation is not entirely clear, it appears that Plaintiff seeks three forms of relief: (1) an order overruling certain “General Objections” (Jt. Stip. at 7); (2) an order requiring Defendant to identify any documents withheld from production based on privilege on a privilege log (Jt. Stip. at 9) and (3) an order overruling objections and compelling further responses to Plaintiff's Request for Production (“RFP”) Nos. 6-9, 14, 16, 20, 21, 26, and 28 and Interrogatory No. 1 (“Disputed Requests”).

A. General and “Boilerplate” Objections

Plaintiff asserts that Defendant interposed an improper “General Objection” by asserting, in each response, a statement that Defendant objected to the request to the extent it purported to impose requirements beyond those imposed by the Rules. Jt. Stip. at 7. It is unclear why Plaintiff is taking issue with Defendant's statement as: (1) it is not evident that Defendant failed to produce documents or answer interrogatories based on the statement; and (2) it is not apparent that the Court should overrule an objection that is entirely coextensive with the Rules. While the “objection” appears superfluous, as no document or information was withheld on that basis, and even if it was withheld on that basis, it is not apparent that the Court could or should order Defendant to respond in contradiction to the Rules, the Motion, to the extent it seeks to overrule this statement, is denied.

*4 Plaintiff next challenges several objections that Plaintiff characterizes as “boilerplate” that are asserted in several of the Disputed Requests. Jt. Stip. at 8-9. Defendant declines to address those “boilerplate” objections in the same section as Plaintiff, but instead purports to justify its objections in the discussion of the Disputed Requests themselves, arguing Plaintiff violated L.R. 37-2.1 in presenting the grouped objections separately. Jt. Stip. at 10. While not necessarily agreeing that all of the grouped objections are “boilerplate,” the Court finds the presentation by Plaintiff in the Joint Stipulation does not violate the Local Rules but declines Defendant's invitation to “disregard” Plaintiff's arguments. The Court will instead consider Defendant's arguments in support of these objections in the discussion of the Disputed Responses, and other grouped objections set forth below.

First, Plaintiff challenges Defendant's relevance and undue burden objections. As noted, “[u]pon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” McGraw-Hill Cos., Inc., 2014 WL 1647385, at *8 (citations omitted); see also DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”). As to relevance, except as discussed below in assessing the individual Disputed Requests, the Court finds that Disputed Requests meet the threshold for relevance for discovery purposes. To the extent Defendant seems to argue that every time a Plaintiff files an amended complaint it must thereafter re-draft and re-serve all prior discovery requests (See Dkt.105 at 4), Defendant cites no authority for the position and the Court rejects it. Thus, the burden shifts to Defendant to explain and support its objections. As to burden, Defendant asserts the Disputed Requests are unduly burdensome and submits a Declaration (Dkt. 101-6, “Declaration”) by an executive, containing less than a single page of substantive averments, stating that searching for the information “Plaintiff seeks in his demands would take at least hundreds of hours,” considering the complexity of queries and the multiple databases and custodians needing to be searched, as well as limits on system resources, all of which “would be massively burdensome, placing a tremendous straining on mission-critical resources.” Id. at ¶¶ 6-7. However, the Declaration does not state whether it is assessing the burden associated solely with the Disputed Requests as narrowed by Plaintiff, associated with the Disputed Requests, not narrowed, or associated with the entirety of Plaintiff's discovery requests, not all of which are implicated in the Motion. The cursory and conclusory statements are of little assistance to the Court in assessing the burden associated with each of the Disputed Requests individually or collectively. Nor is Defendant's assertion, without evidentiary support, that it must search “every business unit” for responsive documents (see, e.g., Jt. Stip. at 12) persuasive; rather, Rule 34 requires reasonable search. See Albert v. Lab. Corp. of Am., 536 F. Supp. 3d 798, 801 (W.D. Wash. 2020). The Court does not credit the Declaration or Defendant's unsupported arguments regarding burden except where noted below in the Court's proportionality analysis.

Second, Plaintiff takes issue with Defendant's assertion of third party privacy objections, noting that there is a Protective Order (Dkt. 59, “Protective Order”) in place. Jt. Stip. at 9. The Court notes that the Protective Order was entered based on a stipulation of the parties, including Defendant's stipulated agreement that “information implicating the privacy rights of third parties,” including “consumer contact information and personal identifying information” would likely be at issue in the case, with the Protective Order designed to provide protection from unwarranted public disclosure of such information while at the same time expediting “the flow of information” and “ensure that the parties are permitted reasonable necessary uses of such material in preparation for and in the conduct of trial,” among other things. Protective Order, ¶ 2. Defendant asserts that “there are very serious privacy issues at stake” because putative class members “supplied personal identifying information in connection with a potential financial transaction” and, from Defendant's view, “there is an extremely high chance that Plaintiff's present class will not be certified,” meaning, such information would be disclosed as to persons who are not and will not be part of the class. See Jt. Stip. at 33, 38.

*5 Plaintiff's stated basis for jurisdiction in this Court is federal question jurisdiction (see SAC ¶ 7); as a result, federal law governs issues of privilege and privacy. See Fed. R. Evid. 501; Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364, 367 n.10 (9th Cir. 1992); Grasshopper House, LLC v. Accelerated Recovery Ctrs., LLC, 2010 WL 11549386, at *2 (C.D. Cal. Oct. 19, 2010) (explaining that because the court has “federal question jurisdiction over this action ... any privacy or privilege determinations are governed by federal [law], rather than by California law.” (internal citation omitted)). Although California privacy law cases do not govern, the Ninth Circuit nevertheless recognizes a limited privacy right in civil discovery in some instances. See Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 657 (C.D. Cal. 2005). This privacy right is not absolute; rather it is subject to a balancing of needs. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006) (citing Keith H., 228 F.R.D. at 657); see also Marshall v. Galvanoni, 2019 WL 2491524, at *2 (E.D. Cal. June 14, 2019) (“To evaluate whether privacy interests should prevail over the interest in fully discovering a case, the court must balance the party's need for the information against the individual's privacy rights.”). In conducting the balancing, one factor courts consider is the existence of a protective order. See, e.g., Roth v. PTGMB LLC, 2020 WL 5820611, at *4 (E.D. Cal. Sept. 30, 2020).

Considering the foregoing factors, and taking into particular account the existing Protective Order, which was entered at the parties' joint request, in part, to provide protections for precisely the information at issue in the Disputed Request, and, considering the information sought by the Disputed Requests, the Court finds, on balance, disclosure is warranted, subject to the provisions of the Protective Order and subject to the limitations discussed in the analysis of certain Disputed Requests, set forth below.

Third, although not raised as a separate “boilerplate” objection by Plaintiff, the Court takes up Defendant's challenge to Plaintiff's offer to narrow the Disputed Requests to relate solely to “class information related to the telephone numbers Defendant contacted from the leads it gathered from lendingtree.com—instead of telephone numbers Defendant contacted from all of its lead sources”(Jt. Stip. at 2), asserting that Plaintiff must re-serve such narrowed requests as new discovery requests to allow Defendant to “respond directly” to those narrowed requests. Jt. Stip. at 4-5. While in some circumstances it may be appropriate to require a propounding party to reserve narrowed requests that alter the nature of the information sought, here, considering: (1) the case has been pending for more than 17 months; (2) the Disputed Requests were served more than a year ago; (3) the class certification motion filing deadline is less than two months away; (4) Defendant served blanket refusals to provide any information responsive to the Disputed Requests, that is, RFP Nos. 6-9, 14, 16, 20, 21, 26, and 28 and Interrogatory No. 1 in its responses; and (5) Defendant's written position during the meet and confer process more than seven months ago did not suggest any likelihood that Defendant would have changed its position as to the Disputed Requests if they were reserved (see Dkt. 101-3 at 5-7); and (6) the interests in promoting good faith efforts by parties to resolve disputes informally, as reflecting in L.R. 37-2.1's requirement that a party to discovery disputes “state how it proposed to resolve the dispute” in the joint stipulation, the Court declines to require Plaintiff to reserve the narrowed requests here. Further, to the extent Defendant argues that Plaintiff did not properly meet and confer prior to filing the Motion, although the process, and the conduct of the parties during that process, by which these disputes have been brought to the Court leaves much to be desired, the Court finds Plaintiff made a sufficient good faith effort to attempt to informally resolve the disputes, and to the extent it was lacking, that was due to the conduct of Defendant during the process, excusing further efforts.

*6 Fourth, although, again, not raised by Plaintiff as a “boilerplate” objection, the Court takes up Defendant's repeated objection that the Disputed Requests are vague and/or ambiguous. The Court notes that parties are required to construe discovery requests in a reasonable, common sense manner, and must attribute ordinary definitions to terms in discovery requests. Advanced Visual Image Design, LLC v. Exist, Inc., 2015 WL 4934178, at *6 (C.D. Cal. Aug. 18, 2015) (citing Bryant v. Armstrong, 285 F.R.D. 596, 606 (S.D. Cal. 2012)); see also Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007); (finding parties have an “obligation to construe ... discovery requests in a reasonable manner”); King-Hardy v. Bloomfield Bd. of Educ., 2002 WL 32506294, at *5 (D. Conn. Dec. 8, 2002) (finding the responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity); McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....” (internal quotation marks omitted)). Using the foregoing cannons of construction, the Court finds the Disputed Requests sufficiently clear as to permit a response and overrules Defendant's vague and/or ambiguous objections.

Last, as to certain of the Disputed Requests, Defendant argues that some information sought relates to “a merits-issue” and “there is no need for merits discovery of this sort to take place at this stage of the litigation. See, e.g., Jt. Stip. at 71, 74. However, as noted above, Defendant requested, and Judge Holcomb denied, a bifurcation of discovery between class-based and merits-based issues. Dkt. 51 at 34. On December 2, 2022, Defendant “acknowledge[d] the Court has denied its request for bifurcation” and did not, and has not, asked Judge Holcomb to revisit the issue. See Dkt. 49 at 6. To the extent Defendant asks the assigned magistrate judge to alter Judge Holcomb's ruling on the issue or impose a discovery stay (see Dkt. 106 at 6) after Judge Holcomb recently reiterated that discovery was “open” (Dkt. 88 at 31), the assigned magistrate judge lacks the authority to alter Judge Holcomb's orders governing the scheduling of matters in this case. See L.R. 16-14. However, as described further below, taking into account the privacy rights of third parties, the needs of the case, including the upcoming class certification motion filing deadline, and concerns of possible undue burden, certain information may be more appropriately ordered disclosed if and after a class is certified.

B. Privilege Log

Plaintiff next asserts that Defendant has not provided a privilege log and has not stated, at least with respect to RFPs, whether Defendant has withheld responsive documents on the basis of privilege. Jt. Stip. at 9. Defendant states “no privilege log is required” because Plaintiff “has not shown [Defendant] withheld any information pursuant to any privilege.” Jt. Stip. at 10, n.3.

As noted, the party responding to a request for production must, for “each item or category,” “either state that inspection ... will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Rule 34(b)(2)(C). Thus, “[a]n objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate, the objection should state the scope that is not overbroad,” and identify what is withheld based on the objection. Rule 34 Advisory Committee Notes (2015 Amendment). The 2015 amendment to Rule 34(b)(2)(C) “should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections.” When withholding information under a claim of privilege, a party must (1) “expressly make the claim,” and (2) “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.” Rule 26(b)(5)(A). A party asserting a privilege must “provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1148 (9th Cir. 2005). If a party does not timely serve a privilege log, the Ninth Circuit directs district courts to apply a “holistic reasonableness” test to assess potential waiver of a privilege. Id. at 1149. Thus, the court in Burlington rejected a “per se waiver rule that deems a privilege waived if a privilege log is not produced within” the time required, directing courts instead to make a “case-by-case determination,” considering the degree to which an objection or assertion permits parties and the court to evaluate the applicability of the privilege, timeliness of the objection/assertion, magnitude of the production, the particular circumstances of the litigation making responding to discovery easier or more difficult, as part of a “holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process.” Id.

*7 Here, as noted, Defendant argues no privilege log is “required” because Plaintiff “has not shown [Defendant] withheld any information pursuant to any privilege.” But Plaintiff could not “show” Defendant withheld information pursuant to any privilege because Defendant's responses to the Disputed Requests generally fail to comply with Rule 34(b)(2)'s requirement to “state whether any responsive materials are being withheld on the basis” of an objection and relevant and responsive information has been withheld on the basis of the objections” and Rule 26(b)(5)(A)'s mandate that a party withholding information under a claim of privilege must (1) “expressly make the claim,” and (2) “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.” In response to RFP No. 21, one of the Disputed Requests, Defendant referenced “privileged records” and then states it “will presume Plaintiff seeks solely non-privileged records.” See Dkt. 101-5 at 94 (CM/ECF pagination). A party is not permitted to unilaterally limit the information sought by an RFP to exclude privileged material and then refuse to provide a privilege log reflecting what was excluded. Rather, if Defendant asserts a privilege against producing otherwise responsive information, it must so state as required by Rule 34(b)(2) and provide an appropriate privilege log as required by Rule 26(b)(5)(A). Parties may certainly agree among themselves that communications between a client and outside litigation counsel are not sought or do not need to be identified on a privilege log, but a responding party may not avoid the requirements of Rules 26 and 34 by simply interpreting an RFP to exclude privileged communications so as to avoid preparing a privilege log.

Plaintiff's Motion is granted to extent it seeks an order requiring Defendant to provide a compliant privilege log identifying any and all responsive documents or information that Defendant has not provided in response to any of Plaintiff's discovery requests on the basis of a privilege. Applying Burlington, the Court does not find, at this time, that Defendant's failure to provide a privilege log constituted a waiver of any applicable privilege, but Defendant is on notice that a future failure may be found to constitute a waiver of privileges.

C. The Disputed Requests

Based on: the authorities cited herein and Rules 26, 33, 34, and 37; the text of the Disputed Requests, as narrowed by Plaintiff to seek only “class information related to the telephone numbers Defendant contacted from the leads it gathered from lendingtree.com—instead of telephone numbers Defendant contacted from all of its lead sources”; the objections asserted in response to the Disputed Requests; and the parties' arguments set forth in the Joint Stipulation and Supplemental Memoranda, the Court rules as follows on the Disputed Requests. Where the Motion is granted, Defendant's objections are overruled for the reasons stated herein.

RFP No. 6

Documents sufficient to identify all Persons from which You purchased telephone numbers to which You sent Prerecorded Messages.

As noted, Plaintiff narrowed the Disputed Requests to only seek to “class information related to the telephone numbers Defendant contacted from the leads it gathered from lendingtree.com—instead of telephone numbers Defendant contacted from all of its lead sources” (Jt. Stip. at 2), a limitation Plaintiff reiterates in discussing RFP No. 6 (Jt. Stip. at 13). So narrowed, the Court agrees with Defendant that it is unclear what Plaintiff seeks by RFP No. 6, which seeks only documents that identify from whom Defendant purchased telephone numbers, an identity that Plaintiff has now limited to lendingtree.com, meaning there is nothing more to be gleaned from responsive documents. As such, it appears Plaintiff has essentially defined RFP No. 6 out of existence. The Motion as to RFP No. 6 is denied.

RFP No. 7

Documents sufficient to identify the equipment or software used to place the Subject Messages and Prerecorded Messages.

The Court finds RFP No. 7 is reasonably particularized and, as limited, seeks relevant material that is proportional to the needs of the case. Defendant's objections are overruled for the reasons stated above. Further, that Defendant has identified the system used to make the call to Plaintiff does not moot the request, as RFP No. 7 seeks documents sufficient to identify the equipment or software used to place more than just the call to Plaintiff, but also to make the calls to other putative class members, information that bears directly on several Rule 23 issues, including numerosity, commonality, and a predominance analysis. The Motion is granted as to RFP No. 7.

RFP No. 8

*8 Documents and ESI sufficient to identify the total number of Class Members.

Defendant's primary argument against RFP No. 8 is that it cannot determine how many members there are in the class as Defendant “has no way to identify individuals that claim calls to them were made without consent,” rendering the RFP an Interrogatory posing as an RFP. Jt. Stip. at 22-23. Plaintiff counters that it defined “Class Members” to refer only to persons to whom Defendant sent voicemail solicitations during the relevant time at telephone numbers obtained from lendingtree.com. In this instance, and given the procedural posture of the case, the Court agrees that the information sought by RFP No. 8 is not proportional to the needs of the case at this time. Requests for production seeking documents “sufficient to identify” a certain matter are often used appropriately to limit search results. Here, the Court finds the information sought by RFP No. 8, as worded, is not proportional to the needs of the case, considering the proportionality factors of Rule 26(b)(1), because, among other things, Plaintiff has propounded, and the Court orders a response below, to an interrogatory (Interrogatory No. 1) that will provide Plaintiff the same or more information than that sought by RFP No. 8, but without requiring Defendant to strain to interpret whether any document or ESI is “sufficient” to identify the “total number” of “Class Members” as the term is defined by Plaintiff, and as subsequently modified. As a result, the Motion is denied as to RFP No. 8.

RFP No. 9

Documents and ESI sufficient to identify the Class Members, including, but not limited to, their names, telephone numbers, and e-mail addresses.

Based on the Court's granting of the Motion as to RFP No. 16 and Interrogatory No. 1, below, for many of the same reasons as set forth above in denying the Motion as to RFP No. 8, the Court finds that the information sought in RFP No. 9, even as limited, is not, at this point in the case, proportional to the needs of the case, taking into account the Rule 26(b)(1) proportionality factors and the language of the request. As a result, the Motion as to RFP No. 9 is denied.

RFP No. 14

All lists of telephone numbers purchased by You for the purpose of attempting to send Prerecorded Messages to those telephone numbers.

The Court finds RFP No. 14 is reasonably particularized and, as limited, seeks relevant material that is proportional to the needs of the case. Defendant asserts that it has now advised Plaintiff that, with RFP No. 14 now limited to lists of telephone numbers purchased from lendingtree.com, “no such ‘lists’ exist.” Jt. Stip. at 43. That response, unlike prior responses by Defendant, is clear, unequivocal, and binding on Defendant. As such, no further response to RFP No. 14 is required, and the Motion is denied as to RFP for that reason.

RFP No. 16

All call logs, disposition reports, transmission reports, computer-generated document, or other documents(s) that identify (1) the total number of Prerecorded Messages attempted, (2) the date and time of each Prerecorded Message was attempted, (3) the intended recipient of the Prerecorded Message, (4) the result of each attempted Prerecorded Message, i.e., whether the Prerecorded Message was successfully transmitted, and (5) any response by the recipient of the Prerecorded Message.

*9 The Court interprets “intended recipients” to include only phone numbers and not names, e-mail addresses, or other personal identifying information and, so limited, finds RFP No. 16 is reasonably particularized and, as limited to information related only to lendingtree.com leads, seeks relevant material that is proportional to the needs of the case. Defendant mainly objects on vagueness and irrelevance grounds. Defendant's objections to the RFP, as limited by Plaintiff and above, are overruled for the reasons stated above. The request is sufficiently clear with reasonable interpretation and meets the threshold of relevance to issues of class certification. As such, the Motion is granted as to RFP No. 16.

RFP No. 20

Documents sufficient to identify the type of consent or permission, if any, you obtained from the intended recipients of Prerecorded Messages prior to You attempting transmission of the messages.

The Court finds RFP No. 20, even as limited, does not describe with reasonable particularity the category of items Plaintiff seeks to be produced as required by Rule 34(b)(1)(A). As noted above, requests for production seeking only documents “sufficient to identify” a specified item have their place, but that place is not in RFP No. 20. The Court agrees with Defendant that Plaintiff has not adequately articulated what additional documents he is seeking. As a result, the Court denies the Motion as to RFP No. 20, but nothing prevents Plaintiff from propounding more narrowly crafted RFPs or interrogatories on the issue of consent.

RFP No. 21

All documents that recorded in writing any formal or informal complaint received by You regarding Prerecorded Messages.

The Court finds RFP No. 21 is reasonably particularized and, as limited, including the four-year time limitation set in Plaintiff's discovery requests, seeks relevant material that is proportional to the needs of the case. Defendant's objections are overruled for the reasons stated above. Defendant largely argues the request is vague and unduly burdensome and suggests instead that Defendant undertake a narrower search “through databases and custodians likely to possess information related to the complaints” within 45 days of an order certifying a class. Jt. Stip. at 63. The request is sufficiently clear, using ordinary meanings of undefined terms, the provided definitions of defined terms, and common sense and is not unduly burdensome. Although Defendant argues a search for complaints would impose an undue burden, the only evidence of burden submitted by Defendant, the Declaration (Dkt. 101-6), is devoid of any information regarding any burden to search for complaint information. Lastly, Defendant's “offer” to search for and produce responsive documents after an class certification order is not sufficient. RFP No. 21 seeks information that is relevant to issues pending now. The Motion is granted as to RFP No. 21.

RFP No. 26

Documents sufficient to identify the total number of Prerecorded Messages sent.

Based on the Court's granting of the Motion as to RFP No. 16, above, and Interrogatory No. 1, below, for many of the same reasons as set forth above in denying the Motion as to RFP No. 8, the Court finds that the information sought in RFP No. 26, even as limited, is not, at this point in the case, proportional to the needs of the case, taking into account the Rule 26(b)(1) proportionality factors, the language of the request, and the fact that Interrogatory No. 1 seeks, among other things, precisely the same information, and it is not apparent why an additional search for documents “sufficient to identify” the number of messages sent is necessary or warranted at this time. As a result, the Motion as to RFP No. 26 is denied.

RFP No. 28

*10 For the Class Members, all documents supporting Your contention, if any, that You secured consent to transmit Prerecorded Messages to those individuals.

Defendant objects to RFP No. 28 as not seeking a reasonably particularized set of documents because, among other things, Defendant “has no way to identify any individual that claims calls to them were made without consent on a class wide basis. Rather a call by call and consumer by consumer search would need to be conducted to determine whether any call recipient believed the calls were made without consent.” Jt. Stip. at 64. As such, Defendant asserts this RFP is an Interrogatory posing as an RFP. Id. at 65. Plaintiff claims it needs documents responsive to the request “to show that Defendant placed thousands of calls, if not more, to Plaintiff and the putative class members.” Id. at 66. Plaintiff's proffer of relevance is not supported here. RFP No. 28 does not seek, as Plaintiff seems to assert, only documents reflecting that Defendant placed “thousands of calls,” it seeks “all documents supporting” Defendant's contention “if any” that the recipients of each of those “thousands” of calls consented to the calls.

Contention discovery generally permissible, and courts have recognized that they “may in certain cases be the most reliable and cost-effective discovery device, which would be less burdensome than depositions at which contention questions are propounded.” Cable & Comput. Tech., Inc. v. Lockheed Saunders, Inc., 175 F.R.D. 646, 652 (C.D. Cal. 1997); SPH Am., LLC v. Rsch. in Motion, Ltd., 2016 WL 6305414, at *2 (S.D. Cal. Aug. 16, 2016). Where contention interrogatories are served close to trial, rather than at the inception of an action, “they can also be a useful tool to narrow the issues in dispute.” Protective Optics, Inc. v. Panoptx, Inc., 2007 WL 963972, at *2 (N.D. Cal. Mar. 30, 2007). However, as with any other discovery device, contention discovery can, depending upon how they are used, become unduly burdensome and not proportional to the needs of the case under Rule 26(b)(1). See Former S'holders of Cardiospectra, Inc. v. Volcano Corp., 2013 WL 5513275, at *2 (N.D. Cal. Oct. 4, 2013) (requiring a “listing every single fact in support of [the parties'] contentions would be unduly burdensome”); Haggarty v. Wells Fargo Bank, N.A., 2012 WL 4113341, at *2 (N.D. Cal. Sept. 18, 2012) (contention interrogatories “are often overly broad and unduly burdensome” when they require a party to state “every fact” or “all facts” supporting responses); S.E.C. v. Berry, 2011 WL 2441706, at *4 (N.D. Cal. June 15, 2011) (contention interrogatories that ask for “each and every fact or application of law to fact ... may be held overly broad and unduly burdensome”) (internal quotation marks and citation omitted); Bovarie v. Schwarzenegger, 2011 WL 719206, at *1 (S.D. Cal. Feb. 22, 2011) (an interrogatory “seeking every fact that underlies every affirmative defense is unduly burdensome”); In re eBay Seller Antitrust Litig., 2008 WL 5212170, at *2 (N.D. Cal. Dec. 11, 2008) (“Additionally, pursuant to Rule 26, because the contention interrogatories ... seek ‘all facts’ supporting [the party's] allegations, they are overly broad and unduly burdensome on their face.”); Anaya v. CBS Broad. Inc., 2007 WL 2219458, at *6 (D. N.M. May 16, 2007) (“A contention interrogatory that seeks, in one paragraph, all of the facts supporting allegations, however, is overly broad and unduly burdensome on its face.”).

*11 Here, RFP No. 29 is obviously not a contention interrogatory, it is a “contention RFP” in seeking “all documents” in support of Defendant's contention, “if any,” that any of the allegedly thousands of consumers consented to receive calls. There will be a time and place for full contention discovery, but this RFP, as worded, at this stage of the case, is not proportional to the needs of the case. That is not to say a more narrowly crafted RFP or interrogatory relating to Defendant's policies or practices to obtain or ensure consent before making calls would not be proportional. But RFP No. 29, as worded, at this stage, is not proportional to the needs of the case, and as such, the Motion is denied as to RFP No. 29.

Interrogatory No. 1

Identify the total number of Prerecorded Messages that have been sent. For each Prerecorded Message, please identify the date, content, and telephone number of the recipient of the Prerecorded Message, and describe how the Prerecorded Messages were sent, including a description of the equipment used to obtain, store, and send messages to each telephone number. For any Prerecorded Messages sent simultaneously to numerous persons, identify the contents of the Prerecorded Messages and the number of recipients such Prerecorded Message was sent.

The Court finds Interrogatory No. 1, as limited, seeks relevant material that is proportional to the needs of the case. Defendant asserts Plaintiff's demand contains multiple separate interrogatories. In the context of Rule 33 interrogatories, subparts count collectively as one interrogatory if “they are logically or factually subsumed within and necessarily related to the primary question.” Safeco of America v. Rawstron, 181 F.R.D. 441, 444 (C.D. Cal. 1998) (quoting Kendall v. GES Exposition Services, Inc., 174 F.R.D. 684, 685 (D. Nev. 1997) (internal quotation marks omitted). Moreover, Rule 33(a)(1) provides: “Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Defendant does not argue that Plaintiff has exceeded this limit, rending any objection on that basis premature. Defendant additionally argues the information sought is not relevant and is unduly burdensome. For the reasons set forth above, the Court overrules Defendant's undue burden objection and finds the information sought by the interrogatory relevant and proportional to the needs of the case. As a result, Defendant's objections are overruled and the Motion is granted as to Interrogatory No. 1.

D. The Second Motion

As noted, the Second Motion seeks an order compelling further responses to four additional RFPs: (1) Documents sufficient to identify the total number of Calls; (2) Documents sufficient to identify the following information with respect to each Call: date and time of each, the telephone number that was called, duration of the call, the content of the prerecorded message delivered, the disposition of the call, and any other available information maintained by You regarding the Calls; (3) All call logs, disposition reports, transmission reports, in Your possession, custody, or control regarding the Calls; and (4) Documents sufficient to identify all consumer lead information and associated cellular telephone numbers acquired by You from LendingTree during the relevant time period to which Calls were subsequently placed. If You are unable to segregate the information by telephone type (i.e., cellular) and/or by whether a prerecorded call was placed to the lead, please provide all responsive lead documentation so that Plaintiff's expert can compare the outbound Call logs with the LendingTree lead information.

As an initial matter, Plaintiff asserts he propounded these new RFPs, and moved to compel on them, because Defendant refused to accept Plaintiff's clarification in the Disputed Responses that Plaintiff was only seeking information that Defendant obtained from LendingTree. Second Motion at 2. But, as noted above, in ruling on the Motion, the Court agreed with Plaintiff's position on the first Motion and found that Plaintiff was not required to re-serve new discovery in this instance. As a result, the entirety of the Second Motion appears to be duplicative; at a minimum, due to the drastic change in circumstances stemming from the foregoing rulings on the Disputed Requests, the Second Motion should be denied with the parties ordered to further meet and confer on the issues to assess whether there is anything new to be decided.

*12 Nonetheless, reaching the merits of the Second Motion, with respect to new RFP Nos. (1), (2), and (4), above, the Court finds that these requests, in seeking documents “sufficient to identify” items that the Court has already largely ordered to be produced in response to Interrogatory No. 1, above, seek to impose a search for information that is not proportional to the needs of the case (see Rule 26(b)(2)) and is duplicative of prior requests that Plaintiff has already propounded, moved to compel, and as to which Defendant has been ordered to produce (see Rule 26(g)(1)(B)(iii)), and those requests are denied on that basis. As to new RFP No. (3), above, this appears materially duplicative of RFP No. 16 in the Disputed Requests, which the Court has ordered Defendant to respond further to, and is also a subset of documents regarding information responsive to Interrogatory No. 1, which the Court has similarly ordered Defendant to respond to, rendering any further response at this time disproportionate to the needs of the case and unnecessarily duplicative.

For the foregoing reasons, the Second Motion (Dkt. 108) is DENIED.

For the foregoing reasons, the Second Motion (Dkt. 108) is DENIED in its entirety and the Motion (Dkt. 101) is GRANTED in part and DENIED in part as follows.

Lastly, counsel for the parties are advised that the manner in which: (1) Plaintiff propounded discovery; (2) Defendant responded to discovery; (3) the parties conferred regarding discovery disputes; and (4) the parties presented their disputes to the Court, left a great deal to be desired. The Court will not, at this time, make any further findings on the issues set furth herein, but directs counsel for the parties to review Rules 26, 30, 33, 34, 36, and 37, in full, with all Advisory Committee Notes regarding all amendments thereto, as well as Local Civil Rule 37-1 to 37-4. Of particular note, counsel are reminded that:

Rule 26(g)(1). Counsel are also reminded before filing any discovery related motion, counsel are required to confer “in good faith to eliminate the necessity” of Court intervention or to “eliminate as many disputes as possible” and “failure of any counsel to comply with or cooperate in the foregoing procedures may result in the imposition of sanctions.” L.R. 37-1, 37-4.

Although no action is taken at this time, the parties are advised that, in addition to sanctions under Rule 37, the Court may impose sanctions under Rule 26(g) and/or L.R. 37-4 for any future violations of those provisions. To be clear, this caution is directed to all counsel. For future discovery-related motions in this case, the moving party is ORDERED to include a declaration by counsel with the motion that attaches all correspondence between the parties regarding the issues raised in such motion, states when the L.R. 37-1 meeting of counsel took place regarding the issues raised in the motion, states by what means (in-person, by telephone, or by videoconference) the conference proceeded, states who participated in the conference, states how long the conference lasted, and affirms that counsel discussed each discovery request, each response thereto, each objection contained in each such response, and any supplemental response or narrowed request, with the opposing counsel in a good faith attempt to resolve the dispute. Any motion that does not comply with the Local Rules or the foregoing requirements is subject to summary denial, among other possible sanctions. In addition, lead counsel for the parties and any counsel who participated in the drafting of the discovery requests, responses, meet and confer correspondence, and joint stipulation (or motion and opposition if no joint stipulation is filed) are ordered to personally attend the hearing on any subsequent discovery motion and be prepared to answer questions as to whether the motion, discovery requests and responses comply with the Rules, including Rule 26(g)(1)(B), as well as the Local Rules. All counsel are further advised that violations of court orders regarding discovery could result in sanctions, up to and including “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action,” “prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters into evidence,” “striking pleadings in whole or in part,” “dismissing the action or proceeding in whole or in part,” “rendering a default judgment against the disobedient party,” and/or “treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.” Rule 37(b)(2)(A).

*13 IT IS SO ORDERED.