*1 On April 14, 2023, Relator Randy Jacobs (“Relator”) filed a Motion to Compel Responses and Production Due to Waiver of Objections (“Motion to Compel” or “MTC”). Electronic Case Filing Number (“ECF No.”) 89, MTC. On April 28, 2023, Defendants Pacific Dermatology Institute, Inc. (“Pacific Dermatology”) and Bradley Mudge (“Mudge”) (collectively, “Defendants”) filed Defendants' Opposition to Relator's Motion to Compel Responses and Production Due to Waiver of Objections (“Opposition” or “Opp'n”). ECF No. 93, Opp'n. On May 1, 2023, Defendants filed an Amended Opposition to Relator's Motion to Compel Responses and Production Due to Waiver of Objections (“Amended Opposition” or “Amended Opp'n”). ECF No. 94, Amended Opp'n. On May 11, 2023, Relator filed a Reply In Support of the Motion to Compel (“Reply”). ECF No. 100, Reply.

After reviewing the parties' arguments, for the reasons set forth in this Order, the Court GRANTS Relator's Motion to Compel.

A. Procedural History

On September 9, 2020, Relator filed a qui tam complaint (“Complaint” or “Compl.”) against Defendants under the False Claims Act (“FCA”), 31 U.S.C. § 3729, et seq., and the California False Claims Act, Cal. Gov't Code § 12651, et seq. ECF No. 1, Compl. at 3. The operative complaint in this case is Relator's First Amended Complaint (“FAC”) filed on September 7, 2023. ECF No. 115, FAC. Discovery was stayed in this case until January 8, 2024 following the parties' briefing of Defendant Pacific Dermatology's Motion to Dismiss, see ECF Nos. 119, 126, 129, which is currently pending before the District Judge. See ECF No. 131, Order Granting Second Joint Stipulation to Extend Dates and Temporarily Stay the Case. The discovery cut-off date in this matter is April 22, 2024. Id.

B. The Disputed Discovery

On October 12 and 13, 2022, Relator sent his Requests for Production of Documents (“First RFPs”) and Interrogatories (“First Interrogatories”) to Defendants. ECF No. 89, MTC at 4. After requesting an extension to respond to the First RFPs and First Interrogatories, Defendants failed to meet the agreed upon extension request; instead producing some documents without responses to Relator's First RFPs in early January 2023. See id. at 5. On February 15, 2023, Defendants responded to the First RFPs and First Interrogatories. Id. at 6.

On February 28, 2023, the Magistrate Judge held an informal discovery dispute conference regarding the lack of Defendants' responses to Relator's First RFPs and First Interrogatories. ECF No. 69, First Minute Order re Discovery Hearing. The First Minute Order re: Discovery Hearing noticed that “Defendants provided responses to Plaintiff's Request for Admissions and provided responses to the Interrogatories in February 2023” and that a further hearing would be held on “the status of Defendants['] responses to the [First] RFPs.” Id.

On March 8, 2023, the Magistrate Judge held a second informal discovery dispute, in which the parties stated that they “met and conferred extensively to determine their next course of action with respect to the production of documents” and “have reached an agreement and if further dispute arises after the documents have been reviewed then they will reach out to the Court.” ECF No. 81, Second Minute Order re Discovery Hearing.

*2 On April 6, 2023, the Magistrate Judge held a third informal discovery dispute conference, and the parties were ordered to brief “the relevant timeframe of responsive documents [the RFPs] propounded on the [D]efendants.” ECF No. 85, Third Minute Order re Discovery Hearing.

In the Motion to Compel, Relator states that on April 12, 2023, “Defendants['] counsel informed Relator that they would be withdrawing the[ir] pre-2017 objection” that “discovery was limited in scope to 2017 due to certain exemplary claim submissions cited in Relator's Complaint.” ECF No. 89, MTC at 3. The Motion to Compel now contends that “[w]hile the pre/post-2017 discovery is no longer at issue ... Relator ... ask[s] the Court to formally acknowledge that all of Defendants' objections to Relator's [F]irst Interrogatories and [RFPs] are waived for untimeliness.” Id. at 4.

C. The Parties' Arguments

In the Motions to Compel, Relator argues that “Defendants' objections to the First Interrogatories and Requests for Production are waived for untimeliness.” Id. First, Relator asserts that the Federal Rules of Civil Procedure (“Fed. R. Civ. P.” or “Rules”) require responses to discovery requests within 30, or in some cases 45 days, and that “failure to object to discovery requests within the time required constitutes a waiver of any objection.” Id. at 6 (citing Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1472 (9th Cir. 1992)).

Second, Relator argues “[e]ven if they are not waived for untimeliness, Defendants' objections would still be waived as improper boilerplate objections.” Id. at 7. For example, Relator asserts that Defendants object on the basis of relevancy, “but do not explain why the requested documents are not relevant.” Id. (emphasis in original). Relator argues that “objections must be stated with specificity, or they are insufficient to reserve that objection.” Id. at 8.

Defendants first argue that Relator's Motion to Compel seeks “an improper advisory opinion” because “Defendants withdrew their temporal objections so there is no active dispute that the Court may resolve.” ECF No. 93, Opp'n at 2. Defendants assert that “[f]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” Id. at 5 (citing Schneider v. Chertoff, 450 F.3d 944, 959 (9th Cir. 2006)). In other words, Defendants argue that Relator lacks standing to bring the Motion to Compel because: (1) “Relator has no injury because there are no documents Defendants are declining to provide”; (2) “Defendants are producing all responsive, non-privileged documents in their possession, custody, and control that can be reasonably located, back to 2010 as requested”; and (3) “a favorable outcome by this court will not cause any further documents or information to be disclosed because none have been withheld.” Id. (emphasis in the original).

Defendants next point out that “Relator fails to identify any request or response which was allegedly ‘hampered,’ nor does he identify any injury that he has allegedly suffered.” Id. Defendants cite several cases in which district courts have declined to address discovery motions that sought relief based on “a hypothetical state of facts,” no concrete dispute, or future discovery disputes because such motions amount to advisory opinions. Id. at 6 (citing Flynn v. Love, Case No. 19-cv-00239, 2023 WL 2744493, at *2 (D. Nev. Mar. 30, 2023), Frias Holding Co. v. Greenberg Traurig, LLP, No. 11-CV-160, 2015 WL 4622591, at *5-6 (D. Nev. Aug. 3, 2015), and Sleep No. Corp. v. Young, No. 20-cv-1507, 2021 WL 5644322, at *8 (D. Minn. Dec. 1, 2021)).

*3 In the Reply, Relator argues that “[i]t is uncontested that binding precedent requires all objections to be deemed waived if the responses are served late.” ECF No. 100, Reply at 3.

Relator rejects Defendants' contention that no responsive documents are being withheld, stating that Defendants “are refusing to look for, search, or produce wide varieties of documents and ESI based on various objections including ‘relevancy,’ ‘discoverability,’ ‘proportionality’ (even based on the 2017 and statute of limitations objections supposedly withdrawn), and ‘privilege[.]’ ” Id. at 4. For example, Relator states that Defendants refused to “review any medical records that were not stored electronically (pre-2017), and they would not obtain or review any ESI prior to 2014,” id. at 4, because of “the costs and burdens associated with searching [those] systems” and Defendants have “ignored all of Relator's proposed custodians and search terms and that they would be searching their ‘own’ search terms and custodians,” id. at 4 n.3 & n.4 (emphasis in the original).

Moreover, Relator points out that Defendants produced a privilege log on the same day they filed their brief, evidencing that “Defendants are still withholding documents based on belated objections.” Id. at 5. Relator argues waiver of objections applies equally to withholding documents based on privilege or work product. Id. (citations omitted).

Further, Relator argues that Defendants conflate “Article III standing and jurisdiction with some supposed limitation on the discretion and power of a [c]ourt to enforce the Rules and manage its docket and the litigation in general.” Id. at 6. Relator contends that while the Court may “decline to rule on matters to preserve judicial resources,” it is appropriate for the Court to rule on the waiver of objections because “courts are allowed to enforce the Rules (and binding precedent) requiring timely discovery responses or a waiver of all objections.” Id. at 8-9. Relator argues “[t]here is no requirement in the Rules or the precedent for the Court to wait for a party to assert a waived objection before declaring that all objections, including privilege, are waived.” Id. at 9.

Finally, Relator argues that “the objections that were belatedly served were boilerplate objections, which are also waived or ineffective under binding precedent” and that “[a]s soon as such objections are served, the parties are entitled to bring them to the Court for adjudication of whether they are ... waived.” Id. at 10.

A. Legal Standard

“The party to whom the [Request for Production] is directed must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). The requesting party “is entitled to individualized, complete responses to each of the [Requests for Production] ..., accompanied by production of each of the documents responsive to the request, regardless of whether the documents have already been produced.” Golden v. Am. Pro Energy, EDCV 16-891-MWF (KKx), 2017 WL 2701920, at *7 (C.D. Cal. June 22, 2017) (citing Louen v. Twedt, 236 F.R.D. 502, 505 (E.D. Cal. 2006)). “Failure to object to requests for production of documents within the time required constitutes a waiver of any objection.” See id. (citing Richmark Corp., 959 F.2d at 1473).

*4 Similarly, under Rule 33, any ground to object to an interrogatory that is not stated in a timely objection is waived unless the court, for good cause, excuses the failure. Fed. R. Civ. P. 33(b)(4). “Courts have the discretion to relieve a late-responding party from the potentially harsh consequences of waiver.” Shacar v. Trans Union LLC, Case No. CV20-11115 AB (RAOx), 2021 WL 6496405, at *3 (C.D. Cal. Sept. 22, 2021). “To determine whether there is good cause to find objections are not waived, courts consider (1) the length of delay, (2) the reason for delay, (3) the existence of bad faith, (4) the prejudice to the party seeking waiver, (5) the nature of the request, and (6) the harshness of imposing sanctions.” Id. (internal quotation marks and citations omitted).

Further, absent an appropriate and specific assertion of an objection, an objecting party waives it. See Green Payment Sols., LLC v. First Data Corp., No. CV 18-1463 DSF (ASx), 2018 WL 6333696, at *2 (C.D. Cal. Oct. 30, 2018) (stating that “[t]o the extent that [an] objection was included in Plaintiff's boilerplate objections to the Requests, they were too general to merit consideration and are therefore waived”).

B. Analysis

To determine whether there is good cause to find objections are not waived, courts consider (1) the length of delay, (2) the reason for delay, (3) the existence of bad faith, (4) the prejudice to the party seeking waiver, (5) the nature of the request, and (6) the harshness of imposing sanctions.

After careful review of the parties' briefing and relevant law, the Court finds that Defendants' objections to the First RFPs and Interrogatories are waived after applying the six factors set out in Shacar, 2021 WL 6496405, at *3.

Here, Relator propounded the First RFPs and Interrogatories on Defendants in October 2022, and without excuse or explanation, Defendants served responses “on February 15, 2023, over three months after the original deadline and a month and a half after the agreed-upon extension deadline[.]” ECF No. 89, MTC at 6 (emphasis in the original). This is a significant delay of time, and this was in addition to an extension Relator's counsel had already provided. Moreover, there was no reason provided for this delay in providing responses to the RFPs and Rogs at issue and Defendants' contention that they have “been working consistently” since this issue was raised to the Magistrate Judge does not explain their failure to timely respond before court-intervention was necessary. ECF No. 93-1, Declaration of Elizabeth A. Mitchell in Support of Opposition (“Mitchell Decl.”) at ¶ 2. Consequently, these two factors weigh heavily in finding the objections were waived.

As to the third factor, the existence of bad faith, the Court has no basis to conclude the delay in responding was as the result of any bad faith on Defendants' part. Consequently, this factor weighs in Defendants' favor.

As to the fourth factor, prejudice to Relator, Defendants argue “Relator has no injury because there are no documents Defendants are declining to produce,” ECF No. 93, Opp'n at 5, but have raised “various objections including ‘relevancy,’ ‘discoverability,’ ‘proportionality’ (even based on the 2017 and statute of limitations objections supposedly withdrawn), and ‘privilege’ ” when searching for and reviewing records responsive to Relator's requests, see ECF No. 100, Reply at 2. The prejudice to Relator is that Defendants are free to assert the objections at any time, thereby further withholding discovery and requiring Relator to raise the issue of the objections, which are already waived, to the Court again to recover materials that should have been produced.

*5 For example, Defendants state they “are producing all responsive, non-privileged documents,” ECF No. 93, Opp'n at 5 (emphasis added), and “produced a privilege log showing all the documents they were withholding for privilege,” ECF No. 100, Reply at 5. Thus, Defendants are standing on a previous assertion of privilege despite arguing “a favorable outcome by this court will not cause any further documents or information to be disclosed because none have been withheld.” ECF No. 93, Opp'n at 5 (emphasis in the original). And though the discovery deadline in this matter has been extended to April 2024, after the matter was stayed through January 2024, it appears that certain materials are still being withheld as a result of asserted objections and privileges and other bases to withhold materials. Consequently, this factor weighs in favor of Relator.

Finally, as to the nature of the request and the harshness of finding waiver, given that Defendants claim to be willing to produce all documents, then finding a waiver of objections would not be unduly harsh.

In addition to the waiver, any boilerplate objections asserted are ineffectual and shall not be a basis to withhold materials.

Finally, Defendants' argument that a ruling on this motion would be advisory or does not relate to a live controversy is not persuasive. See ECF No. 93, Opp'n at 4-6. The Motion to Compel does not seek a “general form[ ] of relief that prospectively limit[s] discovery” as in Frias, 2015 WL 4622591, at *6; nor does it involve “guidance with respect to future discovery disputes,” Sleep No. Corp., 2021 WL 5644322, at *8. The Motion to Compel seeks redress for Defendants' violation of the Rules and materials that appear to have been withheld on the basis of the untimely asserted objections. Defendants' reliance on Flynn, 2023 WL 2744493, at *2 is also misplaced. That case involved “an intervenor plaintiff who conceded it ‘has not been part of the[ ] discovery disputes’ between Plaintiffs and Defendants,” 2023 WL 2744493, at *2, and a request that “would result in an opinion advising what the law would be upon a hypothetical state of facts,” id. Here, however, the facts are not hypothetical, and the law is clear: Defendants failed to serve timely responses, and therefore their objections are waived when the various factors are taken into consideration. Richmark Corp., 959 F.2d at 1472 (“It is well established that a failure to object to discovery requests within the time required constitutes waiver of objection.”).

For the reasons set forth above, Relator's Motion to Compel is GRANTED, and any objections asserted in Defendants' responses to the First RFPs and Interrogatories are waived.

IT IS SO ORDERED.