Gutierrez v. Converse Inc.
Gutierrez v. Converse Inc.
2024 WL 2106952 (C.D. Cal. 2024)
May 2, 2024
Rocconi, Margo A., United States Magistrate Judge
Summary
The court addressed a dispute between the plaintiff and defendant over the production of ESI in a privacy lawsuit. The court granted the defendant's motion to compel in part and denied it in part, ordering the plaintiff to produce relevant documents and information related to their litigation history and the defendant's use of chat features on their website. The court also clarified the format in which the ESI should be produced and addressed other discovery disputes between the parties.
Additional Decisions
Nora Gutierrez
v.
Converse Inc. et al
v.
Converse Inc. et al
Case No. 2:23-cv-06547-KK-MAR
United States District Court, C.D. California
Filed May 02, 2024
Counsel
Robert Tauler, Wendy L. R. Miele, Betsy Tauler, Narain A. Kumar, Tauler Smith LLP, Los Angeles, CA, Camrie M. Ventry, Tauler Smith LLP, Dallas, TX, for Plaintiff.Samuel C. Cortina, Samuel C. Cortina, Los Angeles, CA, Livia M. Kiser, Michael Richard Panek, Michael Dietz Roth, King and Spalding LLP, Los Angeles, CA, for Defendant.
Yegishe Erik Manukyan, Morrison Foerster LLP, Los Angeles, CA, for Interested Party.
Rocconi, Margo A., United States Magistrate Judge
Proceedings: (In Chambers) ORDER RE: MOTIONS TO COMPEL, DKTS. 46 AND 54
I.
BACKGROUND
*1 On July 5, 2023 Plaintiff Nora Gutierrez (“Plaintiff”) filed a class action complaint against Converse Inc. (“Defendant”) in Los Angeles Superior Court alleging violations of California's Invasion of Privacy Act (“CIPA”) and Comprehensive Computer Data Access and Fraud Act (“CDAFA”). ECF Docket No. (“Dkt.”) 1-1 (“Compl.”). Defendant removed the action to federal court on August 10, 2023 on the basis of diversity jurisdiction. Dkt. 1.
On October 27, 2023, the district judge granted Defendant's motion to dismiss in part, dismissing Plaintiff's CDAFA claim and Plaintiff's CIPA claim under a theory of direct liability; the court denied the motion to dismiss with respect to Plaintiff's CIPA claim under an aiding and abetting liability theory. Id. at 8. As relevant to this claim, Plaintiff alleges as follows: Plaintiff visited Defendant's website and used its “chatbox” feature whereby customers can communicate directly with Defendant. Compl. ¶ 8. Unbeknownst to Plaintiff, the website contained code that intercepts and diverts messages from the chatbox to third-party companies. Id. ¶ 9. Third-party companies are thereby able to eavesdrop on the website's users in real time and store the users' information for the companies' own purposes. Id. ¶¶ 10, 13–14. While the website's privacy agreement discloses certain types of information that Defendant collects, Defendant does not otherwise inform the website's users that their communications were being monitored or stored in this manner, nor did Defendant seek Plaintiff's consent for third party companies to record and surveil her conversations. Id. ¶¶ 8, 11–16.
On April 2, 2024, Defendant filed a motion to compel seeking further responses on certain requests for production (“RFPs”) and interrogatories. Dkt. 46. The motion is before the Court on the parties' joint stipulation, Dkt. 46-1 (“Def. Joint Stip.”), and the parties' supplements, Dkt. 52 (“Def. Suppl. to Def. Mot.”) and Dkt. 53 (“Pl. Suppl. to Def. Mot.”). On April 10, 2024, Plaintiff filed their own motion to compel, Dkt. 54, before the Court upon another joint stipulation, Dkt. 54-1 (“Pl. Joint Stip.”), and supplements, Dkt. 65 (“Def. Suppl. to Pl. Mot”) and Dkt. 66 (“Pl. Suppl. to Pl. Mot.”).[1]
*2 The Court finds these matters suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); Local Rule 7-15. Accordingly, the May 1, 2024 hearing is VACATED. For the reasons discussed below, the Motions are GRANTED in part and DENIED in part.
II.
GENERAL STANDARD
Generally, under the Federal Rules of Civil Procedure,
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. Information within this scope of discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Relevancy is broadly defined to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, a court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
“A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed. R. Civ. P. 37(a)(4). “In moving to compel the production of documents, the moving party bears the burden of demonstrating ‘actual and substantial prejudice’ from the denial of discovery.” Grossman v. Dirs. Guild of Am., Inc., No. EDCV 16-1840-GW (SPx), 2018 WL 5914242, at *4 (C.D. Cal. Aug. 22, 2018) (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)). In other words, the moving party bears the burden of demonstrating the sought discovery is relevant. Cabrales v. Aerotek, Inc., No. EDCV 17-1531-JGB-KKX, 2018 WL 2121829, at *3 (C.D. Cal. May 8, 2018). In addition, “[r]elevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)).
However, ultimately, “[i]t has long been settled in this circuit that the party resisting discovery bears the burden of showing why discovery should not be allowed.” United States ex rel. Poehling v. UnitedHealth Grp., Inc., No. CV 16-8697 MWF (SSX), 2018 WL 8459926, at *9 (C.D. Cal. Dec. 14, 2018) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”)).
III.
DISCUSSION
A. DEFENDANT'S MOTION TO COMPEL
1. Def. RFP No. 11
a. RFP and Response
*3 Def. RFP No. 11:
All DOCUMENTS relied on by YOU to prepare the COMPLAINT, INCLUDING copies of the code YOU included in the Complaint and any COMMUNICATIONS with any individuals, including any experts, regarding the allegations in the COMPLAINT.
Pl. Response to RFP No. 11:
Objection, this Request is outside the scope of discovery because the documents sought are not relevant to any party's claim or defense, or 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. 26(b)(1)).
Objection, this Request seeks information protected by the attorney-client privilege and/or work product doctrine.
Objection this Request seeks to discover the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation, and is thus protected from disclosure under the work product doctrine. See Fed. R. Civ. P. 26(b)(3)(B).
Def. Joint Stip. at 13.
b. Analysis
In addition to the relevance and privilege objects asserted in their response, Plaintiff also argues that Defendant failed to adequately meet and confer on this issue because they never explicitly cited RFP No. 11 in their meet and confer letter, conference calls, or the email to this Court requesting an informal discovery conference. Def. Joint Stip. at 17–19. However, both the meet and confer letter and the email requesting an informal discovery conference explicitly discuss the issue of whether Plaintiff must produce documents referenced in the Complaint. See Declaration of Samuel C. Cortina in Support of Defendant's Motion to Compel (“Cortina Decl. ISO Def. Mot.”) ¶ 2, Ex. A at 5–6; Declaration of Narain Kumar in Support of Defendant's Motion to Compel (“Kumar Decl. ISO Def. Mot.”) ¶ 3, Ex. 2. Defendant also asserts that the parties had an extensive telephonic conference on February 2 where they discussed Defendant's request that Plaintiff produce all documents cited or relied upon to support her allegations. Cortina Decl. ISO Def. Mot. ¶ 13. The Court finds that there is sufficient evidence to conclude that Defendant adequately raised the issue as to fulfill their obligations under Local Rule 37-1.
Moving next to Plaintiff's objection as to relevance, the Court finds the objection unpersuasive. Documents that Plaintiff either explicitly referenced or directly relied upon to draft their Complaint are, by definition, relevant under Rule 26. Indeed, Plaintiff must agree that these documents are relevant to allegations made in the Complaint—if they were not relevant to Plaintiff's claims, Plaintiff would not have referenced or relied upon them. Indeed, as Defendant notes, Plaintiff indicated in her initial responses that she may rely upon the documents mentioned in the Complaint, and that these documents are within her possession, custody, and control. Cortina Decl. ISO Def. Mot. ¶ 9, Ex. H at 4.
*4 As an example, Defendant argues that Plaintiff must produce the “code” that she relies on and includes in the Complaint. Def. Joint Stip. at 15. Defendant argues that the metadata of the file will allow them to determine the exact date the code was copied from its website, which could be relevant to the issue of whether Plaintiff may have implicitly consented to Defendant's conduct regarding her data. Id. Plaintiff argues that the code will not reveal any pertinent information about Plaintiff's knowledge, and that, in any case, Defendant's argument misconstrues the issue of consent. Id. at 20–21. This whole issue is a bit of a red herring. As noted above, whatever documents Plaintiff referenced in and relied upon to draft the Complaint are definitionally relevant to Plaintiff's allegations—whether Defendant is able to glean particular information from those documents, and whether Defendant will be able to use that information successfully, does not alter this conclusion.
The parties also dispute what electronic format the code and other documents should be produced in. To be sure, Plaintiff is correct that Rule 34 permits them to object to Defendant's requested format. Fed. R. Civ. P. 34(b)(D). However, Defendant is also correct that Plaintiff may not unilaterally refuse the format that the request defines; rather, as with any objection to a discovery request, the receiving party must raise the issue in their responses and the parties must meet and confer on the issue. Fed. R. Civ. P. 34(b)(E)(i); see also Fed. R. Civ. P. 34(b) advisory committee note to 2006 amendment (“If the requesting party is not satisfied with the form stated by the responding party, or if the responding party has objected to the form specified by the requesting party, the parties must meet and confer under Rule 37(a)(2)(B) in an effort to resolve the matter before the requesting party can file a motion to compel.”). Arguably, Plaintiff waived an objection as to the format by failing to raise it earlier. However, the Court acknowledges that the dispute as to the format issue may not have been apparent until the parties met and conferred and reached the specific issue of the code.
To save time and potentially prevent the parties from seeking court intervention down the line, the Court will rule on the issue: Plaintiff should produce the “code” and any other responsive documents in the unaltered format in which they were originally obtained. If it is not possible to determine when the documents were originally obtained, the documents should be produced in the unaltered format in which they are currently being kept by Plaintiff. This is consistent with language from the advisory committee note to Rule 34, and should alleviate both Plaintiff's concerns about potential confusion or burden resulting from Defendant's requested format and Defendant's concerns about any attempt by Plaintiff to alter the metadata. See id. (“The default forms of production to be used when the parties do not agree on a form and there is no court order are changed in part. As in the published proposal, one default form is “a form or forms in which [electronically stored information] is ordinarily maintained.”). The Court anticipates that the parties will work together to resolve any disputes that arise from the format issue, which, in the Court's view, should be a rather straightforward logistical hurdle that should not necessitate refereeing from this Court; the Court will issue appropriate sanctions on one or both parties if the issue should be brought before the Court again.
Finally, Plaintiff argues that Defendant's request for documents “relied on to draft the Complaint” goes beyond seeking documents explicitly referenced in the Complaint to include legal research and other documents that would implicate attorney-client privilege and the work product doctrine. Def. Joint. Stip. at 20–21. However, Defendant does not appear to be seeking the types of documents that Plaintiff seeks to protect. Defendant has made clear that they do not seek communications between Plaintiff and their attorney. Def. Suppl. to Def. Mot. at 5; Cortina Decl. ISO Def. Mot. ¶ 13. Rather, Defendant seeks the underlying factual support for allegations made in the Complaint, which they believe could include expert materials referenced by Plaintiff's counsel or allegations made in communications between Plaintiff and a family member who has been involved in similar litigation. Id. Because Plaintiff has not identified any specific documents in a privilege log, the Court cannot rule on any specific objections as to attorney-client privilege or the work product doctrine. However, any purely factual documents relied upon to draft the Complaint would not necessarily be protected by attorney-client privilege or work-product just because they may have been communicated by an attorney at some point. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (noting that “privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney”); E.E.O.C. v. Caesars Ent., Inc., 237 F.R.D. 428, 433 (D. Nev. 2006) (noting that the attorney-client privilege does not “prevent the disclosure [of] facts communicated by an attorney to a client that the attorney obtained from independent sources.”).
*5 Ultimately, in the Court's view, Defendant's request is clear, and Plaintiff's objection appears misplaced. Plaintiff should provide any documents that they “relied on” to draft the Complaint, including documents explicitly referenced in the Complaint, as well any other factual documents that form the basis of Plaintiff's allegations but are not explicitly referenced in the Complaint. Defendant does not seek, nor does the request obviously implicate, confidential communications between Plaintiff and their attorney, previous drafts of the Complaint, legal research memoranda, or other attorney work product. Should any factual document also implicate the attorney-client privilege or work product doctrine—perhaps because it references confidential communications or contains an attorney's notes or something similar—Plaintiff should properly describe the document and the objection in a privilege log. See Fed. R. of Civ. P. 26(b)(5).[2]
Having found that all of Plaintiff's objections are without merit, the Court GRANTS Defendant's motion to compel with respect to RFP No. 11.
2. Def. RFP Nos. 12 and 13
a. RFPs and Responses
Def. RFP No. 12:
All DOCUMENTS and COMMUNICATIONS RELATING TO any money paid to YOU or YOUR immediate family (spouse, parents, siblings, children) RELATING TO a claim under the California Invasion of Privacy Act.Pl. Response to RFP No. 12:Objection, this Request is outside the scope of discovery because the documents sought are not relevant to any party's claim or defense, or 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. 26(b)(1)).Objection, this Request seeks information protected by the attorney-client privilege, work product doctrine, and/or confidential legal settlements and proceedings.Objection this Request seeks to discover the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation, and is thus protected from disclosure under the work product doctrine. See Fed. R. Civ. P. 26(b)(3)(B).
Def. RFP No. 13:All DOCUMENTS and COMMUNICATIONS RELATING TO any claim YOU or YOUR immediate family (spouse, parents, siblings, children) has asserted against any company other than CONVERSE for violation of the California Invasion of Privacy Act.Pl. Response to RFP No. 13:Objection, this Request is outside the scope of discovery because the documents sought are not relevant to any party's claim or defense, or 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. 26(b)(1)).
*6 Subject to and without waiving the foregoing objections, Responding Party answers as follows: No such documents exist.
Def. Joint Stip. at 26–27.
b. Analysis
With RFP Nos. 12 and 13, Defendant seeks to obtain documents related to other CIPA actions Plaintiff has brought against other companies, which both parties appear to agree exist. Plaintiff appears to object to these requests primarily on relevance grounds. Defendant argues that these documents may be relevant to the issues of whether Plaintiff's prior knowledge could constitute implicit consent to Defendant's conduct regarding her data and whether Plaintiff or her counsel are adequate class representatives. Def. Joint Stip. at 27–30. Indeed, Defendant cites several cases to support their arguments that documents related to Plaintiff's litigation history should be discoverable as potentially relevant information to the issues of consent and class certification. See Moledina v. Marriott Int'l, Inc., 635 F. Supp. 3d 941, 952 (C.D. Cal. 2022) (finding consent under Privacy Act where the plaintiff's conduct demonstrated, among other things, he “wanted the call to be recorded”) (emphasis in original); Torres v. Nutrisystem, Inc., 289 F.R.D. 587, 594 (C.D. Cal. 2013) (if the caller “expected the calls to be recorded” then he or she “may have implicitly consented to the recording by the very act of making the call”); Wuest v. My Pillow, Inc., No. 18-03658 WHA, 2019 WL 3577176, at *3 (N.D. Cal. Aug. 6, 2019) (reviewing serial plaintiff's litigation history to determine that she would not adequately represent a class based on her “pattern of using the threat of class actions to extract an undeserved premium on an individual claim.”); Sapan v. Diamond Resorts Holdings, LLC, No. 8:23-00147-DOC-ADSX, 2023 WL 8229984, at *3 (C.D. Cal. Oct. 6, 2023) (noting “that a plaintiff's serial litigant status is one relevant characteristic a court may consider when making the adequacy determination for class certification” and granting motion to compel discovery into the plaintiff's serial litigant status “that would allow Defendant to develop facts that could show Plaintiff was abusing the class action device to extract settlement premiums, or facts along the lines that Plaintiff somehow manufactures TCPA injuries”).
While Plaintiff attempts to distinguish these cases, the Court finds that Plaintiffs arguments go beyond the issue of relevance and discoverability and largely go toward contesting the merits of Defendant's theories. See Def. Joint Stip. at 6–8; Pl. Suppl. to Def. Mot. at 2–6. In order to show that the documents are relevant under Rule 26's standard, Defendant need not show, and this Court need not determine, that the district court will find the documents persuasive or determinative or that Defendant's arguments will ultimately be successful. See Bird v. PSC Holdings I, LLC, No. 12-CV-1528 W (NLS), 2013 WL 12108107, at *3 (S.D. Cal. Nov. 20, 2013) (“This Court is currently not in the position to determine the merits or possible success of a defense posited by Defendants. Rather, this Court need only determine whether the sought information is relevant and discoverable.”). Defendant need only establish that documents relate to any matter that bears on, or that reasonably could lead to other matters that could bear on any issue that is or may be in the case. See Oppenheimer Fund, Inc., 437 U.S. at 351. The cases that Defendant cites demonstrate, at the very least, that documents concerning Plaintiff's litigation history are something the district court may consider in the context of class certification, and that the documents could, in theory, bear on Defendant's argument regarding implied consent. Plaintiff will have more opportunities to contest the merits of Defendant's arguments, but Defendant should at least have a chance to make them with the benefit of evidentiary support. Notably, Plaintiff cites no authority to support her own assertion that the discovery should not be allowed here, nor has Plaintiff explained how the burden imposed renders the discovery not proportional to the needs of the case. Under these circumstances, the Court finds that RFP Nos. 12 and 13 appear to seek discoverable information within the scope of Rule 26.
*7 While Plaintiff does not devote significant argument to their privilege and work-product doctrine objections, the Court acknowledges that some documents concerning prior litigation may obviously implicate privilege or the work-product doctrine. However, as noted above, because Plaintiff has not provided a privilege log, the Court cannot rule on specific privilege or work-product objections. As the Court noted above, Plaintiff should properly describe the any allegedly privileged document and the scope of the objection in a privilege log. See Fed. R. of Civ. P. 26(b)(5).[3]
*8 For the foregoing reasons, Defendant's motion to compel is GRANTED with respect to RFP Nos. 12 and 13.
3. Def. Interrogatory No. 10
a. Interrogatory and response
Def. Interrogatory No. 10:
IDENTIFY all companies other than CONVERSE against whom YOU have asserted a claim (whether formally, informally, directly, indirectly, individually, collectively, or as a class member) for violation of the California Invasion of Privacy Act and DESCRIBE how each claim was resolved (or its current status).Pl. Response to Interrogatory No. 10:Objection, this Interrogatory is irrelevant and outside the scope of discovery because it seeks information which is not 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 the 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. 26(b)(1)).
Objection, this Interrogatory is overbroad, unduly burdensome, vague, and ambiguous because it seeks information concerning each case where Plaintiff was a class member in a putative class, including entirely unrelated cases where Plaintiff was an absent class member and represented by other firms. Plaintiff has no reasonable way of identifying all such cases that may have been filed.
Subject to and without waiving the foregoing objections, in Response to Defendant's Request for Production No. 7 Plaintiff has agreed to produce a copy of every complaint filed on her behalf alleging a violation of the California Invasion of Privacy Act.
Def. Joint Stip. at 37–38.
b. Analysis
Like RFP Nos. 12 and 13, Interrogatory No. 10 seeks information about Plaintiff's litigation history with respect to CIPA claims. Plaintiff objects on the grounds of relevance and ambiguity/undue burden. The parties' arguments regarding relevance are substantially similar to those made regarding RFP Nos. 12 and 13. Therefore, for the reasons discussed above, the Court find that Interrogatory No. 10 does seek discoverable information within the scope of Rule 26.
With respect to the ambiguity/burden argument, Plaintiff appears to primarily dispute the portion of the interrogatory that appears to seek information about cases where Plaintiff may be an involuntary class member. Def. Joint Stip. at 40. Plaintiff also argues that Defendant has not adequately described how Plaintiff would “describe how each claim was resolved (or its current status),” and that navigating any implicated confidentiality provisions, notification provisions, and necessary redactions will entail an undue burden. Id. at 40–41. However, Defendant appears to concede that they are only “seeking identification of the claims that Plaintiff has personally asserted against companies (including through her counsel, which is defined in Converse's definition of ‘YOU’), whether through a demand letter or a formal lawsuit, and the resolution (meaning the settlement terms and distribution of settlement funds) or status of those claims.” Id. at 39. The Court finds that this definition of the scope of the request is not ambiguous or unduly burdensome—it seeks very limited identifying information about a defined subset of lawsuits. To the extent Plaintiff would argue that so many lawsuits would be implicated that it would be unduly burdensome for Plaintiff to compile this limited information or navigate potential confidentiality provisions, Plaintiff has failed to sustain her burden on this objection—which she may have done by estimating how many lawsuits would be implicated, for example. To the extent Plaintiff has confidentiality concerns with respect to this action, these concerns are typically mitigated by a stipulated protective order, one of which is already in place in this action. Dkt. 45; see, e.g., In re Heritage Bond Litigation, 2004 WL 1970058, *5 n.12 (C.D. Cal. July 23, 2004) (finding that privacy concerns can be adequately protected by a protective order); Skye Orthobiologics, LLC v. CTM Biomedical, LLC, No. CV-20-3444-MEMF-PVCX, 2022 WL 17345909, at *6 (C.D. Cal. Oct. 26, 2022) (same).
*9 Accordingly, Defendant's motion is GRANTED in part, rewritten as follows:
IDENTIFY all companies other than CONVERSE against whom YOU have personally asserted claims for violation of the California Invasion of Privacy Act (including through your counsel, which is defined in Converse's definition of ‘YOU’), whether through a demand letter or a formal lawsuit, and the resolution (meaning the settlement terms and distribution of settlement funds) or status of those claims (i.e., whether there is a pending demand letter or formal lawsuit).
B. PLAINTIFF'S MOTION TO COMPEL
1. Pl. RFP No. 1
a. RFP and response
Pl. RFP No. 1:
All DOCUMENTS which refer to, evidence or reflect all agreements and/or contracts between YOU and any CHAT PROVIDER for the WEBSITE during the RELEVANT PERIOD.Def. Response to RFP No. 1:Converse incorporates its General Objections into its Response to this Request as if fully set forth herein. Converse objects to this Request as overly broad, unduly burdensome, and not proportionate to the needs of the case to the extent it seeks “all agreements and/or contracts” between Converse and “any CHAT PROVIDER” that are unrelated to the allegations in the Complaint. Converse further objects to this Request on the ground that the phrase “[a]ll DOCUMENTS which refer to, evidence or reflect all agreements and/or contracts” is overbroad, unduly burdensome, vague, ambiguous, and capable of various interpretations. Converse also objects to this Request on the ground that the word “evidence” is vague, ambiguous, and subject to multiple meanings, and it impermissibly seeks work product to the extent it seeks a legal conclusion regarding which documents legally constitutes evidence.
Subject to and without waiving the foregoing objections, Converse states that the only relevant contracts are with Salesforce and it will conduct a reasonably diligent search for and produce responsive, non-privileged communications between Converse and Salesforce related to the CHAT FEATURE on the Converse website.
Pl. Joint Stip. at 14.
b. Analysis
Here, the parties do not dispute that Defendant has already produced all agreements with Salesforce, the company that provides and enables the software Converse licenses for the chat feature, from the period from July 2021 to January 2024. See Pl. Joint Stop. At 41–45. Rather, the parties dispute whether Defendant must provide subsequent “order forms” relating to the current chatbot services Defendant is paying Salesforce to provide on Defendant's website. Id. Plaintiff argues that Defendant must provide all forms relevant to the class period, which, as per the class definition in the Complaint, runs from the beginning of the statute of limitations period through “the present,” which Plaintiff presumes would be “at least the close of fact discovery.” Id. at 41. Defendant argues that their proposed compromise on the time period—from July 2021 to July 2023—is sufficient because it covers the period during which Plaintiff herself interacted with the website, and that requiring Defendant to continue to produce order forms through the end of discovery could require unending document searches and productions. Id. at 43.
*10 As an initial matter, the Court finds persuasive Defendant's argument that Plaintiff is not automatically entitled to all discovery throughout the class period alleged in their Complaint. At this stage, the district judge has not yet certified a class or defined a class period. Accordingly, Plaintiff's definition of the class period is based solely on her own definition in the Complaint. Therefore, under Plaintiff's logic, putative class action litigants would be able to unilaterally determine the temporal scope of permissible discovery by defining an arbitrary period of time, even if that period of time was divorced from the concrete allegations in the complaint. As other courts have noted, there is no such default rule, and such a rule would be impractical. See Chow v. SentosaCare, LLC, No. 19-CV-3541-FB-SJB, 2020 WL 5623976, at *4 n.1 (E.D.N.Y. July 21, 2020) (rejecting similar argument, noting that, “[taking the argument] to its logical conclusion, any alleged class period would automatically entitle a Plaintiff to discovery for that entire period on ‘relevancy’ grounds. No such default rules regarding the temporal scope of discovery exist.’ ”).
However, just because Plaintiff is not entitled to unilaterally define the scope of permissible discovery with their alleged class period does not mean that Plaintiff is not entitled to any class-wide discovery beyond the scope of the allegations specific to her. Indeed, just as Plaintiff may not unilaterally define a broad scope of discovery, Defendant may not unilaterally define a narrow one before the district judge has had the opportunity to certify a class. See Allen v. Similasan Corp., No. 12-CV-376-BAS JLB, 2014 WL 2212120, at *2 (S.D. Cal. May 27, 2014) (addressing the defendant's argument that the end date for responsive discovery should be determined by the statute of limitations period applicable to the named plaintiffs' allegations, noting that “class certification is more appropriately addressed at the class certification stage, not as an issue in discovery ... The prospective class in question may or may not remain open, but Defendant may not decide it as a basis to deny discovery.”). Rather, just as in non-class actions, courts look to the allegations in the complaint to determine the permissible scope of discovery and apply the standards embodied in Rule 26, “balancing the nature of the claims, the relevance and nature of the information sought, and the burden of producing the information, among other things.” Chow, 2020 WL 5623976, at *4.
Here, while Plaintiff only alleges that she herself interreacted with Defendant's website on a single occasion, Plaintiff makes class-wide allegations that Defendant has repeatedly and continues to violate the CIPA. See Compl. Indeed, Plaintiff seeks an injunction enjoining Defendant from continuing to engage in the conduct alleged in the Complaint. Id. at 10. Courts have allowed discovery up and until “the present” when putative class-action plaintiffs alleged ongoing conduct and sought injunctive relief. Allen, 2014 WL 1672594, at *1–*2 (rejecting defendant's argument that discovery period should end with the expiration of the statute of limitations period, finding relevant discovery period should extend up and through the present day because plaintiffs alleged ongoing conduct, plaintiffs sought injunctive relief); Hawkins v. Kroger Co., No. 15CV2320-JM(BLM), 2019 WL 4416132, at *6–*7 (S.D. Cal. Sept. 16, 2019) (applying Allen's reasoning where the complaint alleged ongoing misconduct and sought injunctive relief). This Court finds the reasoning of Allen and Hawkins persuasive and concludes that discovery until “the present” is relevant to Plaintiff's claims.
The Court is similarly unpersuaded by Defendant's burden argument, that allowing discovery up and through “the present” could result in unending, daily searches for relevant documents. As reflected in the cases above, courts regularly allow discovery up and through “the present”; it simply cannot be that defining the discovery period to extent to “the present” is per se unreasonable. Indeed, defining the discovery period this way will not result an obligation to engage in infinite searches because the obligation would end with the conclusion of fact discovery in this case. In any case, even assuming that defining the discovery period this way could require an unreasonable number of searches in certain circumstances, it does not appear to be the case here. Plaintiff is not asking for Defendant to engage in continuous daily searches to supplement their response to RFP No, 1; Plaintiff is simply seeking the “order forms” that cover the period up to and including the current date. Given that the discovery deadline is quickly approaching in this case, this will likely entail one or two subsequent searches at most—one of which they likely have already completed, given that the period for the next “order form” began before Defendant made their production. Defendant has not sufficiently explained why this would constitute an undue burden. Accordingly, Defendant's objection as to burden is overruled. See Allen, 2014 WL 1672594, at *2 n.2 (finding that the defendant had not sufficiently established that allowing discovery up until the present would be an “unduly burdensome and unsustainable never-ending discovery obligation.”). Therefore, Plaintiff's Motion is GRANTED with respect to RFP No. 1.
2. Pl. RFP No. 4
a. RFP and response
*11 Pl. RFP No. 4:
All DOCUMENTS reflecting communications between YOU and any CHAT PROVIDER for the WEBSITE during the RELEVANT PERIOD.Def. Response to RFP No. 4:Converse incorporates its General Objections into its Response to this Request as if fully set forth herein. Converse objects to this Request as overly broad, seeking information not relevant to the subject matter of this action, and not reasonably calculated to lead to the discovery of admissible evidence as it seeks “[a]ll DOCUMENTS reflecting communications” between Converse and “any CHAT PROVIDER,” irrespective of the content of the requested communications or whether the communications are related to any claims or defenses in this case. Converse further objects to this Request on the ground that the phrase “[a]ll DOCUMENTS reflecting communications” is vague, ambiguous, and capable of various interpretations. Converse further objects to this Request to the extent it seeks information protected by attorney-client privilege and/or work product doctrine.
Counsel for Converse met and conferred with counsel for Plaintiff about this Request, and understand that Plaintiff agrees the scope of the Request should be limited to non-privileged communications between Converse and any CHAT PROVIDER regarding California's privacy requirements.
Subject to and without waiving the foregoing objections, Converse states that it will conduct a reasonably diligent search and produce responsive, non-privileged communications between Converse and Salesforce regarding California privacy laws, if any, consistent with the parties' meet and confer discussions.
Pl. Joint Stip. at 14–15.
b. Analysis
Plaintiff argues that Defendant's response to RFP No. 4, as well as their responses to several other RFPs and Interrogatories, are insufficient because they have adopted an impermissibly narrow definition of the term “chat provider.” Pl. Joint Stip. at 25–30. Specifically, Plaintiff argues that Defendant must provide all information concerning Arvato Digital Services Canada, Inc., Defendant's customer service provider that provides staff who communicate with website visitors using the chatbox at issue in this action. Id. Defendant argues that Plaintiff's definition of the term “chat provider” does not include Arvato because it only refers to the party or parties who provided the software for the chatbox widget. Id. at 30–34. Defendant notes that Salesforce is the sole entity who provides the chatbox software, and therefore argues that, by providing responsive documents with respect to Salesforce, they have sufficiently responded to RFP No. 4 and Plaintiff's other requests seeking information about any “chat provider.” Id.
There are at least three definitions relevant to this dispute. Plaintiff defines the term “chat” as the “conversations enabled by the CHAT FEATURE available on the WEBSITE.” Id. at 18. Plaintiff defines the term “chat feature” as “the software available on the WEBSITE that enables visitors to communicate with the WEBSITE and/or DEFENDANT.” Id. Plaintiff defines the term “chat provider” as “any third-party that enables or provides the CHAT feature, widget and/or capabilities on YOUR WEBSITE.” Id. The Court finds that, under a plain reading of these definitions, the third-party that provides staff to respond to “chats” through the “chat feature” would obviously fall under the definition of “chat provider,” as the customer service representatives that interact with website visitors via the “chat feature” obviously “enable” the “chat feature” or its capabilities; indeed, the “chat feature” would not operate without someone responding to the “chats” sent by website visitors. To the extent that the term “chat provider” could more reasonably refer to the provider of the software than it could to the agency interacting with the software, the definition does not limit itself to refer to a single third-party. Of course, Plaintiff would have had no way to know that Defendant contracts with two different third parties in order to operate the chatbox from their website.
*12 As far as whether information about Arvato would be relevant, the Court acknowledges that Plaintiff's claim centers around alleged code that captures and stores data from the chatbox, and thus Salesforce, being the software provider, would be the primary relevant third-party here. However, Plaintiff argues that information about Arvato may reveal that they were involved in scheme resulting from the alleged wiretapping, and, even if they were not, information about Arvato and its staff are relevant to the facts of this case given their role as the recipients of the chats at issue and operators of the chatbox at issue. Pl. Joint Stip. at 28–29. Specifically, Plaintiff notes that the CIPA statute has a geographical component that may make it relevant where the recipients of the chats were physically located when the alleged wiretapping occurred; Plaintiff notes that Defendant knows this, as evidenced by their own inquiries into Plaintiff's geographic location. Id.; see also Cal. Pen. Code § 631(a) (“...while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state”). Ultimately, the Court finds that Plaintiff has met Rule 26's low burden to establish that information about Arvato may bear on or lead to information that bears on disputed issues in this case. Defendant does not otherwise object based on proportionality or burden. Accordingly, Plaintiff's Motion is GRANTED with respect to RFP No. 4. To the extent information about Arvato is responsive to other RFPs and Interrogatories, Defendant should supplement their responses accordingly.
3. Pl. RFP No. 5
a. RFP and response
Pl. RFP No. 5:
All DOCUMENTS reflecting YOUR privacy policies and internal controls for managing USER DATA during the RELEVANT PERIOD.Def. Response to RFP No. 5:Converse incorporates its General Objections into its Response to this Request as if fully set forth herein. Converse objects to this Request as overly broad, seeking information not relevant to the subject matter of this action, and not reasonably calculated to lead to the discovery of admissible evidence as it seeks “[a]ll DOCUMENTS reflecting...internal controls for managing USER DATA.” Converse further objects to this Request on the ground that the terms “reflecting” and “internal controls” are vague, ambiguous, and undefined. Converse further objects to this Request to the extent it seeks information protected by attorney-client privilege and/or work product doctrine.
Subject to and without waiving the foregoing objections, Converse states that it will conduct a reasonably diligent search and produce versions of Converse website's operative privacy policies, as well as operating procedures for any call center representatives relating to management of user personal identifying information, between July 2021 and July 2023. Converse is further willing to meet and confer with Plaintiff's counsel regarding an appropriate scope for this Request.
Pl. Joint Stip. at 15–16.
c. Analysis
In response to this request, Defendant has provided versions of the website's operative privacy policies, operating procedures for any call center representatives relating to management of user personal identifying information, the Data Privacy Addendum with Salesforce, the Arvato Statement of Work, and Defendant's own privacy policies. Pl. Joint Stip. at 53; Def. Suppl. to Pl. Mot. at 3–4. However, Plaintiff argues that Defendant has failed to produce “internal controls for how it manages user data,” which Defendant characterizes as “policies that apply to its own employees regarding its own treatment of customer data.” Pl. Joint Stip. at 52–53. Defendant argues that policies related to the treatment of data that Defendant collects from its customers is irrelevant because the only remaining claim concerns alleged eavesdropping by a third-party and thus does not implicate data voluntarily given to Defendant by its customers. Id. at 53–54. Defendant also argues the request is overbroad and unduly burdensome, in part because it would require them to provide policies related to customer data not collected by the chatbox (such as information provided during store visits, sponsorship events, and from any other source). Id.
Again, the Court finds that Plaintiff has satisfied Rule 26's low bar for relevancy with respect to policies regarding data collected from the chatbox. Plaintiff argues that “an important aspect of Plaintiff's claim is that Defendant is aiding and abetting Salesforce in wiretapping Defendant's own customers and users of its chatbot because Defendant wants to leverage the data Salesforce illegally gains from its illegal wiretaps and data collection efforts to make more money at the expense of its users' privacy and in violation of California law.” Id. at 52. In their Supplement, Plaintiff further clarifies that Defendant's “controls and internal policies for managing user data are directly relevant to what it allowed Salesforce to do with that data, including the allegation that [Defendant] knew what Salesforce was doing and [Defendant] created this arrangement with Salesforce so that both of them could ‘extract and monetize as much personal information as possible, all while displaying no regard for reasonable expectations of privacy or any consumer concerns.’ ” Pl. Suppl. to Pl. Mot. at 4 (citing Compl. at 12). While it may be doubtful that Defendant's policies regarding the management of the data from the chatbox will directly reveal anything about their intent in allegedly aiding and abetting a third-party to eavesdrop on the chatbox communications, there is a chance that the policies could demonstrate that Defendant knew of the eavesdropping and/or received data collected as a result of that eavesdropping. Evidence of the scope of Defendant's knowledge concerning data collected by a third-party would obviously be relevant to Plaintiff's theory.
*13 Defendant argues that the policies are not relevant because they would only apply to information communicated voluntarily from customers to Defendant via the chatbox, which, by law, cannot form the basis for Defendant's liability under CIPA. Pl. Joint Stip. at 53–54. However, as Plaintiff notes, just because Defendant may have a viable substantive defense with respect to one potential way Plaintiff may seek to use certain documents does not on its own render the documents undiscoverable. Rather, Defendant must show the documents could not bear on or lead to other information that bears on issues in the action. As discussed above, the policies themselves may reveal or lead to other documents that reveal something about Defendant's knowledge as to the scope of information allegedly collected from the chatbox at issue here.
However, while privacy policies concerning the chatbox data may be relevant, privacy policies concerning data collected through other methods (such as through store visits and sponsorship events) would not appear relevant; indeed, Plaintiff has not argued that they are, or even indicated that they seek such policies. To the extent such policies are separate or separable, Defendant should not be required to produce privacy policies governing customer data collected from anywhere besides the chatbox feature at issue in this case.
Finally, while Defendant again argues that the RFP is overbroad and imposes an undue burden, Defendant has done nothing to explain the basis for these objections. To the extent that Defendant devotes any argument to these objections, it is essentially a rewording of their relevance argument. Accordingly, Defendant's objections as to overbreadth or burden are overruled. Plaintiff's Motion is GRANTED in part with respect to RFP No. 5, with the qualification that Defendant is not required to produce policies that relate solely to customer data collected from any source that is not the chatbox feature at issue in this case.
4. Information regarding Salesforce spreadsheets
In Response to RFP No. 5, Defendant produced “Privacy Audits,” which constituted spreadsheets of questions to Salesforce “regarding Salesforce's privacy and security practices as well as a subsequent internal assessment (by Nike/Converse) of those responses.” Pl. Joint Stip. at 67. Plaintiff argues that these spreadsheets have little value on their own, because they do not reveal the context in which they were created—i.e., “what these spreadsheets are, who asked for them, who made them, what they were asked to address (or not address), when they were made, who received them, whether there were other versions, and what Defendant did with them.” Id. at 63. Plaintiff argues that there must be some documents that would give context to these spreadsheets, whether they are in the form of emails and thus likely responsive to RFP No. 4, or whether they are otherwise somehow responsive to RFP Nos. 1 or 5. Id. at 63–64.
Defendant, however, states that no such emails exist, that they have produced the spreadsheets in the form that Defendant keeps them, and that there are no other documents responsive to RFP No. 5 or any other RFP that would provide further context for these spreadsheets. Id. at 67–68. Defendant argues that Plaintiff is essentially asking to rewrite their RFPs and/or issue a new series of interrogatories. Id.
While the Court, too, finds it difficult to believe that there are no documents that exist that provide context for these spreadsheets, the Court must, to an extent, accept Defendant's representation that no contextual documents exist that are responsive to Plaintiff's RFPs. Generally, when a party avers that no responsive documents exist, absent any evidence to the contrary, courts presume the parties are answering honestly, lest courts become mired in disputes over search adequacy. See Khan v. Boohoo.com USA, Inc., No. CV-20-03332-GW-JEMX, 2021 WL 3882970, at *1 (C.D. Cal. July 19, 2021) (“Defendants fail to present any declaration setting forth facts that Plaintiffs' search was inadequate. Defendants state, ‘It appeared that counsel for Plaintiffs may have asked their client whether responsive documents exist.’ ...This is pure speculation. Every document production would be mired in disputes over search adequacy if it were sufficient that a propounding party merely believed without any factual or evidentiary showing that documents have been withheld.”). Indeed, in these situations, there are other remedies available if the defending party's assertion that “no further responsive documents exist” proves to be false; for example, the propounding party may impeach the defending party at trial, or seek sanctions for any alleged spoliation.
*14 Here, Defendant avers that no further responsive documents exist that would give Plaintiff answers to the questions they have about the spreadsheets. While Plaintiff may fairly be skeptical of this statement, Plaintiff has not produced any evidence that the documents do exist—e.g., evidence that Defendant's search practices were inadequate, or other documents that refer to missing documents. Absent such evidence, the Court must credit Defendant's assertion that no further responsive documents exist.
To be sure, the Court understands and even shares Plaintiff's suspicion that there are documents in existence that would shed light on the context for these spreadsheets. However, if we credit Defendant's assertion that there are no further documents responsive to Plaintiff's requests as written, as we must, then Plaintiff's argument essentially asks the Court to retroactively broaden their discovery requests; this, the Court cannot do. See Frieri v. Sysco Corp., No. 3:16-cv-01432-JLS-NLS, 2017 WL 3387713, at *4 (S.D. Cal. Aug. 4, 2017) (finding the Court cannot rewrite discovery requests to “compel Defendant to provide a response to information not requested.”); Jacobs v. Scribner, No. 1:06-cv-01280-AWI-GSA PC, 2009 WL 3157533, at *4 (E.D. Cal. Sep. 25, 2009) (“Without any specific claim from Plaintiff as to how this production was deficient, Defendants cannot be compelled to respond further.”). Accordingly, Plaintiff's Motion is DENIED with respect to their request for Defendant to provide more information concerning the Salesforce spreadsheets.
5. Pl. Interrogatory Nos. 2, 7, and 9
a. Interrogatories and responses
Pl. Interrogatory No. 2:
IDENTIFY all PERSONS with the ability to access, monitor, store, or retrieve CHAT transcripts during the RELEVANT PERIOD.Def. Response to Interrogatory No. 2:Converse incorporates its General Objections into its Response to this Interrogatory as if fully set forth herein. Converse objects to this Interrogatory as overly broad, unduly burdensome, and not proportionate to need of the case to the extent it purports to identify of all individual persons who are capable of accessing transcripts of chat sessions on the converse.com website. Converse further objects to Interrogatory on the ground that the phrase “the ability to access, monitor, store, or retrieve” is vague, ambiguous, and capable of various interpretations. Converse also objects that the capitalized term “IDENTIFY” is not defined, and therefore Converse interprets the word “IDENTIFY” in accordance with its ordinary meaning in the English language.
Subject to and without waiving the foregoing objection, Converse responds as follows: During the relevant time period, only Converse employees or agents who have Salesforce Service Cloud credential, including customer service representatives, have been able to access, monitor, store, or retrieve transcript of chat session on converse.com during the ordinary course of business.Pl. Interrogatory No. 7:IDENTIFY each person who has access to the transcripts of the CHATS enabled by the CHAT FEATURE on the WEBSITE, if any, during the RELEVANT PERIOD.Def. Response to Interrogatory No. 7:Converse incorporates its General Objections into its Response to this Interrogatory as if fully set forth herein. Converse objects to this Interrogatory as overly broad, unduly burdensome, and not proportionate to the needs of the case to the extent it purports to request the identity of all individual persons who are capable of accessing transcripts of chat sessions on the converse.com website. Converse further objects to this Interrogatory on the ground that the phrase “access to the transcripts” is vague, ambiguous, and capable of various interpretations. Converse also objects that the capitalized term “IDENTIFY” is not defined, and therefore Converse interprets the word “IDENTIFY” in accordance with its ordinary meaning in the English language.
*15 Subject to and without waiving the foregoing objections, and subject to Converse's understanding of this Interrogatory, Converse responds as follows: Only Converse's employees or agents, including customer service representatives who have Salesforce Service Cloud credentials, have access to transcripts of chat sessions during the ordinary course of business.Pl. Interrogatory No. 9:INDENTIFY all PERSONS, including both employees, contractors and other third parties with access to the CHAT PROVIDER's administrative control panel, dashboard, or other means of monitoring or managing CHATS during the RELEVANT PERIOD.Def. Response to Interrogatory No. 9:
Converse incorporates its General Objections into its Response to this Interrogatory as if fully set forth herein. Converse objects to this Interrogatory as overly broad, unduly burdensome, and not proportionate to the needs of the case to the extent it purports to request the identity of all individual persons who are not employees or agents of Converse and whose identities are not within Converse's possession, custody, or control. Converse further objects to this Interrogatory on the ground that the phrase “access to the CHAT PROVIDER's administrative control panel, dashboard, or other means of monitoring or managing CHATS” is vague, ambiguous, and capable of various interpretations. Converse also objects that the capitalized term “IDENTIFY” is not defined, and therefore Converse interprets the word “IDENTIFY” in accordance with its ordinary meaning in the English language.
Subject to and without waiving the foregoing objections and subject to Converse's understanding of this Interrogatory, Converse responds as follows: Only Converse's employees or agents, including customer service representatives who have Salesforce Service Cloud credentials, can monitor or manage chat sessions or access chat-related information stored on the Salesforce Service Cloud platform during the ordinary course of business.
Pl. Joint Stip. at 70–73.
b. Analysis
After initially only identifying the groups of people who have the access described in these interrogatories, Defendant has since provided lists of the names and email addresses of every individual who has access “during the ordinary course of business”; Defendant has not provided such a list with respect to Interrogatory No. 9. Pl. Joint Stip. at 73–77. Plaintiff argues that this is not sufficient to “identify” the relevant individuals because the lists do not include the job title or employer for each individual, the lists do not identify any third-party entities, and Defendant has not identified the term “the ordinary course of business.” Id. at 73–75. Accordingly, Plaintiff seeks to compel Defendant to “(1) produce a similar list for Interrogatory 9, (2) supplement both lists by identifying the relevant employer and job title for each person, (3) include all entities that have such access, and (4) identify everyone who has such access outside of ‘the ordinary course of business.’ ” Id. at 73.
Defendant first notes that they have agreed to provide a list for Interrogatory No. 9. Id. at 76. Defendant also notes that Plaintiff did not define the term “identify” in their discovery requests, and that names and emails are sufficient to “identify” individuals according to the normal meaning of the word. Id. at 76–77. Accordingly, Defendant argues, they should not be required the burdensome work of conducting an “investigation into hundreds of individuals' jobs and determine their specific job titles.” Id. Defendant also notes that the email addresses provided identify the individuals' affiliation and any entities that have access (i.e., “@converse.com”). Id. Finally, Defendant argues that they have already attempted to clarify that the term “ordinary course of business” was used only to exclude “one-off” instances where there was access outside of the normal business, such as the need to produce information in response to a legal proceeding. Id.
*16 As an initial matter, Defendant has agreed to provide a list for Interrogatory No. 9, and thus that portion of this dispute appears moot. The Court finds the rest of Plaintiff's arguments unpersuasive. Both parties acknowledge that the term “identify” was undefined in Plaintiff's requests. Providing names and emails would seem to sufficiently “identify” individuals under the plain meaning of the word. While the Court is skeptical that an “investigation into hundreds of individuals' jobs” would entail a significant burden, the Court acknowledges that it would be some burden, and, in any case, Defendant has plainly fulfilled their obligation to respond to the interrogatories as written. Indeed, Plaintiff argues that Defendant has failed to adequately respond because the lists “give no indication of who that person works for, why they have access or what they do with access to chat transcripts and any administrative control panel or dashboard,” but this is far more information than was sought from the text of the interrogatories. Id. at 73. As was the case above, the Court will not retroactively rewrite Plaintiff's discovery requests to seek more information than was initially sought. See Frieri, 2017 WL 3387713, at *4 (finding the Court cannot rewrite discovery requests to “compel Defendant to provide a response to information not requested.”); Jacobs, 2009 WL 3157533, at *4 (“Without any specific claim from Plaintiff as to how this production was deficient, Defendants cannot be compelled to respond further.”). Accordingly, Plaintiff's Motion is DENIED with respect to Interrogatory Nos. 2, 7, and 9.
6. Pl. Interrogatory Nos. 1 and 6
a. Interrogatories and responses
Pl. Interrogatory No. 1:
IDENTIFY every CHAT PROVIDER used on YOUR WEBSITE during the RELEVANT PERIOD.Def. Response to Interrogatory No. 1:Converse incorporates its General Objections into its Response to this Interrogatory as if fully set forth herein. Converse objects to the definition of “CHAT PROVIDER” on the grounds that it is vague and ambiguous as used in this Interrogatory, and render the Interrogatory unintelligible. Converse also objects that the capitalized term “IDENTIFY” is not defined, and therefore Converse interprets the word “IDENTIFY” in accordance with its ordinary meaning in the English language.Subject to an without waiving the foregoing objection, Converse responds as follows: Throughout the relevant time period, converse.com has utilized the native live chat functionality for its website, converse.com, provided by Salesforce, Inc.'s (“Salesforce”) Service Cloud platform.Pl. Interrogatory No. 6:IDENTIFY all databases or other electronic storage containing records of CHATS using the CHAT FEATURE on the WEBSITE that occurred during the RELEVANT PERIOD.
Def. Response to Interrogatory No. 6:Converse incorporates its General Objections into its Response to this Interrogatory as if fully set forth herein. Converse objects to this Interrogatory on the ground that the phrase “all databases or other electronic storage containing records of CHATS” is vague, ambiguous, and capable of various interpretations. Converse also objects that the capitalized term “IDENTIFY” is not defined, and therefore Converse interprets the word “IDENTIFY” in accordance with its ordinary meaning in the English language.Subject to and without waiving the foregoing objections, Converse responds as follows: Records of chat sessions that occurred on the converse.com website Between July 2021 and July 2023, to the extent they exist, are electronically stored by Converse on the Salesforce Service Cloud platform.
Pl. Joint Stip. at 83–84.
b. Analysis
Here, Plaintiff's concern as to Interrogatory No. 1 appears to be that Defendant only identified a single entity—Salesforce—because they were using the narrow definition of “chat provider” discussed above. Pl. Joint Stip. at 84–85. Accordingly, the dispute as to this interrogatory is subsumed by the Court's discussion with respect to RFP No. 4. See above, subsection III.B.2. Defendant should provide a supplemental response using the definition described by the Court.
Plaintiff's concern with respect to Interrogatory No. 6 is admittedly less clear. Plaintiff appears to take issue with Defendant's use of the term “records of chat sessions that occurred,” which differs from the term in the interrogatory, “records of chats using the chat feature.” Id. at 85. However, Plaintiff does not sufficiently explain why they believe this difference is material. Plaintiff states that “Defendant's use of the term ‘records of chat sessions’ suggests that data obtained from chat sessions may still be recorded elsewhere, and it does not confirm that Salesforce is the only database where data taken from chats conversations is stored.” Id. at 85. It is not clear to the Court why this subtle difference in language gives rise to this suggestion. Indeed, Defendant's briefing indicates that they believe they are answering the same question Plaintiff is asking. Id. at 85–86. The Court also finds Defendant's response is responsive to Plaintiff's interrogatory. Ultimately, it is not clear to this Court how it would even order Defendant to supplement their response. Accordingly, Plaintiff's Motion is GRANTED with respect to Interrogatory Nos. 1 and 6 to the extent it seeks responses consistent with the definition of “chat provider” described above, but is DENIED in all other respects.
7. Pl. Interrogatory No. 5
a. Interrogatory and response
*17 Pl. Interrogatory No. 5:
State the number of known California residents that have used the CHAT FEATURE during the RELEVANT PERIOD.Def. Response to Interrogatory No. 5:Converse incorporates it General Objections into it Response to this Interrogatory as if fully set forth herein. Converse objects to this Interrogatory on the ground that Converse does not collect or monitor chat users' geographic locations or state residency in relation to their use of the chat feature on the website, and thus this Interrogatory seeks information that is not within Converse's possession, custody, or control. Converse further objects that any individual chat user's state of residency call for a legal conclusion that Converse is not able to make. Converse further objects to this Interrogatory as overly broad, unduly burdensome, and not proportionate to the needs of the case as the significant expense that Converse would incur in attempting to determine the state of residency for any individual, let alone all individuals who have used the chat feature for two years, outweighs its likely benefit.
Subject to and without waiving the foregoing objections, Converse responds as follows: The number of known California residents that have used the chat feature on the converse.com website between July 2021 and July 2023 is not within Converse's possession, custody, or control.
Pl. Joint Stip. at 92–93.
b. Analysis
Plaintiff concedes that Defendant is not in a position to make the legal determination of residency with respect to chat users, but argues that Defendant's responses are still insufficient because they failed to indicate that the chat feature records users' IP addresses, which could be used to determine their geographic locations, particularly when paired with address information provided by chat users. Pl. Joint Stip. at 94–94. Accordingly, Plaintiff argues, while Defendant may not be able to determine where particular chat users reside, Defendant should “be compelled to at least state how many people used the chat feature from within California.” Pl. Joint Stip. at 93–94.
However, Defendant notes that neither a chat user's IP address nor address information provided through the chat feature can constitute definitive evidence that users are located in California when they use the chat feature. Id. at 95–97. For example, Defendant notes that Plaintiff's IP address reflected that she was located in Massachusetts when she used the chat feature, but that Plaintiff herself avers she was located in California—hence the instant lawsuit brought in California based on California law. Id. Similarly, just because a customer provides a California shipping address does not mean that they were actually located in California when they provided the address. Id. The Court finds Defendant's arguments persuasive. The fact that Defendant may have access to chat users' IP addresses and certain chat users' shipping addresses does not mean that they are in a position to make a determination as to where the chat users were located when they used the chat feature. Accordingly, Defendant cannot be compelled to answer Interrogatory No. 5, either as written or with Plaintiff's proposed modification.
*18 To the extent Plaintiff would seek to compel Defendant to provide the IP addresses and shipping addresses of all chat users, this far exceeds the scope of the text of Interrogatory No. 5. As mentioned several times in this motion, the Court will not retroactively broaden the scope of Plaintiff's discovery requests. See Frieri, 2017 WL 3387713, at *4 (finding the Court cannot rewrite discovery requests to “compel Defendant to provide a response to information not requested.”); Jacobs, 2009 WL 3157533, at *4 (“Without any specific claim from Plaintiff as to how this production was deficient, Defendants cannot be compelled to respond further.”). Accordingly, Plaintiff's Motion is DENIED with respect to Interrogatory No. 5.
C. COSTS AND FEES
Here, the Court is granting both Motions in part. Fed. R. of Civ. P. 37(a)(5)(C) provides that “if the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C) (emphasis added).
Here, the Court notes that neither party explicitly requests fees in their motion. In any case, the motions were granted in part, which demonstrates, to an extent, that both parties had justifiable arguments. Furthermore, though, on balance, the Court may have ruled more in Defendant's favor, the Court finds that both parties may have been able to demonstrate more flexibility in meet and confer proceedings. Both parties are cautioned to remember that while no one expects discovery “to be a non-stop exchange of pleasantries,” Freeman v. Schointuck, 192 F.R.D. 187, 189 (D. Md. 2000), the parties have a general responsibility to approach the discovery process in good faith and avoid unnecessary court intervention, see Rule 37(a)(1) (requiring parties to make a good faith effort to resolve discovery disputes without court action). Accordingly, while the Court declines to apportion costs and fees on these motions, both parties are admonished to communicate and conduct themselves in good faith in attempting to resolve discovery disputes. The Court will not treat either party as graciously should any future discovery matter come before the Court without a good faith attempt to resolve the dispute informally.
IV. CONCLUSION AND ORDER
Based on the foregoing reasons, IT IS THEREFORE ORDERED that:
(1) Defendant's Motion is GRANTED with respect to RFP Nos. 11, 12 and 13;
(2) Defendant's Motion is GRANTED in part with respect to Interrogatory No. 10, with the modifications described above;(3) Plaintiff's Motion is GRANTED with respect to RFP Nos. 1 and 4;(4) Plaintiff's Motion is GRANTED in part with respect to RFP No. 5, with the qualification described above;(5) Plaintiff's Motion is DENIED in all other respects, except to the extent that supplements are necessary to respond consistently with the Court's finding as to the definition of “chat provider” discussed above;(6) The parties shall complete all discovery compelled in this order within fourteen days of this order; and(7) the Court declines to apportion costs and fees on either Motion.
IT IS SO ORDERED.
Footnotes
On April 12, 2024, Plaintiff filed an application to file certain exhibits to their Motion under seal. Dkt. 61. Plaintiff noted that she was required to file the application pursuant to the Local Rules, but that she opposed the sealing of the exhibits and intended to oppose the request. Dkt. 62 at 2. Plaintiff did not file an opposition until April 24, 2024, at which point the Court had already considered and granted the application to seal. Dkts. 71–72. The Court finds Plaintiff's opposition untimely and declines to consider it.
While the Local Rules do not set a strict time limit for opposing applications to file documents under seal, such applications are akin to other procedural applications filed ex parte; this Court's procedures requires that oppositions to ex parte applications be filed within twenty-four hours. See United States District Court, Central District of California, Judges' Requirements, Margo A. Rocconi, available at https://www.cacd.uscourts.gov/honorable-margo-rocconi (last visited April 25, 2024) (noting that oppositions to ex parte applications must be filed within twenty-four hours). Even if this twenty-four-hour deadline would not apply, the Court finds Plaintiff's twelve-day delay unreasonable, particularly where she filed the application herself and indicated the parties had already discussed the issue through meet and confer proceedings. See Dkt. 62. The Court routinely considers and rules on applications to seal documents within seven days, so that the documents may be promptly and appropriately filed.
In any case, the Court finds Defendant has made the requisite showing to justify the documents being filed under seal.
The Ninth Circuit has found that failure to provide a timely privilege log may result in deeming the privilege waived. Burlington N. & Santa Fe Ry. Co. v. U.S. District Court of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005). However, the Ninth Circuit rejected a bright line rule for when a privilege has been waived for untimeliness, instead identifying certain factors for courts to weigh when determining whether privilege has been waived. Id. at 1149; see also Wormuth v. Lammersville Union Sch. Dist., No. 2:15-CV-01572-KJM-EFB, 2017 WL 2505195, at *2–3 (E.D. Cal. June 9, 2017). Here, Defendant does not argue that Plaintiff has waived privilege with respect to RFP No. 11, and instead merely asks for the Court to order that Plaintiff must provide a privilege log. Def. Joint Stip. at 17. Accordingly, the Court does not presently find that Plaintiff has waived all objection as to privilege with respect to RFP No. 11. However, the parties are admonished to work together to resolve any disputes arising from the privilege log without court intervention. If the parties bring this same privilege issue before the Court again, the Court will not only apportion costs and fees appropriately, but may also impose other sanctions on either party, or both.
Defendant argues in passing that Plaintiff has waived privilege objections with respect to documents responsive to RFP No. 13 because they failed to make a privilege objection in their original responses. Def. Joint Stip. at 27; see also Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1991) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citation omitted), cert. dismissed, 506 U.S. 948 (1992). However, Plaintiff averred that no documents responsive to RFP No. 13 exist, and thus the issue may be moot. Def. Joint Stip. at 26–27. In any case, to the extent any documents responsive to RFP No. 13 exist, the Court finds good cause to excuse Plaintiff's failure to make an initial privilege objection for two reasons. See Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C. 1999) (noting that courts have broad discretion to determine whether a party's failure to raise timely objections to discovery should be excused for “good cause.”); Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005) (noting that courts consider several relevant factors in determining whether to excuse untimely objection, including: (1) the length of the delay in responding; (2) the reason for the delay; (3) dilatory conduct or bad faith by the responding party; (4) prejudice to the party seeking the disclosure; (5) the nature of the request (i.e., whether the discovery requested was overly burdensome or otherwise improper); and (6) the harshness of imposing the waiver.).
First, Plaintiff made privilege objections to RFP No. 12, which implicates similar documents and will likely implicate similar privilege issues. Thus, the crux of the issue has obviously been the subject of meet and confer discussions, and has been raised to this Court.
Second, the Court wishes to encourage the parties to engage in discovery collaboratively and to discourage using the discovery rules to engage in gamesmanship. The Court acknowledges that RFP No. 13 is fairly broad, and Plaintiff represents that they might have agreed to a narrower request that obviously excluded privileged documents. See Def. Joint Stip. at 35 (“[W]hen faced with unchanging Requests so exceedingly broad Plaintiff may as well have given Defendant's counsel a standing invitation to all of her discussions with her attorneys Plaintiff was left with no choice but to object and litigate the issue here...”). Furthermore, Defendant represents at several points in the joint stipulation that they do not actually seek communications between Plaintiff and their attorney. Given the fact that the parties apparently agree that Plaintiff should not turn over confidential attorney-client communications, and the fact that Plaintiff will likely already be providing a privilege log responsive to other requests, the Court finds that allowing Plaintiff to include any privilege objections with respect to RFP No. 13 in their privilege log will be most conducive to avoiding further disputes on the matter and encouraging good faith cooperation between the parties. As noted above, should future disputes on this same issue come before the Court, the Court will not only apportion costs and fees appropriately, but may also impose other sanctions on either party, or both.