Energy Mgmt. Collab., LLC v. Darwin Tech LLC
Energy Mgmt. Collab., LLC v. Darwin Tech LLC
2024 WL 2335629 (C.D. Cal. 2024)
April 25, 2024
Spaeth, Autumn D., United States Magistrate Judge
Summary
The court granted a motion to compel the defendant to produce ESI in its original form, as well as documents and responses to requests for production. The court also denied requests for sanctions from both parties and emphasized the importance of complying with discovery requests and the stipulated protective order.
Energy Mgmt. Collab., LLC
v.
Darwin Tech LLC, et al
v.
Darwin Tech LLC, et al
Case No.: 8:22-cv-00952 JWH (ADS)
United States District Court, C.D. California
Filed April 25, 2024
Counsel
Kristee Hopkins, Deputy Clerk, Attorney(s) Present for Plaintiff(s): None PresentNone Reported, Court Reporter / Recorder, Attorney(s) Present for Defendant(s): None Present
Spaeth, Autumn D., United States Magistrate Judge
Proceedings: (IN CHAMBERS) ORDER GRANTING IN PART AND DENYING IN PART MOTION TO COMPEL FURTHER DOCUMENTS AND WRITTEN RESPONSES AND REQUEST FOR SANCTIONS (DKT. NO. 71)
I. INTRODUCTION
*1 Before the Court is Plaintiff Energy Management Collaborative, LLC's (“EMC”) Motion to Compel (the “Motion”) against Defendant Darwin Tech LLC (“DT”). (Dkt. No. 71.) By this Motion, EMC seeks to compel DT to produce further documents and written responses to EMC's Requests for Production (“RFPs”) and requests sanctions against DT. The Motion includes a Joint Stipulation pursuant to Local Rule 37, as well as several declarations and exhibits by the parties. (Dkt. Nos. 72, 72-1–72-59.) EMC filed a supplemental brief in support of the Motion and objections to DT's supporting declarations. (Dkt. Nos. 84–87.) DT did not file a supplemental brief; however, it filed an objection to EMC's supplemental brief and objections. (Dkt. No. 90.)[1] On April 24, 2024, the Court held a hearing on the Motion (the “Hearing”) and counsel for both parties appeared. For the reasons discussed below, the Motion is GRANTED IN PART and DENIED IN PART.
II. RELEVANT BACKGROUND
This case arises out of a failed business relationship. EMC is suing DT and its principle, Jason Witney, for breach of contract, fraud, conversion, and unjust enrichment based on a contract between the two companies. (Dkt. No. 72 at 6, 12.) EMC is in the lighting industry and invented an Emergency Light Testing System (the “Product” or “ELTS”). (Id.) In July 2020, EMC and DT entered a Master Design and Development Services contract (the “Contract” or “MSA”) whereby EMC paid DT to design and develop software and hardware for the Product for EMC. (Id.) EMC alleges DT failed to comply with the Contract by withholding materials—firmware source code, circuit-board design files, and other deliverables—that DT was obligated to give EMC as part of that design and development. (Id.) When EMC demanded the materials from DT, DT refused unless EMC retained DT to manufacture the Product. (Id.)
EMC then filed its Complaint in May 2022. (Dkt. No. 1.) In its Complaint, EMC alleges (in relevant part) that DT breached the Contract by failing to turn over certain materials, that DT attempted to require EMC to enter a manufacturing agreement in exchange for those materials, and that DT fraudulently induced EMC to enter the Contract. (Id. ¶¶ 56–61, 90–92.)[2] EMC alleges that, under the Contract, DT was obligated to turn over “Deliverables,” “Work Product,” and other materials, which essentially means all materials DT developed for EMC that belong to EMC under the Contract. (Id. ¶ 61; Dkt. No. 72 at 15 (quoting Jackson Decl. Ex. 2 (MSA)).) EMC explains, however, that DT is not obligated to turn over materials that are “Darwin Tech Intellectual Property,” which the Contract defines as:
1.3 “Darwin Tech Intellectual Property” means all pre-existing intellectual property (including know how) of Darwin Tech, all logos, pictorial or graphical representations of brands, advertisements, graphics, designs, text, design elements, software code (object code and source code), development tools and any and all other information or materials and underlying intellectual property that is owned by Darwin Tech as of the Effective Date; and (2) all development tools and any other information or materials and underlying intellectual property that is developed by Darwin Tech during the Term of this Agreement that is: (a) generic, (b) not developed specifically for the use of EMC, (c) not developed based on the Statement of Work or specifications of EMC or based on EMC Intellectual Property, or (d) would generally be considered as a tool of Darwin Tech's development trade.
*2 (Dkt. No. 72 at 15–16 (citing Jackson Decl. Ex. 2 (MSA) § 1.3).)
In September 2023, the parties entered a stipulated protective order regarding the production of confidential materials (the “Protective Order”). (Dkt. Nos. 52, 53.) On September 28, 2023, EMC served DT with RFPs. (Dkt. No. 72 at 19; Dkt. No. 72-32, Jackson Decl. ¶ 8, Ex. 7.) The RFPs at issue in this Motion include the following: (i) documents relating to work DT performed for EMC under the Contract and the parties' business relationship (RFP Nos. 10–14, 16–18, and 21); (ii) documents sufficient to identify DT's employees from January 2018 to the present (RFP No. 9); and (iii) all of DT's insurance policies and related correspondence (RFP No. 46). (Dkt. No. 72 at 19–20.) The RFPs instruct DT to produce documents either “as they are kept in the ordinary course of business or organized and labeled to correspond with a particular request.” (Id. at 20 (quoting Jackson Decl. Ex. 7 at 4).) The RFPs do not require DT to produce the documents in any particular format. (Id.)
On November 14, 2023, DT served written responses to the RFPs. (Dkt. No. 72 at 21 (citing Jackson Decl. ¶ 9, Ex. 8).) To date, in response to the RFPs, DT has produced approximately 39,271 documents to EMC after processing the documents through an eDiscovery review platform, i.e., Relativity. (Dkt. No. 72-56, Gill Decl. ¶¶ 7–10.) DT produced one insurance policy and 75 documents that contain redactions in response to the RFPs. (Dkt. No. 72 at 21, 23.) In addition, approximately 20,154 documents are technical production files. (Id. ¶¶ 4–6, 10.) Technical files such as “.s37” or “.hex” files (as opposed to common files such as Word, PDF, or Excel) can only be opened using specific technical software programs; eDiscovery programs like Relativity are not equipped to open or present such technical files. (Id. ¶ 11.) EMC's discovery vendor, CODISCOVR, identified 17,857 technical native files in DT's production that cannot be opened through Relativity. (Id. ¶¶ 11–16; Dkt. No. 88-1.) In addition, the folder structure for these technical files that is kept in the ordinary course of business was modified when DT processed them for production through Relativity. (Dkt. No. 72-56, Gill Decl. ¶¶ 16–17.) As a result, they cannot be opened outside of Relativity. (Id.) The technical files could be viewed as they are kept in the ordinary course using technical programs if they were produced in pure native form. (Id.)[3]
III. LEGAL STANDARD
*3 Rule 26 permits discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” considering various factors. FED. R. CIV. P. 26(b)(1). “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). The party opposing discovery then has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Alves v. Riverside Cnty., 339 F.R.D. 556, 559 (C.D. Cal. 2021) (quotations and citations omitted); Table de France, Inc. v. DBC Corp., No. EDCV 19-423-JGB, 2019 WL 6888043, *5 (C.D. Cal. 2019). “The party opposing discovery is required to carry a heavy burden of showing why discovery should be denied.” Alves, 339 F.R.D. at 559 (quotations and citations omitted). “The district court enjoys broad discretion when resolving discovery disputes, which should be exercised by determining the relevance of discovery requests, assessing oppressiveness, and weighing these factors in deciding whether discovery should be compelled.” Alves, 339 F.R.D. at 559 (quotations and citations omitted).
Rule 34 requires production of responsive documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a). Following a reasonable investigation to locate responsive materials, a responding party must serve a written response to each request either stating that it will produce copies of the documents requested or identifying the grounds for any objection. Fed. R. Civ. P. 34(b)(2)(B). Objections must be stated with specificity, and the responding party must affirmatively state whether any documents are being withheld pursuant to an objection. See Q Indus., Inc. v. O'Reilly Auto., Inc., No. CV 22-3791 HDV (PVCx), 2023 WL 5505889, at *5 (C.D. Cal. July 28, 2023) (discussing and explaining Advisory Committee Notes on Rule 34(b)(2)(B)). Where a response to a production request is neither a representation that responsive documents will be produced nor a legal objection to the request, but rather an assertion that all responsive documents have already been produced or that no responsive documents exist in the responding party's possession, custody, or control, courts require that the response be verified. See id. (collecting cases).
The court, however, cannot order a party to produce documents that do not exist. A requesting party's mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. See, e.g., O'Reilly, 2023 WL 5505889, at *5 (collecting cases); Carter v. Dawson, 2010 WL 4483814, at *5 (E.D. Cal. Nov. 1, 2010) (“The Court will not permit a party to challenge the other party's objections based on mere speculation.”). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. O'Reilly, 2023 WL 5505889, at *5; Carter, 2010 WL 4483814, at *5 (assertion that party is unable to locate responsive documents does not provide a ground for granting a motion to compel “unless Plaintiff can identify a specific document that Defendants have withheld”).
IV. DISCUSSION
By this Motion, EMC asks the Court to compel DT to produce documents (or further written responses) in response to RFP Nos. 10–14, 16–18, and 21, as well as RFP Nos. 46 and 9. EMC also asks for $109,401.00 in sanctions against DT, whereas DT seeks $22,929.50 in sanctions against EMC. The Court addresses each request in turn.
A. RFP Nos. 10–14, 16–18, and 21[4]
Pursuant to RFP Nos. 10–14, 16–18, and 21, EMC asks the Court to compel DT to produce: (i) pure native files of all documents it previously produced in unreadable/unusable form (i.e., the technical files); (ii) all documents DT is withholding; and (iii) unredacted versions of documents DT produced. (Dkt. Nos. 71 at 2, 72 at 8–9.)
1. Pure Native Technical Files
*4 First, EMC seeks to compel DT to produce the technical files that DT produced in unreadable and unusable form. (Dkt. No. 72 at 62.) EMC argues DT failed to produce these documents “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” (Id. at 64 (quoting Rule 34(b)(2)(E)(ii)).) EMC explains that technical files are typically produced in “pure native form,” meaning not through eDiscovery programs such as Relativity. (Id. at 25.) This is because the individual files are part of groups of files (called “projects”) that need to be opened simultaneously using certain software programs, and if they are processed through Relativity, the organizational structure is lost and the files cannot be opened or viewed in the appropriate software programs. (Id.) Despite knowing that these files cannot be opened through Relativity, DT processed and produced these files through Relativity. (Id. at 64 (citing Gill Decl. ¶¶ 14–16, Ex. 2; Braginsky Decl. ¶¶ 15–18; Jackson Decl. Ex. 16 at 9).) EMC explains it is merely asking DT to produce these files in pure native form, which is quick, easy, and inexpensive, yet DT refuses to do so. (Id. at 65.)
DT argues that EMC is harassing it and imposing an undue burden because it already produced these technical files as it kept them in the ordinary course of business. (Dkt. No. 72 at 95.) DT argues that its production was consistent with Rule 34 because it produced these documents in native format, provided the metadata that permits EMC to recreate the folder structure of the production, and identified the software needed to view those file types. (Id. at 100.) DT also argues that EMC is demanding that DT make these documents viewable in Relativity and, thus, alter how they were kept in the ordinary course. (Id. at 100–01.) Finally, DT argues that EMC's supporting attorney declarations lack foundation because neither declarant has expertise in evaluating source code or other technical files, and EMC has not retained an expert to help it review DT's production. (Id. at 101.)
DT's position is uncompelling. There is no question that these technical files are relevant. That being so, Rule 34(b)(2)(E)(ii) required DT to produce the technical files in a form in which they were ordinarily maintained or in a reasonably usable form, because the RFPs do not specify a form for producing electronically stored information. See Fed. R. Civ. P. 34(b)(2)(E)(ii). EMC is seeking the technical files in pure native format—that is, without processing them through Relativity in order to maintain their hierarchical structure. DT does not contest EMC's assertion that technical files are typically produced in pure native format. DT likewise does not contest EMC's assertion that the organizational structure of these technical files was stripped or changed by DT processing and producing them through Relativity. Indeed, testimony from DT's own e-discovery specialist indicates the organizational structure for these technical files has been altered. (Dkt. No. 72-31, Bell Decl. ¶¶ 25–30 (explaining that native files cannot be viewed in Relativity but can be downloaded from Relativity, and that metadata, which DT provided with its productions, can then be used to “recreate the exact folder structure and file names of each file”).
Finally, DT fails altogether to address EMC's assertion that sending the technical files in pure native form would be quick and easy. Rather, DT misconstrues EMC's request and provides no real explanation for why it refuses to simply provide EMC the pure native technical files. At the Hearing, DT failed to articulate any undue burden. DT's counsel represented to the Court that DT has already produced pure native technical files. Yet nowhere in the parties' briefing or evidence does DT attest to counsel's assertion. DT attests to producing native technical files processed through Relativity and to providing EMC with metadata to allow it to recreate the files' organizational structure. The Court understands this to mean DT has not produced the technical files in pure native form but that doing so would be of little burden.
*5 The Motion is GRANTED with respect to pure native technical files responsive to RFP Nos. 10–14, 16–18, and 21.
2. Uncompiled Source Code
Second, although no privilege log has been exchanged or provided to the Court, DT also appears to be withholding certain documents responsive to RFP Nos. 10–14, 16–18, and 21. EMC asks the Court to compel DT to produce all documents responsive to RFP Nos. 10–14, 16–18, and 21, as well as further written responses confirming it has done so. (Dkt. No. 72 at 66.) EMC explains that DT responded to each of these RFPs with boilerplate objections and by stating it would produce all non-privileged responsive documents “except its uncompiled source code and related proprietary electrical engineering design files that are excluded from Deliverables under the MSA.” (Id. at 67 (citing Jackson Decl. ¶ 9, Ex. 8).)
a. Relevance
The parties disagree over the relevance of the uncompiled source code and related documents that DT is withholding. DT contends the uncompiled source code used in connection with the Product is irrelevant to EMC's claims. DT's main argument is that uncompiled source code is not a Deliverable under the Contract or any of the SOWs (which identify only compiled source code as a Deliverable), and in fact is excluded from Deliverables because the code contains generic “Darwin Tech Intellectual Property” as defined under the Contract. (Dkt. No. 72 at 102, 104–05.)[5] In addition, DT argues that the uncompiled source code is irrelevant because EMC did not obtain the right to it under the Contract as EMC knew it was not required to use, sell, or market the Product—if EMC truly believed it was necessary to assess DT's compliance with the Contract, it would have required delivery of the uncompiled source code under the Contract. (Id. at 103.) DT states it would never have signed such a contract and suggests EMC is attempting to gain through litigation what it could not obtain in Contract negotiations. (Id.)
EMC points out DT is not withholding these uncompiled source code and related documents on relevance grounds. (Dkt. No. 72 at 68.) EMC contends it has nevertheless met its burden of establishing relevance. EMC argues that DT cannot unilaterally determine that EMC is not entitled to these documents under the Contract and, as such, they are irrelevant to and need not be produced in this litigation. (Id.) A central issue in this case, EMC explains, is whether DT withheld materials from EMC in breach of the Contract and in furtherance of its scheme to unlawfully extort EMC into a manufacturing agreement. (Id. at 70 (citing Compl. ¶¶ 37–41; Jackson Decl. ¶ 25).) Thus, even if the documents being withheld are not Deliverables under the Contract, they are still relevant to evaluate whether DT complied with the Contract and which requires EMC evaluating the materials themselves. (Id.)
*6 The Court agrees with EMC. DT confuses its obligations under the Contract with its obligations in discovery. DT's unilateral determination that the documents being withheld are not “Deliverables” or “Work Product” under the Contract does not mean they are irrelevant to this litigation. Whether the materials being withheld are in fact materials DT was obligated to turn over is the centerpiece to EMC's breach of contract claim. EMC has no way of testing its claim and DT's assertions without evaluating these materials. See, e.g., Calendar Research LLC v. StubHub, Inc., No. CV 17-4062 SVW (SSx), 2017 WL 10378338, at *10 (C.D. Cal. 2017) (granting motion to compel all source code because doing so would allow plaintiff to test defendant's assertions and identify evidence to support its claim). Accordingly, the uncompiled source code and related documents DT is withholding in response to RFP Nos. 10–14, 16–18, and 21 are relevant.
b. Confidential Trade Secrets
The parties also dispute DT withholding these documents based on its confidential trade secret objection. DT objected to RFP Nos. 10–14, 16–18, and 21 on grounds they seek DT's “confidential and sensitive business information constituting trade secrets,” explaining DT's “uncompiled source code and proprietary electrical engineering design files are critical to [DT's] ongoing business and their production would create a substantial risk to [DT's] ability to continue to do business.” (Dkt. Nos. 72 at 72, 72-42, Jackson Decl. Ex. 8.)
In the Joint Stipulation, DT argues that its uncompiled source code is a trade secret because it has economic value, is not generally known by the public, and DT has made reasonable efforts to protect its secrecy, including having employees sign Non-Disclosure Agreements. (Dkt. No. 72 at 105–07.) EMC, on the other hand, argues DT has not supported its argument with any evidence and, regardless, the Protective Order in this case is sufficient to quell DT's confidentiality concerns (i.e., DT can designate material Highly Confidential Attorneys' Eyes Only, which protect EMC or third-parties from viewing the material). (Id. at 72–73.) DT says nothing about the stipulated Protective Order.
The Court again agrees with EMC on this point. DT fails to persuasively support or explain its confidential trade secrets objection. As EMC notes, there is a stipulated Protective Order in this case, (Dkt. No. 53), which sets forth specific procedures to protect the sensitive and confidential nature of the source code and other items to be produced. DT fails to explain why the Protective Order it stipulated to is insufficient.
The Motion is GRANTED with respect to RFP Nos. 10–14, 16–18, and 21. The Court ORDERS DT to produce all documents responsive to these requests, including the uncompiled source code and related proprietary files DT is withholding.
3. Redacted Documents
Relatedly, EMC also seeks to compel DT to produce unredacted versions of certain documents DT produced in response to EMC's RFPs. (Dkt. No. 72 at 80.) EMC states that DT has produced at least 75 documents to date that include redactions, yet DT has not explained why the documents are redacted nor provided a privilege log. (Id.) EMC notes some examples, including a text message thread and an internal report, with no attorneys involved. (Id. at 80–81.) According to EMC, these appear to be business documents related to the work DT did on the Product. (Id. at 82.) In response, DT argues that a privilege log for these 75 documents is not necessary because the redactions concern trade secrets—“the only items that [CT] redacted from its production are its uncompiled source code which EMC is not entitled to.” (Id. at 111.)
For the same reasons discussed above, the Court rejects DT's position. DT's uncompiled source code—in this instance being withheld by redactions—is relevant to EMC's breach of contract claim in this litigation. DT provides no authority or argument to justify redacting its uncompiled source code, and DT again fails to explain how the stipulated Protective Order in this case is insufficient to mitigate DT's confidential trade secrets concerns.
*7 The Motion is GRANTED with respect to the documents DT produced that redact uncompiled source code. The Court ORDERS DT to produce unredacted versions of these documents.
B. RFP No. 46
Next, EMC asks the Court to compel DT to produce further documents and written responses to RFP No. 46, which requests:
Any and all DOCUMENTS containing, representing, or RELATING TO any and all insurance policies applicable to this litigation, and any and all COMMUNICATIONS relating to any and all such insurance policies.
(Dkt. No. 72 at 74.) DT's response, in its entirety, states:
Darwin objects to the Request to the extent that it requests information protected by the attorney-client privilege and the attorney work product doctrine. Darwin objects to this Request on the grounds that it seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence. Darwin also objects to this Request on the grounds that it is unduly burdensome and harassing to the extent that it seeks documents that are already in EMC's possession, custody, or control. Darwin has already produced documents that are responsive to this Request as DARWIN_1-97.
(Id. at 75.)
EMC contends that DT's objections are meritless, and that its response is insufficient because DT does not state that all responsive insurance policies have been produced or that it is withholding any responsive documents. (Id.) EMC argues that insurance policies are relevant to several issues, including settlement, and courts regularly require parties to disclose this information under Rules 26 and 34. (Id. at 75–76.) EMC notes that DT has produced one policy but suspects there are others because DT is a very small company yet it “retained Greenberg Traurig, a large law firm, to defend its interests based solely on one disclosed $500,000 declining limits policy.” (Id. at 76.) According to EMC, this “simply doesn't pass the smell test as that policy would have been exhausted long ago.” (Id.) DT, on the other hand, explains that it has repeatedly informed EMC that no other insurance policies exist and the Court cannot order it to produce documents that do not exist. (Id. at 109.)
The Court agrees with DT to an extent. Indeed, the Court cannot order a party to produce documents that do not exist. See Q Indus., Inc. v. O'Reilly Auto., Inc., No. CV 22-3791 HDV (PVCx), 2023 WL 5505889, at *5 (C.D. Cal. July 28, 2023) (discussing and explaining Advisory Committee Notes on Rule 34(b)(2)(B)). And EMC's mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel. Id. However, DT must verify its assertion that all responsive documents have already been produced or that no responsive documents exist in its possession, custody, or control. Id. DT's present response to RFP No. 46 does not provide EMC this verification.
Accordingly, the Motion is GRANTED IN PART and DENIED IN PART with respect to RFP No. 46. The Court ORDERS DT to provide further written response to RFP No. 46 verifying that DT has conducted a reasonable search for and produced all insurance policies that are responsive to RFP No. 46.
C. RFP No. 9
EMC's Motion similarly asks the Court to compel DT to provide further documents and written responses to RFP No. 9, which requests:
*8 All DOCUMENTS identifying the names of any and all of YOUR employees at any time from January 1, 2018, to the present, as well as their dates of employment and job titles.
(Dkt. No. 72 at 77.) DT's response, in its entirety, states:
Darwin objects to this Request on the grounds that it is compound. Darwin objects to this Request on the grounds that it is overbroad, vague, and ambiguous. Darwin also objects to this Request on the grounds that it is overbroad in scope and time. The claims in this action stem from the MSA that was entered into on or about July 15, 2020. Therefore, the names of Darwin's employees from January 1, 20 [sic] to July 14, 2020 are irrelevant. Darwin's responses will be limited to the names of the employees who have any information or knowledge related to Darwin's development and manufacture of the ELTS for EMC. Darwin further objects to the Request to the extent that it requests or purports to request information protected against disclosure by the attorney-client privilege and the attorney work product doctrine.
Subject to and without waiving these objections, Darwin responds as follows: Darwin will produce all non-privileged responsive documents in its possession, custody, and control subject to a reasonable search and diligent inquiry.
(Id. at 78.)
EMC argues that DT improperly reduced the timeframe of its response and production to the date the parties entered the Contract—July 15, 2020—to the present. (Dkt. No. 72 at 78.) EMC explains that the relevant timeframe, rather, is January 1, 2018, to the present because EMC is claiming DT fraudulently induce it into entering the Contract by misrepresenting DT's experience, competency, and background. (Id. at 78–79.) EMC also argues that DT cannot possibly establish an undue burden because it is such a small company, with two to three employees at most. (Id. at 79.)
DT argues that the identities of its employees two years before the parties here entered the Contract are irrelevant and providing them would be an invasion of privacy. (Id. at 109–10.) DT asserts that EMC's first interaction with DT was in April 2020, that EMC communicated with Jason Whitney, and that there are no allegations that any other DT employee communicated with EMC prior to the Contract's execution in July 2020. (Id. at 110.)
Neither party's position is persuasive. EMC has not demonstrated that the alleged misrepresentations date back to January 1, 2018; its Complaint suggests these communications with DT occurred in early 2020. (Dkt. No. 1 ¶¶ 3, 92.) EMC has not shown how employees two years prior are relevant to those communications. DT, however, fails to support its position as well. DT provides no authority or argument on the right to privacy. DT likewise provides no justification or explanation for limiting the timeframe to July 15, 2020, when the Contract was entered, to the present. The names of DT's employees during the pre-Contract discussions, which apparently began in early 2020, are relevant to EMC's fraud claims.
Accordingly, the Motion is GRANTED IN PART and DENIED IN PART with respect to RFP No. 9. The Court ORDERS DT to produce documents responsive to RFP No. 9 for the period of January 1, 2020, to the present.
D. Sanctions
*9 Finally, EMC requests $109,401 in sanctions against DT, and DT requests $22,929.50 in sanctions against EMC. (Dkt. No. 72 at 86, 114.) “The district court has great latitude in imposing sanctions” under Rule 37. Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985). For the following reasons, the parties' sanctions requests are both DENIED.
1. Rule 37(a)(5)
Rule 37(a)(5)(A) provides that when a motion to compel is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party of attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A). Unless one of the exceptions applies, an award of attorney fees and costs is mandatory in cases where the moving party prevails. See Am. Bd. of Internal Med. V. Mittman, 543 F. App'x 680, 681 (9th Cir. 2013). Where a 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).
2. Substantially Justified
The parties each argue that their respective conduct was substantially justified. Discovery conduct is “substantially justified ... if reasonable people could differ as to whether the party requested must comply.” Reygo Pac. Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982), abrogated on other grounds by Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 210 (1999). “[T]he burden of showing substantial justification ... is on the party being sanctioned.” Hyde & Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994); see FED. R. CIV. P. 37 advisory committee's note to 1970 amendment.
In support of EMC's sanctions request, EMC contends DT's conduct was not substantially justified for several reasons. First, EMC argues that providing pure native technical files would take five minutes for DT to correct the problem it created by processing those files through Relativity, yet DT provides no reason for refusing to do so. (Dkt. No. 72 at 88.) Second, EMC argues that DT has no justification for withholding the uncompiled source code documents that are plainly relevant. (Id. at 90.) Third, EMC argues that DT has no justification for failing to provide a privilege log or for redacting the 75 documents without any basis to do so. (Id. at 90–91.)
DT, on the other hand, argues that its conduct was substantially justified and EMC, rather, was not justified in bringing this Motion. (Id. at 111–14.) DT explains that EMC requested DT produce documents in native format as they are kept in the ordinary course of business, which DT contends it did. (Id. at 111.) According to DT, the documents it produced are still usable even though they are not viewable on Relativity, because they can be downloaded from Relativity and the metadata DT provided allows EMC to recreate the folder structure. (Id. at 112.) Accordingly, DT argues, the Motion is not substantially justified and EMC should therefore be sanctioned. (Id. at 114 (DT stating it “has incurred at least $22,929.50 in connection with this Motion and should be reimbursed accordingly”).)
*10 DT's sanction request is DENIED because EMC's Motion was substantially justified. As for whether DT's conduct was substantially justified, the Court is skeptical but it need not make that determination here. As discussed below, EMC has not met its burden for the sanctions it requests.
3. Reasonable and Necessary Hours
EMC has not met its burden for the sanctions it requests. Rule 37(a)(5)(A) only allows for “reasonable expenses incurred in making the motion.” FED. R. CIV. P. 37(a)(5)(A); see, e.g., Dish Network, 2019 WL 7166067, at *4–5 (explaining Rule 37(a)(5)(A) excludes meet and confer hours from a calculation of attorney's fees, and holding total hours billed unreasonably included “general discovery tasks that were not directly related to filing the motion to compel”); Berryhill v. Johnson, No. CV 11-1468 AG (RNBx), 2012 WL 13020328, *2 (C.D. Cal. Jul. 19, 2012) (explaining that, under Rule 37(a)(5)(A), only time expended in actually preparing the moving papers is compensable). The party requesting a fee award bears the burden of showing that the hours incurred were reasonable and necessary to achieve the result obtained. See Gates v. Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 437 (1983)). The court must review any time record submitted to determine if the hours were reasonably incurred or if any were unnecessary, duplicative, excessive, or inadequately documented. See Dish Network L.L.C. v. Jadoo TV, Inc., No. CV 18-9768 FMO (KSx), 2019 WL 7166067, at *3 (C.D. Cal. Nov. 8, 2019).
Here, EMC requests $109,401 in sanctions against DT, which includes $98,347 in attorney fees and $11,054 in fees from its e-discovery vendor, CODISCOVR. (Dkt. No. 72 at 91, 93–94.) EMC explains its attorneys spent a total of 203.8 hours on the following: reviewing DT's responses to the RFPs, DT's productions, reviewing information relating to how the documents were reviewed, communicating internally and reviewing correspondence with DT's counsel about DT's responses and productions, researching issues related to the Motion, participating in meet and confer efforts, and preparing the Motion and declarations. (Id. at 92.) CODISCOVR, EMC explains, spent 28.2 hours reviewing DT's productions, identifying unviewable documents, and preparing a declaration as well as “several related issues.” (Id. at 93–94.)
DT argues that EMC has not met its burden of showing it is entitled to these fees. (Id. at 112.) DT notes that EMC's declaration merely summarizes total fees billed without attaching timesheets or describing the nature of the time billed. (Id. at 113.) DT also contends EMC's fees are egregious because CODISCOVR apparently spent 28 hours reviewing unreviewable documents and EMC's portion of the Joint Stipulation is largely cut-and-pasted from the Complaint, the Contract, and other motions in this case. (Id. at 113–14.)
The Court finds EMC has failed to meet its burden of establishing that the requested fees are reasonable and necessary. Much of what EMC seeks is not recoverable under Rule 37(a)(5)(A). EMC has not provided any time records identifying how much time counsel spent on the Motion. EMC's attorney declarations generally attest to the hours spent and work performed, but how much time was spent on which tasks is entirely unclear. This limits the Court's ability to determine what hours were reasonably incurred on the Motion and what hours were unnecessary, duplicative, or excessive. See Chalmers v. Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986) (“Although the district court's calculation of an award need not be done with precision, some indication of how it arrived at its figures and the amount of the award is necessary.”). Indeed, EMC's request includes an indeterminate amount of time spent on meet-and-confer efforts and general discovery tasks (e.g., reviewing DT's responses to the RFPs) that are not directly related to the Motion. Thus, the Motion is DENIED with respect to EMC's request for sanctions.
V. CONCLUSION
*11 For the foregoing reasons, the Motion is GRANTED IN PART and DENIED IN PART. The Court ORDERS DT to comply with this Order by May 1, 2024, or by a date mutually agreed to by the parties. The Court reminds the parties that it expects them to obey discovery orders and to cooperate and act in good faith in conducting discovery. Failure to do so may result in sanctions. See Sali v. Corona Regional Med. Center, 884 F.3d 1218, 1219 (9th Cir. 2018) (explaining discovery process should be cooperative and largely unsupervised by the district court, but when that cooperation breaks down, courts have broad discretion to regulate discovery and impose a wide array of sanctions).
IT IS SO ORDERED.
Footnotes
The parties' evidentiary objections (Dkt. Nos. 84–87, 90) are denied.
DT asserts a breach of contract counterclaim against EMC, alleging EMC failed to make all required payments to DT under the Contract. (Dkt. No. 55, First Amended Counterclaim ¶ 29.)
After the supplemental brief deadline, EMC filed a Notice of Errata (Dkt. No. 88) amending the declaration of Nicole Gill, Chair and Managing Member of CODISCOVR, to correct Gill Decl. Ex. 2 to the Joint Stipulation—a spreadsheet that identifies the 17,857 technical files (Dkt. No. 88-1). Gill explains that the incorrect spreadsheet was provided with her original declaration by error. (Dkt. No. 88; Dkt. No. 72-58 (original Gill Decl. Ex. 2).) DT objected to the Notice of Errata, arguing that EMC's failure to provide the correct Exhibit 2 before the supplemental brief deadline precluded DT from responding to the exhibit. (Dkt. No. 90 at 3.) DT, however, addressed the corrected Exhibit 2 in its opposition, stating: (i) that there are inconsistencies in the record (i.e., the corrected Exhibit 2 identifies 17,857 documents whereas EMC claims elsewhere that the tally is 20,154); (ii) that the corrected Exhibit 2 only demonstrates that DT produced documents in native format; and (iii) it is not the same exhibit EMC sent during the meet and confer process. (Id. at 3–4.) DT does not provide the exhibit it purportedly received during the meet and confer (indeed, DT cites no declaration or other evidence). Nor does DT challenge the fact that at least 17,857 technical files are at issue in this dispute and were not produced in “pure” native form. DT's objection, therefore, is overruled.
These RFPs and DT's responses and objections thereto can be found on pages 54 to 62 in the Joint Stipulation. (Dkt. No. 72 at 54–62.)
DT explains that compiled source code can run on a computer operating system, whereas computers cannot read uncompiled source code, and according to DT, “EMC only needs compiled source code to determine if the [Product] functions and meets the requirements of the [Contract] and SOWs.” (Dkt. No. 72 at 11.)