*1 This is a dispute between two neighbors related to contractual restrictions on the development of one of the properties. (Dkt. 33 at 2.) The two properties are located at 1028 Hillcrest Road, Beverly Hills, CA 90210 (the “Hillcrest Property”) and 9450 Sierra Mar Drive, Los Angeles, CA 90069 (the “Sierra Mar Property”). (Id.) The Hillcrest Property is located downhill of the Sierra Mar Property and the two properties are separated by a slope. (Id.) The owners of the Hillcrest Property entered an agreement with the prior owners of the Sierra Mar Property to restrict further development on the Sierra Mar Property (the “Slope Agreement”). (Id.)

Plaintiffs Michael Pashaie and Shahla Pashaie (collectively “Plaintiffs”) are the owners of the Hillcrest Property and Defendant H77LA, LLC (“Defendant”) is the current owner of the Sierra Mar Property. (Id.) Plaintiffs initially filed this action in the Los Angeles County Superior Court seeking to enforce the contractual restrictions on development on the Sierra Mar Property on April 4, 2023. (Dkt. 1-1.) Defendant removed the action to this Court on August 11, 2023 based on diversity jurisdiction under 28 U.S.C. § 1332(a)(1). (Dkt. 1.) Since removal to this Court, the parties have engaged in extensive litigation over the meaning and enforceability of the contractual restrictions on the Sierra Mar Property including Plaintiffs obtaining a preliminary injunction as well as an Order holding Defendant in contempt for violating the preliminary injunction. (Dkts. 33, 102.)

As part of the extensive litigation described above, the parties have been deeply engaged in discovery for many months and the Court has conducted six informal discovery conferences with the parties to keep the discovery process moving and attempt to resolve disputes. (Dkts. 69, 76, 87, 101, 103, 106.) On August 8, 2024, Defendant filed a Motion to Compel Responses and Documents to Requests for Production Set 2 (the “Motion to Compel”). (Dkt. 116.) In the Motion to Compel, Defendant seeks an order permitting Defendant to conduct a forensic examination of Plaintiff Michael Pashaie's cell phone to obtain text messages and attached files responsive to Defendant's Second Set of Requests for Production. (Dkt. 116-1 at 2.) On August 21, 2024, Plaintiffs filed an Opposition to Defendant's Motion to Compel (the “Opposition”) contending that Plaintiffs have already agreed to produce sufficient responsive documents and that no forensic examination of Mr. Pashaie's cell phone is justified. (Dkt. 123 at 3.) On August 28, 2024, Defendant filed a Reply in Support of the Motion to Compel (the “Reply”) contending that Plaintiffs' responses to Defendant's Second Set of Requests for Production are insufficient and that Plaintiffs have not diligently searched Mr. Pashaie's cell phone for responsive text messages. (Dkt. 130 at 2.)

The Court finds it appropriate to take the Motion to Compel under submission without oral argument and GRANTS the Motion to Compel, for the reasons set forth below. The Court provides specific instructions to the parties on how to comply with the Court's Order below.

*2 Defendant's Second Set of Requests for Production to Mr. Pashaie seek communications between Mr. Pashaie and David Pashaie, Michele Pashaie, Paricheher Solimani, Shahla Pashaie, or Fariba Meskin, relating to the Sierra Mar Property, this lawsuit, the Slope Agreement, or the Declaration of Paricheher Solimani in Support of Motion for Preliminary Injunction. (Dkt. 116-2 at 27-30.) Mr. Pashaie provided verified discovery responses dated June 20, 2024, stating that for all of the requests, “Any responsive documents will be produced.” (Id. at 27-31.) Mr. Pashaie did not assert any objection in these responses or otherwise identify any limit on his production of responsive text messages from his cell phone. (Id.)

The parties raised the issue of responsive text messages and attachments on Mr. Pashaie's cell phone as early as June 28, 2024, during an informal discovery conference. (Dkt. 76.) At the conclusion of the June 28, 2024 conference, the Court directed Plaintiffs' counsel to conduct a reasonably diligent inquiry into whether Mr. Pashaie could have any responsive communications in text messages on his cell phone and report back on his inquiry at the July 12, 2024 continued informal discovery conference. (Id.) At the July 12, 2024 conference, Defendant's counsel presented evidence of responsive text messages on Mr. Pashaie's cell phone. (Dkt. 87.) However, there was not enough time to fully address the issue during the hearing because of other more urgent issues. Therefore, the Court directed Plaintiffs' counsel to ensure that all text messages on Mr. Pashaie's cell phone were preserved and that any auto-delete feature on his phone was turned off. (Id.) The Court further directed that the parties would address this issue at the continued informal discovery conference on July 19, 2024. (Id.)

The Court once again discussed the issue of Mr. Pashaie's cell phone with the parties at the July 19, 2024 conference. (Dkt. 101.) At the conclusion of the July 19, 2024 conference, the Court directed Plaintiff's counsel to further investigate the scope of responsive information on Mr. Pashaie's cell phone by meeting in person with Mr. Pashaie and reviewing his cell phone together. (Id.) The Court directed Plaintiffs' counsel to report back on his investigation at the next informal discovery conference on July 29, 2024. (Id.) At the July 29, 2024 conference, Plaintiffs' counsel reported that he had taken steps to produce certain responsive documents and information from Mr. Pashaie's cell phone, but that Plaintiffs objected to producing certain responsive documents and information based on burden objections. (Dkt. 103.) Therefore, the Court directed Plaintiffs' counsel to provide a supplemental discovery response identifying as specifically as possible the scope of responsive documents or information believed to be on Mr. Pashaie's cell phone that will be produced and the scope of documents and information that Plaintiffs are objecting to producing. (Id.) The Court further directed that the supplemental response describe the documents and information as clearly as possible by, for example, describing who the communications are with and for what time period. (Id.)

The Court further discussed the issue of Mr. Pashaie's cell phone with the parties at a July 31, 2024 informal discovery conference. (Dkt. 106.) At the conclusion of the July 31, 2024 conference, the Court directed Plaintiffs' counsel to provide a supplemental discovery response by August 7, 2024. (Id.) The Court directed that the supplemental response should clearly state whether Plaintiffs agree to produce responsive communications on Mr. Pashaie's cell phone or whether Plaintiffs are objecting to producing any such communications. (Id.) To the extent Plaintiffs object to producing certain responsive communications, the Court directed that Plaintiffs' supplemental response identify as specifically as possible the scope of responsive documents or information believed to be on Mr. Pashaie's cell phone that will be produced and the scope of documents or information that Plaintiffs are objecting to producing. (Id.)

*3 However, the Court also strongly encouraged Plaintiffs to voluntarily agree to produce responsive text messages from Mr. Pashaie's cell phone given that he is a named plaintiff and his communications related to the subject matter of this lawsuit are highly relevant to the claims and defenses of the parties. (Id.) The Court specifically advised that federal courts routinely grant motions to compel text messages from cell phones where such communications are directly relevant to the matters in dispute. (Id. (citing case law).) The Court further advised that courts have also granted sanctions against parties for failing to search and preserve text messages on cell phones. (Id. (citing case law).) The Court directed that Plaintiffs' supplemental response describe the documents and information as clearly as possible so that Defendant can determine whether it wants to file a motion to compel. (Id.) Finally, the Court advised that following receipt of the supplemental discovery response, Defendant could file a motion to compel on this issue. (Id.)

On August 7, 2024, Plaintiffs served a General Supplemental Discovery Response Regarding Information on Michael Pashaie's Cell Phone (the “Supplemental Response”). (Dkt. 116-2 at 33-37.) As described in the Supplemental Response, Plaintiffs agreed to produce from Mr. Pashaie's cell phone: (1) the text conversation between Mr. Pashaie and Defendant's counsel; (2) the text conversation between Mr. Pashaie and Dr. Alan Lazar (a neighbor who has submitted photo/video evidence in this case); and (3) photos and videos on the cell phone related to the Sierra Mar Property (regardless off the source of those photos and videos). (Id. at 34.) Plaintiffs maintain in the response that Mr. Pashaie's main methods of communication are phone calls and in person meetings, but that he does use text messaging in his personal life. (Id. at 34-35.) Plaintiffs acknowledge that his cell phone contains text messages with family members such as David and Michelle Pashaie and that these text messages usually relate to family issues, but infrequently relate to business topics or topics related to this lawsuit. (Id. at 35.) Specifically, “Mr. Pashaie does not claim that the number of responsive text messages (i.e., text messages related to this lawsuit) would be zero.” (Id.) Plaintiffs further state that they will continue to collect, and produce, all photo and video evidence on the cell phone related to the lawsuit or to the Sierra Mar Property, but do not intend to produce any additional text messages among Mr. Pashaie and his family members. (Id.) Also in the Supplemental Response, Plaintiffs object to the forensic imaging of the cell phone and contend that a search of all text messages between Mr. Pashaie and his children is burdensome and oppressive. (Id. at 36.) The Supplemental Response is signed by Plaintiffs' counsel, but is not a verified response signed by Mr. Pashaie. (Id.) Defendant filed the instant Motion to Compel the day after Plaintiffs' served the Supplemental Response. (Dkt. 116.)

Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in federal cases and provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Relevance under Rule 26(b)(1) is defined broadly. See, e.g., Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) (noting that relevance for discovery purposes remains broad even after the 2015 amendments of the Federal Rules of Civil Procedure), aff'd sub nom., V5 Techs., LLC v. Switch, LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020). In addition to relevance, Rule 26(b)(1) requires that discovery be proportional to the needs of the case. Proportionality is determined by a consideration of the following factors: “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. Proc. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

*4 Federal Rule of Civil Procedure 34(a) provides that a party may serve on another a request for production of documents, electronically stored information, or tangible things within the scope of Rule 26(b). Where a party fails to produce documents requested under Rule 34, the requesting party may move to compel discovery. Fed. R. Civ. Proc. 37(a). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance.” Nguyen v. Lotus by Johnny Dung Inc., 2019 WL 3064479, at *2 (C.D. Cal. June 5, 2019) (internal quotation marks omitted). “Thereafter, the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Garces v. Pickett, 2021 WL 978540, at *2 (E.D. Cal. Mar. 16, 2021). “The opposing party is required to carry a heavy burden of showing why discovery was denied.” Id. (internal quotation marks omitted). Specifically, the party opposing discovery must show that the requested discovery is overly broad, unduly burdensome, irrelevant, or disproportional in light of the issues at stake. See Fed. R. Civ. Proc. 26(b)(2)(C). The opposing party must specifically detail the reason why the request is improper. See Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (“Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” (internal quotation marks omitted)).

As set forth above, the requests for production at issue are limited to communications between Mr. Pashaie and David Pashaie, Michele Pashaie, Paricheher Solimani, Shahla Pashaie, or Fariba Meskin, and the content of the communications must relate to the Sierra Mar Property, this lawsuit, the Slope Agreement, or the Declaration of Paricheher Solimani in Support of Motion for Preliminary Injunction. (Dkt. 116-2 at 27-30.) Based on the limitation that the communications must relate to four specific topics, the Court easily concludes that the requests for production seek highly relevant information. Indeed, the Sierra Mar Property and the Slope Agreement are at the very core of this lawsuit and communications related to this lawsuit are by definition relevant. The Declaration of Paricheher Solimani in Support of Motion for Preliminary Injunction is a draft declaration from one of the prior owners of the Sierra Mar Property talking about the negotiation of the Slope Agreement between Parviz Solimani and Plaintiffs. (Id. at 16-20.) Because this draft declaration provides information related to the drafting history of the Slope Agreement, it is also relevant to potentially interpret the intent of the signatories to the Slope Agreement. Thus, the Court concludes that Defendant has easily met its initial burden of demonstrating relevance. See Nguyen, 2019 WL 3064479, at *2.

By contrast, Plaintiffs have not met their burden to show why the discovery should be prohibited. See Garces, 2021 WL 978540, at *2. As an initial matter, Mr. Pashaie served verified discovery responses stating that for all of the requests, “Any responsive documents will be produced.” (Dkt. 116-2 at 27-31.) Mr. Pashaie did not assert any objection in these responses or otherwise identify any limit on his production of responsive text messages from his cell phone. (Id.) However, Rule 34(b)(2)(C) requires a party responding to requests for production to include any objection and “state whether any responsive materials are being withheld on the basis of that objection.” Moreover, “[i]t is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Thus, the Court concludes that Mr. Pashaie's objection to producing responsive communications from his cell phone is waived.

Regardless, even if the Court considered the Supplemental Response as a timely objection, Plaintiffs still have not met their heavy burden of showing why the requested discovery should be denied. See Garces, 2021 WL 978540, at *2; Beckman Indus., Inc., 966 F.2d at 476. As an initial matter, the Supplemental Response is signed by Plaintiffs' counsel and is not a verified response signed by Mr. Pashaie. (Dkt. 116-2 at 36.) However, Rule 33(b)(5) requires that responses to interrogatories must be signed by “[t]he person who makes the answers.” Therefore, the factual assertions contained in the Supplemental Response lack foundation and cannot be relied upon to meet Plaintiffs' burden. See, e.g., Nash-Perry v. City of Bakersfield, 2021 WL 3883681, at *5 (E.D. Cal. Aug. 31, 2021) (declining to consider unverified discovery responses and collecting similar cases).

*5 Moreover, even if the Court could consider the factual assertions in the Supplemental Response, the Supplemental Response simply does not provide enough information to support Plaintiffs' contention that a forensic search of Mr. Pashaie's cell phone would be unduly burdensome. (Dkt. 116-2 at 33-37.) For example, the Supplemental Response admits that there are responsive text messages on Mr. Pashaie's cell phone. (Id. at 36.) Indeed, the Supplemental Response admits that Mr. Pashaie sometimes texts with his family members about business topics and topics related to this lawsuit. (Id. at 35.) However, the Supplemental Response does not provide any information about the time or expense related to searching for those text messages. (Id. at 34-36); see also A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (“As an initial matter, general or boilerplate objections such as overly burdensome and harassing are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.” (internal quotation marks omitted)).

Plaintiffs' counsel submitted a declaration stating that he worked with Mr. Pashaie to run separate searches for “Sierra Mar” and “litigation” in his texts with his children, and his texts globally, and there were only a few responsive text messages. (Dkt. 123-1 at 2-3.) The declaration further states that Plaintiffs' counsel asked David and Michelle Pashaie to each independently conduct a search on their cell phones and their searches confirmed the findings on Mr. Pashaie's cell phone. (Id. at 3.) However, the declaration does not provide any detail on how Plaintiffs' counsel, David Pashaie, or Michele Pashaie ran the searches being described. (Id. at 2-3.) There is simply no foundation or context to give these searches any reliability. Thus, the Court concludes that the declaration from Plaintiffs' counsel is insufficient to meet Plaintiffs' heavy burden of showing why the requested discovery should be denied. See Garces, 2021 WL 978540, at *2; Beckman Indus., Inc., 966 F.2d at 476.

The Court notes that federal courts routinely grant motions to compel text messages from cell phones where such communications are directly relevant to the matters in dispute. See, e.g., RG Abrams Ins. v. L. Offs. of C.R. Abrams, 2021 WL 8895081, at *4 (C.D. Cal. Dec. 15, 2021) (“Thus, the Court FINDS that Plaintiffs' proposed Rule 34 inspection meets the relevance and proportionality requirements of Rule 26(b) with respect to Defendants' text messages from November 1, 2019 through June 30, 2020, and OVERRULES Defendants' relevance objection as to these text messages.”); Rodriguez v. Akbar, 2024 WL 2866894, at *3 (D. Nev. June 6, 2024) (“The Court finds that plaintiff is entitled to the requested cellphone records.”); Lux v. Buchanan, 2024 WL 1598805, at *2 (D. Nev. Apr. 12, 2024) (“Defendant does not dispute that responsive documents exist tha[t] can be produced, but Defendant asks that the Court honor Plaintiffs' compromise commitment to produce their own documents.... Both sides must disclose these records by April 30, 2024.”); Briggs v. OS Rest. Servs., LLC, 2019 WL 7195620, at *5 (C.D. Cal. Sept. 10, 2019) (“Possession, custody or control includes Plaintiff's ability to obtain emails, texts and other documents from his Hot Mail account and from the Apple iCloud. To the extent Plaintiff cannot retrieve all responsive documents from those locations, he is required under Rule 34 and this order to contact the providers of the relevant communication services to obtain the responsive documents.”).

Courts have also granted sanctions against parties for failing to search and preserve text messages on cell phones. See, e.g., John v. Cnty. of Lake, 2020 WL 3630391, at *6 (N.D. Cal. July 3, 2020) (“With regard to text messages, the individual Defendants testified that they searched only cursorily through their text messages for responsive messages and did not produce the key text message chain described above, and there was no attempt to image their cell phones or run a search across all their text messages for responsive messages.”); Gorman v. Douglas Cnty. Sheriffs' Off., 2024 WL 1211798, at *8 (D. Or. Mar. 21, 2024) (“Had Plaintiff simply produced the contents of his phone at the time they were requested, as he was obliged to do under the Rules, Defendants would not have been prejudiced and would have had no cause to pursue sanctions.”).

*6 As set forth above, the text messages at issue are highly relevant to core issues in the case. Mr. Pashaie is a named Plaintiff who was directly involved in the negotiation of the Slope Agreement, (Dkt. 1-1 at 3-7), and has communicated with his family members about this lawsuit. (Dkt. 116-2 at 34-35.) Therefore, for all of the reasons set forth above, the Court overrules Plaintiffs' objections to producing responsive text messages from Mr. Pashaie's cell phone, to the extent not already waived.

With regard to the remedy, Defendant seeks an order permitting Defendant to conduct a forensic examination of Mr. Pashaie's cell phone. (Dkt. 116-1 at 2.) However, it is unclear whether Defendant seeks to conduct the forensic examination or if Defendant is instead seeking an order compelling Plaintiffs to engage a vendor to perform a forensic examination of Mr. Pashaie's cell phone. (Id.) For example, Defendant argues in Reply that “a court-appointed, third party, forensic examiner who can take custody of Mr. Pashaie's phone, extract the data therein, analyze it, apply appropriate search terms and report the results is the only way to ensure that a diligent search is performed ....” (Dkt. 130 at 4.) The Court agrees that a forensic examination of Mr. Pashaie's cell phone is needed to ensure a diligent search of the phone and run search terms for responsive text messages. However, the Court believes that Plaintiffs are in the best position to engage a vendor to perform this review and can be trusted, with sufficient validation, to run appropriate searches and produce the responsive text messages. Plaintiffs have previously engaged an e-discovery expert at the Court's direction to assist with collection and review of voluminous emails using extensively negotiated search terms and so Plaintiffs have a track record of compliance with the Court's directions related to document production.

Defendant also seeks an award of reasonable expenses, including attorney's fees, incurred in bringing the Motion to Compel. (Dkt. 116-1 at 9.) Under Federal Rule of Civil Procedure 37(a)(5)(A), where 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 or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” As set forth above, the Court has granted the Motion to Compel and therefore is required to award reasonable expenses after giving Plaintiffs an opportunity to be heard. Defendant requested in the Motion to Compel an award of $5,850 in fees based on an hourly rate of $650. (Dkt. 116-1 at 9.) Thus, Plaintiffs were on notice of the requested award and specifically opposed the award in their Opposition. (Dkt. 123 at 9-12); see, e.g., RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 511 (C.D. Cal. 2022) (“And, as the Ninth Circuit has made clear, the opportunity to submit briefs satisfies the opportunity to be heard requirement.” (internal quotation marks omitted)). The Court has reviewed Plaintiffs' arguments opposing an award of expenses to Defendant and all of the arguments are based on the premise that the Motion to Compel should be denied. (Dkt. 123 at 9-12.) However, in light of the Court's ruling that the Motion to Compel should be granted, Plaintiffs have not provided any basis for the Court to decline to award reasonable expenses as required by Rule 37(a)(5)(A).

*7 Defendant's counsel has provided a declaration describing his experience and qualifications which support his hourly rate of $650. (Dkt. 116-2 at 3-4.) The declaration states that Defendant's counsel spent 4 hours drafting and preparing the Motion to Compel, and that Defendant's counsel anticipates spending an additional 3 hours reviewing any opposition and responding to same, and 2 hours preparing for and attending any hearing on the Motion to Compel. (Id. at 4.) However, Defendant's counsel never submitted a subsequent declaration with the Reply to provide evidentiary support for the actual number of hours spent reviewing Plaintiffs' Opposition and drafting the Reply. (Dkt. 130.) Accordingly, the evidence before the Court is insufficient to support Defendant's request for time spent reviewing the Opposition or drafting the Reply. Moreover, Defendant's counsel will not need to prepare for or attend a hearing on the Motion to Compel since the Court is granting the motion without a hearing. Therefore, the Court preliminarily awards Defendant 4 hours of time spent drafting and preparing the Motion to Compel at the rate of $650 per hour for a total of $2,600. Defendant's counsel shall have until September 13, 2024 to submit a supplemental declaration describing the time spent reviewing the Opposition and drafting the Reply. Plaintiffs shall have until September 20, 2024 to respond to the supplemental declaration. The Court will then issue a final ruling on the total award of reasonable expenses payable to Defendant. Plaintiffs shall be jointly and severally liable to pay the final award and shall have 30 days from the Court's final ruling on the award to make the payment.

Plaintiffs shall engage an e-discovery vendor that can image Mr. Pashaie's cell phone such that all of his texts can be searched. The parties previously engaged in an extensive meet and confer process with assistance from the Court to agree upon a set of key word search terms that would be run on Mr. Pashaie's email to identify documents responsive to Defendant's requests for production. The parties also agreed on a date range of January 1, 2014 to present. The Court Orders that Plaintiffs will use the same date range and same set of search terms already agreed upon for the search of Mr. Pashaie's cell phone. As a reminder, if a text message contains a search term, that simply means Plaintiffs have to review the text message for responsiveness. A positive hit does not necessarily mean the text message is responsive and must be produced. It may be the case that there are very few responsive text messages. However, given the relevance of such text messages and balanced against the cost of the search and the overall stakes of this litigation, the Court concludes that requiring Plaintiffs to conduct a forensic search of Mr. Pashaie's cell phone is proportional to the needs of the case. The Court Orders Plaintiffs to produce to Defendant and the Court via email (AJR_Chambers@cacd.uscourts.gov) a search term hit report showing the total number of documents searched and the total number of hits for each of the search terms by September 20, 2024. Plaintiffs shall complete their production of responsive text messages and attachments by October 4, 2024.

Finally, Plaintiffs shall pay Defendant at least $2,600 in reasonable expenses incurred in bringing this Motion to Compel. The Court will issue a final ruling on the amount of the award after Defendant's counsel submits a supplemental declaration and Plaintiffs have an opportunity to respond. Plaintiffs shall be jointly and severally liable for the final award and shall have 30 days from the Court's Order determining the final amount of the award to make the payment.

The hearing on the Motion to Compel set for September 11, 2024 at 1:30 p.m. is hereby VACATED as moot.

IT IS SO ORDERED.