*1 Pending before the Court is Plaintiff's Motion to Compel Defendant's Responses to Interrogatories and Requests for Production of Documents. ECF No. 109. The Court considered the Motion, the Opposition (ECF No. 117), and the Reply (ECF No. 118). The parties and the Court are fully versed in the facts underlying this dispute; hence, only facts specific to the instant Motion are discussed below.

I. Summary of the Arguments

Plaintiff brings its Motion under Federal Rule of Civil Procedure 37 and Local Rule 26-6. Plaintiff served its First Set of Interrogatories and First Set of Requests for Production of Documents (“RFPs”) in August 2022. Plaintiff now appears to seek to compel supplemental responses to Interrogatories 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 20, and 23, and RFPs 26, 27, 28, a second RFP numbered 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, and 42. ECF No. 109 at 3-20 (in footnotes).[1] Plaintiff, without application of law to facts, argues all objections asserted by Defendant David Kono (“Defendant”) should be struck because all discovery requests are “relevant and within the scope of the Federal Rules.” Id. at 24-26. Plaintiff also argues the “requested information is within Defendant's possession[sic] custody or control” without applying this standard to a single discovery request (id. at 26-27). Plaintiff further say that the discovery propounded is not overly broad, unduly burdensome, vague or ambiguous (id. at 27). The last arguments regarding breadth, burden, vagueness, and ambiguity are offered in two conclusory paragraphs. Id. Remarkably, Plaintiff then states, in three sentences with one case law cite, that Defendant waived privilege and work-product protections. Id. at 28. Plaintiff concludes with a single sentence claiming all other objections not discussed should be struck. Id.

Defendant's Opposition points out the failings of Plaintiff's Motion and argues he cannot be compelled to produce what he does not have and what is not in his custody or control. ECF No. 117 at 2-3, 5-9. Defendant further argues Plaintiff has not met the burden required to warrant a forensic examination of his cell phone and work computer. Id. at 9-10. Defendant submits Plaintiff offers nothing to support his request to overrule all of his objections as Plaintiff's “Motion—which purports to address a combined thirty-four ... Interrogatories and Document Requests in footnotes,” fails to “actually address[ ] any of them in substance.” Id. at 11.

*2 In Reply, Plaintiff argues Defendant carries the burden to show Plaintiff's discovery requests are over broad, burdensome or irrelevant, that Defendant “cherry-picked” certain discovery requests upon which to focus, and Plaintiff's meet and confer letter from September 30, 2022 provides the support needed for the Motion to Compel. ECF No. 118 at 2-3. Plaintiff argues Defendant has possession, custody, and control over his employer's documents (id. at 4-7), and erroneously likens the current case to a matter decided by this Court almost two years ago with respect to production of Defendant's cell phone and laptop computer. Id. at 7-8.

II. Discussion

While Rule 26 of the Federal Rules of Civil Procedure establish overall discovery parameters, a motion to compel requires a plaintiff to demonstrate it is entitled to the information and documents sought. Kane v. Pierce, Case No. 1:-6-cv-01564-OWW-GSA PC, 2010 WL 503048, at *1 (E.D. Cal. Feb. 5. 2010) (“[i]f Defendants object to one of Plaintiff's discovery requests, it is Plaintiff's burden on his motion to compel to demonstrate why he is entitled to production of the documents sought.”); Carter v. Fernandez, Case No. 1:08-cv-01841-AWI-DLB PC, 2011 WL 346521, at *2 (E.D. Cal. Feb. 1. 2011) (“[i]t is Plaintiff's burden as the movant to demonstrate what grounds he has to compel further response from Defendants.”); Glass v. Beer, Case No. 1:04-cv-05466-OWW-SMS PC, 2007 WL 913876, at *1 (E.D. Cal. Mar. 23, 2007) (“Plaintiff must inform the court which discovery requests are the subject of his motion to compel, and for each disputed response, inform the court why the information sought is relevant and why defendants’ objections are not justified”); Munoz-Munoz v. Locke, Case No. C10-1475-JCC, 2012 WL 12925012, at *1 (W.D. Wash. Oct. 5, 2012) (“[i]f a party seeks to compel another party to produce documents over its objection, the moving party bears the burden of demonstrating why an objection properly raised to a discovery request is deficient”) (internal citation omitted). Plaintiff fails to meet its burden.

Here, as explained above, Plaintiff's moving papers offers broad brush arguments regarding Defendant's deficiencies while failing to inform the Court why, for each (or any) disputed discovery response, Defendant's objections are not justified. The Court is not required to search for, review, and then analyze each interrogatory and document request listed in the 15 pages of footnotes in Plaintiff's moving papers to determine whether Defendant's responses were adequate. Agarwal v. Oregon Mutual Ins. Co., Case No. 2:11-cv-01384-LDG-CWH, 2013 WL 211093, at *3 (D. Nev. Jan. 18, 2013). It is Plaintiff's job to identify and argue why any given answer to a discovery request fails to be responsive and must be supplemented. Plaintiff's Motion fails to do so and Plaintiff's Reply fairs no better. See ECF No. 118.

With respect to striking objections, the Court finds no basis for a waiver of attorney-client privilege or the attorney work-product doctrine. Plaintiff fails to point to a single response by Defendant in which the attorney-client privilege or work product doctrine was asserted and the Court found none. ECF No. 109 at 5-20 (footnotes). Without identification of an asserted privilege or work product response to a discovery request, the Court has no basis to conclude a waiver has occurred.

Plaintiff takes issue with Defendant's claim that he has nothing responsive to numerous interrogatories and document requests at issue. However, all Plaintiff offers to support his argument is the generalized contention that Defendant's responses are deficient. ECF No. 118 at 2. Plaintiff's assertion of deficiency is an insufficient “basis upon which to grant ... [a] motion to compel.” Lewis v. Velasquez-Miranda, Case No. 2:21-cv-0932-JAM-EFB P, 2022 WL 2119030, at *1 (E.D. Cal. June 13, 2022). So too is Plaintiff's disbelief that Defendant does not have responsive documents or information. See ECF No. 109 at 25 (in which Plaintiff states “[t]his cannot be the case”). Jackson v. Paramo, Case No. 17-cv-882-CAB (BLM), 2019 WL 246564, at *3 (S.D. Cal. Jan. 17, 2019) (denying motion to compel, court explained “Defendant has responded that no responsive documents exist. Plaintiff has not provided any reason or evidence indicating that this response is untruthful and the Court has no reason to believe that Defendant is withholding responsive documents”); see also Bethea v. Comcast, 218 F.R.D. 328, 329 (D.D.C. 2003) (a party's suspicion that another party has failed to respond to document requests does not justify compelled inspection); Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D.D.C. 2000) (a party's mere suspicion that its opponent must have documents that it claims not to have is insufficient to warrant granting motion to compel). The Court cannot order Defendant to produce information he does not have and for which there is no real evidence to the contrary. Porter v. Gore, Case No. 18-cv-1221-GPC-LL, 2020 WL 1493615, at *5 (S.D. Cal. Mar. 27, 2020) (“A court cannot order a party to produce documents that do not exist .... A plaintiff's mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel”) (citations and quotations omitted); Estrada v. Macis, Case No. 1:15-cv-01292-AWI-SAB (PC), 2017 WL 4151187, at *3 (E.D. Cal. Sept. 19, 2017) (“Absent evidence to the contrary, not present here, Plaintiff is required to accept defendant's representation that such documentation either does not exist or cannot be located ...”); Sundance Image Technology, Inc. v. Cone Editions Press, LTD., Civil No. 02-cv-2258 B (AJB), 2005 WL 8173278, at *7 (S.D. Cal. Aug. 19, 2005) (“Defendants stated in their response to each of these requests that there either are no responsive documents or that they have no responsive documents. While this may not be the response that Plaintiff was looking for, it is a proper response under Rule 34 ...”).

*3 Plaintiff offers the conclusion that all the information it seeks is in Defendant's possession, custody or control. ECF No. 109 at 26 (“[t]he requested information is within Defendant's possession[sic] custody or control, especially regarding personal and business communications and an employee's ability to obtain certain business information from his current employer.”). Plaintiff offers no analysis of its conclusion that would allow the Court to reach the same outcome. Id.

Further, Plaintiff's moving papers discusses one case, Villery v. Crounse, Case No. 18-cv-01623, 2021 WL 5040379 (E.D. Cal. Oct. 29, 2021), to support its contention. The facts of Villery are distinguishable from the case at bar. In Villery, the defendant initially claimed he was in possession, custody, and control of responsive documents, but required the plaintiff to narrow the requests. Id. The defendant then retired and claimed he no longer could access documents requested despite the narrowed requests. The Court rejected the defendant's new response stating “it is clear that Defendant was in possession, custody, or control of the subject emails in November of 2019. Defendant did not retire from CDCR until July of 2020 .... Defendant cannot now raise a claim that he is not in possession of the emails, when he had 10 months to retrieve the emails before his retirement.” Id. at 3 (emphasis in original). Defendant in the instant case is not situated similarly to the defendant in Villery as he never contended he possessed, controlled or had custody over his employer's documents. Further, the court in Villery denied the plaintiff's motion to compel to the extent certain requests were overbroad and others sought documents outside the defendant's custody and control. Id. at **9-10. In sum, Villery is not a case on which this Court will rely to find Defendant should be compelled to provide supplemental responses to interrogatories or document requests.

Plaintiff argues possession, custody, and control is a factual inquiry; however, the only fact offered by Plaintiff (first cited in its Reply) is that Brooks produced documents in response to a subpoena that “were responsive documents in at least Defendant's email.” ECF No. 118 at 7. Plaintiff then says “[a]t the very least, Defendant had access to his personal email addresses and failed to produce backup files for review.” Id. As explained in WSOU Investments, LLC v. Salesforce, Inc., Case No. 3:23-cv-00023-RCJ-CSD, 2023 WL 8556305 (D. Nev. Dec. 11, 2023), it is Plaintiff's burden to demonstrate Defendant is in possession, custody, and control of the documents sought. Id. at *8 (citing as follows: “United States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (‘The party seeking production of the documents [ ] bears the burden of proving that the opposing party has such control.’) .... Control is defined as ‘the legal right to obtain documents upon demand.’ In re Citric Acid Litig., 191 F.3d at 1107 (citation omitted). Whether there is such a ‘[l]egal right is evaluated in the context of the facts of each case.’ Thomas v. Hickman, 2007 WL 4302974, at *14 (E.D. Cal. Dec. 6, 2007)”). Moreover, the Ninth Circuit rejects the argument that a party's “practical ability” to access documents establishes the legal control the Ninth Circuit requires. In re Citric Acid Litigation, 191 F.3d 1090, 1107-08 (9th Cir. 1999).

Plaintiff's statement that Defendant, “at the very least,” had access to his email addresses does not demonstrate he had the legal right to disclose whatever it is Plaintiff claims his employer, Brooks, ultimately disclosed in response to a subpoena. Plaintiff also does not explain what it is that it believes Defendant may have that has not been disclosed by Defendant or Brooks itself. In sum, Plaintiff has not carried its burden of demonstrating Defendant is in possession, custody and control of documents sought, but not produced.

*4 Plaintiff's Motion, in its opening paragraph, states it is seeking production of Defendant's “personal phone and Brooks-issued laptop.” ECF No. 109 at 1, 3. Thereafter there is no mention in the Motion itself of Defendant's personal phone. See id., generally. Upon reviewing the Motion, the Court found no document request seeking production of Defendant's personal phone. Id. The same is true with respect to production of Defendant's Brooks issued laptop. Id. Said again, there does not appear to have been a request for the production of these items made by Plaintiff that Defendant refused. Id. at 1, 3, 22, 23. Plaintiff's moving papers offers no argument in favor of production of Defendant's phone and work laptop. Id., generally. In Reply Plaintiff points to a case that is factually distinct in which a party was ordered to produce a cellular telephone based on the history of the case that cannot be likened to the case at bar. See Ignite Spirits v. Consulting by AR, LLC, Case No. 2:21-cv-01590-JCM-EJY, 2022 WL 3346754 (D. Nev. Aug. 11, 2022). As explained in Ignite Spirits, “a forensic examination of an electronic device” will be ordered “only after a finding of some discovery violation.” Id. at *4 (internal citation omitted). Citing Addison v. Monarch & Associates, Inc., Case No. CV 14-00358-GW (JEMx), 2016 WL 11530424, at *1 (C.D. Cal. Nov. 10, 2016), the Court further noted that “a forensic examination of a computer should not be ordered as a matter of course.” Id.

In its Motion Plaintiff provides nothing at all in support of the request to compel production of Defendant's personal cell phone or his work issued computer. There is not a shred of argument explaining why Plaintiff is entitled to examine a competitor's computer or a personal cell phone. See ECF No. 109. In Reply, Plaintiff alleges facts clearly available when filing the Motion to Compel. ECF No. 118 at 8. Plaintiff also says Defendant “admitted ... he used his cell phone to text certain Bass Customers.” Id. First, the testimony relied upon by Plaintiff (Exhibits 14 and 15 to the Reply) is not Defendant's testimony. Second, that Defendant admits to using his cell phone to text his Bass customers does not support an order requiring production of Defendant's personal phone or work computer for a examination by Plaintiff. That Defendant communicated with customers is not equivalent to evidence that Defendant did so in a manner that violated an obligation found in a non-disclosure agreement. Again, if Plaintiff's belief to the contrary were sufficient to warrant examination then all that would be needed in any case is an assertion of disbelief by one party against another. This is not the law and, indeed, Plaintiff provides no support for such a position.

III. Order

Accordingly, and based on the foregoing, IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Defendant's Responses to Interrogatories and Requests for Production of Documents (ECF No. 109) is DENIED.

Dated this 17th day of April, 2024.