Int'l Council for Veterinary Assessment v. Anivive Lifesciences, Inc.
Int'l Council for Veterinary Assessment v. Anivive Lifesciences, Inc.
2025 WL 559716 (C.D. Cal. 2025)
January 6, 2025
Mircheff, Brianna F., United States Magistrate Judge
Summary
The plaintiff filed a motion to compel the defendants to provide further responses and documents in response to their discovery requests. The defendants had previously responded and produced a small amount of documents, but the plaintiff found deficiencies and attempted to meet and confer with the defendants' counsel. When the defendants failed to respond, the plaintiff sought an informal discovery conference with the court, which the defendants did not attend. As a result, the court granted the plaintiff's motion and ordered the defendants to pay the plaintiff's fees.
Additional Decisions
Int'l Council for Veterinary Assessment
v.
Anivive Lifesciences, Inc., et al
v.
Anivive Lifesciences, Inc., et al
Case No.: 2:24-02866-JLS-BFM
United States District Court, C.D. California
Filed January 06, 2025
Counsel
J. Michael Keyes, Connor J. Hansen, Pro Hac Vice, Dorsey and Whitney LLP, Seattle, WA, Evan Everist, Pro Hac Vice, Dorsey and Whtney LLP, Minneapolis, MN, Kent J. Schmidt, Dorsey and Whitney LLP, Costa Mesa, CA, for Plaintiff.John Thomas Ryan, David Kowalski, Latham and Watkins LLP, San Diego, CA, Philip Charles Tencer, TencerSherman LLP, San Diego, CA, for Defendants.
Mircheff, Brianna F., United States Magistrate Judge
Proceedings: (In Chambers) Order Re: Plaintiff's Motion to Compel Further Responses and Documents (ECF 67)
*1 On December 5, 2024, Plaintiff International Council for Veterinary Assessment (“ICVA”) filed a Motion (ECF 67) seeking to compel Defendants Anivive Lifesciences, Inc.[1] and David Bruyette to provide further responses and documents in response to Plaintiff's Interrogatories and Requests for Production of Documents (collectively “Requests”) served on August 2, 2024. (Mot. at 2.)
On September 26, 2024, Defendants Anivive and Bruyette responded to the Requests and produced a total of thirteen pages of documents. (Mot. at 3.) On October 21, 2024, Plaintiff sent a letter to Defendants' counsel detailing numerous deficiencies in Defendants' written responses to the Requests and to their production of documents. (Mot. at 3 (citing Keyes Decl. ¶ 6, Ex. E).)
Plaintiff's counsel followed up on October 25, 2024, and October 29, 2024, attempting to schedule a meet and confer with Defendants' counsel. (Mot. at 3 (citing Keyes Decl. ¶ 7, Ex. F).) Receiving no response, Plaintiff's counsel drafted an email to the Court; he first sent the draft to Defendants' counsel, detailing the issues addressed in the Motion and seeking a pre-discovery informal discovery conference. (Mot. at 3 (citing Keyes Decl. ¶ 8, Ex. G).) Plaintiff's counsel sought Defendants' counsel's availability for the informal discovery conference and informed counsel that the email would be sent to the Court's email by end of day on November 13, 2024. (Mot. at 3 (citing Keyes Decl. ¶ 8, Ex. G).) Defendants' counsel did not respond and Plaintiff's counsel emailed the Court seeking an informal discovery conference; the conference was held on November 19, 2024, at 2:00 p.m. (ECF 63.) Defendants' counsel did not appear for the conference.[2] (ECF 65.)
At the conference, the Court authorized Plaintiff to file this Motion and also informed Plaintiff that it could seek to recover attorneys' fees associated with this dispute. (ECF 65.)
Legal Standard
Rule 26 of the Federal Rules of Civil Procedure provides that a party 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[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “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.” Id. Information need not be admissible in evidence to be discoverable. Id.
*2 Relevance “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter 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) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). Even so, the scope of discovery is not without limits as Rule 26(b) now provides that discovery is limited to information that is relevant to a claim or defense in the lawsuit and proportional to the needs of the case. The party seeking to compel discovery “has the initial burden of demonstrating relevance” under Rule 26. See Integon Preferred Ins. Co. v. Saavedra, 2019 WL 4228372, at *2 (C.D. Cal. July 12, 2019) (citations omitted). Thereafter, “[t]he 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.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D. 573, 575 (C.D. Cal. 2005)).
Analysis
Defendants were given the opportunity to meet and confer with Plaintiff relating to the discovery dispute, to participate in the Court's mandatory informal discovery conference, and to oppose Plaintiff's Motion, but did not do any of these things. Indeed, Defendants' failure to file an opposition to the Motion by itself is a basis to grant the Motion. See C.D. Cal. Local Rule 7-12 (“The failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion ....”).
In any event, the Court has reviewed Plaintiff's arguments and the subject Requests and finds that Plaintiff has demonstrated that the Requests seek information and documents that are relevant and proportional to the needs of the case. Defendants provided responses to the Requests and produced a handful of documents, but Plaintiff identified deficiencies with the responses and production. Defendants thereafter failed to support their objections and to justify their responses to the Requests. The Court finds Plaintiff's arguments about the deficiencies in Defendants' responses to be persuasive, particularly in the absence of any contrary argument.
For the reasons stated in Plaintiff's Motion, and because the Court deems Defendants' failure to file an opposition to the Motion to be consent to the granting of the Motion (L.R. 7-12), Plaintiff's Motion is granted.
No later than January 27, 2025:
(1) Defendant Bruyette shall produce all documents responsive to Request for Production numbers 3, 4, 5, 6, 7, 8, 9, and 10;
(2) Defendant Bruyette shall supplement or amend his response to Interrogatory number 10;(3) Defendant Anivive Lifesciences Inc. shall supplement or amend its responses to Request for Production numbers 3, 4, 5, 6, 7, 8, 9, and 10;(4) Defendant Anivive Lifesciences Inc., shall produce all documents responsive to Request for Production numbers 3, 4, 5, 6, 7, 8, 9, and 10; and(5) Defendant Anivive Lifesciences Inc. shall supplement or amend its response to Interrogatory number 10.
Plaintiff's Request for Fees
Rule 37 of the Federal Rules of Civil Procedures provides that when a court grants a discovery motion, and after providing an opportunity to be heard,[3] the court “must ... require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both” to pay the moving party's “reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). A court should not order such fees if the opposing party's response was “substantially justified” or if other circumstances make an award of expenses unjust. Id.
*3 In the Motion, Plaintiff persuasively argues why its request for fees is warranted under Rule 37, and states that with the Court's permission, it will provide a declaration to “demonstrate and detail the amount of fees to which Plaintiff is entitled.” (Mot. at 16.)
Defendants did not oppose the request for fees, and, as above, the Court deems that failure to be consent to granting the request. L.R. 7-12. Moreover, the Court finds no circumstances that would make award of fees to Plaintiff unjust.
Plaintiff's request for fees is therefore granted. The amount of fees to be awarded will be addressed by separate order.
No later than January 20, 2025, Plaintiff shall submit a declaration detailing the fees it contends it is entitled to recoup with respect to bringing this Motion, including the time it spent complying with this Court's pre-filing conference procedures.
The matter will be taken under submission upon receipt of Defendants' response, or once the time for filing that response has passed.
Failure to timely respond as directed herein may be construed as consent to the granting Plaintiff's full fee request. Defendants are further advised that failure to comply with this Court's Order may result in additional sanctions being imposed.
IT IS SO ORDERED.
Footnotes
Defendant Anivive Lifesciences, Inc. is alternatively referred to by both parties as “Anvive” (even in Defendants' own discovery responses). The Court's research confirms that the correct name is “Anivive” and will use that herein. The Court clerk is directed to correct the Court's docket to reflect the correct spelling.
Defense counsel did send an email after the conference apologizing for his failure to properly calendar the matter. The Court would be more inclined to write his nonappearance off as a minor calendaring issue if it were not part of a pattern of noncompliance that included failure to respond to emails seeking a meet and confer session and failure to timely oppose the Motion.
Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164-65 (9th Cir. 2003) (plaintiff given “opportunity to be heard” within meaning of rule 37 where plaintiff received notice of possibility of sanctions when defendant filed motion for costs, plaintiff allowed to submit responsive brief, and issues were such that evidentiary hearing would not have aided court's decisionmaking process).
As noted, Defendants already had the opportunity to respond to Plaintiff's Motion, including its request for fees, and squandered that opportunity.