The Eclipse Group LLP v. Target Corporation et al, No. 3:2015cv01411 - Document 134 (S.D. Cal. 2017)

Court Description: ORDER Granting in Part and Denying in Part Defendants 108 Motion to Compel; 109 Motion to Compel; 110 Motion to Compel. It is ordered that Defendants' motion to compel further response to RFAs 1-4, 12, 13, 17, and 22 is denied. De fendants' motion to compel further response to RFAs 15, 33, 40, 51, 55, and 56 is granted. Defendants' motion to compel further response to RFAs 5, 6, 8, 9, 11, 14, 16, 18, 19, 20, 21, 24-26, 28, 29, 31, 41, 42, 50, 57, and 58 is denied as moot. Defendants' motion to compel additional responses to RFPs 1-9, 10-13, 15, 16-21, 24-29, 33-36, 37-39, 41, 44-48, 47(- 2), 48(-2), and 50 is granted. Defendants' motion to compel additional responses to RFPs 22, 23, 38, 49, and 51 is denied. Defendants' motion to compel additional responses to RFP 52 is granted in part. Defendants' motion to compel additional responses to RFPs 31 and 32 is denied as moot. Defendants' motion to compel further response t o interrogatories 1, 2, 4-11, 13, and 15 is granted. Defendants' motion to strike Plaintiff's entire response with the exception of the word "no" to Interrogatory 12 is granted. For interrogatory no. 3, if the only responsive document is the indemnity agreement as Plaintiff suggests, Plaintiff does not need to supplement its response. If it is inaccurate, Plaintiff must serve a supplemental response. Defendants' motion to compel further response to interrogatori es 14, 5(KMART) is granted in part. Defendants' motion to compel further response to interrogatory 16 is denied as moot. Plaintiff must serve all supplemental responses or declarations on or before 7/7/2017. Defendants' request for sanctions is denied. Signed by Magistrate Judge Barbara Lynn Major on 6/21/2017. (dxj)
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The Eclipse Group LLP v. Target Corporation et al Doc. 134 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 15cv1411-JLS (BLM) THE ECLIPSE GROUP LLP, ORDER GRANTI NG I N PART AND DENYI NG I N PART DEFENDANTS’ MOTI ONS TO COMPEL Plaintiff, 11 12 v. 13 TARGET CORPORATION, et al, 14 [ ECF Nos. 108-110] Defendants. 15 16 17 18 19 20 21 22 23 Currently before the Court are Defendants’ April 17, 2017 motions to compel Plaintiff to provide further responses to Defendants’ (1) Requests for Admission [ ECF No. 108-1 (“RFA MTC”)] , (2) Request for Production of Documents [ ECF No. 109-1 (“RFP MTC”)] , and (3) Interrogatories [ ECF No. 110-1 (“ROG MTC”)] , Plaintiff’s April 24, 2017 oppositions to Defendants’ motions [ ECF No. 119 (“RFA Oppo.”), ECF No. 120 (“RFP Oppo.”), and ECF No. 121 (“ROG Oppo.”)] , and Defendants’ May 1, 2017 consolidated reply [ ECF No. 125 (“Reply”)] . For the reasons set forth below, Defendants’ motions are GRANTED I N PART AND DENI ED I N PART. 24 PROCEDURAL BACKGROUND 25 26 27 Defendants served their First Sets of Requests for Admissions (“RFAs”), Requests for Production of Documents (RFPs”) and Interrogatories (“ROGs”) on Plaintiff on February 22, 2017. RFA MTC at 7; see also ECF No. 108-2, Declaration of Jason Cirlin in Support of 28 1 15cv1411-JLS (BLM) Dockets.Justia.com 1 Defendants’ Motion to Compel Plaintiff to Provide Further Responses to Requests for Admissions 2 (“RFA Cirlin Decl.”) at 2, RFP MTC at 7, ECF No. 109-2, Declaration of Jason Cirlin in Support of 3 Defendants’ Motion to Compel Plaintiff to Provide Further Responses to Requests for Production 4 (“RFP Cirlin Decl.”) at 2, ROG MTC at 7, and ECF No. 110-2, Declaration of Jason Cirlin in Support 5 of Defendants’ Motion to Compel Plaintiff to Provide Further Responses to Interrogatories (“ROG 6 Cirlin Decl.”) at 2. 7 objections. RFA MTC at 7; see also RFA Cirlin Decl. at 2, Exhs. A-C, RFP MTC at 7, RFP Cirlin 8 Decl. at 2, Exh. A-C, ROG MTC at 7, and ROG Cirlin Decl. at 2, Exhs. A-C. On April 3, 2017, 9 defense counsel held a telephone conference with Plaintiff’s counsel to discuss the deficient 10 responses. RFA Cirlin Decl. at 2, Exh. D; RFP Cirlin Decl. at 2-3, Exh. D, and ROG Cirlin Decl. at 11 2, Exh. D. The parties were unable to resolve their dispute. Id. Plaintiff served its responses on March 24, 2017 consisting of several 12 On April 11, 2017, the District Court denied Intervenor’s motion for summary adjudication 13 to allow time for the instant discovery motions to be considered before deciding Intervenor’s 14 motion on the merits. RFA MTC at 7; see also RFP MTC at 7, ROG MTC at 7, and ECF No. 102. LEGAL STANDARD 15 16 The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: 17 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 18 19 20 21 22 23 Fed. R. Civ. P. 26(b)(1). 24 District courts have broad discretion to determine relevancy for discovery purposes. See 25 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion 26 to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must 27 limit discovery where the party seeking the discovery “has had ample opportunity to obtain the 28 information by discovery in the action” or where the proposed discovery is “unreasonably 2 15cv1411-JLS (BLM) 1 cumulative or duplicative,” “obtain[ able] from some other source that is more convenient, less 2 burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). 3 DEFENDANTS’ POSI TI ON 4 Defendants request an order from the Court requiring Plaintiff (1) to fully respond in 5 writing and under oath to Defendant Target’s Requests for Admission (“RFAs”) 1-6, 8, 9, 11-22, 6 24-26, 28-29, 31, 33, 40-42, 50-51, and 55-58 and the corresponding RFAs of Defendants Kmart 7 Corporation and Toys “R” US, Inc. [ RFA MTC at 7], (2) to further respond to Defendant Target’s 8 RFPs 1-6, 8-12, 15, 20, 22-24, 26-29, 31-35, 37, 38-39, 41, 44, 47(-2), 48(-2), 49, 51, and 52 9 and the corresponding RFPs of Defendants Kmart Corporation and Toys “R” US, Inc. [ RFP MTC 10 at 7] , and (3) to further respond to Defendant Target’s ROGs 1-16 and the corresponding ROGs 11 of Defendants Kmart Corporation and Toys “R” US, Inc., as well as Kmart ROG No. 5 [ ROG MTC 12 at 7] . Defendants argue that the requests are relevant because one of their defenses is that 13 Intervenor may not pursue equitable claims for compensation since the work he performed was 14 as an agent for Plaintiff and the requests directly relate to the express agreements that control 15 the payment of compensation and the intent of the parties. RFA MTC at 8-9, RFP MTC at 9-10, 16 ROG MTC at 8-9. 17 Intervenor and Plaintiff violated their ethical duties and to their claim of equitable estoppel. RFA 18 MTC at 10, RFP MTC at 11-12, ROG MTC at 10-11. Finally, Defendants argue that the requests 19 are relevant because Plaintiff and Intervenor’s billing practices are directly at issue in this 20 litigation. RFA MTC at 10-11, RFP MTC at 12, ROG MTC at 11. Defendants note that Plaintiff 21 has the burden of proof to demonstrate that their requests are improper. RFA MTC at 11, RFP 22 MTC at 13, ROG MTC at 11. Defendants further argue that the requests relate to their position that 23 PLAI NTI FF’S POSI TI ON 1 24 Plaintiff begins its objections by stating that it has provided first amended responses 25 “which hopefully will resolve many if not all of the issues raised in Defendants’ motions.” RFA 26 27 1 28 The memorandums in opposition to Defendants’ motions are identical. See RFA Oppo. at 2, RFP Oppo. at 2, and ROG Oppo. at 2. 3 15cv1411-JLS (BLM) 1 Oppo. at 2, RFP Oppo. at 2, ROG Oppo. at 2. Plaintiff continues by contending that Defendants 2 should not be permitted to bring the instant motion because discovery has closed and asking if 3 the Court has chosen to “simply ignore[ ] the discovery cutoff” in this case without motion or any 4 determinations regarding due diligence. 5 attempting to use discovery to obtain information about issues and claims that they have failed 6 to properly plead including (1) a theory of third-party beneficiary, (2) whether or not Intervenor 7 can seek redress directly from Defendants, and (3) whether or not Intervenor and Plaintiff 8 violated the Cannon of Ethics and therefore cannot recover their fees. Id. at 2-5. Finally, 9 Plaintiff contends that Defendants’ arguments regarding Intervenor’s contract with Plaintiff has 10 no merit. Id. at 6. Plaintiff notes that it has supplemented its responses to almost all of the 11 discovery requests to which it previously objected, not because the objections were without 12 merit, but “to avoid the necessity of this Court having to make decisions concerning the status 13 of the pleadings and/ or amendments to the pleadings and/ or legal sufficiency of Defendants’ 14 new un-pled, theoretical defenses” which are decisions to be made by the trial court at a later 15 time. Id. at 7. Plaintiff does not address each individual request in his oppositions. See RFA 16 Oppo., RFP Oppo, and ROG Oppo. Id. Plaintiff next contends that Defendants are 17 TI MELI NESS 18 As an initial matter, Defendants’ motion is not untimely and Defendants are not required 19 to explain why they are entitled to file the instant motion. Plaintiff’s confusion and concern that 20 the Court is treating discovery deadlines “as suggestions” is difficult to understand as this Court’s 21 November 21, 2016 Scheduling Order states that 24 [ a] ll discovery motions must be filed within 30 days of the service of an objection, answer or response which becomes the subject of dispute or the passage of a discovery due date without response or production, and only after counsel have met and conferred and have reached impasse with regard to the particular issue. 25 See ECF No. 68 at 2. In order to assist Plaintiff who is “unclear as to the meaning of the Court’s 26 orders,” this means that a discovery motion may be brought even after the close of discovery if 22 23 27 28 4 15cv1411-JLS (BLM) 1 it is within the thirty-days described above.2 Here, Plaintiff served its responses to Defendants’ 2 RFAs, RFPs, and ROGs on March 24, 2017. RFA MTC at 7; see also RFA Cirlin Decl. at 2, Exhs. 3 A-C, RFP MTC at 7, RFP Cirlin Decl. at 2, Exh. A-C, ROG MTC at 7, and ROG Cirlin Decl. at 2, 4 Exhs. A-C. Thirty days from March 24, 2017 is April 23, 2017. Defendants filed the instant 5 motion on April 17, 2017 before the thirty days expired. See RFA MTC; see also RFP MTC, and 6 ROG MTC. Accordingly, not only were the motions not untimely, they were early and will be 7 considered by this Court. Id. REQUESTS FOR ADMI SSI ON 3 8 9 Legal Standard 10 “A party may serve on any other party a written request to admit, for purposes of the 11 pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to :(A) 12 facts, the application of law to fact, or opinions about either; and (B) the genuineness of any 13 described documents.” Fed. R. Civ. P. 36(a)(1). “Each matter must be separately stated.” Fed. 14 R. Civ. P. 36(a)(2). A responding party must admit a matter, specifically deny a matter, or state 15 in detail why they cannot truthfully admit or deny it. Fed. R. Civ. P. 36(a)(4). If a matter is 16 denied, the “denial must fairly respond to the substance of the matter; and when good faith 17 requires that a party qualify an answer or deny only a part of a matter, the answer must specify 18 the part admitted and qualify or deny the rest.” Id. A responding party may object to a request 19 if they state the ground for the objection. Fed. R. Civ. P. 36(a)(5). The requesting party may 20 seek a decision from the court determining the sufficiency of an answer or objection. Fed. R. 21 Civ. P. 36(a)(6). The court must order that an answer be served unless it finds an objection 22 23 2 Fact discovery closed on April 3, 2017. ECF No. 68 at 1. 24 3 25 26 27 28 This motion refers to the RFAs propounded by Defendant Target, but the three sets of RFAs are comparable to each other and Defendants request that to “the extent the Court orders [ Plaintiff] to further respond to any RFAs of Target . . . . the order apply equally to the comparable RFAs propounded by Defendants Toys “R” Us, Inc. and Kmart Corporation.” RFA MTC at 6-7. Defendants’ request is GRANTED. If Plaintiff is ordered to provide further responses, it must do so for Defendants Target, Kmart Corporation, and Toys “R” Us. 5 15cv1411-JLS (BLM) 1 justified. Id. “On finding that an answer does not comply with this rule, the court may order 2 either that the matter is admitted or that an amended answer be served.” Id. 3 Analysis 4 RFAs 1-4 and 22 and Plaintiff’s responses are as follows: 5 RFA 1: “Admit that Aquawood, LLC hired ECLIPSE to represent Target Corporation in 6 Worldslide, LLC v. Target Corporation, Case No. 2:11-CV-3350-MCE (E.D. Cal.).” 7 8 RFA 2: “Admit that Aquawood, LLC hired ECLIPSE to represent Target Corporation in Worldslide, LLC v. Target Corp., Case No. 2:11-cv-872-MCE (E.D. Cal.).” 9 10 RFA 3: “Admit that Aquawood, LLC hired ECLIPSE to represent Target Corporation in Worldslide, LLC v. Target Corp., Case No. 2:11-cv-873-MCE (E.D. Cal.).” 11 RESPONSE TO RFAs 1-3: “Objection. The issues in this case involve the value of the 12 services rendered to Defendants with their knowledge and consent. Eclipse relationship with 13 Aquawood is not relevant to that issue.” SUPPLEMENTAL RESPONSE to RFAs 1-3: “Admit 14 that Eclipse was hired by Aquawood as well as by Target.” RFA Oppo. at Exh. A. 15 RFA 4: “Admit that MANLEY4 hired ECLIPSE to represent Target Corporation in the Adams 16 LITIGATION.” 5 RESPONSE TO RFA 4: “Objection. The issues in this case involve the value 17 of the services rendered to Defendants with their knowledge and consent. Eclipse relationship 18 with Manley is not relevant to that issue.” SUPPLEMENTAL RESPONSE TO RFA 4: “Admit 19 that Eclipse was hired by Manley as well as by Target.” RFA Oppo. at Exh. A. 20 RFA 22: “Admit that Aquawood, LLC selected ECLIPSE to represent Target Corporation 21 in the litigation over U.S. Patent No. 7,309,302.” RESPONSE TO RFA 22: “Objection. The 22 issues in this case involve the value of the services rendered to Defendants with their knowledge 23 and consent. 24 25 4 26 27 28 Eclipse relationship with Aquawood is not relevant to that issue.” For the purposes of these Requests for Admissions, the term "MANLEY" shall mean and refer to Manley Toys, Ltd. RFA Oppo. at Exh. A. 5 The term "Adams LITIGATION" shall mean and refer to Adams v. Target Corp., Case No. 13cv-5944-GHK-PJWx (C.D. Cal. 2013). RFA Oppo. at Exh. A. 6 15cv1411-JLS (BLM) 1 SUPPLEMENTAL RESPONSE TO RFA 22: “Deny. Eclipse was selected by both Target and 2 Aquawood.” RFA Oppo. at Exh. A. 3 Defendants argue that the supplemental answers for RFAs 1-4 are “incomplete, evasive 4 and non-responsive” because the fact that Target also hired/ selected Plaintiff is not responsive 5 to the RFAs. 6 “incomplete, evasive, and non-responsive” as the RFA is directed to Aquawood and not Target. 7 Id. at 10. Defendants’ motion to compel further response to RFAs 1-4 and 22 is DENI ED. 8 Plaintiff has responded to the RFAs with reasonable qualifications because the RFAs are unclear 9 since they can be interpreted to seek admission that only Aquawood hired/ selected Eclipse or 10 that Aquawood was one of the entities that hired/selected Eclipse. See Mkt. Lofts Cmty. Assoc. 11 v. Nat'l Union Fire Ins. Co., 2016 WL 6237909, at * 9 (C.D. Cal. Mar. 9, 2016) (stating that 12 “[ g] enerally, qualification is permitted if the statement, although containing some truth, ‘... 13 standing alone out of context of the whole truth ... convey[ s] unwarranted and unfair 14 inferences.”) (quoting Diederich v. Dep't of Army, 132 F.R.D. 614, 619 (S.D.N.Y. 1990) (quoting 15 Johnstone v. Cronlund, 25 F.R.D. 42, 44 (E.D. Pa. 1960)); see also Fed. R. Civ. P. 36(a)(4) 16 (stating that “when good faith requires that a party qualify an answer or deny only a part of a 17 matter, the answer must specify the part admitted and qualify or deny the rest”). Reply at 7. Defendants argue that the supplemental answer for RFA 22 is 18 Defendants state that Plaintiff admitted RFAs 5, 66, 16, 18, and 58, “but has not provided 19 any answers to the comparable requests directed to Kmart and TRU.” Reply at 7. Defendants’ 20 motion to compel further response to RFAs 5, 6, 16, 18, and 58 is DENI ED AS MOOT, however, 21 Plaintiff is ordered to formally serve the supplemental responses on Defendants Kmart and Toys 22 “R” Us. 23 RFAs 12, 13, 15, and 17 and Plaintiff’s responses are as follows: 24 RFA 12: “Admit that ECLIPSE did not obtain the informed written consent of Target 25 Corporation regarding a potential conflict of interest as provided under California Rules of 26 27 6 28 Defendants note that “RFA No. 6 was admitted unconditionally, and therefore is no longer at issue here.” Reply at 4 n3. 7 15cv1411-JLS (BLM) 1 Professional Conduct, Rule 3-310(C) during its joint representation of Target Corporation in the 2 Worldslide LITIGATION.” RESPONSE TO RFA 12: “Objection. That has not been pled, and is 3 not an issue in this case.” SUPPLEMENTAL RESPONSE TO RFA 12: “Deny. There was no 4 potential conflict of interest between the parties.” RFA Oppo. at Exh. A. 5 RFA 13: “Admit that ECLIPSE did not obtain a conflict of interest waiver from Target 6 Corporation during its joint representation of Target Corporation in the Worldslide LITIGATION.” 7 RESPONSE TO RFA 13: “Objection. That has not been pled, and is not an issue in this case.” 8 SUPPLEMENTAL RESPONSE TO RFA 13: “Admit. There was no conflict of interest, therefore 9 no need for a conflict of interest waiver.” RFA Oppo. at Exh. A. 10 RFA 15: “Admit that ECLIPSE did not obtain the informed written consent of Target 11 Corporation as provided under the California Rules of Professional Conduct, Rule 3-31[ 0] (F) 12 concerning the arrangement with MANLEY to pay the legal services of ECLIPSE during ECLIPSE's 13 representation of Target Corporation in the Worldslide LITIGATION.” RESPONSE TO RFA 15: 14 “Objection. That has not been pled, and is not an issue in this case.” 15 RESPONSE TO RFA 15: “Deny. Defendants agreed orally and in writing to Plaintiff’s 16 representation.” RFA Oppo. at Exh. A. SUPPLEMENTAL 17 RFA 17: “Admit that ECLIPSE had a duty to specify whether Target Corporation was 18 responsible for paying ECLIPSE's legal services performed in the Worldslide LITIGATION.” 19 RESPONSE TO RFA 17: “Objection. The request is vague and ambiguous. Duty to specify, to 20 whom? In addition, this has nothing to do with the issues in this case which are limited to the 21 value of the services provided by Plaintiff to Defendants with their knowledge and consent.” 22 SUPPLEMENTAL RESPONSE TO RFA 17: “Objection. This calls for a legal opinion, and the 23 request does not state any basis upon which it makes any claim of such duty.” RFA Oppo. at 24 Exh. A. 25 Defendants argue that the supplemental answers for RFAs 12, 13, and 15 are “evasive” 26 because the qualified denials to RFAs 12 and 15 are not directly responsive to the RFAs, “but 27 rather based upon [ Plaintiff’s] contention that there was no need for informed consent.” Reply 28 at 7-8. Defendants also argue that the supplemental objections to RFA 17 should be waived as 8 15cv1411-JLS (BLM) 1 untimely since they differ from Plaintiff’s initial objections. Id. at 8. Additionally, Defendants 2 reply that RFAs may be directed to “facts, the application of law to fact or opinions about either” 3 and note that Plaintiff fails to address the authorities cited in Defendants’ motion. Id. 4 Defendants’ motion to compel further response to RFAs 12, 13, and 17 is DENI ED. 5 Plaintiff has admitted or denied RFAs 12 and 13 with reasonable and relevant qualifications. See 6 Mkt. Lofts Cmty. Assoc., 2016 WL 6237909, at * 9 (“[ g] enerally, qualification is permitted if the 7 statement, although containing some truth, ‘... standing alone out of context of the whole truth 8 ... convey[ s] unwarranted and unfair inferences.”) (internal citations omitted). The Court agrees 9 with Plaintiff’s initial response to RFA 17 and finds that the request is vague and ambiguous as 10 to “duty to specify” to whom. 11 Defendants’ motion to compel further response to RFP 15 is GRANTED. Plaintiff’s 12 supplemental response is hereby STRI CKEN. Plaintiff’s supplemental response is not 13 responsive to the RFA which addresses Defendants’ consent to a particular arrangement as 14 opposed to Defendants’ consent to Plaintiff’s overall representation. 15 RFAs 33, 51, and 40 and Plaintiff’s responses are as follows: 16 RFA 33: “Admit that ECLIPSE never disclosed to Target Corporation, at the time ECLIPSE 17 commenced its representation in the Worldslide LITIGATION, that Target Corporation would be 18 responsible for paying ECLIPSE's legal fees.” RESPONSE TO RFA 33: “Objection. This request 19 has nothing to do with the issue of the value of the services provided to Defendants within their 20 knowledge and consent.” 21 knowledge.” RFA Oppo. at Exh. A. SUPPLEMENTAL RESPONSE TO RFA 33: “Plaintiff is without 22 RFA 51: “Admit that ECLIPSE never disclosed to Target Corporation at the time ECLIPSE 23 commenced its representation in the Adams LITIGATION that Target Corporation would be 24 responsible to pay for the legal fees.” RESPONSE TO RFA 51: “Objection. This case is based 25 on the value of the services rendered to Defendants with their full knowledge and consent.” 26 SUPPLEMENTAL RESPONSE TO RFA 51: “Plaintiff is without knowledge.” RFA Oppo. at Exh. 27 A. 28 RFA 40: “Admit that the legal services ECLIPSE performed in Aquawood, LLC v. 9 15cv1411-JLS (BLM) 1 Worldslide, LLC, Case No. 11-cv-5611-JFW-Ex (C.D. Cal. 2011) would have been performed 2 whether or not the Worldslide LITIGATION had been filed.” 3 “Objection. Calls for speculation.” 4 information is unknown to Eclipse.” RFA Oppo. at Exh. A. RESPONSE TO RFA 40: SUPPLEMENTAL RESPONSE TO RFA 40: “This 5 Defendants argue that the responses to RFAs 33, 51, and 40 are insufficient because lack 6 of information is not a proper response for failing to admit or deny without stating that a 7 reasonable inquiry has been made and “that the information known or readily obtainable by the 8 party is insufficient to enable the party to admit or deny.” Reply at 8-10. 9 Defendants’ motion to compel further response to RFAs 33, 51, and 40 is GRANTED. 10 Plaintiff’s response that it is “without knowledge” is insufficient. See Fed. R. Civ. P. 36(a)(4) 11 (stating that “[ t] he answering party may assert lack of knowledge or information as a reason 12 for failing to admit or deny only if the party states that it has made reasonable inquiry 13 and that the information it know s or can readily obtain is insufficient to enable it to 14 admit or deny.) (emphasis added). 15 RFAs 55 and 56 and Plaintiff’s responses are as follows: 16 RFA 55: “Admit that Stephen M. Lobbin knew that Aquawood, LLC hired ECLIPSE to 17 provide Target Corporation a defense in the Worldslide LITIGATION as required under the 18 indemnity agreement between Aquawood, LLC and Target Corporation.” RESPONSE TO RFA 19 55: “Objection. This request has nothing to do with the issue in this case, which is the value of 20 the legal services provided to the Defendants with their full knowledge and consent.” 21 SUPPLEMENTAL RESPONSE TO RFA 55: “Admit that Eclipse was hired by Aquawood and 22 Target Corporation.” RFA Oppo. at Exh. A. 23 RFA 56: “Admit that Stephen M. Lobbin knew that MANLEY hired ECLIPSE to provide 24 Target Corporation a defense in the Adams LITIGATION as required under the indemnity 25 agreement between MANLEY and Target Corporation.” RESPONSE TO RFA 56: “Objection. 26 The indemnity agreement has nothing to do with the value of services provided to Defendants 27 with their knowledge and consent.” SUPPLEMENTAL RESPONSE TO RFA 56: “Admit that 28 Eclipse was hired by Manley and Target Corporation.” RFA Oppo. at Exh. A. 10 15cv1411-JLS (BLM) 1 Defendants argue that the responses to RFAs 55 and 56 are “evasive and do not fairly 2 meet the substance of the requests” and the way Plaintiff qualified the admission, makes it 3 unclear what Plaintiff is admitting. Reply at 10. 4 Defendants’ motion to compel further response to RFAs 55 and 56 is GRANTED. 5 Plaintiff’s response to the RFAs is incomplete and unclear and Plaintiff must serve amended 6 answers to RFAs 55 and 56. See Fed. R. Civ. P. 36(a)(6) (a court may order that a matter is 7 admitted or that an amended answer be served where the answer does not comply with Fed. 8 R. Civ. P. 36). 9 There are numerous RFAs raised in Defendants’ motion to compel that are not addressed 10 in Defendants’ reply. The Court interprets this as an indication that Plaintiff’s supplemental 11 responses were sufficient. Accordingly, Defendants’ motion to compel further response to RFAs 12 8, 9, 11, 14, 19, 20, 21, 24-26, 28, 29, 31, 41, 42, 50 and 57 is DENI ED AS MOOT. REQUESTS FOR PRODUCTI ON OF DOCUMENTS7 13 14 Legal Standard 15 A party may request the production of any document within the scope of Rule 26(b). 16 Fed. R. Civ. P. 34(a). “For each item or category, the response must either state that inspection 17 and related activities will be permitted as requested or state with specificity the grounds for 18 objecting to the request, including the reasons.” Id. at 34(b)(2)(B). The responding party is 19 responsible for all items in “the responding party’s possession, custody, or control.” 20 34(a)(1). Actual possession, custody or control is not required. Rather, “[ a] party may be 21 ordered to produce a document in the possession of a non-party entity if that party has a legal 22 right to obtain the document or has control over the entity who is in possession of the 23 24 25 26 27 28 Id. at 7 This motion refers to the RFPs propounded by Defendant Target, but the three sets of RFPs are comparable to each other and Defendants request that to “the extent the Court orders [ Plaintiff] to further respond to any requests directed to Target Corporation . . . . the order apply equally to the comparable RFAs propounded by Defendants Toys “R” Us, Inc. and Kmart Corporation.” RFP MTC at 6-7. Defendants’ request is GRANTED. If Plaintiff is ordered to provide further responses, it must do so for Defendants Target, Kmart Corporation, and Toys “R” Us. 11 15cv1411-JLS (BLM) 1 2 3 document.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). Documents that Plaintiff Contends Have Been Produced, RFPs 1-8, 13, 16-19, 25-29, 36, 37, 39, 41, 45-48, and 50 4 Initially, the parties are fighting over whether or not Plaintiff has produced all of the 5 responsive documents to a large number of RFPs. Defendants argue both that Plaintiff has not 6 produced the responsive documents in this litigation and that Plaintiff has not actually 7 supplemented its document production as it said it would. Reply at 10. Plaintiff counters that 8 it has produced all documents responsive to the RFPs at issue. Oppo. at Exh. A. 9 respond that Plaintiff should be required to identify by bates-numbers which documents are 10 responsive to which RFPs. Reply at 11. Neither party provides any information regarding the 11 manner of the production, such as whether the documents were produced in the “usual course 12 of business” or were “organize[ d] and labele[ d] to correspond to the categories in the request.” 13 See Fed. R. Civ. P. 34(b)(2)(E). Accordingly, the Court interprets this dispute as a simple 14 disagreement in which Defendants believe there should be more responsive documents and 15 Plaintiff states there are not. Due to the parties’ inability to conduct discovery in a professional 16 manner, they apparently are unable to bridge this difference of opinion. 17 disagreement, Plaintiff is ORDERED to produce all documents responsive to RFPs 1-8, 13, 16- 18 19, 25-29, 36, 37, 39, 41, 45-48, and 50 which have not already been produced. If all such 19 responsive documents have been produced, Plaintiff must serve on Defendants a declaration so 20 stating. 21 documents are responsive to which RFPs. Rutherford v. PaloVerde Health Care District, 2014 22 WL 12633523, * 3 (C.D. Cal. April 25, 2014) (stating that “[ t] he plain language of Rule 34 does 23 not require the responding party to identify each responsive document in its written response 24 to each document request”). Defendants To resolve this The Court DENI ES Defendants’ requests to require Plaintiff to identify which 25 Documents Plaintiff Contends Do Not Exist RFPs 9, 11, 12, 15, 20, and 21 26 Defendants’ second general objection is that with regard to RFPs for which Plaintiff did 27 not have responsive documents, Plaintiff failed to “affirmatively state that it has made a 28 reasonably diligent investigation for the responsive documents.” Reply at 13. Defendants are 12 15cv1411-JLS (BLM) 1 correct. When a responding party does not have responsive documents in its possession, 2 custody or control, the responding party must conduct a “diligent search and reasonable 3 inquiry.” Thomas v. Saafir, 2007 WL 1063474, at * 2 (N.D. Cal. Apr. 9, 2007) (finding that a 4 party's supplemental response stating that a “diligent search and reasonable inquiry of all 5 available sources” was conducted, that the party could not locate the requested documents, and 6 that as a result, the requested documents were not in the party's “possession, custody or 7 control” satisfied the party's obligation under Rule 34); see also Rogers v. Giurbino, 288 F.R.D. 8 469, 485 (S.D. Cal. 2012) (stating that a “party must make a reasonable inquiry to determine 9 whether responsive documents exist, and if they do not, the ‘party should so state with sufficient 10 specificity to allow the Court to determine whether the party made a reasonable inquiry and 11 exercised due diligence.’”) (quoting Marti v. Baires, 2012 WL 2029720 (E.D. Cal. June 5, 2012)). 12 Accordingly, Defendants’ motion to compel further responses to RFPs 9, 11, 12, 15, 20, and 21 13 is GRANTED and Plaintiff is ORDERED to conduct a diligent search and reasonable inquiry and 14 then supplement its responses. If no documents exist, Plaintiff must provide an explanation of 15 the search that was performed and/ or whether or not any responsive documents ever existed. 16 With respect to RFPs 9 and 20, if written documents exist as Defendants allege based in part on 17 the testimony of Plaintiff’s 30(b)(6) witness, those responsive documents must also be produced. 18 With respect to RFPs 12 and 15, it appears that Plaintiff is stating that the only existing document 19 responsive to this request is Intervenor’s contract which has been produced. If that is accurate, 20 Plaintiff must serve on Defendants a declaration so stating. If Plaintiff has not produced all 21 responsive documents as it has stated, Plaintiff must do so. 22 Remaining RFPs 23 Defendants argue that Plaintiff should be compelled to further respond to RFPs 10 and 24 33 because Amazon.com was a party to this action, and “assumed a comparable position as the 25 other retailer defendants.” RFP MTC at 17. Defendants note that the legal services agreement 26 between Plaintiff and Amazon.com for the Worldslide litigation states that Manley will pay for 27 the legal services provided by Plaintiff and argue that the agreement and communications 28 between Plaintiff and Amazon.com are indicative of the intent of the retailers as a group 13 15cv1411-JLS (BLM) 1 (including Defendants) concerning the right to receive legal services paid fully by Manley and 2 not Defendants. Id. Defendants further argue that the supplemental responses to RFPs 10 and 3 33 simply restate the initial objection and fail to address the arguments raised in Defendants’ 4 motion to compel. Reply at 13. Plaintiff does not address Defendants’ arguments or the specific 5 requests in its opposition. RFP Oppo. The RFPs and Plaintiff’s responses are as follows: 6 REQUEST NO. 10: “All DOCUMENTS and COMMUNICATIONS that refer, relate, or 7 pertain to the written legal services agreement between YOU and Amazon.com in any way 8 related to the LITIGATION.” REQUEST NO. 33: “All COMMUNICATIONS between YOU and 9 Amazon.com related to YOUR attempt to recover litigation fees and expenses in the 10 LITIGATION.” RESPONSE TO REQUESTS NO. 10 AND 33: “Objection. Amazon is not a 11 party to this litigation and any such communications have nothing to do with the value of legal 12 services provided to Defendants with their knowledge and consent.” 13 RESPONSE: “Plaintiff’s original objection stands. The dispute and resolution thereof between 14 Plaintiff and Amazon has nothing to do with the dispute between Plaintiff and Defendants, and 15 Plaintiff intends to resist Defendants’ efforts to create smokescreens and irrelevant side issues.” 16 RFP Oppo. at Exh. A. SUPPLEMENTAL 17 Defendants’ motion to compel additional responses to RFPs 10 and 33 is GRANTED. 18 Defendants argue that Plaintiff’s response to RFP No. 52 is muddled and that Plaintiff’s 19 previous document productions to Manley, who is not a party to this matter or represented by 20 Defendants, has nothing to do with Plaintiff’s obligations in the instant matter. Reply at 13-14. 21 Additionally, Plaintiff’s statement falls short of the required statement of compliance. Id. at 14. 22 RFP No. 52 seeks: 23 “REQUEST NO. 52: All draft engagement letters between ECLIPSE and MANLEY for any 24 legal representation in any LITIGATION.” RESPONSE TO REQUEST NO. 52: “Objection. 25 Other cases have nothing to do with this case.” SUPPLEMENTAL RESPONSE: “Any draft 26 engagement letters between Eclipse and Manley would have been sent to Manley and to the 27 extent that such documents were in Eclipse[ ‘s] possession, custody or control, they would have 28 been sent to Defendants. It should bore [ sic] in mind that Manley and Defendants share 14 15cv1411-JLS (BLM) 1 common attorneys. In fact, Defendants’ attorneys are employed by Manley to defend them in 2 this case, as stated by Plaintiff’s attorney in his declaration regarding Defendants’ attempts to 3 take inappropriate depositions. 4 Defendants’ possession. Nonetheless, Plaintiff has made every effort to see to it that Defendants 5 receive the same documents that Manley received.” RFP Oppo. at Exh. A. Accordingly, all files in Manley’s possession are also in 6 Defendants’ motion to compel additional responses to RFP 52 is GRANTED I N PART. 7 Defendants’ request as written is overbroad since it contemplates any litigation and Plaintiff’s 8 response is unclear as it only states that Plaintiff “has made every effort.” Plaintiff must produce 9 all draft engagement letters between ECLIPSE and MANLEY for any legal representation in the 10 Worldslide, Aviva, or Adams litigation. 11 Defendants argue that the amended responses to RFPs 22-24, 34, 35, and 38 are “evasive 12 and non-responsive” because RFP 24 is not directed toward Mr. Lobbin’s violation of ethical rules 13 and RFP 38 is not to be limited to “any failure by Mr. Lobbin to follow any ethical rules.” Reply 14 at 14-15. The requests read as follows: 15 REQUEST NO. 22: “Any of YOUR written policies, practices, or procedures in effect at 16 any time during the LITIGATION that refer, pertain, or relate to entering into written legal 17 services agreements as provided under Business & Professions Code section 6148.” REQUEST 18 NO. 23: “All COMMUNICATIONS that refer, relate, or pertain to any ethical violations of Stephen 19 M. Lobbin committed during the LITIGATION, including without limitation, any violations of the 20 California Rules of Professional Conduct.” REQUEST NO. 34: “Any of YOUR written policies, 21 practices, or procedures in effect at any time during the LITIGATION that refer, pertain, or relate 22 to disclosing potential conflicts of interest to clients, and obtaining their informed written consent 23 to joint representation.” 24 procedures in effect at any time during the LITIGATION that refer, pertain, or relate to obtaining 25 clients' informed written consent when legal fees and expenses are paid by a third party.” 26 RESPONSE TO REQUEST NO. 22-23 and 34-35: “Objection. Such documents are of no 27 relevance to the issues which have been pled in this case.” SUPPLEMENTAL RESPONSE: 28 Without waiving objections, Plaintiff does not maintain written policies and practices relating to REQUEST NO. 35: “Any of YOUR written policies, practices, or 15 15cv1411-JLS (BLM) 1 the Rules of Professional Conduct Code [ 6148] 8. Each attorney is expected to know and follow 2 the Rules of Professional Conduct. There are no documents relating to any failure by Mr. Lobbin 3 to follow any ethical rules. There is nothing in his personal files that concerns his job 4 performance relating to any ethical rules. There are no reported ethical violations or disciplinary 5 actions. Finally, Mr. Lobbin’s contract with Eclipse relating to his right to earn fees has already 6 been produced to Defendants. RFP Oppo. at Exh. A. 7 REQUEST NO. 24: “All COMMUNICATIONS that refer, relate, or pertain to any violation 8 of YOUR policies, practices, or procedures by Stephen M. Lobbin committed during the 9 LITIGATION.” REQUEST NO. 38: “The personnel file of Stephen M. Lobbin at ECLIPSE that 10 concerns his job performance and any rules, ethical violations, or disciplinary action.” 11 RESPONSE TO REQUEST NO. 24 AND 38: “Objection. Such documents are of no relevance 12 to the issues which have been pled in this case.” SUPPLEMENTAL RESPONSE: “There are 13 no documents relating to any failure by Mr. Lobbin to follow any ethical rules. There is nothing 14 in his personal files that concerns his job performance relating to any ethical rules. There are 15 no reported ethical violations or disciplinary actions.” RFP Oppo. at Exh. A. Defendants’ motion to compel additional responses to RFPs 24, 34, and 35 is GRANTED. 16 17 Plaintiff’s response to RFP 24 is limited to ethical violations. Plaintiff must supplement its 18 response to include any violations of Plaintiff’s policies, practices, and procedures. Defendants’ 19 motion to compel is DENI ED as to RFPs 22, 23, and 38. 20 Defendants argue that RFP 44 is relevant because they should have the right to enforce 21 the terms of any contract made for their behalf as third-party beneficiaries to the contracts 22 between Plaintiff and Aquaqwood and Plaintiff and Manley. RFP MTC at 16. Defendants note 23 that Plaintiff did not supplement its response to this request. Reply at 12. The request and 24 Plaintiff’s response is as follows: REQUEST NO 44: All COMMUNICATIONS that concern YOUR “write-offs” identified in 25 26 27 8 This is only included in the supplemental response to RFP 22. RFP Oppo. at Exh. A. 28 16 15cv1411-JLS (BLM) 1 paragraphs 16 and 20 of YOUR FIRST AMENDED COMPLAINT. RESPONSE TO REQUEST NO. 2 44: Objection. Any write offs would have involved Manley and Plaintiff only, and do not address 3 the issues in this case, to wit, the value of the legal service provided to Defendant.” RFP MTC 4 at Exh. A. 5 Defendants’ motion to compel further responses to RFP 44 is GRANTED. 6 Regarding RFPs 49 and 51, Defendants argue that the requests are directly relevant since 7 evidence of the value of a professional's services can be demonstrated through evidence of a 8 professional's customary charges and earnings in similar matters. RFP MTC at 23. Defendants 9 note that lawyers disclose their rates every time they make an attorneys' fees application to the 10 court and that the rates are not privileged. Id. at 24. Defendants further note that Plaintiff can 11 redact any privileged attorney-client information in its legal services agreements, “but still 12 produce the documents that reflect the scope of the services and the agreed rates for its legal 13 services.” 14 inappropriately attempts to assert additional objections and contain arguments. Reply at 16. 15 Defendants argue that the attorney-client privilege objection raised in the supplemental 16 response is waived because Intervenor did not make the objection initially, only in his 17 supplemental response and, therefore, is untimely. 18 following: Id. Defendants argue that the supplemental response to RFP No. 49 and 51 Reply at 16. The requests seek the 19 REQUEST NO. 49: “YOUR legal services agreements that YOU entered into with clients 20 from 2012 to 2015 involving defense of patent infringement litigation or class action litigation.” 21 REQUEST NO. 51: “Every motion for attorney's fees, and supporting papers, filed by Stephen 22 Lobbin between 2010 to 2015.” RESPONSE to NO. 49: “Objection. Irrelevant to the issues 23 in this case, plus highly confidential attorney-client privileged information.” RESPONSE TO 24 NO. 51: “Objection. Other cases have nothing to do with this case.” 25 TO BOTH: “Plaintiff will stand by its original objection. Those documents are highly confidential 26 attorney-client privilege. In addition, this is a gross abuse of discovery which should be limited 27 and focused in scope.” RFP Oppo. at Exh. A. 28 AMENDED RESPONSE Defendants’ motion to compel additional responses to RFPs 49 and 51 is DENI ED. The 17 15cv1411-JLS (BLM) 1 Court finds that the requests as written are overbroad and not proportional to the needs of the 2 case. Defendants’ sole argument is that the requests are relevant because the rates that Plaintiff 3 charged for its services in similar actions “are directly relevant to the value of its legal services.” 4 RFP MTC at 22. However, Defendants’ requests seek much more than the rates Plaintiff charged 5 in other matters as legal services agreements are not limited to rates and “every motion for 6 attorneys’ fees and supporting papers” is not limited to similar actions. Additionally, the Court 7 finds that the information sought, Plaintiff’s rates, is more appropriately obtained via 8 interrogatories. See infra p. 26-27. 9 In regards to RFPs 47(-2) 9 and 48(-2) 10, Defendants argue that Lobbin has placed the 10 requested documents in dispute through his claims in intervention. RFP MTC at 24 (citing ECF 11 No. 58 paragraph 27). Additionally, Defendants argue that if fee sharing agreements are not 12 disclosed, it would be a violation of the Rules of Professional Conduct 2-200 and that these 13 requests are related to the claims and defenses of the parties. Id. Defendants also argue that 14 Plaintiff failed to supplement RFPs 47(-2) and 48(-2). 15 the specific requests in its opposition. RFP Oppo. The requests are as follows: Reply at 16. Plaintiff does not address 16 REQUEST NO. 47( -2) : “All contracts between Stephen M. Lobbin and ECLIPSE related 17 to any compensation to be paid arising from the legal representation in the LITIGATION.” 18 RESPONSE TO REQUEST NO. 47( -2) : “Objection. This is an internal matter between Eclipse 19 and Lobbin and in no way relates to the claims made by Plaintiff against Defendants.” 20 REQUEST NO. 48( -2) : “All DOCUMENTS that support the contention of ECLIPSE that 21 Stephen M. Lobbin is not entitled to recovery of any compensation in this action.” RESPONSE 22 TO REQUEST NO. 48( -2) : “Objection. This is an internal matter between Eclipse and Lobbin 23 24 25 26 27 28 9 Because RFPs 47 and 48 were used twice to identify different requests, Defendants have designated the requests as 47(-2) and 48(-2) to distinguish them from RFPs 47 and 48. RFP MTC at 24, n8. 10 The reply says 49(-2), however, the RFP MTC says 48(-2) and the description of the RFA provided by Defendants in the MTC matches RFP No. 48. RFP MTC at 24; see also Reply at 16. Additionally, there does not appear to be a second RFP No. 49. RFP Cirlin Decl. at Exh. A. 18 15cv1411-JLS (BLM) 1 and in no way relates to the claims made by Plaintiff against Defendants.” RFP Oppo. at Exh. 2 A. 3 Defendants’ motion to compel additional responses to RFPs 47(-2) and 48(-2) is 4 GRANTED. Plaintiff does not provide any facts or law to support its objection and responses. 5 If the responsive documents, or portions thereof, are protected by a privilege that has not been 6 waived, Plaintiff may withhold the privileged information and must provide Defendants with an 7 appropriate privilege log. There are RFPs raised in Defendants’ motion to compel that are not addressed in 8 9 Defendants’ reply. The Court interprets this as an indication that Plaintiff’s supplemental 10 responses were sufficient. Accordingly, Defendants’ motion to compel further response to RFPs 11 31 and 32 is DENI ED AS MOOT. I NTERROGATORI ES11 12 13 Legal Standard 14 An interrogatory may relate to any matter that may be inquired under Rule 26(b). Fed. 15 R. Civ. P. 33(a)(2). 16 specificity, [ and] [ a] ny ground not stated in a timely objection is waived unless the court, for 17 good cause, excuses the failure.” 18 must be answered fully in writing under oath. Fed. R. Civ. P. 33(b)(3). 19 interrogatories propounded to a corporation, partnership, association or governmental agency, 20 the officer or agent responding on its behalf “must furnish the information available to the party.” 21 Fed. R. Civ. P. 33(b)(1)(B); see also Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 11(IV)-B. 22 23 24 25 26 27 “The grounds for objecting to an interrogatory must be stated with Fed. R. Civ. P. 33(b)(4). Any interrogatory not objected to In answering 11 This motion refers to the ROGs propounded by Defendant Target, but the three sets of ROGs are comparable to each other and Defendants request that to “the extent the Court orders [ Plaintiff] to further respond to any Interrogatories of Target . . . . the order apply equally to the comparable Interrogatories propounded by Defendants Toys “R” Us, Inc. and Kmart Corporation.” ROG MTC at 6-7. Defendants’ request is GRANTED. If Plaintiff is ordered to provide further responses, it must do so for Defendants Target, Kmart Corporation, and Toys “R” Us. 28 19 15cv1411-JLS (BLM) 1 Analysis 2 Defendants argue that Plaintiff fails to (1) state all facts, (2) identify all witnesses, and 3 (3) identify all documents that support Plaintiff’s responses to RFAs 5 and 15 as asked in ROGs 4 No. 1-3. Reply at 4. 5 The interrogatories and responses are as follows: 6 “I NTERROGATORY NO. 1: For each of Target Corporation's Requests for Admissions, 7 Request Nos. 5, 6, 8 and 15 served on YOU concurrently with these interrogatories for which 8 YOUR response is anything but an unequivocal admission, state all facts that support YOUR 9 response.” “I NTERROGATORY NO. 2: For each of Target Corporation's Requests for 10 Admissions, Request Nos. 5, 6, and 15 served on YOU concurrently with these interrogatories 11 for which YOUR response is anything but an unequivocal admission, IDENTIFY all witnesses that 12 support YOUR response.” “RESPONSE TO ROGs 1-2: Objection. Plaintiff’s response to those 13 requests consisted of legal objections. Accordingly there is no need to provide facts.” 14 SUPPLEMENTAL RESPONSE TO ROGs 1-2: “Plaintiff admits to the terms set forth in the 15 written agreement.” ROG Oppo. at Exh. A. 16 I NTERROGATORY NO. 3: “For each of Target Corporation's Requests for Admissions, 17 Request Nos. 5, 6 and 15 served on YOU concurrently with these interrogatories for which YOUR 18 response is anything but an unequivocal admission, IDENTIFY all DOCUMENTS that support 19 YOUR response.” RESPONSE TO ROG 3: “Objection. Plaintiff’s response to those requests 20 consisted of legal objections. Accordingly, there is no need to provide facts.” SUPPLEMENTAL 21 RESPONSE TO ROG 3: “The indemnity agreement with Defendants and Aquawood, as well as 22 emails between Mr. Lobbin and Defendants, as well as numerous oral conversations with 23 Defendants and Mr. Lobbin establish that defendants were at all times fully aware that Manley, 24 pursuant to the demands of Defendants, and pursuant to its indemnity agreements had 25 contacted and retained Plaintiff to defend Defendants, to which representation Defendants 26 explicitly assented.” ROG Oppo. at Exh. A. 27 Defendants’ motion to compel further response is GRANTED as to ROGs No. 1 and 2. 28 Plaintiff’s responses to interrogatories 1 and 2 do not provide the requested facts and witnesses. 20 15cv1411-JLS (BLM) 1 Interrogatory 3 states that the only responsive document is the indemnity agreement. If that 2 is accurate, Plaintiff does not need to supplement its response. If it is inaccurate, Plaintiff must 3 serve a supplemental response. 4 Defendants argue that Plaintiff’s responses to ROGs No. 4-612 are inadequate because 5 Plaintiff does not “state all facts” and does not respond for each of the Defendants. Reply at 4- 6 5. Defendant further argues that Plaintiff did not file motions for summary judgment in all of 7 the actions, motions for summary judgment were not brought on behalf of all the parties, most 8 of the work performed in Aviva Sports was after Kmart had been dismissed, and Plaintiff invoiced 9 thousands of dollars in attorneys’ fees so it is unclear how Defendants benefit. 10 Id. The interrogatories are as follows: 11 “I NTERROGATORY NO. 4: State all facts that support YOUR contention that Target 12 Corporation benefited directly from all of the legal services YOU invoiced in Aquawood LLC v. 13 Worlds/ide, LLC, Case No. 11-cv-5611-JFW-Ex (C.D. Cal. 2011).” “I NTERROGATORY NO. 5: 14 State all facts that support YOUR contention that Target Corporation benefited directly from all 15 of the services YOU invoiced in Adams v. Target Corp., Case No. 13-cv-5944-GHK.-PJWx (C.D. 16 Cal. 2013).” “I NTERROGATORY NO. 6: State all facts that support YOUR contention that 17 Target Corporation benefited directly from all of the services YOU invoiced in Aviva Sports, Inc. 18 v. Fingerhut Direct Marketing, Inc., et al., Case No. 09-cv-1 091-JNE (D. Minn. 2009).” 19 RESPONSE TO ROGs 4-6: “The results.” 20 “Plaintiff successfully defended all claims against Defendants and obtained summary judgments 21 and dismissals on behalf of Defendants.” ROG Oppo. at Exh. A. 22 23 SUPPLEMENTAL RESPONSE TO ROGs 4-6: Defendants’ motion to compel further response to ROGs No. 4-6 is GRANTED. Plaintiff’s response does not adequately respond to the individual interrogatories. 24 Defendants argue that the responses to interrogatories 7 and 15 do not comply with the 25 law which requires Plaintiff to conduct a reasonably diligent search for responsive information. 26 27 12 28 Kmart’s corresponding ROGs are Nos. 11-13. Toys “R” Us’s corresponding ROG is No. 4. ROG MTC at 16 n6. 21 15cv1411-JLS (BLM) 1 Reply at 5, 7. Defendants note that while Plaintiff claims that Intervenor would be able to 2 respond to ROG 7, Intervenor’s discovery responses state that he does not know and that 3 Plaintiff should be able to respond. Id. The interrogatories ask Plaintiff to: 4 “I NTERROGATORY NO. 7: State all facts concerning the oral agreement that YOU 5 reached with MANLEY concerning the representation of Target Corporation in any of the 6 LITIGATION.” RESPONSE TO ROG 7: “Objection. The issue in this case is the value of the 7 legal services provided to Defendants with their knowledge and consent. Any oral agreements 8 with Manley are irrelevant and not likely to lead to the discovery of admissible evidence.” 9 SUPPLEMENTAL RESPONSE TO ROG 7: “Plaintiff is unaware of the facts concerning any 10 alleged oral agreements with Manley. That information would be known to the Intervenor.” ROG 11 Oppo. at Exh. A. 12 “I NTERROGATORY NO. 15 [ 13] : State all facts as to why ECLIPSE did not enter into a 13 written contract with MANLEY for legal services to represent Target Corporation in Adams v. 14 Target 24 Corp., Case No. 13-cv-5944-GHK-PJWx (C.D. Cal. 2013). RESPONSE TO ROG 15: 15 Objection. Any reasons relating to plaintiff entering into or not entering into a contract with a 16 nonparty is of no relevance to the issues in this case which relate to the value of the legal 17 services provided to defendants with their knowledge and consent.” 18 RESPONSE TO ROG 15: “That information is not in possession of Eclipse. Defendants' 19 attorneys should ask their client Manley for that information and/ or they should attempt to 20 obtain it from Intervenor.” ROG Oppo. at Exh. A. SUPPLEMENTAL 21 Defendants’ motion to compel further response to ROGs No. 7 and 15 is GRANTED. See 22 Franklin v. Smalls, 2012 WL 5077630, at * 6 (S.D. Cal. Oct. 18, 2012) (stating that the 23 “responding party must state under oath that he is unable to answer the interrogatory and must 24 describe the efforts made to obtain the answer” and finding that defendants did not comply with 25 Fed. R. Civ. P. 33 where they “did not explain under oath why they are unable to provide the 26 information requested, nor do they describe the efforts made to obtain the information.”) (citing 27 28 13 The corresponding interrogatory for Kmart is No. 14. ROG MTC at 25 n15. 22 15cv1411-JLS (BLM) 1 Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996); see also 7 James Wm. Moore et 2 al., Moore's Federal Practice § 33.102[ 3] , at 33–75)); see also Bryant v. Armstrong, 285 F.R.D. 3 596, 612 (S.D. Cal. 2012) (finding that defendant failed to comply with Rule 33 and noting that 4 if defendant was unable to respond to the interrogatory “he must state so under oath and 5 describe the steps taken to answer interrogatories”) (citing Frontier–Kemper Constructors, Inc. 6 v. Elk Run Coal Co., 246 F.R.D. 522, 529 (S.D.W.Va.2007) (finding that a responding party has 7 a “severe duty” to make every effort to obtain the requested information and, if unsuccessful, 8 must provide an answer detailing the attempts made to ascertain the information)). 9 Defendants argue that while the parties may argue over whether or not consent was 10 required, Plaintiff must properly respond to interrogatories 8 and 9 and state whether or not it 11 obtained the consent, which it has not done. Reply at 6. The interrogatories ask Plaintiff to: 12 “I NTERROGATORY NO. 8: State whether YOU obtained the informed written consent 13 of Target Corporation regarding a potential conflict of interest as provided under California Rules 14 of Professional Conduct, Rule 3-310(C) during YOUR representation of Target in the 15 LITIGATION. RESPONSE TO ROG 8: Objection. This interrogatory is not related to any of the 16 issues pled in this case.” SUPPLEMENTAL RESPONSE TO ROG 8: “There was no potential 17 conflict of interest.” ROG Oppo. at Exh. A. 18 “I NTERROGATORY NO. 9: State whether YOU obtained the informed written consent 19 of Target Corporation as provided under the California Rules of Professional Conduct, Rule 3- 20 310(F) concerning the arrangement with MANLEY to pay for the legal services of ECLIPSE during 21 its representation of Target in any of the LITIGATION.” RESPONSE TO ROG 9: Objection. This 22 interrogatory is not related to any of the issues pled in this case. SUPPLEMENTAL RESPONSE 23 TO ROG 9: “Manley had agreed to retain and pay for the services of Plaintiff pursuant to the 24 express demand of Defendants, pursuant to their written indemnity agreements with Manley. 25 Accordingly, any assertion that there is a violation of the rules of professional conduct concerning 26 payments by Manley would clearly be waived in this case. Accordingly, there was no need to 27 obtain an express written agreement, although based on conversations and communication 28 between Intervenor and Defendants, it was clear that at all times Defendants were fully aware 23 15cv1411-JLS (BLM) 1 of the financial arrangements between Plaintiff and Manley. At a minimum, Defendants should 2 be estopped from attempting to assert this clearly bad faith defense which has never been pled, 3 and which is obviously the afterthought of someone attempting to misuse a technicality.” ROG 4 Oppo. at Exh. A. Defendants’ motion to compel further responses to ROGs No. 8 and 9 is GRANTED. 5 6 Plaintiff’s responses do not answer the interrogatories. 7 Defendants argue that the supplemental responses to ROGs No. 10 and 11 simply restate 8 the original objections and that the opposition does not address the moving papers’ position on 9 relevance. Reply at 6. In its motion, Defendants argue that further response is necessary 10 because “it is evident that [ Plaintiff] knew that Defendants would not agree to pay for the legal 11 services of [ Plaintiff] if Manley failed to pay” and that Plaintiff should be estopped from 12 recovering anything from Defendants. ROG MTC at 21. Defendants further argue that evidence 13 of custom and practice is admissible. Reply at 6. The interrogatories are as follows: 14 “I NTERROGATORY NO. 10 14 : State whether it was YOUR practice at the time of the 15 LITIGATION to obtain written legal services agreements with clients YOU represented in 16 litigation. RESPONSE TO ROG 10: Objection. Plaintiff’s general practices have nothing to do 17 with the issues in this case which relate to the value of the legal services provided to Defendants 18 with their knowledge and consent.” SUPPLEMENTAL RESPONSE TO ROG 10: “Objection 19 Eclipse's practices with regard to other clients have nothing to do with the issues in this case. 20 This is just a blatant attempt by Defendants to raise another red herring.” ROG Oppo. at Exh. 21 A. 22 “I NTERROGATORY NO. 11: State whether it was YOUR practice at the time of the 23 LITIGATION to obtain written legal services agreements with clients such as Target Corporation 24 who did not agree to pay for YOUR services.” RESPONSE TO ROG 11: Objection. Plaintiff’s 25 general practices have nothing to do with the issues in this case which relate to the value of the 26 27 14 28 The corresponding ROG for Kmart and Toys “R” Us is No. 9. ROG MTC at 21 n11. 24 15cv1411-JLS (BLM) 1 legal services provided to Defendants with their knowledge and consent. SUPPLEMENTAL 2 RESPONSE TO ROG 11: “Objection Eclipse's practices with regard to other clients have nothing 3 to do with the issues in this case. This is just a blatant attempt by Defendants to raise another 4 red herring. Moreover, Target did agree to pay for the services rendered by accepting the 5 representation and the benefits of that representation. Such agreement results from the time- 6 honored principles of quasi-contract and quantum meruit .” ROG Oppo. at Exh. A. 7 Defendants’ motion to compel further responses to ROGs No. 10 and 11 is GRANTED. 8 These interrogatories are not seeking specific details regarding unrelated cases; they are seeking 9 Plaintiff’s general practice regarding conduct at issue in this case. 10 11 Defendants argue that with the exception of the word “no,” Plaintiff’s entire response to ROG No. 12 should be stricken. Reply at 6. The ROG is as follows: 12 “I NTERROGATORY NO. 12: State whether YOU agreed with Amazon.com that any 13 legal services that YOU performed for Amazon.com in the LITIGATION would only be paid by 14 MANLEY. RESPONSE TO ROG 12: Objection. Amazon is not a party to this litigation and any 15 agreements with it are not only not relevant, they are privileged.” 16 RESPONSE TO ROG 12: “Objection. Amazon is not a party to this litigation and any 17 agreements with it are of no relevance whatsoever. They are privileged. This is another blatant 18 attempt by Defendants to raise another red herring and divert the Court from the issues between 19 the parties. Moreover, NO.” ROG Oppo. at Exh. A. SUPPLEMENTAL 20 Defendants’ motion to strike Plaintiff’s entire response with the exception of the word 21 “no” is GRANTED. See Mancini v. Ins. Corp. of N.Y., 2009 WL 1765295, at * 2 (S.D. Cal. June 22 18, 2009) (striking portion of interrogatory response that was a ten-page long section of a legal 23 brief containing plaintiff’s legal and factual arguments). 24 Defendants argue that the supplemental response to ROG 13 simply repeats the original 25 response and that the opposition does not respond to the moving papers which argue that 26 Plaintiff should provide the facts upon which it depends as the interrogatory is directed towards 27 facts not expert opinions and that Plaintiff has not responded in accordance with Fed. R. Civ. P. 28 33. Reply at 6; see also ROG MTC at 23. The interrogatory reads: 25 15cv1411-JLS (BLM) 1 “I NTERROGATORY NO. 13 [ 15] : State all facts that support YOUR contention that YOU 2 may recover fees from Target Corporation at rates higher than those negotiated with MANLEY 3 to represent Target Corporation in the LITIGATION. RESPONSE TO ROG 13: Those facts will 4 be presented by the experts, but will at a minimum include the outstanding results obtained.” 5 SUPPLEMENTAL RESPONSE TO ROG 13: “Those facts will be presented by the experts, but 6 will at a minimum include the outstanding results obtained.” ROG Oppo. at Exh. A. Defendants’ motion to compel further response to ROG No. 13 is GRANTED. Plaintiff 7 8 must state the facts that support the contention. 9 Defendants argue that the supplemental responses for ROGs 14 and 5 (Kmart Set) parody 10 the original responses, add a new objection for invasiveness, and offer “extraneous” argument. 11 Reply at 6. Defendants further argue that the supplemental responses do not address the points 12 raised in their motion that the information requested is not privileged and that evidence of the 13 value of services can be demonstrated by customary charges and earnings in similar matters. 14 Id.; see also ROG MTC at 24-25. The interrogatories are as follows: 15 “I NTERROGATORY NO. 14: Describe in detail each matter wherein YOU represented 16 a client in a patent infringement case, including, the case name and number, the name of the 17 client, the name of the opposing party, the claims asserted in the litigation, and the rates YOU 18 charged for the services provided between 2012 and 2015. RESPONSE TO ROG 14: Objection. 19 Fees charged to other clients and other cases are privileged and of no possible relevance to the 20 issues in this case, which is the value of the services provided to defendants with their knowledge 21 and consent.” SUPPLEMENTAL RESPONSE TO ROG 14: “Fees charged to other clients in 22 other cases are privileged and are of no possible relevance to the issues in this case, which is 23 the value of the services provided to Defendants with their knowledge and consent. In addition, 24 this interrogatory is highly invasive. It asked for client names; names of opposing counsel; claims 25 asserted and Eclipse rates. This is an abuse of discovery.” ROG Oppo. at Exh. A. 26 “I NTERROGATORY NO. 5 ( K-MART SET) : Describe in detail each matter wherein 27 28 15 The corresponding ROG for Kmart is No. 10 and for Toys “R” Us is No. 5. ROG MTC at 23. 26 15cv1411-JLS (BLM) 1 YOU represented a client in a false advertising case, including, the case name and number, the 2 name of the client, the name of the opposing party, the claims asserted in the litigation, and the 3 rates YOU charged for the services provided between 2012 and 2015. RESPONSE TO ROG 5 4 ( K-MART SET) : Objection. Representations in other cases are not relevant to this case and in 5 this inquiry is inappropriate, including the fact that would involve confidential attorney-client 6 information for clients unrelated to this case and unrelated to the Defendants. This is just 7 another smokescreen by Defendants.” SUPPLEMENTAL RESPONSE TO ROG 5 ( K-MART 8 SET) : “Fees charged to other clients in other cases are privileged and are of no possible 9 relevance to the issues in this 'case, which is the value of the services provided to Defendants 10 with their knowledge and consent. In addition, this interrogatory is highly invasive. It asked for 11 client names; names of opposing counsel; claims asserted and Eclipse rates. This is an abuse 12 of discovery.” ROG Oppo. at Exh. A. 13 Defendants’ motion to compel further response to ROG No. 14 and Kmart No. 5 is 14 GRANTED I N PART. The Court finds that the requests are relevant for purposes of Fed. R. 15 Civ. P. 2616 and that Plaintiff’s objections concerning relevancy and privilege are without merit. 16 See Cohen v. Trump, 2015 WL 3617124, at * 2 (S.D. Cal. June 9, 2015) (noting that “[ g] enerally 17 the attorney-client privilege ‘does not safeguard against the disclosure of either the identity of 18 the fee-payer or the fee arrangement.’”) (quoting Ralls v. U.S., 52 F.3d 223, 225 (9th Cir.1995); 19 see also Gusman v. Comcast Corp., 298 F.R.D. 592, 599–600 (S.D. Cal. 2014) (noting that “[ t] he 20 Ninth Circuit has repeatedly held retainer agreements are not protected by the attorney-client 21 privilege or work product doctrine” and that “[ c] ommunications between attorney and client that 22 concern the identity of the client, the amount of the fee, the identification of payment by case 23 24 16 25 26 27 28 Courts often use rate determinations from other cases and affidavits from other attorneys in the relevant community to determine a prevailing market rate which can be helpful in determining attorneys’ fees under the lodestar method. While this may not be the determining factor in a quantum meruit analysis, the value of Plaintiff’s services provided to Defendants is at issue and the rates that Plaintiff has charged other parties for similar services is relevant to Defendants’ “claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 27 15cv1411-JLS (BLM) 1 file name, and the general purpose of the work performed are usually not protected from 2 disclosure by the attorney-client privilege.”) (quoting Hoot Winc, LLC v. RSM McGladrey Fin. 3 Process Outsourcing, LLC, 2009 WL 3857425, at * 1–2, (S.D. Cal. Nov. 4, 2009) and Paul v. 4 Winco Holdings, Inc., 249 F.R.D. 643, 654 (D. Idaho Feb. 27, 2008)). However, the requests 5 as written are overbroad. 6 Interrogatories 14 and 5(K-MART SET) as follows: (14) “Describe each matter wherein YOU 7 represented a client in a patent infringement case, including the case name, court, and number, 8 the claims asserted in the litigation, and the rates YOU charged for the services provided 9 between 2012 and 2015” and (5 K-MART SET) “Describe each matter wherein YOU represented 10 a client in a false advertising case, including the case name, court, and number, the claims 11 asserted in the litigation, and the rates YOU charged for the services provided between 2012 12 and 2015.” Accordingly, Plaintiff is ORDERED to respond to modified 13 Defendants do not address ROG 16 in their reply. ROG Reply. The Court interprets this 14 as an indication that Plaintiff’s supplemental response was sufficient. Accordingly, Defendants’ 15 motion to compel further response to ROG No. 16 is DENI ED AS MOOT. 16 SANCTI ONS 17 Defendants request that the Court sanction Plaintiff and its counsel of record in the 18 amount of $3,330.00 for the motion to compel further responses to Defendants’ RFAs as Plaintiff 19 “has unreasonably forced Defendants to file the instant motion and incur the costs to bring this 20 matter before the Court based largely upon baseless and unwarranted ‘relevance’ objections.” 21 RFA MTC at 30. Defendants also seek an award of $2,790.00 in attorney’s fees for the motion 22 to compel further responses to Defendants’ RFPs because Plaintiff’s objections to the RFPs are 23 not substantially justified. RFP MTC at 25. Finally, Defendants seek an award of $2,812.50 in 24 sanctions because Plaintiff’s objections to the ROGs are not substantially justified. ROG MTC at 25 27-28. Plaintiff does not address Defendants’ request for sanctions. See RFA Oppo.; see also 26 RFP Oppo. and ROG Oppo. 27 If a motion to compel discovery is granted, or if the disclosure or requested discovery is 28 provided after the motion was filed, Rule 37(a)(5)(A) requires a court to order the “party or 28 15cv1411-JLS (BLM) 1 deponent whose conduct necessitated the motion, the party or attorney advising that conduct, 2 or both to pay the movant’s reasonable expenses incurred in making the motion, including 3 attorney’s fees” unless the movant failed to meet and confer, the objection was substantially 4 justified, or other circumstances militate against awarding expenses. If the motion is granted 5 in part and denied in part, the court “may, after giving an opportunity to be heard, apportion 6 the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). 7 Defendants’ request for sanctions is DENI ED. While requested discovery was 8 supplemented after Defendants’ filed their motions to compel, the Court finds that an award of 9 sanctions is not appropriate because many of Plaintiff’s objections were justified as evidence by 10 the fact that many of Defendants’ requests were denied. CONCLUSI ON 11 12 1. Defendants’ motion to compel further response to RFAs 1-4, 12, 13, 17, and 22 is DENI ED. 13 14 2. Defendants’ motion to compel further response to RFAs 15, 33, 40, 51, 55, and 56 is GRANTED. 15 16 3. Defendants’ motion to compel further response to RFAs 5, 6, 8, 9, 11, 14, 16, 18, 19, 20, 21, 24-26, 28, 29, 31, 41, 42, 50, 57, and 58 is DENI ED AS MOOT. 17 18 4. Defendants’ motion to compel additional responses to RFPs 1-9, 10-13, 15, 16-21, 24-29, 33-36, 37-39, 41, 44-48, 47(-2), 48(-2), and 50 is GRANTED. 19 20 5. Defendants’ motion to compel additional responses to RFPs 22, 23, 38, 49, and 51 21 22 23 24 25 26 27 28 is DENI ED. 6. Defendants’ motion to compel additional responses to RFP 52 is GRANTED I N PART. 7. Defendants’ motion to compel additional responses to RFPs 31 and 32 is DENI ED AS MOOT. 8. Defendants' motion to compel further response to interrogatories 1, 2, 4-11, 13, and 15 is GRANTED. 9. Defendants’ motion to strike Plaintiff’s entire response with the exception of the 29 15cv1411-JLS (BLM) 1 word “no” to Interrogatory 12 is GRANTED. 2 10. For interrogatory no. 3, if the only responsive document is the indemnity 3 agreement as Plaintiff suggests, Plaintiff does not need to supplement its response. 4 If it is inaccurate, Plaintiff must serve a supplemental response. 5 6 7 8 9 10 11 12 13 11. Defendants' motion to compel further response to interrogatories 14, 5(KMART) is GRANTED I N PART. 12. Defendants' motion to compel further response to interrogatory 16 is DENI ED AS MOOT. 13. Plaintiff must serve all supplemental responses or declarations on or before July 7, 2017. 14. Defendants’ request for sanctions is DENI ED. I T I S SO ORDERED. Dated: 6/ 21/ 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 15cv1411-JLS (BLM)