Flynn et al v. Love, No. 3:2019cv00239 - Document 190 (D. Nev. 2021)

Court Description: ORDER denying 154 Motion for Protective Order. Plaintiffs are ordered to search their files to identify and provide those documents responsive to Defendants' documents requests no later than 30 days from the entry of this order. Signed by Magistrate Judge Carla Baldwin on 10/19/2021. (Copies have been distributed pursuant to the NEF - DN)

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Flynn et al v. Love Doc. 190 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Plaintiffs, 5 v. 6 7 Case No. 3:19-CV-00239-MMD-CLB MICHAEL J. FLYNN, et al., ORDER DENYING PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER [ECF No. 154] MICHAEL E. LOVE, et al., Defendants. 8 9 10 Before the Court is Plaintiffs Michael J. Flynn and Philip Stillman’s (collectively 11 referred to as “Plaintiffs”) motion for protective order. (ECF No. 154, 155.)1 Defendants 12 Michael E. Love, Jacquelyne Love, and Meleco, Inc., (collectively referred as to 13 “Defendants”) responded, (ECF No. 157), and Plaintiffs replied, (ECF No. 158).2 For the 14 reasons discussed below, the Court denies Plaintiffs’ motion for protective order. (ECF 15 No. 154.) 16 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 17 This action arises from contractual disputes pertaining to a settlement involving 18 the copyrights of 35 songs and events surrounding these songs, dating back to the 19 1960s. Plaintiffs initially filed their complaint on May 10, 2019. (ECF No. 1.) On April 14, 20 2021, Plaintiffs filed their Fourth Amended Complaint, which is the operative Complaint 21 in this case. (ECF No. 121.) Plaintiffs assert claims against Defendants for: (1) fraud; (2) 22 breach of contract; (3) accounting; (4) quantum meruit; (5) intentional interference with 23 contractual and business relations; (6) unjust enrichment; (7) declaratory judgment; (8) 24 fraudulent transfers; and (9) imposition of constructive trust. (Id.) 25 On August 11, 2020, Defendants served their first set of discovery requests on 26 1 27 28 ECF No. 155 is an exhibit to the affidavit filed in support of the motion for protective order. 2 The motion is properly resolved without a hearing. See LR 78-1. Dockets.Justia.com 1 Plaintiffs. (See ECF No. 157-2.) The Requests for Production of Documents (“RPD”) 2 included limited requests regarding the Love v. Wilson3 litigation, including documents 3 regarding the purported expert valuation in the Love v. Wilson litigation, evidence 4 quantifying the work performed by Plaintiffs in connection with the Love v. Wilson 5 litigation for the quantum meruit analysis, and documents regarding payments from Mr. 6 Love to Plaintiffs for their legal services rendered on the Love v. Wilson litigation. (Id. at 7 Nos. 85-90, 98-101.) Defendants’ RPD essentially seeks: (1) documents that are 8 relevant to claims and allegations set forth in Plaintiffs’ operative Complaint; and (2) 9 documents that demonstrate the amount of work Plaintiffs performed on the four 10 underlying lawsuits subject to the contingency agreements at issue. (ECF Nos. 157-2, 11 157 at 2-3.) To date, Defendants contend that Plaintiffs have produced a relatively 12 minimal number of documents and virtually none of them are responsive to the RPD. 13 (ECF Nos. 157 at 2, 5; 157-7.) 14 Discovery in this case has already proven to be contentious. To assist the parties 15 with discovery issues, the Court has held several case management conferences 16 (“CMC”) since August of 2020. (See ECF Nos. 72, 98, 107, 118, 137, 150.) On May 20, 17 2021, this Court held a CMC in which these specific issues were discussed. (ECF No. 18 137.) At the CMC, Flynn represented to the Court that he offered during meet and 19 confers and in emails to defense counsel that they could “come and copy” every 20 document in Flynn’s possession related to the case. (ECF No. 139 at 27.) During the 21 hearing, the Court specifically advised Plaintiffs: 22 When you get a request for production of documents, you have an obligation to go and look for documents that are responsive to the request for production of documents…. I’m going to tell you right now, again, you 23 24 25 26 27 28 3 Love v. Irving Music, Brian Wilson et al., No. 2:92-cv-04594 (C.D. Cal., filed July 31, 1992). Love v. Wilson was Michael Love’s action to obtain his share of the revenues on the 35 Songs in the Sea of Tunes Catalog based on his status as a co-author of these compositions and based on his agreement with Brian Wilson, co-founder of “The Beach Boys” for sharing of the settlement with Almo/Irving Music. (See ECF No. 84 at 2, n. 2.) Plaintiffs represented Mr. Love in the Love v. Wilson litigation. (Id.) 2 1 2 3 4 5 6 7 all need to go back and review what you have, and respond appropriately. This is not okay. And, quite frankly, it is not the responsibility of the defense counsel to go and simply copy swaths of documents. It’s your responsibility to respond specifically to requests for production of documents requests, or requests for interrogatories, or requests for admissions. Remember, you filed this lawsuit. They didn’t. And they requested specific documents in response to specific questions, and you have an obligation to respond appropriately…. It is not just enough to say I have all these documents, come copy them. You still have to respond appropriately…. [U]nder Rule 26, you can make discovery available and comply, but you still have to be responsive to the request. You can’t just doc dump and say that’s it. That’s not how it works. 8 9 (ECF No. 139 at 33-35.) At the June 28, 2021 CMC, the Court again discussed Flynn’s 10 offer regarding disclosure by inspection and instructed Flynn to file a motion for 11 protective order by July 12, 2021. (ECF Nos. 150, 151.) 12 Ultimately, on July 9, 2021, Plaintiffs filed the instant motion for protective order, 13 after completion of a meet and confer with counsel for Defendants. (ECF Nos. 154, 155.) 14 In the motion, Plaintiffs essentially assert that their discovery obligations should be 15 deemed “complied with” because they claim they have made 30 banker boxes full of 16 documents available for Defendants’ review in a storage shed in an unspecified location. 17 (See ECF Nos. 154-1 at 4, 139 at 28.) Thus, Plaintiffs move for a protective order 18 pursuant to Fed. R. Civ. P. 26(b)(2) and 26(c)(1)(B), limiting Plaintiffs’ response to 19 Defendants’ request for production of documents for approximately 30 banker boxes of 20 documents created in connection with the Love v. Wilson litigation. (ECF No. 154 at 2.) 21 Additionally, Plaintiffs request the Court order that Plaintiffs are in full compliance with 22 Fed. R. Civ. P. 34(b)(2)(B), by their offer to Defendants that inspection and related 23 activities of the Love v. Wilson documents will be permitted as requested. (Id.) Plaintiffs 24 assert that any requirement to copy, BATES stamp, and deliver copies of the mass of 25 Love v. Wilson documents will be oppressive and place undue burden and expense on 26 Plaintiffs. (Id.) 27 In response to the motion for protective order, Defendants assert that the motion 28 seeks to impose a procedure violative of Fed. R. Civ. P. 34 and requests that the motion 3 1 be denied, and Flynn be ordered to search his files to identify and provide those 2 documents responsive to Defendants’ document requests within 30 days. (ECF No. 3 157.) 4 Plaintiffs filed a reply again requesting that the Court find that Plaintiffs have fully 5 complied with Rule 34(b)(2)(B), by their offer to Defendants that “inspection and related 6 activities [of the Love v. Wilson Documents] will be permitted as requested.” (ECF No. 7 158). 8 II. LEGAL STANDARD 9 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett 10 v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 11 574, 598 (1998). 12 “The discovery process in theory should be cooperative and largely unsupervised 13 by the district court.” Sali v. Corona Reg. Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). 14 Nonetheless, a party from whom discovery is sought may move for a protective order to 15 prevent annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. 16 Civ. P. 26(c)(1). The party seeking issuance of a protective order bears the burden of 17 persuasion. U.S. E.E.O.C. v. Caesars Entm’t, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) 18 (citing Cipollone v. Liggett Grp., 784 F.2d 1108, 1121 (3d Cir. 1986)). Such a burden is 19 carried by demonstrating a particular need for protection supported by specific facts. Id. 20 To that end, courts “insist[] on a particular and specific demonstration of fact, as 21 distinguished from conclusory statements,” to issue a protective order. Twin City Fire Ins. 22 Co. v. Employers Ins. of Wausau, 124 F.R.D. 652, 653 (D. Nev. 1989). Broad allegations 23 of harm, unsubstantiated by specific examples or articulated reasoning, are insufficient. 24 Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). A 25 showing that discovery may involve some inconvenience or expense is likewise 26 insufficient to obtain a protective order. Turner Broad. Sys., Inc. v. Tracinda Corp., 175 27 F.R.D. 554, 556 (D. Nev. 1997). 28 /// 4 1 District courts possess “wide discretion to determine what constitutes a showing 2 of good cause and to fashion a protective order that provides the appropriate degree of 3 protection.” Swenson v. GEICO Cas. Co., 336 F.R.D. 206, 209 (D. Nev. Aug. 19, 2020) 4 (quoting Grano v. Sodexo Mgmt., Inc., 335 F.R.D. 411, 414 (S.D. Cal. Apr. 24, 2020)). 5 Where grounds for a protective order have been established, courts have a variety of 6 options to rectify the situation, including preventing the discovery or specifying the terms 7 on which the discovery will be conducted. Fed. R. Civ. P. 26(c)(1)(A), (B). 8 III. DISCUSSION AND ANALYSIS 9 Plaintiffs bear the burden of persuading the Court that absent the issuance of a 10 protective order, specific prejudice or harm will result. See Beckman, 966 F.2d at 476. 11 Plaintiffs’ general assertions that providing discovery will place undue burden and 12 expense on Plaintiffs, does not satisfy the Rule 26(c) test. 13 Further, Plaintiffs’ position that they are entitled to produce 30 boxes of 14 documents from storage, in response to discrete document requests, is at odds with 15 well-settled legal authority. “It isn’t sufficient to point to a pile of boxes and say, ‘The 16 answer is out there.’” Ultratech, Inc. v. Tamarack Scientific Co., 2005 WL 40074 at *4 17 (N.D. Cal. 2005) (producing documents as maintained in storage is not as kept in the 18 “usual course of business” and does not satisfy the requirements of the Federal Rules of 19 Civil Procedure. Requiring production as kept in the usual course of business, not in 20 storage boxes, or specifying Bates stamp range or box number of documents. Id. at *3). 21 This Court specifically instructed against this type of document production at the May 20, 22 2021 CMC, stating: “[i]t is not enough to just say I have all these documents, come copy 23 them.” (ECF No. 157-8 at 13.) 24 Rather, Plaintiffs are not at liberty under federal discovery rules to dump massive 25 amounts of documents, which apparently have no logical order to them, on their 26 adversaries and demand that they try to find what they are looking for. See Kozlowski v. 27 Sears Roebuck and Company, 73 F.R.D. 73, 76 (D. Mass. 1976) (“[t]he defendant has in 28 essence told the plaintiff that, if he wishes, he may hunt through all its documents and 5 1 find the information for himself. ‘This amounts to nothing more than a gigantic ‘do it 2 yourself kit.’’”). Plaintiffs may not excuse themselves from compliance with Fed. R. Civ. 3 P. 34 by utilizing a system of recordkeeping, which conceals rather than discloses 4 relevant records, or makes it unduly difficult to identify or locate them, thus rendering the 5 production of the documents an excessively burdensome and costly expedition. Id. “The 6 rule allowing for production in the ordinary course of business presupposes that there be 7 some sort of organization that will be maintained throughout the production.” Skyhawke 8 Techs., LLC v. Deca Int'l Corp. Cas No. CV 18-1234-GW (PLAx), 2019 WL 1976473, at 9 *3 (C.D. Cal. Mar. 21, 2019). 10 Based upon the record before the Court, there appears to be no organization of 11 the Love v. Wilson documents sufficient to indicate how those documents were 12 maintained in the ordinary course of business. Further, the “do it yourself” document 13 dump tactic flies in the face of both the spirit of Rule 34, and established case law. 14 Accordingly, Plaintiffs’ motion for protective order, (ECF No. 154), is DENIED. 15 Plaintiffs are ordered to search their files to identify and provide those documents 16 responsive to Defendants’ document requests within 30 days from the date of this 17 order—this includes specifically organizing the documents, with some sort of labeling 18 system, and identifying which documents are responsive to the specific RPD served by 19 Defendants. 20 IV. CONCLUSION 21 The Court notes that the parties made several arguments and cited to several 22 cases not discussed above. The Court has reviewed these arguments and cases and 23 determines they do not warrant discussion as they do not affect the outcome of the 24 motions before the Court. 25 /// 26 /// 27 /// 28 /// 6 1 IT IS THEREFORE ORDERED that Plaintiffs’ motion for protective order, (ECF 2 No. 154), is DENIED. Plaintiffs are ordered to search their files to identify and provide 3 those documents responsive to Defendants’ document requests, no later than 30 days 4 from entry of this order. 5 6 IT IS SO ORDERED. October 19, 2021 DATE: _________________. 7 8 ______________________________________ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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