ORDER

Sub-Proceeding No. 17-03

RICARDO S. MARTINEZ, Chief District Judge.

The Court finds this an appropriate case to reflect on several principles laid out in the Court's Local Civil Rules:

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This matter is before the Court on two motions to compel filed by the Stillaguamish Tribe of Indians ("Stillaguamish"). The motions to compel seek further discovery from the Upper Skagit Indian Tribe ("Upper Skagit") and from the Tulalip Tribes ("Tulalip"). Dkts. #1331 and #135.2 Upper Skagit and Tulalip oppose the motions. The Court resolves the motions as follows.

Stillaguamish initiated this subproceeding requesting that the Court determine that its usual and accustomed fishing areas ("U&A") extended into certain marine areas outside of the Stillaguamish River. Dkt. #4.3 Upper Skagit and the Swinomish Indian Tribal Community ("Swinomish") have opposed the request and Tulalip has at least partially opposed the request. Dkts. #95-#97.4 Finding that the subproceeding should not be dismissed, the Court previously concluded "that the entirety of Stillaguamish U&A was not specifically determined by" Judge Boldt in 1974. Dkt. #915 at 6. As a result, this matter continues for a determination of Stillaguamish's U&A beyond the Stillaguamish River—a matter that turns on the scope of Stillaguamish's U&A in 1855.

In furtherance of its claims, Stillaguamish issued discovery requests to both Upper Skagit and Tulalip. Dkt. #133 at 2; Dkt. #135 at 2. Upper Skagit and Tulalip responded, but Stillaguamish maintains that they failed to adequately search their records before responding and did not provide adequate responses to the discovery requests. Specifically, Stillaguamish avers that during the meet and confers required by this Court's rules, each responding tribe acknowledged its possible possession of responsive documents, admitted it had not fully conducted a search for responsive documents, provided no assessment of the burdens associated with fully responding to Stillaguamish's requests, and declined to provide a privilege log of responsive documents withheld. Dkt. #1346 at ¶¶ 4-7; Dkt. #1367 at ¶¶ 4-9. Upper Skagit and Tulalip do not contest Stillaguamish's assertions that they have not conducted searches of their records. See Dkt. #141;8 Dkt. #143.9 Instead of working collaboratively, the parties prematurely bring the issue before the Court.

The legal principles at issue are ultimately of little importance here.10 For many of the reasons provided by Stillaguamish, the requests appear to seek discoverable material.11 At the same time, Upper Skagit and Tulalip raise several reasoned objections as to why the disputed requests may be overbroad or may be disproportionate to the needs of this case.12 But, again for the reasons provided by Stillaguamish, the responding tribes cannot claim that the necessary searches are overly burdensome or disproportional where they have made no attempt to investigate the burden imposed.13

The Court is accustomed to dealing with proof.14 In the end, the responding parties' arguments are entirely speculative and unquantified.15 Maybe the responding tribes are correct that they have no responsive records. The responding tribes can verify that claim after conducting an adequate search. Maybe the responding tribes are correct that many, or all, of the responsive documents are protected by the work product doctrine.16 The responding tribes can properly set forth the basis for those claims in an adequate privilege log.17 But, of course they cannot claim privilege or work product protection without knowing what documents exist and investigating the circumstances surrounding the documents' creation, retention, and use.18

To a certain extent, the Court understands the general complaints of the responding tribes—that the costs of discovery are high and that the discovery may be of little value. The parties have no doubt expended substantial amounts in litigating the underlying case.19 Discovery has been exchanged many times before on many similar issues and the discovery of new evidence may be unlikely.20 But discovery in this case continues to be governed by the applicable Federal Rules of Civil Procedure and the parties must cooperate to find reasonably workable solutions.21 If the costs of discovery are too great, perhaps the issue is not worth contesting to the bitter end.22 The parties, not the Court, need to address the reasonableness of their positions in the first instance.23

The Court has certainly considered the imposition of costs here.24 The actions and positions taken by the parties are legally difficult to justify.25 The Court cannot say that the underlying concerns of the responding tribes are baseless. But the responding tribes also do not establish an adequate record to support their positions. All parties are represented by accomplished counsel who are familiar with their discovery obligations. The Court should not need to be involved with every step of the discovery process and should not have to lead the parties' negotiations. Rather, the parties must work together to avoid unnecessary expense and form workable solutions. Should fully developed, considered, and supported disputes arise, the Court will resolve them and consider awarding expenses as may be appropriate at that time. Should the disputes come before the Court in a substantially similar posture, the Court will not hesitate to impose expenses—including for the motions currently under consideration here—as appropriate.

Accordingly, and having considered the motions, the relevant briefing and evidence, and the remainder of the record, the Court hereby finds and ORDERS that Stillaguamish's motions to compel (Dkts. #133 and #135) are GRANTED IN PART and DENIED IN PART to the extent necessary for the parties to comply with their discovery obligations. The Court further directs the parties to comply with their discovery obligations. All requests for expenses are denied without prejudice.