CAROLYN K. DELANEY, Magistrate Judge.
Presently pending before the court is plaintiff's motion to compel discovery. (ECF No. 54.) Defendants opposed this motion in the parties' September 19, 2018 joint status report. (ECF No. 70.) This matter was heard on September 26, 2018 at 10:00 a.m., before the undersigned. Jacob Song appeared on behalf of plaintiff and John P. Costello appeared on behalf of defendants. Upon review of the documents in support and opposition, upon hearing the arguments of counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Plaintiff initiated this matter on June 30, 2017, alleging that defendants have misappropriated trade secrets of Gutterglove in violation of 18 U.S.C. § 1836; violated a non-disclosure agreement; and breached fiduciary duties owed to Gutterglove. (
On May 18, 2018, plaintiff served defendants with three sets of discovery: Common Interrogatories Set Two, Common Requests for Production Set Two, and Requests for Production Set One to Defendant William Lasell. (
On June 22, 2018, plaintiff's counsel pointed out that discovery was past due and requested that all discovery be provided without objections by June 29, 2018. (
On July 23, 2018, this matter was stayed while parties pursued mediation efforts. (ECF No. 61.) The stay was lifted on August 27, 2018, after mediation was unsuccessful. (ECF No. 68.) Subsequently, plaintiff's motion to compel was reset for September 26, 2018. (ECF No. 69.) The parties were encouraged to engage in continued meet and confer efforts and were ordered to provide a joint statement no later than September 19, 2018. (
At the hearing, defendants' counsel Mr. Costello failed to explain why there was no response to the discovery requests on or before June 19, 2018, and why defendants did not seek an extension of time to respond. Moreover, Mr. Costello confirmed that he has not yet provided a privilege log as to the responsive material he asserts is protected by attorney client privilege and the work product doctrine.
Plaintiff seeks an order from the court compelling defendants to provide all responsive discovery information without objections to plaintiff. (ECF Nos. 54 at 6; 70 at 2.) Plaintiff also seeks monetary sanctions against defendants in the amount of $1,200 for the cost of preparing and bringing this motion. (ECF No. 54 at 6.)
According to the Federal Rules of Civil Procedure, responses and/or objections to interrogatories and requests for production must be provided within 30 days of being served.
"Generally, in the absence of an extension of time or good cause, the failure to object to interrogatories within the time fixed by Rule 33 . . . constitutes a waiver of any objection. This is true even of an objection that the information sought is privileged."
At the same time, the Ninth Circuit Court of Appeals "has recognized as part of a district court's inherent powers the broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial, . . . [including the discretion] to exclude testimony [or evidence that] would unfairly prejudice an opposing party."
Pursuant to Rule 37, "a party seeking discovery may move for an order compelling an answer [or] . . . production" if "a party fails to answer an interrogatory submitted under Rule 33" or "a party fails to produce documents . . . under Rule 34." Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). Such a failure is also grounds for the court to order sanctions against the party that has failed to act.
It is undisputed that defendants failed to respond, object, or request an extension of time to respond to plaintiff's May 18, 2018 discovery requests within 30 days of being served. Indeed, defendants did not provide any responses until September 12, 2018, nearly four months after the original requests were propounded. Moreover, defendants have failed to proffer good cause for their failure. A clash of personalities with opposing counsel does not excuse one from complying with the Federal Rules of Civil Procedure. Thus, defendants' failure constitutes a waiver of objections to plaintiffs' May 18, 2018 discovery requests.
However, in the interest of fairness, the court acknowledges that ordering defendants to produce material protected by attorney client privilege or the work product doctrine could result in extreme prejudice to defendants. For example, such an order may result in the disclosure of important strategic email discussions between defendants and their attorney. The court does not wish to unduly punish defendants for the apparent failings of their attorney. Therefore, the court will allow defendants to assert objections based upon attorney client privilege and the work product doctrine.
Defendants are admonished that any objections must be accompanied by a detailed privilege log. If the court later determines that any of these objections were made in bad faith, defendants may be subjected to additional sanctions including, but not limited to, being deemed to have waived all privilege-based objections to plaintiff's May 18, 2018 discovery requests.
Finally, the court finds that plaintiff's request for $1,200 in fees for preparing and bringing this motion is reasonable. Because the court also finds that Mr. Costello's conduct precipitated the current motion, Mr. Costello shall be responsible for paying this fee, and not his clients.
Accordingly, IT IS HEREBY ORDERED that: