ALLISON CLAIRE, Magistrate Judge.
On December 10, 2014, the court heard oral argument on defendant Farmers Insurance Exchange's ("defendant") motion to compel. Russell Robinson appeared for plaintiffs Thomas Jackson, Emma Jackson and TJ Enterprises (collectively "plaintiffs"); Monica Scott appeared for defendant. After carefully considering the parties' papers and arguments, defendant's motion to compel is GRANTED.
Plaintiffs initiated this action on January 27, 2014 alleging claims of discrimination, breach of contract, breach of implied covenant of good faith and fair dealing, negligence, breach of fiduciary duty and unlawful misrepresentations in violation of the California Business and Professions Code section 17200. ECF No. 1.
On June 27, 2014, defendants filed a notice of related case, ECF No. 14, and on July 22, 2014, a related case order was entered ordering that the instant case be related to Case No. 2:12-cv-01020-WBS-AC ("Jackson I"), ECF No. 16. On August 7, 2014, the district judge entered an order on the parties' stipulation to expedite discovery and ordered that all of the discovery in Jackson I be treated as though it occurred in this current action. ECF No. 21.
On August 13, 2014, the undersigned granted the parties' stipulated protective order. ECF No. 24. On August 25, 2014, the district judge granted defendants' motion to dismiss, dismissing plaintiffs' second and third claims against individual defendants. ECF No. 25. On September 3, 2014, defendants Bruce H. Bailey, Steven Eason and James Gillis filed an answer. ECF No. 27. On October 23, 2014, the undersigned issued an order on defendants' motion for sanctions, ordering plaintiffs' counsel to pay sanctions previously ordered. ECF No. 30.
On November 4, 2014, the parties filed a joint status report. ECF No. 33. On December 4, 2014, the district judge assigned to this action issued a status (pretrial scheduling) order. ECF No. 40. The order sets a June 5, 2015 discovery completion deadline.
Defendants filed the instant discovery motion on November 13, 2014. ECF No. 34. The parties filed their Joint Statement on December 3, 2014.
Defendant moves to compel plaintiff TJ Auto Body Services, Inc. to provide "(1) the agreed-upon supplementary responses to FIE's First Set of Requests for Production and (2) the agreed-upon supplementary documents responsive to FIE's First Set of Requests for Production." ECF No. 34 at 2.
On August 15, 2014, defendant propounded its first set of requests for production of documents seeking, inter alia, documents related to the claims in plaintiffs' complaint.
Plaintiffs' untimely October 8, 2014 responses,
With regard to request numbers 17-20, plaintiffs' responses stated in part as follows:
Defense counsel sent plaintiffs' counsel a meet and confer letter on October 8, 2014 outlining the deficiencies in plaintiffs' responses. Scott Decl. ¶ 5, Ex. C.
On October 14, 2014, the parties met and conferred telephonically. Scott Decl. ¶ 6. Plaintiffs' counsel agreed to produce supplemental responses by October 22, 2014.
On October 15, 2014, plaintiff Emma Jackson was deposed and confirmed she was in possession of a number of responsive documents. Scott Decl. ¶ 7, Ex. E. Similarly, plaintiff Thomas Jackson was deposed on October 16, 2014 and testified that he possessed a number of responsive documents. Scott Decl. ¶ 9, Ex. F.
Plaintiffs failed to provide the supplemental responses as promised by the agreed-upon October 22, 2014 deadline. Scott Decl. ¶ 10. Instead, plaintiffs' counsel represented to defense counsel on October 22, 2014 that the documents were being delivered via overnight mail.
Plaintiffs' counsel e-mailed defense counsel on October 29, 2014 regarding the status of the responsive documents and defense counsel responded that they would be delivered by that Friday, October 31, 2014. Scott Decl. ¶ 11, Ex. H.
Following plaintiffs' failure to provide the documents, plaintiffs' counsel told defense counsel on November 3, 2014 that they would be mailed that day. Scott Decl. ¶ 12, Ex. I.
On November 6, 2014, defense counsel received a box of documents. Scott Decl. ¶ 13. However, the production was not bates labeled and contained attorney-client communications.
Defense counsel corresponded with plaintiffs' counsel on November 7 and 10, 2014 to no avail. Scott Decl. ¶¶ 15-16. Plaintiffs' counsel responded that he was waiting on a verification from plaintiff Thomas Jackson and he was still trying to obtain native spreadsheet files. Scott Decl. ¶ 16, Exs. J-K.
The parties met and conferred on November 25, 2014. Scott Decl. ¶ 17. Plaintiffs' counsel confirmed that there is "no dispute as to what is required to be produced by Plaintiff TJ Enterprises [and] [t]he only issue that currently remains between the Parties is Plaintiff TJ Enterprises' failure to actually serve the supplemental responses and all of the promised supplemental responsive documents." Scott Decl. ¶ 17.
Defendant argues that plaintiffs Mr. and Mrs. Jackson have confirmed they are in possession of a number of responsive documents and plaintiffs' counsel has agreed to supplement their responses to the request for production of documents but has failed to do so. ECF No. 39 at 23. Accordingly, the only issue before the court is plaintiffs' failure to serve supplemental responses.
With regard to plaintiffs' responses to request numbers 17-20, defendant argues that plaintiffs Mr. and Mrs. Jackson indicated during their depositions that they may have responsive documents but would need to check their filing cabinets.
Defendant further argues that while plaintiffs produced a box of documents on November 6, 2014, the production "failed to include documents that were previously promised to Defendants and identified by both Emma and Thomas Jackson at their depositions." ECF No. 39 at 25. These documents include:
ECF No. 39 at 25-26. Defendant argues that plaintiffs' "latest production is also replete with additional deficiencies, including but not limited to the following:"
Finally, defendant argues that under Rule 37, the court should impose monetary and evidentiary sanctions for plaintiffs' failure to respond to the requests for production of documents. ECF No. 39 at 27. Defendant argues that "[t]here is no justification for Plaintiffs' wholesale failure to serve the agreed-upon supplementary responses and documents."
Plaintiffs argue in opposition as follows:
Pursuant to Rule 37(a), a party propounding discovery or taking a deposition may seek an order compelling responses when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(3)(B). "[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(4). "It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection."
Here, plaintiffs have stated that they will supplement their initial responses but have repeatedly failed to provide the responsive documents. Plaintiffs argue in the Joint Statement that "[a]dditional responses are forthcoming" and "Plaintiffs will in fact supplement" but fail to provide any details regarding what responses will be supplemented or when the documents will be produced. ECF No. 39 at 28. In light of plaintiffs' concession that "[t]he only issue that currently remains between the Parties is Plaintiff TJ Enterprises' failure to actually serve the supplemental responses and all of the promised supplemental responsive documents," Scott Decl. ¶ 17, plaintiffs' incomplete disclosures are treated as a failure to disclose. Fed. R. Civ. P. 37(a)(4). It is clear from the Joint Statement that plaintiffs are in possession of at least some responsive documents at this time,
With regard to plaintiffs' argument that the withheld documents are "limited to attorney-client communications and work-product analyses [and] Plaintiffs are not required to list every communication between attorney and clients," ECF No. 39 at 28, this argument is not entirely persuasive. "The work product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation."
Accordingly, plaintiffs will be ordered to supplement their responses within fourteen days by producing responsive documents, including the documents listed by defendant in the joint statement. For any responsive documents that are not available or plaintiffs claim a privilege, plaintiffs shall state with specificity why the documents are not available or produce a privilege log summarizing the responsive documents that purportedly fall under the work product doctrine.
As noted, plaintiffs' responses to request numbers 17-20 indicate that, without waiving objections, the documents will be produced; but also state that "after a good faith and reasonable inquiry, Plaintiffs have been unable to locate any such responsive materials; discovery continues."
To the extent plaintiffs have made a reasonable inquiry and have found that there are no responsive documents, plaintiffs' responses are insufficient. The court agrees with defendant that if no responsive documents or tangible things exist, the responding party must describe its search with sufficient specificity to allow the court to determine whether the party made a reasonable inquiry and exercised due diligence.
Accordingly, plaintiffs will be ordered to supplement their responses to request numbers 17-20 with responsive documents and for those requests that they are unable to locate responsive documents describe with sufficient specificity the search they conducted.
Defendant seeks expenses in the amount of $1,634.00 to cover the cost of bringing its motion to compel. ECF No. 39 at 27. Defense counsel estimates that she spent approximately five hours on the motion. Scott Decl. ¶ 19. Plaintiffs do not respond to this argument.
Federal Rule of Civil Procedure 37(a)(5) provides that if a motion to compel is granted, or if the requested discovery is provided after the motion was filed, the court "must" require the party whose conduct necessitated the filing of the motion to pay reasonable expenses including attorney's fees. Fed. R. Civ. P. Rule 37(a)(5)(B). The Court may not order payment if the nondisclosure was substantially justified or if other circumstances make an award unjust.
Here, there is considerable evidence that defendant attempted to obtain the requested discovery without resorting to court action. Defense counsel requested the discovery responses on several occasions and plaintiffs' counsel responded each time that the documents would be mailed, but they never were. In fact, once supplemental documents were produced, they still failed to adequately respond to the requests for production of documents. Moreover, defense counsel told plaintiffs' counsel that a motion to compel would be forthcoming if plaintiffs' supplemental responses were not received. Scott Decl. ¶ 16, Ex. B. Thus, plaintiffs were warned that further failure to respond would result in the filing of a motion. Plaintiffs have not sufficiently explained their failure to timely respond to defendant's requests for production or supplement their responses and there is no evidence that plaintiffs' failure to respond was substantially justified. The court therefore finds that an award of expenses is appropriate.
Defendant submitted a declaration from its attorney indicating that it expended approximately $1,634.00 in attorneys' fees preparing its motion to compel based upon 5.0 hours of work. Scott Decl. ¶ 19. The court finds that defendant's expenses are reasonable. Accordingly, the court will order plaintiffs' counsel to pay defendant $1,634.00 in expenses associated with the motion to compel. These sanctions shall be paid by plaintiffs' counsel and plaintiffs' counsel shall not attempt to directly or indirectly recover such sanctions from plaintiffs.
Defendant's requests for production of documents sought, among other things, all documents relating to a valuation of TJ Enterprises and plaintiffs' claim for damages arising out of this lawsuit. ECF No. 38-2 at 9-10 (defendant's request numbers 11, 14 and 24). As noted, plaintiffs have failed to produce these documents despite plaintiff Emma Jackson's deposition testimony, which indicates that she is in possession of at least some responsive documents. Defendant seeks evidentiary sanctions in the form of the exclusion of evidence, arguing that plaintiffs' failure to provide documents regarding plaintiff Emma Jackson's computations of damages violates Federal Rule of Civil Procedure 26(a)(A)(iii), which requires a party to disclose a computation and make available for inspection the documents.
Under Federal Rule of Civil Procedure 37(c)(1), "If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." "The Advisory Committee Notes describe it as a `self-executing,' `automatic' sanction to `provide[ ] a strong inducement for disclosure of material. . . .'"
Here, it appears that plaintiffs are in possession of all or most of the documents related to Ms. Jackson's computations.
For the reasons set forth above IT IS HEREBY ORDERED that:
1. Defendant's motion to compel, ECF No. 34, is GRANTED;
2. Within fourteen days from the date of the order, plaintiffs shall supplement their responses to defendant's request for production of documents as detailed in this order;
3. Within fourteen days from the date of this order, plaintiffs' counsel shall pay to defense counsel $1,634.00; and
4. Within fourteen days from the date of this order, plaintiffs' counsel shall file an affidavit under penalty of perjury stating that the sanction payment has been made and was not billed to plaintiffs.
