LOUISA S. PORTER, Magistrate Judge.
Presently before the Court are the following motions filed by Plaintiff Duncan Lindsey, Ph.D. ("Plaintiff") and Defendants Elsevier Inc., Elsevier B.V., and Elsevier Ltd. (collectively "Elsevier"): (1) Joint Motion for Determination of Discovery Dispute to Compel Elsevier to Produce Financial Data for Plaintiff's Experts and to Extend Deadline for Submission of Experts' Reports (ECF No. 51); (2) Joint Motion for Determination of Discovery Dispute for Production of Tax Returns (ECF No. 53); (3) Elsevier's Motion for Leave to File Submission Regarding Testimony Relating to Pending Motion to Compel Tax Returns and Plaintiff's Objection and Response to this Submission (ECF No. 59); (4) Joint Motion for Extension of Time to Complete Discovery (ECF No. 60); and (5) two Motions to Seal (ECF No. 46, 56).
Having reviewed the parties' submissions and supporting exhibits, for the reasons set forth below, the Court: (1)
Plaintiff commenced this action against Elsevier in San Diego Superior Court on March 17, 2016, alleging breach of contract, fraud, breach of fiduciary duty, constructive fraud, and breach of implied covenant of good faith and fair dealing. (ECF No. 1-2, Exh. A ("Compl.").) On April 30, 2016, the case was removed to federal court pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, on the basis of diversity. (ECF No. 1.)
In the Complaint, Plaintiff, a former tenured full Professor at the University of California, Los Angeles, alleges Elsevier failed to pay him royalties owed under a written contract for a scholarly research journal about children and youth services that Plaintiff developed and has edited for thirty-eight years and Elsevier published. (Compl. at ¶¶ 1, 7.) In 1978, Plaintiff and Elsevier's predecessor, Pergamon Press, entered into a written contract ("Journal Contract") to develop and publish a journal called Children and Youth Services Review ("CYSR"), which became the premier research journal in the field of child welfare social work. (Id. at ¶ 1.)
Under the Journal Contract, Plaintiff was to receive each year 15% of the net subscription income received "in respect of institutional subscriptions to the journal over and above the first 750 institutional subscriptions" in the form of royalty payments. (Id. at ¶¶ 1, 17.) Plaintiff alleges Elsevier has never paid him any compensation in the form of journal subscription royalties, maintaining none was ever due. (Id. at ¶¶ 3, 6.) Elsevier and its predecessor repeatedly informed Plaintiff that the threshold of 750 subscriptions was never met. (Id. at ¶ 3.) Plaintiff alleges that Elsevier has obfuscated, misled, and failed to disclose the truth about the way it is calculating its subscriptions and his royalties. (Id. at ¶ 6.) In this lawsuit, Plaintiff seeks damages, disgorgement of profits, rescission, an accounting, and/or declaratory relief. (Id. at p. 19.)
Presently before the Court is a Joint Motion for Determination of Discovery Dispute to Compel Elsevier to Produce Financial Data for Plaintiff's Experts and to Extend Deadline for Submission of Experts' Reports. (ECF No. 51.) Plaintiff moves to compel production of total revenue data, arguing that it is essential for his expert to conduct his damages analysis. (Id. at 2.) Plaintiff also seeks to extend the deadline for his experts to submit their reports, and sanctions against Elsevier for obstruction. (Id. at 2, 11.)
On February 2, 2017, Plaintiff served a Revised First Set of Requests for Production of Documents and a Revised First Set of Interrogatories. (ECF No. 51-1, Declaration of Jeffrey Valle ("Valle Decl."), at ¶¶ 4-5, Exhs. 1, 2.) In the revised set, Request for Production No. 1 seeks: "For each year during the period of 2006 through the present, DOCUMENTS sufficient to show the total gross annual income ELSEVIER received from INSTITUTIONS pursuant to ESAs [Elsevier Subscription Agreements or Elsevier License Agreements] that included ACCESS to the JOURNAL." (Valle Decl. at Exh. 1, p. 6.) In addition, Interrogatory No. 1 seeks: "For each ESA from 2006 to the present that included ACCESS to the JOURNAL, state the total gross income ELSEVIER received pursuant to that ESA during each year." (Id. at Exh. 2, p. 3.)
Elsevier responded to these Requests for Production and Interrogatories on March 6, 2017. (Id. at ¶¶ 6-7, Exhs. 3, 4.) Subject to objections, Elsevier agreed to produce responsive, non-privilege documents sufficient to respond to Request No. 1 to the extent the documents were located after a reasonable search and diligent inquiry. (Id. at Exh. 3.) Elsevier also agreed, subject to objections, to produce documents from which the information requested in Interrogatory No. 1 can be derived. (Id. at Exh. 4.) In April and May 2017, the parties met and conferred regarding Elsevier's responses, disagreeing, among other things, on whether Elsevier's responses to Request No. 1 and Interrogatory No. 1 were sufficient. (Id. at ¶¶ 8-10, Exhs. 5-7.)
On May 31, 2017, after receiving input from Plaintiff's expert, Plaintiff served his Fourth Set of Requests for Production. (Id. at ¶ 11, Exh. 8.) Plaintiff claims the new Request No. 50 modifies Plaintiff's prior Request for Production No. 1 and Interrogatory No. 1. (Id.) Request for Production No. 50 seeks: "For each ELSEVIER CUSTOMER, for each year during the period January 1, 1997 through May 30, 2017, DOCUMENTS providing data showing the annual revenue received by ELSEVIER for online access to content contained in the Science Direct database, denominated in the currency used by the CUSTOMER." (Id.)
On June 30, 2017, Elsevier served its response to Request for Production No. 50, objecting on the following grounds: (1) vague and ambiguous; (2) overbroad and unduly burdensome; (3) fails to define "online access" and "content;" (4) does not relate to the manner in which Elsevier's business records are kept; (5) seeks documents not reasonably calculated to lead to the discovery of admissible evidence or relevant to the claims and defenses in this case by asking for production of documents related to journals other than CYSR and products that do not relate to CYSR; and (6) seeks highly confidential, proprietary and/or trade secret information. (Id. at ¶ 14, Exh. 11.) Subject to these objections, Elsevier stated that it "has already produced a report, going as far back as such data is reasonably accessible, showing each CYSR customer, the customer's address, the products purchased year by year, and the price paid. The report is over 23,000 lines (the equivalent of over 2.000 pages of data)." (Id.)
Plaintiff now moves to compel production of documents responsive to Request No. 50, as well as extend the deadline for filing expert reports, and to sanction Elsevier in an amount of not less than $16,125. (ECF No. 51.)
Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure,
Fed. R. Civ. P. 26(b)(1).
The relevance standard is commonly recognized as one that is necessarily broad in scope. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). However broadly defined, relevancy is not without "ultimate and necessary boundaries." Hickman, 329 U.S. at 507. Accordingly, district courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion to limit discovery. For example, a court may limit the scope of any discovery method if it determines that "the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive" or the "proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C)(i), (iii). "The party who resists discovery has the burden to show discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections." Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Sullivan v. Prudential Ins. Co. of Am., 233 F.R.D. 573, 575 (C.D. Cal. 2005)).
Plaintiff contends that his expert requires the following information, at a minimum, to conduct a proper damages allocation analysis: (1) total annual revenue received from each Elsevier customer for each package deal that provided access to CYSR; and (2) article download and citation data for each Elsevier journal. (ECF No. 51 at 3.) Plaintiff states that Elsevier has agreed to produce — and has produced the majority of — the requested article download and citation data, but has not produced the total annual revenue requested. (Id.; Valle Decl. at ¶ 20.) In response, Defendant argues that the information requested is not relevant, is trade secret privileged, and would be unduly burdensome to produce. (ECF No. 51 at 14-20.)
Plaintiff argues that Elsevier sells its journals in many ways. One way is by entering into "package deals," whereby Elsevier's "customers pay a total price and in return receive a package of individual journals plus a bundle of additional journals, referred to as Collections." (ECF No. 51 at 2-3; Valle Decl. at Exh. 17.) Plaintiff contends the individual journals "sometimes include CYSR," but the Collections "almost always include CYSR." (ECF No. 51 at 8.) Plaintiff argues that although CYSR is included in the Collections Elsevier sells to its customers, he was paid no royalties from those sales or any other sale of subscription access to CYSR. (Id. at 3.)
Elsevier has produced revenue information for CYSR and all Collections containing CYSR, but not for the entire deal that includes access to CYSR. (Id. at 7; Valle Decl. at ¶¶ 15-16.) In order for Plaintiff's expert to conduct its allocation analysis, Plaintiff claims he needs "total revenues, by year, from each Elsevier customer that purchased paid access to CYSR through a packaged deal memorialized in a single agreement." (Id. at 4.) The single agreements Plaintiff refers to are Elsevier Subscription Agreements ("ESA"). (Id. at 8; see also Valle Decl. at Exh. 17.) Plaintiff argues that it is the "total price" in the ESA that is relevant and that he needs, and not Elsevier's "arbitrary allocations" of the total price to CYSR subscriptions. (ECF No. 51 at 8.)
In response, Elsevier argues that Plaintiff is not entitled to highly sensitive and proprietary revenue information for subscriptions to journals that have nothing to do with CYSR. (Id. at 13.) Elsevier refutes Plaintiff's claim that journal subscriptions are sold in a "package deal." (Id.) Rather, Elsevier claims that "the contracts themselves show the specific and separate prices paid for each journal subscription." (Id.) Elsevier states that it has produced "thousands of pages of spreadsheets showing the name, address, and price paid for every single CYSR subscription, as well as whether the subscription was print, electronic, or both." (Id.) Elsevier claims it has also produced the "formula that it applies to allocate the revenue from Collections purchases to specific journals, including CYSR, and it has further produced the underlying usage, quality and size data, notwithstanding the clear language in the CYSR contract providing Elsevier with the right to determine commercial policy, including pricing and method of distribution, for CYSR." (Id. at 13-14.)
After consideration of the parties' arguments, the Court finds the requested information, as modified by the Joint Motion, to be relevant under Rule 26(b)(1). See Fed. R. Civ. P. 26(b)(1) ("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense. . . ."). In the Joint Motion, Plaintiff modifies Request for Production No. 50 and limits the request to "total revenues from Elsevier customers who had access to CYSR during the relevant years." (ECF No. 51 at 5, n. 3.)
The Court further finds the Protective Order already issued in this case pursuant to Rule 26(c) to be sufficient to protect any confidential and/or trade secret information contained in the requested information. See Fed. R. Civ. P. 26(c)(1)(G) (permitting a court, for good cause, to issue a protective order "requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way"); ECF No. 18 (Protective Order). Prior to issuing the Protective Order, which was disputed in this case, the Court took into consideration Elsevier's concerns about disclosure of its highly confidential and protected business and trade secret information, including its pricing and financial information, identity of subscribers, and formulas for allocation revenues.
The Court also finds the requested information, as modified by the Joint Motion, to be "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." See Fed. R. Civ. P. 26(b)(1). Elsevier asserts that it spent 120 managerial-level hours to prepare and produce the initial report, which required it to retrieve, compile and reconcile data from multiple systems. (ECF No. 51 at 19-20.) Elsevier further states that for years prior to 2008, the data is stored in a retired database system that would require reconstruction and manual reconciliation, and countless additional hours. (Id. at 20.) Although the Court acknowledges the additional work might be time-consuming, given the potential importance of the information to the case, Plaintiff's inability to access this information by any other means, and Elsevier's resources, the Court overrules Elsevier's objections.
Accordingly, the Court
Also presently before the Court is a Joint Motion for Determination of Discovery Dispute For Production of Tax Returns. (ECF No. 53.) Elsevier moves to compel the production of Plaintiff's tax returns for the past 39 years. (Id.) Plaintiff opposes the motion, arguing that the taxpayer privilege applies to his California returns, and that his Oregon returns are not relevant. (Id.)
After taking Plaintiff's deposition, Elsevier filed a Motion for Leave to File Submission regarding Plaintiff's testimony, which it contends relates to the pending Joint Motion to compel Plaintiff's tax returns. (ECF No. 59.) Elsevier argues that "testimony and instructions given at that deposition are directly relevant and provide new evidence regarding the issues briefed in the pending Joint Motion." (Id.) Plaintiff opposes the motion, arguing that the instructions and testimony do not provide new evidence relevant to the pending motion. (Id.) After reviewing the motion for leave, the Court finds new information contained in the submission to be helpful, particularly information concerning which years Plaintiff filed a California tax return, and therefore
Elsevier seeks 39 years of Plaintiff's joint tax returns, which were filed in both California and Oregon. In its Requests for Production, Elsevier requested documents reflecting or substantiating any monies Plaintiff received from Elsevier related to CYSR, and any monies Plaintiff paid to a person retained to provide services for CYSR. (ECF No. 53-1 at Exhs. A, C.) Plaintiff produced documents reflecting monies Plaintiff received from Elsevier, but did not construe any of the requests as seeking the production of tax returns. (ECF No. 53-2 at ¶¶ 2, 3; ECF No. 53-1 at Exh. B.) During meet and confer efforts, Elsevier demanded production of Plaintiff's tax returns for the past 39 years. (ECF No. 53-2 at ¶ 5.) Plaintiff argues he initially agreed to produce some returns, but not returns for all 39 years, and his wife never agreed to any production. (ECF No. 53-2 at ¶¶ 5-6; ECF No. 53-1 at ¶¶ 43-47.) Plaintiff ultimately did not produce any tax returns. (ECF No. 53-2 at ¶ 6; ECF No. 53-1 at ¶¶ 46-48.)
Based on the information before the Court, it appears that Plaintiff and his wife filed joint tax returns in California from approximately 1994 until the present. (Compl. at ¶¶ 7, 21; ECF No. 59-2 at 7.) Plaintiff and his wife also filed joint tax returns in Oregon from approximately 1978 to 1994, and again from approximately 2011 to the present, when Plaintiff and his wife moved back to Oregon for at least half of the year. (Compl. at ¶ 21; ECF No. 53 at 7, 21; ECF No. 59-2 at 7-8.)
Because this action was removed to federal district court under diversity jurisdiction, the substantive law of California applies, including on matters of privilege. See Conestoga Servs. Corp. v. Exec. Risk Indem., Inc., 312 F.3d 976, 980-81 (9th Cir. 2002) (citations omitted); Star Editorial, Inc. v. U.S. D. Ct. for Cent. D. of Cal., 7 F.3d 856, 859 (9th Cir. 1993); Fed. R. Evid. 501; see also ECF No. 1.
California courts have interpreted state taxation statutes as creating a statutory privilege against disclosing tax returns. Schnabel v. Super. Ct., 5 Cal.4th 704, 718-21 (1993); Weingarten v. Super. Ct., 102 Cal.App.4th 268, 274 (2002). The purpose of the privilege is to encourage the voluntary filing of tax returns and truthful reporting of income, and thus to facilitate tax collection. Webb v. Standard Oil Co., 49 Cal.2d 509, 513 (1957). This statutory tax return privilege, however, is not absolute. Schnabel, 5 Cal. 4th at 721. The privilege will not be upheld when: (1) the circumstances indicate an intentional waiver of the privilege; (2) the gravamen of the lawsuit is inconsistent with the privilege; or (3) a public policy greater than that of the confidentiality of tax returns is involved. Id. "A trial court has broad discretion in determining the applicability of a statutory privilege." Weingarten, 102 Cal. App. 4th at 274. The requesting party bears the burden of demonstrating that an exception applies. See Schnabel, 5 Cal. 4th at 721; Lawson v. GrubHub, Inc., No. 15-CV-05128-JSC, 2017 WL 1684964, at *2 (N.D. Cal. May 3, 2017).
Oregon does not have a similar taxpayer privilege. See State ex rel. Thesman v. Dooley, 270 Or. 37, 45 (1974). Under Oregon law, tax returns are discoverable if they are "relevant to the claim or defense of the party seeking discovery or to the claim or defense of any other party." Or. R. Civ. P. 36; see also Or. R. Civ. P. 43 (production of documents); State ex rel. Thesman, 270 Or. at 44 (applying Oregon's prior discovery standard of good cause, which tracked Federal Rule of Civil Procedure 34's prior good cause standard, which has also been eliminated).
Similarly, under federal law, tax returns and related documents do not enjoy an absolute privilege from discovery. Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975); Heathman v. U.S. D. Ct. for the Cent. D. of Cal., 503 F.2d 1032, 1035 (9th Cir. 1974). "Nevertheless, a public policy against unnecessary public disclosure arises from the need, if the tax laws are to function properly, to encourage taxpayers to file complete and accurate returns." Premium Serv. Corp., 511 F.2d at 229. "Accordingly, the Court may only order the production of plaintiff's tax returns if they are relevant and when there is a compelling need for them because the information sought is not otherwise available." Aliotti v. The Vessel SENORA, 217 F.R.D. 496, 497-98 (N.D. Cal. 2003) (citations omitted); see also A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006). "The party seeking production has the burden of showing relevancy, and once that burden is met, the burden shifts to the party opposing production to show that other sources exist from which the information is readily obtainable." A. Farber & Partners, Inc., 234 F.R.D. at 191.
Plaintiff and his wife have not intentionally waived the privilege as to their joint California tax returns. Both spouses have filed declarations stating they do not want or intend to waive the privilege against disclosure of their joint tax returns. (ECF No. 53-3 at ¶ 4; ECF No. 53-4 at ¶ 2.) Although Plaintiff may have unintentionally waived the privilege as to some of his tax returns by producing an October 1993 letter that he sent to the IRS and other documentation related to an audit, he alone cannot waive the privilege. (See ECF No. 53-1 at ¶ 11, Exh. Y; ECF No. 53-2 at Exhs. C, D.) "In the absence of a waiver by each of the holders of the privilege, the court may not compel disclosure of joint federal or joint state income tax returns, or any information contained therein." Coate v. Super. Ct., 81 Cal.App.3d 113, 115 (1978). As Plaintiff's wife has never waived the privilege, the Court finds that there has been no intentional waiver of the privilege as to their joint tax returns.
The gravamen of this lawsuit is also not inconsistent with the assertion of the privilege. Elsevier argues that Plaintiff has placed the amount of his editorial subsidies at issue by alleging a joint venture and seeking quantum meruit for the reasonable value of his editorial services in his Complaint,
In the Complaint, Plaintiff alleges that he was entitled to "receive compensation in the form of journal subscription royalties [for his work on CYSR], but Elsevier never paid him any compensation, maintaining that none were ever due." (Compl. at ¶ 3 (emphasis added).) Plaintiff alleges that he was entitled to receive an editorial subsidy, and did receive one to cover some of the expenses of the journal, but the gravamen of the lawsuit is that he "never received any Subscription Royalties at all from Elsevier, despite the success of [CYSR]." (Id. at ¶ 4; see also ¶¶ 28-32.) In this regard, Plaintiff alleges Elsevier breached the Journal Contract "by failing to pay [Plaintiff] Subscription Royalties due under the Journal Contract" and committed fraud by intentionally concealing, suppressing, and misleading Plaintiff "about the true facts concerning the way it was calculating the number of institutional subscribers, the existing number of institutional subscribers and the Subscription Royalties due to [Plaintiff]." (Id. at ¶¶ 36, 45.) For Plaintiff's remaining causes of action, Plaintiff relies solely on allegations that Elsevier failed to disclose the correct number of institutional subscriptions, and to pay subscription royalties, as the basis for his claims. (See id. at ¶¶ 51-76.)
Plaintiff does not make any claim in the Complaint that Elsevier failed to properly pay him for his editorial expenses in working on the journal. Although Plaintiff alleges the editorial subsidy he received did not cover his full expenses, he does not make any claim for payment of those expenses.
On August 15, 2017, Elsevier filed a First Amended Answer, Affirmative Defenses and Counterclaims. (ECF No. 55.) Elsevier's counterclaims include: (1) breach of contract, (2) fraud, and (3) conversion. (Id. at ¶¶ 102-135.) These counterclaims rely, in part, on the allegation that Plaintiff used "CYSR and expenses claimed to have been incurred on behalf of CYSR for [Plaintiff's] own personal benefit and the benefit of other business ventures in which [Plaintiff] had a stake." (See id. at ¶¶ 106; see also ¶¶ 109-135.) Elsevier alleges that it discovered Plaintiff "was using personnel that he claimed to be working on CYSR, and expenses related to CYSR, for his own personal benefit and that of his private business ventures" through discovery in this case. (Id. at ¶ 109.) Specifically, Elsevier alleges Plaintiff "misrepresented the credentials, scope of work, and/or purpose" of "individuals in India, including an individual named Renji Mathew and other staff," which Plaintiff represented he hired to assist on CYSR. (Id. at ¶ 112.) Elsevier claims Plaintiff hired Renji "by at least 2005 or 2006." (Id. at ¶ 113.) During this time period, Elsevier claims Plaintiff was involved with several software companies and Renji was hired to assist with those companies, and not CYSR. (Id. at ¶¶ 111-131.) Plaintiff alleges that Plaintiff's refusal to produce his tax returns has prevented Elsevier from determining the true nature of Renji's work and other expenses Plaintiff purports to have incurred on behalf of CYSR. (See id. at ¶ 127.)
The parties do not dispute that Elsevier agreed to pay a portion of Plaintiff's fixed editorial subsidy to Renji Mathews beginning in or around 2008. (ECF No. 53-3 at ¶ 8; ECF No. 55 at ¶¶ 118-120; ECF No. 53 at 21.) Instead, the parties dispute the extent to which Renji Mathews and his company worked on CYSR, if at all. (See ECF No. 53-3 at ¶ 8; ECF No. 53 at ¶¶ 118-129.) Plaintiff also claims that Elsevier just split the fixed editorial subsidy payment "into two parts" when it sent a portion to Renji Mathews as a "courtesy" to Plaintiff; "it did not change or increase the total per issue or annual payments." (ECF No. 53-3 at ¶ 8.) Plaintiff further claims that when Elsevier stopped paying any portion of the editorial subsidy to Renji Mathews, it continued to pay him a check for $3,350 per issue. (Id.) Elsevier, on the other hand, appears to claim that it would not have split the payment and sent a portion to Renji Mathews if he did not render services in that amount on behalf of CYSR. (See ECF No. 53 at ¶ 133.)
Although California case law refers to an exception to the privilege when the privilege holder puts his or her tax returns at issue,
Lastly, Elsevier does not identify any public policy that would be harmed if Plaintiff does not produce his tax returns. This exception "is narrow and applies when warranted by a legislatively declared public policy." Weingarten, 102 Cal. App. 4th at 274. The "[p]ublic policy favoring discovery in civil litigation is not, by itself, sufficiently compelling to overcome the privilege." Fortunato v. Super. Ct., 114 Cal.App.4th 475, 483 (2003).
As Elsevier has not established an exception to the privilege, the Court
Plaintiff and his wife filed joint tax returns in Oregon from approximately 1978 to 1994, and again from approximately 2011 to the present, when Plaintiff and his wife moved back to Oregon for at least half of the year. (Compl. at ¶ 21; ECF No. 53 at 7, 21; ECF No. 59-2 at 7-8.) Unlike California, Oregon does not have a taxpayer privilege, and Plaintiff does not assert one over these returns. (ECF No. 53 at 21.) Instead, Plaintiff only argues there is no good cause to compel their production as Plaintiff has not put them at issue, and any returns that pre-date 2008 would have nothing to do with any issues in the case. (Id.)
Both parties assume Oregon's general discovery standard applies in the absence of a state privilege. However, federal courts sitting in diversity often apply federal law to motions to compel tax returns in the absence of a state taxpayer privilege. See Ronald C. Fish, a law corp. v. Watkins, No. CIV0300067PHXSMM, 2006 WL 411302, at *1-2 (D. Ariz. Feb. 17, 2006) (applying federal law to motion to compel tax returns in diversity case); Adkins v. TFI Family Servs., Inc., No. 13-CV-2579-DDC-GLR, 2017 WL 3130587, at *6-7 (D. Kan. July 24, 2017) (same); Gregory v. Gregory, No. 2:15-cv-0320 (WHW) (CLW), 2016 WL 6122456, at *11 (D. N.J. Oct. 18, 2016) (same). This Court also finds it appropriate to apply federal law in the absence of a state privilege. Accordingly, production of Plaintiff's Oregon tax returns is only appropriate if they are relevant and there is a compelling need for them because the information sought is not otherwise available. Aliotti, 217 F.R.D. at 497-98.
As to any Oregon returns that pre-date 2008, the Court finds they are generally not relevant to Plaintiff's Complaint or Elsevier's counterclaims. However, because Plaintiff produced, and intends to rely on documentation related to a 1993 tax audit, the Court finds any tax returns related to that audit to be relevant. In addition, the Court finds Plaintiff's Oregon tax returns — personal and business — for the years he filed them from 2008 to the present to be relevant.
As Elsevier has established relevance, Plaintiff bears the burden of showing that other sources exist from which the information is readily available. A. Farber & Partners, Inc., 234 F.R.D. at 191. Plaintiff has not done so. Instead, Plaintiff has responded to discovery stating that he never had, or has not maintained, many of his business records, including documents related to Renji Mathews. (See ECF No. 53-1 at Exhs. U, V, W; ECF No. 53-3 at ¶ 5.) Accordingly, the Court
For the foregoing reasons, the Court
1. Plaintiff's motion to compel documents responsive to Request for Production No. 50 is
2. Elsevier's motion to compel Plaintiff's tax returns is
3. Elsevier's motion for leave to file its submission regarding testimony related to the pending motion to compel Plaintiff's tax returns is
4. All documents ordered produced by this Order shall be produced no later than
5. In addition, for good cause shown, the Court
Accordingly, the Court modifies the Scheduling Order as follows:
1. By
2. Any party shall supplement its disclosure regarding contradictory or rebuttal evidence under Fed. R. Civ. P. 26(a)(2)(D) and 26(e) by
3. All discovery shall be completed by all parties by
4. Please be advised that failure to comply with any discovery order of the Court may result in the sanctions provided for in Fed. R. Civ. P. 37, including a prohibition on the introduction of experts or other designated matters in evidence.
5. All pretrial motions, including those addressing Daubert issues related to dispositive motions must be filed by
6. A Mandatory Settlement Conference shall be conducted on
Governmental entities may appear through litigation counsel only. As to all other parties, appearance by litigation counsel only is
7. Pursuant to Honorable Gonzalo P. Curiel's Civil Pretrial & Trial Procedures, the parties are excused from the requirement of Local Rule 16.1(f)(2)(a); no Memoranda of Law or Contentions of Fact are to be filed.
8. Counsel shall comply with the pre-trial disclosure requirements of Fed. R. Civ. P. 26(a)(3) by
9. Counsel shall meet and take the action required by Local Rule 16.1(f)(4) by
10. Counsel for Plaintiff will be responsible for preparing the pretrial order and arranging the meetings of counsel pursuant to Civil Local Rule 16.1(f). By
11. The Proposed Final Pretrial Conference Order, including objections to any other parties' Fed. R. Civ. P. 26(a)(3) Pretrial Disclosures shall be prepared, served and lodged with the assigned district judge by
12. The final Pretrial Conference is scheduled on the calendar of the
13. The parties must review the chambers' rules for the assigned district judge and magistrate judge.
14. A post-trial settlement conference before a magistrate judge may be held within 30 days of verdict in the case.
15. The dates and times set forth herein will not be modified except for good cause shown.
16. Briefs or memoranda in support of or in opposition to all motions noticed for the same motion day shall not exceed twenty-five (25) pages in length, per party, without leave of the judge who will hear the motion. No reply memorandum shall exceed ten (10) pages without leave of a district court judge. Briefs and memoranda exceeding ten (10) pages in length shall have a table of contents and a table of authorities cited.
IT IS SO ORDERED.
