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All Star Seed v. Nationwide Agribusiness Insurance Co.

United States District Court, Ninth Circuit

May 3, 2013

ALL STAR SEED, Plaintiff,
v.
NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART (1) PLAINTIFF'S MOTION TO COMPEL AND RELATED RELIEF AND (2) DENYING DEFENDANT'S REQUEST FOR RULE 11 SANCTIONS [ECF Nos. 45 & 46]

BARBARA L. MAJOR, Magistrate Judge.

Currently before the Court is Plaintiff's March 22, 2013 Motion to Compel Depositions and Related Relief [ECF No. 45 ("MTC")], Defendant's March 29, 2013 opposition to the motion [ECF No. 46 "Oppo."], and Plaintiff's April 5, 2013 reply. ECF No. 47 ("Reply"). For the reasons set forth below, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion to compel depositions and related relief and DENIES Defendant's request for Rule 11 sanctions.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed its complaint in this matter on January 18, 2012 [ECF No. 1] and filed an amended complaint on April 11, 2013 [ECF No. 50 ("FAC")]. The case concerns a dispute over insurance coverage. FAC at 1. Plaintiff, a company in the business of buying and selling hay [MTC at 7], alleges that Defendant improperly refused to indemnify it for substantial property loss that occurred after three arson fires in February and March of 2011 that destroyed Plaintiff's hay supply worth several million dollars. FAC. Plaintiff alleges that Defendant denied coverage "based upon alleged breaches of distance warranties contained in its Baled Hay in the Open Coverage endorsement (the "420 form")". MTC at 7.

On April 30, 2012, this Court issued a Case Management Conference Order Regulating Discovery and Other Pretrial Proceedings that set several deadlines related to discovery. ECF No. 17. In that Order, the Court stated that "[a]ll discovery shall be completed by all parties on or before December 14, 2012." Id. at 3. The Court twice extended that deadline, first to January 18, 2013 [ECF No. 25 at 2] and finally to March 18, 2013 [ECF No. 33 at 2] in response to joint motions from the parties seeking additional time to complete discovery. ECF Nos. 24 & 32.

Throughout the course of the litigation, the parties have had multiple discovery disputes. Specifically, on September 25, 2012, Defendant filed a discovery motion seeking a determination of the sufficiency of Plaintiff's responses to Defendant's first set of requests for admissions ("RFAs") and the recovery of the costs and fees in the amount of $3, 243.98 incurred by Defendant in bringing the motion. ECF No. 23. On February 22, 2013, the Court ordered the parties to lodge letter briefs after attorneys Paul Hilding and Brian Pelanda jointly contacted the Court regarding a discovery dispute arising out of Plaintiff's noticed deposition of Mr. Kirk Stewart. ECF No. 42. And now, in accordance with the briefing schedule issued by the Court on March 18, 2013, Plaintiff has filed a discovery motion seeking to compel various depositions and other related relief. MTC. Defendant filed a timely Opposition on March 29, 2013 [Oppo.] seeking Rule 11 sanctions and Plaintiff replied on April 5, 2013. Reply. Having reviewed the briefing submitted, and for the reasons set forth below, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART and Defendant's request is DENIED.

DISCUSSION

The instant discovery disputes concern Defendant's responses or lack thereof to various requests for production ("RFP") from Plaintiff, Plaintiff's alleged need for additional depositions due to the prejudice Plaintiff has suffered from Defendant's discovery-related conduct, Plaintiff's request for sanctions and future deposition costs, and Defendant's request that Plaintiff be sanctioned in accordance with Federal Rule of Civil Procedure ("FRCP" or "Fed. R. Civ. P.") 11.

I. Plaintiff's Motion as to Requests for Production is Timely

Defendant contends that Plaintiff's motion is untimely as to RFPs 1 and 2. Oppo. at 12. In support, Defendant states that it served its responses to RFP 1 on May 31, 2012 and to RFP 2 on December 14, 2012, and that the Court's scheduling order provided that "in no event shall discovery motions be filed more than sixty (60) days after the date upon which the event giving rise to the discovery dispute occurred.... For written discovery, the event giving rise to the discovery dispute is either the service of the response, or if no response was served, the initial date the response was due." Id . Defendant further argues that Plaintiff's claim that Defendant "wrongfully withheld" responsive documents is baseless. Id.

Plaintiff argues that its motion is timely because it did not learn that Defendant "had wrongfully withheld documents responsive to RFP 1" until February 20, 2013, which was "the event giving rise to the discovery dispute." MTC at 17-18.

The Court finds that Plaintiff's motion is timely. Plaintiff claims that it was not aware of Defendant's allegedly insufficient discovery responses until February 20, 2013 and Plaintiff's motion was filed within thirty-days of that realization on March 22, 2013. MTC. Plaintiff could not have learned of the allegedly insufficient responses prior to Defendant's supplemental production on February 20, 2013.

II. Requests for Production 3 Nos. 37 & 38

Plaintiff alleges that Defendant "refused to provide any response to nos. 37 and 38." MTC at 24. RFP 37 requests:

All DOCUMENTS that refer, or relate to Mr. Schiefler's performance as a Loss Control representative for the period of January 1, 2010 to May 1, 2011, including but not limited to any performance reviews, customer complaints, or any supervisorial comments, criticisms, or reprimands. This request covers all DOCUMENTS that refer to or relate to Mr. Schiefler's performance during the specified periods regardless of whether the documents were created during the January 1, 2010-May 1, 2011 period or after that period.

MTC at Exh. 25 at 7 (emphasis in original). RFP 38 requests: "All DOCUMENTS that refer or relate to the reasons for YOUR termination of Mr. Schiefler's employment." MTC at Exh. 25 at 8 (emphasis in original). Plaintiff alleges that in refusing to answer, Defendant initially relied on privacy and relevancy concerns, but has since begun to argue that Plaintiff is simply not entitled to the discovery. Id. at 24. Plaintiff argues that Mr. "Schiefler's skill as a loss control representative and his credibility as a witness are critical issues in this case" and that "documents relating to Schiefler's performance and termination may well contain candid information undermining Schiefler's claimed skill as a loss control representative and his veracity." Id. at 26. Plaintiff further argues that any privacy claims by Defendant "must be balanced against the need for discovery" and that there are very little privacy concerns here as there is an active protective order in the case. Id. at 26-27.

Defendant contends that Plaintiff's "RFP Nos. 37 and 38 severely infringe upon the privacy rights of an individual not a party to this action, and [Plaintiff] does not have a compelling need for any of this information." Oppo at 21. Defendant states that the requests are not relevant to Plaintiff's claims in this litigation and that private information about a former employee who is not a party to the action, not involved in the denial of Plaintiff's 2011 claim, and who has already been deposed should not be produced. Id. at 22. Defendant notes that the requested documents are not discoverable "simply because the information pertains to Schiefler's credibility as a witness" and that under California law, the right to privacy is favored absent a compelling need which Plaintiff has failed to demonstrate. Id. at 24-26. Finally, Defendant contends that Plaintiff failed to obtain the desired information through less intrusive means, such as during his deposition. Id. at 27.

The FRCP generally allow for broad discovery, authorizing parties to obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). Also, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id . Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence, " and need not be admissible at trial to be discoverable. Id . There is no requirement that the information sought directly relate to a particular issue in the case. Rather, relevance encompasses any matter that "bears on" or could reasonably lead to matter that could bear on, any issue that is or may be presented in the case. Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 351 (1978). District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan , 296 F.3d 732, 751 (9th Cir. 2002). Similarly, district courts have broad discretion to limit discovery where 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." Fed.R.Civ.P. 26(b)(2)(C). Limits should be imposed where the burden or expense outweighs the likely benefits. Id.

A party may request the production of any document within the scope of Rule 26(b). Fed.R.Civ.P. 34(a). "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Id. at 34(b)(2)(B). The responding party is responsible for all items in "the responding party's possession, custody, or control." Id. at 34(a)(1). Actual possession, custody or control is not required. Rather, "[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. Soto v. City of Concord , 162 F.R.D. 603, 619 (N.D. Cal. 1995). "In the context of discovery of confidential information in personnel files, even when such information is directly relevant to litigation, discovery will not be permitted until a balancing of the compelling need for discovery against the fundamental right of privacy determines that disclosure is appropriate." Liberty Mut. Ins. Co. v. California Auto. Assigned Risk Plan, 2012 WL 892188, *3 (N.D. Cal., March 14, 2012) (citing El Dorado Savings & Loan Assn. V. Superior Court, 190 Cal. App.3d, 346 (1987)) (quoting Cutter v. Brownbridge , 183 Cal.App.3d 836, 843, (1986)). "[E]ven where strong public policy against disclosure exists, as in the case of personnel files, discovery is nonetheless allowed if (1) the material sought is "clearly relevant, " and (2) the need for discovery is compelling because the information sought is not otherwise readily obtainable." Matter of Hawaii Corp. , 88 F.R.D. 518, 524 (D.C. Hawaii, 1980) (citing New York Stock Exchange, Inc. v. Sloan , 22 Fed.R.Serv.2d 500, 505 (S.D.N.Y.1976)) and United States v. American Optical Co. , 39 F.R.D. 580, 589 (N.D. Cal. 1966) (citations omitted).

Here, Plaintiff's requests are overbroad. Plaintiff is seeking all documents that refer or relate to Mr. Schiefler's performance during the specified period of time and all documents that refer to or relate to his termination. MTC at Exh. 25. In addition, Plaintiff has failed to demonstrate a compelling need for all of the requested documents. While it is true Plaintiff does not have direct access to Mr. Schiefler's personnel records, Plaintiff has deposed Mr. Schiefler and had the opportunity to ask him directly about his termination from Defendant and any explanations that were provided to him for the termination. MTD at Exh. 20.[1] Plaintiff also had the option of conducting additional depositions with Mr. Schiefler's supervisor or other key personnel to gather additional information, but chose not to do so.

Despite Plaintiff's failings, the Court finds that some portions of the documents requests are relevant and should be produced. Accordingly, Plaintiff's motion to compel responses to RFPs 37 & 38 is GRANTED IN PART AND DENIED IN PART as follows:

§ Defendant is ORDERED to provide Plaintiff with all documents that refer to Mr. Schiefler's honesty, credibility, or record keeping including but not limited to any performance reviews, customer complaints, or any supervisorial comments, criticisms, or reprimands during the January 1, 2010-May 1, 2011 period;
§ Defendant need not produce documents in response to FRCP 38 as Plaintiff has deposed Mr. Schiefler regarding his termination and failed to establish a compelling need for this request; and
§ All information produced in response to this request will be subject to the protective order entered on May 21, 2012. See ECF No. 18.

III. Request for Production 4 Nos. 42-44

Plaintiff alleges that Defendant "has wrongfully refused to provide any documents responsive to [RFPs ...


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