United States District Court, S.D. California
ORDER RE: DISCOVERY DISPUTE [ECF No. 64]
DAVID H. BARTICK, Magistrate Judge.
On March 17, 2014, Plaintiff Marta De La Torre filed a document entitled Joint Motion Regarding Discovery Dispute of Initial Disclosures. (ECF No. 64.) However, as the Court recognized in its March 18, 2014 order (ECF No. 66), the document was not filed jointly by both parties. Indeed, the document did not include Defendant Legal Recovery Law Office's position(s) with respect to the instant dispute. Accordingly, the Court ordered Defendant to file a response to Plaintiff's arguments no later than March 21, 2014. ( Id. ) Notwithstanding the Court's order, Defendant did not file a response. The Court now issues the following order resolving the parties' dispute concerning initial disclosures.
As set forth in the operative Second Amended Complaint (ECF No. 44), Plaintiff brings this action for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq., and its state-law counterpart, the Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788, et seq. Plaintiff alleges Defendant's agents attempted to collect a consumer credit card debt from Plaintiff using various unfair debt collection methods, including "about a dozen calls" from Defendant's agents that were improper and abusive.
On December 17, 2013, Magistrate Judge William McCurine, Jr. held an Early Neutral Evaluation Conference following which he issued an order setting Rule 26 dates and scheduling a Case Management Conference. (ECF No. 47.) In that order, Judge McCurine required Defendant to produce, as part of its Rule 26(a)(1) initial disclosures, "account notes, collection logs, phone bills and practice and procedure manuals." ( Id. at 2:6-7.) The instant dispute concerns Defendant's obligation to produce "phone bills" in compliance with Judge McCurine's order.
This matter was transferred to the undersigned Magistrate Judge on January 31, 2014 due to Judge McCurine's retirement. (ECF No. 62.)
Plaintiff contends Defendant has failed to comply with Judge McCurine's order requiring production of phone bills, despite several attempts to meet and confer. Plaintiff contends Judge McCurine's order did not require that a protective order be entered prior to the production of phone bills, or that the phone bills be redacted. Plaintiff further contends the phrase "phone bills" is not vague and ambiguous, as argued by Defendant's counsel during the meet and confer process.
Plaintiff seeks an order, pursuant to Rule 37(a)(3)(A), compelling Defendant to make the disclosure of phone bills previously ordered by the Court. Plaintiff also contends the self-executing provisions of Rule 37(c)(1) are applicable and that Defendant should not be permitted to use any of the documents it has failed to produce to aide its case. Plaintiff further contends additional sanctions are appropriate in the form of the attorney's fees incurred by Plaintiff in connection with the instant motion.
A. Document Production
The Court's first task is to determine whether Defendant should be compelled to produce the "phone bills" sought by Plaintiff. Contrary to the position taken by Plaintiff in the meet and confer process and in the instant motion, the phrase "phone bills" is ambiguous. On one hand, Defendant apparently interprets the phrase narrowly and suggests that production of its monthly invoices from its phone providers would comply with the Court's order. (ECF No. 64-1 at 4.) On the other hand, Plaintiff interprets the phrase much more broadly. Indeed, during the meet and confer process Plaintiff referenced court orders in other cases requiring Capital One to provide two years of phone bills, totaling 100, 000's of pages, and Chase to produce a year's worth of phone bills. ( Id. at 4-5.) It is not readily apparent to the Court the intent of Judge McCurine's order. The Court's order is also ambiguous as to the intended time period.
Given the ambiguity in Judge McCurine's order, a proper starting point is to determine the relevancy of the requested discovery. The threshold requirement for discoverability under the Federal Rules of Civil Procedure is whether the information sought is "relevant to any party's claim or defense." FED. R. CIV. P. 26(b)(1). In addition, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1). The relevance standard is thus commonly recognized as one that is necessarily broad in scope in order "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." 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) (quoting Goehring v. Brophy, 94 F.3d 1294, 1305 (9th Cir. 1996)). The party resisting discovery bears the burden of demonstrating that the requested discovery is not relevant. See Brady v. Grendene USA, Inc., 2012 U.S. Dist. LEXIS 173384, at *5 (S.D. Cal. Dec. 5, 2012) (citing Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 686 (S.D. Fla. 2010)).
Here, the Court concludes Defendant's phone bills are only relevant to the extent they contain evidence of Defendant's telephone communications with Plaintiff. As stated above, Plaintiff alleges in the Second Amended Complaint that Defendant's agents made "about a dozen calls" to Plaintiff that were abusive or otherwise improper. (ECF No. 44 at 6:21-22.) Thus, any portions of Defendant's phone bills that identify incoming calls from Plaintiff or outgoing calls to Plaintiff are relevant to these proceedings. However, the Court sees no reasonable basis for requiring Defendant to produce phone records pertaining to calls made to third parties where such calls have nothing to do with Plaintiff's allegations in this case which, the Court is quick to recognize, is not a putative class action. Indeed, such third party calls are not ...