United States District Court, S.D. California
ORDER FOLLOWING DISCOVERY HEARING
WILLIAM V. GALLO, Magistrate Judge.
On June 10, 2014, the Honorable Larry A. Burns, United States District Judge, issued an Order on a Motion to Dismiss Defendants' Counterclaims. (Doc. No. 31.) On June 11, 2014, Defense counsel contacted the Court and stated that Judge Burns' ruling on the Motion to Dismiss impacted the parties' ongoing meet and confer efforts involving discovery disputes. This Court's Chambers Rules require that the parties notify the Court of a discovery dispute within thirty days of the date upon which the event giving rise to the dispute occurred. Judge Gallo's Chambers Rule IV(C). The thirty day deadline to bring the dispute to the Court's attention was to expire on June 18, 2014.
On June 18, 2014, the parties lodged a Joint Statement with the Court, as instructed, seeking an extension of time to complete their meet and confer efforts. The parties requested an extension until June 30, 2014, to complete meet and confer efforts and address any unresolved discovery issues with this Court. On June 19, 2014, the Court granted the parties' joint request to extend the deadline by which to meet and confer in an attempt to resolve these discovery disputes. (Doc. No. 33.) The parties were required to file a Joint Statement for Determination of Discovery Disputes with this Court by June 30, 2014. Id.
On June 30, 2014, the parties submitted two individual statements to the Court regarding the discovery disputes, which involve Plaintiff's responses to certain Requests for Production of Documents ("RFPs") and Interrogatories ("ROGs") propounded by Defendants. On July 2, 2014, the Court set a Discovery Hearing for July 7, 2014, at 10:00 a.m. (Doc. No. 37.) Counsel who intended to present arguments were ordered to be present before the Court at the Discovery Hearing. Id. at 2.
On July 7, 2014, at 10:00 a.m., the Court convened a Discovery Hearing. Mr. Jeffrey Wilson and Mr. Michael Murray appeared on behalf of Plaintiff The Sherwin-Williams Company (hereinafter "Plaintiff"), and Mr. Paul Sorrentino and Mr. John Nordlund appeared on behalf of Defendants JB Collision Services, Inc., JJT, Inc., and John Tyczki (hereinafter "Defendants").
A. DEFENDANTS' ARGUMENT
First, Defendants argued that Plaintiff failed to provide a verification for any of its discovery responses. Second, Defendants argued that Plaintiff is playing games by arguing over obvious terms in Defendants' discovery requests such as "complaint, " "contracted with, " "quality, " and "related to." Defendants claimed that they have agreed to limit the geographic scope and time frame of several of their discovery requests, and they simply want documents related to their ability to defend themselves and to pursue their counter-claims.
B. PLAINTIFF'S ARGUMENT
Plaintiff argued that RFP Nos. 8 and 10 are the most troublesome of the disputed requests because they are extremely broad and based solely on Defendants' fraud claims that were previously dismissed. Plaintiff asserted that this case is simply a breach of contract dispute, and expressed concern that Defendants are attempting to haul Plaintiff's customers into depositions and elicit complaints.
Plaintiff noted that responding to RFP No. 10 could create an incredibly expensive and very invasive gathering and production of trade secrets and proprietary information. It argued that Defendant's list of quality defects has been growing artificially in an attempt to further their fishing expedition. Plaintiff complained that Defendants' requests encompass any piece of paper that might reference customer dissatisfaction, even if the customer did not complain.
A. WAIVER OF DISCOVERY OBJECTIONS
The Court observes that most of Plaintiff's responses to Defendants' discovery requests state objections such as over broad, vague, is not reasonably calculated to lead to the discovery of admissible evidence, etc. Additionally, many of Plaintiff's responses invoke the attorney-client privilege and work product doctrine. Further, some of the responses contain language stating "subject to and without waiving the foregoing objection, please see the documents that have been produced..."
Where the responding party provides a boilerplate or generalized objection, the "objections are inadequate and tantamount to not making any objection at all." Walker v. Lakewood Condominium Owners Associations , 186 F.R.D. 584, 587
(C.D.Cal. 1999); See Ritacca v. Abbott Laboratories , 203 F.R.D. 332, 335 n.4 (N.D.Ill. 2001) ("As courts have repeatedly pointed out, blanket objections are patently improper, ...[and] we treat [the] general objections as if they were never made."). The responding party must clarify, explain, and support its objections. Anderson v. Hansen, 2012 WL 4049979, at 8 (E.D. Cal. Sept. 13, 2012). "The grounds for objecting to a request must be stated... and as with other forms of discovery, it is well established that boilerplate objections do not suffice." Id . (discussing boilerplate objections asserted in response to requests for admission).
Further, conditional responses and/or the purported reservation of rights by Plaintiff is improper and ultimately has the effect of waiving Plaintiff's objections to the discovery requests. Sprint Communications Co. v. Comcast Cable Communica-tions, LLC, 2014 WL 545544 at *2 (D. KS 2014)("Sprint I"), modified 2014 WL 569963 (D. KS 2014)("Sprint II"). The Court recognizes that it is common practice among attorneys to respond to discovery requests by asserting objections and then responding to the discovery requests "subject to" and/or "without waiving" their objections. This practice is confusing and misleading. Moreover, it has no basis in the Federal Rules of Civil Procedure. Sprint I, 2014 WL 545544 at *2.
The responses are confusing and misleading because, for example, when a party responds to an interrogatory that is "subject to" and "without waiving its objections, " the propounder of the interrogatory is "left guessing as to whether the responding party has fully or only partially responded to the interrogatory." Estridge v. Target Corp., 2012 WL 527051 at *1-2 (S.D. FL 2012). Further, conditional responses to discovery requests violate Federal Rule of Civil Procedure 26. Rule 26 (g)(1)(B)(I)-(iii) requires responders to discovery requests to certify that the discovery responses are consistent with the Federal Rules of Civil Procedure, "not imposed for any improper purpose, " and are "neither unreasonable nor unduly burdensome." Moreover, the 1983 Committee comments to Rule 26(g) state that "Rule 26 imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rule 26 through 37." Providing conditional responses to discovery requests is improper. Sprint II, 2014 WL 1569963 at *3.
Consequently, as to the responses that are made "subject to" and "without waiving the foregoing objections, " they are improper, the objections are deemed waived, and the response to the discovery request stands. Estridge, 2012 WL 527051 at *2; citing Tardif v. People for the Ethical Treatment of Animals, 2011 WL 1627165 at *2 (M.D. FL 2011); Pepperwood of Naples Condominium Assn. v. Nationwide Mutual Fire Ins. Co., 2011 WL 4382104 at *4-5 (M.D. FL 2011); Consumer Elecs. Assn. v. Compras And Buys Magazine, Inc. , 2008 WL 4327253 at *3 (S.D. FL 2008) ("subject to" and "without waiving objections" "preserve... nothing and serve... only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.")
B. ASSERTION OF PRIVILEGES
The Court observes that many of Plaintiff's responses to Defendants' discovery requests assert that the requests invade the attorney-client privilege and/or, work product doctrine. To the extent that the responses invoke a privilege or work product, Plaintiff is required to provide Defendants with a privilege log that lists each document withheld from production. Fed.R.Civ.P. 26(b)(5)(A)(I)-(ii). A proper assertion of privilege or work product must contain the following for each document, communication, or information withheld:
(1) Date of the creation of the document;
(3) Primary addressee(s) [and the relationship of that person(s) to the client and/or author of the document];
(4) Secondary addressee(s), persons who received copies of the document and the recipient [and the relationship of that person(s) to the client and/or author of the document];
(5) Type of document;
(6) Client (party asserting the privilege)
(7) Attorneys (with an indication of who the attorney represents);
(8) Subject matter of the document or privileged communication;
(9) Purpose of the document or privileged communication (basis for the legal claim of privilege, work product or objection to production);
(10) Whether the document, communication, or objection is attorney-client privilege, work product, or some other basis;
(11) Identify each document by number.
Miller v. Pancucci , 141 F.R.D. 292, 302 (C.D. Cal. 1992); Martin v. Evans, 2012 WL 1894219 at *5 (N.D. Cal. 2012); Del Campo v. American Corrective Counseling Services, 2007 WL 4287335 at *4 (N.D. Cal. 2007).
A. REQUESTS FOR PRODUCTION OF DOCUMENTS
DEFENDANTS' RFP NO. 8:
All DOCUMENTS RELATED TO any complaints from any of YOUR other customers RELATED TO the quality of YOUR automotive paint products.
PLAINTIFF'S RESPONSE TO RFP NO. 8:
Plaintiff objects to this Request to the extent it seeks information protected by the attorney-client and attorney-work product doctrines. Plaintiff also objects to this request on the basis that it is overly broad, unduly burdensome, and would result in undue expense to it because it seeks information that is not limited in time or geographic scope. Plaintiff further objects to this Request on the grounds that the words "complaint" and "quality" are vague, and Plaintiff will not speculate at its peril. ...