United States District Court, S.D. California
ORDER DENYING AS MOOT PLAINTIFFS' MOTION TO COMPEL DEPOSITION AND PRODUCTION OF DOCUMENTS AND RESERVING THE RULING ON PLAINTIFFS' REQUEST FOR REASONABLE EXPENSES [ECF No. 80].
RUBEN B. BROOKS, Magistrate Judge.
This is an action for breach of contract, unjust enrichment, and equitable subrogation arising out of a short sale of residential property located in Rancho Santa Fe, California. (Compl. 1-4, ECF No. 1.) On October 29, 2014, Plaintiffs Reza Jafari and First American Title Insurance Company ("Plaintiffs") filed a Motion to Compel Deposition and Production of Documents and for Reasonable Expenses [ECF No. 80]. Plaintiffs seek an order compelling the completion of the deposition of Defendant Federal Deposit Insurance Corporation as Receiver for La Jolla Bank, FSB (the "FDIC-R") and the production of 1788 documents. (Pls.' Mot. Compel Attach. #1 Mem. P. & A. 16,  ECF No. 80.) Plaintiffs also request that the Court order FDIC-R to pay $4, 345 for Plaintiffs' expenses in bringing this Motion to Compel. (Id. at 17.)
On November 17, 2014, Defendant FDIC-R opposed Plaintiffs' motion as "unnecessary, " claiming that it has produced the discovery items at issue on November 12, 2014, and will have produced its witness for a deposition on November 21, 2014, before the December 1, 2014 hearing date on Plaintiffs' Motion. (FDIC Opp'n Pls.' Mot. Compel 4, 12, ECF No. 81.) Defendant argues that because there is nothing more for the Court to compel the FDIC-R to produce, the Plaintiffs' motion is moot and should be denied. (Id. at 12.) FDIC-R also points out that Plaintiffs' motion is untimely because it was not brought within thirty days of the date when the parties' dispute arose. (Id. at 9.) Finally, Defendant argues that it should not be ordered to pay expenses Plaintiffs incurred in bringing their motion. (Id. at 13-15.)
Plaintiffs filed a Reply in Support of Motion to Compel [ECF No. 82] on November 24, 2014, arguing that their motion was "a necessary catalyst in obtaining this discovery in a timely fashion, " and that although FDIC-R produced documents following the filing of the motion, the production is incomplete and contains extensive redactions. (Pls.' Reply Supp. Mot. Compel 1, 4, 6, ECF No. 82.)
A hearing on Plaintiffs' Motion to Compel was set for December 1, 2014. The Court determined the matter to be suitable for resolution without oral argument, submitted the motion on the parties' papers pursuant to the Local Civil Rule 7.1(d), and vacated the motion hearing [ECF No. 88]. For the following reasons, the Court DENIES as moot Plaintiffs' Motion to Compel Deposition and Production of Documents. The Court reserves its ruling on Plaintiffs' request to award expenses in bringing the Motion.
I. THE PARTIES' DISCOVERY DISPUTE
After Plaintiffs served their initial discovery requests on FDIC-R, the parties agreed to produce documents pursuant to a protective order, which was approved by the Court on December 12, 2013 [ECF No. 44]. By July 2014, believing they received all relevant materials, Plaintiffs scheduled depositions. (Pls.' Mot. Compel Attach. #2 Dec. Heather Herd 4, ECF No. 80.) FDIC-R's deposition was noticed for August 15, 2014; however, the day before, Defendant notified Plaintiff that additional relevant documents have been discovered and would need to be gathered and produced. (Id.) Defendant asked for additional time to review and produce the newly found materials, and asked to postpone the deposition, which Plaintiffs opposed. (Id. at 5.) Eventually FDIC-R agreed to conduct the first session of the deposition on August 15, 2014, as scheduled, and produce the witness again after the documents were gathered and turned over to Plaintiffs. (Id.)
FDIC-R began to collect the relevant documents, but the process took longer than expected. (See FDIC Opp'n Mot. Compel 6, ECF No. 81.) The September 15, 2014 discovery deadline was approaching, and FDIC-R requested an extension of discovery dates [ECF No. 74]. Plaintiffs did not oppose the request [ECF No. 76], and the Court gave the parties until December 15, 2014, to complete all fact discovery [ECF No. 79].
With this deadline in mind, Plaintiffs' counsel repeatedly asked FDIC-R for the date it would produce the documents so that the continued deposition could be scheduled. (Pls.' Mot. Compel Attach. #2 Dec. Heather Herd 6, ECF No. 80.) In a phone conversation on September 17, 2014, Defendant's counsel represented that the documents were being reviewed for privilege, but could not offer a date certain for production or for scheduling a deposition. (Id.) The lawyers continued to communicate by email from September 22 through September 30, 2014. Plaintiffs were not satisfied with Defendant's continued assurances, however, and on September 26, 2014, they served a deposition notice and subpoena to produce documents directly on FDIC-R. (Id. Attach. #6 Ex. D.) Defendant objected to the subpoena to produce documents on various grounds, including attorney-client privilege and attorney work product doctrine. (Id. Attach. #8 Ex. F, at 67-78.)
After service of the subpoena, Defendant's counsel continued to assure Plaintiffs that the documents would be produced. (Pls.' Mot. Compel Attach. #2 Dec. Heather Herd 7-8, ECF No. 80.) Because FDIC-R could not "commit" to a date certain for production, Plaintiffs filed this Motion to Compel on October 29, 2014. (Id. at 8.)
A. Legal Standard
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... 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). Rule 37 of the Federal Rules of Civil Procedure enables the propounding party to bring a motion to compel responses to discovery. Fed.R.Civ.P. 37(a)(3)(B). The party resisting discovery bears the burden of opposing disclosure. Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D. Cal. 1992).
When ruling on a motion to compel, a court "generally considers only those objections that have been timely asserted in the initial response to the discovery request and that are subsequently reasserted and relied upon in response to the motion to compel.'" Calderon v. Experian Info. Solutions, Inc., 290 F.R.D. 508, 516 n.4 (D. Idaho 2013) (citation omitted). When a party fails to provide any response or objection to interrogatories or document requests, courts deem all objections waived and grant a motion to compel. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (finding that a party who failed to timely object to interrogatories and document production requests waived any objections); 7 James Wm. Moore et al., Moore's Federal Practice, § 33.174, at 33-106, § ...