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Themis Bar Review, LLC v. Kaplan, Inc.

United States District Court, S.D. California

May 26, 2015

KAPLAN, INC., Defendant.


BARBARA L. MAJOR, Magistrate Judge.

Currently before the Court is Defendant's May 4, 2015 motion to compel production of documents [ECF No. 58-1 ("MTC")], Plaintiff's May 11, 2015 opposition to the motion [ECF No.62 ("Oppo.")], and Defendant's May 15, 2015 reply [ECF No. 63 ("Reply")]. For the reasons set forth below, Defendant's motion to compel is GRANTED IN PART.


The above-entitled matter was initiated on January 30, 2014 when Plaintiff filed a complaint for declaratory relief. ECF No. 1. On April 30, 2014, Defendant answered Plaintiff's complaint and the Court held a telephonic Case Management Conference ("CMC") on June 23, 2014. ECF Nos. 16 and 24. That same day, the Court issued a CMC Order Regulating Discovery and Other Pretrial Proceedings. ECF No. 25.

On August 20, 2014, the Court convened a Mandatory Settlement Conference ("MSC"). ECF No. 30. The case settled and the Court issued an order confirming settlement and setting an October 14, 2014 deadline for the parties to file a joint motion for dismissal. ECF No. 31. On September 22, 2014, the Court held a telephonic CMC and discovered that the parties were still in the process of negotiating the details of the settlement agreement. ECF Nos. 32 and 33. On October 17, 2014, counsel for both parties, Mr. Kenneth Fitzgerald and Mr. Neal Klausner, contacted this Court's chambers via telephone to inform the Court that the case had settled. ECF No. 34. The Court issued an order resetting the deadline for the parties to file their joint motion for dismissal to November 6, 2014. Id. at 2. The parties failed to file a join motion for dismissal and instead, appeared for a Settlement Disposition Conference ("SDC") on November 13, 2014. ECF No. 35. During the SDC, the parties indicated that the settlement had fallen apart and that they needed to pursue litigation. Accordingly, the Court issued an amended scheduling order. ECF No. 36. On December 29, 2014, the Court entered the parties' protective order. ECF No. 40.

On April 22, 2015, defense counsel, Mr. David S. Greenberg, contacted the Court regarding a discovery dispute between the parties. ECF No. 52. In regard to the dispute, the Court issued a briefing schedule and, in accordance with the Court's briefing schedule, the parties timely filed their respective motions and responses. MTC, Oppo., and Reply.


On August 8, 2014, Defendant served its first Request for Production of Documents ("RFP") on Plaintiff seeking documents related to Plaintiff's pass rate advertising and data substantiating the pass rates identified in Plaintiff's advertising. MTC at 6-7, ECF No. 58-2, Declaration of David Greenberg ("Greenberg Decl.") at 7, ECF No. 62-1, Declaration of Kenneth M. Fitzgerald ("Fitzgerald Decl.") at 2. Although responses were due on or around September 10, 2014, Plaintiff did not respond or object until November 26, 2014. Greenberg Decl. at 7 and Exh. 3. Plaintiff's first production occurred on December 23, 2014[1] and included 23 pages of financial information. Id.

On January 9, 2015, Plaintiff produced a CD-Rom containing spreadsheets reflecting Plaintiff's pass rate statistics by jurisdiction[2] and the records of Plaintiff's students' bar exam results[3] with the percentage of Plaintiff's course work that each student had completed. Id. at 8.; see also MTC at 7. The spreadsheets were produced as PDF copies of the electronic files that were Microsoft Excel spreadsheets and which had been stripped of their filtering, sorting, and searching capabilities. Id.

On March 2, 2015, Mr. Greenberg emailed Mr. Cochran regarding search terms and requested

the resulting collection of documents as image files with related fully searchable message text, also including the usual metadata (to, from, cc, date sent, subject, beginning bates no., ending bates no., parent/attachment ID nos., etc.), in a format that can be uploaded into a Summation database.

Greenberg Decl., Exh. 9 at 12. Mr. Cochran responded to the email, but did not address the request for metadata. Id. at 11. On March 23, 2015, Mr. Greenberg emailed Mr. Cochran and wrote

we previously requested native copies of the Microsoft Excel files Themis produced in PDF format, containing pass rate information and student enrollment pass/fail data, Themis 000157-Themis 001161. (See the attached email.) Please supplement your production with these files as well

Id. at 8. Mr. Cochran responded to the request by asking for "authority that obligates us to produce the native files." Id. at 7. On March 30, 2015, Mr. Greenberg asked Mr. Cochran to confirm that the materials being prepared from various individuals "will include the extracted text." Id. at 6. On April 17, 2015, Mr. Greenberg sent another email to Mr. Cochran seeking confirmation "that the extracted text is included" and offering to meet and confer at a specific time. Id. ...

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