United States District Court, S.D. California
TETRAVUE, INC. and PAUL BANKS, Plaintiffs,
ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Defendants. AND RELATED COUNTERCLAIMS
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO COMPEL SUPPLEMENTAL DISCOVERY
RESPONSES AND DOCUMENT PRODUCTION [ECF NO. 55]
Barbara L. Major United States Magistrate Judge.
before the Court is Defendant's February 6, 2017
“Motion to Compel Supplemental Discovery Responses and
Document Production from Plaintiffs” [ECF No. 55-1
(Mot.”)] and Plaintiffs' February 13, 2017
opposition to the motion [ECF No. 60 (“Oppo.”)].
Having considered the briefing submitted by the parties and
having reviewed all of the supporting exhibits, the Court
GRANTS IN PART AND DENIES IN PART the
AND PROCEDURAL BACKGROUND
TetraVue and TetraVue's CEO Paul Banks brought this suit
seeking damages from their insurance company, Defendant St.
Paul Fire and Marine Insurance Co. (“St. Paul”),
arising from St. Paul's alleged breach of duty to defend
Plaintiffs against a lawsuit brought by a third party.
See ECF No. 1 at 9. In 2008, Plaintiff Paul Banks
left his former employer, General Atomics (“GA”),
and founded TetraVue Inc. Id. at 11. In 2009, Mr.
Banks sued GA for breach of contract and fraud, and GA
cross-complained against TetraVue and Mr. Banks alleging that
they had improperly used GA's trade secrets and non-trade
secret confidential information to further TetraVue's
business and solicit customers in competition with GA.
Id. On January 6, 2011, Plaintiffs tendered to St.
Paul the defense of the amended cross-complaint, and on
January 25, 2011, St. Paul denied coverage and defense of
Plaintiffs. Id. Plaintiffs defended the amended
cross-complaint using their own resources, and the jury
rendered a verdict for Mr. Banks on his complaint against GA,
and for TetraVue and Mr. Banks against GA on the amended
cross-complaint. Id. at 12-13.
February 24, 2011, Plaintiffs filed an action for declaratory
relief in the San Diego Superior Court against Defendant St.
Paul, and the trial court granted summary judgment in favor
of Defendant. Id. at 13; see also ECF No.
22 at 2. On July 19, 2013, the California Court of Appeal
reversed holding that Defendant had a duty to defend
Plaintiffs in the underlying action against GA. ECF No. 1 at
13. Defendant reimbursed Plaintiffs for their past defense
costs, and counterclaimed alleging that it was entitled to
reimbursement of all or most of the defense costs it had
paid. Id. On June 13, 2014, Plaintiffs filed the
instant action in the San Diego County Superior Court
alleging breach of the duty to defend, breach of contract,
and breach of the implied covenant good faith and fair
dealing. Id. at 9-15. On August 27, 2014, St. Paul
answered, and on August 28, 2014, removed the action to this
Court. Id. at 1-6, 22-27.
November 16, 2016, Defendant filed a motion to compel
seeking, inter alia, to compel Plaintiffs to produce
all non-privileged documents responsive to its Requests for
Production (“RFP”) Nos. 1-15 and to provide
supplemental responses to Interrogatory Nos.
3-14. ECF No. 43-1 at 4-6, 8. On December 2,
2016, the Court granted in part and denied in part
Defendant's motion, and required Plaintiffs to produce
all responsive documents, except for documents from the
underlying litigation that did not relate to GA's
cross-claims against Plaintiffs, and to provide supplemental
responses to Defendant's interrogatories. ECF No. 52 at
subsequently served supplemental written responses and
produced additional documents. See ECF No. 55-2,
Declaration of Jared K. LeBeau (“LeBeau Decl.”)
at 2-3; ECF No. 60-1, Declaration of Ty Tosdal (“Tosdal
Decl.”) at 2. Specifically, on December 16, 2016,
Plaintiff produced GA's “advertising materials,
correspondence between counsel, discovery requests and
responses, deposition transcripts of Paul Banks, motions in
limine, trial briefs and admitted trial exhibits.”
Tosdal Decl. at 2; see also LeBeau Decl. On January
23 and January 26, 2017, Plaintiffs produced additional
documents from the underlying case, including nine responsive
deposition transcripts, the exhibits from Mr. Bank's
deposition, and 127 admitted trial exhibits. Id.
Defendant claimed that Plaintiffs' supplemental
production and interrogatory responses were deficient and
filed the instant motion to compel. See Mot.
scope of discovery under the Federal Rules of Civil Procedure
is defined as follows:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
courts have broad discretion to determine relevancy for
discovery purposes. See Hallett v. Morgan, 296 F.3d
732, 751 (9th Cir. 2002). District courts also have broad
discretion to limit discovery to prevent its abuse.
See Fed.R.Civ.P. 26(b)(2) (instructing that courts
must limit discovery where the party seeking the discovery
“has had ample opportunity to obtain the information by
discovery in the action” or where the proposed
discovery is “unreasonably cumulative or duplicative,
” “obtain[able] from some other source that is
more convenient, less burdensome, or less expensive, ”
or where it “is outside the scope permitted by Rule
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
with specificity the grounds for objecting 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).
interrogatory may relate to any matter that may be inquired
under Rule 26(b). Fed.R.Civ.P. 33(a)(2). “The grounds
for objecting to an interrogatory must be stated with
specificity, ” and any interrogatory not objected to
must be answered fully in writing under oath. Fed.R.Civ.P.
to Federal Rule of Civil Procedure 37, “a party may
move for an order compelling disclosure or discovery.”
Fed.R.Civ.P. 37(a)(1). The party seeking to compel discovery
has the burden of establishing that its request satisfies the
relevance requirement of Rule 26. Soto, 162 F.R.D.
at 610. Thereafter, the party opposing discovery has the
burden of showing that the discovery should be prohibited,
and the burden of “clarifying, explaining, and
supporting its objections.” DIRECTV, Inc. v.
Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th
moves the Court to compel Plaintiffs to produce the requested
documents in a usable format and supplement their discovery
responses. Mot. at 11-20. Specifically, Defendant asks the
Court to compel Plaintiffs to
1. [w]ithdraw their meritless objections based on their
claimed inability to obtain the defense file from their prior
counsel, as well as withdraw their qualified responses that
they will supplement all responses once that file has been
2. [p]rovide further and complete supplemental responses to
[Defendant's] Requests for Production Nos. 1-15;
3. [p]rovide further and complete supplemental responses to
[Defendant's] Interrogatories Nos. 3-14, including
identifying the specific documents they were asked to
4. [r]eview their December 2016 supplemental production,
remove any nonresponsive documents, and organize any
responsive ones based on which requests for production they
are responsive to.
Id. at 20-21.
asserts that the Court has previously ordered Plaintiffs to
respond to the discovery at issue, that the documents in the
possession of Mr. Greenstein, one of Plaintiffs' counsel
in the underlying litigation, are in Plaintiffs'
“control” for discovery purposes, that
Plaintiffs' production does not comply with Fed.R.Civ.P.
34, and that Plaintiffs need to supplement their
interrogatory responses. Id. at 11-20. In support,
Defendant contends that Mr. Greenstein represented Plaintiffs
in the underlying action and still represents them, and that
any documents Mr. Greenstein obtained in connection with
Plaintiffs' representation are in Plaintiffs'
“control” and should be produced, if the
documents are not privileged and are responsive to
Defendant's RFPs. See id. at 11-13. Defendant
further contends that Plaintiffs' production does not
comply with the requirements of Fed.R.Civ.P. 34. Id.
at 13-19. Defendant claims that the production was a
“data dump, ” that Plaintiffs did not provide any
meaningful index to locate responsive documents and did not
establish that they produced documents in the format
maintained in the ordinary course of business, that
Plaintiffs' production contains a significant number of
non-responsive documents, and Plaintiffs are in a ...