United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTIONS TO COMPEL [ECF NOS. 111-112]
Barbara L. Major, United States Magistrate Judge
before the Court are Defendants' April 17, 2017 motions
to compel Intervenor to provide further responses to
Defendants' Interrogatories [ECF No. 111-1 (“ROG
MTC”)], and Requests for Admission [ECF No. 112-1
(“RFA MTC”)], Intervenor's April 24, 2017
oppositions to Defendants' motions [ECF No. 122
(“RFA Oppo.”) and ECF No. 123 (“ROG
Oppo.”)], and Defendants' May 1, 2017 consolidated
reply [ECF No. 126 (“Reply”)]. For the reasons
set forth below, Defendants' motions are GRANTED
IN PART AND DENIED IN PART.
served their First Set of Requests for Admissions
(“RFAs”), and Interrogatories
(“ROGs”) on Intervenor on February 27, 2017. RFA
MTC at 2; see also ECF No. 112-2, Declaration of
Jason Cirlin in Support of Defendants' Motion to Compel
Intervenor to Provide Further Responses to Requests for
Admissions (“RFA Cirlin Decl.”) at 2, Exhs. A-B,
ROG MTC at 6, and ECF No. 111-2, Declaration of Jason Cirlin
in Support of Defendants' Motion to Compel Intervenor to
Provide Further Responses to Interrogatories (“ROG
Cirlin Decl.”) at 2, Exhs. A-B. Intervenor served his
responses on March 31, 2017 consisting of several objections.
RFA MTC at 2; see also RFA Cirlin Decl. at 2, Exh.
C, ROG MTC at 6, and ROG Cirlin Decl. at 2, Exh. C. On April
2, 2017, defense counsel wrote to Intervenor and requested
that the parties meet and confer to resolve the discovery
concerns. RFA MTC at 3; see also RFA Cirlin Decl. at
2, Exh. E, ROG MTC at 7, and ROG Cirlin Decl. at 2, Exh. E.
Intervenor failed to respond to the request to meet and
April 11, 2017, the District Court denied Intervenor's
motion for summary adjudication to allow time for the instant
discovery motions to be considered before deciding
Intervenor's motion on the merits. RFA MTC at 3; see
also ROG MTC at 7, and ECF No. 102.
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
request an order from the Court requiring Intervenor to
further respond to (1) RFAs 7-18, 21, 23, 24, 28, and 35 and
the corresponding RFAs of Defendant Toys “R” Us,
Inc. [RFA MTC at 18] and (2) interrogatories 1-15 (Kmart) and
the corresponding interrogatories of Toys “R” Us,
Inc. ROG MTC at 30. Defendants argue that the requests are
relevant since they are arguing that Intervenor may not
pursue equitable claims for compensation since the work he
performed was as an agent for Plaintiff and that the requests
directly relate to the express agreements that control the
payment of compensation and the intent of the parties. RFA
MTC at 4-5; see also ROG MTC at 8-9. Defendants
further argue that the requests relate to their position that
Intervenor and Plaintiff violated their ethical duties and to
their claim of equitable estoppel. RFA MTC at 6-7; see
also ROG MTC at 9-10. Finally, Defendants argue that the
requests are relevant because Plaintiff and Intervenor's
billing practices are directly at issue in this litigation.
RFA MTC at 7; see also ROG MTC at 10. Defendants
note that Plaintiff has the burden of proof to demonstrate
that their requests are unwarranted. RFA MTC at 7-8; see
also ROG MTC at 10-11.
contends that Defendants' motions should be denied
because Intervenor provided substantive responses to
Defendants' RFAs and ROGs and that “there is no
deficiency in the substance of Intervenor's responses,
particularly given the many defects in Defendants'
interrogatories [and RFAs] (including addressing issues
Defendants never pled which are therefore not at
issue).” ROG Oppo. at 2; see also RFA Oppo. at
3. Intervenor also contends that Defendants' motions
should be stricken because Defendants failed to meet and
confer with Intervenor prior to filing their motion with the
Court. Id. Intervenor notes that defense counsel
emailed him to set a date to meet and confer on a Sunday when
they knew he was on vacation and contacted the Court less
than twenty-four hours later for a briefing schedule.
Id. Intervenor contends that this violates the
Court's Chambers Rules and that Defendants' motion
should be treated in the same way Intervenor's previous
motion was treated, and “promptly stricke[n].”
REQUEST TO STRIKE DEFENDANTS' MOTION
opposition, Intervenor requests that Defendants' motion
be stricken “on the same basis as this Court
struck” Intervenor's prior motion, a failure to
meet and confer. ROG Oppo. at 2.
March 2, 2017, Intervenor Plaintiff, Mr. Stephen M. Lobbin,
who is representing himself, contacted the Court regarding a
discovery dispute. ECF No. 78. After being informed by
Intervenor that defense counsel was unable to meet and confer
in a timely fashion, the Court instructed Intervenor to file
his motion to compel on March 7, 2017. See ECF No.
73. Intervenor filed his motion on March 7, 2017 and the
Court issued a briefing schedule for the opposition and
reply. ECF Nos. 72-73. That same afternoon, defense counsel,
Messrs. Jason Cirlin and Robert Goldberg, contacted the Court
and stated that, as they had previously communicated to
Intervenor Plaintiff, they were ready and willing to meet and
confer on the issues raised in Intervenor Plaintiff's
motion to compel. ECF No. 78. That evening, Messrs. Jason
Cirlin and Robert Goldberg filed a “MOTION OF TARGET
CORPORATION AND KMART CORPORATION TO STRIKE INTERVENOR'S
MOTION TO COMPEL” to permit the parties to meet and
confer in an effort to resolve the discovery dispute. ECF No.
74. On March 8, 2017, the Court granted Defendants'
motion and ordered “the parties to meet and confer
regarding the discovery issues addressed in Intervenor
Plaintiff's Motion to Compel” and to file a Joint
Status Report detailing the efforts. ECF No. 78. After
reviewing the Joint Status Report, the Court permitted
Intervenor to file his motion to compel. ECF No. 82.
argues that Defendants emailed him on April 2, 2017, a
Sunday, when they knew he was on vacation to request a meet
and confer and then contacted the Court on April 3, 2017 for
a briefing schedule. ROG Oppo. at 2; see also RFA
Oppo. at 2 (citing ECF No. 90). Defendants contend that this
situation is distinguishable because unlike their response to
Intervenor which was made six minutes after
Intervenor emailed them requesting to meet and confer,
Intervenor “has never responded to defense
counsel's request to meet and confer regarding
Lobbin's deficient responses to Defendants Kmart
Corporation (“Kmart”) and Toys “R”
Us, Inc.'s (“TRU”) (collectively
“Defendants”) Requests for Admission
(“RFAs”) and Interrogatories
(“ROGs”).” Reply at 2. Additionally, while
defense counsel did email Intervenor during his vacation,
Intervenor had been exchanging emails with defense counsel
during his vacation. Id.; see also ECF No.
126-1, Supplemental Declaration of Jason N. Cirlin
(“Supp. Cirlin Decl.”) at Exh. A.
instant dispute is procedurally different than the prior
dispute as Defendants' motion was not filed until
approximately two weeks after defense counsel contacted the
Court, Intervenor's motion to strike was not filed until
three weeks after the initial Court contact, and Intervenor
apparently failed to meet and confer with Defendants during
that extended time period. Accordingly Intervenor's
request to strike Defendants' motions is
party may serve on any other party a written request to
admit, for purposes of the pending action only, the truth of
any matters within the scope of Rule 26(b)(1) relating to:
(A) facts, the application of law to fact, or opinions about
either; and (B) the genuineness of any described
documents.” Fed.R.Civ.P. 36(a)(1). “Each matter
must be separately stated.” Fed.R.Civ.P. 36(a)(2). A
responding party must admit a matter, specifically deny a
matter, or state in detail why they cannot truthfully admit
or deny it. Fed.R.Civ.P. 36(a)(4). If a matter is denied, the
“denial must fairly respond to the substance of the
matter; and when good faith requires that a party qualify an
answer or deny only a part of a matter, the answer must
specify the part admitted and qualify or deny the
rest.” Id. A responding party may object to a
request if they state the ground for the objection.
Fed.R.Civ.P. 36(a)(5). The requesting party may then seek a
decision from the court determining the sufficiency of an
answer or objection. Fed.R.Civ.P. 36(a)(6). The court must
order that an answer be served unless it finds an objection
justified. Id. “On finding that an answer does
not comply with this rule, the court may order either that
the matter is admitted or that an amended answer be
7-11, 14, 16, 18, 21, 23, 24, and 28
first group of RFAs which Defendants seek to compel further
response to include RFAs 7-11, 14, 16, 21, 23, 24, and 28.
RFA MTC at 9-10. In support, Defendants argue that
Intervenor's response is insufficient because lack of
information is not a proper excuse for failing to admit or
deny without stating that a reasonable inquiry has been made
and “that the information known or readily obtainable
by [Intervenor] is insufficient to enable [Intervenor] to
admit or deny.” Id. at 10-11. Defendants
further argue that given the facts of the case and
Intervenor's role as a non-equity partner for Plaintiff
who reviewed and approved “every invoice relating to
the legal services at issue in this litigation, ”
Intervenor's refusals to admit or deny so many RFAs is
unsupportable. Id. at 12. Intervenor
responded to RFAs 7-11, 14, 16, 21, 23, 24, 28 by stating
“Intervenor lacks knowledge or information sufficient
to admit or deny” and to RFA 18 by stating
“Intervenor objects to the vague reference to an
"oral agreement, " and as such lacks knowledge or
information sufficient to admit or deny.” RFA Cirlin
Decl. at Exh. C.
contends that his response to RFAs 7, 10, 11, 14, 16, 18, 21,
23, 24, and 28 is reasonable because Intervenor is not
Plaintiff and the requests are more appropriate for
Plaintiff. RFA Oppo. at 3-9. Intervenor further contends that
he is not able to request the files from Plaintiff that would
allow him to admit or deny the requests with certainty.
Id. at 3. With respect to interrogatory 7,
Intervenor states that “he is not aware of any formal
‘invoice' ever sent from Eclipse to Kmart.”
Id. at 3. With respect to interrogatory 10,
Intervenor states that he “denies that Manley paid
Eclipse's invoices, at least not in full, which is the
reason this lawsuit was filed.” Id. at 5. With
respect to interrogatory 11, Intervenor states that he
“denies the request because Eclipse also invoiced
Manley for legal services in the Adams litigation
and, indirectly, for legal services in the
Worldslide litigation. Id. With respect to
interrogatory 14, Intervenor states that “the intention
of the agreement was to have
generally the ‘same
terms.'” Id. at 6 (emphasis in original).
With respect to interrogatory 16, Intervenor states that he
“is not aware of any written agreement ever reached as
between Eclipse and Kmart. Id. at 6-7. With respect
to interrogatory 18, Intervenor states that he
“believes there is a written agreement, not only an
oral agreement.” Id. at 7. With respect to
interrogatory 21, Intervenor states that he “believes
there was such a write off, which only occurred under threat
by Kmart (through Manley) to cease payment on all past-due
invoices, amounting to hundreds of thousands of
dollars.” Id. at 8. Intervenor does not state
that he admits, denies, or believes anything additional with
respect to interrogatory 23. Id. With respect to
interrogatory 24, Intervenor states that he “is not
aware of any formal ‘invoice' ever sent from
Eclipse to Kmart. Id. at 9. Intervenor does not
state that he admits, denies, or believes anything additional
with respect to interrogatory 28. Id. Intervenor
contends that his response to RFA 8 and 9 is reasonable
because the request is not relevant or proportional as
Defendants have not pled any claims relating to third-party
beneficiaries and that requiring Intervenor to research the
law of third-party beneficiaries so that he could respond to
the request would not be proportional to the needs of the
case. Id. at 4.
reply that Intervenor should be compelled to further respond
to the RFAs without objection or evasion. Reply at 6.
Defendants argue that Intervenor's objections should be
waived as the opposition is the first time they are being
raised and, therefore, are untimely. Id. Defendants
also argue that Intervenor is required to make an inquiry of
Plaintiff for any required documentation. Id.
Regarding RFAs 14, 16, and 18, Defendants state that
Intervenor provided additional response to the RFAs, but
should serve formal supplemental responses to the RFAs.
Id. at 8.
motion to compel further response to 7-11, 14, 16, 21, 23,
24, and 28 is GRANTED. Intervenor's
response that he “lacks knowledge or information
sufficient to admit or deny” is insufficient.
See Fed.R.Civ.P. 36(a)(4) (stating that “[t]he
answering party may assert lack of knowledge or information
as a reason for failing to admit or deny only if the
party states that it has made reasonable inquiry and that the
information it knows or can readily obtain is insufficient to
enable it to admit or deny.) (emphasis added). While
Defendants acknowledge that Intervenor has provided
supplemental responses to RFAs 14, 16, and 18, Intervenor has
not formally served the supplemental responses on Defendants.
Also, the additional information and explanations offered by
Intervenor in his opposition for the remaining RFAs, do not
constitute properly served formal discovery responses. The
Court overrules Intervenor's objections to RFAs 8 and 9
and finds that they are relevant and proportional under
12, 13, and 15
argue that Intervenor should be compelled to provide further
responses to RFAs 12, 13, and 15 as his responses do not
“fairly meet the substance of” RFAs 12, 13, and
15 and do not directly address if Intervenor obtained the
informed written consent as provided under California
Professional Rules of Conduct. RFA MTC at 15-16.
Intervenor's response to RFAs 12 and 13 was “Denied
for at least the reasons that no such potential (or actual)
conflict existed, and Kmart waived any written consent
requirement” and to RFA 15 was “Denied, as Kmart
indeed did consent to the arrangement, both orally and in
writing.” RFA Cirlin Decl. at Exh. C.
fails to address RFAs 12, 13, and 15 in his opposition to
Defendants' motion and the Court therefore
GRANTS Defendants' motion to compel
further response to RFAs 12, 13, and 15. See Bryant v.
Armstrong, 285 F.R.D. 596, 610 (S.D. Cal. 2012) (finding
that “Janda did not object to the document request
initially or in opposition to the Motion to Compel and has
therefore waived any objection”) (citing S.D. Cal. Civ.
R. 7.1(f)(3)(c)). In addition, Intervenor's response to
RFAs 12 and 13 is not responsive to the content of the RFAs
and the response to RFA 15 is unclear as to whether the
written consent complied with the cited Rule.
17 and 35
argue that Intervenor should be compelled to provide further
responses to RFA 17 because a RFA “may request an
application of law to fact” and to RFA 35 because his
response is evasive since the RFA does not ask Intervenor
about his legal status, but to admit that he was an attorney
for Eclipse. RFA MTC at 16. Intervenor fails to
address RFAs 17 and 35 in his opposition to Defendants'
motion. Despite Intervenor's failure to address these
RFAs, the Court DENIES Defendants'
motion as to RFA 35 since Intervenor provided a substantive
response. The Court overrules Intervenor's objection to
RFA 17 and GRANTS Defendants' motion to
compel further response to RFA 17.
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] [a]ny ground not stated in a timely
objection is waived unless the court, for good cause, excuses
the failure.” Fed.R.Civ.P. 33(b)(4). Any interrogatory
not objected to must be answered fully in writing under oath.
Fed.R.Civ.P. 33(b)(3). In answering interrogatories
propounded to a corporation, partnership, association or
governmental agency, the officer or agent responding on its
behalf “must furnish the information available to the
party.” Fed.R.Civ.P. 33(b)(1)(B); see also
Cal. Prac. Guide Fed. Civ. Pro. Before Trial Ch. 11(IV)-B.
argue that Intervenor's responses are “evasive,
vague, incomplete and erroneous.” ROG MTC at 13. The
interrogatories are as follows:
. “INTERROGATORY NO. 1: For each of
Kmart Corporation's Requests for Admissions, Request Nos.
1, 2, and 3 served on YOU concurrently with these
Interrogatories for which YOUR response is anything but an
unequivocal admission, state all facts that ...