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Saniefar v. Moore

United States District Court, E.D. California

July 16, 2019

FATEMEH SANIEFAR, Plaintiff,
v.
TANYA E. MOORE, et al, Defendants.

         ORDER VACATING HEARING SET FOR JULY 17, 2019 (DOC. NO. 187)

          ORDER REGARDING DEFENDANTS' MOTION TO COMPEL PLAINTIFF TO PROVIDE FURTHER RESPONSES TO REQUEST FOR PRODUCTION, SET ONE AND FURTHER DISCLOSURES (DOC. NO. 152)

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.

         Currently before the Court is the motion of Defendants Moore Law Firm, P.C., Tanya E. Moore, Ronald D. Moore, Zachary M. Best, Marejka Sacks, Mission Law Firm A.P.C., Rick D. Moore, West Coast Casp and ADA Services and Ronny Loreto[1] ("Defendants") to compel Plaintiff Fatemeh Saniefar ("Plaintiff) to provide further responses to Request for Production, Set One and to further amend her initial disclosures. (Doc. 152.) On July 3, 2019, the parties filed a Joint Statement Re Discovery Disagreement. (Doc. 185.) Plaintiff also filed a separate declaration of counsel in support of the joint statement. (Doc. 186.)

         The Court deems the matter suitable for determination without hearing and oral argument and the matter is submitted upon the record and briefs. Local Rule 230(g). Accordingly, the hearing currently set for July 17, 2019, is VACATED.

         Having considered the record on file and the briefs on file, Defendants' motion to compel is DENIED.

         Background

         On May 29, 2019, Defendants filed the instant motion seeking an order to compel Plaintiff to provide further responses to Request for Production, Set One, and to further amend her disclosures. (Doc. 152.) Defendants noticed the motion hearing for June 21, 2019. (Id.) Due to the press of business, the Court continued the hearing to July 10, 2019. (Doc. 164.)

         On July 3, 2019, the parties filed a Joint Statement re Discovery Disagreement, totaling more than 260 pages inclusive of exhibits. (Doc. 185.) The discovery disagreement reportedly concerns two primary issues: (1) Plaintiff's Rule 26 disclosures identifying approximately 680 witnesses likely to have discoverable information; and (2) Plaintiff's responses to Defendants' document requests. (Id. at 2.)

         Given the extensive joint statement, and due to the press of business, the Court continued the hearing to July 17, 2019. The Court further directed the parties to continue their meet and confer efforts to resolve the issues raised in the motion to compel. (Doc. 187.)

         The deadline to complete non-expert discovery is September 6, 2019. (Doc. 146.)

         Discussion

         I. Request for Further Supplemental Witness Disclosures

         As the first substantive issue, Defendants request that the Court require Plaintiff to reduce the number of witnesses identified in her First Supplemental Initial Disclosures.

         On September 8, 2017, Plaintiff served her initial disclosures and identified 26 witnesses, most of whom were either defendants, worked for the law firm defendants, were somehow related to defendants or were litigants in other lawsuits against the Moore Law Firm. (Doc. 185 at 10, Ex. A.) Subsequently, on October 16, 2018, Plaintiff served her First Supplemental Initial Disclosures, which identified approximately 654 witnesses. (Id.; Ex. B.) In relevant part, Plaintiff's First Supplemental Initial Disclosures stated:

Based on information currently available to Plaintiff, the individuals below are likely to have discoverable information that Plaintiff may use to support the claims in this action. By indicating the general subject matter in the possession of the listed individuals below, Plaintiff does not limit the right to call any individual or entity listed to testify concerning other issues or subjects. In making these disclosures, Plaintiff does not waive the right to object, pursuant to applicable federal and local rules, to discovery of information from any of the individuals listed below, including, without limitation, by deposition, based on the attorney-client privilege, the common interest privilege, work product protection, or any other applicable rule, law or privilege.
The individuals listed below may be used by Plaintiff to prove Defendants' fraud in the filing and prosecution of manufactured ADA claims against California businesses, business and property owners, and business and property managers.
[654 witnesses thereafter identified by name only]

(Doc. 185-2, Ex. B.)

         Defendants' Position

         Defendants now contend that Plaintiff's disclosure of over 654 witnesses is unreasonable and burdensome, fails to properly provide a single address or telephone for these witnesses, and provides only “a generic statement as to what each of the witnesses will be testifying about.” (Doc. 185 at 17.)

         To support their contention that Plaintiff's disclosure is unreasonable, Defendants point out that the Federal Rules of Civil Procedure contemplate no more than ten depositions. Fed.R.Civ.P. 30(a)(2)(A)(i). Defendants argue that this limitation provides insight into what is presumptively reasonable.

         To support their contention that Plaintiff's supplemental disclosure is deficient because it does not provide sufficient information regarding the scope of witness testimony, Defendants cite to Forte v. Cty. of Merced, No. 1:11-cv-00318-AWI-BAM, 2014 WL 4745923, at *4 (E.D. Cal. Sept. 23, 2014) for the proposition that “while a party is not required to provide a detailed narrative of the potential witness' knowledge, the Rule 26(a)(1)(A) disclosure should provide enough information that would allow the opposing party to help focus the discovery that is needed and to determine whether a deposition of a particular person identified as a potential witness might be necessary.” (citation omitted). Defendants argue that Plaintiff's conclusory statement that the witnesses will be used to prove her fraud claim is improper and the Rule should not be used to create a “needle in a haystack” approach to discovery.

         Defendants claim that they are unable to evaluate whether any of the witnesses has information relevant to Plaintiff's claims, asserting that the crux of this action concerns whether Ronald Moore is disabled and whether he went to Zlfred's restaurant. Defendants note that Plaintiff has identified individuals “who appear to have either been defendants in ADA lawsuits brought by Ronald Moore and/or attorney who represented those defendants, ” but because Plaintiff has not properly identified the subject matter of their testimony, they cannot evaluate their relevance. Defendants also cannot understand how these individuals assist in proving that Ronald Moore is not disabled or that he did not visit the businesses that he sues.

         Finally, Defendants assert that Plaintiff has made no effort to provide a single address or telephone number for any of the 654 witnesses as required.

         Plaintiff's Position

         In summary, Plaintiff's counter that the Rule 26 initial disclosure requirement does not circumscribe the number of individuals that may be disclosed as having discoverable information. Plaintiff also asserts that given the nature and type of case at issue here, there may be several hundred individuals that may have discoverable information. Plaintiff disagrees with Defendants' attempt to narrow this action to only Ronald Moore's two cases against Zlfred's, noting that this action includes not only Ronald Moore's disability and his alleged visits to Zlfred's, but also allegations of a pattern of racketeering conduct by 12 Defendants over the course of 10 years and including approximately 2, 000 ADA lawsuits filed throughout the State of California. (Doc. 185 at 20.)

         Plaintiff further counters that Defendants cannot feign ignorance of the witnesses' relevance to the litigation. Per Plaintiff, it has been conveyed to Defendants during the meet and confer process that the supplemental witnesses “are all ADA defendants and their attorneys who have been targeted by the criminal enterprise as alleged in Plaintiff's FAC.” (Id. at 19.) Plaintiff therefore asserts that these witnesses are “all victims of Defendant Tanya Moore's illegal scheme to extort money from ADA defendants and with whom Defendant Tanya Moore has engaged in mail and wire fraud in the prosecution of fraudulent ADA cases.” (Id.)

         As to the absence of phone numbers and addresses, Plaintiff's report that this information is already in Defendants' possession since Defendant filed litigation against these witnesses and have files related to the litigation that include the contact information for those defendants and their attorneys. Plaintiff notes that Defendants refused to provide Plaintiff with the exact same information in response to Plaintiff's request for production of documents based on an assertion that they were barred from doing so based on confidentiality agreements and that the information was equally available to Plaintiff and Defendants.

         Analysis and Ruling

         Defendants' objections to Plaintiff's supplemental initial disclosures appear to be threefold: (1) Plaintiff has disclosed too many witnesses; (2) Plaintiff has failed to provide a statement as to what each witness will testify about, and Defendants cannot ascertain their relevance; and (3) Plaintiff has failed to provide addresses and telephone numbers for each of the witnesses.

         First, as to the number of witnesses disclosed, there is nothing in the initial disclosure requirements of Federal Rule of Civil Procedure 26(a) circumscribing the number of witnesses that a party may identify. In relevant part, Rule 26(a)(1) states:

[A] party must, without awaiting a discovery request, provide to the other parties: (i) the name and, if known, the address and telephone number of each individual likely to have discovery information -along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment[.]

Fed. R. Civ. P. 26(a)(1)(A)(i). Although the Federal Rules of Civil Procedure set forth a presumptive limit of 10 depositions, such a limit may be altered either by stipulation or court order. Fed.R.Civ.P. 26(b)(2)(A), 30(a)(2).

         Defendants' attempt to limit this action to Plaintiff's claims involving only Zlfred's restaurant is not persuasive. Based on the allegations in the operative First Amended Complaint, this action encompasses a pattern of racketeering activity involving the filing and prosecution of ADA lawsuits since approximately 2009. (Doc. 33, First Amended Complaint at ¶¶ 29, 134.) Thus, identification and disclosure of persons involved in the relevant lawsuits is warranted. In that instance, it is not inconceivable that the number of potential witnesses well-exceeds that of standard litigation.

         Second, as to the proposed testimony of these witnesses, Plaintiff has clearly stated that it she may rely on these witnesses “to prove Defendants' fraud in the filing and prosecution of manufactured ADA claims against California businesses, business and property owners, and business and property managers.” Further, Plaintiff has repeatedly informed Defendants that these witnesses are all ADA defendants and their attorneys who allegedly were targeted by the criminal enterprise asserted in the First Amended Complaint. Indeed, Plaintiff has represented that these individuals are all “alleged victims of Defendant Tanya Moore's illegal scheme to extort money from ADA defendants and with whom Defendant Tanya Moore has engaged in mail and wire fraud in the prosecution of fraudulent ADA cases.” (Doc. 185 at 19.)

         Defendants' claim that they cannot ascertain the relevance of these individuals or of their proposed testimony is disingenuous. Moreover, Defendants acknowledge that the individuals identified in the Plaintiff's supplemental disclosures “appear to have either been defendants in ADA lawsuits brought by Ronald Moore and/or attorney who represented those defendants.” Given Defendants involvement in those lawsuits, they are clearly cognizant of the potential relevance and testimony of the identified individuals, and likely are more familiar with the facts and circumstances of those actions than Plaintiff.

         Third, as to Defendants' assertion that they do not have addresses and/or phone numbers for the witnesses identified by Plaintiff in her supplemental disclosures also is disingenuous. At a minimum, contact information for counsel and parties in lawsuits brought by Defendant Tanya Moore or any of the defendants is within Defendants' possession and/or case files. Fed.R.Civ.P. 26(b)(2)(C)(i) (court must limit discovery that can be obtained from some other source that is more convenient, less burdensome, or less expensive).

         For these reasons, Defendants' motion to compel relative to Plaintiff's supplemental initial disclosures is DENIED.

         II. Request for Production of Documents A. Legal Standard

         Pursuant to Federal Rule of Civil Procedure 26(b), the scope of discovery is 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 ...

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