United States District Court, N.D. California, San Jose Division
JAMES K. SONG, et al., Plaintiffs,
AARON DRENBERG, Defendant.
ORDER RE DISCOVERY DISPUTE RE PLAINTIFF SONG'S
RESPONSES TO DEFENDANT'S DOCUMENT REQUESTS RE: DKT. NOS.
65, 66, 68, 69
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.
action, plaintiff James Song and four others assert claims
against defendant Aaron Drenberg for defamation, violation of
the Computer Fraud and Abuse Act, and fraud with respect to a
Digital Millennium Copyright Act takedown
notice. Dkt. No. 46. The parties ask the Court to
resolve several discovery disputes relating to document
production. First, Mr. Drenberg contends Mr. Song has failed
to comply with his obligations to respond in writing to Mr.
Drenberg's first and second sets of requests for
production of documents and with this Court's prior
orders regarding responses to the first set of requests for
production of documents. Dkt. Nos. 65, 66. Second, Mr.
Drenberg contends that Mr. Song has not complied with his
document production obligations with respect to both sets of
requests. Dkt. Nos. 68, 69.
following reasons, the Court grants in part and denies in
part Mr. Drenberg's motion to compel.
MR. DRENBERG'S FIRST SET OF DOCUMENT REQUESTS TO MR.
Drenberg served his first set of requests for production of
documents on Mr. Song on February 21, 2019. Dkt. No. 30 at 1.
On May 2, 2019, in response to a prior discovery dispute
about these requests, the Court found that Mr. Song had
failed to timely respond to the requests and had waived all
objections, save those based on the attorney-client privilege
or the attorney work product protection. The Court ordered,
in part, as follows:
[Mr. Song] must serve written responses that comply with Rule
34(b)(2) no later than May 10, 2019. Mr. Song must at least
begin producing responsive documents no later than May 10,
2019, and he must specify a time by which his production will
be complete, if not by that date. See Fed. R. Civ.
Dkt. No. 35 at 4. Mr. Song did not comply with this order.
Specifically, his discovery responses did not comply with the
requirements of Rule 34 and this Court's local rules, and
he failed to begin production of documents on May 10, 2019 as
ordered. See Dkt. No. 48 at 3-5. On June 19, 2019,
the Court ordered, in part, as follows:
1. Mr. Song has waived and may not rely on any objections to
the production of documents responsive to Mr. Drenberg's
document requests, with the exception of objections based on
the attorney-client privilege and the attorney work product
2. No later than July 3, 2019, Mr. Song must serve amended
responses to Mr. Drenberg's document requests in a form
that complies with Rule 34(b) and Civil Local Rule 34-1. Such
responses must affirmatively state whether responsive
documents exist and must specifically state the form in which
any such responsive documents will be produced or made
available for inspection.
. . .
4. Mr. Song must produce all responsive documents, except
those as to which a claim of privilege has been asserted as
described in paragraph 3, no later than July 8, 2019. If a
claim of privilege is made as to a portion of a document but
not the entirety of a document, the document shall be
produced with the privileged portion redacted.
Dkt. No. 48 at 5.
Song served amended responses to Mr. Drenberg's first set
of document requests on July 3, 2019. Dkt. No. 65 at 2, Ex.
A. Mr. Drenberg complains that Mr. Song's responses do
not comply with the Court's prior orders in several
respects and that Mr. Song has not adequately complied with
his obligations to produce responsive documents. Mr. Song
responds that his written responses comply with the
requirements of Rule 34, the Court's local rules, and
this Court's orders, and that he has produced all
responsive documents as they are kept in the ordinary course
of business. The Court will address separately each issue
raised in the parties' joint submissions.
Mr. Song's Responses to the Document Requests
Drenberg says that Mr. Song relies on one of two boilerplate
responses for all requests: one boilerplate response recites
that Mr. Song has “responsive non-privileged
documents” that will be produced, and the other says he
has “no responsive non-privileged documents.”
With few exceptions, Mr. Song does not assert any privilege
claims in response to Mr. Drenberg's document requests.
Mr. Drenberg argues that it is impossible to tell whether Mr.
Song is withholding any responsive documents based on
privilege, or whether for some requests he has no documents
(privileged or non-privileged) that are responsive to the
requests. Dkt. No. 65 at 2-4. In addition, Mr. Drenberg says
that Mr. Song's responses suggest that he is relying
impermissibly on objections that each request is vague,
ambiguous, or unintelligible because he qualifies his
response to each request with the phrase “based on
plaintiff's good-faith understanding of this
request” without explaining what that understanding is.
Id. at 4.
Song responds that he need only provide a separate response
to each request for production, state affirmatively whether
responsive documents exist, and state the form in which
responsive documents will be produced. Id. at 5. He
argues that he has no obligation to identify any claims of
privilege in ...