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Song v. Drenberg

United States District Court, N.D. California, San Jose Division

October 11, 2019

JAMES K. SONG, et al., Plaintiffs,
v.
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.

         In this 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.[1] 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.

         For the following reasons, the Court grants in part and denies in part Mr. Drenberg's motion to compel.

         I. MR. DRENBERG'S FIRST SET OF DOCUMENT REQUESTS TO MR. SONG

         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. P. 34(b)(2)(B).

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 doctrine.
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.

         Mr. 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.

         A. Mr. Song's Responses to the Document Requests

         Mr. 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.

         Mr. 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 ...


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