requiring defendants “to 7 carry a heavy burden of showing why discovery was denied”
How later courts described this case
- requiring defendants “to 7 carry a heavy burden of showing why discovery was denied”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 WILLIAMS & COCHRANE, LLP, et al., Case No.: 17cv1436-GPC (MSB)
12 Plaintiffs,
ORDER GRANTING THE QUECHAN
13 v. TRIBE’S EX PARTE MOTION TO COMPEL
FURTHER RESPONSE TO REQUEST FOR
14 QUECHAN TRIBE OF THE FORT YUMA
ADMISSION NO. 16 [ECF NO. 302]
INDIAN RESERVATION, et al.,
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Defendants.
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18 AND ALL RELATED COUNTER CLAIMS
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21 On May 26, 2020, Defendant and Cross-Plaintiff Quechan Tribe of the Fort Yuma
22 Indian Reservation (“the Tribe”) filed an ex parte motion seeking to compel Plaintiff and
23 Cross-Defendant Williams & Cochrane, LLP (“W&C” or “Plaintiff”) to provide a further
24 response to Request for Admission (“RFA”). (ECF No. 302.) Plaintiff filed its Opposition
25 on May 27, 2020. (ECF No. 308.)
26 I. BACKGROUND
27 After many months spent litigating the pleadings, Plaintiff maintains causes of
2 terminated W&C. (ECF No. 220.) The Tribe maintains causes of action against W&C for
3 (1) breach of fiduciary duty and (2) breach of the implied covenant of good faith and fair
4 dealing, both relating to W&C’s representation; (3) negligence and (4) breach of
5 contract, both for failure to produce the client file on request; and (5) unfair
6 competition. (ECF No. 231.) Fact discovery is set to close in this case on June 12, 2020.
7 (ECF No. 294 at 2.)
8 On April 23, 2020, Plaintiff served objections and responses to the Tribe’s
9 Interrogatories (Set 2), Requests for Production (Set 4), and Requests for Admission (Set
10 2). (ECF No. 302-1 at 2; ECF No. 302-4 at 41.) On April 29, 2020, counsel for the Tribe
11 sent an email to Plaintiff, requesting availability for a meet and confer regarding the
12 Tribe’s Interrogatories (Set 2) and Requests for Production (Set 4). (Id. at 2; ECF No. 308
13 at 2.) After slow communication and Plaintiff twice postponing scheduled meet and
14 confer appointments, the parties finally met and conferred on May 15, 2020. (Id. at 2-
15 4.) According to counsel for the Tribe, Plaintiff’s counsel did not agree to amend its
16 responses to any of the discovery at-issue. (Id. at 4.) According to Plaintiff’s counsel,
17 consistent with the Tribe’s email initiating the meet and confer, counsel for the parties
18 never discussed RFA Number 16 and the Tribe agreed to give Plaintiff a reasonable
19 amount of time to amend its responses to the interrogatories and requests for
20 production discussed. (ECF No. 308-1 at 2.) According to the Tribe’s counsel, the parties
21 met and conferred “about W&C’s responses to the Tribe’s interrogatories, as well as
22 certain responses to the Tribe’s requests for production and admission.” (ECF No. 302-1
23 at 4.)
24 To permit the filing of the parties’ Joint Motion for Determination of Discovery
25 dispute regarding the Tribe’s request to compel further responses to the written
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2 Chambers Rules, (see Magistrate Judge Michael S. Berg’s Civil Chambers Rule IV.D.),
3 counsel for the Tribe served a complete draft of its portion of the motion on Plaintiff on
4 May 18, 2020. (ECF No. 302-1 at 4.) According to Plaintiff, during a May 20, 2020 meet
5 and confer with counsel for the Tribe regarding another matter, Plaintiff’s counsel
6 reiterated that Plaintiff would be amending the discovery responses sought in the prior
7 call. (ECF No. 308-1 at 2.) On May 26, 2020, Plaintiff’s counsel informed the Tribe that
8 Plaintiff would send its portion of the joint motion at approximately 9:00 p.m. (Id. at 4.)
9 At 9:07 p.m., counsel for the Tribe received an unexpected email from Plaintiff’s
10 counsel that attached Plaintiff’s amended responses to the Tribe’s Interrogatories (Set
11 2) and Requests for Production (Set 4). (Id. at 4-5.) At 9:14 p.m., counsel for the Tribe
12 received a second email with Plaintiff’s draft of the joint discovery motion, which in the
13 Tribe’s opinion, altered its structure and organization and included argument that many
14 of the issues were mooted by Plaintiff’s amended responses. (Id. at 5.) Counsel for the
15 Tribe informed Plaintiff’s counsel that in light of Plaintiff’s amended responses and
16 alterations to the joint motion, the Tribe would be filing an ex parte motion to address
17 RFA Number 16, the only disputed discovery for which Plaintiff did not serve an
18 amended response. (Id.)
19 II. ADEQUACY OF MEET AND CONFER
20 Plaintiff claims that the Tribe never met and conferred regarding Request for
21 Admission Number 16, and consequently argues that this ex parte motion should be
22 denied, and the Tribe should be ordered to pay W&C’s expenses in preparing the joint
23 motion which was mooted by Plaintiff’s amended responses. (ECF No. 308 at 2-4.)
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1 The Court notes that Plaintiff argued in a footnote that the instant motion was untimely. (See ECF
27 No. 308 at 2 n.1.) However, Plaintiff appears to have incorrectly calculated the date from April 22,
2 confer is important to permit parties to discuss and resolve their disputes, without
3 constant intervention from the Court. (ECF No. 308 at 7.) There is no doubt here that
4 the parties meet and confer efforts have been largely ineffectual throughout the
5 discovery period. Nevertheless, the counsel declarations presently before the Court
6 conflict regarding whether the parties met and conferred about the RFA now at-issue.
7 While the Court regrets that the parties are unable to work with one another and
8 instructs them to reconsider their approach to meet and confer in the future, on this
9 conflicting record, the Court will not find this disagreement a basis to forego reaching
10 the merits of this motion.
11 Similarly, while the Court is deeply concerned by the dearth of communication
12 and waste of attorney hours discussed in the parties’ pleadings, it is not prepared to
13 assign responsibility for the many missteps to the Tribe, nor to reverse statute as
14 advocated by Plaintiff to order the payment of expenses.
15 III. LEGAL STANDARD
16 The Federal Rules of Civil Procedure authorize parties to obtain discovery
17 regarding any nonprivileged matter that is relevant to any claim or defense and
18 proportional to the needs of the case, “considering the importance of the issues at stake
19 in the action, the amount in controversy, the parties’ relative access to relevant
20 information, the parties’ resources, the importance of the discovery in resolving the
21 issues, and whether the burden or expense of the proposed discovery outweighs its
22 likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at
23 trial to be discoverable. Id. District courts have broad discretion to determine relevancy
24 for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
25 Similarly, district courts have broad discretion to limit discovery where the discovery
26 sought is “unreasonably cumulative or duplicative, or can be obtained from some other
27 source that is more convenient, less burdensome, or less expensive”; the requesting
2 the scope of Federal Rule of Civil Procedure 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
3 “The party who resists discovery has the burden to show discovery should not be
4 allowed, and has the burden of clarifying, explaining, and supporting its objections.”
5 Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009); see
6 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (requiring defendants “to
7 carry a heavy burden of showing why discovery was denied”); Bryant v. Ochoa, No.
8 07cv200-JM-PCL, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009) (“The party seeking
9 to compel discovery has the burden of establishing that its request satisfies the
10 relevancy requirements of Rule 26(b)(1).”)
11 Federal Rule of Civil Procedure 36 sets forth the procedure by which parties can
12 use RFAs to ascertain other parties’ position on the truth of certain “facts, application of
13 law to fact, or opinions about either[,] and the genuineness of any described
14 documents.” A responding party must either admit, specifically deny, or state in detail
15 why the party cannot admit or deny. Fed. R. Civ. P. 36(a)(4); Asea, Inc. v. Southern Pac.
16 Transp. Co., 669 F.2d 1242, 1245-46 (9th Cir. 1981). When ruling on a motion to compel
17 further response, a court that finds objections unjustified must order that the
18 responding party answer. Fed. R. Civ. P. 36(a)(6). If the court finds the answer does not
19 comply with this rule, it may “order either that the matter is admitted or that an
20 amended answer be served.” (Id.)
21 IV. DISCUSSION
22 RFA Number 16 states: “Admit that you have never received a contingency fee as
23 compensation for negotiating a gaming compact for a federally-recognized Indian
24 Tribe.” (ECF No. 302 at 5; ECF No. 302-4 at 29.) In its responses, Plaintiff objected on
25 several grounds, which the Court summarizes as follows: (i) any further discovery was
26 burdensome and disproportionate; (ii) “any applicable privilege or confidence”; (iii)
27 relevance; (iv) the definition of “contingency fee” is vague, ambiguous and inconsistent
2 not for the last-minute, bad faith breach of the W&C fee agreement.” (Id. at 7.)
3 In the instant motion, the Tribe asserts that Plaintiff’s answer is non-responsive to
4 the RFP, as whether Plaintiff “‘would’ have received a contingency fee for its
5 representation of [the Tribe] has no bearing on whether or not W&C has, in fact,
6 received such a fee in connection with any compact negotiation.” (Id. at 7.) The Tribe
7 asks that Plaintiff be compelled to provide a proper response. (Id.) While Plaintiff’s
8 opposition to this ex parte relies exclusively on the procedural arguments previously
9 discussed, Plaintiff’s counsel did include its portions of the draft joint discovery motion
10 and its Memorandum of Points and Authorities in support thereof as attachments
11 thereto. (See ECF No. 308-5; ECF No. 308-6.) Aside from arguing that the meet and
12 confer was inadequate, Plaintiff argues that because it has already produced 15,000
13 pages of documents and the Tribe served 53 individual discovery requests on the
14 deadline to serve written discovery, requiring Plaintiff to answer is burdensome and
15 disproportionate to the needs of the case. (ECF No. 308-5 at 37-38.) Plaintiff also
16 argues that the discovery sought is irrelevant and can be obtained by other sources.
17 (ECF No. 308-6 at 3.)
18 The Court notes that a large part of this case involves Plaintiff seeking to obtain
19 the contingency it believes it was entitled to, based on the work performed for the
20 Tribe. Therefore, whether Plaintiff has ever received a contingency fee for similar work
21 would be relevant to whether the fees sought here are reasonable. That the Tribe’s
22 counsel might also have relevant evidence and that an expert may also offer testimony
23 doesn’t make the requested RFA irrelevant.
24 The only discovery now before the Court is RFA Number 16, which appears to be
25 timely filed, within the statutory limit, narrowly drawn, and very simple to answer
26 clearly. Therefore, the Court does not find it overly burdensome or disproportionate to
27 the needs of this case.
1 The Court agrees that Plaintiff has not properly responded to the Tribe’s RFA, as it
2 not discernable from Plaintiff's response whether Plaintiff has ever received a
3 || contingency fee as compensation for compact negotiations. What might have occurred
4 ||in the future between Plaintiff and the Tribe should not qualify or otherwise impact
5 || whether Plaintiff admits or denies the RFP. The Court therefore GRANTS the Tribes
6 motion, and ORDERS Plaintiff to respond to the Tribe’s RFA Number 16 no later than
7 || June 1, 2020.
8 V. CONCLUSION
9 For the foregoing reasons, this ex parte motion is GRANTED and Plaintiff is
10 |] ORDERED to provide a response to RFA Number 16 no later than June 1, 2020.
11 IT 1S SO ORDERED.
12 || Dated: May 27, 2020 _ =
1 _ 2 □□ □
Honorable Michael S. Berg
United States Magistrate Judge
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