1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 MIRANDA DAIRY, et al., Case No. 18-cv-06357-RMI

9 Plaintiffs,

ORDER RE: DISCOVERY DISPUTES

10 v. Re: Dkt. Nos. 111, 112, 113, 114 11 HARRY SHELTON LIVESTOCK, LLC, et al., 12 Defendants. 13 14 Now pending before the court are four letter briefs through which the Parties complain 15 about a host of discovery disputes. At the outset, the court will note that, pursuant to Paragraph 16 13(a) of the undersigned’s General Standing Order, discovery disputes must be presented in a 17 jointly filed letter brief that should be preceded with a good-faith effort to resolve or narrow the 18 disputes without court intervention. Putting aside the fact that two of the four currently pending 19 letter briefs were unilaterally filed, a common theme amongst all four briefs is the abject failure of 20 the parties to meet and confer in any meaningful fashion before dumping a series of unrefined, 21 sometimes unripe, and sometimes moot disputes onto the court’s docket. 22 Because each side has pointed at the other’s lack of good faith in the meet and confer 23 process, the court is left with no choice but to remind the parties that “[t]he Court will not 24 entertain a request or a motion to resolve a disclosure or discovery dispute unless, pursuant to Fed. 25 R. Civ. P. 37, counsel have previously conferred for the purpose of attempting to resolve all 26 disputed issues.” Civ. L.R. 37-1(a). In this regard, it is incumbent on counsel for the parties “to 27 communicate directly and discuss in good faith the issue(s) required under the particular Rule or 1 satisfy a requirement . . . [instead] this requirement can be satisfied only through direct dialogue 2 and discussion – either in a face to face meeting or in a telephone conversation.” Civ. L.R. 1-5(n). 3 This requirement is not a meaningless formality, nor is it optional; instead, the purpose of a meet 4 and confer requirement is for the parties to engage in a meaningful dialogue about their respective 5 positions on disputed issues to see whether they can resolve (or at least refine) the disputes 6 without court intervention, saving time and money for the litigants as well as the court system. See 7 Fireman’s Fund Ins. Co. v. Hartford Fire Ins. Co., 2013 U.S. Dist. LEXIS 147020, at *9 (N.D. 8 Cal. Sep. 30, 2013) (“The purpose of the meet and confer requirement is to ensure that the 9 particular relief requested in a motion, in fact, requires judicial intervention.”) see also Wong v. 10 Astrue, 2008 U.S. Dist. LEXIS 111133, 2008 WL 4167507, at *2 (N.D. Cal. 2008) (“The purpose 11 of the [meet and confer] requirement is to encourage settlement, resolve disputes which need not 12 involve the Court, and avoid unnecessary litigation, thus saving the parties’, the Court’s, and the 13 taxpayers’ limited time, money, and resources.”); California v. Iipay Nation of Santa Ysabel, 2015 14 U.S. Dist. LEXIS 67415, 2015 WL 2449527, at *6 (S.D. Cal. May 22, 2015) (“A purpose of a 15 meet and confer requirement is to resolve issues without the need for further action.”); Eusse v. 16 Vitela, Case No.: 3:13-cv-00916-BEN-NLS, 2015 U.S. Dist. LEXIS 167660, 2015 WL 9008634, 17 at *3 (S.D. Cal. Dec. 14, 2015) (“This process, when successful, ‘obviates the need for 18 unnecessary motion practice, which, in turn, conserves both the Court’s and the parties’ 19 resources.’”) (internal citation omitted). Thus, in order to effectuate this purpose, “parties must 20 ‘treat the informal negotiation process as a substitute for, and not simply a formal prerequisite to, 21 judicial review of discovery disputes.’” U-Haul Co. of Nevada v. Gregory J. Kamer, Ltd., 2013 22 U.S. Dist. LEXIS 132795, 2013 WL 5278523, at *2 (D. Nev. Sept. 17, 2013) (internal citation 23 omitted). For the reasons discussed below, the parties’ efforts in this regard have fallen woefully 24 short of the above-described standards. 25 In the first of the four pending letter briefs (“Ltr. Br. #1”), all of the issues raised by 26 Defendants are hollow complaints that appear to be of little consequence. See Ltr. Br. #1 (dkt. 27 111) at 1-2. Regarding the first issue, Defendants complain that Plaintiffs served certain discovery 1 communicated with Defendants about this timing issue and relied on Defendants silence to mean 2 that there was no objection as to the timing of these responses. Therefore, Defendants’ request to 3 order amended responses without objections due to the lateness of the original responses is 4 DENIED. 5 The second issue seems to be presented in a disjointed fashion where Defendants contend 6 that Plaintiffs have improperly asserted privilege over certain documents, but with Plaintiffs 7 responding that this issue has been addressed and resolved by way of a separate letter to 8 Defendants. Id. at 2-3. Similarly, this dispute appears not have been preceded with a good faith 9 effort to refine or resolve the issue through reasonable efforts to meet and confer; thus, 10 Defendants’ request “that the court order Plaintiffs to remove their improper assertions of 11 privilege / work product as well as their false claims of authorship over documents which are not 12 privileged . . .” is DENIED. 13 The third issue concerns, inter alia, both parties’ complaints that they are unable to access 14 the electronic files that each has tendered in discovery (see id. at 3-4); in this regard, both parties 15 are ORDERED to cooperate with one another such as to ensure the opposing party’s access to the 16 information tendered in discovery. Yet another example of disjointed argument and a failure to 17 meaningfully meet and confer is manifest in Issue #3 where Defendants seek to compel discovery 18 pertaining to Plaintiffs’ alleged damages and lost profits, while Plaintiffs maintain that “[a]ny 19 documents used or relied upon to prove damages and lost profits have been or will be produced 20 with Plaintiffs’ expert disclosures.” Id. at 3-5. Accordingly, because Plaintiffs have committed to 21 producing all documents used or relied upon to prove their damages, Defendants’ request to 22 compel the production of such information is DENIED. 23 In Issue #4, Defendants seek the court’s assistance in forcing Plaintiffs to help Defendants 24 in identifying the specific documents tendered in discovery that might be responsive to specific 25 requests while Plaintiffs submit that they have produced documents in a searchable format and that 26 “Defendants’ decision not to use basic eDiscovery tools” is at the root of their problem with 27 searching through the discovery that has been tendered. Id. at 5-6. In this regard, Defendants seek 1 of RFPs. Id. at 5. This is the very sort of issue that the court expects to be resolved without court 2 intervention and with just a modicum of professionalism from counsel; thus, while Defendants’ 3 request for court intervention in this regard is DENIED, as was the case with Issue #3 above, the 4 Parties are ORDERED to cooperate with one another in a good-faith effort to move the litigation 5 forward by ensuring each other’s reasonable access to the materials tendered in discovery. 6 Lastly, in Issue #5, Defendants contend that Plaintiffs have failed to cooperate in 7 responding to Defendants’ interrogatories. Id. at 6-7. As to Interrogatory #2, Defendants submit 8 that while Plaintiffs objected to certain phrasing as overly broad and burdensome, and while 9 Defendants have offered to draft a more narrowly phrased interrogatory, that Plaintiffs refused that 10 offer and refused to provide any further answer – and, in this regard, Plaintiffs have provided no 11 response in their portion of the letter brief. Thus, Plaintiffs are ORDERED to cooperate with 12 Defendants in their efforts to rephrase that particular interrogatory such that Plaintiffs’ 13 reservations about answering it may be addressed. Further, Defendants contend that 14 Interrogatories 4 through 25, pertaining to damages, have yet to be responded to, while Plaintiffs 15 have committed to providing their damages calculations together with their expert report when 16 that information becomes available. Accordingly, Defendants request to compel this information 17 now is DENIED. 18 In the second of the four pending letter briefs (“Ltr. Br. #2”), Plaintiffs take the lead in 19 presenting a series of similarly hollow complaints – in essence, a further wasting of the court’s 20 time by arguing simply for argument’s sake, exactly as was the case with Ltr. Br. #1. See 21 generally Ltr. Br. #2 (dkt. 112) at 1-5. In a very similar fashion, this letter brief does little more 22 than to evidence the acrimonious relationship between counsel in this case, a relationship that has 23 degraded to what can only be described as petty bickering, and which has impaired the discovery 24 process. For example, in the first dispute outlined in Ltr. Br. #2, Plaintiffs complain about the 25 impropriety of Defendants’ often-used response to certain requests for production to the effect that 26 “[d]iscovery is continuing and responding parties will update disclosures, production, and 27 responses as necessary.” Id. at 1. Defendants then submit that “Plaintiffs give almost the exact 1 informed Plaintiffs that no documents have been withheld pursuant to this statement; that 2 responsive documents have been produced and identified; and that the statement is simply 3 indicative of Defendants’ acknowledgement of their continuing duty to supplement. It is unclear 4 exactly what relief Plaintiffs seek from the court here – it appears that Plaintiffs wish for the court 5 to direct Defendants to state exactly that which Defendants have already stated in their portion of 6 this letter brief – namely, that responsive documents have already been tendered. Accordingly, 7 Plaintiffs’ motion to compel such a statement is DENIED as moot. 8 The second dispute in this letter brief has Plaintiffs complaining about Defendants’ 9 objection to the phrase “related to” as it pertains to RFP Nos. 2, 8, 9, 11, 12, 13, 15, 16, and 17. 10 See id. at 2. Defendants submit that Plaintiffs’ complaint was not discussed during the parties meet 11 and confer efforts with the exception of where it related to RFP No. 2, and that in any event, 12 “Defendants identified and produced the documents they believe to be responsive and . . . that no 13 documents were withheld on the basis of the objection.” Id. Thus, Plaintiffs’ request to compel 14 “[a] clear, comprehensive, and unqualified response,” is DENIED as moot. 15 The third dispute in this letter brief has Plaintiffs complaining of Defendants’ objection to 16 the phrase “relied upon,” as it relates to RFP Nos. 3 and 4, and so Plaintiffs again seek to compel 17 “[a] clear, comprehensive, and unqualified response.” Id. Defendants submit that these RFPs 18 sought documents that were “relied upon” by Defendants in responding to a number of requests 19 for admissions, and that “Defendant[] ‘relied upon’ the contents of his brain . . . [but] to the extent 20 that the contents of a person’s brain are the culmination of everything that that person has 21 reviewed in the past and persists in long-term memory, then, in that sense, all of the documents 22 produced were ‘relied upon’ . . . [and those] documents were identified, produced, and none were 23 withheld as explained to Plaintiffs’ counsel.” Id. at 2-3. Thus, Plaintiffs’ request to compel “[a] 24 clear, comprehensive, and unqualified response,” in this regard is likewise DENIED as moot. 25 The fourth dispute in this letter brief has Plaintiffs complaining about Defendants’ 26 objections to the definition of the term, “your herd,” because Plaintiffs seek information about 27 Defendants’ cattle that came into contact with cattle that were bound for Plaintiffs’ dairy farm and 1 Defendants respond that their objection to the term is valid because “Plaintiffs’ definition assumes 2 that all herds on Defendants’ properties all come into contact with one another at all times . . . [and 3 if] Plaintiffs would be willing to revise and re-issue requests with the definition they apparently 4 intended to give to the phrase, Defendants would happily respond accordingly.” Id. Plaintiffs’ 5 motion to compel in this regard is DENIED, Defendants’ objection is SUSTAINED, and the 6 parties are ORDERED to meaningfully meet and confer regarding this issue such that Plaintiff 7 can intelligently and efficiently revise and re-issue the requests to which Defendants have now 8 confirmed that they “would be happy to respond accordingly.” 9 In the fifth, sixth, seventh, and eighth disputes presented in this letter brief, Plaintiffs again 10 complain that Defendants have objected to the terms, “related to,” “relied upon,” and “your herd,” 11 as used in RFP Nos. 2, 4, 8, and 9. See id. at 4-5. As to each of these four complaints, Defendants 12 respond that there is no real “dispute” here because Defendants have explained to Plaintiffs that 13 the pertinent documents were identified and produced, and that no documents were withheld on 14 the basis of these objections. See id. Consequently, Plaintiffs’ requests to compel the production 15 and identification of responsive documents are DENIED as moot. 16 The final dispute in this letter brief pertains to RFP 19 and involves Plaintiffs’ request for 17 documents that identify the land upon which Plaintiffs’ heifers and Defendants’ cows grazed and 18 were processed. Id. at 5. Plaintiffs submit that Defendants have objected that the phrase “detailed 19 map showing the land” is too vague to understand. Id. Meanwhile, Defendants submit that they do 20 not maintain “detailed maps”; that “the documents sought are [otherwise] protected from 21 disclosure by the right to privacy”; and, that “the phrase ‘real property records’ is vague, 22 ambiguous, and unintelligible.” Plaintiffs’ motion to compel in this regard is GRANTED and 23 Defendants’ objections OVERRULED. Defendants are ordered to tender any documents in their 24 possession responsive to RFP No. 19 forthwith and without further objections. 25 The remaining two letter briefs (Plaintiffs’ Supplemental Letter Brief, “Ltr. Br. #3,” and 26 Defendants’ Objection to Plaintiffs’ Supplemental Letter Brief, “Ltr. Br. #4,” respectively dkts. 27 113 and 114) are unilaterally-filed documents that are not compliant with the joint filing 1 being filed in derogation of the meet and confer requirements provided in Fed. R. Civ. P. 37, and 2 |} Civ. L.R. 37-1 (‘The court will not entertain a request or a motion to resolve a disclosure or 3 discovery dispute unless, pursuant to Fed. R. Civ. P. 37, counsel have previously conferred for the 4 || purpose of attempting to resolve all disputed issues.”). Accordingly, any and all relief sought by 5 either party in Ltr. Br. #3 and Ltr. Br. #4 1s DENIED. 6 The above-described “disputes” were the product of rank unreasonableness and 7 || uncooperative attitudes by counsel who treated the meet and confer requirements of this court’s 8 || rules as a mere formality and a hollow prerequisite to the dumping of unrefined, insignificant, and 9 sometimes moot, disagreements onto the court’s docket. For that reason, the court will take this 10 || opportunity to warn counsel for both parties that this court is not a clearinghouse for resolving 11 insignificant, unripe, or moot discovery disputes. Instead, counsel should be mindful that 12 || discovery is the responsibility of the parties and turning to the court to resolve a discovery dispute 5 13 should only be used as a last resort. While the court does have a duty to actively and effectively 14 || manage the discovery process such as to ensure that the parties have efficient access to necessary 3 15 discovery while eliminating unnecessary and wasteful discovery, at the same time, it goes without A 16 saying that this duty is not automatically triggered each and every time counsel can conjure up one 5 17 or another thing about which to disagree. Attorneys practicing in this court are expected to seek 18 court involvement in discovery disputes only as a last resort, and only when the dispute implicates 19 truly significant interests that counsel cannot resolve through reasonable cooperation during the 20 || meet-and-confer process. Neither party has presented any indication at all that this was done here. 21 IT IS SO ORDERED. 22 Dated: October 22, 2020 23 Mt Z 24 25 ROBERT M. ILLMAN United States Magistrate Judge 26 27 28