1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SOUTHERN NATURAL RESOURCES, Case No.: 20-CV-2144-JES(WVG)

LLC,

12

ORDER REGARDING DISCOVERY

Plaintiff, 13 DISPUTES RAISED MARCH 23, v. 2023, MARCH 29, 2023, APRIL 19, 14 2023

NATIONS ENERGY SOLUTIONS, INC.

15 et al; , 16 Defendant. 17 18 19 Pending before the Court are two sets of discovery dispute initially raised by the 20 Parties on March 23, 2023 and March 29, 2023, and subsequently raised again on April 19, 21 2023. Having convened discovery conferences on April 3, 2023 and April 28, 2023, and 22 reviewed the discovery requests in dispute, the Court issues this instant Order. 23 I. BACKGROUND 24 On March 23, 2023, counsel for Defendant – Counter-Defendant TG High Prairie 25 Land, LLC (“TGHPL”) and Defendant – Counter-Claimant Nations Energy Solutions, Inc. 26 (“NES”) raised a discovery dispute pertaining to NES’s responses to TGHPL’s Requests 27 for Admissions (“RFA”), Set One, No. 7, 14, and 16. (ECF No. 252.) On March 29, 2023, 28 Counter-Defendant Terra-Gen Operating Company, LLC (“TGOC”) and NES raised a 1 discovery dispute pertaining to TGOC’s responses and supplemental responses to NES’s 2 Request for Production of Documents (“RFP”), Set One, No. 3 and 5. (ECF No. 255.) On 3 April 3, 2023, the Court convened a Video Discovery Conference (“April 3, 2023 4 Conference”) to address both sets of disputes. (ECF No. 257.) During the April 3, 2023 5 Conference, the Court provides the Parties the opportunity to revisit and redraft NES’s 6 RFP, Set One, No. 3 and 5. (April 3, 2023 Disc. Conf. Tr. at 43:15-44:3.) The Court also 7 provided an opportunity for TGOC’s to response to the redrafted requests. Id. The Court 8 set a deadline of April 17, 2023 for NES to redraft RFP No. 3 and 5, and a deadline of April 9 24, 2023 for the Parties to re-raise this dispute in the event the redrafted requests and 10 responses are still at issue. (April 3, 2023 Disc. Conf. Tr. at 46:1-49:5.) 11 On April 19, 2023, TGOC and NES jointly contacted this Court’s chambers to re- 12 raise the dispute pertaining to NES’s RFP, Set One, No. 3 and 5. 13 On April 28, 2023, the Court convened a second Video Discovery Conference 14 (“April 28, 2023 Conference”) to address TGOC’s operative responses to NES’s redrafted 15 RFP, Set One, No. 3 and 5. (ECF No. 265.) Richard Welsh and Jeffrey A. Zuidema 16 appeared on behalf of Plaintiff – Counter-Defendant Southern Natural Resources, LLC, 17 and Counter-Defendants TGHPL, TGOC, TG High Prairie Holdings, LLC, Terra-Gen, 18 LLC, Terra-Gen Power, LLC, and Randy Hoyle. Daniel P. Scholz and Linsey C. Herzik 19 appeared on behalf of NES. 20 II. LEGAL STANDARD 21 The Federal Rules of Civil Procedure permit a broad scope of discovery: “Parties 22 may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 23 claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). 24 “Information within this scope of discovery need not be admissible in evidence to be 25 discoverable.” Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or 26 less probable than it would be without the evidence; and (b) the fact is of consequence in 27 determining the action.” Fed. R. Evid. 401. 28 “If the party requesting discovery is dissatisfied with any of the responses, the party 1 may move to compel further responses by informing the court which discovery requests 2 are the subject of the motion to compel, and, for each disputed response, inform the court 3 why the information sought is relevant and why the opposing party’s objections are not 4 justified.” Heilman v. Cook, No. 14-CV-01412-JLS-AGS, 2017 WL 491737, at *1 (S.D. 5 Cal. Feb. 6, 2017) (citation omitted). “The party seeking to compel discovery has the 6 burden of establishing that its request satisfies the relevance requirement of Rule 7 26.” FlowRider Surf, Ltd. v. Pacific Surf Designs, Inc., No. 15-cv-1879-BEN-BLM, 2016 8 WL 6522807, at *2 (S.D. Cal. Nov. 3, 2016). “Thereafter, the party opposing discovery 9 has the burden of showing that the discovery should be prohibited, and the burden of 10 clarifying, explaining, and supporting its objections.” Id. (citations omitted). 11 III. DISCUSSION 12 a. March 23, 2023 Dispute – NES’s Responses to TGHPL’s Requests for 13 Admissions, Set One, No. 7, 14, and 16 14 “A party may serve on any other party a written request to admit, for purposes of the 15 pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: 16 (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness 17 of any described documents.” Fed. R. Civ. P. 36(a)(1). “Each matter must be separately 18 stated.” Fed. R. Civ. P. 36(a)(2). A responding party must admit a matter, specifically deny 19 a matter, or state in detail why they cannot truthfully admit or deny it. Fed. R. Civ. P. 20 36(a)(4). If a matter is denied, the “denial must fairly respond to the substance of the matter; 21 and when good faith requires that a party qualify an answer or deny only a part of a matter, 22 the answer must specify the part admitted and qualify or deny the rest.” Id. A responding 23 party may object to a request if they state the ground for the objection. Fed. R. Civ. P. 24 36(a)(5). The requesting party may seek a decision from the court determining the 25 sufficiency of an answer or objection. Fed. R. Civ. P. 36(a)(6). The court must order that 26 an answer be served unless it finds an objection justified. Id. “On finding that an answer 27 does not comply with this rule, the court may order either that the matter is admitted or that 28 an amended answer be served.” Id. 1 i. RFA, Set One, No. 7 2 TGHPL’S RFA, Set One, No. 7 was propounded on January 23, 2023. NES’s 3 responses were served on February 22, 2023. RFA No. 7 and NES’s response are as follow: 4 RFA No. 7: Admit that in October 2015, YOU had no exclusive right to develop the 5 High Prairie windfarm. 6 RESPONSE: NES objects to the extent this request prematurely seeks information 7 protected by the attorney-client privilege or attorney work product doctrine. NES further 8 objects to the request to the extent it seeks an admission which is the subject of expert 9 testimony. NES also objects this request is vague and ambiguous as to the term “High 10 Prairie windfarm.” Subject to these objections, NES responds as follows: NES admits it 11 did not have an exclusive right to develop the High Prairie wind farm as a prospective 12 project, but did have the exclusive right to use the data NES obtained from Wind Capital 13 Group as it relates to the High Prairie windfarm. 14 TGHPL argues NES’s response is nonresponsive and improper as the first portion 15 of the response is an admission but then proceeds to add unrelated information which the 16 RFA is not seeking. (April 3, 2023 Disc. Conf. Tr. at 16:22-18:1.) TGHPL specifically 17 objected to the language “but did have the exclusive right to use the data NES obtained 18 from Wind Capital Group as it relates to the High Prairie windfarm”. (Id. at 17:15-17.) 19 TGHPL argues this additional language is NES’s attempt to bake their legal arguments into 20 RFA responses. (Id. at 20:12-24.) NES argues this qualified admission is proper where the 21 request stands alone without context of the whole truth and could convey unwarranted or 22 unfair inferences. (Id. at 18:5-20:10.) NES argues an unqualified admission to this RFA 23 would improperly give the impression that NES did not have exclusive rights to any aspect 24 of the High Prairie project despite NES’s use of the data. Id. 25 As addressed by the Court at the April 3, 2023 Conference, NES’s supplemental 26 response to RFA No. 7 contained boilerplate objections and a conditional response in 27 violation of Rule 36. As stated by the Court, the assertion of objections and then a 28 conditional response proceeding the phrase “subject to these objections” creates confusion 1 as to whether the party has properly and entirely responded to a request. (April 3, 2023 2 Disc. Conf. Tr. at 15:13-16:8.) At the April 3, 2023 Conference, the Court provided NES’s 3 counsel with the opportunity to be heard on the objections. (Id. at 16:8-11.) In response, 4 NES’s counsel stated they had no objections to the Court striking NES’s objections asserted 5 in its response to RFA No. 7. Id. 6 Accordingly, NES’s objections to RFA No. 7 are OVERRULED and the Court 7 STRIKES the objections from NES’s response. The Court further finds the RFA seeks 8 information only related to whether NES had a right to develop the High Prairie windfarm 9 and the language “but did have the exclusive right to use the data NES obtained from Wind 10 Capital Group as it relates to the High Prairie windfarm” is non-responsive to the RFA. 11 The Court STRIKES “but did have the exclusive right to use the data NES obtained from 12 Wind Capital Group as it relates to the High Prairie windfarm” from NES’s response. 13 NES’s response to TGHPL’s RFA, Set One, No. 7 remains: NES admits it did not have an 14 exclusive right to develop the High Prairie wind farm as a prospective project. 15 ii. RFA, Set One, No. 14 16 TGHPL’S RFA, Set One, No. 14 was propounded on January 23, 2023. NES’s 17 response was served on February 22, 2023. NES served a supplemental response to RFA 18 No. 14 on March 22, 2023. RFA No. 14, NES’s response, and NES’s supplemental 19 response are as follow: 20 RFA No. 14: Admit that YOU knew before March 29, 2018 that Reed Smith, LLP 21 represented SNR in connection with the APA. 22 RESPONSE: NES objects to this request on the grounds it is vague as to time and 23 vague as to the phrases “represented” and “knew”. Subject to these objections, NES 24 responds as follows: NES was aware that Henry King at Reed Smith, LLP had represented 25 SNR in certain negotiations surrounding the execution of the APA. NES does not know 26 the full extent of Reed Smith’s representation of SNR. NES was also aware that Randy 27 Hoyle of SNR would routinely act without an attorney and communicate directly with Sean 28 Roberts, Kirk Tracy, and Bob Bergstrom via email and phone. 1 SUPPLEMENTAL RESPONSE: NES was aware that Henry King at Reed Smith, 2 LLP had represented SNR in certain negotiations surrounding the execution of the APA. 3 NES does not know the full extent of Reed Smith’s representation of SNR. 4 TGHPL argues that the supplemental response is evasive and non-responsive 5 because NES has provided additional information to it admission, rendering the response 6 a qualified admission akin to a speaking answer. (April 3, 2023 Disc. Conf. at 21:16-22:19.) 7 NES argues that under Rule 36(a)(4) the supplemental response is proper as Rule 36 8 requires that if a party does not admit a matter, they must specifically deny or state in detail 9 why they cannot truthfully admit or deny the matter. (Id. at 22:21-23:4.) NES argues it 10 could not provide an unqualified admission or denial because the RFA seeks an admission 11 for a date five years after the execution of the APA, and NES’s knowledge was limited to 12 Reed Smith LLP’s representation of SNR in connection with the APA which was executed 13 in 2013. Id. 14 TGHPL’s request to compel a further response is DENIED. See Mkt. Lofts Cmty. 15 Assoc. v. Nat’l Union Fire Ins. Co., 2016 WL 6237909, at *9 (C.D. Cal. Mar. 9, 16 2016) (stating that “[g]enerally, qualification is permitted if the statement, although 17 containing some truth, ‘... standing alone out of context of the whole truth ... convey[s] 18 unwarranted and unfair inferences.”) (quoting Diederich v. Dep’t of Army, 132 F.R.D. 614, 19 619 (S.D.N.Y. 1990)) (quoting Johnstone v. Cronlund, 25 F.R.D. 42, 44 (E.D. Pa. 1960)). 20 The Court tends to agree that TGHPL has not clearly established relevancy of the five-year 21 period after the execution of the APA and how Reed Smith LLP’s potential representation 22 may relate to the APA after the execution of the APA in December 2018. NES need not 23 further supplement its response to RFA, Set One, No. 14. 24 iii. RFA, Set One, No. 16 25 TGHPL’S RFA No. 16 was propounded on January 23, 2023. NES’s response was 26 served on February 22, 2023. NES served a supplemental response to RFA No. 16 on 27 March 22, 2023. RFA No. 16, NES’s response, and NES’s supplemental response are as 28 follow: 1 RFA No. 16: Admit that no party to this action ever signed an “NES Data Contract.” 2 RESPONSE: NES objects to this request on the grounds it is vague as to time and 3 vague as to the phrases “signed”. In addition, NES objections to the extent this request 4 seeks information protected by the attorney-client privilege or attorney work product 5 doctrine. Further, NES objects this request is compound and disjunctive. NES further 6 objects to the request to the extent it seeks an admission which is the subject of expert 7 testimony. 8 Subject to these objections, NES responds as follows: NES admits there are no 9 formal wet signatures for the NES Data Contract. 10 SUPPLEMENTAL RESPONSE: Deny. 11 TGHPL argued NES’s subsequent responses to RFA No. 16 were improper and 12 made in bad faith as the original response contained a qualified admission but the 13 supplemental response was then materially changed to a denial. (April 3, 2023 Disc. Conf. 14 Tr. at 10:2-15, 12:3-18.) In response NES argues the supplemental response is proper as 15 NES originally qualified its admission and through the meet and confer process, understood 16 TGHPL sought an unqualified admission which NES could not truthfully provide; thus the 17 response was properly changed to a denial. (April 3, 2023 Disc. Conf. Tr. at 12:20-13:4.) 18 NES contends the denial is fully responsive to RFA No. 16. Id. 19 TGHPL’s request to compel a subsequent response from NES or for the Court to 20 deem NES’s March 22, 2023 supplemental response as improper is DENIED. The Court 21 finds NES’s second supplemental response has met the requirements of Rule 36 and viewed 22 in light of the evolution of the responses to RFA No. 16 through the meet and confer 23 process, NES’s March 22, 2023 response is an unequivocal denial, with no qualifications 24 or objections. NES need not provide a supplemental response to RFA No. 16. 25 b. March 29, 2023 and April 19, 2023 Dispute - TGOC’s Responses to NES’s 26 Request for Production of Documents (“RFP”), Set One, No. 3 and 5 27 With respect to TGOC’s responses to NES’s RFP No. 3 and 5, NES offers to the 28 Court to do what is NES’s responsibility. The Court is not inclined to accept the offer. The 1 Parties are well aware it is their responsibility to meet and confer, in good faith, in an effort 2 to resolve discovery disputes without having to involve the Court. The Parties in this case 3 have lost sight of that basic tenet and expect the Court to act like a “discovery abuse 4 hotline”. Every dispute has been elevated to the Court’s attention without making any real 5 and meaningful effort to objectively and reasonably engage in honest discussions with each 6 side, truly listening to the other’s input. The record and docket in this case reflects a sordid 7 history of disputes which were brought before the previous magistrate judge assigned to 8 this case, continued before this Court. 9 At the April 3, 2023 Conference, this Court made the Parties well aware of its views 10 on discovery requests and objections, and invited them to read the Court’s chambers rules, 11 if they already had not, to be further educated. (April 3, 2023 Disc. Conf. Tr. at 16.) The 12 Court emphasized the need, as Federal Rule of Civil Procedure 26 and 34 require, for 13 particularity and specificity, not only in discovery requests but also in the objections 14 asserted. (April 3, 2023 Disc. Conf. Tr. at 29-32;34:19-23.) The Court also cautioned the 15 Parties against the use of boilerplate objections without providing any supporting 16 justification to support the objection as well as concluding with the objectional conditional 17 response of “without waiving the aforementioned objections and subject to …”. (April 3, 18 2023 Disc. Conf. Tr. at 29:21-32:17.) Finding that the dispute regarding RFP No. 3 and 5 19 were not yet ripe, the Court invited the parties to go forth and work out their differences 20 with these admonitions in mind. Id. 21 Despite these admonitions, the meet and confer efforts did not result in a resolution 22 of the dispute regarding RFP No. 3 and 5. NES did not seek to narrow the scope nor modify 23 the requests. Notwithstanding the Court’s allowance of an opportunity for NES to redraft 24 RFP No. 3 and 5, RFP No. 3 remained identical to the original request. 25 As to RFP No. 5, while the request was re-worded slightly different than the original 26 request, the request remains substantively the same. NES in essence shuffled some words 27 around. The original RFP No. 5 and redrafted RFP No. 5 are as follows: 28 / / / 1 RFP No. 5, as originally requested: “DOCUMENTS reflecting any internal TGOC 2 bonus or compensation program RELATED TO the HIGH PRAIRIE PROJECT”. 3 RFP No. 5, as redrafted requested: “DOCUMENTS RELATED TO TGOC’s 4 employee bonus or compensation program for the HIGH PRAIRIE PROJECT.” 5 To demonstrate, in part, that the RFPs could have been more narrowly tailored, after 6 considerable discussion at the April 28, 2023 Conference, NES offered “on the fly” to limit 7 RFP No. 5’s request to documents pertaining only to Randy Hoyle’s “employee 8 compensation and the amount of money that he personally would have profited under this 9 … employee compensation bonus structure”. (April 28, 2023 Disc. Conf. Tr. at 24:19-22.) 10 While a nice concession, this is something NES could have and should have offered, or at 11 least explored, with TGOC during their meet and confer efforts. The Court is not inclined 12 to redraft the RFP after having given NES the opportunity to do so on their own to no avail. 13 RFP No. 5, as well as RFP No. 3, must be viewed as drafted and submitted to the Court, 14 and ruled upon accordingly. While the Court could redraft the RFPs to eliminate some of 15 the objections raised by TGOC, it is not the Court’s job to conduct NES’s discovery for 16 them. It is not the Court’s responsibility to “rewrite” discovery for parties. Dunsmore v. 17 San Diego Cnty. Sheriff's Dep't, No. 20-CV-00406-AJB-DDL, 2023 WL 215724, at *3 18 (S.D. Cal. Jan. 17, 2023) (citing to Kellgren v. Petco Animal Supplies, Inc., No. 3:13-cv- 19 644-L(KSC), 2017 WL 979045, at *4 (S.D. Cal. Mar. 13, 2017); Mycosafe Diagnotics 20 GmbH v. Life Techs. Corp., No. 13CV93-BTM (MDD), 2013 WL 12097536, at *2 (S.D. 21 Cal. Oct. 9, 2013). 22 TGOC, for its part, made its objections more specific and eliminated objectionable 23 conditional language, but still relies primarily on the same relevancy objection to support 24 its argument not to produce any documents. Notwithstanding TGOC’s objections of 25 vagueness, overbroad, burdensome and ambiguous, and its objections based upon attorney- 26 client privilege and work product, the thrust of TGOC’s objections to RFP No. 3 and RFP 27 No. 5 is relevancy. Other than the relevancy objection, the Court finds the other objections 28 were not supported by TGOC’s response. If TGOC wanted these objections to have merit, 1 |}much more than conclusory statements should have been included in the RFPs. 2 || Fortunately, for TGOC, the Court does find merit in its relevancy objection as stated by 3 || the Court at the April 28, 2023 Conference. Nothing presented by NES at the April 3, 2023 4 ||Conference and April 28, 2023 Conference has persuaded the Court that the requested 5 ||documents were relevant to any claim or defense. Much of what TGOC presented at the 6 || discovery conferences amply demonstrated the irrelevancy of NES’s RFPs No. 3 and 5. 7 Accordingly, the Court SUSTAINS TGOC’s objections to NES’s RFP No. 3 and 5. 8 || TGOC need not produce documents responsive to NES’s RFP No. 3 and 5. 9 IV. CONCLUSION 10 1. NES’s objections to TGHPL’s RFA, Set One, No. 7 are OVERRULED and 11 STRICKEN. The Court STRIKES the language “but did have the exclusive right 12 to use the data NES obtained from Wind Capital Group as it relates to the High 13 Prairie windfarm” from NES’s response. NES need not produce a supplemental 14 response to TGHPL’s RFA, Set One, No. 7. 15 2. TGHPL’s request to compel a further response to RFA, Set One, No. 14 and 16 16 are DENIED. NES need not provide a supplemental response to TGHPL’s RFA, 17 Set One, No. 14 and 16. 18 3. The Court SUSTAINS TGOC’s objections to NES’s RFP, Set One, No. 3 and 5. 19 TGOC need not produce documents responsive to NES’s RFP, Set One, No. 3 20 and 5. 21 IT IS SO ORDERED. 22 ||DATED: June 29, 2023 | 23 Hon. William V. Gallo 24 United States Magistrate Judge 25 26 27 28