United States District Court, D. Nevada
SPRINT NEXTEL CORPORATION and SPRINT COMMUNICATIONS COMPAN Y, L.P., Plaintiffs,
ACE WHOLESALE, INC., JASON FLOREA, ERIC MANDREGER, DOMINICK LANORE, TONY ARCHIE, JOSE GENEL, BARNEY GUNN, COPATRADE, INC., and MOSHE ALEZRA, Defendants.
CAM FERENBACH, Magistrate Judge.
Before the court is Plaintiffs' Motion to Compel (#11). Third Parties Digitek Telecom, J2 International Ltd., New Way International Ltd., Rampal Cellular Stockmarket Ltd., Sol Mobiles Pvt. Ltd., World Mobile Co., and Al Sadaqa Trading LLC were served but failed to oppose. For the reasons stated below, Plaintiffs' motion is granted in part and denied in part.
Sprint commenced this action against Defendants Ace Wholesale, Inc., Jason Floarea, Tony Archie, Barney Gunn, Copatrade, Inc. and Moshe Alezra because they were allegedly engaging in unlawful business practices involving the bulk purchase and resale of Sprint's wireless telephones, theft of Sprint's subsidy investment in the phones, access of Sprint's protected computer systems and wireless network, trafficking of Sprint's protected and confidential computer passwords, and willful infringement of Sprint's trademark rights. See (Decl. of Gail Podolsky, at ¶ 2). Sprint's Complaint seeks damages and injunctive relief as a result of Defendants' violations of multiple state and federal laws. (Decl. at ¶ 2, at Ex. 1).
In the course of the litigation, Sprint uncovered evidence demonstrating that the Third Parties transacted business with some of the Defendants and may have relevant information regarding Defendants' participation in the trafficking scheme. (Decl. at ¶¶ 4-5). Sprint attempted to ascertain this information from the Defendants, however, they either asserted their Fifth Amendment privilege and refused to testify or have defaulted and failed to defend. ( Id. ¶ 3). Thus, Sprint profounded third-party discovery requests to gather evidence of Defendants' actions pertaining to the claims in this case.
On September 8, 2014, Sprint subpoenaed Third Parties Digitek Telecom, J2 International Ltd., New Way International Ltd., Rampal Cellular Stockmarket Ltd., Sol Mobiles Pvt. Ltd., World Mobile Co. and Al Sadaqa Trading LLC. The subpoenas seeks (1) documents pertaining to Third Parties' dealings with Defendants, and (2) Rule 30(b)(6) depositions. The subpoenas were personally served on each Third Party in Las Vegas, Nevada, where they regularly transact business.
None of the Third Parties responded to the Sprint subpoenas. ( Id. ¶ 9). None have filed objections, communicated with Sprint, or offered any justification for their failure to comply with the subpoenas. ( Id. ¶¶ 9-11). Now, Sprint requests an order compelling the Third Parties to comply with the respective subpoenas and award Sprint its expenses, including attorneys' fees and costs, associated with bringing this Motion.
"Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1). Parties may not, however, obtain "discovery of any matter relevant to the subject matter involved in the action" absent leave of court and a showing of "good cause." ( Id. )
These provisions permit "[l]iberal discovery." Seattle Times, Co. v. Rhinehart, 467 U.S. 20, 34 (1984). Liberal discovery serves "the integrity and fairness of the judicial process by promoting the search for the truth, " Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993), and assisting "the preparation and trial, or settlement, of litigated disputes." Rhinehart, 467 U.S. at 34. Indeed, it permits parties to "fish" for evidence, provided that they cast a "reasonably calculated" lure. FED. R. CIV. P. 26(b), Advisory Comm. Notes (1946) (citation omitted) ("[T]he Rules... permit fishing' for evidence as they should."); Hickman v. Taylor, 329 U.S. 495, 507 (1947) ("[The] discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case.").
Discovery, however, has limits. The Supreme Court has long mandated that trial courts should resolve civil matters fairly but without undue cost. Brown Shoe Co. v. United States, 370 U.S. 294, 306 (1962). This directive is echoed by Rule 26(b)(2), under which the court "must" limit the frequency and extent of discovery if the discovery sought is "unreasonably cumulative or duplicative, " can be "obtained from some other source that is more convenient, less burdensome, or less expensive, " is untimely, or if "the burden or expense of the proposed discovery outweighs its likely benefit." See FED. R. CIV. P. 26(b)(2)(C).
If, as here, a party resists discovery, the requesting party may file a motion to compel. See FED. R. CIV. P. 37(a)(1). The motion must certify that the movant has "in good faith conferred or attempted to confer" with the party resisting discovery. FED. R. CIV. P. 37(a)(1); LR 26-7(b); ShuffleMaster, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996). The motion must also include a threshold showing that the information in controversy is relevant under Rule 26. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 (1978)).
If the requesting party makes both showings, the resisting party then carries a "heavy burden" of demonstrating why discovery should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). To meet this burden, the resisting party must specifically detail the reasons why each request is improper. Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 472-73 (9th Cir. 1992) ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test."). Boilerplate, generalized objections are inadequate and tantamount to making no objection at all. See id.
Under Local Rule 7-2(d), [t]he failure of a moving party to file points and authorities in support of the motion shall constitute a consent to the denial of the motion. The failure of an opposing party to file points and authorities in response to any motion shall constitute a consent to the granting of the motion. Here, the time to oppose has passed ...