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On Demand Direct Response, LLC v. McCart-Pollak,

United States District Court, D. Nevada

April 30, 2018

ON DEMAND DIRECT RESPONSE, LLC, et al., Plaintiffs,
v.
SHANA LEE MCCART-POLLAK, Defendants.

          ORDER [DOCKET NO. 327]

          Nancy J. Koppe United States Magistrate Judge.

         Pending before the Court is Third-Party Plaintiff Shana McCart-Pollak's motion to compel and for sanctions. Docket No. 327.[1] Third-Party Defendant Kevin Harrington filed a response in opposition, and Ms. McCart-Pollak filed a reply. Docket Nos. 332, 340. The motion is properly decided without a hearing. See Local Rule 78-1. For the reasons outlined below, the motion to compel is GRANTED in part and DENIED in part. The request for sanctions is DENIED.

         I. STANDARDS

         “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 (1998). Parties are entitled to discover non-privileged information that is relevant to any party's claim or defense and is proportional to the needs of the case, including consideration of the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed.R.Civ.P. 26(b)(1). The 2015 amendments to the discovery rules were meant to curb the culture of scorched earth litigation tactics by emphasizing the importance of ensuring that the discovery process “provide[s] parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery.” Roberts v. Clark County School Dist., 312 F.R.D. 594, 603-04 (D. Nev. 2016).

         When a party fails to provide discovery, the requesting party may move to compel that discovery. See Fed. R. Civ. P. 37(a). Conversely, a party from whom discovery is sought may move for a protective order. See Fed. R. Civ. P. 26(c). For good cause shown, courts may issue a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. See id.; see also Fed. R. Civ. P. 26(b)(2)(C) (courts must limit frequency or extent of discovery that is otherwise permissible if that discovery is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive). When a discovery dispute is presented through the filing of a motion to compel and that motion is denied, courts may enter any protective order authorized under Rule 26(c). See Fed. R. Civ. P. 37(a)(5)(B).

         The party seeking to avoid discovery bears the burden of showing why that discovery should not be permitted. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). The party resisting discovery must specifically detail the reasons why each request is irrelevant or otherwise objectionable, and may not rely on boilerplate, generalized, conclusory, or speculative arguments. See, e.g., F.T.C. v. AMG Servs., Inc., 291 F.R.D. 544, 552 (D. Nev. 2013). Arguments against discovery must be supported by “specific examples and articulated reasoning.” U.S. E.E.O.C. v. Caesars Ent., 237 F.R.D. 428, 432 (D. Nev. 2006).[2]

         II. ANALYSIS

         The pending motion seeks to compel further responses to three requests for production (requests numbers 5, 6, and 7) and two interrogatories (interrogatory numbers 6 and 7). The Court will address each discovery dispute in turn below.

         A. Request For Production No. 5

         Request for Production No. 5 seeks documents, including contracts and agreements, between Mr. Harrington and As Seen On TV, Inc. Docket No. 327 at 4. Mr. Harrington raises a single argument in responding to the motion, namely that the document request is improperly duplicative of interrogatories seeking information on a similar topic. Docket No. 332 at 6-7.[3] The Court is not persuaded. “[A] request for production of documents seeks documents, while an interrogatory is a question seeking a written response. While the nature of the information sought may in some respect be ‘duplicative, ' the responses sought take different forms, and [parties] are entitled to use both vehicles for conducting discovery.” Becker v. Dahl, 2011 WL 121697, at *2 (E.D. Cal. Jan. 13, 2011). There is nothing unusual or improper about a party seeking an answer to an interrogatory and separately seeking documents related to that subject matter. See, e.g., 8B Wright, Miller & Marcus, Federal Practice and Procedure, § 2163, at p. 8 (2010) (“After obtaining such information by means of interrogatories, a party may take depositions of witnesses and inspect documents or electronically stored information under Rule 34”). As the only argument presented lacks merit, the motion to compel with respect to this request will be granted and a supplemental response shall be served within 14 days of the issuance of this order.

         B. Request For Production No. 6

         Request for Production No. 6 seeks documents, including contracts, agreements and letters, involving Mary Beth Fasano Gearhart, regarding the purchase of www.asseenontv.com. Docket No. 327 at 9. Mr. Harrington's only argument in responding to the motion on this discovery request is the same as he made with respect to Request for Production No. 5. See Docket No. 332 at 6-7. For the same reasons as outlined above, that argument lacks merit and the motion to compel with respect to this request will be granted and a supplemental response shall be served within 14 days of the issuance of this order.

         C. Request For Production No. 7

         Request for Production No. 7 seeks “a copy of [Mr. Harrington's] cell phone and business phone numbers” for certain months. Docket No. 327 at 11. Mr. Harrington objects on the grounds that, inter alia, this request is actually an interrogatory rather than a request for production. See Docket No. 7. Moreover, it is unclear to the Court what precisely Ms. McCart-Pollak is seeking through this discovery request. The request itself seeks “phone numbers” but Ms. McCart-Pollak appears to be seeking “phone records” so she can determine with whom Mr. Harrington was communicating during the relevant period. Docket No. 340. Hence, it appears Ms. McCart-Pollak is seeking to compel the production of documents that are beyond the scope of the request for production. The Court will not compel the production of documents that have not been requested. See, e.g., Barnum ...


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