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Metropcs v. A2Z Connection, LLC

United States District Court, D. Nevada

January 10, 2020

METROPCS, Plaintiff,
v.
A2Z CONNECTION, LLC, et al., Defendants.

          ORDER

          DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE

         Presently before the Court are the following: Plaintiff's Motion to Compel (ECF No. 142), Motion to Quash (ECF No. 145) filed by third parties VIP Ballers, LLC, VIP Ballers, L.L.C., and Cellpoint Global, LLC, Defendants' Motion to Compel (ECF No. 153), Plaintiff's Motion for Protective Order (ECF No. 157), Plaintiff's Motion to Compel (ECF No. 167), and Plaintiff's Motion to Seal (ECF No. 168). I have also considered the associated response and reply briefs. The Court finds this matter properly resolved without a hearing. See Local Rule 78-1. As such, the Court will vacate the hearing set for January 13, 2020.

         The Court will start with Plaintiff's Motion to Compel (ECF No. 142). Under Rule 26(b)(1), a party may obtain discovery for any nonprivileged matter that is (1) relevant to any party's claim or defense; and (2) proportional to the needs of the case. Under Rule 37(a), if a party fails to produce requested discovery, the other party may move to compel that discovery. The party resisting discovery bears the burden of showing why that discovery should not be permitted by stating, in detail, the reasons why each request is objectionable. Boilerplate, generalized objections are equivalent to making no objection at all.

         At issue are: (1) Defendant Seher's deficient discovery responses, (2) Defendants Asim and Amier's deficient discovery responses, (3) the temporal scope of the requested discovery and (4) Defendants' refusal to provide lists of banks and financial institutions. The Court is not persuaded by Defendants' argument that Plaintiff failed to engage in a good faith effort to meet and confer on the items in dispute. Given the contentious nature of this case and long history, including counsel changes, Court intervention at this point is appropriate rather than ordering a further meet and confer on this topic. Moreover, having reviewed the responses provided by Defendants, they include largely boilerplate objections that are equivalent to making no objection at all. Further, their objections were waived as they did not timely respond. Finally, the paucity of documents produced raises skepticism that a good faith search of records in possession of the Defendants was performed.

         As for Defendant Seher's failure to respond to the interrogatories and requests for production of documents that were due on 2/6/19, it is not excusable. In the response, Seher indicates that responses were provided after the instant motion was filed, which is clearly not compliant with the Federal Rules. Seher waived objections by responding late - besides objections regarding privilege. To the extent Seher withheld information based on those late-objections, Seher shall serve amended responses including a complete list of banks and other financial institutions that she believes possess responsive information within 14 days of today.

         As for Defendant Amier, to the extent he withheld information based on late objections, he shall serve amended responses including a complete list of banks and other financial institutions that he believes possess responsive information within 14 days of today.

         As for Defendant Asim, to the extent he withheld information based on late objections, he shall serve amended responses including a complete list of banks and other financial institutions that he believes possess responsive information within 14 days of today.

         As for the temporal scope, the Court finds that Judge Hoffman's previous limitation to January 1, 2013 was proportional to the post-execution discovery, but did not set a temporal limit on scope of discovery on Plaintiff's substantive claims. The Court will grant Plaintiff's requested scope given the allegations of conspiracy at issue and permit a five year look back from the date the complaint was filed. Discovery under the amended Federal Rules does not permit hiding the ball; it encourages transparency with the knowledge that not all discovery will be admissible in the event of a trial. The Court finds that the requested records are relevant and proportional to the claims at issue.

         Moreover, as to the bank records responsive to interrogatory 7 and requests for production 12, 19, and 20, the Court will order them to be produced without redaction. To the extent the concern is privacy or confidentiality, a protective order will alleviate that concern. Therefore, Plaintiff's Motion to Compel (ECF No. 142) is granted and Plaintiff will be provided with an opportunity to seek fees and costs, which will be addressed at the end.

         The Court will now turn to Plaintiff's second Motion to Compel (ECF No. 167). At issue are: (1) Defendants' failure to produce requested ESI and (2) Plaintiff's request for a deposition regarding document preservation and retention from Defendants. Similar to Plaintiff's first Motion to Compel, the Court finds Defendants' responses largely insufficient. Plaintiff's allegations of Defendants' failure to preserve ESI and even outright attempts to prevent Plaintiff from obtaining documents from third parties are disturbing. Plaintiff has identified invoices obtained elsewhere that should have been included in any production from Defendants arising from a search of their business accounts. The existence of such documents produced from other sources raises significant concerns about the completeness of the search conducted by Defendants in providing responses to Plaintiff's requests for production of documents regarding ESI.

         In fact, the case law in this District is clear that Plaintiff is entitled to know what categories of ESI Defendants preserved and collected and how a reasonable search for responsive documents was performed with sufficient specificity to demonstrate due diligence. See, e.g. V5 Techs. v. Switch, Ltd., 332 F.R.D. 356, 367 (D. Nev. 2019) (ordering a sworn declaration from a proper custodian identifying with particularity the details of each of the searches conducted and supplemental production of all non-privileged responsive documents located in the search).

         Defendants do not deny that they have access to their email accounts, bank records, shipping records, and invoices. To the extent any responsive documents from those sources have not been preserved, then Defendants must set forth sworn declaration explaining the circumstances and date they lost the documents. This supplemental declaration must be provided by each Defendant and served on Plaintiff within 14 days of today. They must also produce all non-privileged responsive documents that were located in the search.

         After such supplemental production of responses, documents and declarations, the parties are ordered to meet and confer as to whether a deposition is necessary. It is the Court's hope that Defendants can sufficiently comply with the Federal Rules to provide the requested documents and an explanation of any destroyed documents. However, if a sufficient explanation is not provided regarding ESI preservation and destruction, then the Court agrees that a deposition is warranted under these specific circumstances and given the allegations of Defendants' behavior at issue.

         The Court will order Defendants to produce a 30(b)(6) representative for a deposition not longer than 4 hours to testify about four limited topics: (1) which documents responsive to Plaintiff's written discovery requests are being withheld subject to a privilege log if that is the reason for withholding, (2) which documents were destroyed and when, (3) which documents have never existed, (4) and which documents exist, but Defendants do not have possession, custody, or control over. Accordingly, Plaintiff's Motion to Compel (ECF ...


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