Dugan et al v. Lloyds TSB Bank, PLC

Filing 292

ORDER by Magistrate Judge Nandor J. Vadas denying 253 Motion for Protective Order; granting 266 Motion to Compel (njvlc2, COURT STAFF) (Filed on 9/17/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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JOHN DUGAN, et al.,

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Case No. 12-cv-02549-WHA (NJV)

Plaintiffs,
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v.
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LLOYDS TSB BANK, PLC,

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United States District Court
Northern District of California

Defendant.

ORDER RE PLAINTIFFS’ MOTION TO
COMPEL AND DEFENDANT’S
MOTION FOR PROTECTIVE ORDER
& COST-SHARING
Re: Dkt. Nos. 253, 266

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The parties have filed discovery motions (Docs. Nos. 253 & 266) seeking the following

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relief:
(1) Plaintiffs seek to compel Defendant to produce discovery from nine custodians that

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Defendant has previously identified as persons likely to have relevant information, and

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to order Defendant do so forthwith rather than wait for the close of discovery;

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(2) Plaintiffs seek to compel Defendant to comply with Judge Alsup’s standing order

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requiring parties to make certain affirmative representations regarding the fullness of

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their discovery responses;

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(3) Defendant requests the court enter a protective order that deems Defendant’s discovery

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efforts complete upon the production of documents from five additional custodians;

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and,

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(4) Defendant asks the court to order Plaintiffs to share the cost of discovery.1

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The motions were heard on September 17, 2013. For the reasons stated below, the court

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Plaintiffs also sought the disclosure of the names and contact information of class members, but
withdrew that portion of their motion at the hearing.

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grants Plaintiffs’ motion to compel and denies Defendant’s motion for protective order and for

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cost-sharing.

DISCUSSION

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A. Lloyds must produce documents (including electronically stored information (“ESI”))
from the eight custodians Plaintiffs have identified in their papers.

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Lloyds has organized its discovery efforts by custodian rather than by discrete document
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request. Plaintiffs served their requests for production of documents on August 3, 2012. Lloyds
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identified 81 custodians who might have information responsive to those requests. Plaintiffs
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complain that Lloyds has not produced discovery from the vast majority of these custodians. In
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fact, Lloyds admits it only has produced ESI for fewer than 30 custodians, but points out it also
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has made topic/document specific productions that are not necessarily associated with any
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United States District Court
Northern District of California

particular custodian. See Doc. No. 276 (Hocevar Decl.), ¶ 8 & Ex. 7. Plaintiffs ask the court to
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compel Lloyds to produce ESI for eight custodians without further delay: (1) Duncan Alcock; (2)
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Barry Luhmann; (3) Nick Harrison; (4) Bruce Hodgson; (5) Nick Brown; (6) James Gairdner; (7)
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Mike Berry; and (8) Stuart Lloyd-Hurwitz.2 Lloyds identified Alcock, Brown, Hodgson, Gardner,
Harrison, Luhmann and Wilcox as “custodians most likely to have responsive information” on

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October 24, 2012. See Doc. No. 267-3 (Ex. C). Lloyds identified Berry and Lloyd-Hurwitz as
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custodians on November 5, 2012. Doc. No. 267-4 (Ex. D). On October 29, 2012, Plaintiffs
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identified Harrison and Hodgson, Musty and Wilcox as priority custodians. Doc. No. 267-7 (Ex.
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G). On March 10, 2013, Plaintiffs added Alcock and Luhman as priority custodians. Id. On May
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17, 2013, they added Berry, Brown, Gardner, and Lloyd-Hurwitz. Id.
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Lloyds has taken the position that it need not finalize its production of documents until the
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discovery cut-off date in this action, which is October 31, 2013. Lloyds provides no legal basis
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for its position that it need not produce discovery until the cut-off date. Instead, Lloyds argues
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that the delay is due to the overbroad nature of the requests and to Plaintiffs’ shifting discovery

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priorities. The parties negotiated a list of search terms Lloyds would use to review each
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Plaintiffs also sought to compel production of custodians Musty and Wilcox, but Lloyds has
produced Musty’s ESI and contends it does not have custody or control over Wilcox’s documents.
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custodian’s ESI for responsiveness in October and November 2012, but Lloyds did not inform

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Plaintiffs until August 5, 2013 that the search terms culled excessive documents. As of the date of

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the hearing, it appears that Lloyds will be unable to complete its discovery obligations by the close

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of discovery if it maintains its current pace. The undersigned finds that the discovery Plaintiffs

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requested is relevant and the costs of production, while significant, are not disproportional to the

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claims in this case.

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Plaintiffs’ motion to compel is granted as follows: No later than October 15, 2013, Lloyds
shall produce all ESI for the first five custodians identified above. This will have given Lloyds

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more than year to comply with Plaintiffs’ discovery requests. Also no later than October 15, 2013,

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the parties shall meet and confer in person to determine the status of production for the remaining

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United States District Court
Northern District of California

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three custodians. If Lloyds anticipates having difficulty meeting the October 31, 2013 discovery

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cut-off for the three remaining custodians, the parties shall explore whether the production for the

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remaining three custodians can be streamlined. No later than October 18, 2013, the parties shall

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file a joint three-page letter brief to update the court on the status of production and meet and

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confer efforts. Defendant’s motion seeking to limit the production to five additional custodians

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and for cost-sharing is denied. Lloyds motion for protection comes at the eleventh hour, and the

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undersigned finds that Lloyds should have understood much earlier that the discovery plans it had

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developed with Plaintiffs were unwieldy.

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Lloyds’ tactics have prejudiced Plaintiffs in their ability to review the documents and

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determine whether they need to depose additional witnesses and/or move to compel further

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production after assessing Lloyds’ production. In referring discovery disputes in this case to the

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undersigned, Judge Alsup noted that

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[t]he responsibility is on counsel to diligently prosecute all motions
to compel, after meeting and conferring, such that the magistrate
judge will have time to resolve them within the schedule set forth in
the case management order. If any party seeks an extension of a
deadline based upon discovery misconduct by the other side, please
request that the magistrate judge make a recommendation as to
whether or not there has been such misconduct.

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Doc. No. 67. The undersigned encourages Lloyds to complete its discovery obligations in a

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timely manner in order to avoid having Plaintiffs move to extend the discovery deadline.
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B. The parties must comply with Judge Alsup’s standing order.
Judge Alsup’s Supplemental Order to Order Setting Initial CMC in Civil Cases has been in

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effect since Plaintiffs filed this action. Thus, from the moment the case was assigned to Judge
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Alsup, the parties were aware that they would have to comply with the following obligations:
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United States District Court
Northern District of California

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The following paragraphs on discovery provide counsel and the parties with
views and guidelines of Judge Alsup so that they can plan accordingly. For good cause,
the parties are invited to propose any modifications in their joint case management
conference statement. Unless and until modified, however, the following provisions shall
supplement the requirements of the Federal Rules of Civil Procedure and the local rules.
12. In responding to requests for documents and materials under FRCP 34, all parties
shall affirmatively state in a written response the full extent to which they will produce
materials and shall, promptly after the production, confirm in writing that they have
produced all such materials so described that are locatable after a diligent search of all
locations at which such materials might plausibly exist. It is not sufficient to state that
“responsive” materials will be or have been produced. Such a response leaves open the
distinct possibility that other responsive materials have not been produced.
13. In searching for responsive materials in connection with FRCP 34 requests or for
materials required to be disclosed under FRCP 26(a)(1), parties must search computerized
files, e-mails, voice mails, work files, desk files, calendars and diaries, and any other
locations and sources if materials of the type to be produced might plausibly be expected to
be found there. The Court has found that certain basic information normally learned by
counsel anyway should be made available to the other side at the time of production, as if
it were a response to a standing interrogatory, as follows. At the time of the production, the
responding party should provide a written list to the requesting party setting forth in detail
each specific source and location searched. The list must also identify, by name and
position, all persons conducting the search and their areas of search responsibility. The
producing party shall also provide a list describing the specific source for each produced
item as well as for each item withheld on a ground of privilege, using the unique
identifying numbers to specify documents or ranges. Materials produced in discovery
should bear unique identifying control numbers on each page.
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15. Except for good cause, no item shall be received as case-in-chief evidence if the
proponent has failed to produce it in response to a reasonable and proper discovery request
covering the item, regardless of whether any discovery motion was made. A burden or
overbreadth or similar objection shall not be a valid reason for withholding requested
materials actually known to counsel or a party representative responsible for the conduct of
the litigation.
16. Privilege logs shall be promptly provided and must be sufficiently detailed and
informative to justify the privilege. See FRCP 26(b)(5). No generalized claims of
privilege or work-product protection shall be permitted. With respect to each
communication for which a claim of privilege or work product is made, the asserting party
must at the time of assertion identify:
(a) all persons making or receiving the privileged or protected
communication;
(b) the steps taken to ensure the confidentiality of the communication,
including affirmation that no unauthorized persons have received the
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communication;
(c) the date of the communication; and
(d) the subject matter of the communication.

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Failure to furnish this information at the time of the assertion will be deemed a waiver of
the privilege or protection. The log should also indicate, as stated above, the location
where the document was found.
At the hearing, Lloyds confirmed that it had not moved for any modification of Judge
Alsup’s Standing Order.
The court understands that the parties have modified the applicable search parameters

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throughout the past year, but this does not excuse Lloyds from having kept track of what it

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searched, and what it produced. No later than October 1, 2013, Lloyds must provide the
information required by Judge Alsup’s Supplemental Order for the custodians whose information

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United States District Court
Northern District of California

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it has produced to date; Lloyds must produce the information for the remaining custodians on a

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rolling basis as it produces their ESI. No later than October 22, 2013, Lloyds also must provide a

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privilege log, which must comply with Judge Alsup’s standing order. The court encourages

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Lloyds to be extremely specific in its privilege log entries and not to over-designate items as

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privileged.

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Finally, the court notes that the parties did not follow its standing order, which requires the

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parties to meet and confer in person. In the future, the parties shall scrupulously follow both the

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undersigned’s and Judge Alsup’s standing orders or request relief from the appropriate court in

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writing well in advance of the obligation the party seeks to avoid.

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IT IS SO ORDERED.
Dated: September 17, 2013
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NANDOR J. VADAS
United States Magistrate Judge

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