Rogers v. Bellerose

Filing 40

ORDER by Judge Robert M. Illman denying 34 Discovery Letter Brief; denying 39 Discovery Letter Brief. (rmilc2S, COURT STAFF) (Filed on 10/15/2020)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 WILLIAM E ROGERS, 9 Plaintiff, 10 United States District Court Northern District of California 11 12 Case No. 20-cv-00438-VC (RMI) ORDER RE: DISCOVERY DISPUTE LETTER BRIEFS v. NANCY BELLEROSE, et al., Re: Dkt. Nos. 34, 39 Defendants. 13 14 Now pending before the court are an Updated Joint Discovery Letter Brief (dkt. 34) and a 15 Supplemental Discovery Letter Brief (dkt. 39). Previously, the parties had presented their original 16 Discovery Letter Brief (dkt. 32) setting forth various issues, some of which appeared to have 17 already been resolved; accordingly, the court ordered the parties to meet and confer in an effort to 18 narrow or resolve the matters in dispute (see Order (dkt. 33)) and then to file an Updated Joint 19 Letter Brief. However, when the parties file their Updated Joint Discovery Letter Brief (dkt. 34), it 20 still appeared that they were arguing in a disjointed fashion because Defendants submitted that 21 some of the disputed supplemental discovery responses had in fact been tendered and that they 22 were no longer in dispute; and, as to other disputed items of discovery, Plaintiffs were simply 23 refusing to accept the notion that Defendants did not have any responsive documents in their 24 possession (see generally (dkt. 34)). Thus, once again, the court ordered the parties to meet and 25 confer in a meaningful fashion and to file a supplemental letter brief (see Oral Order (dkt. 35)) 26 through which the court hoped that what appeared to be a non-issue might be resolved amicably. 27 Regrettably, having filed the Supplemental Discovery Letter Brief (dkt. 39), the parties are still at 28 an impasse; and, the court finds that the matter is suitable for disposition on the papers under Civ. 1 Local R. 7-1(b), and that no further oral argument is necessary. For the reasons stated below, 2 Plaintiff’s remaining requests to compel discovery – as described in the Supplemental Discovery 3 Letter Brief (dkt. 39) are DENIED. 4 Plaintiff filed suit in this case against his former employer as well as a number of its 5 officers and directors alleging that after Defendants terminated his employment, they hacked into 6 his private email and other accounts and devices such as to illicitly acquire the information 7 necessary in order to assert claims of ownership of his patents and to obtain “leverage” against 8 him due to his anticipated claims against them. See Amend. Compl. (dkt. 28) at 3-4. As Plaintiff 9 put it, it “is an action of crude corporate espionage and spite.” Id. at 2. Following the termination of his employment, Plaintiff became aware of the possibility that Defendant Bellerose, or someone 11 United States District Court Northern District of California 10 working for Defendant Red Cloud, may have accessed his personal devices and accounts. See 12 Supp. Ltr. Br. (dkt. 39) at 2-3. In short, Plaintiff now seeks the production of documents from 13 December of 2019 (the period during which the illicit access reportedly took place), and Plaintiff 14 simply refuses to accept Defendants’ contention that they are not in possession of any responsive 15 documents – Plaintiff submits in this regard that “[t]he lack of documents is simply not credible, 16 especially since opposing counsel began sending demand letters claiming ownership to Plaintiff’s 17 patents on December 17, a week after someone at Red Cloud began hacking into his accounts 18 which contain confidential information related to his patents.” Id. at 3. Plaintiff does not venture 19 into any detail about how exactly Defense counsel’s demand letters pertaining to Plaintiff’s 20 patents indicate that Defendants are lying about their purported possession of responsive 21 documents that they have failed to tender in discovery. 22 Defendants respond that: they did not access any of Plaintiff’s accounts or his devices; 23 they do not have the documents which Plaintiff requests; and, therefore, “Defendants cannot 24 produce documents that they do not have.” Id. at 4. By way of reply, Plaintiff asks the undersigned 25 to force Defendants to “provide a privilege and withholding log and identify what documents are 26 being withheld related to Plaintiff’s requests.” Id. By merely suggesting that “the lack of 27 documents is simply not credible,” however, Plaintiff fails to convince this court to retrospectively 28 add a “withholding log” requirement where none exists in the rules. In this regard, the undersigned 2 1 finds that Plaintiff must accept opposing counsel’s representation that Defendants have no such 2 documents in their possession, and that any retroactive “imposition of a requirement that there be a 3 ‘withholding log’ or a ‘non-responsiveness and irrelevance log’ in this case would [needlessly] put 4 the withholding party to the expense of going back over [the entirety of] its documents after it had 5 been through them at least once.” In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., No. 6 2342, 2013 U.S. Dist. LEXIS 187691, at *9 n.2 (E.D. Pa. Oct. 31, 2013). Accordingly, Plaintiff’s 7 request to compel Defendants to produce such a log is DENIED. As to the second category of disputed information, Plaintiff’s Original Complaint (dkt. 1) 9 only named a single individual defendant (Nancy Bellerose). Following the filing of the Original 10 Complaint, during a period when Red Cloud was not yet a party to this action, Plaintiff served a 11 United States District Court Northern District of California 8 Rule 45 subpoena on Red Cloud, in which regard Red Cloud maintains that it produced all 12 responsive documents in its possession on October 8, 2020. See Supp. Ltr. Br. (dkt. 39) at 6. 13 Several months after the filing of the Original Complaint, Plaintiff filed an Amended Complaint 14 (dkt. 28) through which he added Red Cloud as a defendant in the case. Now, Plaintiff seeks 15 certain “supplemental responses” from Defendant Red Cloud because Plaintiff maintains that it 16 received “informal assurances” from Red Cloud that “indicated that all documents have been 17 produced . . .” See Supp. Ltr. Br. (dkt. 39) at 3 (emphasis in original). Defendant Red Cloud 18 submits that (1) it has already complied with the Rule 45 subpoena; and (2) that “[i]f Plaintiff 19 wishes to serve formal discovery requests on Red Cloud . . . Plaintiff can certainly do that.” Id. at 20 6. Accordingly, to the extent that Plaintiff wishes to retroactively shoehorn the discovery requests 21 propounded to the individually-named Defendants onto the Rule 45 subpoena previously issued to 22 Red Cloud before it became a party to this action, that request is DENIED and Plaintiff is directed 23 to propound those discovery requests directly to Red Cloud now that it is a party to the action. 24 Lastly, in mashing together the two above-described disputes, Plaintiff also demands 25 “formal supplemental responses” from all defendants as such: “Plaintiff requests the Court compel 26 Defendant Bellerose Defendants (sic) to provide formal supplemental responses to the above 27 requests for production of documents and, at the very least, require Defendant Red Cloud to 28 formally withdraw their objections.” Id. at 3-4. As mentioned above, to the extent that Plaintiff 3 1 wishes to retroactively shoehorn party discovery propounded to Defendant Bellerose into its 2 previously-issued third-party subpoena to Defendant Red Cloud, that request is DENIED. To the 3 extent that Plaintiff simply refuses to believe Defense Counsel’s repeated representations that 4 Defendants are not in possession of any responsive documents that have been properly requested, 5 such as to justify “formal supplemental responses,” that request is likewise DENIED. 6 7 IT IS SO ORDERED. Dated: October 15, 2020 8 9 ROBERT M. ILLMAN United States Magistrate Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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