Johnson-v-CFS II, Inc

Filing 46

ORDER GRANTING-IN-PART MOTION TO COMPEL, DENYING MOTION FOR SANCTIONS by Judge Paul S. Grewal granting in part and denying in part 35 Motion to Compel; denying 36 Motion for Sanctions (psglc1, COURT STAFF) (Filed on 4/1/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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I. INTRODUCTION

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BRUCE ALBERT JOHNSON,
Plaintiff,
v.
CFS II, INC. et al.,
Defendants.

Case No.: CV 12-01091-LHK (PSG)
ORDER GRANTING-IN-PART
MOTION TO COMPEL FURTHER
DOCUMENT PRODUCTION AND
DENYING MOTION FOR
SANCTIONS
(Re: Docket No. 35, 36)

In this consumer debt collection case, Plaintiff Bruce Albert Johnson (“Johnson”) moves to
compel documents from Defendant CFS II, Inc. (“CFS”) and for sanctions. CFS opposes. The

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matter was submitted to the court without oral argument pursuant to Civil Local Rule 7-1(b).

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Having reviewed the papers and considered the arguments of counsel, Plaintiff’s motion to compel

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is GRANTED-IN-PART. The motion for sanctions is DENIED.

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II. BACKGROUND

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The court provides only those facts necessary to resolving the instant motions.

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On May 24, 2012, Johnson served Plaintiff’s First Request for Production of Documents. It

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appears that CFS provided responses some time after that, including Supplemental Responses to
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Requests for Production of Documents in October 2012.
Case No.: CV 12-01091-LHK (PSG)
ORDER
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On September 24, 2012, Johnson served notice he wished to depose CFS’ designated

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representative pursuant to Fed. R. Civ. P. 30(b)(6) and included an additional request for

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production of documents. On November 6, 2012, Johnson took the deposition of CFS’ designated

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30(b)(6) witness, Bryan R. Lohmeyer (“Lohmeyer”). During the deposition, it became clear to

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Johnson that there were outstanding documents responsive to Johnson’s earlier document requests

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that had not been produced.1 For example, CFS had not produced documents related to the

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procedures its employees used in collecting debt and audio recordings of all telephone calls
between CFS and Johnson’s wife.

United States District Court
For the Northern District of California

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On December 10, 2012, Johnson contacted CFS about the outstanding documents. The

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letter stated that while Johnson “remain[ed] committed to resolving these discovery disputes in

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good faith without resorting to motion practice before the court,” the documents must be received

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by December 21, 2012, or Johnson would file a motion.2 CFS responded the next day to

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acknowledge receipt of the letter and stated it was working on gathering the documents requested,
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including making copies of the recording.3 CFS proposed that the documents be produced by

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January 4, 2013 in light of the upcoming holidays.4 On January 9, 2013, however, CFS had not

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completed the production. CFS emailed Johnson to inform him that the discovery would be

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completed by the end of the day, but also that Lohmeyer had suffered a stroke and could no longer

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serve as a 30(b)(6) witness.5 CFS also noted that production of the recording on an encrypted CD

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was taking longer than expected because of issues with the passcode. On January 15, 2013,

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See Docket No. 35, Ex. D.

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See Docket No. 40, Ex. 1.

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See id. at Ex. 2.

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See id.

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See id. at Ex. 3.

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Case No.: CV 12-01091-LHK (PSG)
ORDER
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Johnson filed the present motion to compel and accompanying motion for sanctions. On January
17, 2013, CFS finally produced the recordings through an encrypted CD.6
III. LEGAL STANDARDS

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Under Fed. R. Civ. P. 37, a party may move to compel discovery. The motion must include

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a certification that the moving party has conferred with the opposing party in good faith and failed

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to obtain the information without court action.7

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Rule 37 also provides that if the motion is granted, the court must, after allowing an

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opportunity to be heard, grant sanctions in favor of the moving party against “the party or attorney

United States District Court
For the Northern District of California

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advising that conduct,” to pay “reasonable expenses incurred in making the motion, including

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attorney’s fees.”8 However, the court must not order sanctions if: “(i) the movant filed the motion

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before attempting in good faith to obtain the disclosure or discovery without court action, (ii) the

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opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other

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circumstances make an award of expenses unjust.”9

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IV. DISCUSSION

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It appears from the parties’ briefing that the discovery dispute is largely resolved. CFS’

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opposition makes clear that it has provided supplemental responses with the documents requested.

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Although Johnson acknowledges this fact in his reply, he points to several outstanding documents

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that still have not been produced. It appears that CFS has still not produced the following:10

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(1)

Audio recordings of telephone calls between Johnson’s wife and CFS as identified

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in the deposition—Johnson identifies nine recordings but alleges only four were
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See id. at Ex. 11.

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See Fed. R. Civ. P. 37(a)(1).

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Id. subsection(a)(5).

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Id.
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See Docket No. 42 at 6.

Case No.: CV 12-01091-LHK (PSG)
ORDER
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produced.11

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(2)

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“Any responsive internal emails”—Johnson identifies only one possible email in his
original motion, the email dated October 31, 2011 from Ashley Muglia.12

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The “ACH authorization.”13

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(3)

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It is unclear which “responsive internal emails” Johnson refers to, and Johnson names no

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such category in his original motion, and so relief regarding this broad request is denied. As for the

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United States District Court
For the Northern District of California

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one identified email, audio recordings, and the ACH authorization, to the extent that they are still
outstanding, CFS shall produce them no later than April 5, 2013. If CFS does not have these
documents, CFS shall provide an explanation as to why they are no longer in its possession.

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Turning to the motion for sanctions, it is not clear from the correspondence submitted to the

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court that Johnson met and conferred in good faith with CFS before filing his motion. Meet and

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confer is an important step before resorting to seeking court intervention, and the moving party’s

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failure to do so may serve as a basis for denying discovery sanctions.14 After Johnson identified

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outstanding documents at the deposition, over the course of the following weeks CFS kept Johnson

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informed as to the status of the production and produced documents as soon as it was able. Given

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certain inconveniences such as the illness of its 30(b)(6) witness and difficulties in copying the

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audio recordings, CFS was not able to produce all documents noticed in December until mid-

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January. At the same time, CFS expressed that it was willing to stipulate to an extended fact

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discovery period. Under such circumstances, the court is hard-pressed to say one side’s actions

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were any more worthy of sanctions than the other. Accordingly, the motion for sanctions is denied.
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See Docket No. 35, Ex. D (Lohmeyer Deposition) at 38:21-25, 64:23-65:9, 66:12-67:3, 72:5-13,
74:2-7, 77:15-78:10.

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See id. at 48:20-49:1.

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See id. at 80:4-15.

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See Fed. R. Civ. P. 37.
Case No.: CV 12-01091-LHK (PSG)
ORDER
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IT IS SO ORDERED.
Dated: April 1, 2013

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_________________________________
PAUL S. GREWAL
United States Magistrate Judge

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United States District Court
For the Northern District of California

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Case No.: CV 12-01091-LHK (PSG)
ORDER
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