Jafari v. Federal Deposit Insurance Corporation et al
Filing
90
ORDER denying as moot plaintiffs' 80 Motion to Compel. The Court reserves its ruling on Plaintiffs' request for reasonable expenses in bringing the motion. Signed by Magistrate Judge Ruben B. Brooks on 12/5/14. (kas)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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REZA JAFARI,
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Plaintiff,
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v.
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FEDERAL DEPOSIT INSURANCE
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CORPORATION, as Receiver for LA )
JOLLA BANK,
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Defendants.
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Civil No. 12cv2982 LAB(RBB)
ORDER DENYING AS MOOT
PLAINTIFFS’ MOTION TO COMPEL
DEPOSITION AND PRODUCTION OF
DOCUMENTS AND RESERVING THE
RULING ON PLAINTIFFS’ REQUEST
FOR REASONABLE EXPENSES [ECF
NO. 80]
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This is an action for breach of contract, unjust enrichment,
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and equitable subrogation arising out of a short sale of
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residential property located in Rancho Santa Fe, California.
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(Compl. 1-4, ECF No. 1.)
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Jafari and First American Title Insurance Company (“Plaintiffs”)
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filed a Motion to Compel Deposition and Production of Documents and
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for Reasonable Expenses [ECF No. 80].
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compelling the completion of the deposition of Defendant Federal
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Deposit Insurance Corporation as Receiver for La Jolla Bank, FSB
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(the "FDIC-R") and the production of 1788 documents.
On October 29, 2014, Plaintiffs Reza
Plaintiffs seek an order
(Pls.’ Mot.
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12cv2982 LAB(RBB)
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Compel Attach. #1 Mem. P. & A. 16,1 ECF No. 80.)
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request that the Court order FDIC-R to pay $4,345 for Plaintiffs’
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expenses in bringing this Motion to Compel.
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Plaintiffs also
(Id. at 17.)
On November 17, 2014, Defendant FDIC-R opposed Plaintiffs’
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motion as “unnecessary,” claiming that it has produced the
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discovery items at issue on November 12, 2014, and will have
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produced its witness for a deposition on November 21, 2014, before
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the December 1, 2014 hearing date on Plaintiffs’ Motion.
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Opp’n Pls.’ Mot. Compel 4, 12, ECF No. 81.)
(FDIC
Defendant argues that
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because there is nothing more for the Court to compel the FDIC-R to
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produce, the Plaintiffs’ motion is moot and should be denied.
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at 12.)
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because it was not brought within thirty days of the date when the
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parties’ dispute arose.
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that it should not be ordered to pay expenses Plaintiffs incurred
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in bringing their motion.
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(Id.
FDIC-R also points out that Plaintiffs’ motion is untimely
(Id. at 9.)
Finally, Defendant argues
(Id. at 13-15.)
Plaintiffs filed a Reply in Support of Motion to Compel [ECF
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No. 82] on November 24, 2014, arguing that their motion was “a
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necessary catalyst in obtaining this discovery in a timely
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fashion,” and that although FDIC-R produced documents following the
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filing of the motion, the production is incomplete and contains
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extensive redactions.
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No. 82.)
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(Pls.’ Reply Supp. Mot. Compel 1, 4, 6, ECF
A hearing on Plaintiffs’ Motion to Compel was set for December
1, 2014.
The Court determined the matter to be suitable for
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The Court will cite to Plaintiffs’ Memorandum of Points and
Authorities, Defendant’s Response in Opposition, and Plaintiffs’
Reply using the page numbers assigned by the electronic case filing
system.
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12cv2982 LAB(RBB)
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resolution without oral argument, submitted the motion on the
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parties’ papers pursuant to the Local Civil Rule 7.1(d), and
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vacated the motion hearing [ECF No. 88].
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reasons, the Court DENIES as moot Plaintiffs’ Motion to Compel
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Deposition and Production of Documents.
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ruling on Plaintiffs’ request to award expenses in bringing the
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Motion.
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I.
For the following
The Court reserves its
THE PARTIES’ DISCOVERY DISPUTE
After Plaintiffs served their initial discovery requests on
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FDIC-R, the parties agreed to produce documents pursuant to a
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protective order, which was approved by the Court on December 12,
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2013 [ECF No. 44].
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relevant materials, Plaintiffs scheduled depositions.
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Compel Attach. #2 Dec. Heather Herd 4, ECF No. 80.)
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deposition was noticed for August 15, 2014; however, the day
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before, Defendant notified Plaintiff that additional relevant
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documents have been discovered and would need to be gathered and
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produced.
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produce the newly found materials, and asked to postpone the
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deposition, which Plaintiffs opposed.
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FDIC-R agreed to conduct the first session of the deposition on
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August 15, 2014, as scheduled, and produce the witness again after
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the documents were gathered and turned over to Plaintiffs.
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(Id.)
By July 2014, believing they received all
(Pls.’ Mot.
FDIC-R’s
Defendant asked for additional time to review and
(Id. at 5.)
Eventually
(Id.)
FDIC-R began to collect the relevant documents, but the
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process took longer than expected.
(See FDIC Opp’n Mot. Compel 6,
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ECF No. 81.)
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approaching, and FDIC-R requested an extension of discovery dates
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[ECF No. 74].
The September 15, 2014 discovery deadline was
Plaintiffs did not oppose the request [ECF No. 76],
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12cv2982 LAB(RBB)
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and the Court gave the parties until December 15, 2014, to complete
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all fact discovery [ECF No. 79].
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With this deadline in mind, Plaintiffs’ counsel repeatedly
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asked FDIC-R for the date it would produce the documents so that
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the continued deposition could be scheduled.
(Pls.’ Mot. Compel
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Attach. #2 Dec. Heather Herd 6, ECF No. 80.)
In a phone
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conversation on September 17, 2014, Defendant’s counsel represented
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that the documents were being reviewed for privilege, but could not
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offer a date certain for production or for scheduling a deposition.
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(Id.)
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22 through September 30, 2014.
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Defendant’s continued assurances, however, and on September 26,
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2014, they served a deposition notice and subpoena to produce
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documents directly on FDIC-R.
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objected to the subpoena to produce documents on various grounds,
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including attorney-client privilege and attorney work product
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doctrine.
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The lawyers continued to communicate by email from September
Plaintiffs were not satisfied with
(Id. Attach. #6 Ex. D.)
Defendant
(Id. Attach. #8 Ex. F, at 67-78.)
After service of the subpoena, Defendant’s counsel continued
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to assure Plaintiffs that the documents would be produced.
(Pls.’
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Mot. Compel Attach. #2 Dec. Heather Herd 7-8, ECF No. 80.)
Because
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FDIC-R could not “commit” to a date certain for production,
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Plaintiffs filed this Motion to Compel on October 29, 2014.
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at 8.)
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II.
(Id.
DISCUSSION
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A.
Legal Standard
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“Parties may obtain discovery regarding any nonprivileged
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matter that is relevant to any party's claim or defense . . . .
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Relevant information need not be admissible at the trial if the
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12cv2982 LAB(RBB)
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discovery appears reasonably calculated to lead to the discovery of
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admissible evidence.”
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Federal Rules of Civil Procedure enables the propounding party to
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bring a motion to compel responses to discovery.
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37(a)(3)(B).
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opposing disclosure.
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Cal. 1992).
Fed. R. Civ. P. 26(b)(1).
Rule 37 of the
Fed. R. Civ. P.
The party resisting discovery bears the burden of
Miller v. Pancucci, 141 F.R.D. 292, 299 (C.D.
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When ruling on a motion to compel, a court “‘generally
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considers only those objections that have been timely asserted in
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the initial response to the discovery request and that are
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subsequently reasserted and relied upon in response to the motion
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to compel.’”
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F.R.D. 508, 516 n.4 (D. Idaho 2013) (citation omitted).
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party fails to provide any response or objection to interrogatories
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or document requests, courts deem all objections waived and grant a
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motion to compel.
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Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (finding that a
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party who failed to timely object to interrogatories and document
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production requests waived any objections); 7 James Wm. Moore et
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al., Moore's Federal Practice, § 33.174[2], at 33–106, §
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34.13[2][a], at 34–56 to 34–56.1 (3d ed. 2012).
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established that a failure to object to discovery requests within
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the time required constitutes a waiver of objection.”
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959 F.2d at 1473.
Calderon v. Experian Info. Solutions, Inc., 290
When a
See Richmark Corp. v. Timber Falling
“It is well
Richmark,
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B.
Plaintiffs’ Motion
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Unlike most discovery disputes, Plaintiffs’ Motion to Compel
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the production of documents and a witness for deposition did not
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focus on Defendant’s objections to discovery requests.
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Instead,
12cv2982 LAB(RBB)
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the Plaintiffs were concerned with FDIC-R’s ability to produce the
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documents and the witness for a deposition before the December 15,
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2014 discovery cutoff date.
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& A. 4, ECF No. 80.)
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were entitled to complete the deposition of FDIC-R and obtain the
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additional relevant documents.
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Compel 4, ECF No. 81.)
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produced the documents in question to Plaintiffs after the filing
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of the instant Motion.
(Pls.’ Mot. Compel Attach. #1 Mem. P.
Indeed, the parties agree that Plaintiffs
(See id; FDIC Opp’n Pls.’ Mot.
There is also no dispute that FDIC-R has
(FDIC Opp’n Pls.’ Mot. Compel 4, ECF No.
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81; Pls.’ Reply 2, ECF No. 82.)
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maintains that the Motion to Compel is not mooted by Defendant’s
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production because FDIC-R redacted portions of documents without
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sufficient justification or explanation, and failed to produce all
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the relevant documents.
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Plaintiffs’ Reply, however,
(Pls.’ Reply 2-3, ECF No. 82.)
Plaintiffs allege that FDIC-R produced “extensively redacted”
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documents without offering either a privilege log or other
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information to explain the redactions.
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in some instances, Defendant produced duplicate records where some
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documents “contain redactions that are not included on identical
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duplicate documents.”
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Court’s attention to monthly reports generated to analyze the
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status of loans issued on the property.
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claim that although FDIC-R produced “multiple duplicate copies of
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several of these reports[,] . . . the redactions vary from one copy
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to the next, even though the documents appear identical in all
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other aspects.”
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calls into question all redactions of the requested documents.
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(Id. at 6.)
(Id.)
(Id.)
(Id. at 4.)
They note that
In their Reply, Plaintiffs draw the
(Id. at 5.)
Plaintiffs
Plaintiffs argue that this discrepancy
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12cv2982 LAB(RBB)
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In addition to the discrepancies in the redactions, Plaintiffs
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now claim that some redacted material appears to fall outside of
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the privileged attorney-client communications or attorney work
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product.
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that attorney-client privilege cannot be used to avoid disclosure
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of underlying facts referenced in a qualifying communication.
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at 4.)
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privilege nor the attorney work product doctrine extends to the
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communications or materials generated by counsel acting in a
(Id. at 4-5.)
Jafari and First American Title point out
(Id.
Plaintiffs also state that neither the attorney-client
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business capacity for a client.
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of the redacted portions in the produced documents contain non-
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privileged information, such as “well-known facts and/or
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information generated by an attorney acting in a business or
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administrative capacity, rather than as legal counsel.”
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(Id. at 5.)
They argue that many
(Id.)
Plaintiffs also allege that FDIC-R failed to produce all
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relevant responsive documents.
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response to their request for all documents related to Jafari’s
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administrative proof of claim with the FDIC-R, Defendant produced
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the claim itself along with “a few computer database screen shots
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and several almost entirely redacted email communications.”
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Plaintiffs argue that other documents related to the denial should
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exist and should have been produced.
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that Defendant failed to produce the documents illustrating FDIC-
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R’s administrative decision to add certain nonmonetary covenants to
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the release agreement for the short sale of the property.
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Plaintiffs argue that because such decisions are made by an
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administrator, they are not privileged –- even if informed by legal
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counsel –- and should have been produced.
(Id. at 6.)
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(Id.)
They note that in
(Id.)
Similarly, they claim
(Id. at 6-7.)
(Id.)
In any
12cv2982 LAB(RBB)
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event, Jafari and First American Title point out that Defendant
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failed to provide a detailed privilege log justifying its
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redactions.
(Id.)
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It is clear that the Plaintiffs’ complaint about the
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sufficiency of Defendant’s production arose after the Motion to
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Compel was filed, and Plaintiffs’ arguments in the Reply are being
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raised for the first time.
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brought to ensure that the Defendant produced the documents
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pursuant to the subpoena prior to the discovery cutoff date.
The Plaintiffs’ Motion to Compel was
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(Pls.’ Mot. Compel Attach. #1 Mem. P. & A. 16-17, ECF No. 80.)
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Plaintiffs now acknowledge that Defendant has produced the
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documents.
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opposition to the Motion to Compel, Defendant claimed that the
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“discovery items sought to be compelled by Plaintiff[s] were never
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actually in dispute.”
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81.)
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Plaintiff and by the time of the scheduled hearing on the Motion on
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December 1, 2014, the FDIC-R will have produced a witness for
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deposition on November 21, 2014.”
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by the Plaintiffs in their Motion to Compel has been provided, the
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Motion is DENIED as moot.
(Pls.’ Reply 2-3, ECF No. 82.)
Indeed, in its
(FDIC Opp’n Pls.’ Mot. Compel 4, ECF No.
“The FDIC-R has now produced the documents being sought by
(Id.)
Because the relief sought
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Nonetheless, Plaintiffs’ Reply makes it clear that a new
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controversy has arisen with respect to the sufficiency of the
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production.
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Plaintiffs’ Reply.
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1204 n.1 (D. Nev. 2009) (declining to consider new arguments raised
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in a reply) (citing United States v. Bohn, 956 F.2d 208, 209 (9th
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Cir. 1992) (per curiam); Knapp v. Miller, 873 F. Supp. 375, 378 n.3
The new dispute is not properly raised by the
Carstarphen v. Milsner, 594 F. Supp. 2d 1201,
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(D. Nev. 1994)).
Additionally, there is no indication that the
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parties attempted to resolve the issues regarding any privileges
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prior to the filing of this motion.
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American Title challenge in their Reply the redactions FDIC-R made
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to the documents produced and allege they have not been provided
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with a privilege log, the parties must satisfy the meet-and-confer
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requirements to resolve this disagreement before seeking the
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intervention of the Court, as required by the Federal Rules of
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Civil Procedure and the Court’s Local Rules.
To the extent Jafari and First
See Fed. R. Civ. P.
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37(a) (establishing the meet-and-confer requirement and
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circumstances warranting the filing of a motion to compel); S.D.
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Cal. Civ. R. 26.1(a) (“The court will entertain no motion pursuant
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to Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have
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previously met and conferred concerning all disputed issues.”).
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III.
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CONCLUSION
For the reasons above, Plaintiffs’ Motion to Compel is DENIED
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as moot.
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reasonable expenses in bringing the motion.
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IT IS SO ORDERED.
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Dated: December 5, 2014
The Court reserves its ruling on Plaintiffs’ request for
______________________________
Ruben B. Brooks
United States Magistrate Judge
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cc:
Judge Burns
All Parties of Record
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I:\Chambers Brooks\CASES\JAFARI2982\Order Deny as moot Mot to Compel.wpd
12cv2982 LAB(RBB)
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