Williams & Cochrane, LLP v. Quechan Tribe of the Fort Yuma Indian Reservation et al
Filing
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ORDER Granting 302 Ex Parte Motion to Compel Further Responses to Request for Admission No. 16. Signed by Magistrate Judge Michael S. Berg on 5/27/20. (dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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WILLIAMS & COCHRANE, LLP, et al.,
Case No.: 17cv1436-GPC (MSB)
Plaintiffs,
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v.
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ORDER GRANTING THE QUECHAN
TRIBE’S EX PARTE MOTION TO COMPEL
FURTHER RESPONSE TO REQUEST FOR
ADMISSION NO. 16 [ECF NO. 302]
QUECHAN TRIBE OF THE FORT YUMA
INDIAN RESERVATION, et al.,
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Defendants.
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AND ALL RELATED COUNTER CLAIMS
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On May 26, 2020, Defendant and Cross-Plaintiff Quechan Tribe of the Fort Yuma
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Indian Reservation (“the Tribe”) filed an ex parte motion seeking to compel Plaintiff and
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Cross-Defendant Williams & Cochrane, LLP (“W&C” or “Plaintiff”) to provide a further
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response to Request for Admission (“RFA”). (ECF No. 302.) Plaintiff filed its Opposition
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on May 27, 2020. (ECF No. 308.)
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I.
BACKGROUND
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After many months spent litigating the pleadings, Plaintiff maintains causes of
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action against the Tribe for breach of contract and breach of the implied covenant of
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good faith and fair dealing, both based on the Tribe’s failure to pay fees after the Tribe
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terminated W&C. (ECF No. 220.) The Tribe maintains causes of action against W&C for
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(1) breach of fiduciary duty and (2) breach of the implied covenant of good faith and fair
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dealing, both relating to W&C’s representation; (3) negligence and (4) breach of
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contract, both for failure to produce the client file on request; and (5) unfair
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competition. (ECF No. 231.) Fact discovery is set to close in this case on June 12, 2020.
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(ECF No. 294 at 2.)
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On April 23, 2020, Plaintiff served objections and responses to the Tribe’s
Interrogatories (Set 2), Requests for Production (Set 4), and Requests for Admission (Set
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2). (ECF No. 302-1 at 2; ECF No. 302-4 at 41.) On April 29, 2020, counsel for the Tribe
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sent an email to Plaintiff, requesting availability for a meet and confer regarding the
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Tribe’s Interrogatories (Set 2) and Requests for Production (Set 4). (Id. at 2; ECF No. 308
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at 2.) After slow communication and Plaintiff twice postponing scheduled meet and
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confer appointments, the parties finally met and conferred on May 15, 2020. (Id. at 2-
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4.) According to counsel for the Tribe, Plaintiff’s counsel did not agree to amend its
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responses to any of the discovery at-issue. (Id. at 4.) According to Plaintiff’s counsel,
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consistent with the Tribe’s email initiating the meet and confer, counsel for the parties
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never discussed RFA Number 16 and the Tribe agreed to give Plaintiff a reasonable
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amount of time to amend its responses to the interrogatories and requests for
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production discussed. (ECF No. 308-1 at 2.) According to the Tribe’s counsel, the parties
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met and conferred “about W&C’s responses to the Tribe’s interrogatories, as well as
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certain responses to the Tribe’s requests for production and admission.” (ECF No. 302-1
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at 4.)
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To permit the filing of the parties’ Joint Motion for Determination of Discovery
dispute regarding the Tribe’s request to compel further responses to the written
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discovery at-issue by the May 26, 20201 deadline calculated under Judge Berg’s Civil
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Chambers Rules, (see Magistrate Judge Michael S. Berg’s Civil Chambers Rule IV.D.),
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counsel for the Tribe served a complete draft of its portion of the motion on Plaintiff on
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May 18, 2020. (ECF No. 302-1 at 4.) According to Plaintiff, during a May 20, 2020 meet
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and confer with counsel for the Tribe regarding another matter, Plaintiff’s counsel
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reiterated that Plaintiff would be amending the discovery responses sought in the prior
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call. (ECF No. 308-1 at 2.) On May 26, 2020, Plaintiff’s counsel informed the Tribe that
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Plaintiff would send its portion of the joint motion at approximately 9:00 p.m. (Id. at 4.)
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At 9:07 p.m., counsel for the Tribe received an unexpected email from Plaintiff’s
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counsel that attached Plaintiff’s amended responses to the Tribe’s Interrogatories (Set
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2) and Requests for Production (Set 4). (Id. at 4-5.) At 9:14 p.m., counsel for the Tribe
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received a second email with Plaintiff’s draft of the joint discovery motion, which in the
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Tribe’s opinion, altered its structure and organization and included argument that many
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of the issues were mooted by Plaintiff’s amended responses. (Id. at 5.) Counsel for the
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Tribe informed Plaintiff’s counsel that in light of Plaintiff’s amended responses and
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alterations to the joint motion, the Tribe would be filing an ex parte motion to address
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RFA Number 16, the only disputed discovery for which Plaintiff did not serve an
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amended response. (Id.)
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II.
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ADEQUACY OF MEET AND CONFER
Plaintiff claims that the Tribe never met and conferred regarding Request for
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Admission Number 16, and consequently argues that this ex parte motion should be
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denied, and the Tribe should be ordered to pay W&C’s expenses in preparing the joint
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motion which was mooted by Plaintiff’s amended responses. (ECF No. 308 at 2-4.)
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The Court notes that Plaintiff argued in a footnote that the instant motion was untimely. (See ECF
No. 308 at 2 n.1.) However, Plaintiff appears to have incorrectly calculated the date from April 22,
2020, when Plaintiff’s Proof of Service indicates a date of April 23, 2020. (See ECF No. 302-4 at 41.)
Using the correct date, Plaintiff’s motion is timely. See Fed. R. Civ. P. 6(a)(1).
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As this Court recently explained at length, the requirement that parties meet and
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confer is important to permit parties to discuss and resolve their disputes, without
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constant intervention from the Court. (ECF No. 308 at 7.) There is no doubt here that
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the parties meet and confer efforts have been largely ineffectual throughout the
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discovery period. Nevertheless, the counsel declarations presently before the Court
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conflict regarding whether the parties met and conferred about the RFA now at-issue.
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While the Court regrets that the parties are unable to work with one another and
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instructs them to reconsider their approach to meet and confer in the future, on this
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conflicting record, the Court will not find this disagreement a basis to forego reaching
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the merits of this motion.
Similarly, while the Court is deeply concerned by the dearth of communication
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and waste of attorney hours discussed in the parties’ pleadings, it is not prepared to
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assign responsibility for the many missteps to the Tribe, nor to reverse statute as
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advocated by Plaintiff to order the payment of expenses.
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III.
LEGAL STANDARD
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The Federal Rules of Civil Procedure authorize parties to obtain discovery
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regarding any nonprivileged matter that is relevant to any claim or defense and
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proportional to the needs of the case, “considering the importance of the issues at stake
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in the action, the amount in controversy, the parties’ relative access to relevant
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information, the parties’ resources, the importance of the discovery in resolving the
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issues, and whether the burden or expense of the proposed discovery outweighs its
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likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at
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trial to be discoverable. Id. District courts have broad discretion to determine relevancy
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for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
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Similarly, district courts have broad discretion to limit discovery where the discovery
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sought is “unreasonably cumulative or duplicative, or can be obtained from some other
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source that is more convenient, less burdensome, or less expensive”; the requesting
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party has had ample opportunity to obtain discovery; or the discovery sought is beyond
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the scope of Federal Rule of Civil Procedure 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).
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“The party who resists discovery has the burden to show discovery should not be
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allowed, and has the burden of clarifying, explaining, and supporting its objections.”
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Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 (C.D. Cal. 2009); see
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Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (requiring defendants “to
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carry a heavy burden of showing why discovery was denied”); Bryant v. Ochoa, No.
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07cv200-JM-PCL, 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009) (“The party seeking
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to compel discovery has the burden of establishing that its request satisfies the
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relevancy requirements of Rule 26(b)(1).”)
Federal Rule of Civil Procedure 36 sets forth the procedure by which parties can
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use RFAs to ascertain other parties’ position on the truth of certain “facts, application of
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law to fact, or opinions about either[,] and the genuineness of any described
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documents.” A responding party must either admit, specifically deny, or state in detail
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why the party cannot admit or deny. Fed. R. Civ. P. 36(a)(4); Asea, Inc. v. Southern Pac.
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Transp. Co., 669 F.2d 1242, 1245-46 (9th Cir. 1981). When ruling on a motion to compel
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further response, a court that finds objections unjustified must order that the
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responding party answer. Fed. R. Civ. P. 36(a)(6). If the court finds the answer does not
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comply with this rule, it may “order either that the matter is admitted or that an
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amended answer be served.” (Id.)
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IV.
DISCUSSION
RFA Number 16 states: “Admit that you have never received a contingency fee as
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compensation for negotiating a gaming compact for a federally-recognized Indian
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Tribe.” (ECF No. 302 at 5; ECF No. 302-4 at 29.) In its responses, Plaintiff objected on
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several grounds, which the Court summarizes as follows: (i) any further discovery was
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burdensome and disproportionate; (ii) “any applicable privilege or confidence”; (iii)
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relevance; (iv) the definition of “contingency fee” is vague, ambiguous and inconsistent
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with this case. (Id. at 5-7.) Subject to these objections, Plaintiff answered “Denied as
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phrased, as Williams & Cochrane would have received a contingency fee in this matter if
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not for the last-minute, bad faith breach of the W&C fee agreement.” (Id. at 7.)
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In the instant motion, the Tribe asserts that Plaintiff’s answer is non-responsive to
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the RFP, as whether Plaintiff “‘would’ have received a contingency fee for its
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representation of [the Tribe] has no bearing on whether or not W&C has, in fact,
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received such a fee in connection with any compact negotiation.” (Id. at 7.) The Tribe
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asks that Plaintiff be compelled to provide a proper response. (Id.) While Plaintiff’s
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opposition to this ex parte relies exclusively on the procedural arguments previously
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discussed, Plaintiff’s counsel did include its portions of the draft joint discovery motion
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and its Memorandum of Points and Authorities in support thereof as attachments
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thereto. (See ECF No. 308-5; ECF No. 308-6.) Aside from arguing that the meet and
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confer was inadequate, Plaintiff argues that because it has already produced 15,000
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pages of documents and the Tribe served 53 individual discovery requests on the
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deadline to serve written discovery, requiring Plaintiff to answer is burdensome and
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disproportionate to the needs of the case. (ECF No. 308-5 at 37-38.) Plaintiff also
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argues that the discovery sought is irrelevant and can be obtained by other sources.
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(ECF No. 308-6 at 3.)
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The Court notes that a large part of this case involves Plaintiff seeking to obtain
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the contingency it believes it was entitled to, based on the work performed for the
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Tribe. Therefore, whether Plaintiff has ever received a contingency fee for similar work
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would be relevant to whether the fees sought here are reasonable. That the Tribe’s
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counsel might also have relevant evidence and that an expert may also offer testimony
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doesn’t make the requested RFA irrelevant.
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The only discovery now before the Court is RFA Number 16, which appears to be
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timely filed, within the statutory limit, narrowly drawn, and very simple to answer
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clearly. Therefore, the Court does not find it overly burdensome or disproportionate to
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the needs of this case.
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The Court agrees that Plaintiff has not properly responded to the Tribe’s RFA, as it
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is not discernable from Plaintiff’s response whether Plaintiff has ever received a
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contingency fee as compensation for compact negotiations. What might have occurred
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in the future between Plaintiff and the Tribe should not qualify or otherwise impact
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whether Plaintiff admits or denies the RFP. The Court therefore GRANTS the Tribes
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motion, and ORDERS Plaintiff to respond to the Tribe’s RFA Number 16 no later than
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June 1, 2020.
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V.
CONCLUSION
For the foregoing reasons, this ex parte motion is GRANTED and Plaintiff is
ORDERED to provide a response to RFA Number 16 no later than June 1, 2020.
IT IS SO ORDERED.
Dated: May 27, 2020
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