Sinanyan et al v. Luxury Suites International, LLC et al
Filing
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ORDER Granting in Part and Denying in Part 65 Motion to Compel. Signed by Magistrate Judge Cam Ferenbach on 3/23/16. (Copies have been distributed pursuant to the NEF - TR)
UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ALICE SINANYAN, an individual; et. al.,
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Case No. 2:15–cv–225–GMN–VCF
Plaintiffs,
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vs.
ORDER
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LUXURY SUITES INTERNATIONAL, LLC; et.
al.,
MOTION TO COMPEL (#65)
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Defendants.
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This matter involves Plaintiffs civil action against Defendant JAB Affiliates, LLC and other
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Defendants. Before the court is Plaintiffs’ Motion to Compel (Doc. #65), JAB’s response (Doc. #68),
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and the Plaintiffs’ reply (Doc. #73). For the reasons stated below, the Plaintiffs’ motion to compel is
granted in part and denied in part.
I. Background
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Plaintiff Sinanyan proposes to represent a class of condominium owners against the Defendants.
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Sinanyan alleges that the Defendants wrongfully withheld the Plaintiffs’ shares of rental income from
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condominium units located in the Signature at the MGM Grand development. (Doc. #32). Sinanyan’s
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class certification motion is pending before the court. (Doc. #57).
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The instant discovery dispute arose after Sinanyan served discovery requests on Defendant JAB
Affiliates, LLC. At issue in the instant motion are: (1) seven of Sinanyan’s requests for production
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(hereafter “RFP”), (2) two of Sinanyan’s interrogatories, and (3) three of Sinanyan’s requests for
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admission (hereafter “RFA”). Sinanyan now moves to compel JAB to produce responsive documents
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and provide adequate responses to her interrogatories and RFAs.
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II. Legal Standard
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“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain
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discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
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proportional to the needs of the case, considering the importance of the issues at stake in the action, the
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amount in controversy, the parties relative access to relevant information, the parties’ resources, the
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importance of the discovery ins resolving the issues, and whether the burden or expense of the proposed
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discovery outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1).
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“A party seeking discovery may move for an order compelling an answer, designation,
production or inspection.” FED. R. CIV. P. 37(a)(3)(B). “This motion may be made if … a party fails to
answer an interrogatory submitted under Rule 33; or a party fails to produce documents … as requested
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under Rule34.” FED. R. CIV. P. 37(a)(3)(B)(iii)-(iv).
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The party requesting that a matter be admitted “may move to determine the sufficiency of an
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answer or objection.” FED. R. CIV. P. 36(a)(6). “Unless the court finds an objection justified, it must
order that an answer be served.” FED. R. CIV. P. 36(a)(6). “On a finding that an answer does not comply
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with this rule, the court may order either that the matter is admitted or that an amended answer be
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served.” FED. R. CIV. P. 36(a)(6).
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A party objecting to a request for production must state its objection with specificity. FED. R.
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CIV. P. 34(b)(2)(C). “[B]oilerplate objections are disfavored, ‘especially when a party fails to submit
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any evidentiary declarations supporting such declaration.’” EnvTech, Inc. v. Suchard, Case No. 3:11-cv-
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523-HDM-WGC, 2013 WL 4899085 at* 5 (D. Nev. Sept. 11, 2013) (internal citations omitted).
“[B]oilerplate objections such as ‘overly burdensome and harassing’ are improper.” A. Farber and
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Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006).
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“[B]olierplate objections or blanket refusals inserted in a response to a Rule 34 request for
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production of documents are insufficient to assert a privilege.” Burlington N. & Santa Fe Ry. Co. v.
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United States District for the District of Montana, 408 F.3d 1142, 1149 (9th Cir. 2005). The court
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undertakes a holistic reasonable analysis to determine whether a privilege was validly asserted. Id.
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“[P]roviding particulars typically contained in a privilege log is presumptively sufficient [to assert a
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privilege] and boilerplate objections are presumptively insufficient.” Id.
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III. Discussion
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The parties present three issues: (1) whether JAB must produce documents responsive to
Sinanyan’s RFPs, (2) whether JAB must answer Sinanyan’s interrogatories, and (3) whether JAB must
serve amended answer to Sinanyan’s requests for admissions.
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1.
JAB Must Produce Documents Responsive to Sinanyan’s RFPs at Issue Except RFP 20
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JAB responded to each contested RFP with similar sets of objections and refused to produce
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responsive documents. JAB’s objections are discussed below.
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Vague and Ambiguous
JAB objects to various terms in RFPs 3, 5, 10, 11, 12, 20, and 21 as vague and ambiguous.
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Except for the term “statement of accounts” in RFP 20, none of the objected to terms are vague and
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ambiguous. Sinanyan either defines the objected to terms in her discovery requests or the objected to
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term has a common usage that is readily applied to Sinanyan’s RFP. With respect to the term “statement
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of accounts” in RFP 20, the term is ambiguous. Sinanyan is likely referring to a specific set of
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documents, but as she does not define the term in her discovery requests. JAB cannot produce
responsive as it cannot know which “accounts” Sinanyan is referring to. JAB’s vague and ambiguous
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objection to RFP 20 is sustained, JAB is not required to produce documents responsive to RFP 20. 1
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JAB’s remaining vague and ambiguous objections are overruled.
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Responsive Documents Are Not In JAB’s Possession, Custody, or Control
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“The responding party must then make a reasonable inquiry to determine whether responsive
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documents exist.” Am. General Ins. Co. v. Vistana Condominium Owners Ass’n., Case No. 2:12-cv-
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1324-JAD-NJK, 2014 WL 910350 at* 2 (D. Nev. Mar. 7, 2014). “A reasonable inquiry requires, ‘at a
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minimum, a reasonable procedure to distribute discovery requests to all employees and agents of the
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[party] potentially possessing responsive information, and to account for the collection and subsequent
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production of the information to [the opposing party].’” EnvTech, Inc., 2013 WL 4899085 at* 5.
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If the responding party asserts that the requested documents do not exist, the “[responding] party
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should so state with sufficient specificity to allow the Court to determine whether the party made a
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reasonable inquiry and exercised due diligence.” Vistana, 2014 WL 910350 at* 2. “Information
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regarding the search conducted should be provided through declarations under oath detailing the nature
of the efforts to locate responsive document.” EnvTech, Inc., 2013 WL 4899085 at* 5.
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JAB objects to RFPs 3, 5, 10, 11, 12, and 21 on the grounds that responsive documents are not in
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its possession, custody, or control. JAB’s objections are overruled as it fails to provide a declaration that
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explains its efforts to search for responsive documents.
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iii.
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Overbroad
JAB objects to RFPs 3, 5, 10, 11, 12, and 21 on the grounds Sinanyan’s RFPs are overly broad.
JAB’s overbreadth objections are overruled; each of Sinanyan’s RFPs limits its request by subject
matter.
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As the court sustains JAB’s vague and ambiguous objection to RFP 20, JAB’s other objections to RFP 20 will not be
discussed.
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iv.
Attorney-Client Privilege and Work-Product Protection
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JAB objects to RFPs 3, 5, 10, 11, 12, and 21 on the grounds responsive documents are protected
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by the attorney-client privilege and work-product protection. “[P]roviding particulars typically
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contained in a privilege log is presumptively sufficient [to assert a privilege] and boilerplate objections
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are presumptively insufficient.” Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149. JAB’s objections
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based on the attorney-client privilege and work-product protection are overruled; JAB failed to submit a
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privilege log and the court is unable to ascertain whether JAB has validly asserted the privilege or the
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protection.
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v.
Undue Burden
JAB objects to RFPs 3, 5, 10, 11, 12, and 21 on the grounds that responding to Sinanyan’s RFPs
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are an undue burden. “[B]oilerplate objections such as ‘overly burdensome and harassing’ are
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improper.” A. Farber and Partners, Inc., 234 F.R.D. at 188. Accordingly, JAB’s objections based on
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undue burden are overruled.
vi.
Third-Party Privacy
JAB objects to RFP 21 on the grounds that production of responsive documents would violate
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the privacy rights of third parties. “Confidentiality in and of itself is not a legitimate grounds of
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objection.” Collins v. NDOC, Case No. 3:13-CV-00255-RCJ-WGC, 2014 WL 4656232, at* 3 (D. Nev.
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Sept. 17, 2014). “[M]erely because the Defendants assert a document may be ‘confidential’ will not
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govern discoverability in a federal court action, particularly where the objecting party fails to state why
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or how the document is confidential nor cite any relevant federal discovery authority which upholds
such an assertion of confidentiality and that discovery or review of such a document is precluded.” Id.
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JAB’s third-party privacy objections are overruled; JAB failed to show how third-party privacy concerns
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could not be addressed by redaction of responsive documents or with a protective order.
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vii.
Sinanyan is Not an Adequate Class Representative
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JAB objects to RFPs 3, 5, 10, 11, 12, and 21 on the grounds that Sinanyan is not an adequate
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class representative and is not entitled to class discovery. “Although a party seeking class certification
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is not always entitled to discovery on the class certification issue, [the Ninth Circuit has] stated that
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‘[t]he propriety of a class action cannot be determined in some cases without discovery.’” Vinole v.
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Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009). “[T]he better more advisable
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practice for a District Court to follow is to afford the litigants an opportunity to present evidence as to
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whether a class action is maintainable.” Id. “District courts have broad discretion to control the class
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certification process, and ‘[w]hether or not discovery is permitted … lies within the sound discretion of
the trial court.” Id.
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Pre-certification class discovery may be denied when, the plaintiff fails to show a “prima facie
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case for class relief under Rule 23 or that discovery [will] likely produce substantiation of the class
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allegations.” Nguyen v. Baxter Healthcare Corp., 275 F.R.D. 503, 505 (C.D. Cal. 2011).
Here, JAB’s objections, that Sinanyan is not entitled to pre-certification class discovery, are
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overruled. The Central District of California’s decision in Nguyen v. Baxter Healthcare Corp., is
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instructive on the issue of pre-certification class discovery. Id. In Nguyen, the plaintiff sought to
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represent a class of hospital employees who had allegedly been denied adequate meal periods. Id. at
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507. The Nguyen court held that the plaintiff was entitled to reasonable, pre-certification discovery in
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light of the fact that many class-certification motions cannot be decided on the pleadings alone. See id.
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Here, Sinanyan is entitled to reasonable, pre-certification discovery as she has made a prima facie case
for class relief. Sinanyan proposes to represent a class of at least two hundred and fifteen condominium
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owners who owed units in the Signature at the MGM Grand development during the time period when
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the Defendants managed the development. Sinanyan alleges that the Defendants wrongfully withheld
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the owners’ shares of alleged rental income. RFPs 3, 5, 10, 11, 12, and 21 are reasonable, pre1
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certification discovery. RFPs 3, 5, 10, 11, 12, and 21 inquire about documents related to alleged rental
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revenue and agreements the Defendants had with other condominium owners. JAB must produce
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responsive documents.
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2.
JAB Must Supplement Its Answer Sinanyan’s Interrogatories
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i.
Interrogatory 2
JAB objects to Interrogatory 2 on the grounds that: (1) the interrogatory is vague and ambiguous
and (2) the term “Resort Fees” is argumentative. JAB then responds as follows: “the fees charged
depend on the units to which they were applied and the specific services and goods provided. There was
not a uniform fee charged across the board and a case-by-case evaluation must be done to ascertain a
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more thorough response to this interrogatory.”
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First, JAB’s objections are overruled. Interrogatory 2 is not vague or ambiguous nor is the term
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“Resort Fees” argumentative; JAB may not refuse to answer Interrogatory 2 on the grounds that it
disagrees with Sinanyan’s allegation regarding her entitlement to the disputed funds. Second, JAB must
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supplement its response Interrogatory 2. Interrogatory 2 asks how much the Defendants charged per
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night to rent Plaintiffs’ condominium units, yet JAB failed to provide the requested figures. JAB must
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either provide Sinanyan with responsive figures or permit Sinanyan to inspect JAB’s records to answer
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Interrogatory 2. FED. R. CIV. P. 33(d) (“if the burden of deriving or ascertaining the answer will be
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substantially the same for either party, the responding party may answer by specifying the records that
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must be reviewed … and giving the interrogating party a reasonable opportunity to examine and audit
the records.”).
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ii.
Interrogatory 3
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JAB objects to Interrogatory 3 on the ground that Sinanyan is not an adequate class
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representative. As previously explained, Sinanyan is entitled to reasonable, pre-certification discovery.
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Interrogatory 3 asks about the number of condominium units the Defendants managed during the
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relevant time period, approximately 2009 to the present. As Interrogatory 3 inquiries about the
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numerousity of Sinanyan’s proposed class, JAB’s objection is overruled. JAB must supplement its
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answer to Interrogatory 3.
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3.
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JAB Must Serve Amended Answers to Sinanyan’s Requests for Admission
“A party may serve on any other party a written request to admit, for purposes of the pending
action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: facts, the application
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of law to fact, or opinions about either; and the genuineness of any described documents.” FED. R. CIV.
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P. 36(a)(1).
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“If a matter is not admitted, the answer must specifically deny it or state in detail why the
answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the
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matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the
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answer must specify the part admitted and qualify or deny the rest.” FED. R. CIV. P. 36(a)(4).
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“The requesting party may move to determine the sufficiency of an answer or objection. Unless the
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court finds an objection justified, it must order that an answer be served. On finding that an answer does
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not comply with this rule, the court may order either that the matter is admitted or that an amended
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answer be served.” FED. R. CIV. P. 36(a)(6).
As an initial matter, JAB’s objections to RFAs 7, 9, and 11 are overruled. JAB objects on the
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grounds that the RFAs are: (1) vague and ambiguous, (2) argumentative, and (3) unduly burdensome.
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For reasons stated elsewhere in this order, JAB’s objections are overruled.
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The court now turns to JAB’s answers to RFAs 7, 9, and 11. JAB must supplement its answers
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to RFAs 7, 9, and 11. JAB answered RFA 7 as follows, “[JAB] states that the best evidence of the terms
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of the Agreements would be the Agreements themselves and Defendant refers Plaintiff to said
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documents for their content.” JAB answered RFAs 9 and 11 as follows, “[JAB] is unable to admit or
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deny this request as framed and therefore, denies the same.” Rule 36 provides the party responding to a
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RFA with four options: (1) admit, (2) deny, (3) admit in part and deny in part, or (4) state that the party
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lacks sufficient information to admit or deny. FED. R. CIV. P. 36(a)(4). With respect to RFA 7, JAB
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chose none of the permitted responses, thus it must supplement its answer in order to conform to the
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requirements of Rule 36. With respect to RFAs 9 and 11, JAB chose two responses, with the result
being that the court is unable to ascertain how JAB intended to answer. Thus JAB must supplement its
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answer to RFAs 9 and 11 in order to conform to the requirements of Rule 36.
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ACCORDINGLY, and for good cause shown,
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IT IS HEREBY ORDERED that Sinanyan’s motion to compel (Doc. #65) is GRANTED in part
and DENIED in part.
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IT IS FURTHER ORDERED that JAB’s vague and ambiguous objection to RFP 20 is
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SUSTAINED. JAB is not required to produce documents responsive to RFP 20. All other objections to
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Sinanyan’s RFPs are OVERRULED. On or before April 15, 2016, JAB must produce documents
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responsive to RFPs 3, 5, 10, 11, 12, and 21 or provide a declaration that explains its efforts to search for
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responsive documents, for instances where no responsive documents were located.
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IT IS FURTHER ORDERED that JAB’s objections to Interrogatories 2 and 3 are OVERRULED.
On or before April 15, 2016, JAB must supplement its responses to Interrogatories 2 and 3.
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IT IS FURTHER ORDERED that JAB’s objections to RFAs 7, 9, and 11 are OVERRULED. On
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or before April 15, 2016, JAB must serve supplemental answers to RFAs 7, 9, and 11.
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IT IS SO ORDERED.
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DATED this 23rd day of March, 2016.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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