Athwal v. Nijjer et al

Filing 36

ORDER granting Plaintiff's 27 Motion to Compel Discovery Responses, signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
_______________________________________
)
SATBINDER ATHWAL, individually and on )
behalf of the Estate of HARKANWAL SINGH )
ATHWAL, deceased,
)
)
Plaintiff,
)
v.
)
)
JAY NIJJER and “JANE DOE” NIJJER,
)
individually and as a marital community,
)
)
Defendants,
)
)
and
)
)
INDIGO HOLDINGS, LLC, a Washington
)
limited liability company,
)
)
Nominal Defendant.
)
_______________________________________)

Case No. C17-00740RSL
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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This matter comes before the Court on “Plaintiff’s Motion to Compel Discovery
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Responses.” Dkt. # 27. This case involves a dispute over plaintiff’s alleged fifty percent
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ownership interest in Indigo Holdings, LLC (hereinafter “Indigo”). Plaintiff asserts claims of
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breach of contract, breach of fiduciary duty, wrongful interference with a business relationship,
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fraudulent misrepresentation, and violation of the Washington Limited Liability Company Act
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under RCW 25.15 et seq., among other claims. Having reviewed the memoranda, declarations,
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and exhibits submitted by the parties, the Court finds as follows:
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ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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I. Discovery Deficiencies
On October 4, 2017, plaintiff served her First Set of Interrogatories and Requests for

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Production on Indigo and her First Requests for Admission on Jay and Jane Doe Nijjer. Dkt. #28

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at Ex. B, Ex. C; Dkt. #29-1 at ¶ 6. The initial response date was November 2, 2017. The parties

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agreed to continue the deadline until December 11, 2017. Dkt. #29-1 at ¶ 9. Defendants

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submitted their answers on December 11, 2017, but they were incomplete. Dkt. #29-1 at ¶ 9. At

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a meet and confer conference on December 14, 2017, the parties agreed that defendants would

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supplement their answers and documents by December 22, 2017. Dkt. #29-1 at ¶ 9. However, on

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December 22, 2017, defendants produced some informal discovery and informed plaintiff that

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they would not provide the supplemental discovery responses until the first week of January.

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Dkt. #29-1 at ¶ 10. Plaintiff brought this motion to compel on December 28, 2017. Dkt. #27.

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Defendants produced supplemental discovery responses on January 8, 2018. Dkt. #29-1 at ¶ 12.

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Discovery closed on February 5, 2018. Dkt. #18.

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Defendants argue that plaintiff’s motion was unnecessary because they were already in

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the process of supplementing discovery and that it is now moot as their discovery production is

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complete. Defendants also argue that many of plaintiff’s requests were over-broad in scope and

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difficult to answer as they required gathering information from disparate sources. Finally,

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defendants argue that plaintiff exceeded the permissible number of interrogatories through the

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use of sub-questions. The motion to compel is not moot: production after a party is forced to file

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a motion to compel may still be sanctioned, and plaintiff argues that the January 8, 2018,

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supplemental production remains incomplete. In light of the fact that defendants filed

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supplemental responses between the initial motion to compel and plaintiff’s ultimate reply, the

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Court will consider only those items argued in plaintiff’s reply.1

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Contrary to plaintiff’s representation, Indigo’s November 11, 2017, discovery responses are not
in the record (Dkt. #28 at Ex. E is a copy of Nijjer’s responses). Because the parties agreed during their
meet and confer that the December 11, 2017, answers were incomplete and required supplementation,
the Court takes that fact as a given and will evaluate Indigo’s supplemental responses.
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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A. Interrogatories
Interrogatory No. 1: Is your response to each request for admission served
with these interrogatories an unqualified admission? If not, for each
response that is not an unqualified admission: (a) state the number of the
request; (b) state all the facts upon which you base your response; (c) state
the NAMES, ADDRESSES, and TELEPHONE NUMBERS of all
PERSONS who have knowledge of those facts; (d) identify all
DOCUMENTS and other tangible things that support your response and
state the NAME, ADDRESS, and TELEPHONE NUMBER of the
PERSON who has each DOCUMENT or thing.
Indigo’s answer is a mishmash of references and statements. Dkt. #32 at 10. It fails to
provide much of the requested information, including the number of the request for admission to
which it corresponds, addresses of the persons listed, or any information about supporting
documents and who may have them. Therefore, the answer is deficient.
Plaintiff points out that the representation that KS Accounting prepared Indigo’s taxes in
2012 and 2013 contradicts defendants’ prior statement that Olsen & Company CPAs has been
the only accounting firm used by Indigo to prepare its taxes since formation. Defendants are
reminded that admissions are considered conclusively established and that responses to
interrogatories are made under oath. See Fed. R. Civ. P. 33(b)(3); 36(b).
Interrogatory No. 2: How much of the distributions noted on the attached
Exhibit A and Exhibit B have actually been remitted to Hark, Sally, and/or
ESSA Investments? If all of the distributions have not been remitted: (a)
What portion has not been remitted? (b) Why has that portion been
withheld? (c) Where is the withheld portion of the distribution? (d) What
was the money used for or being held for? (e) Provide the bank and bank
account numbers where the unremitted distributions are being held.
While Indigo provides a supplemental answer to this interrogatory, it answers only
subpart (a) and glosses over subparts (b) through (e). This answer is, therefore, deficient. The
Court also notes that the answer provided appears inconsistent with Indigo’s 2015 tax returns,
see Dkt. #28 at Ex. M, and reminds Indigo that its interrogatory answers are under oath. See Fed.
R. Civ. P. 33(b)(3).
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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Interrogatory No. 6: Describe in detail the reason for each transaction
listed below involving Indigo Wells Fargo Bank Account #________3294.
Provide an accounting as to the source and/or recipient of the said
transaction, and for all withdrawals and outgoing wires explain why you
authorized the transaction: [the interrogatory lists twenty-four transactions
occurring between May 8, 2012, and June 14, 2017.]
Indigo objects to Interrogatory No. 6 on the ground that each of the twenty-four listed
transactions constitutes a discrete subpart and that plaintiff’s interrogatories therefore exceed the
twenty-five interrogatory limit permitted under Fed. R. Civ. P. 33(a)(1). Dkt. #29-1 at ¶ 8. The
supplemental production provides details for only four of the listed transactions.
Federal Rule of Civil Procedure 33(a)(1) provides: “[u]nless otherwise stipulated or
ordered by the court, a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” Rule 33 does not, however, define “discrete
subparts.” The Advisory Committee states:
Parties cannot . . . join[] as ‘subparts’ questions that seek information about
discrete separate subjects. However, a question asking about communications of a
particular type should be treated as a single interrogatory even though it requests
that the time, place, persons present, and contents be stated separately for each
such communication.

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Fed. R. Civ. P. 33 Advisory Committee Notes regarding 1993 Amendment. “[T]he task of

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counting interrogatories requires a case-specific assessment.” Synopsys, Inc. v. ATopTech, Inc.,

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319 F.R.D. 293, 295 (N.D. Cal. 2016). “The subparts can be explicit or implicit; the number of

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subparts does not turn on the formalism of labeling.” Erfindergemeinschaft Uropep GbR v. Eli

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Lilly & Co., 315 F.R.D. 191, 195 (E.D. Tex. 2016) (citing 7 James Wm. Moore, Moore's Federal

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Practice § 33.30[2], at 33-33 (3d ed. 2016); Safeco of Am. v. Rawstron, 181 F.R.D. 441, 443

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(C.D.Cal.1998)). While courts have formulated various tests for determining when subparts are a

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separate interrogatory, “courts generally agree that interrogatory subparts are to be counted as

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one interrogatory ... if they are logically or factually subsumed within and necessarily related to

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the primary question.” Trevino v. ACB Am., Inc., 232 F.R.D. 612, 614 (N.D. Cal. 2006) (citing
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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Safeco of America v. Rawstron, 181 F.R.D. 441, 445 (C.D.Cal.1998); Kendall v. GES

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Exposition Services, 174 F.R.D. 684 (D.Nev.1997)) (internal quotation omitted).

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Interrogatory No. 6 requests information about twenty-four separate transactions

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originating from a single Indigo bank account. Plaintiff could have asked one primary question

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in general terms, such as “Describe in detail the reason for each transaction involving Indigo

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Wells Fargo Bank Account #__________3294” for a particular time period, which would likely

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have required explanation of many more transactions without raising any issues regarding the

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number of interrogatories at issue. Instead, plaintiff simplified Indigo’s task by flagging certain

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transactions of interest. Indigo may not now turn this courtesy against plaintiff and argue that the

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twenty-four listed transactions constitute twenty-four discrete interrogatories. The twenty-four

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listed transactions are logically and factually part of the primary question and do not constitute

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separate interrogatories.

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Having concluded that Indigo cannot properly object to Interrogatory No. 6 based on the

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number of subparts, the Court looks to the sufficiency of the supplemental production. The

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supplemental answer divides the transactions into two time frames: 2012 to 2013 and 2015 to

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2017.2 Indigo asserts that “at this time” it is “without sufficient knowledge and memory to

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provide an accounting for the transactions listed for 2012 and 2013,” and states that it “is in the

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process of trying to obtain bank statements ... which may help defendant provide an accounting

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of the transactions listed for 2012 and 2013.” Dkt. #32 at Ex. C, p. 4-5. This answer is deficient.

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The Rules provide that a defendant “must furnish the information available to the party.” Fed. R.

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Civ. P. 33(b)(1)(B). Indigo makes no attempt to explain how its own bank statements were

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unavailable to it during the months before it submitted this supplemental answer or why it is still

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“trying” to obtain them. Indigo had an obligation to obtain its bank records and answer this

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interrogatory to the best of its ability within the time allowed. It did not fulfill this obligation.

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For the 2015 to 2017 time period, Indigo provides details for four of the thirteen

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There are no listed transactions for 2014.

ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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transactions and otherwise states that “this is a burdensome request” and that it is “in the process

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of attempting to obtain information to provide an accounting for such transactions.” Dkt. #32 at

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Ex. C, p. 5. Interrogatory objections must be raised with specificity. Fed. R. Civ. P. 33(b)(4). A

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general statement that the request is burdensome without any detail as to why or how is not

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sufficient. Indigo has provided no explanation for why it could not access or locate records

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relating to its own dealings in the months leading up to this production. This answer is deficient.

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Interrogatory No. 8: Describe in detail all Indigo’s assets. Please identify
the location of the asset, and state the current fair market value of each such
asset.
In its supplemental answer to this interrogatory, Indigo provides that it has no assets other
than interests in two hotel companies from which it receives distributions. Indigo ambiguously
states that it was “never properly admitted as a member in such entities” while at the same time
specifying the percentage interests it holds. Dkt. #32 at Ex. C, p. 5-6. Indigo directs plaintiff to
produced documents including tax returns and appraisals for the two hotels. Id. Plaintiff argues
that this production is deficient because Indigo did not provide the fair market value for the
listed Indigo assets, omitted reference to a known business vehicle (a Porsche Macan listed in
Indigo’s 2015 tax returns), and did not provide documents supporting Indigo’s contention that it
was not properly admitted as a member in the hotel companies despite receiving regular
distributions. See Dkt. #31 at 7; Dkt. #29-1 at Ex. M, p. 18.
The Court does not know which documents were actually produced and what they
contained. Indigo has the option to provide responsive business records and need not extract the
precise answers for plaintiff. See Fed. R. Civ. P. 33(d). However, if it utilizes this option, it must
“specify[] the records that must be reviewed, in sufficient detail to enable the interrogating party
to locate and identify them as readily as the responding party could.” See Fed. R. Civ. P.
33(d)(1). It is an abuse of this option to respond by “directing the interrogating party to a mass of
business records.” Fed. R. Civ. P. 33 Advisory Committee Notes regarding 1980 Amendment.
This Rule does not permit a party to dump large swaths of documents of its choosing on the
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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opposing party. Rather it permits inspection of business records–including pertinent indices,

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summaries, charts, and other such organizational aids–when the burden of sifting through the

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same records is equal for both parties. Indigo directs plaintiffs to the same thousands of pages of

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documents in almost every supplemental response to the Requests for Production. See Dkt. #32

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at Ex. C. This response does not meet the business record option standard.

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Regarding plaintiff’s questions about the Porsche Macan, while Indigo has previously

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claimed the vehicle as a business asset on its tax returns, the Court has no way of knowing if

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Indigo had since disposed of it. The Court reminds Indigo that a vehicle claimed on company tax

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returns would constitute a business asset and that its interrogatory answers are under oath. See

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Fed. R. Civ. P. 33(b)(3).
Indigo has raised doubts regarding its membership in the hotel companies at issue but has

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failed to provide any supporting documents. Discovery offers Indigo an opportunity to provide

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documents in support of its contentions: if, despite receiving years of dividends, Indigo does not

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have a proper membership interest in the hotel companies, it must produce any information it

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intends to rely upon or risk exclusion at trial. Indigo must produce all documentation

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establishing the nature of its relationship to the hotel companies.
Interrogatory No. 9: State the dates of and describe all Indigo related
transfers and/or withdrawals of corporate funds or property in any form,
including compensation, salaries, loans, dividends, reimbursement, or
otherwise, which have been made to or for any officer, member, director,
shareholder, or manager from April 11, 2012 to the Present.

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Indigo’s supplemental answer again provides that “this is an extremely burdensome

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request,” and that Indigo is “in the process of attempting to obtain information to provide an

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accounting for such transfers and/or withdrawals.” Indigo objects to this Interrogatory on the

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same grounds as Interrogatory No. 6, and those objections are overruled. Indigo is required to

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respond to this interrogatory, and, in particular, to provide detailed responses describing any

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loans.
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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B. Requests for Production
Requests for Production Nos. 1, 2, 6, 8, 9: Please produce all documents
that support or otherwise relate to your answer of Interrogatory No. [1, 2, 6,
8, 9].
These Requests for Production relate to the interrogatories discussed above. The Court does not
have access to the documents Indigo produced in response to these Requests for Production. See
Dkt. #32 at Ex. C. It cannot, therefore, evaluate the sufficiency of that production.
Request for Production No. 27: Produce all communications, including
but not limited to emails, letters, correspondence, and memoranda, between
you and the members, shareholders, lenders, or managers of CWS Meridian
LLC and TNB Hospitality, LLC from January 1, 2012 through the present.

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Indigo has not provided a supplemental response to Request for Production No. 27, Dkt.
#32 at Ex. C, and plaintiff states that Indigo has not produced any responsive communications.
Indigo’s initial response objected on the grounds that the request: 1) is vague, overbroad, and
unduly burdensome; 2) seeks information that is irrelevant, not admissible in evidence, or
reasonably calculated to lead to the discovery of admissible evidence; 3) would require the
production of documents that contain confidential or other protected information that has no
bearing on the above referenced litigation; 4) seeks information that was prepared in anticipation
of litigation and contains mental impressions, conclusions, opinions and/or legal theories of
attorney and/or representatives of Indigo; 5) seeks attorney work product; and/or 6) seeks
information subject to attorney/client privilege. The boilerplate nature of the objection is
amplified by Indigo’s use of “interrogatory” rather than “request” in all but the first sentence.
An objection to a response for production must “state with specificity the grounds for
objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Indigo’s contention
that the request is vague, overbroad, and unduly burdensome does not meet the specificity

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ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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standard as Indigo has not provided any reasons.3 The information sought is relevant, as it goes

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to the nature of Indigo’s business dealings, which are at issue. To the extent that information

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sought may be confidential or protected, this is properly addressed by moving for a protective

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order, see Fed. R. Civ. P. 26(c)(1)(G), which Indigo failed to do. To the extent that information

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sought may be privileged or subject to protection as trial preparation material, Indigo must

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provide a privilege log, see Fed. R. Civ. P. 26(b)(5), which it did not do. Indigo’s objections to

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Request for Production No. 27 are overruled and it must provide all relevant, responsive

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communications. Indigo is reminded that this includes defendant Nijjer’s pertinent emails and

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other communications.

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Requests for Production No. 31: Produce all documents relating to the
loan involving J&B Holdings.

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Request for Production No. 32: Produce all documents relating to the loan
involving Insignia Properties.

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Request for Production No. 33: Produce all documents relating to the loan
involving Gurminder Athwal.

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Request for Production No. 34: Produce all documents relating to the loan
involving Sarbjit Bains.

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Indigo argues that it has produced responsive documents regarding the JJB4 Holdings and

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Gurminder Athwal loans, that it is “not aware of a loan involving Insignia Properties that is

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relevant to Indigo Holdings, LLC,” and that it “is not aware of any such documents relating to a

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loan involving Sarbjit Bains.” Dkt. #32 at Ex. C. Plaintiff has obtained evidence of the four loans

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from third party subpoenas and argues that the explanations given for the JJB Holdings and

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Indigo’s general contention that responses require coordination between multiple third parties is
inapplicable, as this request for production requests only communications in which Indigo participated.

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Request for Production No. 31 refers to J&B Holdings, but both Indigo’s supplemental response
and plaintiff’s reply brief refer to JJB Holdings. The Court infers this was a typo and these entities are
one and the same.
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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Gurminder Athwal loans are contradicted by defendants’ claim that plaintiff’s share remains

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intact. Plaintiff also argues that this response ignores a total of $310,000 in cancelled checks to

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JJB Holdings for “loan payments.” Plaintiff has established that Indigo’s responses are deficient.

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Indigo must produce all responsive documents for all pertinent loans.

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C. Other Deficiencies

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The Court recognizes that plaintiff had limited space in her reply brief and that she

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mentions interrogatories and requests for production in her proposed order that are not

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specifically discussed in the memorandum. See Dkt. #31-1. While the Court cannot rule on the

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sufficiency of these productions without more information, they are not exempt from discovery

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standards. “The purpose of discovery is to provide a mechanism for making relevant information

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available to the litigants ... Thus the spirit of the rules is violated when advocates attempt to use

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discovery tools as tactical weapons rather than to expose the facts and illuminate the issues ...”

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Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142,

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1148–49 (9th Cir. 2005) (citing Fed. R. Civ. P. 26 Advisory Committee Notes regarding 1983

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Amendment). The evidence submitted to the Court shows that Indigo and defendant Nijjer have

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repeatedly violated the spirit of the discovery rules by delaying disclosure and omitting

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information. Discovery production is not a mere courtesy to other parties but rather a

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requirement of federal litigation, enforced by the Court. Defendants’ lackadaisical approach to

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providing discovery at its convenience is unacceptable. Defendants shall supplement all of its

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deficient discovery responses, whether or not they have been addressed by number, as to meet

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the standards expressed in the Federal Rules of Civil Procedure and this Order.

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II. Attorney’s Fees

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Pursuant to Fed. R. Civ. P. 37(a)(5), if a motion to compel “is granted – or if the

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disclosure or requested discovery is provided after the motion was filed – the court must, after

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giving an opportunity to be heard, require the party or deponent whose conduct necessitated the

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motion . . . to pay the movant’s reasonable expenses incurred in making the motion, including
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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attorney’s fees.” An award of fees will not be made if the movant failed to in good faith meet

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and confer, the nondisclosure was substantially justified, or “other circumstances make an award

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of expenses unjust.” Plaintiff requests an award of costs and fees. Dkt. #27 at 12.

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Defendants’ meritless objections, failure to provide complete responses, and repeated

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failure to respect deadlines necessitated the motion to compel. Plaintiff made a good faith effort

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to obtain discovery without involvement of the Court by participating in a discovery conference

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and agreeing to four separate extensions of the original November 3, 2017 response date.

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Defendants state that before plaintiff brought the motion to compel they had already produced

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material through informal discovery and provided a “specific time frame” for supplementing

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discovery. Defendants maintain that plaintiff lacked good faith when she filed the motion to

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compel before the “specific time frame” defendants unilaterally provided had passed and while

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defendants’ attorneys were known to be on vacation. Dkt. #29 at 7-8. Plaintiff need not wait

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forever, and defendants have still failed to complete their discovery obligations. Dkt. #31 at 3. It

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was therefore reasonable for plaintiff to involve the Court.

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Defendants next argue that their delay was substantially justified because plaintiff’s

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discovery requests are broad in scope and request information and documents to which they lack

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easy access. Locating the responsive documents and information was not so onerous that they

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could not complete discovery in the almost three months between when they were served with

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plaintiff’s discovery requests on October 4, 2017 and the fourth extended deadline on December

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22, 2017. See Dkt. # 28 at Ex. B, p. 26; Ex. C, p. 17; Ex. F, p. 1; Ex. G, p. 1. Had defendants not

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waited until the last minute, they could have avoided conflict with the holiday season. The

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impetus of this dispute is defendants’ refusal to provide plaintiff with Indigo records to which

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she claims she is entitled, and defendants have repeatedly failed to timely fulfill their discovery

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obligations. Their failure was not justified.

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Finally, defendants argue that an award of costs would be unjust because plaintiff could
have obtained much of the information by deposing defendants’ CPA. Defendants cannot avoid
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MOTION TO COMPEL

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their own discovery obligations by choosing the manner in which plaintiff should have ordered

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her discovery. Even if plaintiff already had some of the information sought or it could have been

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obtained from other sources, this alone does not excuse defendants’ failure to fulfill their

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discovery obligations. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1117 (9th Cir.

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2004).

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Defendants also argue that an award of costs would be unjust because plaintiff has

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“refused to reciprocate defendants’ openness in informal discovery,” particularly in supporting

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her ownership interest in Indigo. Dkt. #29 at 9; Dkt. #29-1 at ¶ 3. The Court rejects this

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argument. Discovery is not conducted on a tit-for-tat basis. Nat'l Acad. of Recording Arts &

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Scis., Inc. v. On Point Events, LP, 256 F.R.D. 678, 680-81 (C.D. Cal. 2009); Fed. R. Civ. P.

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26(d)(2) ("[M]ethods of discovery may be used in any sequence; and . . . discovery by one party

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does not require any other party to delay its discovery.”). If defendants feel that plaintiff

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responded incompletely to discovery requests involving the basis for her claimed ownership

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interest in Indigo, they could file their own motion to compel. That belief does not excuse

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defendants’ failure to fulfill their own discovery obligations, however.

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Plaintiff is entitled to her reasonable expenses incurred in making the motion, including

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attorney’s fees.5

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III. Conclusion

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For the foregoing reasons, plaintiff’s motion to compel (Dkt. # 27) is GRANTED. The

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discovery deadline passed on February 5, 2018. All responsive information and documents

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should already be in plaintiff’s possession. To the extent that they have not already done so, the

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defendants shall, within fourteen days of this order, provide full and complete responses to

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Interrogatories Nos. 1, 2, 6, 8, and 9, Requests for Production Nos. 27, 31, 32, 33, and 34. They

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also shall comply with all other discovery requests for which defendants are still in the process

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Plaintiff is not, however, entitled to fees and costs in following up on the outstanding
discovery. Only fees incurred in making the motion are recoverable. See Fed. R. Civ. P. 37(a)(5).
ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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of gathering responsive information or otherwise must supplement to comply with the Federal

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Rules of Civil Procedure and the standards set forth in this Order. To the extent Indigo withholds

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documents and/or redacts confidential information, a privilege log sufficient to allow plaintiff

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and the Court to evaluate the claim of privilege must be provided within the time allowed. At a

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minimum, the privilege log must identify the nature of the document, its date, the parties thereto

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(and their connection to this litigation, if relevant), the privilege that justifies the failure to

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disclose, and any other information necessary to show that the privilege applies.

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Plaintiff shall, within seven days of the date of this Order, submit evidence regarding the
reasonable fees and costs incurred in making this motion.

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Dated this 5th day of March, 2018.

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A

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Robert S. Lasnik
United States District Judge

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ORDER GRANTING PLAINTIFF’S
MOTION TO COMPEL

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