Juli Adams, Plaintiff, v. The Hartz Mountain Corporation, Defendant Case No. C14-1174RSL Signed April 27, 2015 Counsel Daniel E. Gustafson, Gustafson Gluek PLLC, Minneapolis, MN, Patrick Howard, Simon Bahne Paris, Saltz, Mongeluzzi, Barrett & Bendesky, PC, Philadelphia, PA, Thomas E. Loeser, Anthony D. Shapiro, Hagens Berman Sobol Shapiro LLP, Seattle, WA, for Plaintiff. Andrea L. Calvaruso, Jonathan K. Cooperman, Kelley Drye & Warren, New York, NY, Carson R. Cooper, Jennifer McMillan Beyerlein, Mark G. Beard, Lane Powell PC, Seattle, WA, for Defendant. Lasnik, Robert S., United States District Judge ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL *1 This matter comes before the Court on “Plaintiff's Motion to Compel.” Dkt. # 43. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds as follows: (1) Electronically-Stored Documents Before a motion to compel production can be filed, the parties must meet and confer regarding any objections asserted in an effort to resolve the matter without Court intervention. Fed. R. Civ. P. 37(a)(1); LCR 37(a)(1). The meet and confer requirements are imposed for the benefit of the Court and the parties. They are intended to ensure that parties have an inexpensive and expeditious opportunity to resolve discovery disputes and that only genuine disagreements are brought before the Court. With regards to the production of electronically-stored information (“ESI”), compliance with the meet and confer requirements would have involved face-to-face or telephonic communications regarding search terms, document custodians, and the data sources to be searched. After the parties' initial conference, plaintiff recognized that they would have to meet again regarding an ESI protocol, and the record shows that the parties were exchanging proposals via email in January and February 2015. There is no indication that a face-to-face or telephonic conference regarding the ESI production was held, and the Court finds that plaintiff precipitously ended any further opportunity for the parties to reach agreement without Court intervention when she filed this motion on February 26, 2015.[1] The motion to compel is therefore denied as to the ESI issue for failure to comply with Fed. R. Civ. P. 37(a)(1) and LCR 37(a)(1). (2) Hard-Copy Documents Defendant's contention that it has been diligent in producing responsive hard-copy documents is not supported by the record. “A party to whom [a request for production of documents] is directed must respond in writing within 30 days after being served.” Fed. R. Civ. P. 34(b)(2)(A). “The response must provide access to the information requested, either by permitting inspection or by producing documents” unless an “objection to the request, including the reasons” is made. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for the Dist. of Mont., 408 F.3d 1142, 1147 (9th Cir. 2005); Fed. R. Civ. P. 34(b)(2)(B). Defendant's initial responses to the requests for production consisted of a few well-founded objections, a number of frivolous assertions regarding burden, breadth, and vagueness, and the promise that defendant “will undertake a reasonable search for responsive documents and will produce non-privileged documents ... to the extent they exist and can be reasonably located.” Dkt. # 44-1. The promised search and production should have been done during the thirty-day period allowed by the Rule, however, and defendant offers no justification for its failure to conduct the search in a timely manner. *2 Plaintiff, not surprisingly, found the responses insufficient and scheduled a meet and confer for January 21, 2015. While a few outstanding issues remained, defendant abandoned most of its objections and agreed to begin the production of documents within two weeks. Dkt. # 44-3. It did not do so, instead waiting almost a month before producing 68 pages of documents, which it describes as “the majority of Hartz' hard-copy document production.” Plaintiff notified defendant of her frustration and disappointment with the “paltry” production, and this motion followed three days later. Dkt. # 46 at 29.[2] Defendant has not been diligent in meeting its discovery obligations. Given this background, the Court rejects defendant's secondary argument that the motion to compel production of hard-copy documents must be denied for failure to meet and confer. The parties did confer, defendant acknowledged that it had to produce the requested documents and promised to do so by a certain date, but instead produced only a portion of the responsive documents in an untimely manner. Defendant offers no case law or authority that would foist upon plaintiff the onus of initiating another conference simply to point out that defendants had not done what they said they were going to do. The failure to produce was acknowledged, the production remained incomplete at the time the motion was filed, and there was nothing to be gained from requiring another meet and confer. (3) Request for Production No. 20 During the meet and confer that was held on January 21, 2015, plaintiff agreed to modify Request for Production No. 20, which now seeks: ANY AND ALL COMMUNICATION with ROVIO related to, discussing, or referencing, “ANGRY BIRDS,” and/or any product (including intellectual property) marketed or sold under that name or contemplated to be marketed or sold under that name, including but not limited to, the Intellectual Property; any agreements or contracts; marketing; royalties; and/or sales. Dkt. # 44-3 at 2. Defendant professes to be confused by the request and its various references to intellectual property. If confusion actually exists, it can be only in a theoretical sort of way: when looking at a particular document, determining whether it is responsive to Request for Production No. 20 will not be difficult. Defendant also argues that the request is duplicative because defendant has already agreed to produce communications, including those with Rovio, regarding plaintiff, the License Agreement, and the ANGRY BIRDS mark, as well as financial data showing revenues from the sale of pet toys pursuant to the license agreement with Rovio and payments made to Rovio. Dkt. # 45 at 6-7. The only information defendant is willing to produce in response to RFP No. 20 is “the license agreement with Rovio and communications surrounding its negotiation and execution.” Dkt. # 45 at 7. Defendant has waived any objection related to cumulativeness or duplication, however: it was not raised in response to the original, much broader, version of RFP No. 20 (Dkt. # 44-1 at 14) nor in response to the revised request (Dkt. # 44-4 at 1). To the extent defendant is arguing that the information sought is irrelevant, the Court disagrees. Defendant acknowledges that some additional production is required by RFP No. 20, but seeks to limit it to evidence regarding the negotiation of the license agreement with Rovio. The Court finds that the information described in revised RFP No. 20, which would include documents related to product design, is relevant to plaintiff's claims. A full and complete search for responsive information is required. (4) Request for Production No. 21 *3 In order to identify appropriate document custodians for the search and production of ESI, plaintiff has requested “DOCUMENTS sufficient to show YOUR corporate structure and organization for the period covering May 1, 2006 to the present.” Dkt. # 44-1 at 14. At the meet and confer on January 21, 2015, defense counsel promised to determine whether defendant had corporate structure/organizational charts and whether production was feasible. Dkt. # 44-3 at 2; Dkt. # 45 at 7. Such charts exist, and defendant does not assert, much less show, that their production would be burdensome or unfeasible. Despite the fact that it has and can easily produce responsive documents, defendant unilaterally decided that only the charts describing the structure of its marketing department are relevant to plaintiff's claim. Dkt. # 45 at 8. The scope of discovery in federal court is broad and reaches “any nonprivileged matter that is relevant to any party's claim or defense.” Republic of Ecuador v. MacKay, 742 F.3d 860, 866 (9th Cir. 2014); Fed. R. Civ. P. 26(b)(1). Plaintiff has shown that the request seeks relevant information, and no privilege has been claimed. To the extent defendant seeks to limit the discovery, it has the burden of showing why discovery should not be allowed. Lauer v. Longevity Med. Clinic PLLC, 2014 WL 5471983, at * 3 (W.D. Wash. Oct. 29, 2014). Defendant has not done so. There is no reason to believe that other departments, such as product development/design, finance, and/or legal – were not involved with Rovio's use of the ANGRY BIRDS mark. Plaintiff's evaluation of potential document custodians should not be circumscribed by defendant's rather arbitrary determination that this case is only about marketing. (5) Award of Fees The Court finds that an award of fees in either party's favor would be unjust. The motion was both premature and meritorious, while defendant's nondisclosure was both excused and unjustified. In these circumstances, the Court declines to shift fees in either direction. For all of the foregoing reasons, plaintiff's motion to compel (Dkt. # 43) is GRANTED in part and DENIED in part. The motion to compel the immediate production of ESI is DENIED for failure to comply with Fed. R. Civ. P. 37(a)(1) and LCR 37(a)(1). Defendant shall, within seven days of the date of this Order, conduct a full and complete search of its hard-copy documents and produce any responsive documents consistent with the terms of this Order. Dated this 27th day of April, 2015. Footnotes [1] In her reply, plaintiff suggests that defendant refused to meet and confer regarding ESI issues and that the urgency created by the discovery deadline excused any non-compliance with Rule 37(a). The record does not support these arguments. Although the need to establish ESI procedures was clear from the beginning of the case (Dkt. # 14 at 3), the parties apparently agreed to postpone any discussion of the issue until discovery was well underway (Dkt. # 23 at 11). Plaintiff waited more than a month to identify deficiencies in defendant's production, and it was only in that context that the parties first turned to the nuts and bolts of producing ESI. Proposals were exchanged and conversations were had both before and after defendant expressed doubt that additional discussions would be productive. Plaintiff chose to file this motion approximately one month after the issue was first broached and without meeting and conferring. The discovery cutoff date of September 6, 2015, remains far too remote to account for or justify the failure to comply with Rule 37. [2] In response to plaintiff's motion, defendant again promised to produce documents. Dkt. # 45 at 3.