KST Data, Inc. v. DXC Tech. Co., et al Case No. 2:17-cv-7927-SJO (SKx) United States District Court, C.D. California Filed October 11, 2018 Counsel Ashley D. Bowman, Nicole R. Van Dyk, Naeun Rim, Gary S. Lincenberg, Bird Marella Boxer Wolpert Nessim Drooks Lincenberg and Rhow, Los Angeles, CA, for KST Data, Inc. Brian C. Vanderhoof, Brian C. Vanderhoof, LeClairRyan LLP, Los Angeles, CA, Attison L. Barnes, III, Wiley Rein LLP, Washington, DC, for DXC Tech. Co., et al. Kim, Steve, United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART ES' MOTION TO COMPEL AGAINST KST (ECF 104) *1 Defendant/Counterclaimant Enterprise Services LLC (ES) moves to compel Plaintiff/Counter-Defendant KST Data, Inc. to respond to interrogatories and produce documents in response to discovery that ES served on KST in May 2018. (ECF 104). The motion to compel is granted in part and denied in part.[1] 1. KST's Damages ES's motion to compel further responses to Interrogatory No. 4 is granted. By no later than October 22, 2018, KST shall disclose in a verified response the amounts of any additional categories of damages it intends to claim, if any, other than the amounts from the specific purchase orders already disclosed in earlier verified responses. (ECF 105-1 at 12-16). 2. Business Relationship between KST and DME For Interrogatory Nos. 16 and 17, ES's motion to compel further responses is denied. KST provided verified supplemental responses to those interrogatories (ECF 105-19 at 13-14), and ES may obtain any additional information it seeks through other discovery methods. For RFP No. 15, ES's motion to compel is denied to the extent it seeks documents beyond what KST has agreed to produce. (ECF 105-1 at 26; ECF 105-18 at 3-4). KST shall produce those documents it has agreed to produce by no later than October 22, 2018. See Fed. R. Civ. P. 34(b)(2)(B) (Dec. 1, 2015). Finally, ES's motion to compel for RFP No. 17 is denied. 3. KST's Suspension and Debarment ES's motion to compel for RFP No. 35 is denied, but its motion to compel for RFP No. 36 is granted. KST shall produce documents responsive to RFP No. 36 by no later than October 22, 2018, subject to the protective order in this case. Neither protection for confidential settlement discussions or government deliberative processes precludes discovery of the requested materials. See, e.g., First Resort, Inc. v. Herrera, 2014 WL 988773, at *5 (N.D. Cal. Mar. 10, 2014) (deliberative process privilege must be asserted by government); United States v. Rozet, 183 F.R.D. 662, 665 (N.D. Cal. 1998) (deliberative process privilege “belongs only to the [government]; private parties can neither assert nor waive the privilege”); Seariver Mar., Inc. v. Superior Court, 2006 WL 2105431, at *4 (Cal. Ct. App. July 28, 2006)(“Evidence Code section 1152 makes evidence of settlement communications inadmissible at trial, but section 1152 is not one of the statutorily defined privileges found in the Evidence Code.”). 4. KST's Financial Performance on the ACES Contract ES's motion to compel for RFP No. 30 is denied without prejudice to renew after KST produces the accounting spreadsheet it has agreed to produce. (ECF 105-1 at 44-45). That spreadsheet shall be produced with a declaration from an accounting database administrator or similarly qualified KST employee that outlines the search, sort, and filter criteria used to export the information in the spreadsheet and other foundational information sufficient to authenticate the spreadsheet's contents. ES's motion to compel for RFP No. 32 is granted but only for financial statements through 2015. See, e.g., M.G. v. Metro. Interpreters & Translators, Inc., 2014 WL 5494910, at *2 (S.D. Cal. Oct. 30, 2014) (compelling limited disclosure of financial statements to interrogatories seeking detailed financial information). KST shall produce these documents by no later than October 22, 2018, subject to the protective order. 5. KST Custodian Email Productions *2 ES's motion to compel for RFP Nos. 6, 8, 10, 12, 14, and 18-24 is granted only to the extent that KST shall search the PST files of Coralette Lua (in the same way it has searched other PST files), perform global de-duplication against all emails already (or to be) produced, and produce the remaining unique emails by no later than October 22, 2018.[2] * * * * * Nothing in this order may be relied on as a reason to extend the fact discovery cut-off date set by the assigned District Judge. Nor may anything in this order justify additional discovery beyond the cut-off date set by the District Judge unless the parties agree to do so without court order. The hearing on this matter noticed for October 24, 2018 is vacated. [1] This order does not address disputed requests that the parties have resolved since the filing of the Joint Stipulation. (ECF 120). This order also does not preclude the parties from reaching different agreements or deadlines on disputed requests without court intervention. Any documents that KST intends to produce, but which are not discussed in this order, must be produced by no later than October 22, 2018, unless the parties agree to a different deadline. [2] Neither parties' objections and positions about the production of ESI from KST custodians is well-founded. The time to discuss ESI issues—meaningfully and substantively—was at the Rule 26(f) conference. See Court's Standing Order on Discovery Disputes, ¶ 5. The Rule 26(f) conference and required discovery plan, especially for ESI, should set the stage for meaningful and substantive conferences of counsel as disputes later arise. It is inexcusable for the parties to be debating such rudimentary issues like the scope of custodian collections and search methodologies just weeks before the fact discovery cut-off. The time for that discussion—and the opportunity for the Court to intelligently intervene—has long passed.