Karma Automotive LLC v. Lordstown Motors Corp. et al Case No. SA CV 20-02104-JVS (DFMx) United States District Court, C.D. California Filed September 15, 2021 Counsel Robert Brian Milligan, Daniel Joshua Salinas, Sierra J. Chinn-Liu, Seyfarth Shaw LLP, Usama Kahf, Fisher and Phillips LLP, Sarina Saluja, Loeb and Loeb LLP, Los Angeles, CA, Andrew C. Crane, Karl R. Lindegren, Sean T. Kingston, Fisher and Phillips LLP, Irvine, CA, Michael P. Elkon, Pro Hac Vice, Fisher and Phillips LLP, Atlanta, GA, Katelyn R. Miller, Pro Hac Vice, Kevin J. Mahoney, Pro Hac Vice, Michael D. Wexler, Pro Hac Vice, Seyfarth Shaw LLP, Chicago, IL, Jesse M. Coleman, Pro Hac Vice, Seyfarth Shaw LLP, Houston, TX, for Karma Automotive LLC. Ryan David Fischbach, William Wayne Oxley, Baker and Hostetler LLP, Los Angeles, CA, Anthony Bernard Ponikvar, Pro Hac Vice, Terry M. Brennan, Pro Hac Vice, Thomas R. Lucchesi, Pro Hac Vice, Baker and Hostetler LLP, Cleveland, OH, for Lordstown Motors Corp., Steve Burns, John Lefleur, Darren Post, Rich Schmidt, Roger J. Durre, Hong Xin Huan. Thomas R. Lucchesi, Baker and Hostetler LLP, Cleveland, OH, William Wayne Oxley, Ryan David Fischbach, Baker and Hostetler LLP, Los Angeles, CA, for Bei Qin, Steven Punak, Christopher Kim, Dan Zhihong Huang, Punak Engineering, Inc. McCormick, Douglas F., United States Magistrate Judge Proceedings: (IN CHAMBERS) Order re Motions to Compel (Dkts. 145, 146) A. Plaintiff's Motion to Compel (Dkt. 145) *1 Plaintiff moves for an order compelling Defendants to provide answers to Plaintiff's Interrogatory Nos. 5, 6, 9, and 12 to Defendant Roger J. Durre and Interrogatory Nos. 6, 9 and 12 to Defendant Hong Xin Huan. See Dkt. 145. Durre and Huan served initial responses on May 28, 2021, and supplemental responses on August 12. Defendants filed an opposition. See Dkt. 153. The Motion is granted in part and denied in part. Rule 33 governs the use of interrogatories as a discovery device in federal courts. Rule 33(d) allows a party to answer an interrogatory by specifying records. The records must be specified in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could, and the burden of ascertaining the answer must be substantially the same for both sides. If voluminous documents are produced under Rule 33(d), they must be accompanied by indices designed to guide the searcher to the documents responsive to the interrogatories. See O'Connor v. Boeing N. Am., Inc., 185 F.R.D 272, 278 (C.D. Cal. 1999). Interrogatory No. 5 to Durre requests he identify all communications relating to his “leading or potentially leading LMC's ‘west coast’ business.” Plaintiff argues that the identification of 144 documents in Defendants' supplemental response is not sufficient because it does not include anything from March 26 to July 21, 2020, when Durre “began to conspire with LMC to lead LMC's west coast infotainment team.” Plaintiff also notes that Durre identified several non-email documents in isolation. Defendants respond that these documents relate to Durre's hypothetical company, which was not affiliated with LMC. The Court has reviewed the response and finds that a complete answer to the interrogatory is not readily ascertainable from the documents as required by Rule 33(d). Plaintiff should not have to guess which documents are connected to LMC and which are not. Plaintiff's Motion as to Durre Interrogatory No. 5 is GRANTED and Durre is ORDERED to provide a supplemental narrative response within FOURTEEN (14) days. Interrogatory No. 6 to Durre and Huan requests they identify “all actions [they] took on behalf of LMC while [they were] still employed by Karma.” Plaintiff argues that Durre and Huan's response—directing Plaintiff to previously produced emails sent from or received from their LMC email accounts—is noncompliant because it does not include communications such as text messages and personal emails. Defendants respond that they interpret “actions” to concern only emails sent to or received from an LMC email address. The Court sees no reason why Interrogatory No. 6 would be limited in the manner Defendants suggest. Plaintiff's Motion as to Interrogatory No. 6 is GRANTED and Defendants are ORDERED to provide a supplemental narrative response within FOURTEEN (14) days that details what actions Defendants took while employed. Interrogatory No. 9 to Durre and Huan requests they identify all documents they obtained or created while employed at Karma, but did not return upon their resignation. In their supplemental responses, Huan identified 98 documents and Durre identified 78 documents. Plaintiff argues that Durre and Huan's responses must be incomplete because they do not reference files downloaded to their external storage devices, emailed to personal accounts, or saved on their personal cloud accounts. Defendants respond that those documents have either been produced through forensic images of the relevant devices, or soon will be in accordance with the parties' forensic protocol. Plaintiff's concerns implicate merits questions that this Court is not in a position to resolve. Nevertheless, it is not Plaintiff's responsibility to sift through the forensic images for information that Durre and Huan more readily have access to. Plaintiff's Motion as to Interrogatory No. 5 is GRANTED and Defendants are ORDERED to provide a supplemental narrative response within FOURTEEN (14) days. *2 Interrogatory No. 12 to Durre and Huan requests they identify the documents they deleted from any personal external storage devices after learning about the litigation. Plaintiff argues that Durre and Huan's responses are deficient because they both plead ignorance about the specific documents they deleted. Plaintiff suggests Durre and Huan review the forensic images and reports of their external devices to identify with sufficient detail the specific documents they intentionally deleted. Defendant responds that this demand is “ridiculous.” The Court will not require Durre and Huan to review the forensic data. Plaintiff's Motion as to Interrogatory No. 5 is DENIED. B. Defendants' Motion to Compel (Dkt. 146) Defendants move for an order compelling Plaintiff to respond to Defendants' RFP Nos. 39-44 by producing all images of all devices used for Karma-related business by six individual Defendants that previously worked at Karma. See Dkt. 146. Plaintiff filed an opposition. See Dkt. 151. Federal Rule of Civil Procedure 34 allows a party to request “to inspect, copy, test, or sample,” among other things, “data or data compilations ... stored in any medium ....” The Advisory Committee noted that Rule 34 “is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances.” Federal Rule of Civil Procedure 26, in turn, limits the scope of discovery, specifically stating that a party “need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). Upon a showing that the information is not reasonably accessible because of undue burden or cost, “the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C).” Id. The RFPs may seek information relevant to rebut Plaintiff's claim that Defendants misappropriated trade secrets through access to Karma's computer systems. See FAC ¶¶ 317a (alleging that Durre encouraged and assisted other Individual Defendants to “misappropriate Karma's Confidential Information and Trade Secrets through access to Karma's computer systems”), 317b (alleging that Individual Defendants used “Karma's computer systems beyond their level of authorization prior to departure from Karma ... to take with them to LMC Karma's Confidential Information and Trade Secrets for use in developing competing products at LMC.”). However, the RFPs as written are overbroad and not proportional to the needs of the case. RFP No. 39, for example, requests “An image or copy of all DEVICES used by Rodger ‘Joe’ Durre for conducting KARMA-related business activities.” The RFP fails to specify a timeframe or the type of information that would relate to Karma's claims against Durre. The other RFPs have the same issue. Without such a reasonable specification of what documents Defendants require, providing wholesale access to Plaintiff's devices would entail an undue burden, especially in this trade secrets case. Accordingly, Defendants' motion is denied. Defendants may decide to issue additional, targeted RFPs. If so, the Court will revisit this issue and determine, among other things, whether Plaintiff's devices should be subject to something similar to the Forensic Inspection Protocol Agreement entered by Order of this Court on July 2, 2021.