Michael Ho v. Marathon Patent Group, Inc. et al Case No. 5:21-cv-339-PSG (SPx) United States District Court, C.D. California Filed November 22, 2021 Counsel David W. Affeld, Brian R. England, Damion D. D. Robinson, Affeld Grivakes LLP, Gregg D. Zucker, Foundation Law Group LLP, Los Angeles, CA, for Michael Ho. Kimberly Marie Jansen, Adelyn Mary Vigran, CDF Labor Law LLP, Todd R. Wulffson, Lindsay Ann Ayers, Carothers DiSante and Freudenberger LLP, Irvine, CA, Desiree J. Ho, CDF Labor Law LLP, San Diego, CA, for Marathon Patent Group, Inc. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting in Part and Denying in Part Plaintiff's Motion to Compel [59] I. INTRODUCTION *1 On November 3, 2021, plaintiff Michael Ho filed a motion to compel defendant Marathon Patent Group, Inc. (now known as Marathon Digital Holdings, Inc.) to provide further responses to two document demands (“RFPs”). Docket No. 59. The parties' arguments are set forth in a joint stipulation (“JS”). Plaintiff's arguments are supported by the declaration of his counsel Gregg Zucker (“Zucker Decl.”) and accompanying exhibits. Defendant's arguments are supported by the declaration of its counsel Kimberly M. Jansen (“Jansen Decl.”) and exhibits thereto. Plaintiff filed a supplemental memorandum (“P. Supp. Mem.”) on November 9, 2021, which is supported by the declaration of his counsel Damion Robinson (“Robinson Decl.”) and one additional exhibit. On the same day, defendant filed a supplemental memorandum (“D. Supp. Mem.”) supported by the supplemental declaration of its counsel (“Jansen Supp. Decl.”). The court found a hearing on the motion would not be of assistance, and so vacated the hearing scheduled for November 23, 2021. The court now grants in part and denies in part plaintiff's motion to compel for the reasons discussed below. II. BACKGROUND This action involves a breach of contract dispute in which plaintiff alleges defendant violated a binding, mutual non-disclosure agreement (“NDA”) between the parties. Specifically, plaintiff claims he obtained information that an electricity producer, Beowulf Energy, had available energy to sell that could power defendant's bitcoin mining operation. See Compl. ¶ 4. Before providing such information to defendant, including the identity of the electricity producer, the parties agreed that defendant would maintain the confidentiality of the information so as to protect plaintiff's expected profits and participation in any transaction involving defendant and Beowulf. Id. ¶¶ 6-7. Despite the NDA between the parties, plaintiff alleges defendant transacted business with Beowulf and involved third parties without plaintiff. Id. ¶ 8. The case is set for trial on March 3, 2022. The deadline to complete discovery is November 24, 2021. III. DISCUSSION Plaintiff seeks an order compelling defendant to provide further responses to RFP numbers 25 and 26, as well as imposing $1,000 in sanctions under Federal Rule of Civil Procedure 37(a)(5) against defendant and its counsel. Defendant opposes the motion and seeks sanctions against plaintiff for abusing the discovery process. Rule 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L.Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)). *2 A party may request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed. R. Civ. P. 34(a). Alternatively, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 34(b)(2)(A)-(B). In moving to compel, the moving party has the burden of demonstrating “actual and substantial prejudice” from the denial of discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002); Fed. R. Civ. P. 37(a)(3)(B)(iv). A. RFP No. 25 RFP number 25 seeks all documents “reflecting phone calls regarding Beowulf Energy from July 1, 2019 to July 1, 2020 where such phone calls involved Defendant's representatives, including without limitation Merrick Okamoto.” JS at 5. Defendant certifies it has produced all non-privileged records responsive to RFP number 25. D. Suppl. Mem. at 2; Jansen Suppl. Decl. ¶ 2. In fact, contrary to plaintiff's allegations in the JS that defendant had yet to produce any documents, defendant claims it produced more than 400 pages of responsive evidence prior to the motion's filing. See JS at 7-8. Plaintiff does not dispute this in his supplemental brief. Thus, the court can only conclude that plaintiff moved to compel on RFP number 25 without first adequately meeting and conferring with defendant. The court recognizes that plaintiff probably did so because of the fast-approaching discovery cut-off. Nonetheless, there appears to be no basis to move to compel where defendant has produced all responsive documents. Accordingly, plaintiff's motion to compel on RFP number 25 is denied as moot. B. RFP No. 26 RFP number 26 requests: All billing records from providers of phone services, including all landline and cell phones for you and your representatives, such as Merrick Okamoto, showing the phone numbers, dates, and length of calls, from July 1, 2019 to July 1, 2020, that are relevant to this case, including without limitation, calls involving any of the following: Michael Ho, Bryan Pascual, John O'Rourke, or any representative of Beowulf. You may redact information for phone calls that are not relevant to this case. JS at 8. Defendant objected on the grounds of vagueness, ambiguity, lack of possession, custody, or control, overbreadth, privilege, duplicative discovery, undue burden, oppression, harassment, relevance, proportionality, and privacy. See JS at 8-9. As an initial matter, defendant argues plaintiff's motion is premature. Although it is a close call, the court disagrees. At the time plaintiff filed his motion, defendant still had not committed to producing all records responsive to this request. See Jansen Decl., Ex. F at 1. Defendant asked plaintiff to withdraw his motion and resume negotiations once its phone service providers provided the requested records. See id. Normally, this would have been the proper course of action. But doing so in this case would have prevented plaintiff from moving to compel at all given that the discovery cut-off is November 24, 2021. For this reason, the court will consider plaintiff's motion at this time. As for defendant's objections, the court first overrules the vagueness and ambiguity objections, which defendant failed to explain and support, except to point to the term “representatives.” See DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” (citations omitted)). In context here, “representatives” is neither vague nor ambiguous. *3 Second, the court sustains defendant's overbreadth objection in part only. It appears plaintiff is only interested in phone numbers, dates, and length of calls, but the request may be read to seek all of the information included in a phone billing record. To the extent plaintiff seeks the latter, he has not shown why all of that information is relevant. Accordingly, the court narrows the request to only phone numbers, dates, and length of calls. This data is relevant because this case is all about communications and, most importantly, when they happened. Specifically, the phone records would tend to corroborate or contradict defendant's claim that it was already in discussions with the alleged NDA interlopers. Thus, plaintiff's request for a single year of call data leading up to the signing of the NDA and immediately after is reasonable and narrowly tailored. Defendant argues it has already disclosed the same information that would be contained in the phone records through other means. For example, defendant notes it is known that Okamoto had a phone call with O'Rourke on June 3, 2020 because there is a text message confirming the call. JS at 15-16. But defendant does not argue that every relevant call is so memorialized in writing. Thus, the phone records are likely to contain evidence of additional communications that cannot be obtained through other documents such as text messages. Third, defendant object to the request to the extent it seeks information protected by the attorney-client privilege, and then argued in the JS that RFP number 26 fails to exclude communications protected by the attorney work product doctrine. JS at 8-9, 16. The court cannot see how either applies here. The attorney-client privilege protects confidential communications between a client and an attorney: (1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. U.S. v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citations omitted). The work product doctrine is a qualified privilege that protects evidence prepared by a party or his representative in anticipation of litigation. Yaroshinsky v. City of L.A., 2020 WL 6048177, at *4 (C.D. Cal. Sept. 15, 2020) (quoting U.S. v. Sanmina Corp., 968 F.3d 1107, 1119 (9th Cir. 2020)). “At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.” U.S. v. Nobles, 422 U.S. 225, 238, 95 S. Ct. 2160, 45 L.Ed. 2d 141 (1975). Defendant's argument attorney-client privilege or work product doctrine applies here is conclusory and unsupported. RFP number 26 does not seek the substance of communications between anyone, much less confidential communications between an attorney and client. It also does not ask for anything that could appear to reveal legal theories or attorney impressions and opinions, and defendant does explain how it could. Phone numbers, dates of calls, and length of those calls are not protected by the attorney-client privilege or work product doctrine. The court therefore overrules defendant's privilege objection. Fourth, defendant's undue burden, oppression, and harassment objections are speculative and unpersuasive. Defendant predicts that it will take hours of attorney time to “identify phone numbers associated with the witnesses identified in the request and to redact irrelevant information[ ] on the grounds of privacy and other.” JS at 16. But that kind of work can be done by a non-attorney. Additionally, plaintiff claims, and defendant does not disagree, that only twelve or so phone bills are at issue. See JS at 13. Even if an attorney had to process this production on his or her own, the court finds that plaintiff's request is proportional to the needs of the case. As previously noted, the requested records are relevant and important to the resolution of this multi-million dollar case. See Compl. (claiming damages of at least $120,000,000). Moreover, defendant has exclusive access to the requested records, and it does not argue that it lacks the resources to respond to the request. Thus, on balance, the court finds that the likely benefit of the phone records outweighs the minimal burden and expense associated with their production. *4 Fifth, defendant's insistence that it does not have control over any records it does not currently possess is contrary to law. Even if defendant does not currently possess the requested phone records, it has control over them if it has “the legal right to obtain [them] upon demand.” U.S. v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). To be clear, defendant did not “go above and beyond its obligations by requesting its service carrier provide records.” JS at 15. That was its discovery obligation. Accordingly, the court orders defendant to inform plaintiff of its efforts to secure the phone records, and to collaborate on getting the documents as soon as possible, if it has not already done so. Finally, defendant's privacy objection is overruled as to phone numbers, dates, and length of calls. Courts have recognized that individuals have a reduced privacy interest in their basic contact information. See Artis v. Deere & Co., 276 F.R.D. 348, 353 (N.D. Cal. 2011) (“Further, the privacy interests at stake in the names, addresses, and phone numbers must be distinguished from those more intimate privacy interests such as compelled disclosure of medical records and personal histories.”); Thrasher v. CMRE Fin. Servs., Inc., 2015 WL 1138469, at *3 (S.D. Cal. Mar. 13, 2015) (describing production of a call list containing contact information as not constituting “a serious invasion of privacy”). Plaintiff's need for the discovery outweighs any such minimal privacy interests, especially since he has agreed to treat the records as confidential and subject to the protective order in this case. For these reasons, the court grants plaintiff's motion as to RFP number 26. C. Sanctions Are Not Warranted Both parties seek sanctions under Rule 37(a)(5). Neither is entitled to them. Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. The court here finds sanctions are not warranted against either plaintiff or defendant. Plaintiff did not make a good faith effort to resolve his dispute concerning RFP number 25, forcing the court to spend judicial resources on a moot issue. On the other hand, defendant's position as to RFP number 26 was not substantially justified, although the court recognizes defendant has taken steps to comply with the request. As such, the requests for sanctions are denied. IV. ORDER IT IS THEREFORE ORDERED that plaintiff's motion to compel (docket no. 59) is granted in part and denied in part as set forth above.