Ecological Rights Foundation, et al. v. Hot Line Construction, Inc Case No. EDCV 20-1108-AB (KKx) United States District Court, C.D. California Filed April 14, 2022 Counsel Brian Orion, Stuart Wilcox, Christopher A. Sproul, Environmental Advocates, San Francisco, CA, Jason Robert Flanders, Austin Joan Sutta, Aqua Terra Aeris Law Group LLP, Oakland, CA, for Ecological Rights Foundation. Joseph A. Salazar, Jr., Ryan J. Matthews, Richard Allen Sullivan, Lewis Brisbois Bisgaard and Smith LLP, Sacramento, CA, for Hot Line Construction, Inc. Kato, Kenly Kiya, United States Magistrate Judge Proceedings: Order GRANTING Plaintiffs' Motion to Compel [Dkt. 133] *1 On March 24, 2022, plaintiffs Ecological Rights Foundation and Santa Barbara Channelkeeper (“Plaintiffs”) filed a motion seeking to compel defendant Hot Line Construction, Inc. (“Hot Line”) to (1) provide a supplemental response to Interrogatory No. 1; (2) provide a written response to Plaintiffs' Second Set of Requests for Production, including a privilege log; and (3) “conduct a supplemental search of all relevant custodians and complete a supplemental document production, in each case, before the close of fact discovery on May 2, 2022” (“Motion to Compel”). Dkt. 133. For the reasons set forth below, Plaintiffs' Motion to Compel is GRANTED. I. BACKGROUND On May 29, 2020, Plaintiffs initiated this action by filing a Complaint against Hot Line for alleged violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1365(a)(1) and Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B). Dkt. 1. On June 8, 2020, Plaintiffs filed a First Amended Complaint against Hot Line and Southern California Edison Company (“SCE”) for alleged violations of the CWA and RCRA. Dkt. 10. On August 18, 2020, Plaintiffs served Hot Line with a First Set of Requests for Production of Documents. Dkt. 133-2, Declaration of Brian Orion (“Orion Decl.”), ¶ 3. On September 9, 2020, Plaintiffs filed the operative Second Amended Complaint (“SAC”). Dkt. 19. The sole remaining claim in the SAC is for Hot Line's alleged violations of RCRA.[1] On September 15, 2020, Plaintiffs served Hot Line with a First Set of Interrogatories. Orion Decl., ¶ 2. On September 23, 2020, Hot Line filed an Answer to the SAC. Dkt. 21. On January 29, 2021, Hot Line served an amended response to Plaintiffs' First Set of Interrogatories. Dkt. 133-1 at 6.[2] On November 24, 2021, Plaintiffs served Hot Line with a Second Set of Requests for Production. Orion Decl., ¶ 4. On January 11, 2022, Hot Line produced 345 pages in response to the Second Set of Requests for Production, but there was no written response and the production did not include any emails. Id., ¶ 4, 9. On January 28, 2022, the Court set a fact discovery cut-off for May 2, 2022. Dkt. 128. On March 3, 2022, Plaintiffs' counsel sent Hot Line's counsel a letter setting forth Plaintiffs' “objections to Hot Line's responses to Plaintiffs' outstanding discovery requests.” Orion Decl., ¶ 5. *2 On March 9, 2022, Plaintiffs' counsel met and conferred with Hot Line's counsel via telephone regarding the outstanding discovery disputes. Id. Hot Line's counsel declined to provide any further response to Interrogatory No. 1 and the parties, therefore, reached an impasse. Id., ¶ 6. On March 11, 2022, Hot Line served a production of documents in response to the First Set of Requests for Production. Id., ¶ 11. While Hot Line's counsel represented Hot Line searched for and produced all documents from January 1, 2010 to the present, the earliest dated document in the production is dated April 4, 2015. Id. On March 24, 2022, Plaintiffs filed the instant Motion to Compel, dkt. 133, with a Joint Stipulation pursuant to Local Rule 37-2, dkt. 133-1. Regarding the Requests for Production, Hot Line states that a written response to the Second Set of Requests for Production is “forthcoming” and it is “in the process of making a supplemental production, and will have done so by the time of the hearing on this Motion.” Dkt. 133-1 at 13, 17. Hot Line does not object to an order setting a deadline for it to respond to the Second Set of Requests for Production or for the supplemental production. Id. On March 31, 2022, Plaintiffs filed a Supplemental Brief representing that (1) Interrogatory No. 1 remains disputed; (2) while Hot Line produced a privilege log on March 28, 2022, (a) there is no indication whether the privilege log relates to the First or Second Set of Requests for Production and (b) Hot Line has not yet served any written response to the Second Set of Requests for Production; (3) while Hot Line made a supplemental production on March 28, 2022, the production is “demonstrably incomplete” and fails to include Bates numbering. Dkt. 134. The matter thus stands submitted. II. LEGAL STANDARD Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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. FED. R. CIV. P. 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C). “The party moving to compel bears the burden of demonstrating why the information sought is relevant and why the responding party's objections lack merit.” Bluestone Innovations LLC v. LG Elecs. Inc., No. C-13-01770 SI (EDL), 2013 WL 6354419, at *2 (N.D. Cal. Dec. 5, 2013). In addition, “[r]elevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)). III. DISCUSSION A. INTERROGATORY NO. 1 1. Applicable Law *3 Federal Rule of Civil Procedure 33 (“Rule 33”) governs interrogatories. See FED. R. CIV. P. 33. “Unless 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.” FED. R. CIV. P. 33(a)(1). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” FED. R. CIV. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” FED. R. CIV. P. 33(b)(4). When “a party fails to answer an interrogatory submitted under Rule 33,” a “party seeking discovery may move for an order compelling an answer[.]” FED. R. CIV. P. 37(a)(3)(B)(iii). 2. Analysis Interrogatory No. 1 seeks “the address of each HOT LINE FACILITY where YOU have stored, maintained, disposed of, or otherwise handled UTILITY POLES within the last five (5) years.” JS at 5. Hot Line's Response states: Defendant objects to this Request on the grounds that it is overbroad, not narrowly tailored, and is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff seeks information that is beyond the scope of the Complaint. Without waiving that objection, and based on meet and confer communications between Plaintiffs' counsel and Defendant's counsel, Defendant responds: The Santa Clarita Facility SCE Pardee Substation Helistop, Santa Clarita, CA 91355 The Santa Barbara Facility 701 Robert Keister Road, Santa Barbara, CA 93117 The Rosamond Facility 3064 75th St West, Rosamond, CA 93560 JS at 6. Plaintiffs argue Hot Line has inappropriately limited its response to the three facilities named in the SAC in disregard of the allegation in the SAC that Hot Line is liable for RCRA violations occurring at “all of the Facilities where Hot Line stores new or used wooden utility poles or cross-arms that are treated the pentachlorophenol (collectively ‘Poles’) and treated wood waste (‘TWW’), including but not limited to, those Facilities set forth on Exhibit 2 (the ‘Hot Line Facilities’),” SAC, ¶ 6. JS at 7-8. Hot Line argues “[t]he parties have now conducted years of discovery ... and have narrowed the parameters of this lawsuit to conditions at a single site—the Goleta facility located on Robert Keister Road.” Id. at 13. Hot Line objects to Plaintiffs' attempted “fishing expedition.” Id. Here, Hot Line's conclusory representation that the parameters of the lawsuit have been narrowed through discovery to a single site, is not relevant to determining whether Interrogatory No. 1 seeks information beyond the scope of the operative complaint. Moreover, while the SAC identifies three specific facilities, the SAC also states that the facilities at issue “includ[e] but [are] not limited to” those three facilities. See SAC, ¶ 6. Therefore, because the SAC clearly does not contain an exhaustive list of the facilities at issue, Interrogatory No. 1 is not overbroad and seeks information relevant to Plaintiffs' claims.[3] Hence, Hot Line's objections are OVERRULED and Plaintiffs' Motion to Compel further response to Interrogatory No. 1 is GRANTED. B. REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Applicable Law *4 Federal Rule of Civil Procedure 34 (“Rule 34”) governs requests for production of documents. FED. R. CIV. P. 34. A party may request documents “in the responding party's possession, custody, or control.” FED. R. CIV. P. 34(a)(1). The responding “must respond in writing within 30 days after being served” 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(b). Alternatively, a party may state an objection to a request, including the reasons. FED. R. CIV. P. 34(b)(2)(A)-(B). “[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper–especially when a party fails to submit any evidentiary declarations supporting such objections.” A. Farber & Partners, Inc., 234 F.R.D. at 188 (citations omitted) (faulting defendant for making “boilerplate objections to almost every single request for production, including broad relevancy objections, objections of ‘overly burdensome and harassing,’ ‘assumes facts not in evidence,’ privacy, and attorney-client privilege/work product protection”). When “a party fails to produce documents or fails to respond that inspection will be permitted ... as requested under Rule 34,” a “party seeking discovery may move for an order compelling ... production[.]” FED. R. CIV. P. 37(a)(3)(B)(iv). “In moving to compel the production of documents, the moving party bears the burden of demonstrating ‘actual and substantial prejudice’ from the denial of discovery.” Grossman v. Dirs. Guild of Am., Inc., No. EDCV 16-1840-GW (SPx), 2018 WL 5914242, at *4 (C.D. Cal. Aug. 22, 2018). 2. Analysis Here, Plaintiffs served Hot Line with the Second Set of Requests for Production on November 24, 2021. Orion Decl., ¶ 4. Accordingly, Hot Line's written response was due on December 24, 2021. FED. R. CIV. P. 34(b)(2). However, Hot Line has not served any written response to Plaintiffs' Second Set of Requests for Production as required by Rule 34(b). Hence, Plaintiffs' Motion to Compel a written response to Plaintiffs' Second Set of Requests for Production, including a privilege log, is GRANTED. In addition, Hot Line does not oppose Plaintiffs' request that it should be required to “conduct a supplemental search of all relevant custodians and complete a supplemental document production.” JS at 17. While it appears Hot Line may have served a supplemental production on March 28, 2022, see dkt. 134, it is unclear whether this is a complete production and Hot Line did not file any supplemental brief indicating that its production is complete. Hence, Plaintiffs' Motion to Compel Hot Line to complete its supplemental production by the May 2, 2022 discovery cut-off is GRANTED. IV. CONCLUSION It is therefore ORDERED: 1) For the reasons set forth above, Plaintiffs' Motion to Compel is GRANTED. 2) Within seven (7) days of the date of this Order, Hot Line shall serve: (a) a supplemental response to Interrogatory No. 1; and (b) a written response to Plaintiffs' Second Set of Requests for Production. 3) No later than May 2, 2022, Hot Line shall complete its supplemental production in response to Plaintiffs' First and Second Requests for Production. Footnotes [1] The SAC plead claims against Hot Line and SCE under both RCRA and the CWA. See dkt. 19. On April 1, 2021, Plaintiffs and Hot Line entered a stipulation to dismiss the CWA claim with prejudice. Dkt. 94. Plaintiffs and SCE subsequently stipulated to the entry of a consent decree to settle all claims, which the Court entered on November 9, 2021. Dkt. 121. Thus, the sole remaining claim in the case is the RCRA claim (Claim 2) against Hot Line. [2] While there is no declaration stating when Hot Line served responses to Plaintiffs' First Set of Interrogatories, Hot Line does not object to Plaintiffs' representation that an amended response was served on January 29, 2021. [3] The Court notes, however, that the discovery cut-off is merely two weeks away. Hence, it is unclear what Plaintiffs intend to do with the additional information. Further, Plaintiff waited over a year to seek a further response to Interrogatory No. 1. Therefore, any request to continue the discovery cut-off would likely be denied.