Darren Clevenger, etc., et al. v. Welch Foods, Inc. et al Case No. 8:20-cv-01859-CJC (JDEx) United States District Court, C.D. California Filed August 18, 2021 Counsel Anthony L. Lanza, Farshad Ghodoosi, Ramin Todd Montakab, Robert J. Stein, III, Lanza and Smith, PLC, Irvine, CA, for Plaintiff, Darren Clevenger, David Bloom. Daniel Scott Silverman, Bryan J. Weintrop, Venable LLP, Los Angeles, CA, for Defendant. Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order re Motion to Compel (Dkt. 56) *1 On July 27, 2021, Plaintiff Darren Clevenger (“Plaintiff”) filed a Motion to Compel Production of Documents by Defendant Welch Foods Inc. (“Defendant”) (Dkt. 56), with a Joint Stipulation (Dkt. 56-1, “Jt. Stip.”) and supporting and opposing evidence, set for hearing on September 9, 2021. On August 3, 2021, Plaintiff filed a Supplemental Memorandum. Dkt. 58. Per the Court's briefing order, the matter is fully briefed. Dkt. 57. The Court finds that the Motion may properly be decided without oral argument and grants the Motion (Dkt. 56), in part, as set forth below. By the Motion, “Plaintiff seeks an order to compel the production of the full, unredacted” version of a Trademark License Agreement (“Agreement”). Notice of Motion at 2. Defendant has produced a redacted version of the Agreement and argues that the redacted portions, which, Defendant asserts, are not relevant to the issues in the case, contain sensitive information, the public disclosure of which would pose a “significant risk of competitive harm” to Defendant. Jt. Stip. at 9-10. The parties made various proposals to attempt to resolve the dispute, including a proposal by Defendant to permit Plaintiff's counsel to view an unredacted version of the Agreement by video to permit Plaintiff to determine whether further Court intervention is warranted. See Jt. Stip. at 17. “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. (“Rule”) 26(b)(1). Relevance under Rule 26(b)(1) is defined broadly. See Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019), aff'd sub nom. V5 Techs., LLC v. Switch, LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020) (noting that relevance for discovery purposes remains broad even after the 2015 amendments of the Federal Rules of Civil Procedure). Moreover, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted). Although relevance for discovery purposes is defined very broadly, it is not without boundaries. See, e.g., Rivera v. NIBCO, 364 F.3d 1057, 1072 (9th Cir. 2004) (“District courts need not condone the use of discovery to engage in fishing expeditions.” (internal quotation marks and citations omitted)); Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citing Hickman v. Taylor, 329 U.S. 495, 507 (1947)); Rule 26(b)(2). District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). *2 Under Rule 34(a)(1), a party may serve on any other party requests, within the scope of Rule 26(b), to produce or permit inspection of, among other things, “any designated documents or electronically stored information.” Such requests “must describe with reasonable particularity each item or category of items to be inspected ... [and] must specify a reasonable time, place, and manner for the inspection ....” Rule 34(b)(1)(A), (B). The party responding to a request for production must, for “each item or category,” “either state that inspection ... will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Rule 34(b)(2)(B). “An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Rule 34(b)(2)(C). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw–Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted); see also 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.”); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). Further, objections asserted in discovery responses but not raised in briefing on a discovery motion are also waived. MarketLinx, Inc. v. Indus. Access Inc., 2013 WL 12133884, at *2 (C.D. Cal. Jan. 2, 2013) (noting “objections that were raised in response to a particular discovery request, but were not argued in the [j]oint [s]tipulation, are deemed waived”) (citing Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 662 (D. Kan. 1999) (“When ruling upon a motion to compel, the court generally considers those objections which have been timely asserted and relied upon in response to the motion. It generally deems objections initially raised but not relied upon in response to the motion as abandoned.”)). “[T]here is no absolute privilege for trade secrets and similar confidential information.” Upjohn Co. v. Hygieia Biological Labs., 151 F.R.D. 355, 358 (E.D. Cal. 1993) (citation omitted); see also Gonzales, 234 F.R.D. at 685; Davis v. Leal, 43 F. Supp. 2d 1102, 1110 (E.D. Cal. Feb. 18, 1999) (“the trade secrets privilege is not absolute, but requires a balancing of the need for protecting the secret with the needs of the case”). “In order to resist discovery of a trade secret, a party must first demonstrate by competent evidence that the information sought through discovery is a trade secret and that disclosure of the secret might be harmful. If this showing is made, ‘the burden shifts to the party seeking discovery to establish that the disclosure of trade secrets is relevant and necessary to the action.’ ” Upjohn Co., 151 F.R.D. at 358 (citation omitted); Davis, 43 F. Supp. 2d at 1110. For good cause, the Court may specify the terms, including time and place, for discovery, prescribe the method of discovery, limit the scope of discovery, designate who may be present for discovery, and require that commercial information be revealed only in a certain way. See Rule 26(c)(1)(B), (C), (D), (E), (G); see also Harris v. Solorzano, 2020 WL 6782055, at *8 (C.D. Cal. Sept. 30, 2020) (order directing documents produced but held by a third party with plaintiff permitted to review but not copy or possess them). Here, Defendant argues that portions of the Agreement are not relevant and contain confidential information. The Court declines the request for an in camera review of the Agreement by the Court as the Court is not in a position to fully assesses either the potential relevance of the redacted portions of the Agreement to the issues in the case or the potential commercial sensitivity of that information to Defendant's business. *3 As to Plaintiff's request, as reflected in Rule 106 of the Federal Rule of Evidence, undisclosed portions of a written instrument may be needed to have a full and fair understanding of the meaning of other portions. That can be particularly true in the case of contracts, where provisions may be interrelated and/or integrated. Thus, Plaintiff has made a sufficient showing to be permitted access to view the full text of the Agreement in order to assess the relevance of the disputed portions in the context of the entire Agreement. Nonetheless, Defendant has made a showing that the redacted portions contain sensitive commercial information. Defendant appears to argue that the existing Protective Order (Dkt. 45) is not sufficient to protect the confidentiality of the information because the Honorable Judge Cormac J. Carney, United States District Judge, denied a prior application to seal the Agreement in connection with a prior motion to dismiss. See Jt. Stip. at 12. However, Judge Carney's ruling did not find that that the Agreement, or portions thereof, was not confidential; rather, Judge Carney found that the proffered showing by Defendant did not meet the threshold to seal a document in connection with a dispositive motion, that is, a showing of “compelling reasons.” See Dkt. 24. That finding did not preclude Defendant from withdrawing the document from consideration (as Defendant did) and seeking, in the future, to make a sufficient showing to attempt to file the document under seal. Thus, Judge Carney's prior finding, limited to the facts before him, cannot be construed as a limitation on Defendant's discovery obligations to Plaintiff here. Nevertheless, as noted, the Court has authority, upon a showing of good cause, to limit the terms, including time and place, for discovery, prescribe the method of discovery, limit the scope of discovery, designate who may be present while discovery is conducted, and require that commercial information be revealed only in a certain way. See Rule 26(c)(1)(B), (C), (D), (E), (G). The Court further finds that one of Defendant's proposed resolutions to the dispute, slightly altered, was and is a fair resolution that properly balances Plaintiff's counsel's desire to see the entire Agreement against Defendant's proffered confidentiality concerns. That is, Plaintiff's counsel may view a paper copy of the unredacted Agreement, in person, at Defendant's counsel's office at a date and time mutually agreed to during the next 14 days, for a period of not more than 30 minutes, but Plaintiff's counsel may not copy the unredacted Agreement, either electronically or by hand, and may not disclose the redacted portions of the Agreement to any person, including Plaintiffs, except for other employees or members of Plaintiff's counsel's office who, prior to any such disclosure, must be provided with a copy of the is Order and must agree in writing to be bound by this Order not to disclose the unredacted portions of the Agreement to any other person except as provided herein. If Plaintiff's counsel requests, then no representative of Defendant or Defendant's counsel shall be present in the room or be in a position to listen to any comments by Plaintiff's counsel during the review of the Agreement, but such personnel may observe through a window, if desired. The Court has considered Plaintiff's objections to Defendant's similar proposal and overrules those objections. Counsel's concerns that opposing counsel will be “over [their] shoulder” impinging upon “work product” is addressed by the restrictions set forth herein. As to counsel's concern that the relevance of the entire Agreement may only become apparent later in the case, should counsel believe any further disclosure is necessary, counsel can meet and confer with counsel for Defendant under Local Rule 37-1 and, if no agreement is reached, proceed under Local Rule 37-2, et seq., to renew this request based on such change in circumstances. In any such future motion, if Plaintiff's counsel reasonably and in good faith believes that disclosure of a summary of the portions of the Agreement at issue is necessary, counsel shall seek leave to file such portions under seal under Local Rule 79-5.2.2(b). However, the Court strongly encourages the parties to avoid further motion practice and attempt to reach compromises before seeking further relief. *4 As to Plaintiff's request to recover reasonable expenses, including attorneys' fees, incurred in the making of the Motion, although the Motion is granted, in part, as the Court has largely adopted the proposal made by Defendant to resolve the Motion, the Court finds that Defendant's conduct was substantially justified and any award of attorneys' fees in connection with the Motion would be unjust. See Rule 37(a)(5)(ii), (iii). As a result, the request for recovery of reasonable expenses is denied. For the foregoing reasons, the Motion (Dkt. 56) is GRANTED in part and DENIED in part, as set forth above. Defendant shall make an unredacted copy of the Agreement available for review by Plaintiff's counsel, at Defendant's counsel's office, at a date and time mutually agreed upon within 14 days from the date of this Order, subject to the conditions set forth above. The parties may instead comply with this Order by Defendant making the Agreement available for review by Plaintiff's counsel electronically upon terms mutually agreed to without further order from the Court. IT IS SO ORDERED. Initials of Clerk: JD for MB