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 June 23, 2021 Counsel David W. Affeld, Brian R. England, Edward Eric Johnson, Affeld Grivakes LLP, Los Angeles, CA, Gregg D. Zucker, Foundation Law Group LLP, Los Angeles, CA, Damion D. D. Robinson, Diamond McCarthy LLP, Los Angeles, CA, for Michael Ho. Kimberly Marie Jansen, Todd R. Wulffson, Adelyn Mary Vigran, Lindsay Ann Ayers, CDF Labor Law 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 Plaintiff's Motion for Protective Order, and Granting in Part and Denying in Part Plaintiff's Motion to Compel [26, 27] I. INTRODUCTION *1 On May 12, 2021, plaintiff Michael Ho filed a motion for protective order regarding which individuals should be entitled to review highly confidential information. Docket no. 26. The motion is supported and opposed in a Joint Stipulation (“JS 1”). Plaintiff's arguments are further supported by the declaration of plaintiff's counsel Gregg Zucker (“Zucker Decl. 1”) and exhibits thereto. Defendant's arguments are further supported by the declaration of defense counsel Kimberly M. Jansen (“Jansen Decl. 1”) and exhibits thereto. On May 25, 2021, defendant filed a supplemental memorandum (“D. Supp. Mem. to MPO”) supported by the supplemental declaration of defense counsel (“Jansen Supp. Decl. 1”) and additional exhibits. On the same day, plaintiff also filed a Supplemental Memorandum (“P. Supp. Mem. to MPO”) supported by the supplemental declaration of plaintiff's counsel (“Zucker Supp. Decl.”) and additional exhibits. On May 20, 2021, plaintiff filed a motion to compel defendant Marathon Patent Group, Inc. to produce further responses to plaintiff's Requests for Production of Documents Nos. 1-22 and Special Interrogatories Nos. 3, 6, 9, 10, and 11, along with the actual production of documents. Docket no. 27. Plaintiff also seeks monetary sanctions against defendant in the amount of $6,950. The motion is supported and opposed in a Joint Stipulation (“JS 2”). Plaintiff's arguments are further supported by the declaration of plaintiff's counsel (“Zucker Decl. 2”) and exhibits thereto. Defendant's arguments are further supported by the declaration of defense counsel (“Jansen Decl. 2”) and exhibits thereto. On June 1, 2021, plaintiff filed a supplemental memorandum in support of the motion to compel (“P. Supp. Mem. to MTC”). On that same day, defendant also filed a supplemental memorandum (“D. Supp. Mem. to MTC”) supported by a supplemental declaration of defense counsel (“Jansen Supp. Decl. 2”). The court found hearings on these motions would not be of assistance, and so vacated the hearings scheduled for June 8 and June 15, 2021. The court now grants plaintiff's motion for protective order (docket no. 26), and grants in part and denies in part plaintiff's motion to compel (docket no. 27), for the reasons discussed below. II. BACKGROUND The underlying action involves a breach of contract dispute, in which plaintiff alleges defendant Marathon Patent Group 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 data to defendant, including the identity of the electricity producer, the parties agreed that defendant would maintain the confidentiality of the data so as to protect plaintiff's expected profits and participation in any transaction involving defendant and Beowulf. Id. ¶¶ 6-7. Despite the non-disclosure agreement between the parties, plaintiff alleges defendant transacted business with Beowulf and involved third parties without plaintiff. Id. ¶ 8; Form 8-K.[1] *2 On March 10 and April 5, 2021, plaintiff requested that defendant provide a proposed protective order to allow for the production of communications between defendant, Beowulf, and third-parties. Zucker Decl. 1 ¶ 2, Exs. C-D. On April 8, 2021, defendant provided a proposed protective order, which plaintiff found unacceptable. Id., Ex. E. The next day, plaintiff contacted defense counsel and proposed revisions consistent with the model protective order provided by the court, while allowing defendant to designate documents as highly confidential. See id. ¶ 3, Exs. E-F; Jansen Decl. 1 ¶¶ 6-7. On April 12, 2021, defendant served a notice on plaintiff to take his deposition on May 12, 2021, but plaintiff's counsel refused to produce plaintiff for the noticed deposition until the parties resolved their dispute. Jansen Decl. 1 ¶ 8. On April 29, 2021, defense counsel emailed plaintiff a draft of the stipulated protective order identifying the text that she understood was still in dispute between the parties. Id. ¶ 9, Ex. F. Between April 29 and May 5, 2021, the parties met and conferred regarding the content of the disputed provisions of the draft stipulated protective order, but were unable to resolve their disputes. See id. ¶¶ 10-13; Zucker Decl. 1 ¶ 3. Plaintiff filed the motion for protective order on May 12, 2021. Meanwhile, plaintiff had served defendant with his first set of Requests for Production of Documents (“RFPs”) and Interrogatories on March 17, 2021. See JS 2 at 2, Zucker Decl. 1 Exs. C-D. Defendant served its responses to plaintiff's RFPs on April 16, 2021. Id., Exs. E-F. Plaintiff thereafter explained his concerns with defendant's responses in writing, requesting a phone call to discuss the alleged deficiencies. Id., Ex. G. Between April 21 and 22, 2021, the parties met and conferred regarding defendant's initial responses to the first set of RFPs and certain interrogatories. Jansen Decl. 2 ¶ 8, Ex. G. During that call, defendant offered to supplement its initial responses with agreements to produce information it deemed relevant to the case. Id. On April 29, 2021, defendant served supplemental responses to plaintiff's first set of RFPs and sent document production Bates stamped Marathon-Ho 000001-000005. Id. ¶ 9. The parties continued to meet and confer about defendant's responses to plaintiff's RFPs and interrogatories until May 5, 2021. Id. ¶¶ 11-12, 15. Defendant served supplemental responses to plaintiff's first set of RFPs, which included 16 non-confidential records, the most recent production occurring on May 21, 2021. Jansen Supp. Decl. 1 ¶ 2. This most recent production contained documents produced as native files with metadata, which defendant understands were kept in the ordinary course of business. Id., Ex. P. Defendant has not supplemented its responses to plaintiff's interrogatories. See JS 1 at 3; Zucker Decl. 1, Ex. J. Plaintiff maintains that defendant's responses and production of documents are deficient, and thus he filed the instant motion to compel on May 20, 2021. III. DISCUSSION A. Motion for Protective Order In the instant case, both parties agree that a protective order is warranted, but the parties disagree as to the persons who should be entitled to review documents designated as “highly confidential.” See JS 1 at 1-2. Plaintiff requests that the court apply the standard principles set forth in the court's model protective order, allowing access of highly confidential documents to authors and intended recipients of documents, as well as plaintiff's experts who have signed the protective order. Id. at 1-2, 4-5. But defendant seeks to limit access of highly confidential documents to two categories of individuals who have agreed to be bound by the protective order: (1) authors or intended recipients of a document containing the information; and (2) experts who are not engaged in activity that could be construed as competitive to defendant's business interests. See id. at 9, 19, Jansen Decl. 1 ¶ 14, Ex. K. *3 Federal Rule of Civil Procedure 26(c) allows a party to file a motion for a protective order “in the court where the action is pending,” and the court may “issue an order to protect a party or person from ... undue burden,” including an order “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c). Under this rule, courts may “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex. rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210 (9th Cir. 2002) (citing Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)) (holding that “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test”). Where trade secrets or other confidential commercial information is involved, the court will balance the risk of disclosure to competitors against the risk that a protective order will impair prosecution or defense of the claims. Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.1992). The court may order that the trade secret or commercial information not be revealed or be revealed only in a designated way. Nutratech, Inc. v. Syntech (SSPF) Int'l, Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2007) (citing Fed. R. Civ. P. 26(c)(7)). 1. Authors, Intended Recipients, and Custodians of Highly Confidential Documents May Review Those Documents Without Signing the Protective Order Defendant first seeks to restrict plaintiff from disclosing highly confidential documents to authors, intended recipients, or custodians of documents containing that information, unless those witnesses sign the protective order. See JS 1 at 4, 19. But as plaintiff rightly argues, these witnesses have already seen the highly confidential documents at issue, and thus disclosing such materials during a deposition would not reveal anything they do not already know. Id. at 4. The model protective order provided by the court recognizes this point by permitting access to the “author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information” without requiring them to sign the protective order. See Jansen Decl. 1, Ex. N (Sample Protective Order) § 7.2(g). Defendant seems to argue that in the case of highly confidential information, more protection is needed, but it is unclear what additional protection would be gained by defendant's proposal given that the witnesses in question are already privy to the information. Further, requiring plaintiff to get these witnesses to sign off on the protective order may impede plaintiff's ability to take a meaningful deposition, since the witnesses at issue are largely affiliated with defendant and reside in different states across the country. See id. at 4; Form 8-K; P. Supp. Mem. to MPO at 4-5. Defendant does not contest that these witnesses are affiliated with defendant, and indeed, at least one of the witnesses, Beowulf Energy, has already objected to plaintiff's subpoenas to produce a witness and documents. See Jansen Decl. 1 ¶ 16, Ex. L. As such, because the authors, intended recipients, and custodians already have access to the highly confidential information, and requiring them to sign off on the protective order may impede plaintiff's ability to obtain relevant discovery, the court finds these witnesses may access the highly confidential information without having to sign the protective order. 2. Plaintiff's Experts Who Have Signed the Protective Order May Review Highly Confidential Documents *4 Defendant also seeks to restrict plaintiff from disclosing highly confidential materials to plaintiff's own experts – even those who have signed the protective order – if the experts engage in any activity that could be construed as competitive to defendant's business interests. See id. at 9, 19; Jansen Decl. 1 ¶ 14, Ex. K. Defendant argues any expert in the cryptocurrency industry or the mining thereof is a potential competitor, and that highly confidential documents cannot be disclosed to such individuals without risking serious injury to defendant. See id. at 9. Defendant also argues that if plaintiff insists that disclosing such information to a witness or other party is necessary and cannot obtain defendant's written permission, plaintiff can challenge the confidentiality designation as provided in the protective order. Id. While the court appreciates the sensitive nature of the information at issue, defendant fails to explain why the protective order is insufficient to adequately protect defendant's privacy concerns. Moreover, prohibiting plaintiff from disclosing highly confidential materials to plaintiff's own experts without authorization from defendant will unfairly restrict plaintiff's ability to work with his experts. Plaintiff anticipates the need for damages experts who will determine the profits resulting from the alleged transaction at issue, and these experts should be able to review financial and technical data about the transaction. See JS 1 at 5. Requiring defendant's authorization to share materials with experts would force plaintiff to disclose to defendant what documents he intends to show his experts as well as the identity of the experts well before the expert disclosure deadline, giving defendant an unfair preview of plaintiff's experts and restricting plaintiff's ability to show his experts relevant information. In addition, defendant's position that anyone plaintiff would call as an expert is a potential competitor suggests defendant may well not authorize plaintiff to show highly confidential documents to his experts, making it impossible for plaintiff to effectively litigate this case. For these reasons, the court finds permitting experts to access highly confidential materials so long as they agree to be bound by the protective order is sufficient to adequately protect defendant's privacy interests, while allowing plaintiff's experts to access relevant information. 3. The Parties Should Meet and Confer about Defendant's Request for Confidentiality Designations In its supplemental memorandum, defendant requests that the court allow it to designate portions of plaintiff's document production as confidential pursuant to the protective order. See D. Supp. Mem. to MPO at 5; Jansen Supp. Decl. 1 ¶ 4. Defendant contends plaintiff produced 1,469 files without any confidentiality designations, which includes information protected by a non-disclosure agreement. Id. For example, defendant indicates plaintiff's production includes a letter of intent and term sheet labeled as confidential and documents reflecting negotiations between the parties to that transaction with specific deal terms. Id. Although defendant provides a few examples of potentially confidential documents, defendant fails to identify which portions of plaintiff's document production it seeks to designate as confidential. Further, it appears defendant has not met and conferred with plaintiff about this issue – not surprisingly, since defendant improperly raised this new issue for the first time in its supplemental memorandum. The court therefore declines to designate any portion of plaintiff's document production as confidential at this time, and orders the parties to further meet and confer about this issue. B. Motion to Compel Further Responses to RFP Nos. 1-22 and Interrogatory Nos. 3, 6, 9, 10, and 11 *5 Plaintiff also seeks an order compelling defendant to provide further responses to plaintiff's RFP Nos. 1-22 and Interrogatory Nos. 3, 6, 9, 10, and 11, and to produce the documents defendant has withheld. See MTC at 1. As an initial matter, plaintiff argues defendant has failed to produce electronically stored information (“ESI”) with metadata, which is needed to ensure the documents produced are genuine and can be loaded into a database that is searchable using metadata fields. Id. at 9; P. Supp. Mem. to MTC at 4; see Javo Beverage Co. v. Cal. Extraction Ventures, Inc., 2020 WL 2062146, at *7-8 (S.D. Cal. Apr. 29, 2020) (recognizing that metadata is ordinarily discoverable and must be produced “as [it] is kept in the usual course of business ....”). But defendant has already agreed to produce responsive documents as they are maintained in the ordinary course of business, and plaintiff has not raised any issues with defendant's most recent production of responsive documents as native files with metadata. See Jansen Decl. 2 ¶ 3; D. Supp. Mem. to MTC at 3. As such, there does not appear to be any remaining dispute over defendant's production of ESI and associated metadata. Plaintiff also asserts defendant has failed to identify the specific documents that it is withholding in violation of Rule 34(b)(2)(C) of the Federal Rules of Civil Procedure. See JS 2 at 10; P. Supp. Mem. to MTC at 5. But contrary to plaintiff's assertion, defendant has repeatedly informed plaintiff that it is specifically withholding any responsive confidential records, and will produce them following the court's entry of a protective order. See D. Supp. Mem. to MTC at 2. Defendant's refusal to produce responsive confidential documents until the court's entry of a protective order is reasonable given the sensitive nature of the information at issue and the parties' disputes regarding the provisions of the protective order. Although defendant has agreed to produce many of the documents at issue once the protective order is in place, including supplementing its responses to Interrogatories Nos. 3, 6, and 9, defendant has objected to providing further responses to RFPs 1-22 and Interrogatories 10 and 11 on the ground that they are overbroad. See JS 2 at 2. Thus, the remaining disputes primarily concern the scope and relevance of RFP Nos. 1-22 and Interrogatory Nos. 10 and 11, which the court addresses in further detail below. Rule 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). 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)). *6 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). Likewise, a party must respond or object to interrogatories in writing. Fed. R. Civ. P. 33(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). 1. RFPs 1-4 In RFP No. 1, plaintiff seeks “all documents exchanged between the parties in this case before 2021.” See JS 2 at 7. Plaintiff claims the parties communicated from late 2018 to late 2020, and defendant breached a written non-disclosure agreement as well as an implied agreement of trust and confidence over a valuable opportunity plaintiff provided to defendant, namely a transaction with Beowulf Energy that would allow defendant to lower its costs significantly. See id. at 8, Ex. A ¶¶ 4-7, 17, 22. Plaintiff argues these requests are relevant to his claims, especially his implied contract claims, since it will show the parties had a significant business relationship which gave plaintiff reason to believe defendant would keep information shared between them confidential, and that plaintiff should not have been cut out of the transaction between defendant and Beowulf. Id. at 8; P. Supp. Mem. to MTC at 1. In response to RFP 1, defendant has agreed to produce only documents exchanged between plaintiff and defendant from May to October 2020 regarding the information plaintiff disclosed under the NDA executed by defendant on or about June 9, 2020. Id. at 8. Defendant contends plaintiff's request for all documents exchanged between the parties, regardless of time or subject, is overbroad and unduly burdensome. JS 2 at 13. Defendant asserts the only relevant time period and documents at issue consist of exchanges between the parties about plaintiff's allegedly proprietary information regarding Beowulf from the time plaintiff first approached defendant about Beowulf until the time defendant engaged in its transaction with Beowulf in October 2020. Id. at 13. The parties' prior business communications are sufficiently relevant to plaintiff's implied contract claims, since they may show whether the parties had a significant business relationship such that plaintiff had reason to believe defendant would keep information shared between them confidential. See JS 2, Ex. A ¶¶ 4-7, 17, 22. Communications between the parties that do not concern business matters – if there were any such purely social exchanges – are not as clearly relevant to plaintiff's claims, because those communications are less likely to reveal anything relevant to plaintiff's decision to enter into a contract with defendant. Defendant does not explain why it would be burdensome to fully respond to the request, and indeed, it may be easier to produce all documents exchanged than to cull out any non-business exchanges. But it is up to defendant whether it wants to undertake the work of withholding social communications. As such, defendant must fully respond to RFP No. 1, except that communications having nothing to do with business dealings may be withheld. In RFP No. 2, plaintiff seeks “all documents reflecting communications with anyone, including but not limited to Bryan Pascual, about plaintiff.” JS 2 at 16. Plaintiff argues this request is relevant to determining what defendant communicated to others about plaintiff, what defendant thought and heard about plaintiff's role in the contractual relationship, and why defendant allegedly breached the contract by involving third parties in the transaction instead of plaintiff. Id. at 18-19. Plaintiff indicates that Bryan Pascual was one of the several third parties who were involved in the Beowulf transaction with defendant. Id. at 19, Zucker Decl. 2, Ex. M. *7 Defendant argues RFP No. 2 is overbroad as to time and scope, and has agreed to produce only communications between defendant and Bryan Pascual about plaintiff prior to October 13, 2020 as relevant to the NDA and plaintiff's claims in this case. Id. at 16. As defendant rightly argues, even assuming the NDA is valid and effective, it does not prohibit defendant from talking to anyone about plaintiff; rather it controls the disclosure and use of proprietary information. Id. at 23. Plaintiff's request for all documents reflecting communications with anyone, regardless of time or subject, is thus overbroad. As such, the court denies plaintiff's motion to compel RFP No. 2, beyond what defendant has agreed to produce. In RFP No. 3, plaintiff seeks “all documents reflecting communications with anyone, including but not limited to Bryan Pascual, about the claims asserted in this case.” Id. at 26. With respect to RFP No. 3, defendant has agreed to produce only documents between defendant and Bryan Pascual about the claims asserted in this case prior to October 13, 2020, as relevant to the NDA and plaintiff's claims in this matter. Id. at 28. Defendant argues this request seeking documents reflecting communications with anyone about the claims in this case is so overbroad that it triggers an unduly burdensome and oppressive search for irrelevant and potentially privileged documents. Id. at 30. But plaintiff has clarified that he does not seek any privileged communications between defendant and its counsel, which addresses defendant's concern regarding producing potentially privileged documents. See JS 2, Ex. C at 1:22-24. Further, plaintiff has limited the scope of RFP No. 3 to communications that are directly related to the claims at issue in this case. Thus, the court grants plaintiff's motion to compel RFP No. 3 with respect to any non-privileged documents that reflect communications about plaintiff's claims in this case. In RFP No. 4, plaintiff seeks “all documents regarding the mutual NDA at issue in this case.” Id. at 31. Plaintiff argues these documents are relevant to obtaining information regarding defendant's impressions about and understanding of the NDA, what others understood about the NDA, and the drafting of the NDA. Id. at 33. Defendant has agreed to produce non-privileged documents regarding the NDA authored and/or created prior to plaintiff's filing of the complaint on January 14, 2021. Id. The court finds that all documents regarding the NDA at issue are sufficiently relevant to plaintiff's claims, and plaintiff has already clarified that he does not seek any privileged documents between defendant and its counsel. Id., Ex. C at 1:22-24. As such, the court grants plaintiff's motion to compel defendant to produce non-privileged documents responsive to RFP No. 4. 2. RFP Nos. 5-6 In RFP No. 5, plaintiff seeks “all documents exchanged between defendant and Beowulf Energy prior to September 1, 2020.” Id. at 35. Defendant has agreed to produce responsive non-privileged documents between defendant and Beowulf from May 2020 to September 1, 2020. Id. at 36. Defendant argues its agreement to produce these documents within this time period is sufficient to satisfy this request, since it includes documents exchanged just before the transaction between defendant and Beowulf in October 2020. Id. at 37. But documents prior to May 2020 are also relevant to plaintiff's claims, since they may demonstrate whether defendant had a preexisting relationship with Beowulf, and whether defendant used the allegedly proprietary information obtained from plaintiff to initiate the transaction with Beowulf. As such, plaintiff's motion to compel further responses to RFP No. 5 is granted in full. *8 In RFP No. 6, plaintiff similarly seeks all documents exchanged between defendant and any third parties, regarding Beowulf Energy. Id. at 37. For purposes of this discovery, the term “third parties” means all persons and entities, including but not limited to Bryan Pascual, Two Point One LLC, and Lucky Liefern LLC, but excludes the parties to this case and Beowulf. Id. Plaintiff indicates these communications would only have occurred in 2020 and 2021. Id. at 39. In response to this request, defendant has agreed to produce responsive, non-privileged documents exchanged between defendant and plaintiff, Two Point One LLC, or Beowulf between May and October 2020 regarding the joint venture between defendant and Beowulf announced on or about October 13, 2020. Id. at 40. But similar to RFP No. 5, communications between defendant and any third parties about Beowulf prior to May 2020 are relevant to showing whether defendant had a preexisting relationship with Beowulf. Additionally, documents exchanged between defendant and any third party about Beowulf are relevant to determining whether a then-potential transaction with Beowulf used any of plaintiff's allegedly proprietary information under the NDA, why the transaction involved parties other than plaintiff, the identities of all third parties involved, what those third parties were going to do in the transaction, whether the third parties knew about plaintiff's NDA with defendant, and why defendant chose Beowulf in connection with the transaction to purchase energy. Id. Although defendant contends this request is overbroad because it may call for documents discussing Beowulf from 1994 (see id. at 40), plaintiff has clarified that these communications would only be from 2020 and 2021. As such, the court grants plaintiff's motion to compel defendant to produce all documents responsive to RFP No. 6 from 2020 and 2021. 3. RFP Nos. 7-12 In RFP Nos. 7 and 8, plaintiff seeks all documents regarding the negotiation of any agreements between defendant and Two Point One LLC or Lucky Liefern LLC. In RFP Nos. 9-12, plaintiff seeks all written and electronic agreements with Two Point One, Lucky Liefern, Bryan Pascual, and John O' Rourke. Plaintiff argues the negotiations and agreements between defendant and these third parties are relevant to showing defendant's relationship with these third parties, defendant's circumvention of plaintiff by using third parties in the transaction other than plaintiff, and why defendant breached their agreement by doing business with these third parties. Id. at 43. Plaintiff also argues the entire scope of defendant's relationship with these third parties is relevant, because it will help reveal: (1) the reasons for defendant's alleged breach of its agreement with plaintiff; (2) whether these third parties have agreements, including indemnity agreements with defendant as to the transaction and claims at issue; (3) whether there are other transactions besides those that plaintiff learned about in defendant's SEC filings; and (4) whether these third parties provided the alleged valuable services to defendant on which defendant bases its defense. Id. at 43-44. Plaintiff further argues any agreements defendant may have had with these third parties would have occurred within the last year. Id. at 44. In response to RFP Nos. 7-12, defendant argues these requests are overbroad and would necessitate an unduly burdensome and oppressive search of irrelevant and potentially privileged documents. Id. at 42-43, 44-45, 46, 49, 52, 55, 58. Defendant has instead agreed to produce responsive, non-privileged documents regarding negotiations and agreements between defendant and Two Point One LLC, Lucky Liefern LLC, Bryan Pascual, and John O'Rourke between May and October 2020 regarding the joint venture between defendant and Beowulf announced on or before October 13, 2020. See id. *9 Although plaintiff argues he requires defendant's agreements with these third parties during the entire scope of their relationship regardless of the subject matter, the relevance of any agreements that do not concern the transaction between defendant and Beowulf is limited. Yet the relevant time period is not so limited as defendant argues. Defendant's agreements with these third parties after October 2020 that relate to the transaction and plaintiff's claims at issue, including any indemnity agreements, are relevant to plaintiff's claims since they will show defendant's relationship with these third parties, whether defendant breached the purported NDA by disclosing allegedly proprietary information, and why the transaction with Beowulf involved these third parties. As such, defendant must produce documents reflecting any negotiations and agreements with Two Point One, Lucky Liefern, Bryan Pascual, and John O'Rourke that relate to the transaction between defendant and Beowulf and plaintiff's claims at issue, from 2020 and 2021, in response to RFP Nos. 7-12. 4. RFP No. 13 In RFP No. 13, plaintiff seeks all written and electronic communications regarding the purchase of electric power from any energy producer, prior to the actual purchase of electric power from that energy producer, where such communications were with any of the following: Bryan Pascual, John O'Rourke, and Christopher Ensey. Id. at 60. Defendant again argues this request is overbroad, and instead agrees to produce written and electronic communications between May and October 2020 regarding the purchase of electricity from Beowulf between defendant and Bryan Pascual, John O'Rourke, or Christopher Ensey. Id. at 63. Defendant contends its communications with other parties regarding the purchase of electric power from any entity other than Beowulf are irrelevant to plaintiff's claims, which concern whether defendant used any of the information plaintiff allegedly disclosed under the NDA in its transaction with Beowulf. Id. at 63. But as plaintiff rightly argues, defendant's communications regarding any transactions with other energy producers, or the lack thereof, is relevant to demonstrating the value of the information plaintiff allegedly provided to defendant as to the potential transaction with Beowulf, which is disputed by defendant. See JS 2 at 62, Zucker Decl. 2 O at 2:12-13. Defendant's communications regarding its transactions, or lack thereof, with any energy producers would be most relevant around May to October 2020, including the months before and after that period, since that is the time period in which plaintiff alleges defendant used the information plaintiff disclosed under the NDA in its transaction with Beowulf. As such, the court grants plaintiff's motion to compel defendant to produce responsive documents to RFP No. 13 regarding communications between defendant and Pascual, O'Rourke, or Ensey in 2020 about the purchase of electricity from any energy producer. 5. RFP Nos. 14-16 In RFP No. 14, plaintiff seeks all documents regarding any agreement with anyone, other than plaintiff, Two Point One LLC, Bryan Pascual, Lucky Liefern LLC, and Beowulf Energy, involving any form of compensation, including but not limited to a markup or commission, in connection with a transaction with Beowulf. Id. at 63. Plaintiff argues this information is relevant to assess any other potential damages resulting from the transaction between defendant and Beowulf, the identity of other third parties involved in the transaction, and the importance of the information allegedly provided by plaintiff. Id. Defendant argues this request is overbroad as to time and scope, and agrees to produce responsive agreements entered into between May and October 2020 regarding the joint venture between defendant and Beowulf. Id. at 66. The court finds defendant's agreement to produce these documents is sufficient to allow plaintiff to assess any other potential damages resulting from the alleged breach, and thus denies plaintiff's motion to compel further response to RFP No. 14. *10 In RFP Nos. 15 and 16, plaintiff similarly seeks all documents regarding any form of compensation, including but not limited to any commission or markup, due or paid to any third parties in connection with a transaction with Beowulf. Id. at 67, 70. Plaintiff again argues this information is relevant to assess the potential damages owed to plaintiff, the value of the information plaintiff allegedly shared with defendant, and the benefits conferred on defendant. Id. at 68, 72; Ex. M at 5-6. Defendant argues plaintiff's requests for documents regarding compensation to “any” third parties in connection with any transaction with Beowulf are overbroad, and has agreed to produce only records sufficient to reflect any forms of compensation paid to Two Point One LLC or Beowulf regarding the joint venture between defendant and Beowulf. Id. at 69. RFP Nos. 15 and 16 are indeed overbroad, since they may require the production of information unrelated to plaintiff's claims. Plaintiff claims defendant deprived him of compensation he is owed arising out of the Beowulf transaction, and that he will measure lost profits by the deal structure he requested from defendant and compensation and benefits paid to Two Point One and individuals affiliated with that entity. See Zucker Decl. 2, Ex. M at 5-6. The relevance of any information regarding what defendant paid any other third parties in connection with an unspecified transaction with Beowulf is too tenuous. As such, the court denies plaintiff's motion to compel further responses to RFP Nos. 15 and 16. 6. RFP Nos. 17-18 and Interrogatory Nos. 10-11 In RFP No. 17, plaintiff seeks “documents sufficient to show the price defendant paid for electricity from January 1, 2018 to the present.” Id. at 74. Interrogatory No. 10 requests that defendant identify each entity, by name, address and phone number, from whom defendant purchased electricity after December 31, 2017. Id. at 94. Similarly, Interrogatory No. 11 requests that defendant set forth the price paid to third parties on a monthly basis for the electricity defendant used after December 31, 2018. Id. at 97. Plaintiff argues defendant's transaction with Beowulf was based, at least in part, on lowering defendant's cost of electricity, and information regarding defendant's supplier and cost of electricity before its transaction with Beowulf is relevant to assess plaintiff's damages and unjust enrichment calculations by comparing the costs before and after the transaction. Id. at 75; Ex. A ¶¶ 4-5. Defendant argues these requests are overbroad, and has agreed to produce documents sufficient to show the price defendant paid for electricity as part of the joint venture between defendant and Beowulf announced on or about October 13, 2020. Id. Defendant argues only the price defendant paid for electricity in its transaction with Beowulf is relevant to plaintiff's claim for damages, because that is the transaction he alleges he was cut out of. Id. at 76, 96, 98. But as plaintiff rightly argues, information regarding how much defendant paid for electricity prior to its transaction with Beowulf in October 2020 is at least relevant to assessing whether defendant did in fact benefit from the transaction at issue by receiving a lower cost for electricity from Beowulf than in previous transactions with other energy suppliers. As such, the court grants plaintiff's motion to compel defendant to produce responsive documents to RFP Nos. 17 and supplement its response to Interrogatory Nos. 10 and 11. With respect to RFP No. 18, plaintiff seeks “documents sufficient to show the benefits defendant obtained due to the transaction with Beowulf Energy.” Id. at 77. Plaintiff clarifies that the term “benefits” refers to the “lower-cost energy pricing” defendant allegedly received from Beowulf. Id. at 79. Given plaintiff's clarification as to what he is seeking with this RFP, defendant has now agreed to supplement its response. Id. at 80. Thus, it appears the dispute is resolved and the court need not rule on the motion with respect to RFP No. 18 at this time. 7. RFP Nos. 19-22 *11 In RFP Nos. 19-22, plaintiff seeks all documents supporting defendant's affirmative defenses, responses to interrogatories, and initial disclosures in this case. Id. at 80, 82, 85, 87. Defendant has already agreed to produce responsive, non-privileged documents supporting defendant's affirmative defenses, responses to interrogatories, and initial disclosures, and has noted that non-privileged documents that contain confidential information will be produced after the entry of a protective order. See id. at 81-82, 83-84, 86-87, 87-89. Because there appears to be no dispute as to the relevance of these requests and defendant has agreed to produce responsive documents once a protective order is in place, the court need not rule on the motions as to these RFPs at this time. C. Sanctions Are Not Warranted Plaintiff's motion to compel also includes a request for sanctions against defendant in the amount of $6,950 for the attorney's fees incurred in filing this motion. See id. at 100, Zucker Decl. 2 ¶ 6. Defendant likewise seeks sanctions against plaintiff for the amount incurred in opposing this motion. See JS 2 at 101. Federal Rule of Civil Procedure 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. In addition, Local Rule 37-4 provides for sanctions for “[t]he failure of any counsel to comply with or cooperate in the foregoing procedures.” The court here finds sanctions are not warranted against either plaintiff or defendant. Defendant's refusal to produce confidential records responsive to plaintiff's RFPs until the court's entry of a protective order was substantially justified given the sensitive nature of the information at issue. Defendant's positions regarding the scope of plaintiff's discovery requests were also reasonable. Likewise, plaintiff's filing of this motion due to defendant's delay in producing responsive documents was also reasonable. As such, the requests for sanctions against plaintiff and defendant are denied. IV. ORDER IT IS THEREFORE ORDERED that plaintiff's motion for protective order (docket no. 26) is granted, and plaintiff's motion to compel further responses to RFPs and interrogatories (docket no. 27) is granted in part and denied in part as set forth above. The court is separately issuing the protective order as proposed by plaintiff, with minor corrections. Footnotes [1] Plaintiff requests that the court take judicial notice of the existence and assertions in Form 8-K filed by defendant with the United States Securities and Exchange Commission (“SEC”) on May 4, 2021. See Request for Judicial Notice, Ex. 1. Defendant does not oppose this request. Because the existence and contents of this SEC filing is not subject to reasonable dispute, judicial notice is proper. See Metzler Inc. v. GMBH v. Corinthian Colleges, 540 F.3d 1049, 1064 n.7 (9th Cir. 2008) (SEC filings subject to judicial notice).