D.U. et al. v. UNITED STATES MARSHALS et al Case No. 5:20-cv-02127-JWH (SPx) United States District Court, C.D. California Filed July 21, 2023 Counsel George G. Mgdesyan, Araksya Boyadzhyan, Mgdesyan Law Firm, Sherman Oaks, CA, for Plaintiff. Jasmin Yang, Matthew J. Smock, AUSA - US Attorneys Office, Los Angeles, CA, for Defendant. Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Granting Defendant's Motion to Compel But Declining to Recommend Terminating Sanctions at this Time [59] I. INTRODUCTION *1 On June 27, 2023, defendant United States of America filed a motion for a recommendation of terminating sanctions, or in the alternative: to compel plaintiffs D.U. and Katie Uccello to (1) withdraw their objections to defendant's written discovery requests, (2) provide supplemental responses to defendant's written discovery requests, and (3) supplement their initial disclosures; and to compel Kimberly Uccello and Lisa Danialian to respond to subpoenas for documents. Docket no. 59. Defendant's motion is supported by the declaration of its counsel Matthew J. Smock (“Smock Decl.”) and exhibits. On July 11, 2023, defendant filed a supplemental memorandum in support of its motion (“D. Supp. Mem.”), in which it withdrew the portions of its motion seeking to (1) compel plaintiffs to withdraw their objections to defendant's written discovery requests, and (2) compel Kimberly Uccello and Lisa Danialian to respond to subpoenas for documents. Defendant continues to seek supplemental responses to its written discovery requests to plaintiffs, as well as supplementation of plaintiffs' initial disclosures. Defendant also now seeks supplemental subpoena responses from Kimberly Uccello and Lisa Danialian. Defendant's supplemental memorandum is supported by the declaration of its counsel Matthew J. Smock (“Smock Supp. Decl.”) and exhibits. Plaintiffs did not provide their portion of a joint stipulation or file a response to defendant's motion. The court found a hearing on this motion would not be of assistance, and so vacated the hearing scheduled for July 25, 2023. The court now grants defendant's motion to compel but declines to recommend terminating sanctions for the reasons discussed below. II. BACKGROUND This is a civil rights case arising from the fatal shooting of Michael Uccello. Plaintiffs are the decedent's adult children. Kimberly Uccello is plaintiffs' mother, the decedent's ex-wife, and D.U.'s guardian ad litem (“GAL”).[1] Lisa Danialian is plaintiffs' stepmother. Kimberly Uccello and Lisa Danialian appear to both be represented by plaintiffs' counsel, as least for discovery purposes. In early February 2023, defendant served plaintiffs with its first set of written discovery requests and served Kimberly Uccello a subpoena for documents. On May 5, 2023, the court granted defendant's prior motion to compel responses to the requests and subpoena. Docket no. 56. Compliance was due by May 15, 2023. Meanwhile, on April 20, 2023, defendant served plaintiffs with its second sets of interrogatories and requests for production of documents (“RFPs”). Smock Decl. ¶ 5. Responses were due by May 22, 2023. Id. And on May 1, 2023, defendant served Lisa Danialian with a document subpoena. Id. ¶ 6. Compliance was due by May 19, 2023. Id. *2 Neither plaintiffs, Kimberly Uccello, nor Lisa Danialian complied with any of these discovery response deadlines, including the court's May 15 deadline. Smock Decl. ¶¶ 2, 5, 7. On May 23, 2023, defendant requested to meet and confer about defendant's anticipated motion to dismiss for failure to prosecute and for terminating sanctions. Id. ¶ 5. Plaintiffs then provided their written discovery responses on May 26, 2023. Id. ¶¶ 2, 5, Exs. A-D, F-I. The parties also met and conferred telephonically on May 26, during which plaintiffs' counsel stated Kimberly Uccello and Lisa Danialian would respond to the subpoenas that day and by around May 31, 2023, respectively. Id. ¶ 9. On June 1, 2023, defendant emailed plaintiffs' counsel a meet and confer letter pursuant to Local Rule 37 regarding deficiencies in their responses, their noncompliance with the court's May 2, 2023 order, and Kimberly Uccello's and Lisa Danialian's overdue subpoena responses. Smock Decl. ¶ 11, Ex. M. Defendant also raised the issue of plaintiffs' noncompliance with their obligations under Fed. R. Civ. P. 26(a)(1)(A)(iii) regarding their damages computations. Id. Having received no response, defendant sent a follow up email on June 5, 2023, to which it received no response. Id. On June 20, 2023, defendant sent plaintiffs its portion of the joint stipulation pursuant to the instant motion. Smock Decl. ¶ 12. The court held an informal telephonic discovery conference on June 21, 2023, during which the court ordered the parties to meet and confer regarding their disputes. Docket no. 58. On June 23, 2023, the parties met and conferred. Smock Decl. ¶ 11; Smock Supp. Decl. ¶ 2. Plaintiffs agreed that (1) they would withdraw their objections to defendant's first and second sets of written discovery requests; (2) they would supplement their responses to the interrogatories and RFPs at issue by June 30, 2023; (3) they would supplement their disclosures with a computation of each category of damages sought; (4) Kimberly Uccello would respond to the subpoena by the week of June 26, 2023; and (5) plaintiffs' counsel would contact Lisa Danialian about her outstanding subpoena response. Smock Supp. Decl. ¶ 2, Ex. A. On June 27, 2023, defendant sent plaintiffs an email reminding them their portion of the joint stipulation was due that day. Smock Supp. Decl. ¶ 3. Plaintiffs did not provide their portion of the joint stipulation. Smock Decl. ¶ 12; Smock Supp. Decl. ¶ 3. On June 30, 2023, plaintiffs' counsel served (1) a withdrawal of objections (see Smock Supp. Decl., Ex. C); (2) supplemental disclosures (see Smock Supp. Decl., Ex. B); (3) Kimberly Uccello's subpoena response (see Smock Supp. Decl., Ex. D); and (4) Lisa Danialian's subpoena response (see Smock Supp. Decl., Ex. E). Smock Supp. Decl. ¶ 4. As of the filing of defendant's supplemental memorandum, it had not received plaintiffs' supplemental responses to the interrogatories and RFPs at issue. Id. On July 5, 2023, defendant sent plaintiffs' counsel an email identifying deficiencies in plaintiffs' supplemental disclosures and the subpoena responses and noting that no supplemental responses to defendant's written discovery requests had been received. Smock Supp. Decl. ¶ 5, Ex. G. As of the filing of defendant's supplemental memorandum, plaintiffs had not responded. Defendant now seeks a recommendation for terminating sanctions. Alternatively, defendant seeks an order compelling: (1) plaintiffs to provide supplemental responses to the interrogatories and RFPs still at issue; (2) plaintiffs to provide a complete computation of damages for each category of damages they seek in their initial disclosures; and (3) Kimberly Uccello and Lisa Danialian to conduct a diligent search and produce all responsive documents to the requests in their respective subpoenas still at issue. *3 The fact discovery cutoff is July 28, 2023. Docket nos. 43, 61. III. DISCUSSION The court first notes that defendant failed to file the motion to compel in the form of a joint stipulation as required by Local Rule 37-2. But the moving party is excused from this requirement where, as here, opposing counsel failed to timely provide their portion of the joint stipulation as required by Local Rule 37-2.2. See L.R. 37-2.4. Thus, the court considers the motion. Although the court has considered defendant's moving papers, as with the prior motion to compel, the court has no opposing papers to consider, making it unclear to what extent, if any, plaintiffs oppose the motion to compel. This is particularly strange since defendant seeks a recommendation for terminating sanctions. Plaintiffs' failure to file an opposition may be deemed consent to the granting of the motion. L.R. 7-12. But the court will not simply rely on plaintiffs' lack of opposition to recommend terminating sanctions. Nor does the court need to rely solely on the lack of opposition to grant the other relief defendant seeks since the motion is meritorious in any event. A. Plaintiffs Are Ordered to Supplement Their Responses to the Interrogatories and RFPs Still at Issue Federal Rule of Civil Procedure 26 provides that a party 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.” Fed. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2000 amendment (the court has “the authority to confine discovery to the claims and defenses asserted in the pleadings”); U.S. v. Aurora Las Encinas, LLC, 2012 WL 12897081, at *5 (C.D. Cal. Sept. 6, 2012) (“The pleadings define the scope of the present discovery ....” (cleaned up)). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “Relevancy, for the purposes of discovery, is defined broadly, although it is not without ultimate and necessary boundaries.” Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006) (citation and internal quotation marks omitted). The court already ordered plaintiffs to respond without objection to defendant's first sets of RFPs and interrogatories. Docket no. 56. As set forth above, plaintiffs' responses to defendant's second sets of RFPs and interrogatories were due May 22, but plaintiffs did not serve responses until May 26, 2023. Consequently, objections to this second set of discovery requests have also been waived. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”); Fed. R. Civ. P. 33(b)(2). *4 Plaintiffs have responded to the discovery requests at issue; however, defendant contends some of the responses are still inadequate. After the parties' telephonic meet and confer session on June 23, 2023, defendant sent plaintiffs a follow-up email, which plaintiffs confirmed accurately memorialized their discussion. Smock Supp. Decl. ¶ 2, Ex. A. According to the email, plaintiffs agreed to the following: For the interrogatories at issue, you will supplement by 6/30 to include the information missing and, in the case of Interrogatory No. 4, corrective information. For information you are unable to obtain after a reasonable inquiry, you will include in the supplement an explanation of what Plaintiffs did to obtain the information and why they were unable to obtain the information. For the RFPs at issue, you will likewise supplement by 6/30. To the extent documents still cannot be found in response, your supplement will include a description of what was done to search. For the text messages, that will include an inquiry with the cell phone carriers and user end attempts to restore the text messages. Id. But at least as of the filing of defendant's supplemental memorandum, plaintiffs have failed to provide such supplemental responses. Smock Supp. Decl. ¶ 4. Since the supplemental responses defendant seeks appear reasonable and warranted, and since plaintiffs agreed to provide such supplemental responses and have offered no reason here why the court should not order them, it will. As such, plaintiffs are ordered to provide by July 28, 2023 supplemental responses, in the manner described above, for the following discovery requests: Interrogatory Nos. 1, 2, 4, and 8; Katie Uccello Interrogatory Nos. 11 and 16; D.U. Interrogatory No. 15; RFP Nos. 2, 19, 20, 28, and 31. See Smock Decl. ¶ 3. Defendant also requests an order requiring either (a) plaintiffs' counsel to personally search plaintiffs' telephones, computers, and email accounts for documents responsive to its RFPs; or (b) plaintiffs to hire a vendor at their expense to conduct a forensic search. Mtn. at 24; D. Supp. Mem. at 6. Plaintiffs again do not appear to oppose such an order, and the court finds it reasonable under the circumstances. As such, defendant's request as to the manner in which plaintiffs conduct their search for responsive documents is granted, and plaintiffs' supplemental responses must indicate the manner in which the search was conducted. B. Plaintiffs Are Ordered to Provide a Complete Computation of Damages for Each Category of Damages They Seek in Their Initial Disclosures The June 23, 2023 email memorializing the parties' telephonic meet and confer session shows that plaintiffs agreed to “serve amended disclosures by 6/30 that include the amounts claimed for each category of damages, as well as a computation for each category explaining how the figure was arrived at.” Smock Supp. Decl., Ex. A. On June 30, 2023, plaintiffs served supplemental initial disclosures that include amounts claimed for the following categories: funeral and burial expenses, medical expenses, financial support, loss of companionship, and lost wages. See Smock Supp. Decl., Ex. B. But defendant notes that in the first paragraph of the section pertaining to damages, plaintiffs list various other categories of damages sought without including amounts claimed, computations, or the category's meaning. The unsupported categories of damages listed are: “the serious injuries resulting in death,” “pain, suffering, disfigurement,” “other non-economic damages,” “general damages,” “compensatory damages,” “special damages,” and “exemplary damages.” Defendant seeks an order compelling plaintiffs to either remove these items or disclose the amounts sought and computations for each category. For the latter four of these categories, defendant also seeks an explanation of the nature of the damages claimed. It appears that this list of unsupported categories of damages may have been intended as a boilerplate introduction paragraph, broadly outlining the various types of damages plaintiffs seek, which are then specified in greater detail below. To the extent that is the case, the language is confusing and appears unnecessary in light of the more specific information that follows. And to the extent plaintiffs do intend to claim damages in these unsupported categories, defendant is correct that per Fed. R. Civ. P. 26(a)(1)(A)(iii), plaintiffs are required to provide amounts and computations for each category. *5 As such, plaintiffs are ordered to provide by July 28, 2023 further supplemental initial disclosures that either (a) remove the categories of damages lacking claimed amounts; or (b) provide the total claimed, computations, and nature of the category for each category claimed. C. Kimberly Uccello and Lisa Danialian Are Ordered to Conduct a Diligent Search and Produce All Documents Responsive to the Requests in Their Respective Subpoenas Still at Issue On June 30, 2023, Kimberly Uccello and Lisa Danialian served their respective subpoena responses. See Smock Supp. Decl., Exs. D-E. Defendant argues their responses are inadequate and that they must be ordered to provide supplemental responses following diligent and reasonable searches, conducted by plaintiffs' counsel or an outside vendor. D. Supp. Mem. at 6-13. In response to most requests, Kimberly Uccello and Lisa Danialian both stated that following a diligent search and reasonable inquiry they had no responsive documents in their control, custody, or possession. But as defendant notes, given the nature of the requests and testimony the individuals provided in their depositions, these claims strain credulity. For example, in response to a request for documents showing all forms of financial support Michael Uccello provided them or plaintiffs in the past ten years, Kimberly Uccello and Lisa Danialian both claimed they had no such documents. See Smock Decl., Exs. D-E. But defendant contends both individuals testified in their depositions that Michael Uccello provided plaintiffs money for clothing and school supplies. See D. Supp. Mem. at 9. Kimberly Uccello and Lisa Danialian have not explained why, in that case, they can locate absolutely no documentation of such support, which presumably must have been facilitated through their guardians. Similarly, in response to a request for documents showing any communications with Michael Uccello or between plaintiffs and Michael Uccello in the past ten years, including text messages, emails, and social media messages, Kimberly Uccello and Lisa Danialian claimed they had no such documents. See Smock Decl., Exs. D-E. But defendant maintains plaintiffs testified to communicating with their father frequently, and in response to a request for records of those communications, provided only a few photos, letters, and holiday cards. See D. Supp. Mem. at 9-10. As defendant notes, it seems likely that plaintiffs' mother and stepmother would have records of these communications, especially considering plaintiffs were generally minors at the time they were made. In short, it is difficult to believe that neither individual could locate records of a single communication with Michael Uccello or between him and their children and over the past ten years, had they made a diligent search. The documents Kimberly Uccello and Lisa Danialian did provide were largely exact duplicates of documents that defendant had already received from plaintiffs. For example, in response to a request for documents showing the amounts they or plaintiffs paid for Michael Uccello's funeral expenses, both individuals provided the exact same scan of various receipts, which was also identical to the scan plaintiffs had already produced. See Smock Supp. Decl. ¶ 4, Exs. D-F. As defendant notes, the fact that the exact same scan of the funeral receipts was provided by plaintiffs, Kimberly Uccello, and Lisa Danialian casts doubt on the claim that Kimberly Uccello and Lisa Danialian each conducted respective, diligent searches of their own records for responsive documents. *6 In light of the above examples, the court agrees with defendant that Kimberly Uccello and Lisa Danialian do not appear to have conducted diligent, good faith searches for documents responsive to its subpoenas, and must be ordered to do so. The court also grants defendant's request for an order requiring them to conduct such searches in the same manner they requested for plaintiffs, namely one requiring either (a) plaintiffs' counsel to personally search their telephones, computers, and email accounts for responsive documents; or (b) plaintiffs to hire a vendor at their expense to conduct a forensic search. D. Supp. Mem. at 13. Kimberly Uccello and Lisa Danialian are therefore ordered to conduct a search in the manner described above and provide supplemental subpoena responses by July 28, 2023. Each response must indicate the manner in which the search was conducted. D. The Court Declines to Recommend Terminating Sanctions at This Time The Ninth Circuit has stated that only “ ‘willfulness, bad faith, and fault’ justify terminating sanctions.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096 (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)). This prerequisite “does not require wrongful intent.” Sanchez v. Rodriguez, 298 F.R.D. 460, 463 (C.D. Cal. 2014). Instead, “[d]isobedient conduct not shown to be outside the control of the litigant is sufficient to demonstrate willfulness, bad faith, or fault.” Jorgensen, 320 F.3d at 912 (citation omitted). “Delay, failure to appear for depositions, failure to answer interrogatories resulting from a party being out of town, and misunderstanding a party's own counsel are not matters outside of a party's control.” Nat'l Corp. Tax Credit Funds III, IV, VI, VII v. Potashnik, 2010 WL 457626, at *4 (C.D. Cal. Feb. 4, 2010) (citing Henry v. Gill Indus., Inc., 983 F.2d 943, 949 (9th Cir. 1993)). Plaintiffs here have come close to demonstrating the willfulness, bad faith, and fault that would justify terminating sanctions. They have repeatedly failed to meet their basic discovery obligations without explanation or excuse. For example, they failed to timely provide responses to defendant's first set of written discovery and did so only upon being ordered by the court. When they ultimately did serve their responses, they did so eleven days after the deadline the court had set. Further, as plaintiffs appear to have conceded, the responses they ultimately served were insufficient. But even after agreeing to provide supplemental responses, they have failed to do so, necessitating yet another discovery motion and court order. Moreover, they have repeatedly failed to meet and confer with defendant about their disputes and have twice failed to provide their portions of the joint stipulations for the discovery motions necessitated by their failings. Nonetheless, plaintiffs have not been entirely unresponsive, and there is still time for plaintiffs to prove the supplemental discovery responses and initial disclosures before the July 28 discovery cutoff. Indeed, given that plaintiffs did not even bother to oppose the instant motion, the court hopes they have been working on doing just that. Although plaintiffs have clearly wasted defendant's time by forcing it to spend resources eliciting plaintiffs' compliance with their basic discovery obligations, any resulting prejudice does not appear to be sufficient at this point to justify terminating sanctions. The court warns plaintiffs, however, that should they fail to comply with their discovery obligations by providing supplemental responses and disclosures in full and in good faith by July 28, 2023, the court may reconsider recommending terminating sanctions. IV. ORDER *7 For the foregoing reasons, IT IS HEREBY ORDERED that defendant's motion to compel (docket no. 59) is granted as set forth above. Footnotes [1] Though defendant seems to assume Kimberly Uccello is no longer D.U.'s GAL now that D.U. has become a legal adult, this issue needs to be clarified with the court, as discussed in the informal telephonic discovery conference with the court on June 21, 2023.