Douglas Scott Milne, II, et al. v. ProAll Int'l Mfg., Inc., et al Case No. 8:23-cv-02212-JVS-JDEx United States District Court, C.D. California Filed May 12, 2025 Early, John D., United States Magistrate Judge Proceedings: (In Chambers): Order Denying Defendants' Motion to Compel (Dkt. 75) I. INTRODUCTION *1 On November 27, 2023, Plaintiffs Douglas Scott Milne, II, Geneva Milne, and Gunner Concrete, Inc. (“Plaintiffs”) initiated this action by filing a Complaint against Defendants ProAll International Manufacturing, Inc., Steve Bond, and Gerald Gaubert (“Defendants”). Dkt. 1. On June 7, 2024, Plaintiffs filed the operative Second Amended Complaint against Defendants, asserting claims for fraud and deceit, breach of implied warranty, unfair competition by violating federal excise tax laws, and declaratory relief in connection with the formation of a concrete supply company and sale of concrete mixing trucks. Dkt. 35. On April 24, 2025, Defendants filed a Motion to Compel Plaintiffs to provide further responses to Requests for Production (“RFP”) Nos. 10, 11, and 31 (Dkt. 75, “Motion”) with a Proposed Order (Dkt. 75-1), and a Joint Stipulation (Dkt. 76, “Jt. Stip.”) with supporting and opposing evidence (Dkt. 76-1, 76-2). On April 24, 2025, Defendants filed a Notice of Errata. Dkt. 77. On May 1, 2025, the parties separately filed Supplemental Memoranda in support of and in opposition to the Motion, with Plaintiffs including a supplemental declaration of counsel and exhibits. Dkt. 79, 80, 80-1 to 80-6. Following briefing, the Court found the Motion was suitable for decision without oral argument and vacated the hearing. Dkt. 82. The Court now rules as follows. II. RELEVANT LAW “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. Civil P. (“Rule”) 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “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). 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). Thus, for example, an “objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate, the objection should state the scope that is not overbroad,” such as identifying a more limited time period. Rule 34(b)(2)(B),(C) advisory committee notes to 2015 amendment. In producing electronically stored information (“ESI”), if the request does not specify the form, the responding party may produce ESI in the forms in which it is ordinarily maintained or in a “reasonably usable form or forms” and a party “need not produce the same [ESI] in more than one form.” Rule 34(b)(2)(E)(ii),(iii). *2 “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). A propounding party's belief that a responding party has not complied with a request for production, absent some further showing, is not sufficient to compel a further response. See Grossman v. Directors Guild of Am., Inc., 2018 WL 5914242, at *5 (C.D. Cal. Aug. 22, 2018) (citing Unilin Beheer B.V. v. NSL Trading Corp., 2015 WL 12698382, at *5 (C.D. Cal. Feb. 27, 2015) (“A plaintiff's mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel.”) (citations omitted)); Ogden v. Bumble Bee Foods, LLC, 292 F.R.D. 620, 628 (N.D. Cal. 2013) (“Absent evidence that [the defendant] is withholding documents in its possession, the court cannot issue an order compelling [the defendant] to produce documents it states it does not have.”). III. DISCUSSION A. RFP Nos. 10-11 RFP Nos 10 and 11 seek internal communications between Plaintiffs or their employees and any third-parties regarding concrete mixer truck weight issues (RFP No. 10) and California laws or restrictions as to weight (RFP No. 11). Jt. Stip. at 5. Plaintiffs agreed to produce responsive records. Id. Defendants claim that Plaintiffs “refused to produce text messages in a workable format,” alleging such messages that have been produced have been filtered and edited, removing portions of conversations, and lacking useable metadata contrary to the parties' ESI Protocol agreement, and asserting Plaintiffs did not conduct an adequate search. Id. at 7-6. Plaintiffs respond that they produced “all responsive text messages within their custody and control,” used an IT professional to export the messages with “full metadata” in a manner that complies with the parties' agreed-to ESI protocol, and deny that they filtered, edited, or otherwise manipulated text messages. Id. at 9-11. In response, Defendants assert Plaintiffs had previously conceded that they had “manually separated” some text threads, whereas others were “unfiltered,” which is at odds with their assertion in the Joint Stipulation. Dkt. 79 at 3 (internal pagination). Plaintiffs counter to assert Defendants have not shown any “relevant” metadata is missing and argue that the format used for the production has been used by Plaintiffs since October 2024, without prior complaint. Dkt. 80 at 3-5. In summary: Defendants assert Plaintiffs' responses do not comply with the ESI Protocol, whereas Plaintiffs assert that they do; Defendants assert Plaintiffs materially manipulated text threads and failed to conduct a proper search; Plaintiffs deny the accusations. The ESI Protocol is an agreement between the parties. It is not a Court Order. Although Defendants aver Plaintiffs' production format for the emails makes it “challenging” for Defendants to review relevant text messages, Defendants have not shown Plaintiffs failed to comply with Rule 34(b)(2)(E) in producing the text data. Similarly, although Defendants appear to suspect that relevant, responsive information is missing, Plaintiffs have represented that they have produced all responsive text information. On this record, Defendants' request for an order compelling a further response to RFP Nos. 10-11 is denied. See Grossman, 2018 WL 5914242, at *5; Ogden, 292 F.R.D. at 628. B. RFP No. 31 *3 RFP No. 31 seeks “all Salesforce documents for Gunner Concrete, which Geneva Milne testified had been exported to her computer ....” Jt. Stip. at 12. Plaintiffs responded that they would produce such documents. Id. In the Joint Stipulation, Defendants question why Geneva Milne cancelled Gunner Concrete's Salesforce subscription shortly before initiating this action and question why a spreadsheet produced by Plaintiffs lacks pricing information for over a year. Id. at 13-15. Plaintiffs counter that they “fully complied with this request by producing the entire Salesforce data export ....” Id. at 15. Plaintiffs affirmed they have produced all responsive documents. Defendants' questions about why Geneva Milne canceled the Salesforce subscription and why some pricing information is absent do not overcome Plaintiffs' statement. On this record, Defendants request for an order compelling a further response to RFP No. 31 is denied. See Grossman, 2018 WL 5914242, at *5; Ogden, 292 F.R.D. at 628. Defendants also ask the Court to order Plaintiffs to provide a “supplemental declaration” answering certain questions and providing additional documents not requested in RFP No. 31. See Dkt. 75 at 2. Such requests are also denied, without prejudice to Defendants propounding further discovery upon Plaintiffs on the issue, subject to the operative Scheduling Order. IV. CONCLUSION AND ORDER For the foregoing reasons, the Motion (Dkt. 75) is DENIED.