1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BLUESTAR GENOMICS, Case No. 21-cv-04507-JST (LJC)
8 Plaintiff, ORDER RE: JOINT DISCOVERY 9 v. LETTER
10 CHUNXIAO SONG, et al., Re: ECF No. 150 Defendants. 11
12 13 Pending before the Court is the parties’ Joint Discovery Letter, in which Plaintiff Bluestar 14 Genomics (Bluestar) requests that the Court compel Defendant Dr. Chuxiao Song to produce 15 documents responsive to Requests for Production (RFP) Nos. 5, 7, 8, 13, 17–32, 37–41. ECF No. 16 150. The parties’ primary dispute is whether Dr. Song has “possession, custody, or control” over 17 these documents. The Court held a hearing on April 23, 2024. ECF No. 156. For the reasons 18 explained below, the Court finds that Dr. Song does not have “possession, custody, or control,” 19 and hereby DENIES Bluestar’s request to compel. 20 I. BACKGROUND 21 The factual and procedural background of this case is thoroughly detailed in Judge Tigar’s 22 Order Granting in Part and Denying in Part Defendants’ Motions to Dismiss. See ECF No. 100 at 23 2–14.1 That background is fully incorporated by reference into this Order. In summary, the 24 claims in this action arise out of the alleged breach of a consulting services agreement between 25 Bluestar and Dr. Song. The agreement was executed in 2016, several months after Dr. Song 26 became employed at the University of Oxford (Oxford) in a branch funded by the Ludwig Institute 27 1 for Cancer Research Ltd. (Ludwig), Dr. Song’s former co-defendant. While at Oxford, Dr. Song 2 allegedly developed two technologies used to detect cancer, the 5mC and TAPS technologies, and 3 assigned the rights and interest to them to Ludwig instead of Bluestar, in contravention of the 4 parties’ consulting services agreement. 5 Relevant to the instant discovery dispute, Bluestar served its First Set of RFPs to Dr. 6 Song on October 23, 2023. See ECF No. 150-1. The RFPs seek documents relevant to the 7 assignment and licensing of the 5mc and TAPS technologies, as well as the transactions, 8 valuations, research, and design of these technologies. Id. Under Rule 34 of the Federal Rules of 9 Civil Procedure, Dr. Song’s responses and objections to the RFPs were due on November 22, 10 2023, thirty days from the date the RFPs were served. Dr. Song did not provide any responses or 11 objections by this deadline. Bluestar claims that it had “conversations” with Dr. Song by 12 telephone about his failure to serve RFP responses (ECF No. 150 at 2), but it does not submit any 13 evidence (e.g., a sworn declaration) indicating when these conversations occurred or what was 14 discussed during these conversations. 15 On December 6, 2023, Dr. Song emailed Bluestar noting that he expected to serve his RFP 16 responses and objections within “the next week.” ECF No. 150-6 at 5. Bluestar did not reject or 17 agree to Dr. Song’s proposed timeframe for service of his RFP responses or otherwise 18 acknowledge receipt of the email. Dr. Song, however, failed to serve any responses or objections 19 in December 2023. On January 16, 2024, Bluestar emailed Dr. Song to ask for a status update and 20 cautioned him that the “period to object” to its First Set of RFPs had “lapsed.” Id. at 4. Dr. Song 21 responded the next day, January 17, 2024, and disagreed with Bluestar that the period to object 22 had passed. Id. at 3. He told Bluestar that he expected to serve his responses by the end of the 23 week or the beginning of the following week. Id. 24 Also in that same email, Dr. Song indicated that his counsel had needed to communicate 25 with Oxford and Ludwig on the production of certain responsive documents. Id. It is undisputed 26 that Dr. Song used his Oxford email account for communications related to the subject matter of 27 this litigation. See ECF No. 150 at 2–3. He also stored pertinent files on Oxford’s computer 1 unrelated to his work at Oxford. Id. 2 Oxford’s IT regulations state in relevant part, “The University provides computer facilities 3 and access to its computer networks only for purposes directly connected with the work of the 4 University.” ECF No. 150-4, § 2(1). “Users shall treat as confidential any information which may 5 become available to them through the use of such facilities and which is not clearly intended for 6 unrestricted dissemination; such information shall not be copied, modified, disseminated, or used 7 either in whole or in part without the permission of the individual or body entitled to give it.” Id. 8 § 9. The regulations go on to provide that “[i]f a user is thought to be in breach of any of the 9 University’s statutes or regulations, including these regulations, he or she shall be reported to the 10 appropriate officer who may recommend to the appropriate university or college authority that 11 proceedings be instituted under either or both of university and college disciplinary procedures.” 12 Id. § 15(1). Also relevant is Dr. Song’s employment contract. See ECF No. 31-1. The contract 13 states that “[a]ny matter of a confidential nature, including information, but not limited to, relating 14 to the diagnosis and treatment of patients, individual staff records, and details of contract prices 15 and terms must under no circumstances be divulged to any unauthorized person or persons. 16 Disciplinary action will be taken for any breach of confidentiality.” Id. at 30. 17 In connection with jurisdictional discovery conducted for the parties’ motion to dismiss 18 briefing, Dr. Song produced over 700 pages of emails obtained from the Oxford system, nearly 19 200 pages of Oxford internal policies and agreements, over 700 pages of Oxford research 20 presentations, and over 400 pages of Oxford internal patent prosecution documents. ECF No. 150 21 at 2–3. He most recently produced documents from Oxford on March 12, 2024. See ECF No. 22 150-7. Dr. Song contends that he did not previously produce these documents because they were 23 “not relevant” to jurisdictional discovery, but he was now producing them because they are 24 responsive to Bluestar’s RFPs and “relevant to the ongoing litigation.” Id. 25 On January 16, 2024, Dr. Song asked Oxford if it believed that Oxford should have a 26 representative participate in “the mediation” in this case.2 ECF No. 150-5 at 2. Counsel for 27 1 Oxford responded the next day, January 17, 2024, and referenced the RFPs, informing Dr. Song 2 that “[i]n relation to the discovery requests made of your client, documents that Dr Song has 3 access to in his capacity as a University employee: (i) unless established otherwise, will belong to 4 the University; (ii) may contain information confidential to the University and/or information 5 subject to privilege; and as a result (iii) can only be produced by the University, or otherwise with 6 its consent (which consent, for the avoidance of doubt, has not been provided either to your firm 7 or to your client).” Id. 8 Dr. Song eventually served his responses and objections to Bluestar’s First Set of RFPs on 9 January 19, 2024, three days after Bluestar emailed him asking for a status update. See ECF No. 10 150-2. 11 II. DISCUSSION 12 A. Rule 34 Waiver 13 Bluestar argues, as a threshold matter, that Dr. Song waived his objections to the First Set 14 of RFPs by failing to timely respond. ECF No. 150 at 2. The RFPs were served on October 23, 15 2023, and Dr. Song did not serve his responses and objections until January 19, 2024, 16 approximately two months after the deadline had passed. Id. 17 1. Legal Standard 18 Unless otherwise agreed, a party must serve their responses and any objections to RFPs 19 promulgated during discovery within thirty days after their service. Fed. R. Civ. P. 34(b)(2)(A). 20 Generally, “a failure to object to discovery requests within the time required constitutes a waiver 21 of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 22 1992). Notably, Rule 33, which also provides a thirty-day timeframe for a party to serve their 23 answers and any objections to interrogatories (Fed. R. Civ. P. 33(b)(2)), allows courts to excuse a 24 party’s failure to timely assert objections “for good cause.” Fed. R. Civ. P. 33(b)(4). Rule 34 25 does not contain an analogous “good cause” exception. However, the Ninth Circuit has been 26 reluctant to interpret Rule 34 as imposing an automatic waiver penalty for untimely discovery 27 responses. Cf. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont., 408 F.3d 1 privilege log is not produced within Rule 34’s 30-day time limit.”). 2 Many courts believe that “there is no reason to treat waiver under Rule 34 any different 3 than Rule 33.” Apple Hill Growers v. El Dorado Orchards, Inc., No. 217CV02085TLNCKD, 4 2022 WL 1506205, at *12 (E.D. Cal. May 12, 2022) (quoting Ocean Garden Prod. Inc. v. 5 Blessings Inc., 2020 WL 4284383, at *1 (D. Ariz. July 27, 2020)). “[C]ourts ‘retain discretion to 6 relieve a late or non-responding party from the potentially harsh consequences associated with 7 waiver.’” Id. (quoting Liguori v. Hansen, 2012 WL 760747, at *11 (D. Nev. Mar. 6, 2012)); see 8 also Rijhwani v. Wells Fargo Home Mortgage, Inc., No. C-13-05881 LB, 2015 WL 848554, at *1 9 (N.D. Cal. Jan. 28, 2015) (considering whether to excuse plaintiffs’ untimely response to 10 defendants’ requests for production, but finding that the record did not support relieving them of 11 their waiver of their right to object). “In determining whether a party has shown good cause, a 12 court should evaluate relevant factors, including: (1) the length of the delay; (2) the reason for the 13 delay; (3) the existence of bad faith; (4) the prejudice to the party seeking the disclosure; (5) the 14 nature of the request; and (6) the harshness of imposing the waiver.” Lam v. City & Cnty. of San 15 Francisco, No. 410CV04641PJHLB, 2015 WL 4498747, at *3 (N.D. Cal. July 23, 2015) 16 (applying the “good cause” standard in the context of Rule 33 interrogatories). 17 2. Analysis 18 The Court will exercise its discretion and not impose an automatic waver penalty for Dr. 19 Song’s untimely RFP responses and objections. Instead, the Court will apply Lam’s six-factor 20 balancing test and consider whether Dr. Song has shown “good cause” for his delay in responding 21 to Bluestar’s First Set of RFPs. 22 a. Length of the Delay 23 It is undisputed that Dr. Song did not serve his responses and objections to Bluestar’s First 24 Set of RFPs until January 19, 2024, almost two months after his responses were originally due 25 under Rule 34. This is a significant amount of time, and thus, this factor weighs in favor of 26 Bluestar. 27 b. Reason for the Delay 1 part because of the need to obtain Oxford’s consent to the production of responsive documents, as 2 the documents are stored on Oxford’s computer system. ECF No. 150 at 6. He claims that 3 Ludwig initially promised to assist him with this process, but “ultimately and unexpectedly 4 declined to do so.” Id. Dr. Song then had to reach out to Oxford directly, who ultimately refused 5 to provide its consent. See ECF No. 150-5 at 2. Regardless of whether Dr. Song does or does not 6 actually need Oxford’s consent to produce the requested documents, it was undoubtedly 7 reasonable for him to investigate the issue first before responding to Bluestar’s First Set of RFPs. 8 It is undisputed that relevant documents are located on Oxford’s system and that Dr. Song would 9 need to access that system to be able to produce them in this litigation. It is also reasonable to 10 assume that this investigation involved communications with Ludwig, Dr. Song’s former co- 11 defendant, especially given Ludwig’s working relationship with Oxford. See SAC ¶ 23; ECF No. 12 31-1 at 2. As such, this factor weighs in favor of Dr. Song 13 c. Existence of Bad Faith 14 Bluestar argues that, even if the delay is attributable to “supposed coordination with 15 Ludwig and Oxford,” this does not explain Dr. Song’s failure to serve written responses or to seek 16 an extension within Rule 34’s 30-day timeframe. ECF No. 150 at 2. Moreover, the supposed 17 “coordination” ultimately resulted in nothing but Dr. Song refusing to produce any documents and 18 “demanding” instead that Bluestar seek the documents from Oxford via a Hague Convention 19 discovery request. Id. Dr. Song does not dispute the fact that he did not respond to the RFPs or 20 ask for an extension before Rule 34’s thirty-day deadline had passed. Dr. Song also does not 21 dispute the fact that he informed Bluestar on December 6, 2023 that he expected to serve his RFP 22 responses and objections in “the next week,” yet he failed to serve anything until more than a 23 month later. ECF No. 150-6 at 5. 24 Despite this clear misstep, Dr. Song contends that “[t]here was no bad faith and no attempt 25 to obstruct discovery.” ECF No. 150 at 6. According to him, the delay is attributable only to the 26 need for Dr. Song to communicate with Ludwig and Oxford on the issue of producing documents 27 from Oxford’s computer system. Id. There is no evidence before the Court to suggest that Dr. 1 conduct” during this litigation and relied on it as evidence of bad faith. Bluestar emphasized how 2 Dr. Song entered into the Stipulated Protective Order “in this case knowing he maintained his 3 documents on the Oxford server and that production of such documents would be at the heart of 4 the case.” ECF No. 150 at 4. But stipulated protective orders are par for the course in civil 5 litigation and the fact that he stipulated to the Protective Order here does not in and of itself 6 establish bad faith. 7 Bluestar also argued that Dr. Song acted in bad faith by producing records from Oxford’s 8 computer system during an earlier stage of the litigation when jurisdictional discovery was being 9 conducted and then objecting to producing documents of Oxford’s in response to Bluestar’s First 10 Set of RFPs supposedly because he lacks “possession, custody or control” over them. As further 11 detailed below (see infra Section B.2), Dr. Song previously produced Oxford’s documents 12 believing that Ludwig had obtained Oxford’s consent for them to be produced in this litigation. 13 Whether Oxford did or did not actually consent, Dr. Song subjectively believed Oxford had agreed 14 to the documents being produced, and this does not evidence bad faith in conducting discovery, 15 especially given Ludwig’s involvement as Dr. Song’s co-defendant earlier in the case. Ultimately, 16 this factor also weighs in favor of Dr. Song. 17 d. Prejudice to the Party Seeking the Disclosure 18 As noted above, Bluestar submitted no evidence with respect to the “conversations” its 19 counsel purportedly had with defense counsel in those two months prior to January 16, 2024, 20 when Bluestar emailed Dr. Song asking about his RFP responses and asserting its position that the 21 period to object had “lapsed” (ECF No. 150-6 at 4). Dr. Song claims that no such “conversations” 22 ever occurred. ECF No. 150 at 6. The Court asked about the parties’ communications as to Dr. 23 Song’s RFP responses at the hearing, but Bluestar drew the Court’s attention only to the existing 24 record. The record shows that Bluestar inquired about Dr. Song’s RFP responses only once, on 25 January 16, 2024, fifty-five days after Rule 34’s thirty-day deadline had passed. ECF No. 150-6 at 26 4. 27 Thus, Bluestar’s contention that it was prejudiced by the two-month delay is belied by the 1 When Dr. Song told Bluestar that he expected to serve his RFP responses on or around December 2 13, 2024 (see ECF No. 150-6 at 5), Bluestar did not respond (even after December 13, 2024 3 passed) until more than a month later. See id. at 4. This is despite the fact that the substantial 4 completion deadline in this case, May 12, 2024, was less than six months away. See ECF No. 5 129. This factor weighs in favor of Dr. Song. 6 e. Nature of the Request 7 Bluestar served forty-one RFPs on Dr. Song, most of which request documents as to the 8 5mc and TAPS technologies (the two disputed technologies at issue), more specifically, as to the 9 assignment, licensing, transactions, valuations, research, and design of these technologies. See 10 generally ECF No. 150-1. Given the complex subject matter of this litigation, and the number of 11 RFPs served by Bluestar, it is reasonable to expect that responding to the discovery requests at 12 issue here would require more than the thirty-day timeframe provided in Rule 34. Thus, this 13 factor weighs in favor of Dr. Song. 14 f. Harshness of Imposing Waiver 15 A finding that Dr. Song waived his objections to Bluestar’s RFPs could lead to potentially 16 harsh consequences for him. Imposing an automatic waiver means that the Court would not reach 17 the merits of Dr. Song’s “possession, custody, or control” objection. In this case, Dr. Song would 18 need to produce documents stored on Oxford’s computer system, even though Oxford has 19 explicitly informed him that he does not have its permission to produce such documents. This 20 opens him up to possible sanctions by Oxford, his employer. This final factor also weighs in favor 21 of Dr. Song. 22 Accordingly, given all the above, the Court finds that good cause exists to excuse Dr. 23 Song’s two-month delay in responding to Bluestar’s First Set of RFPs. 24 B. Possession, Custody, or Control 25 Bluestar challenges Dr. Song’s objection that documents responsive to RFP Nos. 5, 7, 8, 26 13, 17–32, 37–41 are not in his “possession, custody, or control” because they are stored on 27 Oxford’s computer system. ECF No. 150 at 5. Dr. Song, for his part, argues that he “has no legal 1 consent.” Id. 2 1. Legal Standard 3 Rule 34 only requires production of relevant documents that “are in the responding party’s 4 possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “[F]ederal courts have consistently 5 held that documents are deemed to be within the ‘possession, custody or control’ for purposes of 6 Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the 7 documents on demand.” Goolsby v. Cnty. of San Diego, No. 3:17-CV-564-WQH-NLS, 2019 WL 8 3891128, at *4 (S.D. Cal. Aug. 19, 2019) (quoting In re Bankers Trust Co., 61 F.3d 465, 469 (6th 9 Cir. 1995) (emphasis in original)). 10 “Control is defined as the legal right to obtain documents upon demand.” United States v. 11 Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). Like 12 the majority of circuits, the Ninth Circuit has refused “to define ‘control’ in a manner that focuses 13 on the party’s practical ability to obtain the requested documents.” In re Citric Acid Litig., 191 14 F.3d 1090, 1107–08 (9th Cir. 1999). “Documents are not discoverable under Rule 34 if the entity 15 that holds them ‘could legally—and without breaching any contract—continue to refuse to turn 16 over such documents.’” Matthew Enter., Inc. v. Chrysler Grp. LLC, No. 13-CV-04236-BLF, 2015 17 WL 8482256, at *3 (N.D. Cal. Dec. 10, 2015) (quoting In re Citric Acid, 191 F.3d at 1107–08). 18 In applying the legal control test, “[d]ecisions from within this circuit have noted the 19 importance of a legal right to access documents created by statute, affiliation or employment.” 20 uSens, Inc. v. Shi, No. 18-CV-01959-SVK, 2019 WL 13201984, at *2 (N.D. Cal. Apr. 24, 2019) 21 (quoting In re Legato Sys., Inc. Sec. Litig., 204 F.R.D. 167, 170 (N.D. Cal. 2001)). “Central to 22 each case is the relationship between the party and the person or entity having actual possession of 23 the document.” Thomas v. Hickman, No. 106-CV-00215-AWI-SMS, 2007 WL 4302974, at *14 24 (E.D. Cal. Dec. 6, 2007). “The requisite relationship is one where a party can order the person or 25 entity in actual possession of the documents to release them.” Id. “The party seeking production 26 of the documents…bears the burden of proving that the opposing party has…control” over the 27 requested documents. Int’l Union, 870 F.2d at 1452. 1 2. Analysis 2 Bluestar contends that, based on Dr. Song’s prior document productions earlier in the 3 litigation, Dr. Song has a legal right to obtain and produce documents from the Oxford computer 4 system and is therefore in possession, custody, or control of such documents. ECF No. 150 at 2– 5 3. Dr. Song argues that he has no legal right to obtain documents of Oxford’s because he is 6 prohibited from doing so by his employment contract and Oxford’s IT regulations.3 ECF No. 150 7 at 5. Bluestar makes no argument as to whether the terms of Dr. Song’s employment with Oxford 8 legally prevent him from logging into the Oxford system to retrieve responsive emails and files for 9 production in this litigation. The Court finds, having reviewed Dr. Song’s employment contract, 10 Oxford’s IT regulations, and Oxford’s January 16–17, 2024 email correspondence with Dr. Song, 11 that Dr. Song lacks control, namely, a legal right to produce in this litigation all responsive 12 documents from the Oxford computer system which he has access to. Oxford, as Dr. Song’s 13 employer, has notified him that documents he can access in his capacity as an Oxford employee: 14 (1) “unless established otherwise, will belong to the University”; (2) may contain information 15 confidential to Oxford and/or information subject to privilege; and (3) as a result, can only be 16 produced by Oxford, or otherwise with its consent. ECF No. 150-5 at 2. Oxford also 17 unequivocally informed him that it does not consent to the production of these documents by Dr. 18 Song in relation to the RFPs at issue here. Id. Based on Oxford’s position, the Court rejects 19 Bluestar’s blanket assertion that Dr. Song controls and must produce all responsive documents 20 from Oxford’s computer system which he has access to as an Oxford employee. 21 Dr. Song does not dispute the fact that he has previously produced documents of Oxford’s 22 in this litigation, specifically in connection with jurisdictional discovery. He claims, however, that 23 he did so while Ludwig was still a co-defendant, and that Ludwig represented to him that it had 24 obtained permission to produce the documents from Oxford. Id. at 5. According to Dr. Song, 25
26 3 At the hearing, Bluestar claimed that Dr. Song represented in the Joint Discovery Letter that he is not objecting to producing documents stored on Oxford’s system relating to his consulting 27 agreement with Bluestar. This is false. Dr. Song says only that he “has not objected to producing 1 once it was dismissed from the case, Ludwig declined to assist him in obtaining Oxford’s consent 2 in connection with responding to Bluestar’s First Set of RFPs. When Dr. Song contacted Oxford 3 directly, Oxford declined to give its consent. ECF No. 150-5 at 2. Bluestar, for its part, notes that 4 Dr. Song has provided no support that any of this took place with respect to Ludwig and Oxford 5 and argues that Dr. Song has provided “no good explanation for why Oxford would permit the 6 production of documents in connection with Song’s motion [to dismiss] but not on the merits of 7 the case.” ECF No. 150 at 3. 8 The Court need not determine whether Dr. Song did or did not have Oxford’s consent to 9 produce documents obtained from its computer system during jurisdictional discovery. Prior 10 production by Dr. Song of these documents is not dispositive of the question before the Court— 11 does Dr. Song have the “legal right” now to obtain documents from Oxford “upon demand?” Int’l 12 Union, 870 F.2d at 1452; see SiteLock LLC v. GoDaddy.com LLC, No. CV-19-02746-PHX-DWL, 13 2023 WL 3344638, at *28 (D. Ariz. May 10, 2023) (“[T]he fact that SiteLock was previously able 14 to obtain documents from [SiteLock’s parent company] does not establish that it has the legal right 15 to obtain other documents.”) If Dr. Song previously produced Oxford’s documents without its 16 consent, then how Oxford responds is up to the University, but that does not mean that Bluestar 17 can force him to do so again. 18 If Oxford did consent, the record shows that it is now withdrawing that consent, and 19 Bluestar has cited to no authority indicating that Oxford is legally prevented from doing so. Nor is 20 it relevant that Dr. Song produced documents of Oxford’s on March 11, 2024 (see ECF No. 150- 21 7), months after he asserted a “possession, custody, or control” objection in response to Bluestar’s 22 First Set of RFPs. Dr. Song made clear when he produced these documents that he originally 23 obtained them during jurisdictional discovery, and he believed (whether rightly or wrongly) at that 24 time that Oxford consented to their production. Id. 25 Bluestar cites to Allen v. Woodford, No. CVF051104OWWLJO, 2007 WL 309945 (E.D. 26 Cal. Jan. 30, 2007), which granted the plaintiff’s motion to compel because the individual 27 defendants “already produced documents” like the documents requested and they “would seem to 1 relationship.” Id. at *3. However, in Allen, five of the six individual defendants were high-level 2 California Department of Corrections and Rehabilitation (CDCR) officials, including Jeanne 3 Woodford, then the Director of CDCR, and the Warden of the prison where the plaintiff was 4 incarcerated. 2007 WL 309945, at *1. Dr. Song notes that he is merely an employee at Oxford, 5 not an officer or director with ultimate decision-making authority. ECF No. 150 at 5. Bluestar 6 has offered no evidence to the contrary. 7 Moreover, by virtue of their employment with CDCR, the individual defendants in Allen 8 were represented by the California Attorney General’s Office. “It is this Court’s experience that 9 individual defendants who are employed by CDCR and/or the Attorney General can generally 10 obtain documents, such as the ones at issue here, from CDCR by requesting them.” Mundo v. 11 Carmona, No. 116CV01687AWIMJSPC, 2018 WL 1083889, at *2 (E.D. Cal. Feb. 28, 2018) 12 (finding that the defendant had “constructive control over the requested documents” based on the 13 “specific facts” of that case). There is nothing before the Court which indicates that Oxford is also 14 known to provide employees who are parties to litigation in their individual capacities with 15 University documents. Finally, Bluestar fails to mention that the magistrate judge’s order in Allen 16 was subsequently modified on reconsideration by the district judge. See Allen v. Woodford, No. 17 1:05-CV-1104 OWW NEW, 2007 WL 9747771 (E.D. Cal. Mar. 16, 2007). The district judge 18 modified the order to require that the individual defendants “provide, if they themselves are not 19 the custodians, the information as to who has custody, possession and control of the requested 20 documents.” Id. at *3. Thus, the Allen court never definitively established that the individual 21 defendants, as CDCR employees, had “possession, custody, or control” over CDCR documents. 22 Bluestar also cites to uSens, Inc. v. Shi, which held that “courts regularly compel parties to 23 produce relevant corporate documents in their possession, custody and control as employees of a 24 third-party.” 2019 WL 13201984, at *2. But uSens involved the CEO of the company whose 25 documents were being sought, and at his deposition, the CEO admitted that he “possessed” the 26 company’s financial records. Id. “Such admissions, along with Shi’s employment as the 27 CEO…are sufficient to meet uSens’s burden of demonstrating control under Rule 34.” Id. 1 case. Moreover, uSens cited to Allen, which as noted above is distinguishable to the instant 2 dispute, and In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177 (S.D.N.Y. 2006), a case 3 from the Second Circuit, which deems a party to have “control” over documents if the party has 4 the “legal right or practical ability” to obtain the documents. Id. at 180. As noted above, the 5 Ninth Circuit has explicitly rejected any “practical ability” test for “control.” See In re Citric 6 Acid, 191 F.3d at 1107–08. In addition, the producing party in In re Flag Telecom Holdings was a 7 “senior executive” of the company whose records were being sought, and the company itself was a 8 former party to the litigation. 236 F.R.D. at 181. Oxford has never been a party to this case, and 9 Dr. Song is not an executive or an official of high authority at Oxford. 10 Dr. Song, for his part, relies on SiteLock, which involved a parent company, Innovative 11 Business Services, LLC (IBS), and its subsidiary, SiteLock, the producing party. 2023 WL 12 3344638, at *1. SiteLock argued that the fact it had previously produced documents labeled 13 “IBS” was “unremarkable” because “parties frequently receive documents from non-parties in the 14 ordinary course of business and later produce those documents in litigation.” Id. at *27. The 15 court found that GoDaddy, the requesting party, had not proved that SiteLock had the legal right 16 to obtain the documents at issue. Id. at *28. Moreover, counsel for the corporate entity that at the 17 time possessed the IBS documents informed SiteLock that it would “not voluntarily furnish the 18 requested documents” and GoDaddy had “not provided any evidence that SiteLock ha[d] legal 19 recourse to challenge” the decision. Id. Here, Bluestar has likewise failed to show how Dr. Song 20 could produce Oxford’s documents despite the evidence in the record establishing that Oxford has 21 not granted its consent. 22 Bluestar attempts to distinguish SiteLock by arguing that SiteLock involved “a request for 23 third party documents rather than production from its own possession.” ECF No. 150 at 3. 24 Bluestar suggests (but never explicitly argues) in the Joint Discovery Letter that Dr. Song has 25 “possession” over Oxford’s documents. ECF No. 150 at 3 (citing Thomas, 2007 WL 4302974, at 26 *13 (“A party having actual possession of documents must allow discovery even if the documents 27 belong to someone else; legal ownership of the documents is not determinative.”)). At the 1 located on Oxford’s computer system in part because he has already produced documents of 2 Oxford’s during jurisdictional discovery. 3 As explained above, the fact that Dr. Song previously produced documents from Oxford’s 4 system does not demonstrate that he has the legal right to obtain documents from Oxford upon 5 demand. See SiteLock, 2023 WL 3344638, at *28 (D. Ariz. May 10, 2023). And the fact that Dr. 6 Song can log into his Oxford account and download emails and files does not necessarily mean 7 that he has “possession” over the documents. Bluestar does not cite to any legal authority finding 8 that an employee “possesses” his work emails or documents for purposes of Rule 34 production. 9 It is true that some courts have found employees to have “control” over their employers’ 10 documents especially when the employees were permitted to utilize the documents over the course 11 of their employment. See, e.g., In re Flag Telecom Holdings., 236 F.R.D. at 181. But most courts 12 that have done so have relied on the “practical ability” test for determining “control,” which as 13 noted above, the Ninth Circuit has refused to adopt in this circuit. See In re Citric Acid, 191 F.3d 14 at 1107–08. 15 Notably, the court in Thomas ultimately held that the defendants, who were staff 16 physicians employed by CDCR, did not have possession, custody or control of the documents at 17 issue because they were “not in a position with job duties or authority such that it may be 18 reasonably concluded that their employment relationship would give rise to their actual 19 possession, custody, or control, or the legal right to obtain control of” the documents. 2007 WL 20 4302974, at *14–15. Unlike the CDCR defendants in Allen, the defendants “could only access 21 hard copies of an inmate’s medical records upon request, solely for the purpose of treating an 22 inmate, and not for any other purpose.” Id. As noted above, Bluestar has failed to present any 23 evidence to rebut Dr. Song’s contention that he is an employee with no decision-making authority, 24 who, pursuant to Oxford’s IT regulations, can only access Oxford’s computer system “for 25 purposes directly connected with the work of the University.” ECF No. 150-4, § 2(1). 26 Accordingly, the Court upholds Dr. Song’s objection and finds that he does not have 27 “possession, custody, or control” over documents responsive to RFP Nos. 5, 7, 8, 13, 17–32, 37– 1 Bluestar has failed to bear its burden of demonstrating that Dr. Song has “control” over such 2 || documents. 3 C. Confidentiality 4 Bluestar also challenges Dr. Song’s objection that, even if the responsive documents at 5 issue are held to be in his “possession, custody, or control,” they are “subject to an obligation of 6 || confidentiality or non-disclosure” to Oxford and would “require Dr. Song to disclose information 7 in violation of a legal obligation or contractual obligation of confidentiality or nondisclosure.” See 8 || ECF No. 150-2. Because the Court has found that the requested documents are not in Dr. Song’s 9 || “possession, custody, or control,” this objection is moot. 10 || I. CONCLUSION 11 For the foregoing reasons, Bluestar’s request to compel is hereby DENIED. IT IS SO ORDERED. 13 Dated: May 7, 2024 4 15 Fa , Mary 2 LIZA/J. CISNEROS = 16 Magistrate Judge
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