Corker v. Costco Wholesale Corporation

• Court: District Court, W.D. Washington
• Decided: March 30, 2020
• Docket: 2:19-cv-00290
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 BRUCE CORKER, et al., 8 NO. C19-0290RSL Plaintiffs, 9 v. ORDER GRANTING PLAINTIFFS’ 10 MOTION TO COMPEL COSTCO WHOLESALE, et al., 11 Defendants. 12 13

14 This matter comes before the Court on “Plaintiffs’ Motion to Compel Production of 15 Documents and Compliance with the Court’s ESI Order by Defendant Mulvadi Corporation.” 16 17 Dkt. # 188. On or about October 31, 2019, plaintiffs and most of the defendants in this action, 18 including Mulvadi, stipulated to a protocol for the production of electronically stored 19 information (“ESI”). At the time, plaintiffs and Mulvadi were in the midst of a discovery 20 dispute. Shortly after entry of the ESI order, Mulvadi identified over forty large boxes of 21 purchase, sale, and financial records, containing approximately 50,000 pages, that might be 22 23 responsive to plaintiffs’ discovery requests. Mulvadi invited plaintiffs to send their attorneys to 24 Hawaii to review the documents.1 Plaintiffs declined, pointing out that Mulvadi had agreed that, 25 26 1 Although it is not entirely clear, it appears that Mulvadi was proposing that plaintiffs’ attorneys cull through the boxes to identify responsive materials, at which point Mulvadi would review them and 27 determine whether or not to produce the selected documents. Because Mulvadi has the obligation to 1 wherever practicable, it would scan and produce as text searchable TIFF and PDF files all 2 responsive hardcopy documents. Dkt. # 152 at 7. The parties met and conferred regarding this 3 dispute, but Mulvadi made clear that, while it would provide plaintiffs access to the boxes, it 4 would not undertake the expense or burden of converting the documents into an electronic, text- 5 searchable form because “Mulvadi has neither the means nor the manpower” to do so. Dkt. 6 7 # 200 at 9. 8 The presumption under the Federal Rules of Civil Procedure is that the producing party 9 will bear the expense of production, and an objection based on undue burden must be proven by 10 admissible evidence showing something more than that the production will involve some 11 expense and/or will be time consuming. Oppenheimer Fund v. Sanders, 437 U.S. 340, 358 12 (1978); Shaw v. Experian Info. Sols., Inc., 306 F.R.D. 293, 301 (S.D. Cal. 2015). In this case, 13 14 Mulvadi affirmatively agreed to produce documents in electronic form “whenever practical” and 15 therefore also has the burden of showing impracticality.2 Other than counsel’s representations 16 regarding the square footage of Mulvadi’s office and the number of full-time employees therein, 17 Mulvadi offers nothing but bald assertions regarding its financial condition and/or its ability to 18 scan 50,000 documents. Even if the Court were to consider counsel’s hearsay statements 19 20 regarding what Mulvadi’s employees told him regarding their workloads, there is no indication 21 22 produce responsive documents in text-searchable format, the Court need not evaluate the propriety of 23 the proposed procedure. 24 2 The Court notes that Mulvadi knew exactly what the universe of responsive materials was when it signed onto the ESI protocols: the stipulation was filed on October 31, 2019, and the 40+ boxes 25 of documents were disclosed to plaintiffs two weeks later, on November 13, 2019. Despite knowing 26 how many hardcopy records it had, Mulvadi promised to produce its documents in text-searchable format, apparently without noting its reservations or revealing that it had no intention of actually doing 27 so. 1 that Mulvadi is unable to rent a scanner and hire a temporary worker to scan each folder and its 2 contents for production. Having failed to provide evidence in support of its claims of undue 3 burden and/or impracticality, Mulvadi will be compelled to scan and produce all responsive 4 documents in a text searchable format. 5 6 7 For all of the foregoing reasons, plaintiffs’ motion to compel is GRANTED. Mulvadi 8 shall, within thirty-five days of this Order, scan and produce responsive documents as text 9 searchable TIFF and PDF files. Mulvadi has not waived its other objections, and the Court was 10 not asked to resolve them. 11 12 Dated this 30th day of March, 2020. 13 A 14 Robert S. Lasnik 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27