1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISMAEL DIAZ, Case No.: 21cv526-DMS-LL
12 Plaintiff, ORDER (1) GRANTING IN PART 13 v. AND DENYING IN PART PLAINTIFF’S MOTION TO 14 CAPITAL ONE, N.A.; CAPITAL ONE COMPEL AND (2) DENYING FINANCIAL CORPORATION; and 15 PLAINTIFF’S REQUEST FOR CAPITAL ONE BANK (USA), N.A., SANCTIONS 16 Defendants. 17
18 Currently before the Court is Plaintiff’s Motion to Compel Discovery Responses 19 Pursuant to Federal Rule of Civil Procedure 37(a). ECF No. 22 (“Mot.”). Defendants filed 20 a Response in Opposition [ECF No. 23 (“Opp.”)], and Plaintiff filed a Reply [ECF No. 24 21 (“Reply”)]. Plaintiff also seeks monetary sanctions for his attorneys’ fees and costs in 22 resolving the discovery dispute and for filing the instant motion. Mot. at 11. For the below 23 reasons, Plaintiff’s Motion to Compel is GRANTED IN PART and DENIED IN PART. 24 With respect to Plaintiff’s requests for sanctions, the parties may provide supplemental 25 briefing as set forth below. 26 BACKGROUND 27 According to Plaintiff’s Complaint, Defendants Capital One N.A., Capital One 28 Financial Corporation, and Capital One Bank (USA), (“Capital One”) issued him a credit 1 card at some point prior to 2020. Compl. ¶ 34. Beginning in January 2021, he was unable 2 to maintain the regular monthly payments. Id. ¶ 35. Upon default, Capital One agents called 3 his cell phone to request payment through the use of an “automatic telephone dialing 4 system” (ATDS) and/or a “recorded voice.” Id. ¶¶ 36, 45. The calls occurred “multiple 5 times . . . . often 2-3 times per day, almost every single day.” Id. ¶ 36. He retained an 6 attorney who drafted and mailed a cease-and-desist letter revoking consent to call him via 7 the use of an ATDS. Id. ¶ 39. Capital One continued to call Plaintiff’s cell phone to request 8 payment through the use of an ATDS and/or recorded voice “often 2-3 times per day, 9 almost every single day . . . . over fifty (50) times in total.” Id. ¶¶ 40, 42-43. On March 25, 10 2021, Plaintiff filed his Complaint alleging violations of the Telephone Consumer 11 Protection Act (TCPA) and California’s Rosenthal Fair Debt Collection Practices Act 12 (RFDCPA). 13 On June 28, 2021, Plaintiff served his first requests for production, interrogatories, 14 and admissions. Mot. at 2. On August 18, 2021, Capital One responded with numerous 15 objections. Id. On August 23, 2021, Plaintiff’s counsel sent Capital One a letter claiming 16 its responses “did not contain a single substantive response, nor attach any substantive 17 document to said response.” ECF No. 22-8 at 1. Counsel agreed to meet and confer by 18 telephone on September 2, 2021. Mot. at 2. Prior to the September 2, 2021 call, Capital 19 One’s counsel stated in an e-mailed letter: 20 Plaintiff’s Initial Requests seek information and documents that are not 21 proportional to the needs of this single Plaintiff TCPA and RFDCPA case. This is a single plaintiff case involving a small number of calls made over a 22 period of time. Yet, Plaintiff served over two hundred (200) discovery 23 requests, including seventy-two (72) Requests for Production; sixty-three (63) Interrogatories, and seventy-three (73) Requests for Admission. Many of 24 those requests go to issues wholly unrelated to the claims. That is improper. 25 Capital One Bank (USA) NA thus produced responsive documents related to 26 27 1 Capital One states that Capital One, N.A. and Capital One Financial Corporation are 28 1 the claim – namely the entirety of our correspondence to and from Plaintiff and all call logs showing attempts to contact Plaintiff at [his] telephone 2 number[.] 3 ECF No. 22-10 at 2-3. Plaintiff’s counsel claims that during the call Capital One’s counsel 4 agreed to supplement its responses regarding: 5 (1) Defendant’s mailing address; (2) Defendant’s phone equipment; (3) said 6 telephone equipment’s manual(s); (4) the procedures Capital One had in place to avoid violations of the RFDPCA – an essential element of their “Bona Fide 7 Error” affirmative defense asserted in their Answer . . . ; and (5) Defendant’s 8 3rd party telephone service provider.
9 Mot. at 3. It is not clear from the papers whether counsel agreed to provide additional 10 responses within any particular time frame. See id. at 4. 11 On September 17, 2021, counsel jointly contacted chambers regarding a discovery 12 dispute, and the court subsequently issued a briefing schedule ordering Plaintiff to file any 13 motion to compel by September 27, 2021. ECF No. 21. On September 24, 2021, Plaintiff 14 filed the instant Motion to Compel. ECF No. 22. Capital One filed an Opposition on 15 October 4, 2021 [ECF No. 23], and Plaintiff filed a Reply on October 6, 2021 [ECF No. 16 24]. 17 LEGAL STANDARD 18 “A district court is vested with broad discretion to permit or deny discovery.” Laub 19 v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). Unless otherwise limited by 20 court order, the scope of discovery under the Federal Rules of Civil Procedure is as 21 follows: 22 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 23 case, considering the importance of the issues at stake in the action, the 24 amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and 25 whether the burden or expense of the proposed discovery outweighs its likely 26 benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 27
28 Fed. R. Civ. P. 26(b)(1). Courts must limit the frequency or extent of discovery if it 1 determines that: 2 (i) the discovery sought is unreasonably cumulative or duplicative, or can be 3 obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity 4 to obtain the information by discovery in the action; or (iii) the proposed 5 discovery is outside the scope permitted by Rule 26(b)(1).
6 Fed. R. Civ. P. 26(b)(2)(C). 7 “[A] party may move for an order compelling disclosure of discovery.” Fed. R. Civ. 8 P. 37(a)(1). “The party seeking to compel discovery has the burden of establishing that its 9 request satisfies the relevancy requirement of Rule 26(b)(1).” La. Pac. Corp. v. Money 10 Mkt. 1 Inst. Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012). “The party who resists 11 discovery has the burden to show discovery should not be allowed, and has the burden of 12 clarifying, explaining, and supporting its objections.” Blankenship v. Hearst Corp., 519 13 F.2d 418, 429 (9th Cir. 1975). 14 DISCUSSION 15 Plaintiff argues that Capital One did not, as of the date he filed his Motion to Compel, 16 sufficiently respond to his requests for: (1) “the manual(s) for [the] telephone equipment 17 [used by Capital One];” (2) “the specific procedures [Capital One] maintained that were 18 adapted to avoid this particular violation of the RFDCPA (i.e., an essential element of their 19 affirmative Bona Fide Error defense);” and (3) the identity of Capital One’s “telephone 20 service provider so that Plaintiff could issue subpoenas to said 3rd party if needed[.]” Mot. 21 at 6. As a result, Plaintiff seeks an order compelling Capital One to respond to “all” his 22 requests for production and “set one” of his interrogatories, and requiring Capital One to 23 provide a factual basis for “all” its denials made in response to Plaintiff’s requests for 24 admissions.2 Id. at 11. Plaintiff also seeks monetary sanctions for his attorneys’ fees and 25
26 27 2 Although Plaintiff requests an order compelling Capital One to respond to “all” of his initial discovery requests, in his Motion, he only specifically identifies these three 28 1 costs in resolving the dispute and filing the instant motion. Id. 2 A. Telephone Equipment Manuals 3 In Request for Production No. 19, Plaintiff requested that Capital One produce “the 4 User Manual for any and all telephone equipment used by [Capital One] to dial Plaintiff’s 5 cellular telephone, along with a list of the full names, model numbers and serial numbers 6 of all equipment used to telephone Plaintiff.” ECF No. 22-2 at 13. Additionally, in 7 Interrogatory No. 14, Plaintiff asked Capital One to provide “the manufacturer or program 8 name, [and] serial numbers, of all telephone equipment owned or operated by [Capital 9 One].” ECF No. 22-3 at 10. 10 In its Opposition, Capital One states, and the papers support, that on October 1, 2021 11 Capital One provided Plaintiff with “information identifying the telephone equipment used 12 to make calls to [Plaintiff’s number]” as well as “the third-party vendor’s website 13 maintaining the user manuals for that equipment.” Opp. at 5; ECF No. 24-2 at 2. In his 14 Reply, Plaintiff does not dispute this is responsive to his request as modified after meeting 15 and conferring. Rather, Plaintiff generally “renews” his request for an order compelling 16 Capital one to respond to “all” of his requests for production and “set one” of his 17 interrogatories. Reply at 6. Accordingly, to the extent Plaintiff still seeks an order to compel 18 a response to Request for Production No. 19 or Interrogatory No. 14, the motion is 19 DENIED. 20 B. RFDCPA Compliance Policies 21 On June 28, 2021, Plaintiff propounded Interrogatory No. 12 asking Capital One to 22 “[d]escribe any and all policies, procedures, and/or manuals [Capital One] had in place on 23 March 17, 2021 to process letters sent by attorneys requesting that Defendant cease and 24 desist calling a represented client in compliance with the [RFDCPA].” ECF No. 22-3 at 10. 25 Plaintiff also propounded Interrogatory No. 13 asking Capital One to “[d]escribe any and 26 all training programs [Capital One] had in place on March 17, 2021 to ensure their 27 employees complied with the [RFDCPA].” Id. 28 On August 11, 2021, Capital One objected to Interrogatory No. 12 on the grounds 1 of over breadth, burden, scope of time, relevance, confidentiality, and privilege. ECF No. 2 22-6 at 7-8. Capital One also objected to Interrogatory No. 13 on the same grounds except 3 for privilege and adding a proportionality objection. Id. at 8. In its response, Capital One 4 stated, “pursuant to Fed. R. Civ. P. 33(d) see Capital One’s document production.” Id. In 5 his August 23, 2021 meet and confer letter, Plaintiff responded: 6 Despite Capital One’s boilerplate objection, the Interrogatory is directly relevant as one of Defendant’s Affirmative Defense to an RFDCPA claim is 7 a bona-fide error defense [sic], which requires the Defendant to show that they 8 had previously implemented reasonable procedures to prevent the specific type of violation alleged in the case. Capital One even included this defense 9 in its Fifth Affirmative Defense titled: “Unintentional Violation” (See ECF 10 No. 7, pp. 13, ¶¶ 14-17). Paragraph 15 of Capital One’s Answer states, “Capital One has implemented procedures to prevent violations of law.” 11
12 ECF No. 22-8 at 12-13. 13 On September 2, 2021, Capital One responded in a letter, “[t]he content and/or 14 existence of such policies and training has no bearing on whether [Capital One] violated 15 the RFDCPA vis a vis the Plaintiff.” ECF No. 22-10 at 5. On September 3, 2021, after 16 meeting and conferring, Capital One’s counsel stated in an e-mail that it agreed to “address 17 whether to amend responses” to Interrogatory Nos. 12 and 13 regarding RFDCPA 18 compliance policies. ECF No. 22-11 at 4. On September 17, 2021, however, the parties 19 jointly contacted chambers regarding a discovery dispute, and the court set September 27, 20 2021 as the deadline for Plaintiff to file a motion to compel. ECF No. 21. On September 21 24, 2021 – three days before the deadline – Plaintiff filed his Motion to Compel. ECF No. 22 22. 23 Capital One does not dispute that it did not provide a supplemental response to 24 Interrogatory Nos. 12 and 13 by September 24, 2021, the day Plaintiff filed his Motion to 25 Compel. Instead, in its Opposition, Capital One states that after the Motion to Compel was 26 filed it provided “policy and procedure documents related to the receipt of correspondence 27 indicating attorney representation and asking for communications to cease.” Opp. at 5. 28 Capital One therefore argues the issue is “remedied.” Id. at 9. Capital One also argues that 1 Plaintiff filed the instant motion three days “before the parties’ stipulated deadline to do 2 so” and “before Capital One could produce the supplemental information it agreed to 3 produce.” Id. at 2. Capital One further claims it supplemented its discovery responses “only 4 to avoid involving the Court in unnecessary disputes” even though it did “not believe 5 supplementation was necessary.” Id. at 3 n.2. 6 In his Reply, however, Plaintiff argues that Capital One did not provide any 7 supplemental response until October 4, 2021 – ten days after Plaintiff filed the instant 8 motion – which was the same day Capital One’s Opposition was due. Reply at 3. Moreover, 9 Plaintiff argues the response it received was “a mere 5-page unidentified document marked 10 as ‘CONFIDENTIAL,’ which appeared to be a manual for using Capital One’s software.” 11 Id. at 4. Plaintiff claims the document “still failed to explain Defendant’s procedures as 12 Plaintiff’s interrogatories requested,” id., and “[t]here is no explanation as to what the 13 document is, nor was there a verified response, and nothing in the document explains the 14 Defendant’s actual procedures,” id. at 3 n.1. Plaintiff also argues, again, that his request for 15 RFDCPA compliance policies is relevant because Capital One has asserted a bone fide 16 mistake defense which requires it to show “reasonable preventative procedures.” Id. at 5 17 (citing Reichert v. Nat’l Credit Sys., 531 F.3d 1002, 1004 (9th Cir. 2008)). 18 Based on the above, Plaintiff has met his burden of showing that Interrogatory Nos. 19 12 and 13 are relevant, for discovery purposes, to Capital One’s bone fide error defense. 20 Additionally, Capital One has not met its burden of supporting its objections, especially its 21 most recent relevance objection, because (1) it does not address Plaintiff’s relevance 22 argument, and (2) it simply presumes the issue is “remedied” based on its production of 23 “documents related to the receipt of correspondence indicating attorney representation and 24 asking for communications to cease.” See Opp. at 5, 9. However, neither party attaches a 25 copy of the produced documents to its papers. It is therefore unclear whether the documents 26 are responsive to Plaintiff’s interrogatories asking Capital One to “describe” its policies, 27 procedures, and training regarding RFDCPA compliance. Regardless, responding to the 28 interrogatories with an unverified portion of a manual is not a direct response. “Each 1 interrogatory must, to the extent it is not objected to, be answered separately and fully in 2 writing under oath.” Fed. R. Civ. P. 33(b)(3). Additionally, responses to interrogatories 3 must be verified. Fed. R. Civ. P. 33(b)(5). Accordingly, Plaintiff’s motion with respect to 4 Interrogatory Nos. 12 and 13 is GRANTED. Capital One is ORDERED to provide written 5 responses that are responsive to the interrogatories and comport with the Federal Rules of 6 Civil Procedure, and not just refer back to the document it already provided, on or before 7 October 25, 2021. 8 C. Telephone Service Provider 9 On June 28, 2021, Plaintiff propounded Interrogatory No. 19 asking Capital One to 10 “[l]ist the telephone provider who services the telephone number (800) 435-1415.” Doc. 11 No. 22-3 at 12. On August 11, 2021, Capital One objected on the grounds of overbreadth, 12 burden, scope, relevance, proportionality, confidentiality, and the undefined “services” 13 term. ECF No. 22-6 at 10. In his August 25, 2021 meet and confer letter, Plaintiff 14 responded: 15 The phone number in question belongs to Capital One, N.A. and Capital One, N.A. is uniquely positioned to easily state who the telephone service provider 16 is. Capital One goes on to “object” on the basis that the request is not relevant 17 to any claim or defense. Virtually all of Plaintiff’s claims in this case surround unlawful telephone calls. Plaintiff requests the service provider as that entity 18 would be able to produce through a subpoena verifiable phone records highly 19 relevant to Plaintiff’s claims. For example, by subpoena Plaintiff could obtain third-party records verifying the calls made by Capital One, N.A. to Plaintiff 20 were more voluminous than the mere 1 page summary of alleged calls to 21 Plaintiff covering the mere time period of February 12, 2021 to April 9, 2021.
22 Defendant also objects to the term “services,” although it states no specific 23 explanation for why it objects to that term. The term “services” in this context is not a term of art or a phrase with a specific definition beyond its normal 24 meaning in the vernacular. In said context, the telephone provider who 25 services the telephone number is clearly understood to be either: AT&T, Sprint, Verizon, and/or one of many other “telephone service providers.” 26
27 ECF No. 22-8 at 18. 28 1 On September 2, 2021, prior to the meet and confer call, Capital One’s counsel stated 2 in a letter: 3 This information [in Interrogatory No. 19] has no bearing on whether [Capital One] violated the TCPA or RFDCPA. To the extent Plaintiff seeks to 4 subpoena phone records to evaluate against [Capital One’s] records, the 5 proper course would be to subpoena Plaintiff’s phone carrier. This is assuming Plaintiff does not have access to his own call record history for the relevant 6 time period. 7 ECF No. 22-10 at 5. 8 Capital One admits that it has not, to date, disclosed the identity of its telephone 9 service provider. Opp. at 5. Capital One argues that during the September 2, 2021 meet and 10 confer call it “did not agree to definitively provide amended responses or supplement 11 productions,” but merely agreed to “advise whether Capital One would amend responses.” 12 Id. at 3. Moreover, Capital One argues the request is “beyond the scope of appropriate 13 discovery” because: (1) Plaintiff already has his own phone records, as well as Capital 14 One’s phone records, which show the exact same call information; (2) if Plaintiff wants to 15 “triple check” the accuracy of the records, he can subpoena his own carrier; (3) it would be 16 burdensome and expensive for Capital One’s carrier “to sift through a financial institution’s 17 phone records for calls to a single number,” (4) it would be burdensome on Capital One to 18 redact customer information and risk the public disclosure of information; (5) it would be 19 burdensome on Capital One customers who will have their phone numbers provided to 20 Plaintiff’s counsel; (6) it would establish dangerous precedent where single plaintiffs could 21 obtain thousands of call records for unrelated third parties; and (7) it would negatively 22 impact relations between Capital One and its service provider and put it at a competitive 23 disadvantage in contract negotiations.3 Id. at 7-8. 24 25 26 3 Capital One also states that “[i]f the Court is inclined to grant any part of Plaintiff’s 27 Motion, Capital One requests that the Court enter a protective order shifting all costs for searching, reviewing, and producing such documents to Plaintiff.” Opp. at 8. For the 28 1 Most of these arguments are not persuasive because they presume Plaintiff will 2 successfully subpoena call records from Capital One’s service provider for other customers 3 besides Plaintiff, and/or both Capital One and its service provider will have to sift through 4 and redact voluminous information in those records.4 All Plaintiff asked for was the name 5 of Capital One’s telephone service provider for a particular 1-800 number so that he “could 6 issue subpoenas to said 3rd party if needed.” Mot. at 6 (emphasis added). As pointed out 7 by Plaintiff’s counsel, Capital One is in a position, one would think, to easily state who its 8 telephone service provider was during the relevant period. Moreover, in a case involving 9 allegedly unlawful telephone calls by Capital One from that number, the name of the 10 service provider would be relevant if only for the purpose of potentially confirming that 11 the service provider’s records match the phone records Capital One already provided to 12 Plaintiff. As recognized by Capital One, “[h]e wants to test that theory, by subpoenaing 13 Capital One’s telephone carrier to obtain its copy of Capital One’s records.” Opp. at 5. 14 In his Reply, however, Plaintiff does not dispute any of Capital One’s arguments 15 against disclosing the identity of its telephone service provider. Although Plaintiff 16 concludes his Reply by generally stating that he “renews” his request for an order 17 compelling Capital One to respond to the entire first set of his interrogatories, [see Reply 18 at 6], he does not otherwise indicate he is still interested in obtaining the identity of Capital 19 One’s service provider as specifically requested in Interrogatory No. 19. Accordingly, it is 20 not clear why Plaintiff needs the identity of Capital One’s telephone service provider given, 21 as Capital One points out, that he already has access to his own phone records and Capital 22 One’s matching phone records, and given that Plaintiff could presumably subpoena his 23 own phone company if he wanted to verify the records’ accuracy. 24 Accordingly, at this stage in the litigation and based on the evidence and argument 25
26 27 4 Capital One also cites no cases supporting these arguments. It also appears as if many of these arguments may have been raised, for the first time in writing, in Plaintiff’s Opposition 28 1 in the parties’ papers, Plaintiff’s request for Capital One to disclose the identity of its 2 telephone service provider seems cumulative. See Fed. R. Civ. P. 26(b)(2)(C). 3 Cumulativeness falls within the scope, albeit barely so, of Plaintiff’s initial boilerplate 4 objections regarding breadth and proportionality, [see ECF No. 22-6 at 10], as well as its 5 subsequent argument that “[t]he proper course would be to subpoena Plaintiff’s phone 6 carrier . . . . assuming Plaintiff does not have access to his own call record history for the 7 relevant time period,” [ECF No. 22-10 at 5]. Capital One has therefore met its burden of 8 supporting a portion of its objections. Plaintiff’s motion with respect to Interrogatory No. 9 19 is therefore DENIED without prejudice. Plaintiff may file a motion requesting 10 reconsideration of this issue, not to exceed five (5) pages, on or before October 29, 2021, 11 in which case Capital One may file a response in opposition, not to exceed five (5) pages, 12 on or before November 5, 2021. 13 D. Sanctions 14 For several reasons, Plaintiff argues in his Motion to Compel that Capital One should 15 be sanctioned.5 Mot. at 11. First, Plaintiff argues that Capital One should be subject to 16 sanctions under Rule 37(a)(3)(B) because, despite having made the initial discovery 17 requests on June 28, 2021, as of September 24, 2021, i.e. the date Plaintiff’s Motion to 18 Compel was filed, Capital One had not yet responded to its requests regarding telephone 19 equipment (Interrogatory No. 14), RFDCPA compliance policies (Interrogatory Nos. 12 20 and 13), and the identity of Capital One’s telephone service provider (Interrogatory No. 21 19). Mot. at 7. Second, Plaintiff argues Capital One should be sanctioned under Rules 22 37(a)(3)-(5) because its objections to Plaintiff’s entire first sets of initial discovery requests 23 were “erroneous, as the requests were clear, concise, and extremely relevant.” Id. at 8. 24 Third, Plaintiff argues Capital One should be sanctioned with costs and attorney’s fees 25 under Rule 37(a)(5)(A) because, based on the multiple correspondence by Plaintiff 26 27 5 Plaintiff also argues, and Capital One does not dispute, that he complied with the 28 1 explaining the deficiencies in its responses and relevance of his requests, there was no 2 substantial justification for Capital One’s failure to respond. Id. at 10. 3 In its Opposition, Capital One does not dispute that it failed to provide a 4 supplemental response until Plaintiff had already filed his Motion to Compel. Opp. at 3 5 n.2. Instead, Capital One argues, in somewhat contradictory fashion, that Plaintiff filed the 6 motion “before Capital One could produce the supplemental information it agreed to 7 produce” [id. at 2], even though Capital One “did not agree to definitively provide amended 8 responses or supplement productions” [id. at 3], and did “not believe supplementation was 9 necessary” [id. at 3 n.2]. Capital One also argues that sanctions are unavailable because: 10 (1) Plaintiff’s request for sanctions “appear to be grounded in the pre-meet and confer 11 position that all of Capital One’s interrogatory responses were deficient based on an 12 assertion that ‘all of [Capital One’s] objections were legally invalid;’” (2) “Capital One’s 13 answers and objections to Plaintiff’s written discovery requests regarding inter alia their 14 over breadth, burdensomeness, and disproportionate nature is amply supported by the plain 15 language of the federal rules, the claims at issue in this case, and applicable case law;”6 16 and (3) “Capital One remedied each issue identified in the meet and confer except the 17 carrier issue, which it submits is beyond the scope of proper discovery.” Id. at 9. 18 In his Reply, Plaintiff argues Capital One should still be sanctioned under Rule 19 37(d)(1)(A) and Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) because: (1) 20 it did not provide any supplemental response until October 4, 2021 – ten days after Plaintiff 21 filed the instant motion and the day Capital One’s Opposition was due; (2) with respect to 22 Plaintiff’s request for policies, procedures, and training used to avoid RFDCPA violations, 23 Capital One provided “merely 5 pages from an unidentified computer training manual, 24 which did not explain in anyway said procedures;” and (3) Plaintiff’s request for the 25 policies and procedures is relevant because Capital One asserted a bone fide error defense 26 27 28 1 in its Answer. Reply at 2-6. Plaintiff therefore “renews” his request for monetary sanctions 2 for his attorney’s fees and costs in resolving this discovery dispute and filing the instant 3 motion. Id. at 6. 4 A party seeking discovery may move for an order compelling an answer or 5 production if a party fails to answer an interrogatory or fails to produce requested 6 documents. Fed. R. Civ. P. 37(a)(3). “[A]n evasive or incomplete disclosure, answer, or 7 response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 8 37(a)(4). If a motion to compel is granted, or if the disclosure or requested discovery is 9 provided after the motion was filed, “the court must, after giving an opportunity to be heard, 10 require the party . . . . whose conduct necessitated the motion . . . . or attorney advising that 11 conduct . . . . pay the movant’s reasonable expenses incurred in making the motion, 12 including attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). However, a court may not order 13 this payment if “(i) the movant filed the motion before attempting in good faith to obtain 14 the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, 15 response, or objection was substantially justified; or (iii) other circumstances make an 16 award of expenses unjust.” Id. If the court grants in part and denies in part a motion to 17 compel discovery, the court may “apportion the reasonable expenses for the motion” after 18 giving an opportunity to be heard. Fed. R. Civ. P. 37(a)(5)(C). “[T]he analysis underlying 19 an award of reasonable expenses pursuant to either Rule 37(a)(5)(A) or Rule 37(a)(5)(C) 20 is the same.” Blair v. CBE Group, Inc., No. 13cv134-MMA-WVG, 2014 WL 4658731, *3 21 (S.D. Cal. Sept. 16, 2014) (finding that “courts have recognized that the primary difference 22 between these two rules is that one requires the payment of costs, where the other grants 23 the court discretion in making such a determination”) (internal quotation marks and citation 24 omitted)). 25 Here, the grounds for Plaintiff’s request for sanctions are not entirely clear. For 26 example, Rule 37(a)(3)(B), which Plaintiff cites, addresses grounds for filing motions to 27 compel, not for sanctions. Additionally, Rule 37(d)(1), which Plaintiff also cites, applies 28 to complete failures to respond to interrogatories, which is not the case here. Accordingly, 1 the Henry case upon which Plaintiff relies is inapposite because that case involved 2 sanctions under Rule 37(d).7 It is also not clear whether Plaintiff seeks sanctions under 3 Rule 37(a)(4), which addresses evasive or incomplete responses, Rule 37(a)(5), which sets 4 forth a fee-shifting standard, or both. 5 Additionally, as explained above, Plaintiff’s Motion to Compel is granted in part and 6 denied in part. In such cases, the standard for imposing sanctions is discretionary. See Fed. 7 R. Civ. P. 37(a)(5)(C) (“[T]he court . . . may, after giving an opportunity to be heard, 8 apportion the reasonable expenses for the motion.”) (emphasis added)). Accordingly, at 9 this stage in the litigation and based on the evidence and argument in the parties’ papers, 10 the Court exercises its discretion and declines to order Capital One to pay Plaintiff’s 11 reasonable expenses incurred in addressing the relevant portions of the discovery dispute 12 and filing the instant Motion to Compel. Accordingly, Plaintiff’s request for sanctions is 13 DENIED without prejudice. 14 CONCLUSION 15 For the above reasons, Plaintiff’s Motion to Compel [ECF No. 22] is GRANTED 16 IN PART and DENIED IN PART. Plaintiff’s motion to compel a response to Request for 17 Production No. 19 or Interrogatory No. 14 is DENIED. Plaintiff’s motion to compel 18 responses to Interrogatory Nos. 12 and 13 is GRANTED. Capital One is ORDERED to 19 provide written responses on or before October 29, 2021. Capital One’s motion to compel 20 a response to Interrogatory No. 19 is DENIED without prejudice. Plaintiff may file a 21 /// 22 /// 23 /// 24 25 7 Plaintiff quotes the court in Henry as stating that sanctions are appropriate “‘if the 26 opposing party provides the requested discovery after the motion to compel is filed.’” Mot. 27 at 10; Reply at 2-3. However, this quote does not appear in Henry and was not the holding of Henry. See 983 F.2d 943. 28 1 || motion requesting reconsideration of this issue on or before October 29, 2021, in which 2 ||case Capital One may file a response in opposition on or before November 5, 2021. 3 || Plaintiff's request for sanctions is DENIED without prejudice. 4 IT IS SO ORDERED. 5 || Dated: October 22, 2021 XO 6 Je ) 7 Honorable Linda Lopez United States Magistrate Judge 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28