Flynn v. Love

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 MICHAEL J. FLYNN, et al., Case No. 3:19-CV-00239-MMD-CLB

5 Plaintiffs, ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL AND GRANTING 6 v. DEFENDANTS’ COUNTERMOTION FOR 7 MICHAEL E. LOVE, et al., SANCTIONS

8 Defendants. [ECF Nos. 161, 166]

9 10 Before the Court is Plaintiffs Michael J. Flynn and Philip Stillman’s (collectively 11 referred to as “Plaintiffs”) motion to compel, (ECF Nos. 161, 159).1 Defendants Michael 12 E. Love, Jacquelyne Love, and Meleco, Inc., (collectively referred as to “Defendants”) 13 filed an opposition to the motion to compel, which included a countermotion for 14 sanctions. (ECF Nos. 165, 166, 167.)2 Plaintiffs replied to the opposition to the motion to 15 compel and responded to the countermotion for sanctions. (ECF No. 168.)34 For the 16 reasons discussed below, the Court denies Plaintiffs’ motion to compel, (ECF No. 161), 17 and grants Defendants’ countermotion for sanctions. (ECF No. 166). 18 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 19 This action arises from contractual disputes pertaining to a settlement involving 20 the copyrights of 35 songs and events surrounding these songs, dating back to the 21

22 1 ECF No. 159 is a declaration in support of the motion to compel. 23 2 While docketed separately, ECF Nos. 165 and 166 are identical documents. ECF 24 No. 167 is a manually filed exhibit regarding Defendants’ opposition to the motion to 25 compel, (ECF No. 165), and countermotion for sanctions, (ECF No. 166).

26 3 Plaintiffs’ opposition to the motion for sanctions was included with Plaintiffs’ reply to the opposition to the motion to compel at ECF No. 168. (See ECF No. 176). 27 4 The motions are properly resolved without a hearing. See LR 78-1. 28 1 1960s. Plaintiffs initially filed their complaint on May 10, 2019. (ECF No. 1.) On April 14, 2 2021, Plaintiffs filed their Fourth Amended Complaint, which is the operative Complaint 3 in this case. (ECF No. 121.) Plaintiffs assert claims against Defendants for: (1) fraud; (2) 4 breach of contract; (3) accounting; (4) quantum meruit; (5) intentional interference with 5 contractual and business relations; (6) unjust enrichment; (7) declaratory judgment; (8) 6 fraudulent transfers; and (9) imposition of constructive trust. (Id.) 7 On February 10, 2020, Plaintiffs served their first set of discovery requests on 8 Defendants. (See ECF No. 159-2 at 2-28.) The parties agreed to a “rolling production” 9 and on August 10, 2020, September 11, 2020, May 7, 2021, June 5, 2021, and July 14, 10 2021, Defendants provided five total productions responsive to Plaintiffs’ Request for 11 Production of Documents (Set One) (“RPD”). (ECF Nos. 159 at 2; 165 at 4-5.) 12 Discovery in this case has already proven to be contentious. To assist the parties 13 with discovery issues, the Court has held several case management conferences 14 (“CMC”) since August of 2020. (See ECF Nos. 72, 98, 107, 118, 137, 150.) On June 28, 15 2021, this Court held a CMC in which Plaintiffs first raised the issue with the Court about 16 their inability to review the Defendants’ document production. (See ECF Nos. 150, 151.) 17 On July 30, 2021, Plaintiffs filed the instant motion to compel. (ECF Nos. 161, 18 159.) Defendants filed an opposition to the motion to compel, which included a 19 countermotion for sanctions. (ECF Nos. 165, 166, 167.) Plaintiffs replied to the 20 opposition to the motion to compel and responded to the countermotion for sanctions. 21 (ECF No. 168.) 22 Plaintiffs seek an order to compel production of documents by Plaintiffs’ Request 23 for Production of Documents (Set One) (“RPD”) in “a reasonably usable form or forms” 24 and to pay Plaintiffs’ reasonable expenses—in the amount of $7,500—in compelling 25 Defendants to produce these documents. (ECF No. 161 at 2, 6.) Plaintiffs claim 26 Defendants have responded to their RPD with “a ‘document dump’ of 36,986 pages 27 delivered in an electronic format that is not usable, reasonably or at all, by Plaintiffs, their 28 experts and consultants in reviewing these documents in preparation for trial.” (Id. at 2.) 1 Plaintiffs assert “[h]aving to open thousands of pages one by one rather than in bulk is 2 unduly burdensome and time-consuming.” (Id. at 4.) 3 In their response and countermotion for sanctions, (ECF Nos. 165, 166), 4 Defendants assert that they have produced all discovery in this matter “in an electronic 5 format, easily accessible and capable of being viewed by a laymen or, if desired, by 6 using any number of standard discovery software or vendors readily available.” (ECF 7 Nos. 165, 166 at 12.) Further, Defendants request that the Court award Defendants their 8 reasonable fees and costs incurred in having to respond to Plaintiffs’ motion. (Id.) 9 In reply, Plaintiffs reiterate that Defendants are obligated to produce documents in 10 a form which does not “make it more difficult or burdensome for the requesting party to 11 use information efficiently in litigation.” (ECF No. 168.) 12 II. LEGAL STANDARD 13 “Discovery is supposed to proceed with minimal involvement of the Court.” V5 14 Tech. v. Switch, Ltd., 334 F.R.D. 297, 301 (D. Nev. 2019) (quoting F.D.I.C. v. Butcher, 15 116 F.R.D. 196, 203 (E.D. Tenn. 1986)). “Counsel should strive to be cooperative, 16 practical, and sensible, and should seek judicial intervention only in extraordinary 17 situations that implicate truly significant interests.” Id. (internal quotations omitted). 18 “[B]road discretion is vested in the trial Court to permit or deny discovery.” Hallett, 296 19 F.3d at 751. The “scope of discovery” encompasses “any nonprivileged matter that is 20 relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. 21 R. Civ. P. 26(b)(1). Relevance is to be construed broadly to include “any matter that 22 bears on, or that reasonably could lead to other matter that could bear on” any party's 23 claim or defense. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation 24 omitted). 25 When a party fails to provide discovery and the parties' attempts to resolve the 26 dispute without Court intervention are unsuccessful, the opposing party may seek an 27 order compelling that discovery. Fed. R. Civ. P. 37(a). However, the party moving for an 28 order to compel discovery bears the initial burden of informing the Court: (1) which 1 discovery requests are the subject of the motion to compel; (2) which of the responses 2 are disputed; (3) why the believes the response is deficient; (4) why defendants’ 3 objections are not justified; and (5) why the information he seeks through discovery is 4 relevant to the prosecution of this action. Harris v. Kernan, No. 2:17-cv-0680-TLN-KJN- 5 P, 2019 WL 4274010, at *1–2 (E.D. Cal. Sept. 10, 2019); see also Ellis v. Cambra, No. 6 1:02-cv-05646-AWI-SMS-PC, 2008 WL 860523, at *4 (E.D. Cal. 2008) (“Plaintiff must 7 inform the court which discovery requests are the subject of his motion to compel, and, 8 for each disputed response, inform the court why the information sought is relevant and 9 why defendant's objections are not justified.”). 10 Thereafter, the party seeking to avoid discovery bears the burden of showing why 11 that discovery should not be permitted. Blankenship v. Hearst Corp., 519 F.2d 418, 429 12 (9th Cir. 1975). The party resisting discovery must specifically detail the reasons why 13 each request is irrelevant or otherwise objectionable, and may not rely on boilerplate, 14 generalized, conclusory, or speculative arguments. See, e.g., F.T.C. v. AMG Servs., Inc., 15 291 F.R.D. 544, 552 (D. Nev. 2013). Arguments against discovery must be supported by 16 “specific examples and articulated reasoning.” U.S. E.E.O.C., 237 F.R.D. at 432. 17 III. DISCUSSION AND ANALYSIS 18 Plaintiffs’ motion to compel essentially asserts that the form in which Defendants 19 provided responses to their RPDs is unsatisfactory. In short, while Plaintiffs admit they 20 have received discovery, they simply do not like the form that they received it in—i.e., an 21 electronic format—and have requested the Court order Defendants to pay for and 22 physically print out all the discovery they have produced and ship those copies to 23 Plaintiffs. However, as outlined in their opposition and shown in their manual filing, (ECF 24 No. 167),5 Defendants’ production is routine, easy to access, and complies fully with 25 26 5 The Court has reviewed the manual filing provided by Defendants, which is a demonstrative video showing how the responsive documents were provided to Plaintiffs. 27 Contrary to Plaintiffs’ representations, the documents are clearly organized, and grouped by document. They are not in a format that requires Plaintiffs to open one page at a time. 28 1 their discovery obligations. Fed. R. Civ. P. 34(b)(E)(ii) (allowing parties to produce 2 electronically stored information “in a reasonably useable form”). In fact, the Court is very 3 troubled by this motion and finds that the filing of the motion was improper. Plaintiffs 4 readily admit that they have, in fact, received the discovery at issue, thus there was no 5 legal basis for seeking an order compelling disclosure. Therefore, this motion is frivolous. 6 “A frivolous filing is one that is both baseless and made without a reasonable and 7 competent inquiry.” In re Girardi, 611 F.3d 1027, 1062 (9th Cir. 2010) (internal quotations 8 and citations omitted). 9 Moreover, the Court agrees with Defendants that the motion appears to be a part 10 of a pattern of wasteful litigation tactics engaged in by Plaintiffs in this case, which 11 Plaintiffs’ claim is somehow justified and should be excused based on their pro se status. 12 (ECF Nos. 165, 166 at 10.) However, Plaintiffs are not the typical pro se parties. Rather, 13 both Plaintiffs are sophisticated attorneys with years of experience. However, even if that 14 were not the case, this type of behavior would be unacceptable for any pro se party. 15 Finally, Plaintiffs’ lack of familiarity, experience, or comfort with a computer or 16 electronically stored information is neither Defendants’ problem, nor is it the Court’s 17 problem. It also does not justify the filing of the current motion. Because the Court finds 18 that Defendants are not required to reproduce discovery, which has already been 19 appropriately produced to Plaintiffs, the motion to compel, (ECF No. 161), is DENIED. 20 A. Countermotion for Sanctions 21 In opposition to the motion to compel, Defendants also move for sanctions under 22 Rule 37(a)(5)(B). Under Rule 37, sanctions are appropriate if the motion is denied unless 23 “the motion was substantially justified or other circumstances make an award of 24 expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). The Court has broad discretion regarding 25 the type and degree of discovery sanctions it may impose pursuant to Rule 37. See Wyle 26 v. R.J. Reynolds Indus., Inc., 709 F.2d 585 (9th Cir. 1983). Rule 37 allows for the 27 authorization of any remedy the Court determines is “just.” See id. at 591; see also Ins. 28 Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706-08 (1982); 1 Fed. R. Civ. P. 37(b)(2)(A). Defendants assert that Plaintiffs’ motion was unnecessary, 2 much less “substantially justified.” (ECF No. 166 at 12.) Here, Plaintiffs’ motion 3 essentially requests Defendants to re-produce discovery in print, rather than 4 electronically, because Plaintiffs claim it is not easily accessible to them. Plaintiffs’ 5 motion to compel was a frivolous filing and was therefore not substantially justified. 6 Accordingly, Defendants' countermotion for sanctions, (ECF No. 166), is 7 GRANTED. The Court awards Defendants their reasonable attorneys' fees and costs as 8 sanctions for the cost associated with opposing Plaintiffs’ motion to compel (ECF No. 9 161). Counsel for Defendants will, no later than 14 days from entry of this order, serve 10 and file a memorandum, supported by the affidavit of counsel, establishing the amount 11 of attorney's fees and costs incurred in the motion addressed in this order. The 12 memorandum shall provide a reasonable itemization and description of the work 13 performed, identify the attorney(s) or other staff member(s) performing the work, the 14 customary fee of the attorney(s) or staff member(s) for such work, and the experience, 15 reputation, and ability of the attorney performing the work. The attorney's affidavit shall 16 authenticate the information contained in the memorandum, provide a statement that the 17 bill has been reviewed and edited, and provide a statement that the fees and costs 18 charged are reasonable. Counsel for Plaintiffs will have 14 days from service of the 19 memorandum of costs and attorney's fees in which to file a responsive memorandum 20 addressing the reasonableness of the costs and fees sought, and any equitable 21 considerations deemed appropriate for the Court to consider in determining the amount 22 of costs and fees which should be awarded. Counsel for Defendants will have 7 days 23 from service of the responsive memorandum in which to file a reply. 24 IV. CONCLUSION 25 The Court notes that the parties made several arguments and cited to several 26 cases not discussed above. The Court has reviewed these arguments and cases and 27 determines they do not warrant discussion as they do not affect the outcome of the 28 motions before the Court. 1 IT IS THEREFORE ORDERED that Plaintiffs’ motion to compel, (ECF No. 161), is 2 || DENIED. 3 IT IS FURTHER ORDERED that Defendants’ countermotion for sanctions, (ECF 4 || No. 166), is GRANTED. 5 e Counsel for Defendants will, no later than 14 days from entry of this order, serve 6 and file a memorandum, supported by the affidavit of counsel, establishing the 7 amount of attorney's fees and costs incurred in the motion addressed in this 8 order. The memorandum shall provide a reasonable itemization and description of 9 the work performed, identify the attorney(s) or other staff member(s) performing 10 the work, the customary fee of the attorney(s) or staff member(s) for such work, 11 and the experience, reputation, and ability of the attorney performing the work. 12 The attorney's affidavit shall authenticate the information contained in the 13 memorandum, provide a statement that the bill has been reviewed and edited, 14 and provide a statement that the fees and costs charged are reasonable. 15 e Counsel for Plaintiffs will have 14 days from service of the memorandum of costs 16 and attorney's fees in which to file a responsive memorandum addressing the 17 reasonableness of the costs and fees sought, and any equitable considerations 18 deemed appropriate for the Court to consider in determining the amount of costs 19 and fees which should be awarded. 20 e Counsel for Defendants will have 7 days from service of the responsive 21 memorandum in which to file a reply. 22 IT IS SO ORDERED. 23 || DATE: October 19,2021 _. . 24 25 UNITED STATES wore JUDGE 26 27 28