1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ABDUL GHAZNAWI, Case No. 2:22-cv-01988-MCE-CSK 12 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO COMPEL AND DENYING 13 v. DEFENDANT’S MOTION TO STRIKE 14 SAN JOAQUIN COUNTY, (ECF Nos. 20, 27) 15 Defendant. 16 17 Presently before the Court is Defendant San Joaquin County’s motion to compel 18 discovery responses pursuant to Federal Rule of Civil Procedure 37(a), and his 19 corresponding motion to strike Plaintiff Abdul Ghaznawi’s Joint Discovery Statement.1 20 (ECF Nos. 20, 27.) The Court held a hearing on April 10, 2024, wherein attorney Stanley 21 Goff appeared for Plaintiff and attorney Suli Mastorakos appeared for Defendant. 22 For the reasons that follow and as stated at the hearing, Defendant’s motion to 23 compel is GRANTED and Defendant’s motion to strike Plaintiff’s Joint Discovery 24 Statement is DENIED. As provided in more detail below, Plaintiff shall have until May 10, 25 2024 to serve supplemental responses to Defendant’s Interrogatories Nos. 2, 4, 6, 8, 10, 26 12, 14, 16, and 17 and produce documents responsive to Defendant’s Request for 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. 28 Civ. P. 72, and Local Rule 302(c)(1). 1 Production of Documents (RFPs), Set One, Nos. 1-10. After supplementing his 2 interrogatory responses and producing responsive documents, and no later than May 3 10, 2024, Plaintiff shall also file with the Court a written status report stating Plaintiff has 4 supplemented his interrogatory responses and produced responsive documents, and 5 provide the manner and date of service. The parties shall have until May 24, 2024 to 6 meet and confer by phone, video, or in-person regarding Plaintiff’s supplemental 7 responses and document production. Parties shall have until June 3, 2024 to file a joint 8 statement providing a discovery status update, including the status of the parties’ meet 9 and confer regarding Plaintiff’s supplemental responses and document production. 10 Finally, certain discovery deadlines are continued as outlined below. No other deadlines 11 are continued. 12 I. BACKGROUND 13 A. Facts 14 As relevant to the pending motion to compel, the complaint asserts causes of 15 action against Defendant for use of excessive force and deprivation of food and water 16 while Plaintiff was incarcerated in the San Joaquin County Jail in violation of the Fourth 17 and Fourteenth Amendments. (ECF No. 1 (Compl.).) Plaintiff also appeared to set forth a 18 claim pursuant to Monell v. Dep’t. of Soc. Servs., 436 U.S. 658 (1978), against 19 Defendant for its alleged failure to train and supervise its deputies in their use of 20 excessive force and deprivation of food and water to inmates. (ECF No. 1 at 6.) On 21 February 1, 2023, the Court granted Defendant’s motion to dismiss and dismissed 22 Plaintiff’s purported Monell claim. (ECF No. 8.) The Court granted Plaintiff leave to 23 amend but advised that if no amended pleading was timely filed, the Monell claim would 24 be deemed dismissed with no further action required. (ECF No. 8 at 2.) Plaintiff did not 25 file an amended complaint, and on March 8, 2023, the Court dismissed Plaintiff’s Monell 26 claim with prejudice. (ECF No. 10.) Defendant answered, denying these allegations. 27 (ECF No. 9 (Answer).) 28 / / / 1 B. Events Relevant to the Discovery Dispute 2 On November 2, 2022, District Judge Morrison C. England, Jr. issued a 3 scheduling order setting the following deadlines: fact discovery cut-off of February 21, 4 2024; expert witness disclosures due by April 21, 2024; rebuttal expert disclosures due 5 by May 21, 2024; and dispositive motions filed by August 21, 2024. (ECF No. 3.) On 6 December 21, 2023, Plaintiff filed a joint stipulation to continue the scheduling deadlines 7 due to Plaintiff’s counsel’s COVID-19 illness. (ECF No. 17.) On January 2, 2024, the 8 Court granted the parties’ joint stipulation and continued the deadlines as follows: fact 9 discovery cut-off of May 21, 2024; expert witness disclosures due by July 21, 2024; 10 rebuttal expert disclosures due by August 21, 2024; expert discovery cut-off of October 11 7, 2024; and dispositive motions filed by November 21, 2024. (ECF No. 19.) 12 On July 20, 2023, Defendant propounded discovery on Plaintiff, which included 13 the following Interrogatories and Requests for Production of Documents (RFPs) at issue 14 here:2 15 INTERROGATORY NO. 2: IDENTIFY all DOCUMENTS that YOU claim support YOUR contention that “Defendant…used 16 excessive force” on YOU, as alleged in paragraph 13 of YOUR COMPLAINT. 17 INTERROGATORY NO. 4: IDENTIFY all DOCUMENTS that 18 YOU claim support YOUR contention that “at the time…force w[as] used… [YOU] did not pose any threat,” as alleged in 19 paragraph 15 of YOUR COMPLAINT. 20 INTERROGATORY NO. 6: IDENTIFY all DOCUMENTS that YOU claim support YOUR contention that “at the time…force 21 w[as] used… other alternative methods were available to effectuate a seizure,” as alleged in paragraph 15 of YOUR 22 COMPLAINT. 23 INTERROGATORY NO. 8: IDENTIFY all DOCUMENTS that YOU claim support YOUR contention that “there was no 24 objectively reasonable basis for the Defendants’ actions,” as alleged in paragraph 16 of YOUR COMPLAINT. 25 INTERROGATORY NO. 10: IDENTIFY all DOCUMENTS that 26 YOU claim support YOUR contention that “[t]he conduct of Defendants…was done in conscious disregard of [YOUR] 27
28 2 Defendant also served Requests for Admissions, which are not at issue here. 1 rights,” as alleged in paragraph 18 of YOUR COMPLAINT. 2 INTERROGATORY NO. 12: IDENTIFY all DOCUMENTS that YOU claim support YOUR contention that Defendants…acted 3 with deliberate indifference to [YOUR] life necessities,” as alleged in paragraph 21 of YOUR COMPLAINT. 4 INTERROGATORY NO. 14: IDENTIFY all DOCUMENTS that 5 YOU claim support YOUR contention that “Defendants…depriv[ed] [YOU] of any food or water for two 6 days,” as alleged in paragraph 21 of YOUR COMPLAINT. 7 INTERROGATORY NO. 16: IDENTIFY all PERSONS whom YOU claim to have knowledge of the facts that YOU claim 8 support YOUR first cause of action - Violation of Plaintiff’s Fourteenth Amendment Rights 42 U.S.C §1983 (Conditions of 9 Confinement - Punishment/Excessive Force). 10 INTERROGATORY NO. 17: IDENTIFY all DOCUMENTS, including audio, videos, and photos, that YOU contend support 11 YOUR first cause of action - Violation of Plaintiff’s Fourteenth Amendment Rights 42 U.S.C §1983 (Conditions of 12 Confinement - Punishment/Excessive Force). 13 And 14 RFP NO. 1: Any and all DOCUMENTS that support YOUR claim for lost wages. 15 RFP NO. 2: Any and all DOCUMENTS from any 16 HEALTHCARE PROVIDER for treatment relating to injuries YOU attribute to the INCIDENT. 17 RFP NO. 3: Any and all billing DOCUMENTS relating to the 18 medical care and/or treatment YOU have received for the injuries or harm YOU attribute to the INCIDENT, including but 19 not limited to, any insurance billing, payment information, itemized statements of charges, payment and write-off 20 records, and records relevant to payment transactions. contend support YOUR claim for punitive damages. 21 RFP NO. 4: Any and all DOCUMENTS evidencing the amount 22 that was paid for the medical treatment you received as a result of the INCIDENT. 23 RFP NO. 5: Any and all DOCUMENTS, including, but not 24 limited to, photos, audio, and video relating to the alleged injuries YOU attribute to the INCIDENT. 25 RFP NO. 6: Any and all DOCUMENTS IDENTIFIED in YOUR 26 response to interrogatory Nos. 17 and 20 served herewith. 27 RFP NO. 7: Any and all DOCUMENTS YOU contend support your denial of the Requests for Admission served herewith. 28 1 RFP NO. 8: Any and all DOCUMENTS, including, but not limited to, photos, audio, and video that YOU contend support 2 YOUR claim for punitive damages. 3 RFP No. 9: Any and all DOCUMENTS, including, but not limited to, photos, audio, and video that YOU claim support 4 YOUR contention that Defendant is liable to YOU for any of the claims set forth in YOUR COMPLAINT. 5 RFP NO. 10: Any and all DOCUMENTS, including, but not 6 limited to, photos, audio, and video that YOU claim support YOUR contention that Defendant is liable to YOU for YOUR 7 alleged damages. 8 (ECF No. 233 at Exh. B (Def. July 2023 Interrogatories and RFPs).) Defendant served its 9 discovery requests by mail because Plaintiff did not respond to its request for electronic 10 service. (See Exh. A (Def. July 7, 2023 email).) 11 On August 28, 2023, after not receiving Plaintiff’s discovery responses, Defendant 12 sent a follow-up email requesting Plaintiff to advise Defendant as to when Plaintiff would 13 be serving his overdue responses. (Exh. C (Def. Aug. through Oct. 2023 emails).) On 14 August 31, 2023, Plaintiff responded, indicating he did not receive Defendant’s discovery 15 requests and requested Defendant re-send them electronically. (Id.) On August 31, 16 2023, Defendant re-served the discovery requests by email as requested, and offered to 17 extend the response deadline from the date of the courtesy electronic service. (Id.) 18 Defendant further requested confirmation of an electronic service agreement. (Id.) 19 Plaintiff’s discovery responses were due on October 2, 2023, but he did not timely 20 serve his discovery responses. On October 3, 2023, Defendant sent a follow-up email to 21 Plaintiff requesting the status of Plaintiff’s responses. (Id.) Plaintiff did not respond. On 22 October 11, 2023, Defendant again sent a follow-up email to Plaintiff requesting the 23 status of Plaintiff’s discovery responses and stating that if no response was received by 24 October 13, 2023, Defendant would be filing a motion to compel with the Court. (Id.) On 25 October 12, 2023, Plaintiff responded, stating that his discovery responses were sent by 26 mail and including electronic copies of Plaintiff’s discovery responses and verifications. 27 3 All exhibits referenced were filed with Defendant’s Joint Statement Re Discovery 28 Disagreement. (ECF No. 23.) 1 (Exh. D. (Pl. Oct. 12, 2023 email).) Plaintiff did not produce any documents with his 2 responses. On October 17, 2023, Defendant sent an email informing Plaintiff that his 3 discovery responses were not timely and reminding Plaintiff of their electronic service 4 agreement and to send future responses electronically. (Id.) Defendant further informed 5 Plaintiff that several of his discovery responses indicate responsive documents would be 6 produced and to advise Defendant when responsive documents would be received. (Id.) 7 Plaintiff did not respond. 8 On October 27, 2023, Defendant sent a meet and confer letter to Plaintiff 9 indicating that Plaintiff’s discovery responses were untimely and insufficient. (Exh. F 10 (Def. Oct. 27, 2023 Letter).) On November 13, 2023, Defendant sent a follow-up email 11 as to the October 27, 2023 meet and confer letter to request Plaintiff’s response and 12 whether Plaintiff was willing to engage in the meet and confer process. (Exh. G (Def. 13 Nov. 2023 to Jan. 2024 emails).) Plaintiff did not respond. On December 1, 2023, 14 Defendant sent another follow-up email informing Plaintiff that it would be seeking court 15 intervention due to Plaintiff’s lack of response and participation in the meet and confer 16 process. (Id.) Plaintiff then responded the same day informing Defendant that he had 17 been “severely ill with Covid 19 and RSV for over several weeks” and that he was still 18 recovering from the illness. (Id.) Plaintiff proposed stipulating to extending the fact and 19 expert discovery deadlines. (Id.) On December 1, 2023, Defendant agreed to defer filing 20 a motion to compel pending the parties’ meet and confer regarding Defendant’s October 21 27 letter, and requested Plaintiff’s availability. (Id.). 22 On December 21, 2023, Plaintiff filed a joint stipulation to continue the scheduling 23 deadlines due to Plaintiff’s counsel’s illness (ECF No. 17), which the district court 24 granted on January 3, 2024 (ECF No. 19). On January 4, 2024, Defendant sent a follow- 25 up email requesting Plaintiff to provide an update as to when Plaintiff’s supplemental 26 discovery responses would be provided and if they were not, to provide Plaintiff’s 27 availability for a meet and confer call. (Exh. G (Def. Nov. 2023 to Jan. 2024 email).) On 28 January 7, 2024, Plaintiff confirmed that he would be providing supplemental responses 1 but that he would like to meet and confer first. (Id.) On January 10, 2024, the parties met 2 and conferred, and Plaintiff agreed to provide his supplemental responses and 3 documents by January 26, 2024. (Exh. H (Def. Jan. 10, 2024 email).) 4 Plaintiff did not provide his supplemental responses or documents as agreed. On 5 February 6, 2024, Defendant sent a follow-up email informing Plaintiff that it had not 6 received Plaintiff’s supplemental discovery responses and asking Plaintiff to advise when 7 to expect them. (Exh. H.) Plaintiff did not respond. On February 13, 2024, Defendant 8 sent another follow-up email requesting Plaintiff provide an update as to the status of his 9 supplemental discovery responses and stating that if no response was received by 10 February 16, 2024, Defendant would be forced to file a motion to compel with the Court. 11 (Id.) 12 Plaintiff did not respond, and on March 15, 2024, Defendant filed the pending 13 motion to compel. (ECF No. 20.) On March 21, 2024, Defendant reminded Plaintiff that a 14 Joint Discovery Statement was due on March 27, 2024. (Exh. I (Def. Mar. 19, 2024 15 email).) Defendant included its initial draft of the Joint Discovery Statement and 16 requested Plaintiff’s draft of his portion of the Joint Discovery Statement. (Id.) On March 17 21, 2024, Plaintiff responded, stating that he was “currently preparing for a upcoming 18 trial in one case and to file a response to a motion for a summary judgment in another 19 case” and that he would provide a draft of Plaintiff’s portion of the Joint Discovery 20 Statement by March 25, 2024. (Id.) Plaintiff did not provide his portion of the Joint 21 Discovery Statement, and on March 27, 2024, Defendant filed its Joint Discovery 22 Statement with only Defendant’s portion. (ECF No. 22 at 2, fn.1.) On March 28, 2024, 23 Plaintiff then filed an untimely Joint Discovery Statement including his portions. (ECF No. 24 24.) On April 3, 2024, Defendant filed a motion to strike Plaintiff’s Joint Discovery 25 Statement as untimely, improper, and meritless. (ECF No. 27.) 26 II. LEGAL STANDARDS 27 “Parties may obtain discovery regarding any nonprivileged matter that is relevant 28 to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. 1 P. 26(b)(1). Proportionality turns on “the importance of the issues at stake in the action, 2 the amount in controversy, the parties' relative access to relevant information, the 3 parties' resources, the importance of the discovery in resolving the issues, and whether 4 the burden or expense of the proposed discovery outweighs its likely benefit.” Id. 5 “[B]road discretion is vested in the trial court to permit or deny discovery....” Hallett v. 6 Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 7 A party may serve on another party requests to produce and permit the 8 requesting party or its representative to inspect, copy, test, or sample items in the 9 responding party's possession, custody, or control, including designated documents, 10 electronically stored information, or other writings. Fed. R. Civ. P. 34(a)(1). The 11 responding party then must respond in writing within thirty (30) days, unless otherwise 12 agreed upon, after being served. Fed. R. Civ. P. 34(b)(2). If a responding party objects, 13 the objection “must state whether any responsive materials are being withheld on the 14 basis of that objection[, and] an objection to part of a request must specify the part and 15 permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). A requesting party is entitled to 16 production of documents within a responding party's possession, custody, or control, 17 regardless of whether the requesting party possesses the same documents. Fed. R. Civ. 18 P. 34(a). 19 A party may propound interrogatories relating to any matter that may be inquired 20 to under Rule 26(b). Fed. R. Civ. P. 33(a). Rule 33 requires that, unless otherwise 21 agreed upon, the responding party must serve its answers and any objections to 22 interrogatories within thirty (30) days after being served. Fed. R. Civ. P. 33(b)(2). Parties 23 must respond to the fullest extent possible, and any objections must be stated with 24 specificity. Fed. R. Civ. P. 33(b)(3)-(4). In general, a responding party is not required “to 25 conduct extensive research in order to answer an interrogatory, but a reasonable effort 26 to respond must be made.” Haney v. Saldana, 2010 WL 3341939, at *3 (E.D. Cal. Aug. 27 24, 2010) (citing L.H. v. Schwarzenegger, 2017 WL 2781132, at *2 (E.D. Cal. Sep. 21, 28 2007).) Further, the responding party must supplement a response if the information 1 sought is later obtained or the previous response requires a correction. Fed. R. Civ. P. 2 26(e)(1)(A). Any objection to an interrogatory must be stated “with specificity.” Fed. R. 3 Civ. P. 33(b)(4). 4 A party may move to compel discovery if the movant has in good faith conferred 5 with the party opposing discovery to obtain the requested discovery without the court's 6 intervention. See Fed. R. Civ. P. 37(a)(1). The moving party bears the burden to “inform 7 the Court which discovery requests are the subject of the motion to compel, and, for 8 each disputed response, why the information sought is relevant and why the responding 9 party's objections are not meritorious.” Adams v. Yates, 2013 WL 5924983, at *1 (E.D. 10 Cal. Nov. 1, 2013). If a court grants the motion, then the court must order the party 11 “whose conduct necessitated the motion... to pay the movant's reasonable expenses 12 incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). The 13 court must not award expenses if “the movant filed the motion before attempting in good 14 faith to obtain the disclosure or discovery without court action”; “the opposing party's 15 nondisclosure, response, or objection was substantially justified”; or “other 16 circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). 17 III. DISCUSSION 18 A. Motion to Strike Plaintiff’s Joint Discovery Statement 19 Defendant moves to strike Plaintiff’s Joint Discovery Statement as untimely, 20 improper, and meritless. (ECF No. 27.) While the Court agrees Plaintiff’s Joint Discovery 21 Statement is untimely, the Court has considered Plaintiff’s Joint Discovery Statement in 22 ruling on the pending motion to compel. Accordingly, Defendant’s motion to strike is 23 DENIED. 24 B. Motion to Compel 25 Defendant argues it is entitled to supplemental responses for Defendant’s 26 Interrogatories Nos. 2, 4, 6, 8, 10, 12, 14, 16, and 17 and documents responsive to 27 Defendant’s RFP Nos. 1-10. Defendant contends that despite making multiple efforts to 28 meet and confer in good faith as to Plaintiff’s insufficient responses, Plaintiff has not 1 served his supplemental discovery responses and documents to date. Defendant 2 contends Plaintiff’s inaction has resulted in the improper delay of discovery. 3 In response, Plaintiff contends he would have served supplemental discovery 4 responses as agreed but that “the last couple of months he has undergone some 5 medical health issues hindering his ability to submit the supplemental discovery requests 6 and Plaintiff, who suffers from severe mental illness has been in and out of jail and is 7 transient, making Plaintiff’s counsel efforts to locate him to complete the supplemental 8 response extremely difficult.” (ECF No. 24 at 3, 9.) Nevertheless, Plaintiff agreed to 9 submit supplemental responses for Defendant’s Interrogatories Nos. 2, 4, 6, 8, 10, 12, 10 14, 16, and 17 and documents responsive to Defendant’s RFP Nos. 1-10. Plaintiff 11 presented no other argument regarding Defendant’s interrogatories or RFPs. At the 12 hearing, Plaintiff further confirmed his agreement to supplement his interrogatory 13 responses and to produce documents. 14 A court must treat an evasive or incomplete disclosure, answer, or response as a 15 failure to respond. Fed. R. Civ. P. 37(a)(4). Here, the record clearly demonstrates that 16 over the course of eight (8) months from August 2023 to March 2024, Plaintiff’s counsel 17 repeatedly failed to respond, engage, or cooperate in the discovery process.4 (See Exhs. 18 A-H.) During this eight month-time period, Defendant regularly followed up with Plaintiff 19 after every missed deadline and every failure to respond, professionally and courteously, 20 finally filing this motion to compel only after Plaintiff failed to supplement his interrogatory 21 responses and produce documents as the parties had agreed and only after Plaintiff 22 failed to respond to Defendant’s inquiries. Defendant even agreed in December 2023 to 23 a joint stipulation to extend discovery deadlines. But instead of using the additional time 24 granted by the extension, the same pattern emerged of Plaintiff failing to meet deadlines 25 and failing to respond, and Defendant regularly following up. Additionally, despite 26 Plaintiff’s agreement to supplement his discovery responses and produce documents on 27 4 At the hearing, Plaintiff’s counsel conceded that the record before the Court was 28 complete and he did not dispute Defendant’s account of the discovery issues. 1 January 7, 2024 by email and confirmed during the parties’ January 10, 2024 meet and 2 confer, as of the April 10, 2024 hearing, Plaintiff still had not supplemented his discovery 3 responses or produced any documents. 4 Accordingly, the Court grants Defendant’s motion to compel and orders Plaintiff to 5 supplement his responses to Defendant’s Interrogatories Nos. 2, 4, 6, 8, 10, 12, 14, 16, 6 and 17 and to produce documents responsive to Defendant’s Request for Production of 7 Documents, Set One, Nos. 1-10 by May 10, 2024, as provided below. 8 C. Rule 37 Expenses5 9 If a court grants the motion to compel, it also must award the moving party its 10 reasonable expenses in making the motion, including attorneys' fees unless: the moving 11 party did not make a good faith attempt to obtain the disclosure before making the 12 motion; the opposing party's nondisclosure, response, or objection was substantially 13 justified; or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 14 37(a)(5)(A)(i)-(iii). “The test for substantial justification is one of reasonableness.” Cathey 15 v. City of Vallejo, 2015 WL 5734858, at *8 (E.D. Cal. Sept. 29, 2015) (internal quotations 16 omitted) (quoting United States v. First Nat. Bank of Circle, 732 F.2d 1444, 1447 (9th Cir. 17 1984).) 18 Under Rule 37, awarding reasonable expenses is mandatory here as none of the 19 exceptions are established. See Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). Defendant made 20 several good faith attempts continuously over an eight month-time period to obtain 21 discovery from Plaintiff, and Plaintiff’s discovery conduct necessitated Court intervention. 22 Plaintiff has also failed to provide substantial justification for his continued failures to 23 timely and sufficiently respond to Defendant’s countless discovery efforts, and his 24 failures to follow his own agreements. 25 The Ninth Circuit affords district courts broad discretion in determining the
26 5 The Court notes that Defendant indicated it was “willing to drop its request for 27 expenses incurred in bringing the motion” due to the medical issues Plaintiff’s counsel raised, but as the Court stated at the hearing, the Court is required to determine whether 28 expenses are appropriate pursuant to Rule 37 when a motion to compel is granted. 1 reasonableness of fees. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir.1992). The 2 Ninth Circuit utilizes the “lodestar” method for assessing reasonable attorney's fees. 3 Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). Under the “lodestar” 4 method, the number of hours reasonably expended is multiplied by a reasonable hourly 5 rate. Id. Reasonable hourly rates are determined by the “prevailing market rates in the 6 relevant community.” Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). “Although 7 in most cases, the lodestar figure is presumptively a reasonable fee award, the district 8 court may, if circumstances warrant, adjust the lodestar to account for other factors 9 which are not subsumed within it.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 10 (9th Cir. 2008) (internal citation and quotation marks omitted). While the amount of a fee 11 award is discretionary, the district court must “provide a concise but clear explanation of 12 its reasons for the fee award.” Carter v. Caleb Brett LLC, 757 F.3d 866, 868 (9th Cir. 13 2014). The court can “impose a reduction of up to 10 percent—a ‘haircut’—based purely 14 on the exercise of its discretion and without more specific explanation,” but “[w]here the 15 disparity between the fees requested and those awarded is relatively large, the district 16 court should provide a specific articulation of its reasons for reducing the award.” Costa 17 v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135-36 (9th Cir. 2012). 18 The Court is sensitive to the medical issues and client contact and mental health 19 issues raised as substantial justification and circumstances making the award of 20 expenses unjust. (See ECF No. 24 at 12-13.) However, at the hearing, Plaintiff’s counsel 21 admitted that his medical issues did not prevent him from timely responding and 22 supplementing his discovery responses, and that in fact, he was actively working on 23 other cases in other courts over many months. Moreover, Plaintiff’s counsel conceded 24 that after December 1, 2023, Plaintiff’s counsel did not inform Defendant of any of 25 counsel’s medical or health issues, including those raised in Plaintiff’s March 28, 2024 26 Joint Discovery Statement filing. (See Exh. G (Pl. Dec. 1, 2023 email).) Plaintiff’s counsel 27 also conceded that he never informed Defendant of his client contact or mental health 28 issues prior to Plaintiff’s March 28, 2024 Joint Discovery Statement filing. Finally, as 1 described above, the record clearly demonstrates that Plaintiff repeatedly failed to 2 respond, engage, or cooperate in the discovery process over an eight month-time period 3 from August 2023 to March 2024, and the proffered reasons do not excuse or explain 4 this eight-month failure. 5 Accordingly, the Court must award Defendant his reasonable expenses incurred 6 in bringing the motion to compel. Defendant submitted that 14 hours were spent 7 preparing the motion to compel at a $225 hourly rate, totaling $3,150 in expenses. (ECF 8 No. 23 (Def. Mar. 27, 2024 Decl. ¶ 25).) Though Plaintiff argued that reasonable 9 expenses should not be awarded under Rule 37, Plaintiff did not challenge defense 10 counsel’s hourly rate or time spent on the motion to compel. (See ECF No. 24 (Pl. Joint 11 Discovery Statement at 11-13).) At the hearing, the Court ordered Defendant to submit 12 supplemental information regarding its expenses, including information to assess the 13 reasonableness of counsel’s hourly rate, which Defendant timely submitted. (ECF No. 14 29.) The Court finds that defense counsel’s hourly rate for an attorney with four years of 15 experience to be reasonable and comparable, if not lower than, the prevailing market 16 rate in the region based on the legal authority presented, including cases where 17 attorneys of comparable experience in this district were awarded hourly rates between 18 $280 to $420. (See ECF No. 29 (Def. Apr. 12, 2024 Decl. ¶ 4).) The Court also notes 19 that defense counsel did not submit additional expenses to account for additional time 20 spent on work related to Defendant’s motion to compel, including time responding to 21 Plaintiff’s untimely Joint Discovery Statement, time spent preparing for the hearing, or 22 participation in the hearing. 23 Though the Court finds that 14 hours is a reasonable amount of time spent by 24 defense counsel to bring the motion to compel, which was thoroughly presented with 25 detailed exhibits, the Court imposes a 10 percent reduction based on its permitted 26 discretion. See Costa, 690 F.3d at 1135-36. The Court has taken into consideration the 27 fact that at the hearing, Plaintiff’s counsel’s accepted responsibility for his discovery 28 conduct and gave assurance to the Court and Defendant that this conduct would 1 immediately cease. Therefore, the Court awards Defendant reasonable expenses in the 2 amount of $2,835, which is 90% of the expenses submitted by defense counsel and 3 Plaintiff’s counsel is ordered to pay this amount. 4 D. Modifications to the Discovery Schedule 5 At the April 10 hearing, modifications to the discovery schedule were discussed 6 with both parties given the Court’s grant of Defendant’s motion to compel (ECF No. 20). 7 The new deadlines are reflected in the order section below, as discussed at the April 10 8 hearing. 9 ORDER 10 Accordingly, the Court ORDERS: 11 1. Defendants motion to strike Plaintiff’s Joint Discovery Statement (ECF No. 27) 12 is DENIED; 13 2. Defendant’s motion to compel (ECF No. 20) is GRANTED; 14 3. Defendant is awarded its reasonable expenses to bring the motion to compel 15 in the amount of $2,835, which Plaintiff’s counsel must pay; 16 4. In summary, the following modified schedule applies: 17 a. By May 10, 2024, Plaintiff shall supplement his responses to Defendant’s 18 Interrogatories Nos. 2, 4, 6, 8, 10, 12, 14, 16, and 17, and produce 19 documents responsive to Defendant’s RFP Nos. 1-10; 20 b. By May 10, 2024, Plaintiff shall file a written status report regarding his 21 supplemental interrogatory responses and document production, and 22 describing the manner and date of service; 23 c. By May 24, 2024, the parties shall meet and confer by phone, video, or in- 24 person regarding Plaintiff’s supplemental responses and document 25 production; 26 d. By June 3, 2024, the parties shall file a joint statement providing a 27 discovery status update, including the status of the parties’ meet and 28 confer regarding Plaintiff’s supplemental responses and document 1 production; 2 e. The fact discovery cut-off of May 21, 2024 is extended to June 21, 2024; 3 f. The deadline for expert witness disclosures is extended from July 21, 2024 4 to July 26, 2024; 5 g. The deadline for rebuttal expert disclosures is extended from August 21, 6 2024 to August 26, 2024; and 7 h. No other case deadlines are modified. The expert discovery cut-off, 8 dispositive motion filing deadline, and all other deadlines not identified 9 above (see ECF Nos. 3, 19) remain unaffected by this order. 10 11 | Dated: April 26, 2024 C i $ 12 CHI SOO KIM 43 UNITED STATES MAGISTRATE JUDGE 14 4, ghaz. 1988.22 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15