1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARKUS HEITKOETTER, et al., Case No. 1:22-cv-0368-KES-BAM 12 Plaintiffs, ORDER REGARDING JOINT DISCOVERY DISPUTE STATEMENT 13 v. (Doc. 119) 14 KARL DOMM,
15 Defendant. 16 17
18 Currently before the Court is the parties’ Joint Status Report on Disputed Discovery (Doc. 19 119), which clarifies the remaining discovery disputes between the parties. Having considered 20 the briefing, and the entire docket, and for the reasons discussed below, the Court finds that 21 Plaintiffs must supplement their responses to Interrogatory Nos. 8, 12, and 20 to Plaintiff 22 Heitkoetter; Request for Production No. 10 to Plaintiff Heitkoetter, and Request for Production 23 No. 38 to Plaintiff Rockwell. 24 I. Brief Factual and Procedural Background 25 In the interest of brevity, the Court highlights pertinent parts of the case background. 26 Plaintiffs Markus Heitkoetter and Rockwell Trading Services, LLC (“Plaintiffs”) bring several 27 claims sounding in defamation against Defendant Karl Domm based on allegations that he 28 published injurious falsehoods about Plaintiffs’ investment program through videos and 1 comments on YouTube.1 As relevant to this motion, on April 6, 2023, Defendant and 2 Counterclaimant Karl Domm filed a counterclaim against Plaintiffs and Counter-Defendants 3 Markus Heitkoetter and Rockwell Trading Services, LLC alleging: (1) False Advertising pursuant 4 to 15 U.S.C. 1125(a)(1)(B); and (2) Violation of California Unfair Competition Law pursuant to 5 Cal. Bus. & Prof. Code Section 17200. (Doc. 46.) Counterclaimant Domm primarily alleged that 6 Counter-Defendants made false statements in their YouTube advertisements. (Id.) 7 The Court granted in part and denied in part Defendant’s motion to strike and motion to 8 dismiss on January 29, 2024. (Doc. 86.) Following that time, the parties have had numerous 9 discovery disputes and appeared before the Court at an in-person status conference regarding 10 discovery disputes on August 13, 2024, at which the parties represented that they had resolved all 11 issues except for motions for protective orders regarding Mark Hodge and Emmett Moore. (Doc. 12 107.) 13 II. Discussion The parties filed the instant joint status report on disputed discovery on October 4, 2024. 14 (Doc. 119.) Defendant states that disputes remain regarding: Defendant’s Interrogatories (Set 15 One) to Plaintiff Markus Heitkoetter Nos. 1, 2, 4, 5, 8, 12, and 20; Defendant’s Interrogatories 16 (Set One) to Plaintiff Rockwell Nos. 1, 2, 4, 5, and 11; Defendant’s Requests for Production of 17 Documents to Plaintiff Heitkoetter No. 10; and Defendant’s Requests for Production of 18 Documents to Plaintiff Rockwell Nos. 8, 11, and 38. (Id.) 19 The Court addresses the remaining disputes below. 20 a. Defendant’s Interrogatories to Plaintiffs Heitkoetter and Rockwell Nos. 1-2 21 INTERROGATORY NO. 1: For each of Your denials of a material allegation in Your 22 Answer, state all facts on which you base the denial. 23 PLAINTIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 1: Plaintiff 24 Heitkoetter objects to Propounding Party’s definition of “You” as overbroad, vague, and 25 26 1 According to the operative complaint, Plaintiff Markus Heitkoetter is a successful and well-respected investor and 27 trader in the stock and real estate markets. Plaintiff Heitkoetter founded Rockwell Trading which currently offers educational services and programs for anyone interested in investing and trading. Defendant is also an options trader 28 who markets and sells a course in options trading, similar to that offered by Plaintiffs. (Doc. 60.) 1 ambiguous on the grounds that it purports to include parties other than Plaintiff Heitkoetter. 2 Plaintiff Heitkoetter responds to this Interrogatory only on behalf of himself. 3 Moreover, Plaintiff Heitkoetter objects on the basis that this Interrogatory is 4 impermissibly overbroad and unduly burdensome. See, e.g. Lawrence v. First Kansas Bank & Tr. 5 Co., 169 F.R.D. 657, 662-663 (D. Kan. 1996); AJ Reyes v. Educ. Credit Mgmt. Corp., No. 6 15CV628- BAS(JMA), 2016 WL 9488704, at *3 (S.D. Cal. Sept. 20, 2016) ("Discovery requests 7 must state with particularity the information sought."). 8 Notwithstanding said objection, and in an attempt to be responsive, Plaintiff Heitkoetter 9 states that Defendant Domm’s Counterclaim alleges that Plaintiff Heitkoetter engaged in 10 deceptive and unethical conduct when making public statements about Plaintiff Heitkoetter and 11 the trading results that can be achieved through using Plaintiff Rockwell’s goods and services. 12 Plaintiff Heitkoetter issued denials to Defendant Domm’s Counterclaim that alleged that any 13 deceptive or unethical conduct occurred. PLAINTIFF ROCKWELL’S RESPONSE TO INTERROGATORY NO. 1: Plaintiff 14 Rockwell objects to Propounding Party’s definition of “You” as overbroad, vague, and 15 ambiguous on the grounds that it purports to include parties other than Plaintiff Rockwell. 16 Plaintiff Rockwell responds to this Interrogatory only on behalf of itself. 17 Moreover, Plaintiff Rockwell objects on the basis that this Interrogatory is impermissibly 18 overbroad and unduly burdensome . See, e.g. Lawrence v. First Kansas Bank & Tr. Co., 169 19 F.R.D. 657, 662-663 (D. Kan. 1996); AJ Reyes v. Educ. Credit Mgmt. Corp., No. 15CV628- 20 BAS(JMA), 2016 WL 9488704, at *3 (S.D. Cal. Sept. 20, 2016) ("Discovery requests must state 21 with particularity the information sought.") 22 Notwithstanding said objection, and in an attempt to be responsive, Plaintiff Rockwell 23 states that Defendant Domm’s Counterclaim alleges that Plaintiff Rockwell engaged in deceptive 24 and unethical conduct when making public statements about Plaintiff Heitkoetter and the trading 25 results that can be achieved through using Plaintiff Rockwell’s goods and services. Plaintiff 26 Rockwell issued denials to Defendant Domm’s Counterclaim that alleged that any deceptive or 27 unethical conduct occurred. 28 1 INTERROGATORY NO 2: For each denial of a material allegation in Your Answer, 2 identify all documents that support Your denial, and state the name, address and telephone 3 number of the person who has each document. 4 PLAINIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 2: 5 Plaintiff Heitkoetter objects to this Interrogatory on the grounds that the Interrogatory is 6 compound. Plaintiff Heitkoetter ambiguous on the grounds that it purports to include parties other 7 than Plaintiff Heitkoetter. Plaintiff Heitkoetter responds to this Interrogatory only on behalf of 8 himself. 9 Plaintiff Heitkoetter objects to this Interrogatory on the grounds that the Interrogatory is 10 impermissibly overbroad and unduly burdensome for the reasons set forth in the Response to 11 Interrogatory No. 1. 12 Notwithstanding said objection, and in an attempt to be responsive, please see the 13 Documents previously provided by Plaintiff Rockwell to Defendant Domm’s previous discovery requests, which clearly indicate that Plaintiff Rockwell did not engage in deceptive or unethical 14 behavior. 15 PLAINTIFF ROCKWELL’S RESPONSE TO INTERROGATORY NO. 2: Plaintiff 16 Rockwell objects to this Interrogatory on the grounds that the Interrogatory is compound. Plaintiff 17 Rockwell ambiguous on the grounds that it purports to include parties other than Plaintiff 18 Heitkoetter. Plaintiff Rockwell responds to this Interrogatory only on behalf of itself. Plaintiff 19 Rockwell objects to this Interrogatory on the grounds that the Interrogatory is impermissibly 20 overbroad and unduly burdensome for the reasons set forth in the Response to Interrogatory No. 21 1. 22 Notwithstanding said objection, and in an attempt to be responsive, please see the 23 Documents previously provided by Plaintiff Rockwell to Defendant Domm’s previous discovery 24 requests, which clearly indicate that Plaintiff Rockwell did not engage in deceptive or unethical 25 behavior. 26 DISCUSSION: Eastern District courts have noted that contention interrogatories, “which 27 ‘systematically track all of the allegations in an opposing party's pleadings, and that ask for ‘each 28 1 and every fact’ and application of law to fact that supports the party's allegations are an abuse of 2 the discovery process because they are overly broad and unduly burdensome.’ ” Aldapa v. Fowler 3 Packing Co. Inc., 310 F.R.D. 583, 591 (E.D. Cal. 2015) (quoting Miles v. Shanghai Zhenhua Port 4 of Mach. Co., LTS., No. C08-5743 FDB, 2009 WL 3837523, at *1 (W.D. Wash. Nov. 17, 2009)). 5 Courts throughout the Ninth Circuit have routinely found these 45++contention interrogatories to 6 be overly broad and unduly burdensome. See Haggarty v. Wells Fargo Bank, N.A., No. 10-2416 7 CRB JSC, 2012 WL 4113341, at *2 (N.D. Cal. Sept. 18, 2012); Mancini v. Ins. Corp. of New 8 York, No. CIV. 07CV1750-L NLS, 2009 WL 1765295, at *3 (S.D. Cal. June 18, 2009) 9 (“Contention interrogatories are often overly broad and unduly burdensome when they require a 10 party to state “every fact” or “all facts” supporting identified allegations or defenses.”) 11 Here, Defendant’s initial interrogatories requiring Plaintiffs to “state all facts” or “identify 12 all documents” were unduly burdensome. See Aldapa, 310 F.R.D. at 591. Defendant then 13 somewhat limited the interrogatories to only address paragraphs 24, 25, 31, 41, 43, 45, 47, 55, 56,67,78, 89, 94 and 101 of Defendant’s Counterclaim. (Doc. 119-1 at 116, See Doc. 60.) While 14 Plaintiff identifies “material allegations” as relating to the fourteen paragraphs, Defendant still 15 requires Plaintiffs to “state all facts” and to “identify all documents” rather than limiting this 16 request to material facts and material facts or another more targeted request. (Doc. 119-1 at 116; 17 Doc. 119 at 3-5.) The requests therefore remain overly broad and unduly burdensome. Aldapa, 18 310 F.R.D. at 591. 19 Moreover, a significant number of the counterclaim and answer paragraphs at issue relate 20 to Plaintiff Heitkoetter’s trading and alleged gains or losses that purportedly did not meet the 21 numbers Plaintiffs advertised. (See Doc. 58 ¶¶ 31, 43, 45, 47, 55, 56, 67, 89, 94, 101.) But 22 Defendant’s counsel stated at the August 13, 2024 in-person discovery conference “that 23 Defendant already had Plaintiff Heitkoetter's tax returns, trading records, and financial 24 statements,” and further discovery related to Plaintiff Heitkoetter’s trading is provided for as 25 discussed below. (See Doc. 107.) Given that the trading information sought through these 26 interrogatories has been and will be obtained through more targeted means, the request to state all 27 facts or identify all documents related to this issue is unreasonably cumulative or duplicative. 28 1 See Fed. R. Civ. P. 26(b)(2)(c)(i). 2 Defendant further argues that Plaintiffs had previously agreed to amend the response 3 following the limitation in scope. (Doc. 119 at 4.) This does not change the Court’s analysis that 4 these interrogatories are overly broad, unduly burdensome, and duplicative. Defendant’s requests 5 for further supplement, waiver of objections, or sanctions is therefore denied. 6 b. Defendant’s Interrogatories to Plaintiffs Heitkoetter and Rockwell No. 4 7 INTERROGATORY NO. 4: For each response to Mr. Domm’s Request for Admissions 8 (Set One, Counterclaim) that is not an unqualified admission, state all facts upon which you base 9 Your response. 10 PLAINTIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 4: Plaintiff 11 Heitkoetter objects to Propounding Party’s definition of “You” as overbroad, vague, and 12 ambiguous on the grounds that it purports to include parties other than Plaintiff Heitkoetter. 13 Plaintiff Heitkoetter responds to this Interrogatory only on behalf of himself. Plaintiff further objects to this Interrogatory on the grounds set forth in Response to Interrogatory No. 1. 14 Notwithstanding said objection, and in an attempt to be responsive, Plaintiff Heitkoetter 15 states that Defendant Domm’s Requests for Admission allege that Plaintiff Heitkoetter engaged in 16 deceptive and unethical conduct when making public statements about Plaintiff Heitkoetter and 17 the trading results that can be achieved through using Plaintiff Heitkoetter’s goods and services. 18 Plaintiff Rockwell issued denials to Defendant Domm’s Request for Admissions that alleged that 19 any deceptive or unethical conduct occurred. Further, Plaintiff Heitkoetter has produced 20 additional documentation showing that he was fully transparent with the public about the 21 performance of all of his trades, including those which were not profitable. 22 PLAINTIFF ROCKWELL’S RESPONSE TO INTERROGATORY NO. 4: Plaintiff 23 objects to Propounding Party’s definition of “You” as overbroad, vague, and ambiguous on the 24 grounds that it purports to include parties other than Plaintiff. Plaintiff responds to this 25 Interrogatory only on behalf of itself. 26 Plaintiff further objects to this Interrogatory on the grounds set forth in Response to 27 Interrogatory No. 1. 28 1 Notwithstanding said objection, and in an attempt to be responsive, Plaintiff Rockwell 2 states that Defendant Domm’s Requests for Admission allege that Plaintiff Rockwell engaged in 3 deceptive and unethical conduct when making public statements about Plaintiff Heitkoetter and 4 the trading results that can be achieved through using Plaintiff Rockwell’s goods and services. 5 Plaintiff Rockwell issued denials to Defendant Domm’s Request for Admissions that alleged that 6 any deceptive or unethical conduct occurred. Further, Plaintiff Rockwell has produced additional 7 documentation showing that he was fully transparent with the public about the performance of all 8 of his trades, including those which were not profitable. 9 DISCUSSION: Again, Defendant’s initial interrogatories requiring Plaintiffs to “state all 10 facts” or “identify all documents” were unduly burdensome. See Aldapa, 310 F.R.D. at 591. 11 Defendant purported to have limited the interrogatories to nine requests for admission. (Doc. 119 12 at 5.) However, in the 134-page supporting declaration and exhibits to the discovery 13 disagreement, Defendant’s counsel does not include those requests for admission. (See Doc. 119, 119-1.) Absent reviewing those requests for admission, the Court cannot find that Defendant has 14 appropriately limited the scope of the requests. Furthermore, the lack of a limitation on the 15 request to “state all facts” further indicates that these interrogatories remain overbroad and unduly 16 burdensome. Defendant’s requests for further supplement, waiver of objections, or sanctions is 17 therefore denied. 18 c. Defendant’s Interrogatory to Plaintiffs No. 5 19 DEFENDANT’S INTERROGATORY NO. 5: For each response to Mr. Domm’s Request 20 for Admissions (Set One, Counterclaim) that You identified in Interrogatory Number Four, 21 identify the persons with knowledge of those facts. 22 PLAINTIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 5: See 23 Response to Interrogatory No. 4. Notwithstanding said objection, and in an attempt to be 24 responsive, Plaintiff Heitkoetter states that he has the most knowledge regarding the denials to 25 Defendant Domm’s Request for Admissions. 26 RESPONSE TO INTERROGATORY NO. 5: See Response to Interrogatory No. 4. 27 Notwithstanding said objection, and in an attempt to be responsive, Plaintiff states that Markus 28 1 Heitkoetter has the most knowledge of the facts contained in Plaintiff Rockwell’s Responses to 2 Requests for Admissions. 3 DISCUSSION: Plaintiff Heitkoetter responded to Interrogatory No. 5 stating that “he has 4 the most knowledge regarding the denials to Defendant Domm’s Request for Admissions.” (Doc. 5 119 at 23.) Despite objection, Plaintiff Heitkoetter responded directly to Interrogatory No. 5 with 6 the information sought. As Plaintiff has provided a response to this interrogatory, there appears 7 to be no further dispute on this issue. Defendant’s requests for further supplement, waiver of 8 objections, or sanctions is therefore denied. 9 d. Defendant’s Interrogatory to Plaintiffs No. 8 to Plaintiff Heitkoetter 10 INTERROGATORY NO. 8: Identify the net liquidation value in dollars gained or lost in 11 Your Brokerage Accounts that You held, owned or operated on December 31st for each calendar 12 year between 2019 and 2023. 13 PLAINTIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 8: Plaintiff Heitkoetter objects to Propounding Party’s definition of “You” as overbroad, vague, and 14 ambiguous on the grounds that it purports to include parties other than Plaintiff Heitkoetter. 15 Plaintiff Heitkoetter responds to this Interrogatory only on behalf of himself. 16 Plaintiff Heitkoetter objects to Propounding Party’s definition of “Brokerage Account” as 17 overbroad, vague, and ambiguous on the grounds that it purports to include any joint account. 18 Plaintiff Heitkoetter objects to this Interrogatory on the grounds that the Interrogatory is 19 compound. Plaintiff Heitkoetter objects to this Interrogatory on the grounds that the Interrogatory 20 seeks information that is neither relevant to the Counterclaim or defenses thereto, nor calculated 21 to lead to the discovery of admissible evidence. Plaintiff Heitkoetter objects to this Interrogatory 22 on the grounds that the Interrogatory is unduly burdensome, propounded for the purpose of 23 harassment, and not proportional to the needs of the case. 24 DISCUSSION: Plaintiffs object based upon relevance and contend that the Court’s 25 determination that the “net liquidation value” is not relevant based upon the assertion that 26 Paragraph 45 of Defendant’s counterclaim refers to the “net liquidation value” when Paragraphs 27 44-45 of the counterclaim only refer to “true profit and loss/return on investment by calendar 28 1 year.” (Doc. 119 at 25, Doc. 46 ¶¶ 44-45.) Plaintiffs contend that because Defendant “claimed 2 that that the purpose of this Interrogatory is to discern why a denial was issued as to the figures 3 presented in Paragraph 45 of the Counterclaim,” Plaintiffs provided “monetary gain/loss” figures 4 for 2019, 2020, and 2021. (Doc. 119 at 25.) 5 However, this does not make the net liquidation value irrelevant to Defendant’s 6 Counterclaim. Defendant alleges in his counterclaim that, “Net liquidation value is the true value 7 of an account by industry metrics” and that, “Beginning in the third quarter of 2021, 8 Counterclaim-Defendants stopped showing the Public Account’s unrealized losses, and in effect 9 the accounts net liquidation value” but “The net liquidation value was not able to be accurately 10 calculated without knowing the unrealized losses.” (Doc. 46 ¶¶ 54-55.) Defendant further 11 alleges that “based on the Public Account’s brokerage statements, the net liquidation value of the 12 account at the end of the year on December 31, 2021, was a loss of approximately $29,000.00.” 13 (Id. ¶ 67.) While Plaintiffs are correct that Defendant uses the terms “true profit and loss/return on investment by calendar year” and “Monetary Gain/Loss” in Paragraphs 44 and 45 of his 14 Counterclaim and the Court referred to “net liquidation gain” in its August 13, 2024 order, this 15 does not make “net liquidation value” irrelevant given Defendant’s other allegations. (See Docs. 16 46, 107.) 17 Plaintiffs additionally object that the interrogatory is overbroad, vague, ambiguous, and 18 compound as to the words “you” and “Brokerage Account.” (Doc. 119 at 24.) However, the 19 interrogatory directed to Plaintiff Heitkoetter clarifies that it refers to “Your Brokerage Accounts 20 that You held, owned or operated on December 31st for each calendar year between 2019 and 21 2023.” Given the specificity and Defendant’s further clarification that the “net liquidation value” 22 consists of realized gains, realized losses, unrealized gains, and unrealized losses, this objection is 23 unavailing. (See Doc. 119 at 7.) 24 Plaintiff Heitkoetter further states in his notes to Interrogatory No. 20 that he “does not 25 track ‘unrealized losses’ or net liquidation value of any accounts or brokerage account statements 26 furnished to them” and “Plaintiff maintains that to the extent Defendant wishes to use his own 27 calculations to determine this figure, he can do so.” (Doc. 119 at 27.) If Plaintiff does not have 28 1 the requested information, Plaintiff may respond to the interrogatory accordingly. However, the 2 response as currently supplemented does not reflect that. 3 As Plaintiffs’ objections are overruled, Plaintiff Heitkoetter must provide Defendant with 4 the net liquidation value gained or lost in brokerage accounts he held, owned, or operated from 5 2019 through 2022. (Id.) Given the potential confusion regarding the multiple terms at issue in 6 Defendant’s counterclaim, the Court will not presume that Plaintiffs’ supplemented response 7 violated the Court’s August 13, 2024 order. (See Doc. 107.) Accordingly, Defendant’s request 8 for supplementing of Interrogatory No. 8 to Plaintiff Heitkoetter is granted. Plaintiff Heitkoetter 9 shall supplement his response to Interrogatory No. 8 on or before December 20, 2024. 10 Defendant’s request for an evidentiary sanction and/or reasonable attorneys’ fees is, however, 11 denied. (See Doc. 119 at 8.) 12 e. Defendant’s Interrogatory to Plaintiff Heitkoetter No. 12 13 INTERROGATORY NO. 12: Identify each Document or publication where You claimed to the public that You gained sixty (60) percent or more in any Brokerage Account You owned, 14 controlled or traded for a given year, or years combined. 15 PLAINTIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 12: Plaintiff 16 Heitkoetter objects to Propounding Party’s definition of “You” as overbroad, vague, and 17 ambiguous on the grounds that it purports to include parties other than Plaintiff Heitkoetter. 18 Plaintiff Heitkoetter responds to this Interrogatory only on behalf of himself. Plaintiff Heitkoetter 19 objects to Propounding Party’s definition of “Brokerage Account” as overbroad, vague, and 20 ambiguous on the grounds that it purports to include any joint account. 21 Plaintiff Heitkoetter objects to this Interrogatory on the grounds that the Interrogatory is 22 compound. Plaintiff Heitkoetter objects to this Interrogatory on the grounds that the Interrogatory 23 seeks information that is neither relevant to any claim or defense in this case, nor calculated to 24 lead to the discovery of admissible evidence. 25 Plaintiff Heitkoetter objects to this Interrogatory on the basis that it is unduly burdensome 26 and not proportional to the needs of the case. Claims that Plaintiff may have made to the “public” 27 are, inherently, “public” and, thus, equally accessible to Defendant Domm. Plaintiff does not keep 28 1 a categorical log of specific statements he has “made to the public” throughout his career, and 2 requiring Plaintiff to sift through innumerable written publications and thousands of hours of 3 content is not a burden Plaintiff should bear, particularly where it is Defendant’s burden to prove 4 that specific statements (allegedly) made by Plaintiff, in fact, caused some tangible harm to 5 Defendant. 6 DEFENDANT’S POSITION REGARDING INTERROGATORY NO. 12 (Doc. 119 at 8- 7 9): Defendant agreed to limit the response to identification to matters that were conformed to 8 writing so that Plaintiff could easily search for anything that was responsive (search terms such as 9 sixty, 60, 60% or higher) would have been the due diligence search that should have commenced 10 after the August hearing. 11 PLAINTIFF HEITKOETTER’S POSITION REGARDING INTERROGATORY NO. 12 12 (Doc. 119 at 26): Plaintiff stands by this objection and response. Defendant has identified in his 13 Counterclaim several times when Plaintiff refers to “making or getting 60%” – twice in the year 2018 and once in an undated publication on Rockwell’s website. Also, Defendant clearly has 14 been able to secure this “public” content, precisely as represented in the initial answer and 15 objection to this Interrogatory, as Defendant discussed such content during Plaintiff Heitkoetter’s 16 deposition. 17 Plaintiff is not aware of any other instances of such statement being made and will amend 18 the response to reflect that after a document review. Plaintiff is not aware of any other instances 19 referring to this “60%” figure in any content other than that identified by Defendant in the 20 Counterclaim and in content discussed during Plaintiff’s deposition. 21 DISCUSSION: Plaintiffs object that this interrogatory is overbroad, vague, and 22 ambiguous as to the phrases “You” and “Brokerage Account,” despite the interrogatory being 23 directed to Plaintiff Heitkoetter clarifies that it refers to “any Brokerage Account [Plaintiff 24 Heitkoetter] owned, controlled or traded for a given year, or years combined.” (Doc. 119 at 25.) 25 Plaintiffs further object that this interrogatory seeks irrelevant information despite Defendant’s 26 counterclaim directly alleging that Plaintiff Heitkoetter promised trading returns of 60%. (See 27 Doc. 46 ¶¶ 26, 28, 77, 84, 86.) Plaintiffs further object that the interrogatory is compound despite 28 1 it being a single question. (Doc. 119 at 25.) These objections are inapposite and are therefore 2 overruled. 3 Plaintiffs further object that this interrogatory is unduly burdensome and not proportional 4 to the needs of the case. Defendant notes that he has limited this to statements in “writing so that 5 Plaintiff could easily search for anything that was responsive (search terms such as sixty, 60, 60% 6 or higher)…” (Doc. 119 at 9.) To the extent that the interrogatory remains ambiguous, the Court 7 will further limit the interrogatory to address statements made by Plaintiff during the relevant 8 period of January 1, 2019 to December 31, 2023. 9 The Court notes that Plaintiff Heitkoetter appears to have responded to this request in 10 Plaintiffs’ notes within the joint statement. (See Doc. 119 at 26.) Plaintiff Heitkoetter states that 11 he is “not aware of any other instances of such statement being made and will amend the response 12 to reflect that after a document review” and “Plaintiff is not aware of any other instances referring 13 to this “60%” figure in any content other than that identified by Defendant in the Counterclaim and in content discussed during Plaintiff’s deposition.” (Id.) Pending Plaintiff Heitkoetter’s 14 document review, he shall therefore amend his respond to Interrogatory No. 12 to reflect these 15 statements. Accordingly, Plaintiff Heitkoetter shall supplement his response to Interrogatory No. 16 12 as clarified above on or before December 20, 2024. 17 f. Defendant’s Interrogatory to Plaintiff Heitkoetter No. 20 18 INTERROGATORY NO. 20: State the amount of unrealized losses on December 31, 19 2021, for the Public Trading Account. 20 PLAINTIFF HEITKOETTER’S RESPONSE TO INTERROGATORY NO. 20: Plaintiff 21 Heitkoetter objects to Propounding Party’s definition of “You” as overbroad, vague, and 22 ambiguous on the grounds that it purports to include parties other than Plaintiff Heitkoetter. 23 Plaintiff Heitkoetter responds to this Interrogatory only on behalf of himself. Plaintiff Heitkoetter 24 objects to this Interrogatory on the grounds that the Interrogatory seeks information that is neither 25 relevant to any claim or defense in this case nor calculated to lead to the discovery of admissible 26 evidence. 27 Subject to and without waiving the foregoing objections, Plaintiff Heitkoetter responds to 28 1 this Interrogatory as follows: Plaintiff Heitkoetter has furnished statements for his brokerage 2 accounts for the relevant time periods in prior discovery through which Defendant can “identify” 3 such values. Notwithstanding said objection, and in an attempt to be responsive, Plaintiff 4 Heitkoetter states Paragraph 45 of the Counterclaim does not discuss net liquidation value but 5 references monetary gain/loss, which means realized profit and losses. On December 31, 2021, 6 the Public Trading Account had realized profits of $188,040. 7 DISCUSSION: Defendant seeks Plaintiff Heitkoetter’s unrealized losses, a component of 8 the “net liquidation value,” as discussed in Interrogatory No. 8. As with Interrogatory No. 8, 9 Plaintiffs object that the interrogatory is overbroad, vague, and ambiguous as it purports to 10 include other parties beyond Plaintiff Heitkoetter and seeks irrelevant information. (Doc. 119 at 11 27.) Defendant’s counterclaim specifically alleges that Defendant had unrealized losses during 12 2021. (Doc. 46 ¶¶ 53-57.) The interrogatory is not overbroad, vague, and ambiguous as it is 13 directed to Plaintiff Heitkoetter and specifically requests the unrealized losses as of the specific date December 31, 2021 for the “Public Trading Account.” (Doc. 119 at 9.) 14 Plaintiff Heitkoetter further states in his notes to Interrogatory No. 20 that he “does not 15 track ‘unrealized losses’ or net liquidation value of any accounts or brokerage account statements 16 furnished to them” and “Plaintiff maintains that to the extent Defendant wishes to use his own 17 calculations to determine this figure, he can do so.” (Doc. 119 at 27.) If Plaintiff does not have 18 the requested information, Plaintiff may respond to the interrogatory accordingly. However, the 19 response as currently supplemented does not reflect that. 20 As Plaintiffs’ objections to this interrogatory is overruled, Plaintiff Heitkoetter shall 21 supplement his response to Interrogatory No. 20 on or before December 20, 2024. 22 g. Defendant’s Interrogatory to Plaintiff Rockwell No. 11 23 INTERROGATORY NO. 11: For each year starting in 2018, identify the approximate 24 number of unique email addresses that were in Your Rockwell mailing list and the bases for the 25 approximate number. 26 PLAINTIFF ROCKWELL’S RESPONSE TO INTERROGATORY NO. 11: Plaintiff 27 Rockwell objects to Propounding Party’s definition of “You” as overbroad, vague, and 28 1 ambiguous on the grounds that it purports to include parties other than Plaintiff Rockwell. 2 Plaintiff Rockwell responds to this Interrogatory only on behalf of itself. Plaintiff Rockwell 3 objects to this Interrogatory on the grounds that the Interrogatory is compound. Plaintiff Rockwell 4 objects to this Interrogatory on the grounds that “mailing list” is vague and ambiguous. Plaintiff 5 Rockwell further objects to this Interrogatory on the grounds that the Interrogatory seeks 6 information that is not relevant to this Counterclaim or the stated defenses, is unduly burdensome, 7 and is not proportional to the needs of this case. Plaintiff Rockwell does not track the number of 8 “unique email addresses” in its possession on a month to month basis or for any other defined 9 period of time. It is unclear how Defendant contemplates this figure should be calculated, 10 particularly when “mailing list” is undefined. Notwithstanding said objection, and in an attempt to 11 be responsive, Plaintiff Rockwell states that after a diligent search of its system, it is not able to 12 respond to this Interrogatory. 13 PLAINTIFF ROCKWELL’S SUPPLEMENTAL RESPONSE: Plaintiff Rockwell, in light of your recent “clarification” will: select an email from “towards the end” of each of the years 14 identified and provide the number of individuals who, in fact, clicked on or accessed links 15 contained within such emails. This number would accurately reflect the individuals who access 16 the content contained within such emails – as they “clicked” the URLs. A figure representing the 17 number of unique email addresses - from a broader “mailing list” – to whom an email was sent 18 “towards the end” of each of the calendar years identified is, functionally, meaningless in terms of 19 who saw the contents. 20 DISCUSSION: Defendant notes that he limited the scope of the interrogatory to the 21 relevant period of 2019 to 2023 and “suggested that Plaintiff pick a standard day of the year and 22 count the collected number of unique email addresses on the email that Plaintiff Rockwell sends 23 out.” (Doc. 119 at 10.) Defendant contends that this helps Defendant understand how the 24 allegedly false statements affected Plaintiffs’ outreach and indicates potential damages. (Id.) 25 Plaintiff Rockwell argues that it should only identify and provide the “number of 26 individuals who, in fact, clicked on or accessed links contained within such emails,” as that 27 “would accurately reflect the individuals who access the content contained within such emails.” 28 1 (Doc. 119 at 31.) However, this limitation does not include individuals who viewed the 2 information contained within the emails themselves, and therefore does not fully account for the 3 reach of Plaintiff Rockwell’s emails. 4 In light of the parties’ continued attempts to narrow this interrogatory, the Court will 5 further narrow the interrogatory as follows. For each year from 2019 to 2023, Plaintiff Rockwell 6 shall select an email to its mailing list from December 1 through December 31 and provide the 7 total number of unique email addresses the email was sent to. Plaintiff Rockwell shall 8 supplement its response to Interrogatory No. 21 on or before December 20, 2024. 9 h. Request for Production to Plaintiff Rockwell No. 8 10 REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF ROCKWELL, NO. 11 8: Documents sufficient to identify Your live feed comments for Your YouTube.com videos 12 dated January 10, 2022. For purposes of this request, “documents” shall mean a copy of the MP4 13 file. PLAINTIFF ROCKWELL’S RESPONSE TO REQUEST NO. 8: Plaintiff Rockwell 14 objects to Propounding Party’s definition of “You” as overbroad, vague, and ambiguous on the 15 grounds that it purports to include parties other than Plaintiff Rockwell. Plaintiff Heitkoetter 16 responds to this Request only on behalf of itself. 17 Plaintiff Rockwell objects to this Request on the basis of vagueness, as “live feed 18 comments” is undefined. Plaintiff Rockwell objects to this Request on the basis that it is overly 19 broad and seeks, in part, information that is not relevant to the claims or defenses in this action. 20 Subject to and without waiving the foregoing objections, Plaintiff Heitkoetter responds to 21 this Request as follows: Plaintiff is not in possession of any documents or materials responsive to 22 this Request. Plaintiff is not able to secure any “live feed” comments for this video through 23 YouTube. Notwithstanding said objection, and in an attempt to be responsive, Plaintiff is still 24 investigating the availability of responsive documents. 25 DEFENDANT’S POSITION (Doc. 119 at 7): Defendant does not believe the excuses that 26 Plaintiffs have put forth thus far, and in fact believes that this Court should order Plaintiffs to 27 appear in Court, with a computer, so that all can see whether or not the simple act of reactivating 28 1 the live feed with a few small clicks is indeed “impossible” for Plaintiffs who share the same 2 social media as Defendant…who can do this with ease. Defendant has included Exhibit 13 to the 3 Arani Declaration to demonstrate to the Court how simple it is to retrieve the live feed data from 4 anyone with a YouTube.com channel. 5 DISCUSSION: The Court cannot compel a party to produce documents that do not exist. 6 Webster v. Haskins, No. 118CV01640BAMPC, 2021 WL 4147143, at *2 (E.D. Cal. Sept. 13, 7 2021), aff'd, No. 22-15545, 2023 WL 7271098 (9th Cir. Nov. 3, 2023); Mootry v. Flores, No. 8 1:09-CV-01252-LJO, 2014 WL 3587839, at *4 (E.D. Cal. July 21, 2014) (“The Court cannot 9 compel Defendants to produce documents that do not exist.”). Plaintiff Rockwell has declared, 10 under penalty of perjury, that the documents and materials at issue are not in its possession. 11 (Doc. 119 at 32.) Moreover, Plaintiff Rockwell has attempted to comply with Defendant’s 12 discovery request, with Plaintiffs’ counsel noting that “Plaintiffs made numerous efforts to secure 13 this information, with the undersigned personally walking through the process to secure this information with Plaintiffs” and “Plaintiffs have even enlisted the assistance of Plaintiffs’ IT 14 contractors for help with this matter but had no success.” (Id.) Defendant suggests that it would 15 be simple to recover this material but does not provide evidence that Plaintiff Rockwell retained 16 this material. (See Doc. 119 at 11-12.) In the absence of evidence to the contrary, Defendant is 17 required to accept Plaintiffs’ response that, despite a diligent search, the specifically requested 18 documents do not exist. Defendant’s request regarding Requestion for Production of Documents 19 No. 8 is therefore denied. 20 i. Defendant’s Request for Production of Documents to Plaintiff Heitkoetter No. 10 21 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 10: Documents sufficient to 22 identify when You disclosed to the public that You stopped taking money out of the Public 23 Trading Account in 2021. 24 PLAINTIFF HEITKOETTER’S RESPONSE TO REQUEST NO. 10: Plaintiff 25 Heitkoetter objects to Propounding Party’s definition of “You” as overbroad, vague, and 26 ambiguous on the grounds that it purports to include parties other than Plaintiff Heitkoetter. 27 Plaintiff Heitkoetter responds to this Request only on behalf of himself. Subject to and without 28 1 waiving the foregoing objections, Plaintiff Heitkoetter responds to this Request as follows: 2 Supplemental Response: Following a diligent search, Plaintiff cannot locate the material 3 in which this was expressly disclosed. It remains Plaintiff’s good faith belief that this information 4 was, in fact, disclosed and if located Plaintiff will supplement. 5 PLAINTIFFS’ NOTES TO REQUEST NO. 10: Following a diligent search, Plaintiff 6 cannot locate the material in which this was expressly disclosed. It remains Plaintiff’s good faith 7 belief that this information was, in fact, disclosed and if located Plaintiff will supplement. 8 DISCUSSION: Plaintiffs’ objections to this request are inapposite as it is directed to 9 Plaintiff Heitkoetter and is not overbroad, vague, or ambiguous. Additionally, the Court cannot 10 compel a party to produce documents that do not exist. See Webster, 2021 WL 4147143, at *2. 11 However, Plaintiffs’ response and supplemental briefing are unclear as to whether this 12 information existed but cannot be located or whether Plaintiffs further intend to search for the 13 information. Plaintiff shall therefore supplement this response to clarify whether it was finally unable to locate this information on or before December 20, 2024. 14 j. Defendant’s Request for Production of Documents to Plaintiff Rockwell No. 11 15 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 11: All Documents where 16 Plaintiff Rockwell’s employee or contractor, Rob Booker, spoke for or on behalf of You or 17 Plaintiff Rockwell. For purposes of this request, documents shall mean a copy of the MP4 file. 18 PLAINTIFF ROCKWELL’S RESPONSE TO REQUEST NO. 11: Plaintiff Rockwell 19 objects to Propounding Party’s definition of “You” as overbroad, vague, and ambiguous on the 20 grounds that it purports to include parties other than Plaintiff Rockwell. Plaintiff Heitkoetter 21 responds to this Request only on behalf of itself. Further objection is raised on the basis that this 22 Request seeks information that is not relevant to the Counterclaim asserted or Plaintiffs’ defenses 23 thereto. The subject of Defendant’s Counterclaim is several specific statements made by Plaintiff 24 Heitkoetter and/or Rockwell. Absent an explanation as to the relevance of the sought after 25 materials to the Counterclaim or Plaintiffs’ defenses thereto, Plaintiff will not respond to this 26 Request. 27 Notwithstanding said objection, and in an attempt to be responsive, Plaintiff Rockwell 28 1 states that after a diligent search of its system, it has no documents responsive to this request. 2 PLAINTIFF ROCKWELL’S SUPPLEMENTAL RESPONSE TO REQUEST NO. 11: 3 Pursuant to Rockwell’s internal policies, these webinars are not maintained on the Rockwell 4 system after 30 days. 5 DEFENDANT’S POSITION REGARDING REQUEST NO. 11: We heard this week in 6 depositions of Rockwell’s persons most qualified that they do not keep webinars for more than 7 thirty days and have not done so in several years. What the defense finds peculiar is that Exhibit 8 33 (a video of a webinar) to the deposition of Plaintiff Heitkoetter was active via link from 9 approximately January 2024, until sometime in July 2024. See id. at ¶18. Defendant sent this 10 request in April of 2024, and a substantive response regarding the deletion of relevant, 11 discoverable materials was not made known to Defendants until this week’s deposition and the 12 October 4th supplemental responses. See id. As such, we don’t believe there is a policy of 13 deletion, and ask that the Court inquire into this matter as it could be a matter of spoliation of evidence. In the alternative, Defendant respectfully requests the Court require Plaintiffs to file 14 declarations under oath that no webinars were deleted of or because of discovery requests in this 15 case. 16 PLAINTIFF ROCKWELL’S POSITION REGARDING REQUEST NO. 11: First, 17 Plaintiff stands by the objection that this information is not relevant to Defendant’s Counterclaim 18 – the purpose of the “Counterclaim” discovery. As stated in the initial objection produced to 19 Defendant, none of the allegations in the Counterclaim relate to any statements made by Mr. 20 Booker. Defendant fails to identify what “concerns” Defendant has about Mr. Booker’s 21 “representations” that relate to any of Defendant’s claims. Moreover, highlighting that Defendant 22 engaged in an (irrelevant) line of questioning during the deposition, to which objections were 23 lodged, does not render the responsive materials sought by Request No. 11 relevant under the 24 Rule 26 standard. Upon review of the deposition transcript, it appears that Defendant’s only 25 “concerns” about Mr. Booker’s “representations” during the deposition pertained to statements 26 made by Mr. Booker in an unidentified video clip of which Mr. Heitkoetter had no recollection. 27 (Heitkoetter Depo, p. 250, Ex. 33.). The other, irrelevant, line of questioning relating to Mr. 28 1 Booker that Defendant explored was the alleged or potential investigation of a company – not 2 owned by Plaintiff Heitkoetter or Plaintiff Rockwell – at which Mr. Booker was (per Defendant’s 3 allegations) separately employed. Plaintiff has represented that it has no documents responsive to 4 this Request. This Request, as Plaintiff understands it, concerns webinars or, videos that would be 5 publicly available. Pursuant to Rockwell’s internal policies, these webinars are not maintained on 6 the Rockwell system after 30 days. 7 DISCUSSION: The Court cannot compel a party to produce documents that do not exist. 8 See Webster, 2021 WL 4147143, at *2. Plaintiff Rockwell has declared that “after a diligent 9 search of its system, it has no documents responsive to this request.” (Doc. 119 at 33.) In the 10 joint discovery statement, Plaintiff Rockwell further states that “Pursuant to Rockwell’s internal 11 policies, these webinars are not maintained on the Rockwell system after 30 days.” (Id.) 12 Defendant suggests that he does not find Plaintiff’s policy credible given that one video of 13 a webinar was active for approximately six months. (Doc. 119 at 13.) However, Plaintiff also notes that Plaintiff Rockwell’s persons most qualified stated that “they do not keep webinars for 14 more than thirty days and have not done so in several years.” (Id.) Defendant does not provide 15 further evidence that any webinars or videos regarding Rob Booker, the subject of this request, 16 were preserved. In the absence of evidence to the contrary, Defendant is required to accept 17 Plaintiffs’ response that, despite a diligent search, the specifically requested documents do not 18 exist. Defendant’s request regarding Requestion for Production of Documents No. 11 is therefore 19 denied. 20 In addition, Defendant broadly requests “that the Court inquire into this matter as it could 21 be a matter of spoliation of evidence.” (Doc. 119 at 13.) On this record, the Court declines to 22 presume that evidence was spoliated and declines to “inquire into this matter.” 23 k. Defendant’s Request for Production No. 38 to Plaintiff Rockwell 24 REQUEST FOR PRODUCTION NO. 38: Documents sufficient to identify persons 25 claiming to be actual or former customers who complained to You about your products or 26 services in the past five years. 27 PLAINTIFF ROCKWELL’S RESPONSE TO REQUEST NO. 38: Objection. This 28 1 Request is overly broad and unduly burdensome. Further objecting, Defendant did not make his 2 statements based on the statements of Plaintiff’s former customers. 3 Supplemental Response: Plaintiffs maintain the foregoing objection and further clarify 4 that they are objecting on the grounds that Defendant is seeking a list of current or former 5 customers who complained to Plaintiffs at any time within the past five years about any of 6 Plaintiffs’ products. 7 Plaintiffs decline to provide such a customer list to their competitor who, when these 8 Requests were initially propounded in September 2022, vehemently denied competitor status. 9 Plaintiffs object to the production of confidential business information that, if provided to a 10 competitor, can be used to further harm their interests. While it is acknowledged that a protective 11 order is in place, there is a substantial risk that the mere disclosure of this information – 12 regardless of whether Defendant transmits the same to third parties – could adversely impact 13 Plaintiffs’ business and financial interests. Plaintiffs note that they have provided documents reflecting consumer reviews, both 14 positive and negative, as well as the comments on the publicly available YouTube videos that 15 may reflect criticisms but will not be producing any other documents responsive to this Request. 16 DISCUSSION: Plaintiffs raise concerns regarding providing confidential business 17 information to a competitor. (Doc. 119 at 34.) However, in prior correspondence, Defendant 18 states that the request has been narrowed to “complaints about Plaintiff Rockwell’s products and 19 services be produced without identifying information regarding the customer.” (Doc. 119-2 at 20 46.) Plaintiffs do not make clear why Plaintiff Rockwell cannot redact identifying information 21 and produce these complaints. The Court has previously permitted Plaintiffs to redact identifying 22 information in response to Defendant’s discovery requests to protect Plaintiffs’ confidential 23 business information while permitting Defendant adequate discovery for his counterclaim. (See 24 Doc. 100) (permitting Plaintiffs to redact the names of individual trades made from January 1, 25 2023 to December 31, 2023). Plaintiff Rockwell shall therefore supplement its response with any 26 complaints about Plaintiff Rockwell’s products and services made from January 1, 2023 to 27 December 31, 2023 with identifying information redacted on or before December 20, 2024. 28 1 III. Conclusion and Order 2 Based on the foregoing, the Court finds that Plaintiffs must supplement their responses to 3 Interrogatory Nos. 8, 12, and 20 to Plaintiff Heitkoetter; Request for Production No. 10 to 4 Plaintiff Heitkoetter, and Request for Production No. 38 to Plaintiff Rockwell. Plaintiffs shall 5 supplement the specified responses on or before December 20, 2024. The Court otherwise 6 denies Defendant’s discovery dispute requests, including Defendant’s requests for sanctions and 7 attorneys’ fees. (See Doc. 119.) 8 9 IT IS SO ORDERED.
10 Dated: December 4, 2024 /s/ Barbara A. McAuliffe _ 11 UNITED STATES MAGISTRATE JUDGE
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