1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Malaika Washington, et al., No. CV-21-01318-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Freedom of Expression LLC, et al.,
13 Defendants. 14 15 I. 16 On June 21, 2022, the Court held oral argument on Plaintiff’s Motion to Amend 17 the Scheduling Order and for Rule 37 Sanctions (Doc. 33). At the hearing, the Court 18 concluded that Defendants had not complied fully with their discovery obligations and 19 ordered Plaintiff to file a proposed order, along with briefing, setting forth the relief 20 Plaintiff seeks for Defendants’ discovery violations. (Doc. 39). Plaintiff did so (Doc. 41), 21 and Defendants responded (Doc. 42). The Court now rules. 22 II. 23 Plaintiff commenced this action on July 29, 2021. (Doc. 1.) Plaintiff principally 24 alleges Defendants violated the Fair Labor Standards Act (“FLSA”) by failing to pay 25 Plaintiff and others minimum wage for work performed. (Id. ¶ 1.) Plaintiff served written 26 discovery on Defendants on November 16, 2021. (See Doc. 13 at 7.) The parties agreed 27 Defendants would not be required to respond to Plaintiff’s discovery requests until 30 28 days after the Court’s scheduling conference. (See Doc. 22 at 3; Doc. 27 at 2.) The 1 scheduling conference was held on January 12, 2022. (See Doc. 17.) Accordingly, 2 Defendants’ responses were due February 11, 2022. 3 Defendants did not timely respond to Plaintiff’s discovery requests. The parties 4 therefore filed a joint motion to amend the scheduling order to extend the deadline for 5 Plaintiff to file a motion for conditional certification. (Doc. 19.) The motion was 6 predicated on Defendants agreeing to respond to Plaintiff’s discovery requests by 7 February 24, 2022, and agreeing to have a corporate representative give a 30(b)(6) 8 deposition on March 10, 2022. (See Doc. 22 at 3.) 9 In the days leading up to the scheduled deposition, Plaintiff’s counsel repeatedly 10 attempted to reach Defendants’ counsel without success. Finally, on March 8, 2022, 11 Defendants’ counsel assured Plaintiff’s counsel that Defendants’ discovery responses 12 were forthcoming and that the 30(b)(6) deposition would go forward as planned. The 13 morning the deposition was scheduled, however, Defendants’ counsel informed Plaintiff’s 14 counsel that Defendants’ 30(b)(6) representative was ill and that the deposition would 15 need to be rescheduled. (Id. at 3–4.) Plaintiff’s counsel then tried to contact Defendant’s 16 counsel to reschedule the deposition but was unsuccessful. As a result, Plaintiff filed a 17 motion to compel discovery. 18 The Court granted Plaintiff’s motion on April 11, 2022. (Doc. 30.) In its order, the 19 Court concluded that, because “Defendants . . . neither responded nor provided specific 20 objections to Plaintiff’s requests,” and instead “ma[d]e only vague, conclusory arguments 21 in an attempt to justify their consistent inaction,” “Defendants should be compelled to 22 respond to Plaintiff’s written discovery in full.” (Id. at 3–4.) The Court therefore ordered 23 Defendants to “provide complete responses to Plaintiff’s written discovery requests by no 24 later than Friday, April 29, 2022” and “make a Rule 30(b)(6) representative available for 25 deposition by no later than Friday, April 22, 2022.”1 (Id. at 4.) 26 Defendants did not comply with the Court’s order. First, notwithstanding the 27 Court’s clear instructions, Defendants produced zero documents in response to Plaintiff’s
28 1 The parties subsequently agreed to extend the deadline for Defendants to make a Rule 30(b)(6) representative available to May 18, 2022. (Doc. 31.) 1 requests for production. Second, Defendants did not timely and fully respond to 2 Plaintiff’s interrogatories. Two Defendants, Wisnowski Incorporated and Skin Cabaret 3 LLC, failed to serve interrogatory responses at all. Third, despite Plaintiff’s counsel’s 4 numerous attempts to reach Defendants’ counsel in order to avoid filing an additional 5 discovery motion, Defendants’ counsel either insisted that “you’ll get it in the next few 6 days” or declined to respond at all. Accordingly, on June 10, 2022, the fact discovery 7 deadline, Plaintiff filed a Motion to Amend the Scheduling Order and for Rule 37 8 Sanctions. (Doc. 33.) The Court subsequently issued an order setting oral argument on 9 the motion for Monday, June 21, 2022, and directing Defendants to file a response by 10 Friday, June 17, 2022. (Doc. 34.) Defendants did not respond, however, until Monday, 11 June 21, 2022, the date set for oral argument. (Doc. 37.) 12 At the hearing, on Plaintiff’s motion (Doc. 38), the Court ordered Defendants’ 13 untimely response stricken from the record. (Doc. 39.) The Court also granted Plaintiff’s 14 Motion to Amend Scheduling Order and for Rule 37 Sanctions (Doc. 33) and directed 15 Plaintiff to file an application for attorneys’ fees in accordance with the local rules. (Doc. 16 39.) The Court also directed Plaintiff to file a proposed order, accompanied by briefing, 17 setting forth additional relief sought for Defendants’ discovery misconduct. (Id.) 18 Consistent with the Court’s direction, Plaintiff filed the instant Brief in Support 19 of Proposed Discovery Sanctions. (Doc. 41.) Plaintiff proposes that, as a sanction for 20 Defendants’ discovery misconduct, their objections to Plaintiff’s written discovery and 21 Rule 30(b)(6) deposition notice should be deemed waived. (Id. at 2.) In addition, Plaintiff 22 proposes that Defendants be required to serve complete responses to Plaintiff’s discovery 23 requests within 14 days of the entry of this Order. (Id. at 6.) Defendants do not 24 meaningfully challenge Plaintiff’s factual recitation but object to Plaintiff’s proposed 25 sanctions as unwarranted. 26 III. 27 Rule 37 of the Federal Rules of Civil Procedure “authorizes the district court, in 28 its discretion, to impose a wide range of sanctions when a party fails to comply with the 1 rules of discovery.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 2 1983). The district court’s discretion has “particularly wide latitude” in the Ninth 3 Circuit. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 4 2001). Under Rule 37(b)(2), if a party “fails to obey an order to provide or permit 5 discovery,” “the court where the action is pending may issue further just orders,” 6 including: “directing that the matters embraced in the order or other designated facts be 7 taken as established for purposes of the action,” “prohibiting the disobedient party from 8 supporting or opposing designated claims or defenses,” and “dismissing the action or 9 proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2). 10 The Court agrees with Plaintiff that ordering Defendants’ objections waived is an 11 appropriate sanction, for two reasons. First, Defendants’ objections were untimely. 12 Defendants Wisnowski Inc. and Skin Cabaret LLC did not respond to Plaintiff’s written 13 discovery at all, while Defendants Freedom of Expression and Todd Borowsky 14 responded only after the deadline set by the Court. See Fed. R. Civ. P. 33(b)(4) (“Any 15 ground not stated in a timely objection is waived, unless the court, for good cause, 16 excuses the failure.”); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Malaika Washington, et al., No. CV-21-01318-PHX-MTL
10 Plaintiffs, ORDER
11 v.
12 Freedom of Expression LLC, et al.,
13 Defendants. 14 15 I. 16 On June 21, 2022, the Court held oral argument on Plaintiff’s Motion to Amend 17 the Scheduling Order and for Rule 37 Sanctions (Doc. 33). At the hearing, the Court 18 concluded that Defendants had not complied fully with their discovery obligations and 19 ordered Plaintiff to file a proposed order, along with briefing, setting forth the relief 20 Plaintiff seeks for Defendants’ discovery violations. (Doc. 39). Plaintiff did so (Doc. 41), 21 and Defendants responded (Doc. 42). The Court now rules. 22 II. 23 Plaintiff commenced this action on July 29, 2021. (Doc. 1.) Plaintiff principally 24 alleges Defendants violated the Fair Labor Standards Act (“FLSA”) by failing to pay 25 Plaintiff and others minimum wage for work performed. (Id. ¶ 1.) Plaintiff served written 26 discovery on Defendants on November 16, 2021. (See Doc. 13 at 7.) The parties agreed 27 Defendants would not be required to respond to Plaintiff’s discovery requests until 30 28 days after the Court’s scheduling conference. (See Doc. 22 at 3; Doc. 27 at 2.) The 1 scheduling conference was held on January 12, 2022. (See Doc. 17.) Accordingly, 2 Defendants’ responses were due February 11, 2022. 3 Defendants did not timely respond to Plaintiff’s discovery requests. The parties 4 therefore filed a joint motion to amend the scheduling order to extend the deadline for 5 Plaintiff to file a motion for conditional certification. (Doc. 19.) The motion was 6 predicated on Defendants agreeing to respond to Plaintiff’s discovery requests by 7 February 24, 2022, and agreeing to have a corporate representative give a 30(b)(6) 8 deposition on March 10, 2022. (See Doc. 22 at 3.) 9 In the days leading up to the scheduled deposition, Plaintiff’s counsel repeatedly 10 attempted to reach Defendants’ counsel without success. Finally, on March 8, 2022, 11 Defendants’ counsel assured Plaintiff’s counsel that Defendants’ discovery responses 12 were forthcoming and that the 30(b)(6) deposition would go forward as planned. The 13 morning the deposition was scheduled, however, Defendants’ counsel informed Plaintiff’s 14 counsel that Defendants’ 30(b)(6) representative was ill and that the deposition would 15 need to be rescheduled. (Id. at 3–4.) Plaintiff’s counsel then tried to contact Defendant’s 16 counsel to reschedule the deposition but was unsuccessful. As a result, Plaintiff filed a 17 motion to compel discovery. 18 The Court granted Plaintiff’s motion on April 11, 2022. (Doc. 30.) In its order, the 19 Court concluded that, because “Defendants . . . neither responded nor provided specific 20 objections to Plaintiff’s requests,” and instead “ma[d]e only vague, conclusory arguments 21 in an attempt to justify their consistent inaction,” “Defendants should be compelled to 22 respond to Plaintiff’s written discovery in full.” (Id. at 3–4.) The Court therefore ordered 23 Defendants to “provide complete responses to Plaintiff’s written discovery requests by no 24 later than Friday, April 29, 2022” and “make a Rule 30(b)(6) representative available for 25 deposition by no later than Friday, April 22, 2022.”1 (Id. at 4.) 26 Defendants did not comply with the Court’s order. First, notwithstanding the 27 Court’s clear instructions, Defendants produced zero documents in response to Plaintiff’s
28 1 The parties subsequently agreed to extend the deadline for Defendants to make a Rule 30(b)(6) representative available to May 18, 2022. (Doc. 31.) 1 requests for production. Second, Defendants did not timely and fully respond to 2 Plaintiff’s interrogatories. Two Defendants, Wisnowski Incorporated and Skin Cabaret 3 LLC, failed to serve interrogatory responses at all. Third, despite Plaintiff’s counsel’s 4 numerous attempts to reach Defendants’ counsel in order to avoid filing an additional 5 discovery motion, Defendants’ counsel either insisted that “you’ll get it in the next few 6 days” or declined to respond at all. Accordingly, on June 10, 2022, the fact discovery 7 deadline, Plaintiff filed a Motion to Amend the Scheduling Order and for Rule 37 8 Sanctions. (Doc. 33.) The Court subsequently issued an order setting oral argument on 9 the motion for Monday, June 21, 2022, and directing Defendants to file a response by 10 Friday, June 17, 2022. (Doc. 34.) Defendants did not respond, however, until Monday, 11 June 21, 2022, the date set for oral argument. (Doc. 37.) 12 At the hearing, on Plaintiff’s motion (Doc. 38), the Court ordered Defendants’ 13 untimely response stricken from the record. (Doc. 39.) The Court also granted Plaintiff’s 14 Motion to Amend Scheduling Order and for Rule 37 Sanctions (Doc. 33) and directed 15 Plaintiff to file an application for attorneys’ fees in accordance with the local rules. (Doc. 16 39.) The Court also directed Plaintiff to file a proposed order, accompanied by briefing, 17 setting forth additional relief sought for Defendants’ discovery misconduct. (Id.) 18 Consistent with the Court’s direction, Plaintiff filed the instant Brief in Support 19 of Proposed Discovery Sanctions. (Doc. 41.) Plaintiff proposes that, as a sanction for 20 Defendants’ discovery misconduct, their objections to Plaintiff’s written discovery and 21 Rule 30(b)(6) deposition notice should be deemed waived. (Id. at 2.) In addition, Plaintiff 22 proposes that Defendants be required to serve complete responses to Plaintiff’s discovery 23 requests within 14 days of the entry of this Order. (Id. at 6.) Defendants do not 24 meaningfully challenge Plaintiff’s factual recitation but object to Plaintiff’s proposed 25 sanctions as unwarranted. 26 III. 27 Rule 37 of the Federal Rules of Civil Procedure “authorizes the district court, in 28 its discretion, to impose a wide range of sanctions when a party fails to comply with the 1 rules of discovery.” Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 2 1983). The district court’s discretion has “particularly wide latitude” in the Ninth 3 Circuit. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 4 2001). Under Rule 37(b)(2), if a party “fails to obey an order to provide or permit 5 discovery,” “the court where the action is pending may issue further just orders,” 6 including: “directing that the matters embraced in the order or other designated facts be 7 taken as established for purposes of the action,” “prohibiting the disobedient party from 8 supporting or opposing designated claims or defenses,” and “dismissing the action or 9 proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2). 10 The Court agrees with Plaintiff that ordering Defendants’ objections waived is an 11 appropriate sanction, for two reasons. First, Defendants’ objections were untimely. 12 Defendants Wisnowski Inc. and Skin Cabaret LLC did not respond to Plaintiff’s written 13 discovery at all, while Defendants Freedom of Expression and Todd Borowsky 14 responded only after the deadline set by the Court. See Fed. R. Civ. P. 33(b)(4) (“Any 15 ground not stated in a timely objection is waived, unless the court, for good cause, 16 excuses the failure.”); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 17 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests 18 within the time required constitutes a waiver of any objection.”). Second, to the extent 19 Defendants did serve objections, those objections did not meet the specificity 20 requirements set forth in Federal Rules of Civil Procedure 33 and 34. (See Doc. 18 at 2 21 (“The Federal Rules of Civil Procedure do not permit ‘general’ or ‘global’ objections. 22 The Court will therefore neither consider nor rule on objections that are not specific to 23 the individual interrogatory or request propounded.”).) Fed. R. Civ. P. 33(b)(4) (“The 24 grounds for objecting to an interrogatory must be stated with specificity.”); Fed. R. Civ. 25 P. 34(b)(2)(B) (“For each item or category,” an objecting party must “state with 26 specificity the grounds for objecting to the request, including the reasons.”); see also 27 Walker v. Lakewood Condo. Owners Ass’n, 186 F.R.D. 584, 587 (C.D. Cal. 1999) 28 (“Boilerplate, generalized objections are inadequate and tantamount to not making any 1 || objection at all.’’). For the same reasons, Defendants’ generalized, boilerplate objections 2|| to Plaintiff's proposed Rule 30(b)(6) deposition topics were similarly unpersuasive. (See || Doc. 33-3.) 4 Accordingly, the Court concludes that, other than valid, specific, and supported 5 || objections based on attorney-client and work product privileges, all of Defendants’ 6|| objections to Plaintiff's written discovery, and to Plaintiff's Rule 30(b)(6) deposition || notice, are hereby waived. The Court further concludes this sanction will “serve the 8 || objectives of discovery by correcting for the adverse effects of discovery violations and 9|| deterring future discovery violations from occurring.” Taylor v. Illinois, 484 U.S. 400, 10}} 425 (1988). 11 IV. 12 Therefore, 13 IT IS ORDERED directing all Defendants to serve full and complete discovery responses to Plaintiffs requests for production and interrogatories by no later than 15 || fourteen (14) days after the entry of this Order. 16 IT IS FURTHER ORDERED directing all Defendants to produce responsive 17 || documents to Plaintiffs requests for production by no later than fourteen (14) days after 18 || the entry of this Order. 19 IT IS FINALLY ORDERED directing Defendants to serve such responses and || produce such documents without objections, except for valid claims of attorney-client privilege, for which Defendants shall also serve a detailed privilege log in compliance || with Rule 26(b)(5)(A). 23 Dated this 20th day of July, 2022. 24 Michal T. Shurde 26 Michael T. Liburdi 27 United States District Judge 28
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