Opinion
No. C06-3078 CW (BZ).
April 5, 2010
ELEVENTH DISCOVERY ORDER
Before the Court is plaintiffs' motion to compel discovery. Plaintiffs request four forms of discovery relief: (1) documents responsive to Request for Production Set No. 1 (RFP 1); (2) documents responsive to Request for Production Set No. 2 (RFP 2); (3) written responses to Interrogatories Set No. 1; and (4) time to further depose defendant Forrest Nolin. The requested discovery concerns three topics: (1) Nolin's receipt and use of funds received from Advance Building Maintenance (Advance); (2) the disposition of Advance's assets; and (3) alternative sources of funds available to Nolin.
This motion seeks relief only against defendant Forrest Nolin.
Plaintiffs have withdrawn their motion to compel responses to Interrogatories 16-22. In the reply brief, plaintiffs claim that Nolin did not address its motion to compel regarding Interrogatories 10-15. These interrogatories were not mentioned in the Notice of Motion, the Proposed Order, or the Conclusion section of the Motion. Further, plaintiffs state in their Motion that "Plaintiffs will not move for further responses to the interrogatories." Motion at p. 7 n. 4. To the extent that plaintiffs still move to compel responses to these interrogatories, that motion is DENIED.
Nolin's Receipt and Use of Funds Received from Advance
This section will address the following discovery requests: RFP 1 Nos. 1-11, RFP 2 Nos. 2-6, Interrogatories 2-3, 5-6, and deposition questions regarding this topic.
Nolin objects to discovery falling into this category and argues that it is irrelevant and protected by the right to privacy. The Opposition fails to address plaintiffs relevancy arguments however. As articulated in the motion, Judge Wilken previously held that under ERISA a plaintiff is entitled and required to "trace" the disputed funds to be eligible for certain relief under 29 U.S.C. § 1132. Bd. of Trustees for the Laborers Health and Welfare Trust Fund for Northern California v. Hill, 2008 WL 5047705, *6 (N.D.Cal. 2008). Nolin's relevancy objections are OVERRULED.
In the Opposition, Nolin also argues that the attorney-client privilege may apply. However, no privilege log has been produced, and Nolin has therefore waived any claim to privilege. "The party asserting the attorney-client privilege has the burden of proving that the privilege applies to a given set of documents or communications." In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir. 1992). See e.g., Burch v. Regents of the Univ. of Calif., 2005 WL 6377313 (N.D.Cal. Aug. 30, 3005) (finding that a six month delay in the production of a privilege log with no factors in mitigation constituted a waiver of privileges) citingBurlington Northern Santa Fe Railway Co., 408 F.3d 1142, 1149 (9th Cir. 2005).
Nolin next argues that the documents and responses are protected by the right to privacy. "The right to informational privacy, however, `is not absolute. . . .'" Crawford v. United States Trustee, 194 F.3d 954, 958-59 (9th Cir. 1999) citing Doe v. Attorney General, 941 F.2d 780, 796 (9th Cir. 1991). "Resolution of a privacy objection . . . requires a balancing of the need for the information sought against the privacy right asserted." Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D.Cal. 1995). Here, Nolin's finances squarely are at issue by the very nature of plaintiffs' allegations. Without discovery, plaintiffs will be unable to trace any of the funds that they allege were improperly taken from Advance. The information sought may well compromise Nolin's right to privacy, as plaintiffs essentially seek disclosure of all of Nolin's expenditures for a four year period. Nevertheless, in balancing the need with the right to privacy, I find that the information is discoverable and that Nolin must provide responsive documents, answers to interrogatories, and respond to deposition questions regarding what he did with the funds at issue in this case. Nolin's privacy objections are OVERRULED. Any concerns regarding confidentiality can be addressed by the relevant provision of the Protective Order. Disposition of Advance's Assets
This section will address the following discovery requests: RFP 1 No. 12 and RFP 2 Nos. 10, 12-15. This category also addresses discovery requests regarding the sale of Advance, the reasons for placing Advance in receivership, and documents related to the potential sale of Advance. Though these discovery requests are topically distinct, the arguments supporting and opposing the motion to compel are identical.
Nolin objects to the discovery requests in this category, claiming that he has produced all responsive documents or that none exist. Opposition at 14-16. Plaintiffs have provided no evidence other than argument that Nolin has failed to produce a single document responsive to the requests in this category. Nolin filed a declaration stating that he has provided and continues to provide every responsive document in his possession, custody, and control. Opp. Ex. 6 at 4. Further, plaintiffs have not made any evidentiary showing that the documents previously produced by XL Hog or the state receiver fail to adequately address the current disputed discovery requests. Without actual evidence that Nolin continues to withhold a single responsive document to these discovery requests, the motion must be denied. Accordingly, the motion to compel the production of documents in this category is DENIED WITHOUT PREJUDICE. Alternative Sources of Funds
The Court will not address defendant's boilerplate objections asserted in the responses to discovery requests. Defendant objected on the same seven grounds to nearly every discovery request, but failed to argue nearly all of those grounds in his opposition to this motion to compel. The Court will only address the objections argued in this motion to compel.
This section will address the following discovery requests: RFP 2 Nos. 7-8 and Interrogatories 7-8.
Nolin's sole objection to the document requests and interrogatories concerning alternative sources of funds is that he has already provided a sufficient response during his deposition. Nolin contends that his very brief answer during a deposition is sufficient to moot two requests for production and two interrogatories. Opposition at 13. However, plaintiffs are entitled to not just a bottom line answer, but some details regarding alternative sources of funds.
In response to the question "but you did have other assets, stocks, bonds, some sort of other assets that you could have liquidated, but you chose instead to take money out of Advance Building Maintenance?" Nolin responded, "Yes." Opp. at 13.
Defendant did not maintain any objection on the grounds of overbreadth, relevance, or burden to these discovery requests.
Identification of Documents that Support the Responses to Interrogatories 1 Through 22
Nolin objects to Interrogatory No. 23 and claims that the response is protected by the attorney work-product doctrine. Nolin did not however cite any supporting authority. Courts have compelled responses to interrogatories that require the answering party to identify documents which support an interrogatory answer. See e.g., Martinez v. City of Fresno, 2009 WL 129946, 3 (E.D.Cal. 2009). I do not read the interrogatory as invading the work product rule by seeking only documents which counsel reviewed in answering each interrogatory. Nolin's objections are OVERRULED. If he wishes, Nolin may respond to Interrogatory No. 23 with a response pursuant to Rule 33(d).
Conclusion
IT IS ORDERED THAT:
1. Plaintiffs Motion to Compel is GRANTED IN PART and DENIED IN PART.
2. Defendant SHALL search for and provide responsive documents to RFP 1 Nos. 1-11 and RFP 2 Nos. 2-8 by APRIL 30, 2010. If defendant's search reveals no responsive documents, he SHALL file a declaration to that effect.
2. Defendant SHALL provide responses to Interrogatories Nos. 2-3 and 5-8 by APRIL 30, 2010.
3. Plaintiffs are given leave to take the deposition of Nolin for an additional 3.5 hours concerning the topics addressed in this Order and the responsive documents produced.