Summary
declining to rewrite "overly broad discovery request" even though the request "includes documents that might be discoverable"
Summary of this case from Settlemyer v. Borg-Warner Morse Tec, LLCOpinion
No. C-03-5039 JSW (JCS).
November 9, 2004
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS TO COMPEL AND FOR SANCTIONS [Docket No. 72]
By letter dated November 3, 2004, Plaintiff TestMasters sought to compel various discovery responses, and also sought sanctions for certain conduct during discovery. In that letter, Defendant Excel opposed all relief sought. The Court interprets the November 3, 2004 letter as a Motion to Compel (the "Motion to Compel") and for Sanctions (the "Motion for Sanctions"). Inasmuch as the November 3, 2004 letter includes an Opposition, and the Court finds the matter appropriate for decision without oral argument, the Court GRANTS the Motion IN PART and DENIES the Motion IN PART.
A. The Discovery Sought
Document Request Nos. 49, 50, 51, and 52 seek "all telephone bills" invoiced to Rakhi Israni ("Rakhi"), Haku Israni ("Haku"), Radha Israni ("Radha") and to Excel for the period "between January 1, 2003 to August 31, 2003."
Interrogatory Nos. 16, 17, 18, 19, 20, and 21 seek the "number of times (exact if known, otherwise best estimate) that" Rakhi spoke to Radha, Haku, and Vivek Israni during the relevant period of time and the telephone numbers used by Rakhi, Radha, and Vivek during the same time period.
The document subpoena to Rakhi seeks "all documents": 1) reflecting payments to Rakhi by TES from June 1, 2003, to the present; 2) sent between Rakhi and TES during the relevant period of time; and 3) showing telephone calls to or from Rakhi's home telephone and Excel's offices during the applicable time period.
B. Analysis
Document Request Nos. 49-52, seeking the telephone bills of parties and non-parties, are clearly overbroad. This is a trademark case, and documents showing the many telephone calls among family members and others entirely unrelated to this case go well beyond permissible discovery.
Rule 26 of the Federal Rules of Civil Procedure limits discovery to information that is "relevant to the claim or defense of any party. . . ." Fed.R.Civ.P. 26(b)(1). In addition, Rule 26(b)(2) incorporates a proportionality requirement into the discovery rules by calling on the Court to balance the importance of the discovery against other considerations of efficiency.
Under this rubric, a request for "all telephone bills," which will identify calls without limitation on subject matter or participants in the calls, is not "reasonably calculated to lead to the discovery of admissible evidence." Indeed, Plaintiff does not even attempt to defend the scope of the discovery it sought — Plaintiff only asserts that knowing the frequency of the telephone calls among Israni family members will show the influence of Israni family members and TES on Excel, and will impeach deposition testimony about the frequency of contact among family members. Rule 26 does not require the Court to rewrite discovery requests for the parties.
Moreover, even as limited by Plaintiff's argument, these requests are still overbroad. As narrowed, the calls listed are not limited to the business at stake in this case. Many, if not most, of the communications among the Isranis will be entirely irrelevant to the issues framed by the pleadings here. The Court, moreover, will not permit such a significant intrusion into the personal affairs of parties and non-parties just to impeach on the collateral issue of how many times each of them spoke with the other. Under Rule 26(b)(2), such information can be obtained, as shown below, with a lesser intrusion through the use of interrogatories. Accordingly, to the extent that the Motion to Compel seeks the production of documents sought in Request Nos. 49-52, the Motion is DENIED.
Interrogatory Nos. 16, 19, and 21, are narrowly tailored to discover the number of telephone calls among various family members. This information is at lest peripherally relevant to impeachment, and represents a small intrusion and burden. The Motion to Compel responses to these interrogatories is GRANTED. Answers shall be supplied within ten (10) calendar days.
Interrogatory Nos. 17, 18, and 20, on the other hand, seek telephone numbers used by Rakhi and Vivek. These numbers are not relevant to the case, and will not lead to the discovery of admissible evidence.
Plaintiff attempts to justify the Document Subpoena to Excel's president, Rakhi, by arguing that the documents sought will show the influence of TES and the other Israni family members on the management of Excel, which will in turn show the secondary meaning of the TestMasters name, and which will show deliberate copying. Other than the naked statement of this argument, Plaintiff does not even attempt to show how either of these two bases for relevance in fact obtain. The Court does not believe that contacts between TES and Rakhi, or funds coming from TES to Rakhi, will show secondary meaning. Even assuming that TES and the other Israni family members completely controlled Rakhi and Excel, that fact would not lead to an inference that secondary meaning exists. Similarly, that degree of control does not show deliberate copying.
Moreover, each of the separate parts of the Subpoena are clearly overbroad and represent an intrusion into personal and business affairs that is not justified by any countervailing consideration of Plaintiff's need for the documents to prove its case. Accordingly, the Motion to Compel in response to the Subpoena is DENIED.
C. Sanctions
Plaintiff seeks recovery of the attorneys fees and costs incurred in attending the depositions of two non-parties and one Excel employee. Defense counsel improperly purported to cancel the depositions, noticed by Plaintiff, five (5) days before they were scheduled to occur. Defense counsel, who apparently had control of even the non-party witnesses and had arranged for them to attend on the agreed-upon date, advised Plaintiff that if the pending motion to stay discovery were denied, the depositions would be rescheduled. Plaintiff advised defense counsel that, because discovery closed a mere four (4) days after the scheduled depositions, they would go forward.
Both counsel appear to have engaged in some self-help here in circumstances not permitted by the Rules. Defense counsel was not permitted to unilaterally decide that the witnesses would not appear for the depositions. However, Plaintiff's counsel compounded this error by deciding to expend the resources necessary to travel to San Francisco for depositions he knew would not occur. Rather than incur this pointless expense, counsel should have contacted the Court.
Accordingly, the Motion for Sanctions is DENIED.
IT IS SO ORDERED.