Department of Toxic Substances Control v. Lisa Marie Rossi, an individual

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION [7] 8 DEPARTMENT OF TOXIC Case No. 20-cv-01049-VC (RMI) SUBSTANCES CONTROL, [9] Plaintiff, ORDER RE: DISCOVERY DISPUTES [10] v. Re: Dkt. Nos. 32, 33, 34, 35, 36 [11] LISA MARIE ROSSI, et al., [12] Defendants. [13] 14 Now pending before the court are a series of five letter briefs setting forth discovery 15 disputes between Plaintiff (the California Department of Toxic Substances Control) and 16 Defendants E-D Coat, Inc. (a California Corporation), Lisa Marie Rossi (an individual), Gerald F. 17 Rossi (an individual and a trustee of the Rossi Family Trust), Lee Doslak Florence (a trustee of the 18 Rossi Family Trust), and Patricia Rossi (a trustee of the Rossi Family Trust). See generally Ltr. 19 Brs. (dkts. 32, 33, 34, 35, 36).1 The letter briefs are nearly identical and essentially embody 20 Plaintiff’s effort to compel Defendants to produce responsive documents to a series of propounded 21 Requests for Production (“RFPs”) and Interrogatories (“ROGs”). 22 E-D Coat, Inc., a business that has been owned and operated by Defendants at various 23 times, has been engaged in providing zinc, cadmium, and chromium electroplating services. See 24 Ltr. Br. (dkt. 36-1) at 1. Plaintiff has alleged that while various Defendants owned and / or 25 operated the business, hazardous substances were released, resulting in Plaintiff’s 2017 issuance of 26 an “Imminent and / or Substantial Endangerment Determination and Order and Remedial Action [27] 1 Order” (I&SE Order). Id. The I&SE Order was issued because Plaintiff reportedly became aware 2 of evidence of a hazardous substance release at the E-D Coat location that could pose a danger to 3 the environment or to public health and welfare. Id. Plaintiff has also alleged that Defendants 4 failed to comply with the I&SE Order, causing Plaintiff and the United States Environmental 5 Protection Agency to undertake various actions to remove hazardous materials from the site. Id. at 6 1-2. Plaintiff then brought this action to recover the remediation costs that have already been 7 incurred – as well as certain additional costs that are anticipated – in accordance with the cost8 recovery provisions of § 107 of the Comprehensive Environmental Response, Compensation, and 9 Liability Act (“CERCLA”), 42 U.S.C. § 9607 (a), as well as seeking other relief and penalties 10 under various provisions of state law, including Cal. Health & Safety Code § 25359.2 . Id. at 2 . 11 In February of 2021, Plaintiff propounded RFPs and ROGs to each Defendant (all of 12 whom are represented by the same counsel) and after some back-and-forth, in October of 2021, 13 Plaintiff informed defense counsel that Defendants had failed to adequately respond to a number 14 of the discovery requests. See Ltr. Br. (dkt. 32-1) at 2-3; Ltr. Br. (dkt.33-1) at 2-3; Ltr. Br. (dkt. 15 34-1) at 2-3; Ltr. Br. (dkt. 35-1) at 2-3; and, Ltr. Br. (dkt. 36-1) at 2-3. Defendants had provided a 16 few responses, lodged certain objections, and suggested in October of 2021 that they would 17 produce some unidentified quantum of additional discovery pursuant to a protective order at some 18 point in the future; however, as Plaintiff puts it, “[s]ince then, nothing further has been provided 19 by any of the defendants that is responsive to the outstanding discovery requests.” See Ltr. Br. 20 (dkt. 32-1) at 3; Ltr. Br. (dkt.33-1) at 3; Ltr. Br. (dkt. 34-1) at 3; Ltr. Br. (dkt. 35-1) at 3; and, Ltr. 21 Br. (dkt. 36-1) at 3. 22 In response to the discovery requests themselves, Defendants previously advanced various 23 objections in boilerplate fashion by contending that the discovery requests are objectionable 24 because they are, among other things: “vague, ambiguous and overly board as to time and scope, 25 overly burdensome, not relevant, call for expert testimony or opinions, are compound, include 26 undefined terms, fail to state with particularity the items sought, duplicative, harassing, equally 27 available to the Department, assume facts, calls for disclosure of attorney work product, or call for 1 (dkt. 34-1) at 4; Ltr. Br. (dkt. 35-1) at 4; and, Ltr. Br. (dkt. 36-1) at 4. However, in response to 2 Plaintiff’s motions to compel, Defendants have abandoned all of those objections and, instead, 3 Defendants have presented another series of boilerplate objections that are non-specific, 4 undeveloped, and unsupported by argument. It should first be noted that each Defendant’s 85 sentence response to these motions to compel appears to be identical to the others. See Ltr. Br. 6 (dkt. 32-1) at 5; Ltr. Br. (dkt.33-1) at 5; Ltr. Br. (dkt. 34-1) at 5; Ltr. Br. (dkt. 35-1) at 5; and, Ltr. 7 Br. (dkt. 36-1) at 5. Without any explanation, details, argument, or citation to authority, 8 Defendants’ responses to Plaintiff’s motions to compel contend: (1) that some unspecified portion 9 of the discovery requests relate to evidence that is purportedly already known or knowable to 10 Plaintiff; (2) that because Defendants have been ordered to remediate the property, Plaintiff’s 11 seeking of information and documentation regarding those efforts is (for some unexplained 12 reason) unnecessary; and, (3) that “Defendants are meeting with their accounting professionals in 13 order to supply [Plaintiff] with the available, relevant, personal financial documents, to the extent 14 they exist, pursuant to a protective order.” See id. 15 It is well established that “[t]he Federal Rules of Civil Procedure strongly favor full 16 discovery whenever possible” (Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th 17 Cir. 1985)), and, “[t]he party who resists discovery has the burden to show that discovery should 18 not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” 19 DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002). Thus, in order to avoid discovery 20 in the motion to compel context, the resisting parties must assert their specific objections in 21 response to the request, and then reassert and argue them in response to a motion to compel 22 because “[i]t is well established that a failure to object to discovery requests within the time 23 required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, [24] 959 F.2d 1468, 1473 (9th Cir. 1992). 25 In evaluating a motion to compel, therefore, courts do not simply look to and rely on 26 objections raised only in the response to the original discovery request. See Olmos v. Ryan, No. 27 CV-17-3665-PHX-GMS (JFM), 2020 U.S. Dist. LEXIS 67701 , at *4-5 (D. Ariz. Apr. 17, 2020). 1 which have been timely asserted and relied upon in response to the motion . . . [and] generally 2 deems objections initially raised but not relied upon in response to the motion as abandoned. It 3 deems objections not initially raised as waived.” Cotracom Commodity Trading Co. v. Seaboard 4 Corp., 189 F.R.D. 655, 662 (D. Kan. 1999) (emphasis supplied); Hupp v. San Diego Cnty., 2014 5 U.S. Dist. LEXIS 52741 , 2014 WL 1404510 , at *7 (S.D. Cal. Apr. 10, 2014) (same); Bryant v. 6 Armstrong, 285 F.R.D. 596, 604 (S.D. Cal. 2012) (addressing only the objections raised in a 7 party’s opposition to a motion to compel where the party raised multiple boilerplate objections in 8 its initial responses to discovery requests, but did not support or explain those objections in its 9 opposition to a motion to compel); Dolquist v. Heartland Presbytery, 221 F.R.D. 564 , 568 n.16 10 (D. Kan. 2004) (“objections initially raised but not relied upon in response to a motion to compel 11 are deemed abandoned”); In re Toys “R” Us-Del., Inc. Fair & Accurate Credit Transactions Act 12 (FACTA) Litig., 2010 U.S. Dist. LEXIS 130884 , 2010 WL 4942645 , at *3 (C.D. Cal. July 29, 13 2010) (same). 14 Further, it is equally well established that simply raising an issue in a brief – but failing to 15 develop it with supporting argument – is insufficient because issues raised in such an unsupported 16 and undeveloped fashion are likewise deemed to have been abandoned. See e.g., Leer v. Murphy, [17] 844 F.2d 628, 634 (9th Cir. 1988) (deeming abandoned all issues raised in a brief not supported by 18 argument); Grewal v. Choudhury, 377 F. App’x 617 (9th Cir. 2010) (undeveloped issue not 19 supported by argument is deemed abandoned); Nguyen v. Nissan N. Am., Inc., 487 F. Supp. 3d 20 845, 857 (N.D. Cal. 2020) (issues raised in a brief which are not supported by argument are 21 deemed abandoned); see also Williams v. Condensed Curriculum Int’l, No. 20-cv-05292-YGR 22 (RMI), 2021 U.S. Dist. LEXIS 211782 , at *10 (N.D. Cal. Nov. 2, 2021) (“[B]ecause Defendant 23 has given such short shrift to its assertion that a supposed lack of standing to bring a PAGA claim 24 justifies blocking discovery, the undersigned deems this issue as totally undeveloped and therefore 25 abandoned.”). 26 In light of the above-described factual background and the pertinent regime of legal 27 authorities, the court makes the following findings. First, the court finds that Defendants have 1 discovery requests but that were not presented and developed in response to Plaintiff’s motions to 2 compel. Second, the court finds that the few objections that Defendants did present in response to 3 Plaintiff’s motions are non-specific, lack any support or argument, and are totally undeveloped – 4 compelling the conclusion that they too have been abandoned. Third, Defendants contend they are 5 conferring with their accountant to provide documents and responses that would be “relevant,” 6 which the court construes as a request by each Defendant to keep a relevance objection in 7 abeyance such as to be able to use those pocketed relevance objections in the future should 8 Defendants wish to continue resisting this discovery, thereby potentially necessitating another 9 round of motions to compel regarding these same RFPs and ROGs. That request is DENIED. If 10 Defendants wished to challenge any of the RFPs or ROGs on relevance grounds, the time to 11 present and argue that objection was now, and having failed to do so, any relevance objection as to 12 these requests is likewise deemed to have been abandoned.2 Fourth, if Defendant believes that a 13 protective order is a necessary prerequisite to producing discovery, the Parties are directed to enter 14 into such an order without further delay such that the litigation may move forward. In short, 15 because Defendants have not raised and argued any meritorious objections in response to 16 Plaintiff’s Motions to Compel (dkts. 32, 33, 34, 35, & 36), those motions are all GRANTED and 17 Defendants are ORDERED to produce all responsive discovery forthwith and without further 18 objection. 19 Lastly, regarding Plaintiff’s undeveloped request “for an award of the Department’s costs 20 and fees” associated with filing these motions, that request is DENIED without prejudice. If 21 Plaintiff wishes to pursue attorney’s fees, it must do so through a properly noticed motion that 22 complies with the relevant provisions of this Court’s Local Rules (such as by providing detailed 23 billing records for all of the time Plaintiffs’ counsel have expended in this regard, documentation [25] 2 See e.g., Proofpoint, Inc. v. Vade Secure, Inc., No. 19-cv-04238-MMC (RMI), 2020 U.S. Dist. LEXIS 211706 , at *14-15 (N.D. Cal. Nov. 11, 2020) (“[B]ecause Vade chose to only respond to Plaintiffs’ motion 26 to compel with arguments relying on the applicability of French law, while later adding the sufficiency of Plaintiffs’ trade secret designation under California law, the court finds that Vade abandoned any other 27 objections that it may have asserted in response to the discovery requests themselves but that were not mentioned, supported, or explained in its opposition to the motion to compel; and, as for any objections that 1 of the hourly rates applicable to the work performed, a justification of the reasonableness of those 2 || rates, and a justification of the reasonableness of the hours expended for each task). 3 IT IS SO ORDERED. 4 || Dated: January 3, 2022 [6] RQBERT M. ILLMAN 7 United States Magistrate Judge [11] a 12 [16] = 17 Z 18