Boston Retirement System v. Uber Technologies, Inc.

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 BOSTON RETIREMENT SYSTEM, Case No. 19-cv-06361-RS (DMR) Individually and on behalf of all others 8 similarly situated, ORDER ON SEPTEMBER 6, 2023 9 Plaintiff, JOINT DISCOVERY LETTER 10 v. Re: Dkt. No. 322 11 UBER TECHNOLOGIES, INC., et al., 12 Defendants. 13 The court has reviewed Lead Plaintiff and Individual Defendants’ September 6, 2023 Joint 14 Discovery Letter (“JDL”) in which Lead Plaintiff seeks to compel amended responses to four 15 interrogatories related to the due diligence defense under Section 11 of the Securities Act of 1933. 16 This matter is suitable for resolution without a hearing. Civ. L.R. 7-1(b). For the following 17 reasons, Lead Plaintiff’s motion is granted. 18 Lead Plaintiff’s interrogatories 1 through 4 ask Individual Defendants: “If You contend 19 that, prior to May 9, 2019, You conducted due diligence into the statements made in Uber’s 20 Offering Documents concerning [1) Uber’s Passenger Safety Issues; 2) Uber’s Business Model 21 and Growth Strategy, including Uber’s compliance with laws and regulations; 3) Uber’s Financial 22 Condition, including Uber’s then-current and expected financial trends, revenue growth rate, profit 23 and loss, and Uber’s ongoing financial viability; and/or 4) Uber’s New Day Theme], then identify 24 all documents (by Bates number if applicable) and individuals You spoke with (including name, 25 contact information, and when you spoke) that You relied on.” [Docket No. 322-1 (Individual 26 Defendants’ Responses and Objections to Lead Plaintiff’s Second Set of Interrogatories Addressed 27 to the Individual Defendants).] 1 for all Defendants who were Board members during the relevant period and 2) for Defendants 2 Dara Khosrowshahi, Nelson Chai, and Glen Ceremony, the “due diligence process they followed.” 3 JDL at 4. The responses also refer to the same exhibit listing “examples of documents (identified 4 by Bates number) reflecting the Individual Defendants’ reasonable due diligence investigation in 5 connection with the Uber IPO and individuals (including names, contact information, and dates of 6 communication) involved, including rows 1-1,247 for Defendants who were Board members 7 during the relevant time period, as well as rows 1,248-2,649 for Defendants Khosrowshahi, Chai, 8 and/or Ceremony” (“Exhibit A”). See, e.g., Docket No. 322-1 at 10. 9 “Each interrogatory must, to the extent it is not objected to, be answered separately and 10 fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). An answer to an interrogatory should be 11 complete in itself and should not refer to the pleadings or other documents: [12] [A]n answer to an interrogatory must be responsive to the question. It 13 should be complete in itself and should not refer to the pleadings, or to depositions or other documents, or to other interrogatories, at least 14 where such references make it impossible to determine whether an adequate answer has been given without an elaborate comparison of 15 answers. 16 Scaife v. Boenne, 191 F.R.D. 590, 594 (N.D. Ind. 2000) (citations and quotation marks omitted). 17 “Incorporation by reference is not a responsive answer.” Id. (quoting Cont’l Ill. Nat. Bank & 18 Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 686 (D. Kan. 1991)). However, if an answer to an 19 interrogatory may be determined by “examining, auditing, compiling, abstracting, or summarizing 20 a party’s business records . . ., and if the burden of deriving or ascertaining the answer will be 21 substantially the same for either party, the responding party may answer by . . . specifying the 22 records that must be reviewed[.]” Fed. R. Civ. P. 33(d)(1). 23 In addition, as Lead Plaintiff points out, “[t]he [due diligence] defense is calibrated to the 24 objective reasonable person in each defendant’s position.” Mehedi v. View, Inc., No. 21-CV25 06374-BLF, 2023 WL 3592098 , at *8 (N.D. Cal. May 22, 2023) (emphasis added). The cases 26 cited by Defendants do not state otherwise. See Club v. BNSF Ry. Co., No. C13-0967-JCC, 2016 27 WL 4528452 , at *5-*6 (W.D. Wash. Aug. 30, 2016) (in Clean Water Act context, finding that 1 lawsuit collectively and assert[ed] the same set of facts in support of their allegations”); 2 Tattersalls, Ltd. v. Wiener, No. 17CV1125-BTM(KSC), 2019 WL 13203947 , at *1 (S.D. Cal. Oct. 3 18, 2019) (holding that “[t]o the extent defendants’ initial disclosures and/or responses to any 4 discovery requests are the same for more than one defendant, it is not necessary for them to serve 5 plaintiff with separate disclosures or responses for each defendant so long as the response clearly 6 states that it is being submitted on behalf of multiple defendants”). 7 Relying on these principles, Lead Plaintiff makes three requests in compelling Individual 8 Defendants to amend their responses: that they (1) provide individual responses including, for 9 example, which documents listed in Exhibit A were specifically relied on by each Individual 10 Defendant and clear information on which Individual Defendants “receiv[ed], review[ed], and/or 11 participat[ed] in the preparation of drafts of Uber’s Offering Documents” (as stated in Individual 12 Defendants’ summary responses); (2) specify which documents are responsive to each 13 interrogatory; and (3) provide clear responses as to which people the Individual Defendants spoke 14 with and relied on. JDL at 3. 15 Having examined Individual Defendants’ generalized and uniform responses to the four 16 interrogatories, the court orders the following. With respect to Lead Plaintiff’s first request, each 17 Individual Defendant must amend his or her responses to make clear that their response is tailored 18 and correct. In other words, each Individual Defendant must confirm that he or she reviewed the 19 group summaries provided in response to the interrogatories, as well as every document listed in 20 the exhibit attached to the responses, and certify that the information provided is 1) accurate as to 21 them, and 2) provides a full and complete response to the interrogatory. Otherwise, the Individual 22 Defendant(s) must amend their responses accordingly. 23 As to Lead Plaintiff’s second and third requests – both related to Exhibit A – Individual 24 Defendants respond that “due diligence is not conducted or evaluated ‘with the benefit of 25 hindsight’ according to allegations later contrived by plaintiffs.” JDL at 4 (quoting In re Software 26 Toolworks, Inc. Sec. Litig., 789 F. Supp. 1489, 1505 (N.D. Cal. 1992), aff’d in part, rev’d in part 27 sub nom. In re Software Toolworks Inc., 38 F.3d 1078 (9th Cir. 1994)). They also assert that “the 1 from the documents] will be substantially the same for either party.” JDL at 3-4, n.2. These 2 arguments are insufficient where Lead Plaintiff is unable to decipher which listed documents 3 respond to which interrogatory, and it is unclear which Individual Defendant spoke with which 4 individual(s) and when. See JDL at 2. Indeed, Lead Plaintiff explains that “[m]any of [the] 5 documents (there are thousands) do not reference meetings or discussions at all, and those that do 6 involve countless meetings with numerous people over the course of several years . . . Moreover, 7 given the group response, it is unclear which Defendant spoke with which individual or when.” [8] Id. 9 Lead Plaintiff is entitled to discover the facts supporting the Individual Defendants’ 10 contentions. While a party responding to contention interrogatories may object on the ground that 11 it is too early in discovery for the party to make a full and complete response, see In re Convergent 12 Tech. Sec. Litig., 108 F.R.D. 328, 338 (N.D. Cal. 1985), and may reserve the right to supplement 13 its response, Individual Defendants make no such argument, nor could they in light of the fact that 14 discovery closed on September 20, 2023. Therefore, Individual Defendants must amend their 15 answers to Lead Plaintiff’s interrogatories clarifying which documents are responsive to which 16 interrogatory and providing clear responses as to which individuals (including their name, contact 17 information, and dates of communication) the Individual Defendants spoke with and relied on. 18 The Individual Defendants must serve their amended answers by November 20, 2023. [19] 20 IT IS SO ORDERED. 21 Dated: November 6, 2023 22 ______________________________________ Donna M. Ryu [23] Chief Magistrate Judge