Williams & Cochrane, LLP v. Quechan Tribe of the Fort Yuma Indian Reservation

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILLIAMS & COCHRANE, LLP, et al., Case No.: 17cv1436-GPC (MSB)

12 Plaintiffs, ORDER RE: WILLIAMS & COCHRANE 13 v. AND ROSETTE DEFENDANTS’ JOINT MOTION FOR DETERMINATION OF 14 QUECHAN TRIBE OF THE FORT YUMA DISCOVERY DISPUTE [ECF NO. 297] INDIAN RESERVATION, et al., 15 Defendants. 16 17 AND ALL RELATED COUNTER CLAIMS 18 19 On May 5, 2020, Plaintiff Williams & Cochrane, LLP (“W&C” or “Plaintiff”) and 20 Defendant and Counter Claimant the Quechan Tribe of the Fort Yuma Indian 21 Reservation (“the Tribe”) filed a joint motion to address W&C’s dissatisfaction with the 22 Tribe’s objections and responses to W&C’s second set of interrogatories. (ECF No. 297.) 23 The Court finds this motion suitable for resolution on the pleadings and without oral 24 argument. See CivLR 7.1(d)(1). 25 I. LEGAL STANDARD 26 The Federal Rules of Civil Procedure authorize parties to obtain discovery 27 regarding any nonprivileged matter that is relevant to any claim or defense and 2 information, the parties’ resources, the importance of the discovery in resolving the 3 issues, and whether the burden or expense of the proposed discovery outweighs its 4 likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible at 5 trial to be discoverable. Id. District courts have broad discretion to determine relevancy 6 for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 7 Similarly, district courts have broad discretion to limit discovery where the discovery 8 sought is “unreasonably cumulative or duplicative, or can be obtained from some other 9 source that is more convenient, less burdensome, or less expensive”; the requesting 10 party has had ample opportunity to obtain discovery; or the discovery sought is beyond 11 the scope of Federal Rule of Civil Procedure 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C). 12 An interrogatory may relate to any matter that may be inquired of under Rule 13 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must answer each interrogatory by 14 stating the appropriate objection(s) with specificity or, to the extent the interrogatory is 15 not objected to, by “answer[ing] separately and fully in writing under oath.” Id. at 33(b). 16 The responding party has the option in certain circumstances to answer an interrogatory 17 by specifying responsive records and making those records available to the interrogating 18 party. Id. at 33(d). 19 II. DISCUSSION 20 The interrogatories at-issue in this dispute request specific information regarding 21 “email accounts used by all QUECHAN Tribal Council members who held office from 22 September 1, 2016 through June 26, 2017 [(“Tribal Accounts”)] to send or receive any 23 emails on behalf of QUECHAN.” (See ECF No. 297 at 2 (quoting Interrogatory No. 1, 24 whose response is not subject of the instant dispute, because the disputed 25 “interrogatories all reference or build” from it).) Regarding the Tribal Accounts, Plaintiff 26 seeks two basic types of information: (1) which accounts were accessible and reviewed 27 by the Tribe for responsive documents pursuant to the Plaintiff’s Requests for 2 documents. 3 It appears that this set of interrogatories was born from an exchange between 4 counsel during a meet and confer call, which led Plaintiff’s counsel to believe that 5 certain email accounts that might have sent or received relevant emails were no longer 6 accessible and not included in the Tribe’s document production. (See ECF No. 297-1 at 7 2-3.1) Through the Tribe’s responses to the interrogatories here at-issue, it has been 8 confirmed that 9 The Tribe’s email exchange server stores data for active email addresses but does not archive emails once an email address has been deactivated. 10 Pursuant to the Tribe’s routine data management procedures, the 11 personalized email addresses based on Tribal Councilmember’s names are deactivated when Councilmembers leave office. When this occurs, email 12 associated with those personalized email addresses are not preserved on the 13 email exchange server. For example, when former Councilmembers Montague, Comet, and Uribe left office in March 2017—long before this 14 litigation was anticipated—the email addresses 15 j.montague@quechanttribe.com, j.comet@quechantribe.com, and c.uribe@quechantribe.com, were deactivated and their email data was not 16 preserved on the email exchange server. Additionally, when a Tribal 17 Councilmember leaves office, his or her Microsoft Surface Tablet issued by the Tribe for Tribal Council business, including for sending and receiving 18 emails on behalf of the Tribe, is restored to factory default settings in order 19 to reissue those devices to incoming Councilmembers.”

20 (ECF No. 297 at 8-9.) 21 Before addressing the specific issues and objections briefed in the motion, the 22 Court will address recurrent arguments from the instant motion. Generally, Plaintiff 23 contends that the information it now seeks regarding “potential spoliation issues” 24 should have been provided in response to Plaintiff’s October 10, 2019 first requests for 25 26 27 1 The Court notes that this background explanation provided by Plaintiff is not supported by 2 these requests ‘once existed, but has been lost, destroyed, no longer exists, or is no 3 longer in the possession, custody, or control of Quechan’ that [the Tribe] must ‘identify 4 each such document and separately state the details concerning the loss or destruction 5 of the document . . . .” (Id. at 2; see also ECF No. 297-3 at 8, ECF No. 297-4 at 8.) 6 Because of this, Plaintiff asserts that the Tribe has waived any right to object to the 7 current interrogatories. (ECF No. 297-1 at 6.) However, Plaintiff cites no authority for 8 this position. Even if the Court agreed that a failure to follow Plaintiff’s own instructions 9 amounted to a waiver, Plaintiff fails to demonstrate to the Court at this time that the 10 Tribe was aware of any responsive documents that no longer existed to trigger the 11 instruction. Therefore, the Court finds the Tribe did not waive its objections to the 12 instant interrogatories as Plaintiff claims. 13 In support of its interrogatories, Plaintiff contends that the information it seeks is 14 necessary to understand why the Tribe has produced only six emails from twelve tribal 15 council members for the nine-month period that Plaintiff represented the Tribe, and 16 what criteria the Tribe used to isolate the produced documents. (ECF No. 297-1 at 3-5.) 17 The Tribe takes issue with Plaintiff’s representation that the Tribe has only produced six 18 emails from the Tribal Accounts, and explains that for the period that Plaintiff 19 represented the Tribe, the Tribe produced approximately 237 emails and attachments 20 that were sent or received by council members, 133 emails and attachments sent or 21 received by the tribal council secretary, 189 emails and attachments sent or received by 22 the executive secretary, and 80 emails and attachments sent to or received by Charles 23 Montague. (ECF No. 297-6 at 3-4; see also ECF No. 297-7 at 3.) The Tribe points to 24 Plaintiff’s counsel’s declaration to explain the discrepancy, wherein she explains that 25 she “‘did not include emails to or from [W&C] or emails that were already copied to 26 [W&C] during its representation of the Tribe,’ as well as emails that, in W&C’s 27 estimation ‘did not contain any or much substance.’” (ECF No. 297-6 at 4 (emphasis in 2 2015 to May 18, 2017, when he assumed his current position of Vice President of the 3 Tribe, explained in his declaration that “email is not, and has not been, the primary 4 method of communication between and among members of the Tribal Council” and 5 “email was not frequently used by members of the Tribal Council to communicate with 6 other members of the Tribal Council.” (ECF No. 297-9 at 2.) Plaintiff argues that “the 7 veracity of this statement is completely undercut by the fact that [the Tribe’s] privilege 8 log details twelve emails (i.e. more than six) between the Quechan Tribal Council and 9 another attorney . . . on June 1, 2017.” (ECF No. 297 at 5.) The Court does not see how 10 Plaintiff’s example undermines the Trial Council Vice President’s statement. In the first 11 instance, whether the Tribe exchanged emails with its attorneys is irrelevant to the issue 12 of whether Tribal Councilmembers used email to discuss issues between themselves. 13 Presumably, that is why Plaintiff excluded the emails between the Tribe and Plaintiff 14 from its appraisal of the Tribe’s email production to date, as previously discussed. 15 Nevertheless, the Court agrees with the Tribe that Plaintiff’s selectively narrow 16 interpretation of the discovery to date is not helpful to the Court’s appraisal of this 17 dispute. 18 A. Adequacy of Meet and Confer 19 At the outset, the Tribe argues that this motion should be denied because W&C 20 did not meet and confer regarding the Tribe’s Amended Responses prior to filing the 21 instant motion. (ECF No. 297-6 at 2.) Specifically, counsel for the Tribe says that on 22 April 15, 2020, he met and conferred with Plaintiff’s counsel regarding the Tribe’s April 23 13, 2020 responses to Plaintiff’s Second Set of Interrogatories and agreed to amend the 24 Tribe’s interrogatory responses. (ECF No. 297-7 at 2.) On April 29, 2020, Counsel for the 25 Tribe served its Amended Objections and Responses. (Id.) Without requesting to meet 26 and confer regarding the Tribe’s amended responses, Plaintiff’s counsel sent Plaintiff’s 27 portion of the instant motion to counsel for the Tribe. (Id.) Plaintiff essentially 2 April 29, 2020,2 and counsel for Quechan either refused to amend the responses (as was 3 the case with interrogatory number two) or amended in such a way that did not address 4 [W&C’s] concerns in any manner (as was the case with interrogatory numbers three 5 through five, the responses for the latter two of which simply ended up citing to 6 Quechan’s production of documents for a response).” (ECF No. 297 at 5-6, 11, 18, 22 7 (emphasis in original).) Plaintiff refers to the entire history of discovery in this case, 8 claiming that because Plaintiff and the Tribe have had conflicts about the sufficiency of 9 the Tribe’s document production for more than six months, the Tribe’s claim that 10 Plaintiff failed to meet and confer “is preposterous.” (Id.) 11 Several different rules require litigants in this district to meet and confer 12 regarding discovery disputes before calling upon the Court to resolve the parties’ 13 disagreements. Federal Rule of Civil Procedure 37(a)(1) provides that a party filing a 14 motion to compel must certify “that the movant has in good faith conferred or 15 attempted to confer with the person or party failing to make disclosure or discovery in 16 an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). This Court’s October 17 9, 2019 Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings directed 18 counsel to “promptly and in good faith meet and confer with regard to all discovery 19 disputes in compliance with Local Rule 26.1(a).” (ECF No. 232 at 3.) The same 20 requirement is reiterated in Judge Berg’s Civil Chambers Rule IV.A. Civil Local Rule 21 26.1(a) states that “[t]he Court will entertain no motion pursuant to Rules 26 through 22 37, Fed. R. Civ. P., unless counsel will have previously met and conferred concerning all 23 disputed issues. . . . If counsel have offices in the same county, they are to meet and 24 25 26 2 The Court notes that the parties submit that the sole meet and confer occurred on different dates, and that the Tribe’s contention is supported by the declaration of counsel, while Plaintiff’s is not. 27 Nevertheless, because both parties’ statements indicate that the meet and confer preceded the Tribe’s 2 telephone. Under no circumstances may the parties satisfy the meet and confer 3 requirement by exchanging written correspondence.” S.D. Cal. Civ. L.R. 26.1(a). 4 The purpose of a meet and confer requirement is for the parties to engage in a 5 meaningful dialogue about their respective positions on disputed issues to see whether 6 they can resolve them without court intervention, saving time and money for the 7 litigants and the court system. See California v. Iipay Nation of Santa Ysabel, No. 8 14CV2724 AJB (NLS), 2015 WL 2449527, at *6 (S.D. Cal. May 22, 2015) (“A purpose of a 9 meet and confer requirement is to resolve issues without the need for further action.”); 10 Eusse v. Vitela, Case No.: 3:13-cv-00916-BEN-NLS, 2015 WL 9008634, at *3 (S.D. Cal. 11 Dec. 14, 2015) (“This process, when successful, ‘obviates the need for unnecessary 12 motion practice, which, in turn, conserves both the Court’s and the parties' resources.’”) 13 (internal citation omitted). To “serve [this] purpose, parties must ‘treat the informal 14 negotiation process as a substitute for, and not simply a formal prerequisite to, judicial 15 review of discovery disputes.’” U-Haul Co. of Nevada v. Gregory J. Kamer, Ltd., No. 2:12- 16 cv-00231-KJD-CWH, 2013 WL 5278523, at *2 (D. Nev. Sept. 17, 2013) (internal citation 17 omitted). 18 The Court finds that Plaintiff’s admitted failure to meet and confer after receiving 19 the Tribe’s amended interrogatory responses ran afoul of the Court’s meet and confer 20 requirement. While it would be reasonable to deny the instant motions based on this 21 failure, see, e.g., Rogers v. Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012) (“A court can 22 deny a motion to compel solely because of a party's failure to meet and confer prior to 23 filing the motion.”), the Court will instead reach the parties’ other arguments. 24 B. Interrogatory No. 2 25 Interrogatory number two asks the Tribe to, “[f]or each e-mail account identified 26 in response to Interrogatory Number 1, identify the number of e-mails sent from and 27 received by each account on a daily basis from the latter of the date of creation 2 burdensome, sought irrelevant information, and contained multiple discrete subparts. 3 (Id. at 2-9.) Subject to these objections, the Tribe explained that it had conducted a 4 reasonable search of emails of custodians likely to have discoverable evidence, including 5 available emails from the individuals described in Interrogatory Number 1, however the 6 Tribe is not aware of the total number of emails sent or received by the relevant email 7 accounts. (Id. at 3.) The Tribe’s response directed Plaintiff to its previous document 8 productions for “the number of relevant, available emails.” (Id.) 9 In the motion now before the Court, Plaintiff argues that “a complete response to 10 this interrogatory should be compelled to prove that neither Quechan’s response to the 11 spoliation issue nor its document production are complete, thus enabling W&C to seek 12 appropriate discovery sanctions against the Tribe.” (Id. at 4.) Plaintiff argues that it 13 should be able to ascertain the total number of emails sent or received by the relevant 14 accounts to gauge whether the Tribe’s email production was reasonable. (Id. at 5.) On 15 the other hand, the Tribe maintains its objections that the information sought is 16 “categorically irrelevant and disproportionately burdensome.” (Id. at 6.) In support of 17 its argument that the information requested is overly burdensome, the Tribe submits 18 the declaration of its “MIS Director of Information Technology,” which states that the 19 Tribe does not keep records of the number of emails sent from and received by official 20 Tribal email addresses on a daily basis.” (ECF No. 297-8 at 2.) Additionally, such 21 information is impossible to obtain for email accounts that have been deactivated and 22 would require a time consuming, manual process of isolating and counting emails for 23 which the Tribe lacks administrative resources. (Id.) 24 The party seeking to compel discovery bears the burden of establishing that its 25 request satisfies the relevancy requirements of Rule 26(b)(1). Soto v. City of Concord, 26 162 F.R.D. 603, 610 (N.D. Cal. 1995). Plaintiff has not met its burden to demonstrate 27 that the requested discovery is relevant. Plaintiff contends it can use the raw number of 2 whether a six e-mail production was reasonable could occur if Quechan simply complied 3 with these very interrogatories and disclosed the number of e-mails sent from and 4 received into these email accounts.”) But the number of emails sent or received on any 5 given day, without regard to the subject matter of those emails, will not inform Plaintiff 6 or the Court whether the Tribe failed to disclose relevant, responsive documents or 7 whether potentially relevant emails were lost or destroyed. Nor does the requested 8 information have any bearing on any of the claims or defenses in this case. “Rule 26(b) 9 has never been a license to engage in an unwieldy, burdensome, and speculative fishing 10 expedition.” Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th 11 Cir.2010); U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 237 (S.D. Cal. 12 2015). The requested information is not relevant, and the Court therefore DENIES 13 Plaintiff’s request to compel a further response to Interrogatory Number 2 on that basis 14 and will not address the Tribe’s objection based on burden. 15 C. Interrogatory No. 3 16 For each Tribal Account, Plaintiff asks the Tribe to “indicate with a yes or no 17 whether any emails sent from or received by the account during the date range 18 specified in Interrogatory Number 2 have been deleted or otherwise spoiled, and if yes, 19 detail the complete circumstances surrounding such deletion(s) or spoliation(s) by 20 identifying, amongst any and all other material information, the dates of such 21 deletion(s) and or spoliation(s), the number of emails affected on each such date, the 22 subject matter(s) of each affected email, and the efforts taken by both [the Tribe] and 23 [its counsel in this litigation] to recover said emails.” (ECF No. 297 at 7.) The Tribe 24 objected to this interrogatory, asserting that it is vague and ambiguous, overbroad and 25 seeking irrelevant information, creates an undue burden, contains discrete subpart and 26 seeks information protected by attorney-client privilege and work product doctrine. (Id. 27 at 7-8.) Subject to these objections, the Tribe offered the following substantive 2 ienvcilduedninceg. e Tmhaisil ,i nfcrloumde sc,u bstuotd iisa nnso tr elimasiotenda btloy, leikmealyil st ofr ohmav ien ddivisidcouvaelsr aabnlde 3 email accounts listed above in the Tribe’s response to Interrogatory No. 1 that the Tribe understands are most relevant to the facts underlying the 4 claims, counterclaims, and defenses in this litigation, specifically—but not 5 exclusively—including email accounts associated with former President Escalanti, Vice President Smith, former Councilmember (and current 6 President) Joaquin, former Councilman White, and Mr. Charles Montague. 7 The Tribe is unaware of any loss of documents or ESI from these email accounts, via routine document production or otherwise. 8 9 The Tribe’s email exchange server stores data for active email addresses but does not archive emails once an email has been deactivated. Pursuant to the 10 Tribe’s routine data management procedures, the personalized email 11 addresses based on Tribal Councilmember’s names are deactivated when Councilmembers leave office. When this occurs, emails associated with 12 those personalized email addresses are not preserved on the email exchange 13 server. 14 (Id. at 8.) The response goes on to specify that the email addresses of former 15 Councilmembers Montague, Comet, and Uribe were deactivated when they left office in 16 March 2017, after which their email was not preserved on the email exchange server. 17 (Id. at 8-9.) Councilmembers’ tablets issued for Tribal Council business are restored to 18 factory settings to be issued to incoming Councilmembers. (Id. at 9.) The Tribe explains 19 that it also searched email accounts that are assigned to specific offices and job 20 descriptions (specifically, quechanpresident@quechantribe.com, 21 vicepresident@quechantribe.com, tribalsecretary@quechantribe.com, and 22 executivesecretary@quechantribe.com). (Id.) These emails are preserved on a host 23 computer, and all email from these accounts was retained and searched for responsive 24 documents. (Id.) 25 In the instant motion, Plaintiff claims that the Tribe’s response is incomplete as it 26 does not explain the status of the email accounts for “two others who served” prior to 27 2 and Vice Chairman accounts,”4 or what, if any, efforts were made to recover the lost 3 emails. (Id. at 9-10.) Plaintiff asserts that a complete response is needed to permit 4 Plaintiff to move for spoliation sanctions. (Id. at 10.) Based on privilege log entries 5 listing 12 emails between the Tribe and a non-party attorney on a single day, Plaintiff 6 argues, somewhat inexplicably: “[t]hat translates to more than 1,000 e-mails over the 7 course of a nine month period.” (Id. at 11.) The Court understands this to mean that 8 Plaintiff infers from the twelve emails with another attorney that there should be more 9 responsive emails than the Tribe has provided to Plaintiff. 10 The Tribe argues that it has provided “a particularized answer to the relevant 11 aspects of the interrogatory” that is sufficient, based on its collection of ESI from 12 custodians and other sources it “believed to be the most reasonable sources of relevant 13 information, based on the numerous iterations of W&C’s complaint and the Tribe’s 14 defenses and counterclaims, which is what is required under the Rules.” (Id. at 15, 12 15 (citations omitted).) According to the Tribe,5 because Plaintiff refused to enter into an 16 ESI stipulation at the outset of the case, and failed to discuss custodians for document 17 production, providing the information the Tribe deemed relevant was all that the Tribe 18 was required to do. (Id. at 12.) Further, the Tribe asserts that Plaintiff makes no 19 showing of relevance or proportionality to support compelling a further response to 20 Interrogatory Number 3. (Id.) The Tribe argues that because “the majority of the 21 22 23 3 The Court is not certain precisely which email accounts Plaintiff is referring to. It seems Plaintiff could be referring to Virgil Smith and Aaron Brown, or alternatively to Michael Jackson and Michael Jack 24 from the table of council people provided by Plaintiff in its motion, (see, e.g., ECF No. 297 at 4), 25 Plaintiff’s argument, and the Tribe’s responses as previously described. 4 Again, the Court is uncertain what accounts Plaintiff is referring to, as chairman and vice chairman 26 accounts are not listed in the Tribal Accounts as summarized in Plaintiff’s table, (see, e.g., ECF No. 297 at 4), or in the Tribal Accounts as provided in the Tribe’s Amended Objections and Responses to 27 Williams & Cochrane, LLP’s Second Set of Interrogatories, (ECF No. 297-5 at 8-10). 2 all in W&C’s operative complaint . . . there is no basis to demand a further response 3 regarding the individual email accounts of numerous additional individuals not 4 reasonably or proportionally required to be custodians in the first place.” (Id.) 5 Furthermore, according to the declaration of the Tribe’s Vice President (and 6 Councilmember since 2015), on the infrequent occasion that the Tribal Council 7 communicated internally via email, “the entire Tribal Council would likely be included, 8 and the Tribal Council Secretary and Executive Secretary would often be copied.” (Id. at 9 14; see also ECF No. 297-9 at 2-3.) This suggests that any emails that might have been in 10 deactivated Tribal Accounts would likely have also existed in searched accounts. 11 Though the parties drift into arguments regarding whether the Tribe spoiled any 12 evidence in this case, this interrogatory does not require the Court to address that issue, 13 or the appropriateness of the Tribe’s document production in any way. Instead, the 14 Court must decide whether the Tribe should be compelled to respond to Interrogatory 15 Number 3, which asks whether the Tribal Accounts (which Plaintiff has defined as those 16 belonging to Councilmembers during the time Plaintiff represented the Tribe) are 17 maintained and accessible to the Tribe, when deactivated accounts became unavailable, 18 and for some information about the unavailable emails if such information exists. The 19 Court finds that this inquiry is within the bounds of Rule 26(b)(1). See Fed. R. Civ. P. 20 26(b)(1) advisory committee’s note to 2015 amendment (“A portion of present Rule 21 26(b)(1) is omitted from the proposed revision. After allowing discovery of any matter 22 relevant to any party's claim or defense, the present rule adds: ‘including the existence, 23 description, nature, custody, condition, and location of any documents or other tangible 24 things and the identity and location of persons who know of any discoverable matter.’ 25 Discovery of such matters is so deeply entrenched in practice that it is no longer 26 necessary to clutter the long text of Rule 26 with these examples. The discovery 27 identified in these examples should still be permitted under the revised rule when 2 deactivation of Tribal Accounts might indicate spoliation.6 It is also relevant and 3 proportional for the Tribe to describe what steps, if any, the Tribe and its counsel have 4 taken to recover the deactivated or otherwise unavailable email accounts. 5 The Tribe’s incomplete responses, addressing only some of the Tribal Accounts, is 6 inadequate and lacks clarity. 7 Therefore, Plaintiff’s motion to compel further response to Interrogatory Number 8 3 is GRANTED. The Tribe is ORDERED to provide a supplemental response to this 9 Interrogatory, explaining specifically which of the accounts identified in response to 10 Interrogatory Number 1 have been deactivated or are no longer available to the Tribe, 11 providing the date and circumstances of such deactivation, describing the number and 12 subjects of the unavailable emails (if accessible), and identifying any steps that the Tribe 13 or its counsel has taken to recover the unavailable emails. 14 D. Interrogatory No. 4 15 In Interrogatory Number 4, Plaintiff asks the Tribe to indicate whether its counsel 16 reviewed each Tribal Account for “e-mails relevant to the lawsuit, and if yes, [to] detail 17 the process by which [counsel] reviewed each account and determined whether specific 18 e-mails therein are relevant to any of the claims and defenses” set forth in the operative 19 pleadings in this case. (ECF No. 297 at 15.) The tribe objected to this interrogatory as 20 21 6 The Court notes that Plaintiff’s initial interrogatory was perhaps imprecisely worded insofar as it 22 called for information about emails from the Tribal Accounts that had been “deleted or otherwise spoiled.” “Deleted” may include every individual deletion of an email by any Councilmember, and 23 would be vastly over inclusive. “Spoiled” suggests knowledge and/or culpability that may not be present in the circumstances described in the Tribe’s response. However, the Tribe has settled on a 24 reasonable interpretation in its response by identifying the accounts that are no longer accessible and 25 why. Plaintiff’s assumption that lost email accounts contained relevant, responsive documents, and its use of accusing and conclusory language to address its concern appears to have impaired its ability to 26 obtain useful information through the meet and confer process. (See ECF No. 297-1 at 2 (assuming that routinely deactivated emails were “spoliation issues,” and noting that when Plaintiff asked counsel 27 for the Tribe if responsive documents had been lost or destroyed, Mr. Vittor asked Plaintiff to ask in a 2 called for information protected by attorney-client privilege or work product doctrine. 3 (Id.) Nevertheless, the Tribe answered in relevant part that it “conducted a reasonable 4 search, collection, review and production of emails that are relevant to this litigation 5 using keyword search terms, including available emails from individuals listed above in 6 Interrogatory No. 1.” (Id. at 16.) 7 In the instant motion, Plaintiff asserts that the Tribe’s response is inadequate 8 because it does not describe the key words used for the Tribe’s search. (Id. at 17.) 9 Plaintiff argues that the Tribe should be compelled to submit a complete response so 10 Plaintiff can assess the reasonableness of the Tribe’s document production. (Id.) The 11 Tribe maintains that it offered to negotiate with Plaintiff regarding the potential 12 exchange of the parties’ search terms, but Plaintiff did not respond. (Id. at 19.) Because 13 there is no ESI agreement, The Tribe argues that it should not be compelled to provide 14 search terms unless W&C discloses its search terms. 15 When an ESI search is required for document production, the best practice is for 16 the parties to cooperate to reach an agreement regarding custodians and search terms 17 to inform the document production. See, e.g., Baranco v. Ford Motor Company, Case 18 No. 17-cv-03580-EMC, 2018 WL 9869540, at *1 (N.D. Cal. Apr. 10, 2018); Doe v. Heritage 19 Academy, Inc., No. CV-16-03001-PHX-SPL, 2017 WL 6001481, at *13 (D. Ariz. June 9, 20 2017); Apple, Inc. v. Samsung Electronics Co. Ltd., No. 12-CV-0630-LHK (PSG), 2013 WL 21 1942163, at *3 (N.D. Cal. May 9, 2013). Of course, agreement will not always be 22 possible, and a party may use discovery to learn about its opponent’s record search 23 parameters, either before or after the search has been conducted. See Baranco, 2018 24 WL 9869540, at *1. 25 This Court’s determination of this dispute is largely dictated by the timing of 26 Plaintiff’s interrogatories. It certainly would have been preferred for Plaintiff to seek 27 this information in advance of the document production, or at least prior to Plaintiff’s 2 adequacy of the production would certainly have been permissible. Upon reviewing the 3 docket, the Court notes that it held at least four lengthy informal discovery conferences 4 with counsel for Plaintiff and the Tribe. (See ECF Nos. 246 (December 9, 2019 5 conference), 252 (January 6, 2020 conference), 259 (January 13, 2020 conference), 263 6 (January 29, 2020 conference).) During these conferences, Plaintiff never raised the 7 adequacy of the search terms the Tribe used to review emails. After the Court held a 8 discovery conference with counsel for Plaintiff and the Tribe on December 9, 2019, it 9 ordered the Tribe to complete its rolling document production by January 10, 2020. 10 (ECF No. 246.) Considering this, it appears that the Court’s 30-day deadline for filing a 11 discovery dispute motion with the Court has long passed. See Hon. Michael S. Berg Civ. 12 Chambers R., §IV.D. Plaintiff has provided nothing to show otherwise. Nothing 13 presently before the Court provides good cause to change this deadline. 14 While the Court would have been inclined to consider further meet and confer 15 regarding search terms or the disclosure of search terms when Plaintiff could still 16 compel further production of documents, because the deadline to address the 17 document production has passed, the requested information is no longer relevant. Cf. 18 Doe v. Heritage Academy, Inc., No. CV-16-03001-PHX-SPL, 2017 WL 6001481, at *13 (D. 19 Ariz. June 9, 2017) (in ruling on parties’ motion for discovery dispute resolution 20 regarding adequacy of defendant’s production of documents, court refused to order 21 production of search terms and custodian without reviewing the RFPs and a specific 22 showing that efforts to preserve and collect were inadequate, but ordering the parties 23 “to meet and confer in an effort to reach agreement on a mutually-acceptable search 24 protocol”), Apple, Inc. v. Samsung Electronics Co. Ltd., No. 12-CV-0630-LHK (PSG), 2013 25 WL 1942163, at *3 (N.D. Cal. May 9, 2013) (finding that witness subject to third-party 26 document subpoena had the same obligation as a party to participate in “transparent 27 and collaborative discovery,” and ordering the third-party to produce search terms and 2 Interrogatory Number 4 is DENIED. 3 E. Interrogatory No. 5 4 Plaintiff’s final interrogatory asked the Tribe to “[i]dentify every e-mail from the e- 5 mail accounts identified in Interrogatory Number 1 that is relevant to this lawsuit in 6 accordance with the response to Interrogatory 4 and otherwise, but that Quechan did 7 not produce to Williams & Cochrane during discovery by the ‘to,’ ‘from,’ and ‘cc’ e-mail 8 accounts, the subject matter(s) of the e-mails, and an explanation as to why each 9 specific e-mail is not responsive to any of the requests for production in William’s & 10 Cochrane’s first or second sets of requests for production to Quechan.” (ECF No. 297 at 11 19.) The Tribe objected to the interrogatory as being vague and ambiguous, contained 12 multiple subparts, and to the extent it sought information protected by the attorney- 13 client privilege or work product. (Id.) Despite its objections, the Tribe responded with a 14 broad description of its records search process, similar to its response to Interrogatory 15 Number 4. (Id. at 20.) 16 In the instant motion, Plaintiff argues that the Tribe’s response was insufficient 17 insofar as it does not identify the keywords used to identify the emails to be searched 18 within the Tribal Accounts. (Id.) The Tribe contends its response was adequate, the 19 issue of search terms was the only issue Plaintiff raised in the meet and confer, and 20 again reiterates that Plaintiff refused to meet and confer on that issue. (Id. at 23.) For 21 the same reasons the Court denied Plaintiff’s motion to compel further responses to 22 Interrogatory number 4, Plaintiff’s motion to compel further response to Interrogatory 23 Number 5 is DENIED. 24 III. CONCLUSION 25 For the reasons detailed above, Plaintiff’s requests to compel further responses to 26 Interrogatory Numbers 2, 4, and 5 are DENIED. Plaintiff’s request to compel further 27 response to Interrogatory Number 3 is GRANTED. The Tribe must provide a 1 || supplemental response to Interrogatory Number 3 as stated in section III.C, supra, no 2 || later than June 1, 2020. 3 IT IS SO ORDERED. 4 || Dated: May 26, 2020 6 Honorable Michael S. Berg United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28