United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff's motion to
compel discovery (Dkt. No. 27). Having thoroughly considered
the parties' briefing and the relevant record, the Court
hereby GRANTS the motion in part and DENIES the motion in
part for the reasons explained herein.
2014, Plaintiff City of Seattle (“City”) entered
into a contract with Defendant ZyLAB North America LLC
(“ZyLAB”) under which ZyLAB would provide City
with various software services such as an email archiving and
eDiscovery system. (Dkt. No. 1-1 at 4.) In March 2016, City
terminated the contract because it believed ZyLAB had not
provided a system that met the contract's specifications.
(Id. at 4-5.) The parties began to negotiate the
dispute and discussed entering pre-litigation mediation.
(Id. at 6.)
made a public records request to obtain documents related to
the contract and City began to provide the documents.
(Id.) City requested ZyLAB produce documents it
believed it was entitled to under the terms of the contract.
(Dkt. No. 27 at 2.) ZyLAB refused to send City the documents
and instead offered that City could come to its Virginia
headquarters to take pictures of the documents on a dedicated
computer. (Id. at 3.) City viewed ZyLAB's
proposed method of document production as another breach of
the contract. (Dkt. No. 1-1 at 6-7.)
5, 2017, City brought this lawsuit against ZyLAB alleging
breach of contract, negligent misrepresentation and violation
of the Washington Consumer Protection Act. (Dkt. No. 1-1 at
8-12.) ZyLAB counterclaimed for breach of
contract. (Dkt. No. 13 at 9.) On June 30, 2017, City made a
request for production on ZyLAB seeking documents it hoped to
use during a voluntary mediation. (Dkt. No. 18 at 5.) On July
31, 2017, ZyLAB responded to City's discovery requests
with objections and refused to produce any of the requested
documents. (Dkt. Nos. 27 at 4, 29-1 at 28-39.) Having not
received discovery, City sought, and the Court granted, an
extension to the mediation deadline. (Dkt. No. 31.)
August 31, 2017, City filed its motion to compel (Dkt. No.
27). The Court subsequently ordered the parties to meet and
confer in an attempt to resolve the outstanding discovery
disputes. (Dkt. No. 38). On September 28, 2017, ZyLAB filed
its own motion to compel discovery. (Dkt. No.
Parties filed a joint status report on September 29, 2017,
outlining the remaining disputes. (Dkt. No. 41). To date,
City has provided ZyLAB with thousands of documents regarding
the contract dispute. (Dkt. No. 27 at 3.) As far as the Court
is aware, ZyLAB has not produced any documents requested by
City. (Id. at 4.)
motions are strongly disfavored. The Court ordered the
parties to meet and confer before ruling on City's motion
in an effort to bring about resolution short of having to
intervene. (Dkt. No. 38.) Since that order, ZyLAB has filed
its own motion to compel. (Dkt. No. 39.) It is clear from the
history of this case-both before and since City filed
suit-that the parties have fought bitterly over the
production of documents. (See generally, Dkt. Nos.
18, 27, 39.) The Court observes that the efforts that have
gone into litigating the production of documents would have
been more productively used to resolve what both parties
believe is a straightforward dispute amenable to mediation.
(See Dkt. No. 18 at 2) (“[The] City proposed
that the parties enter mediation without the production of
documents, which would be the most expedient and
cost-effective approach.”); (see Dkt. No. 21
at 3) (ZyLAB's counsel stated that “this case cried
out for mediation because the case was a simple breach of
contract case . . . .”).
Motion to Compel Standard
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). Relevant information under Rule 26(b) is
“information reasonably calculated to lead to the
discovery of admissible evidence.” Surfvivor Media,
Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir.
2005). District courts have broad discretion to determine
relevancy for the purpose of granting or denying discovery.
See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
addressing proportionality, the Court considers “the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.” Fed.R.Civ.P. 26(b)(1). If requested discovery
is not answered, the requesting party may move for an order
compelling such discovery. Fed.R.Civ.P. 37(a)(1). The party
that resists discovery has the burden to show why the request
should be denied. Blankenship v. Hearst Corp., 519
F.2d 418, 429 (9th Cir. 1975).
City's Motion to Compel
Court ordered the parties to file a joint status report
listing the remaining issues to be resolved. (Dkt. No. 38.)
Having considered the parties' joint status report, and
other briefing, the Court makes the following ruling on the
four unresolved areas of dispute:
The Applicable Time Period of Discoverable
asks the Court to order ZyLAB to produce all responsive and
nonprivileged documents from the period March 4, 2016 to May
5, 2017. (Dkt. No. 41 at 2-3.) ZyLAB asserts that it obtained
counsel on March 4, 2016 and responsive documents after that
date are protected by attorney client privilege and work
product privilege. (Id. at 4.) In addition, ZyLAB
states it would be unduly burdensome for it to produce
nonprivileged documents from that period. (Id.)
party withholding materials under an assertion of privilege
has the burden of proving that the withheld materials are
actually privileged.” Cedar Grove Composting, Inc.
v. Ironshore Specialty Ins. Co., No. C14-1443-RAJ, slip
op. at 5 (W.D. Wash. Dec. 23, 2015) (citation omitted). For
documents to fall under the work product privilege they must
be both prepared in anticipation of litigation and prepared
by or for another party or by or for that other party's