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Linden v. X2 Biosystems, Inc.

United States District Court, W.D. Washington

February 20, 2018

CHARLES LINDEN and RONALD LANDER, Plaintiffs,
v.
X2 BIOSYSTEMS, INC., et al, Defendants.

          ORDER DENYING PLAINTIFFS' MOTION TO COMPEL

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Plaintiffs' Motion to Compel. Dkt. #28. Plaintiffs seek an Order compelling Defendants to produce complete responses to Plaintiffs' First Requests For Production of Documents. Id. Defendants oppose the motion, arguing that there was no good faith meet and confer prior to bringing the motion, and that it is premature and/or meritless in any event. Dkts. #30 and #31. For the reasons set forth below, the Court DENIES Plaintiffs' motion.

         II. BACKGROUND

         On June 27, 2017, Plaintiffs filed the instant employment matter, alleging claims for breach of contract and deprivation of wages and willful deprivation of wages in violation of RCW 49.52.050 and RCW 49.52.070. Dkt. #1. Since the filing of the Complaint and Answers thereto, this matter has proceeded through the normal course of litigation. Trial is currently scheduled for August 20, 2018, the discovery deadline is April 23, 2018, and dispositive motions are due by May 22, 2018. Dkt. #22.

         Plaintiffs served Defendants X2, Wu, and Flaim with a First Request for Production of Documents by electronic mail on September 19, 2017, and Defendant Siege by electronic mail and U.S. mail on September 19 and 21, 2017, respectively. Dkt. #29 at ¶ 3 and Ex. A thereto. Defendants X2, Wu and Flaim accepted service in electronic form, and therefore, pursuant to Federal Rule of Civil Procedure 34, their responses were due by or before October 19, 2017. Defendant Siege did not respond to Plaintiffs' request for acceptance of service electronically, accordingly his responses were due on or around October 24, 2017.

         On October 10, 2017, counsel for Defendants X2, Wu and Flaim emailed Plaintiffs' counsel and explained that gathering documents and responses were proving difficult, and that he expected to have responses and documents by November 9, 2017. Dkt. #29, Ex. B. He asked counsel to respond if they needed to discuss the matter further. Id. Plaintiffs' counsel responded that she would allow an extension of time until November 2, 2017, for X2, provided that she received responses from Defendants Wu and Flaim by October 19, 2017. Dkt. # 29, Ex. C.

         On October 19, 2017, Plaintiffs received responses and objections from Defendants Wu, Flaim and Siege. Dkt. #29, Exs. D-1, D-2 and D-3. On November 2, 2017, Defendant X2's counsel emailed Plaintiffs' counsel to notify her that X2's objections and responses would be complete on November 3, 2017. Dkt. #29, Ex. E. Plaintiffs' counsel agreed to receive the responses on November 3rd. Id. On November 3rd, Defendant X2's counsel sent another email stating there was an additional delay. Dkt. #29, Ex. F. Defendant X2's responses and objections were provided to Plaintiffs on November 4, 2017. Dkt. #29 at ¶ 10 and Ex. H thereto. That same day, Plaintiffs' counsel emailed counsel for Defendants X2, Wu and Flaim, stating that if responsive documents were not received, she would file a motion to compel. Dkt. #29, Ex. I. On November 9, 2017, Plaintiffs received a document production from Defendants X2, Wu and Flaim. Dkt. #29 at ¶ 13.

         In the meantime, on November 3rd, Plaintiffs' counsel sent email correspondence to Defendant Siege's counsel, stating that she had received objections, but no responses, and inquiring as to when responses to discovery would be forthcoming. Dkt. #29, Ex. G. Plaintiffs' counsel sent additional correspondence to Defendant Siege's counsel on November 6th and 9th. Defendant Siege's counsel responded that they were working on producing responsive documents, and that he would be happy to schedule a meet and confer if necessary. Dkt. #29, Ex. J.

         On November 15, 2017, Plaintiffs' counsel sent email correspondence to all defense counsel asking for a meet and confer. Dkt. #29, Ex. K. On November 17, 2017, Plaintiffs' counsel had separate telephonic meet and confers with defense counsel. Dkt. #29 at ¶ ¶ 15-16.

         On November 29, 2017, Defendant Siege's counsel sent email correspondence to Plaintiffs' counsel stating that a secure FTP was being set up to access electronically searchable documents, and asking that a Protective Order be signed as some of the documents would be marked confidential. Dkt. #29, Ex. L. Plaintiffs' counsel agreed to sign, with one minor change to the proposed order, and asked when documents would be produced. Dkt. #29, Ex. M.

         On December 5, 2017, Plaintiffs' counsel sent email correspondence to counsel for Defendants X2, Wu and Flaim, noting that it had been two and a half weeks since the meet and confer and nothing had been produced. Dkt. #29, Ex. N. Plaintiffs' counsel again noted that she would be forced to file a motion to compel if no documents were produced. Id. Plaintiffs' counsel sent the same correspondence to Defendant Siege's counsel. Id. Defendant Siege's counsel responded that he had been waiting for comments on the proposed Protective Order from co-Defendants' counsel. Dkt. #29, Ex. O. Correspondence regarding the proposed protective order continued over the next several weeks.[1] Dkt. #29, Exs. P-BB.

         After receiving no further documents, and having failed to finalize a proposed Protective Order, Plaintiffs' counsel filed the instant motion on January 10, 2018. Dkt. #28. The motion is now ripe for review.

         III. ...


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