United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANT'S MOTION TO
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant U.S. Bank National
Association (“U.S. Bank”)'s Motion to Compel.
Dkt. #135. Plaintiffs oppose. Dkt. #139.
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, considering 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
discovery request should be denied. Blankenship v. Hearst
Corp., 519 F.2d 418, 429 (9th Cir. 1975).
in this case previously filed a Motion for Extension of Time
to Respond to Written Discovery. Dkt. # 117. They requested
the extension due to logistical issues associated with
responding to discovery on behalf of 93 Plaintiffs (nearly
all of whom are non-English speaking and live in China).
Id. On January 3, 2019, the Court denied the Motion
and ordered Plaintiffs to respond to U.S. Bank's
discovery requests no later than February 10, 2019. Dkt. #125
at 3. On February 10, Plaintiffs served written responses and
objections to U.S. Bank's interrogatories. Dkt. #137
(“Larsen-Bright Decl.”), ¶ 9. To date,
Plaintiffs have not made any further productions of
documents. Id. U.S. Bank sought, inter
alia, Plaintiffs' communications regarding their
EB-5 investment, their I-526 petitions filed with USCIS, and
documents relied upon in making their EB-5 investment.
See Dkt. #137-1.
Bank brings this Motion because Plaintiffs produced only a
small fraction of the requested documents. The February 10
production included documents from only 11 of the 93
Plaintiffs, and nearly the entire production consisted of
documents from just 4 of the 93 Plaintiffs. Larsen-Bright
Decl. at ¶ 10. U.S. Bank believes Plaintiffs have not
produced responsive email and WeChat communications.
See Dkt. #135 at 5. It appears likely that
Plaintiffs have failed to produce their complete immigration
files, including files or other documents maintained by their
immigration agents and immigration counsel.
Response, Plaintiffs “admit they have not complied with
the Court's order” setting a February 10, 2019,
production deadline. Dkt. #139 at 3. Plaintiffs argue that
“[i]n retrospect, the 90 days requested by
Plaintiffs' previous counsel was not enough, in large
part because nearly all of the 93 Plaintiffs live in mainland
China and few speak English.” Id. Plaintiffs
discuss the challenges of reviewing documents written in
Chinese prior to production. They contest U.S. Bank's
assertion that no immigration files have been produced.
Plaintiffs' counsel asserts that they have “written
to all 93 Plaintiffs in Chinese stressing the need for them
to produce any WeChat messages that relate in any way to
their EB-5 investments or this case, and if there are any
such documents, they will be produced.” Id. at
6. Plaintiffs move to strike the portions of a declaration
submitted by U.S. Bank relating to WeChat based on a lack of
personal knowledge. Id. Plaintiffs argue that U.S.
Bank has the burden of proving that Plaintiffs have a
“culpable state of mind” before this Court can
award discovery sanctions. Id. at 8.
Reply, U.S. Bank reiterates that the Court has already denied
Plaintiffs' request for additional time and highlights
how the delay in obtaining these documents is prejudicing
U.S. Bank as it prepares for depositions of Plaintiffs to
occur this month. Dkt. #143 at 3. U.S. Bank points out that
it is not seeking discovery sanctions at this time, and
therefore it is irrelevant whether Plaintiffs have a culpable
state of mind. Id. at 7 n.10. Instead, U.S. Bank is
seeking only cost-shifting under Rule 37(a)(5)(A), which
requires the Court to award fees and costs associated with
this Motion unless Plaintiffs demonstrate their conduct has
been substantially justified.
Court has previously noted, this case has been ongoing since
the end of 2015. The initial discovery requests from U.S.
Bank were served on March 3, 2017. Dkt. #120 at ¶ 2 and
Ex. A. The Court is sympathetic to Plaintiffs'
difficulties in responding to discovery, however the Court
cannot ignore that Plaintiffs have had significant time to
review these discovery requests, and that their counsel has
had sufficient time to inform them of their legal obligations
to produce relevant material. Plaintiffs have chosen to
pursue this case with a firm that does not have sufficient
attorneys who read or speak their language. The prejudice to
U.S. Bank in failing to produce these documents on time has
been significant, given the formidable task of deposing 93
Plaintiffs located in China. Plaintiffs concede that they
have failed to disclose requested materials and provide no
adequate reason for that failure. Given all of the above, the
Court grants the relief requested by U.S. Bank. The Court
further finds no basis to strike that portion of the
declaration submitted by Defendant related to WeChat, as it
was not relied on for this Court's ruling.
reviewed the relevant pleadings, the declarations and
exhibits attached thereto, and the remainder of the record,
the Court hereby finds and ORDERS:
1. Defendant U.S. Bank's Motion to Compel (Dkt. #135) is
2. Plaintiffs shall produce all non-privileged documents
responsive to U.S. Bank's Requests for Production of
Documents contained in its First Set of Interrogatories and
Requests for Production (reissued November 8, 2019) no later
than 30 days from the date of this Order.
This production shall include, without limitation, complete
sets of Plaintiffs' immigration files and submissions to
United States Citizenship and Immigration Services (with all
exhibits); all responsive non-privileged documents in the
physical possession of their immigration agents or
immigration counsel; and all responsive non-privileged
documents and communications (including email and other
electronic communications such as WeChat) relating to any of
the Plaintiffs in this case, to Plaintiffs' participation
in the EB-5 program, to Plaintiffs' involvement with
Quartzburg Gold LP, to Plaintiffs' investment or
investment decision, or to Plaintiffs' potential claims
in this case; among others.
3. No later than 31 days from the date of
this Order, Plaintiffs' counsel shall file a
representation with the Court, detailing Plaintiffs'
compliance with this Order on a plaintiff-by-plaintiff basis
and identifying any remaining issues with discovery.
4. U.S. Bank may file a motion and declaration detailing its
reasonable expenses incurred in bringing this Motion to be
filed no later than 10 days after this
Order. The motion should be noted for consideration pursuant
to Local Civil Rule 7(d). ...