Opinion
CV 18-3746 PSG (SS)
03-11-2019
STEVEN BOSTON, Plaintiff, v. CLUBCORP USA, INC., et al., Defendants. AND RELATED COUNTERCLAIMS
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES
[Dkt. No. 61]
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On February 15, 2019, Plaintiff and Counterdefendant Steven Boston (“Plaintiff”) filed a Motion to Compel Defendant and Counterclaimant United Mediation Services, Inc. (“Defendant”) To Further Respond to Discovery. (“Motion,” Dkt. No. 61). The Parties submitted a Joint Stipulation in connection with the Motion pursuant to Local Rule 37-2, (“Jt. Stip.”), supported by the declaration of Plaintiff's counsel, Louis P. Dell. (“Dell Decl.”). The Court took the Motion under submission pursuant to Local Rule 7-5. For the reasons stated below, Plaintiff's Motion is GRANTED IN PART AND DENIED IN PART.
II. BACKGROUND ALLEGATIONS
This is an action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and the California Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ. Code § 1788, et seq. (collectively, the “Acts”). (Third Amended Complaint (“TAC”), Dkt. No. 43, ¶ 1). Plaintiff alleges that Defendant is wrongfully attempting to collect $2,110.51 (not including interest, penalties and attorney's fees) in unpaid City Club of Los Angeles initiation fees that Plaintiff claims he does not owe. (Id. ¶ 27). Plaintiff further alleges that Defendant made certain threats and statements to induce Plaintiff to pay the purported debt in violation of the Acts' protections. (Id. ¶ 28). Plaintiff seeks actual damages, $1,000 in statutory damages for each violation of the Acts, reasonable attorney's fees, and costs of suit. (Id. at 8-9).
Defendant's counterclaim alleges that Plaintiff surreptitiously recorded a telephone call between Plaintiff and one of Defendant's employees without Defendant's knowledge or permission, in violation of California Penal Code §§ 632 and 632.7. (Dkt. No. 48 ¶¶ 17-24). Defendant seeks an award of $5,000 pursuant to § 632.7, and legal fees and costs. (Id. at 12).
Section 632(a) makes it a crime to intentionally record a “confidential communication” without the consent of all parties to the communication. Cal. Penal Code § 632(a). Subsection (d) provides that “[e]xcept as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.” Id. § 632(d). Section 632.7 provides particular penalties that apply when a cell phone is used in the communication. Id. § 632.7.
III.
SCOPE OF PERMISSIBLE DISCOVERY
Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides:
Parties 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed.R.Evid. 401.
Because discovery must be both relevant and proportional, the right to discovery, even plainly relevant discovery, is not limitless. Discovery may be denied where: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C); Tedrow v. Boeing Employees Credit Union, 315 F.R.D. 358, 359 (W.D. Wash.2016) (quoting same). “Federal district courts are vested with broad discretion in resolving discovery disputes and deciding whether to grant or deny a motion to compel.” Sherrill v. DIO Transp., Inc., 317 F.R.D. 609, 612 (D. S.C. 2016).
IV.
DISCUSSION
Plaintiff's Motion seeks further responses to eleven requests for admission (“RFA”), one interrogatory, and one request for production (“RFP”). As noted above, a requesting party has an obligation to draft discovery requests that seek information that is not only relevant to the claims and defenses in the action, but also proportional to the needs of the case. In matters such as this, where the amount in dispute is relatively small, discovery should be restrained and go to the heart of the matter. At the same time, regardless of the type of discovery requested, a responding party has “an obligation to construe . . . discovery requests in a reasonable manner.” Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007) .
Accordingly, “[a] party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized . . . .” McCoo v. Denny's Inc., F.R.D. 675, 694 (D. Kan. 2000) (internal quotation marks omitted); see also Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 310 (D. Kan. 1996) (“Respondents should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized in interrogatories.”); King-Hardy v. Bloomfield Board of Education, 2002 WL 32506294, at *5 (D. Conn. Dec. 8, (responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity).
A. Requests for Admission Nos. 3-6, 11,
Plaintiff's RFAs fall roughly into four categories: (1) RFAs seeking admissions that Defendant is a “debt collector” under the FDCPA and Rosenthal Act (RFA Nos. 3-4); (2) RFAs seeking admissions that City Club of Los Angeles hired Defendant to collect a debt from Plaintiff (RFA No. 11) and that Michael A. Cruz both performs debt collection services on behalf of Defendant and attempted to collect the debt from Plaintiff (RFA Nos. 5-6); (3) RFAs seeking admissions that Defendant made a series of specific statements to Plaintiff (RFA Nos. 17-22); and (4) an RFA seeking an admission as to whether an envelope which allegedly contained a collection letter from Defendant is genuine (RFA No. 23). (Jt. Stip. at 10, 13, 15). Defendant contends as a general matter that the RFAs improperly seek conclusions of law, and that the RFAs specifically seeking admissions regarding statements that Defendant purportedly made are “found only on the [illegal] recording,” and should be prohibited on that ground. (Id. at 8-9).
1. Law Governing Requests For Admission
Federal Rule of Civil Procedure 36(a) provides:
A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents.Fed. R. Civ. P. 36(a)(1). Several courts contend that unlike interrogatories, document requests, and depositions, requests for admission “are not a discovery device at all, ‘since [they] presuppose[] that the party proceeding under [Rule 36] knows the facts or has the document and merely wishes its opponent to concede their genuineness.'” Pasternak v. Dow Kim, 2011 WL 4552389 at *5 (S.D. N.Y. Sept. 28, 2011) (quoting 8B Wright, Miller, & Marcus, Federal Practice and Procedure § 2253 at 324); accord Bouchard v. United States, 241 F.R.D. 72, 76 (D. Me. 2007) . Other courts emphasize that requests for admission do function as “discovery devices” to the extent that they allow the requesting party to determine the responding party's contentions. Safeco of America v. Rawstron, 181 F.R.D. 441, 443 (C.D. Cal. 1998) . However they are characterized, one primary purpose of requests for admission is to narrow the issues for trial by identifying and eliminating those matters on which the parties agree. Asea, Inc. v. Southern Pacific Transportation Co., 669 F.2d 1242, 1245 (9th Cir. 1981) (“The purpose of Rule 36(a) is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial.”); Fed.R.Civ.P. 36 advisory committee notes (1970 Amendment) (“Rule 36 serves two vital purposes, both of which are designed to reduce trial time. Admissions are sought, first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be.”).
However, because requests for admission clarify not only those issues upon which the parties agree but also those which are “genuinely contested,” where issues in dispute “are requested to be admitted, a denial is a perfectly reasonable response.” United Coal Companies v. Powell Const. Co., 839 F.2d 958, 967 (3rd Cir. 1988). The Rule specifically provides:
If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good
faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny.Fed. R. Civ. P. 36(a)(4) (emphasis added). “If the party requesting the admission later proves the genuineness of the document or the truth of the matter requested, the court may order the party that denied the request to pay the costs of her opponent in making that proof.” McFadden v. Ballard, Spahr, Andrews & Ingersoll, LLP, 243 F.R.D. 1, 7 (D. D.C. 2007) (citing Fed.R.Civ.P. 37(c)(2)).
Requests for admission may, as the Rule explicitly provides, seek admissions that require a responding party to apply law to the facts of the case. Fed.R.Civ.P. 36(a)(1); see also In re Carney, 258 F.3d 415, 419 (5th Cir. 2001) (“Rule 36 allows litigants to request admissions as to a broad range of matters, including ultimate facts, as well as applications of law to fact.”). For example, the Ninth Circuit affirmed a lower court's decision to enforce an admission that a particular document constituted “an agreement” between the parties, even though whether an agreement existed was an ultimate issue in case. See 999 Corp. v. C.I.T. Corp., 776 F.2d 866, 868-69 (9th Cir. 1985) . The Ninth Circuit has also enforced an admission that the care and treatment provided by a doctor to a patient “failed to comply with the applicable standard of care which existed for that person on that date” on the ground that the request was a permissible question of “mixed law and fact.” Marchand v. Mercy Medical Center, 22 F.3d 933, 937 n.4 (9th Cir. 1994).
In contrast, a responding party may legitimately object to an RFP seeking an admission as to a disputed conclusion of law. See, e.g., Abbott v. United States, 177 F.R.D. 92, 93 (N.D. N.Y. 1997) (“What is improper under Rule 36, however, is a request to admit a pure matter of law.”); Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., 1995 WL 625744, at *6 (D. Kan. 1995) (RFAs seeking “abstract opinions of law” or “opinions of law unrelated to the facts of [the] case” are improper). Thus, courts have rejected attempts to enforce RFAs on the ground that they seek impermissible conclusions of law where the RFA sought admissions that: “Plaintiff has failed to state a claim upon which relief can be granted,” United States v. Petroff-Kline, 557 F.3d 285, 293 (6th Cir. 2009); defendants were subject to particular statutes, English v. Cowell, 117 F.R.D. 132, 135 (C.D. Ill. 1986); “it is not within the Medical Standard of the Medical profession community in California . . . for a medical doctor to disregard a known risk to their patient's health,” Bovarie v. Schwarzenegger, 2011 WL 719206, at *6 (S.D. Cal. Feb. 22, 2011); and “for three years plaintiff was given a reasonable accommodation to take his kosher meals back to his cell.” Garcia v. Clark, 2012 WL 1232315, at *11 (E.D. Cal. Apr. 12, 2012) (emphasis added).
2. Analysis
a. Category 1: Whether Defendant Is A “Debt Collector” (RFA Nos. 3-4)
RFA Nos. 3 and 4 seek admissions that Defendant is a “debt collector” as defined under 15 U.S.C. § 1692a(6) (FDCPA) and Cal. Civ. Code § 1788.2(c) respectively. (Jt. Stip. at 10). Defendant argues that whether it is a “debt collector” under the statutes is an impermissible pure question of law, not a mixed question of law and fact. (Id. at 11-12).
“[T]he distinction between a request seeking application of law to facts and a request impermissibly seeking a pure conclusion of law is not always easy to apply.” In re New England Compounding Pharmacy, Inc. Prod. Liab. Litig., 2015 WL 13715291, at *2 (D. Mass. Sept. 8, 2015). It is unclear to the Court whether Defendant is being asked to admit whether it qualifies as a “debt collector” under one of several definitions in the Acts, which would, in essence, require Defendant to make a legal conclusion as to which definition is relevant to this action; or to admit whether it satisfies the criteria of a “debt collector” under an undisputed definition, which would arguably constitute a mixed question of law and fact.
Accordingly, the Court GRANTS IN PART the MTC with respect to RFA Nos. 3 and 4. If Defendant maintains that the RFAs seek a disputed conclusion of law, it shall supplement its response to identify, with specificity, the competing legal conclusions called for in 15 U.S.C. § 1692a(6) (FDCPA) and Cal. Civ. Code § 1788.2(c), and explain why it cannot admit or deny the request. If Defendant believes that the definition of “debt collector” under those statutes is undisputed, however, it shall respond to RFA Nos. 3 and 4 without further objection.
b. Category 2: Whether Defendant Was Hired To Collect
Plaintiff's “Debt,” And Whether Michael A. Cruz Performed “Debt Collection” Services On Behalf Of Defendant (RFA Nos. 11, 5-6)
RFA No. 11 asks Defendant to admit that City Club of Los Angeles hired it to collect a debt owed by Plaintiff, (Jt. Stip. at 10); RFA Nos. 5 and 6 ask Defendant to admit that Michael A. Cruz “performs debt collection” on Defendant's behalf and “attempted to collect on a debt” from Plaintiff on Defendant's behalf. (Id. at 13). Defendant argues that all three RFAs are improper because they rely either on a colloquial definition of the word “debt,” which would make the RFAs overbroad and burdensome to answer; or statutory definitions, would require Defendant to make “multiple conclusions of law” concerning the meaning of “debt collection,” “debt,” “consumer,” and “debt collector.” (Id. at 14). Additionally, Defendant states that Plaintiff “does not state what facts are being applied to which law” with respect to these RFAs. (Id. at 15).
As noted above, parties have an obligation to construe discovery requests reasonably. Cache La Poudre Feeds, 244 F.R.D. at 618-19; McCoo, 192 F.R.D. at 694; Pulsecard, 168 F.R.D. at 310; King-Hardy, 2002 WL 32506294, at *5. Defendant knows whether it was hired by the City Club of Los Angeles and for what purpose. Defendant also knows if it hired Michael A. Cruz, what Mr. Cruz's job responsibilities generally were, and whether and to what end Mr. Cruz worked on Plaintiff's account. Accordingly, Plaintiff's MTC is GRANTED with respect to RFA Nos. 11, 5 and 6. If for some reason Defendant is unable to admit or deny any RFA, it may qualify its response as necessary, but it must respond to the RFA to the extent that it reasonably can. Fed.R.Civ.P. 36(a)(4) (“[W]hen good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest.”). Defendant is cautioned that if Plaintiff is ultimately able to prove the truth of the matter requested, Defendant may be liable for Plaintiff's costs in making that proof. Ballard, 243 F.R.D. at 7.
c. Category 3: Whether Defendant Made Certain Statements Unlawfully Recorded By Plaintiff (RFA Nos. 17-22)
RFA Nos. 17-22 ask Defendant to admit that it made several specific statements to Plaintiff, i.e., threats that Defendant would sue Plaintiff in Texas and serve him at work, after which Plaintiff would have ten days to answer in writing; that the court would require payment in ten days and would issue a writ to garnish Plaintiff's wages if he failed to do so; and that the amount owed was $2,110.51, plus $950 in fees and costs, all of which would accrue at eighteen percent interest. (Jt. Stip. at 15). Defendant argues that the statements for which Plaintiff seeks admissions were taken from Plaintiff's “illegal recording” of the telephone call that is the subject of Defendant's counterclaim. (Id. at 16). According to Defendant, because “the sole source of [these] contention[s] is plaintiff's interpretation of that illegal recording” and the recording itself is inadmissible to prove any of Plaintiff's claims pursuant to California Penal Code § 632(d), Plaintiff is attempting an impermissible “end run around the evidentiary bar,” which should be denied. (Id.).
Contrary to Defendant's contention, the Court is not persuaded that Plaintiff's recording will necessarily be deemed inadmissible in this action. In Feldman v. Allstate Ins. Co., 322 F.3d 660 (9th Cir. 2003), the Ninth Circuit squarely addressed whether recordings obtained in violation of section 632 are admissible in federal court. The Feldman court, sitting in diversity, concluded that because section 632 “embodies a state substantive interest in the privacy of California citizens from exposure of their confidential conversations to third parties,” its evidentiary exclusion rule is “properly characterized as substantive law within the meaning of Erie” and must be followed when a federal court sits in diversity. Id. at 667. The court also noted, however, that as a general matter, “evidence obtained in contravention of state law is admissible in federal court, so long as no federal law is thereby violated.” Id. at 666.
Court have routinely applied Feldman to stand for the proposition that where, as here, the court has federal question jurisdiction, recordings made in violation of section 632 are admissible. As one court explained,
The present action is based on federal law (as well as state law) and is proceeding in federal court. In such cases, “the Ninth Circuit has consistently held that [recordings of conversations] [are] admissible in federal court proceedings when obtained in conformance with federal law and without regard to state law.” . . . In sum, because the recordings at issue comply with federal law, they may be admitted as evidence without regard to California Penal Code § 632.
Asia Econ. Inst. v. Xcentric Ventures, LLC, 2010 WL 4977054, at *11-*12 (C.D. Cal. July 19, 2010) (brackets in original; quoting Roberts v. Americable International, Inc., 883 F.Supp. 499, 50304 (E.D. Cal. 1995)); see also Zhou v. Pittsburg State University, 252 F.Supp.2d 1194, 1204 (D. Kan. 2003) (“[In Feldman,] [t]he Ninth Circuit noted that in non-diversity cases, . . . evidence obtained in contravention of state law is admissible in federal court, so long as no federal law is thereby violated. Accordingly, in this case[,] which is based on a federal question, the tape recording of the telephone conversation on December 20 is admissible [despite Cal. Penal Code § 632(a)].”).
Furthermore, even if California law applied, the prohibition on the admission of recordings made in violation of section 632(a) does not mean that the contents of the communications themselves are likewise excluded. See, e.g., Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156, 167 (2003) (“Penal Code section 632 does not prohibit the disclosure of information gathered in violation of its terms.”); Nat'l Abortion Fed'n v. Ctr. for Med. Progress, 2016 WL 454082, at *16 (N.D. Cal. Feb. 5, 2016), aff'd 685 Fed.Appx. 623 (9th Cir. 2017) (quoting Lieberman). Indeed, even in Feldman, the court expressly stated that although the recordings obtained in violation of section 632 were inadmissible in that diversity case, “testimony as to the content of a recorded conversation is admissible, to the extent that the witness or deponent ‘enjoys an untainted recall.'” Feldman, 322 F.3d at 667 (quoting Frio v. Superior Court of Los Angeles, 203 Cal.App.3d 1480, 1493 (1988) (“Nothing in the Privacy Act can be read so as to conclude a party whose confidential communications have been recorded gains greater protection than if they had not been so intercepted.”)).
Defendant's argument against the enforcement of these RFAs appears to be based on the contention that because Plaintiff allegedly recorded the telephone conversation in violation of state law, the contents of the conversation must also be shielded from discovery. In other words, Defendant appears to seek greater protection under section 632 that it would otherwise enjoy had the recording not been made. There are several flaws to this argument. First, because this Court has federal question jurisdiction under the FDCPA, the recording itself, although unlawful under state law, may be admissible under federal law. Second, even if the recording were deemed inadmissible, the contents of the conversation would still be admissible. There is nothing so specific about the statements that Plaintiff is asking Defendant to admit it made that would lead the Court to believe that absent a recording, Plaintiff simply would not have an independent memory of the statements. Accordingly, the MTC is GRANTED as to RFA Nos. 17-22 and Defendant must provide supplemental responses.
It is unclear from the discovery requests who made the purported statements or what state that person resides in. The Court recognizes that a state interest in protecting the privacy of its citizens might not be as strong if Defendant's representative was a resident of another state and made the statements from a foreign state.
d. Whether The Document Labeled “08/29/17 UMS envelope 34” Is Genuine (RFA No. 23)
RFA No. 23 asks Defendant to admit to the authenticity of an envelope that Plaintiff alleges he received with a collection letter from Defendant to Plaintiff. (Jt. Stip. at 17). The envelope in question was produced in this litigation by Plaintiff, and Defendant has already conceded the genuineness of the collection letter itself. Defendant argues that Plaintiff is seeking irrelevant information, and regardless, Defendant does not have enough information to confirm or deny the request because it “does not keep copies of the envelopes of the letters it sends.” (Id. at 17). Furthermore, Defendant notes that there is “no dispute” about the contents of the letter, and there is nothing “in or on the envelope which would change any issue related to the letter.” (Id. at 18).
The Court agrees that the relevancy of the envelope, as opposed to the letter it allegedly contained, is far from clear. However, if Defendant does not recognize the envelope or have enough information to confirm whether the envelope is genuine, it may deny the RFA or decline to answer it on one of those grounds, which is a perfectly acceptable response to an RFA. See Fed.R.Civ.P. 36(a)(4) (“The answering party may assert lack of knowledge or information as a reason for failing to admit or deny . . . .”). Accordingly, the MTC is GRANTED with respect to RFA No. 23 and Defendant must provide a supplemental response.
B. Interrogatory No. 13
Interrogatory No. 13 seeks “all facts” supporting the contention that Defendant did not violate the FDCPA. (Jt. Stip. at 18). Defendant argues that contention interrogatories are by definition objectionable, and this interrogatory is particularly burdensome as Plaintiff apparently seeks “an exhaustive accounting of [Defendant's] legal theories and all corresponding facts.” (Id. at 20).
1. Law Governing Interrogatories
Rule 33 governs the use of interrogatories as a discovery device in federal courts. The purpose of interrogatories is “to facilitate trial preparation, to provide facts, to narrow the issues, and to reduce the chance of surprise.” Rickles, Inc. v. Frances Denney Corp., 508 F.Supp. 4, 7 n.1 (D. Mass. 1980); see also Citibank, N.A. v. Savage (In re Savage), 303 B.R. 766, 773 (Bankr. D. Md. 2003) (“The purpose of interrogatories is to allow the parties to prepare for trial and inform the parties what evidence they must meet.”).
A responding party must respond to interrogatories under oath and to the fullest extent possible. Fed.R.Civ.P. 33(b)(3). Any objections must be stated with specificity. Fed.R.Civ.P. 33(b)(4); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981).
“The answers to interrogatories must be responsive, full, complete and unevasive.” Continental Ill. Nat'l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 684 (D. Kan. 1991) (internal citation and quotation marks omitted); see also Chubb Integrated Systems Ltd. v. National Bank of Washington, 103 F.R.D. 52, 61 (D. D.C. 1984) (“We remind the parties that they have a duty to provide true, explicit, responsive, complete and candid answers to interrogatories.”). A party answering interrogatories cannot limit its answers to matters within its own knowledge and ignore information reasonably available to it or under its control. Essex Builders Group, Inc. v. Amerisure Insurance Co., 230 F.R.D. 682, 685 (M.D. Fla. 2005).
While a responding party is not generally required to conduct extensive research to answer an interrogatory, a reasonable effort to respond must be made. Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal. 2013). “If a party is unable to supply the requested information, the party may not simply refuse to answer, but must state under oath that he is unable to provide the information and set forth the efforts he used to obtain the information.” Hansel v. Shell Oil Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996) (internal quotation marks and citation omitted).
2. Analysis
Overly broad and unduly burdensome interrogatories “are an abuse of the discovery process” and are routinely denied. See, e.g., Lucero v. Valdez, 240 F.R.D. 591, 594 (D. N.M. 2007) (interrogatories requiring responding party to state “each and every fact” supporting the party's contentions impermissibly overbroad); see also Rivera v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004) (noting generally that district courts “need not condone the use of discovery to engage in ‘fishing expedition[s]'”). However, contrary to Defendant's blanket assertion, contention interrogatories are not per se impermissible. Courts “generally approve of appropriately-timed contention interrogatories” because they may serve several beneficial purposes, including narrowing the issues, avoiding “wasteful preparation,” and, “it is hoped, expedit[ing] a resolution of the litigation.” Roberts v. Heim, 130 F.R.D. 424, 427 (N.D. Cal. 1989); see also U.S. ex rel. O'Connell v. Chapman Univ., 245 F.R.D. 646, 649 (C.D. Cal. 2007) (“The interrogatories served on [plaintiff] by defendant [] are, for the most part, classic contention interrogatories, in which defendant [] asks [plaintiff] to discuss and explain the nature of the contentions she makes in the Second Amended Complaint and, further, asks [plaintiff] to give detailed information regarding the factual bases for her contentions; thus, these interrogatories are permissible and acceptable under Rule 33(c).”) (footnotes omitted; citing cases); In re Rail Freight Fuel Surcharge Antitrust Litig., 281 F.R.D. 1, 4 (D. D.C. 2011) (“‘Contention interrogatories' that ask a party what it contends or to state all the facts upon which it bases a contention are perfectly legitimate.”); Oliva v. Cox Commc'ns Las Vegas, Inc., 2018 WL 6171780, at *2 (D. Nev. Nov. 26, 2018) (“It is proper for a party to propound contention interrogatories seeking identification of the opposing party's positions and the evidence in support of those positions.”).
Plaintiff's contention interrogatory is not premature in light of the imminent discovery cut-off. Further, Plaintiff is entitled to know why Defendant contends (assuming that it does) that it did not violate the FDCPA, and what facts Defendant will rely on to support that contention. Accordingly, the MTC is GRANTED with respect to Interrogatory No. 13 and Defendant must provide a supplemental response.
C. Request for Production No. 2
RFP No. 2 seeks all documents supporting Defendant's interrogatory responses. (Jt. Stip. at 20). Although Defendant did not object to this RFP, Plaintiff states that Defendant should be compelled to update its production to encompass any further documents it may have that are responsive to Interrogatory No. 13 above. (Id. at 20-21). Defendant maintains that it has already produced all documents relevant to the claims and counterclaims in this action. (Id. at 21).
1. Law Governing Requests For Production
Rule 34 provides that a party may serve a request for production of any documents relevant to the litigation “in the responding party's possession, custody or control.” Fed.R.Civ.P. 34(a)(1). The responding party must either permit the document inspection as requested, or object to the request, in whole or in part, and provide the reason for the objection. Id. 34(b)(2). Rule 37(a)(3)(B) specifically permits a requesting party to bring a motion to compel when a responding party fails either to respond that the inspection will be permitted or to permit the inspection.
It is axiomatic, however, that a court cannot order a party to produce documents that do not exist. A plaintiff's mere suspicion that additional documents must exist does not warrant an order compelling production. See, e.g., Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 311 (D. D.C. 2000) (a party's suspicion that its opponent must have documents that it claims not to have is insufficient to warrant granting motion to compel); Hubbard v. Potter, 247 F.R.D. 27, 29 (D. D.C. 2008) (“Courts supervising discovery are often confronted by the claim that the production made is so paltry that there must be more that has not been produced or that was destroyed. Speculation that there is more will not suffice; if theoretical possibility that more documents exist sufficed to justify additional discovery, discovery would never end.”). Rather, the moving party must have a colorable basis for its belief that relevant, responsive documents exist and are being improperly withheld. See Carter v. Dawson, 2010 WL 4483814 at *5 (E.D. Cal. Nov. 10, 2010). “The burden is on the party seeking to compel discovery to cast doubt on the responding party's assertion that it does not have the requested information.” Gary Friedrich Enterprises, LLC v. Marvel Enterprises, Inc., 2011 WL 2623458 at *1 (S.D. N.Y. June 1, 2011); see also Orillaneda v. French Culinary Institute, 2011 WL 4375365 at *6 (S.D. N.Y. Sept. 19, 2011) (denying discovery of opposing party's information systems where moving party failed to identify “specific reasons for believing” that the production was deficient).
2. Analysis
The MTC with respect to RFP No. 2 is DENIED. Defendant states that it has already produced all documents relevant to the claims and defenses in this action, and Plaintiff has offered no evidence that Defendant is withholding any documents. A court cannot compel a responding party to produce documents that do not exist. Furthermore, Defendant did not object to this RFP, but stated in its original responses that documents “will be produced under separate cover.” (Dell Decl., Exh. 1 at 10). Accordingly, even if Defendant had any unproduced documents that would be relevant to Interrogatory No. 13, which it denies, Plaintiff has not shown that there is any reason to believe that Defendant would not comply with Rule 26(e)(1), which imposes a duty on a responding party to update discovery responses when it learns that a response is incomplete.
V.
CONCLUSION
For the reasons stated above, Plaintiff's Motion to Compel is GRANTED IN PART AND DENIED IN PART. Defendant shall serve supplemental responses to the extent required by this Order within fourteen (14) days of the date of this Order.