Opinion
COUNSEL:
For Edward A. Infante, Special Master: Edward A. Infante, JAMS, San Francisco, CA.
For Gracenote Inc., a Delaware Corporation, Plaintiff: Vickie L. Feeman, Orrick Herrington & Sutcliffe, Menlo Park, CA; William Sloan Coats, III, Orrick Herrington & Sutcliffe, Menlo Park, CA; Gabriel M. Ramsey, Orrick Herrington & Sutcliffe, Menlo Park, CA; Cynthia A. Wickstrom, Orrick, Harrington & Sutcliffe LLP, Menlo Park, CA.
For Musicmatch Inc., a Washington Corporation, Defendant: Eugene L. Hahm, Manatt Phelps & Phillips, Palo Alto, Ca; Chad S. Hummel, Manatt Phelps & Phillips LLP, Los Angeles, CA; Ricardo Rodriguez, Copley Godward LLP, Palo Alto, CA; Robert D. Becker, Manatt Phelps and Philips, Palo Alto, CA; Ronald S. Katz, Manatt, Phelps & Phillips LLP, Palo Alto, CA; Shawn G. Hansen, Manatt Phelps & Phillips, LLP, Palo Alto, CA.
For Musicmatch Inc., a Washington Corporation, Counter-claimant: Chad S. Hummel, Manatt Phelps & Phillips LLP, Los Angeles, CA; Eugene L. Hahm, Manatt Phelps & Phillips, Palo Alto, Ca; Robert D. Becker, Manatt Phelps and Philips, Palo Alto, CA; Shawn G. Hansen, Manatt Phelps & Phillips, LLP, Palo Alto, CA
For Gracenote Inc., a Delaware Corporation, Counter-defendant: Cynthia A. Wickstrom, Orrick, Harrington & Sutcliffe LLP, Menlo Park, CA.
For Musicmatch Inc., a Washington Corporation, Counter-claimant: Chad S. Hummel, Manatt Phelps & Phillips LLP, Los Angeles, CA; Eugene L. Hahm, Manatt Phelps & Phillips, Palo Alto, Ca
For Gracenote Inc., a Delaware Corporation, Counter-defendant: Cynthia A. Wickstrom, Orrick, Harrington & Sutcliffe LLP, Menlo Park, CA.
ORDER COMPELLING PLAINTIFF TO RENDER SUFFICIENT ANSWERS TO DEFENDANT'S REQUESTS FOR ADMISSIONS
MARIA-ELENA JAMES, United States Magistrate Judge.
INTRODUCTION
Currently pending before the Court is a motion by defendant MusicMatch, Inc. (hereinafter, "MusicMatch") for the Court to determine the sufficiency of Answers rendered by plaintiff Gracenote, Inc. (hereinafter, "Gracenote"), rendered in response to MusicMatch's Requests For Admissions (hereinafter, "RFA" or "RFAs"). On September 25, 2003, the parties submitted a joint letter regarding this matter. Chad S. Hummel signed for MusicMatch. Cynthia A. Wickstrom signed for Gracenote.
LEGAL STANDARD
The issue before this Court is whether Gracenote's Answers to MusicMatch's RFAs are sufficient.
Rule 36(a) of the Federal Rules of Civil Procedure states that "a party may serve upon any other party a written request for the admission . . . of the truth of matters . . . that relate to statements or opinions of fact or of the application of law to fact." Fed.R.Civ.P. 36(a). "The purpose of Rule 36 is to expedite trial by establishing certain material facts as true and thus narrowing the range of issues for trial." Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981).
Parties responding to Requests For Admissions must serve upon the requesting party either a written answer or objection addressed to the matter. Fed.R.Civ.P. 36(a). Answers must consist of either an admission, a denial, or a statement detailing why the answering party is unable to admit or deny the matter. Id.; Asea, 669 F.2d at 1245-1246. Denials must "fairly meet the substance of the requested admission." Fed.R.Civ.P. 36(a). "When good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder." Id. Parties may not render an "evasive denial, one that does not specifically deny the matter." Asea, 669 F.2d at 1245. If a party is unable to admit or deny the matter, the party must in their response, set forth in detail the reasons why they cannot truthfully admit or deny the matter. Id.
Under certain circumstances, a party may deny a matter based on a lack of personal knowledge. This option is not, however, available if "the information relevant to the request is reasonably available" to the answering party. Asea, 669 F.2d at 1245. In determining whether information relating to a matter is "reasonably available, " a "reasonable burden" may be imposed on the parties to discover matters not otherwise within their knowledge. Id. A party denying based on lack of knowledge must (1) conduct a good faith reasonable inquiry into the matter and (2) state in their response that they have in fact conducted such an inquiry. Fed.R.Civ.P. 36(a); Asea, 669 F.2d at 1246-7.
The Ninth Circuit is silent on the issue of whether this reasonable burden requires inquiry of third parties; other jurisdictions, however, have addressed this question. In T. Rowe Small-Cap Fund. Inc. v. Oppenheimer & Co., Inc., 174 F.R.D. 38 (S.D.N.Y. 1997), the United States District Court for the Southern District of New York found that while parties may, under certain circumstances, be required to inquire of third parties in order to respond to RFAs, the court found that this requirement was not absolute. Id. at 43. "Generally, a "reasonable inquiry" is limited to review and inquiry of those persons and documents that are within the responding party's control." Id. (emphasis added). Also addressing this issue, in Uniden America Corp. v. Ericsson Inc., 181 F.R.D. 302 (M.D. N.C. 1998), the United States District Court for the Middle District of North Carolina held that inquiry of third persons was required "when there is some identity of interests manifested, such as both being parties to the litigation, a present or prior relationship of mutual concerns, or their active cooperation in the litigation, and when there is no manifest or potential conflict between the party and the third party." Id. at 304.
Rule 36(a) allows for parties to object to a matter contained in a Request For Admission, instead of answering or denying the matter. Fed.R.Civ.P. 36(a). Parties should not, however, "seek to evade disclosure by quibbling and objection." Marchand v. Mercy Med. Ctr., 22 F.3d 933, 938 (9th Cir. 1994). Where a party's objection is that a Request For Admission is ambiguous, the Answering party should attempt, in good faith, to frame an intelligent reply. Id. ("[Parties] should admit to the fullest extent possible, and explain in detail why other portions of a request may not be admitted.")
A party requesting an admission, who feels these requirements have not been met, may move for the court to consider the sufficiency of the answer, compel a proper response, or have the matter deemed admitted. Asea. 669 F.2d at 1247. While this is left to the discretion of the trial judge, courts should, before deeming a disputed matter admitted, order an amended answer. Id. Courts should employ the more harsh sanction of deeming a matter admitted only where there is a "demonstration that a party has intentionally disregarded the obligations imposed by Rule 36(a)." Id.
DISCUSSION
A. Background
On July 3, 2003, MusicMatch served Gracenote its RFAs.
On August 8, 2003, Gracenote served MusicMatch with its Responses to MusicMatch's Request For Admissions (hereinafter, "Original Response").
On September 18, 2003, after MusicMatch objected to Gracenote's Original Response, Gracenote served MusicMatch with an Amended Response (hereinafter, "Amended Response"). Gracenote contends the Amended Response answers any valid objection MusicMatch has over Gracenote's Original Response. MusicMatch contends that, even in Gracenote's Amended Response, Gracenote's responses to the RFAs are insufficient.
The Court perceives four categories of objections raised by MusicMatch to Gracenote's Responses. First, when asked for an admission regarding Ti Kan. (hereinafter, "Kan"), Gracenote responds that "Gracenote lacks sufficient information or knowledge of third-party Ti Kan.and his actions to admit or deny this request, and upon that basis denies this request." Original Response, RFA Nos. 1-18, 21-29, 41. MusicMatch contends that Gracenote has a duty to investigate knowledge held by Kan.in framing its response. Further, MusicMatch contends that many of the RFAs which Gracenote denies based on lack of knowledge could be answered simply by investigating the knowledge of Steve Scherf (hereinafter, "Scherf'), a Gracenote employee. Second, when asked whether the inventorship on a specific patent has been corrected, either with the U.S. Patent and Trademark Office or by judicial order or decree, Gracenote states that the matter was the subject of previous litigation and that the case was settled before the issue of inventorship was resolved. Original Response, RFA Nos. 33, 34, 48. MusicMatch Contends that this response does not fairly meet the RFA. Third, when asked by MusicMatch to admit whether certain facts are disclosed in specific patent applications, Gracenote responded by putting the exact wording used in the RFA into quotes, in effect saying that those specific words do not appear in the patent applications. Original Response, RFA Nos. 36-40, 42, 43, 53. MusicMatch argues that by responding as such, Gracenote's Responses do not fairly meet the RFAs. Finally, MusicMatch contends that certain RFAs were based on language already adopted by Gracenote, either from Gracenote's website or from admissions from previous litigation; however, Gracenote fails to either admit or deny the RFA. Original Response, RFA Nos. 49, 50, 52. MusicMatch does not object to Gracenote's responses to RFAs 19-20, 30-32, 35, 44-47 and 51. Throughout its Responses, Gracenote objects to MusicMatch's RFAs on the grounds of ambiguity.
Gracenote's Amended Answers do little to rectify these problems. While purporting to admit or deny aspects of the individual RFAs, Gracenote again cites a lack of knowledge of third party Kan.or his actions as reason for its inability to give a complete response. Amended Response, RFA Nos. 8, 9, and 52. When asked whether the inventorship on a specific patent has been corrected by a judicial decree or order, Gracenote again neither admits nor denies the matter, stating only that their case against Adaptec, Inc. and Roxio, Inc. settled before the inventorship could be corrected. Amended Response, RFA 34. (With regard to the issue of inventorship, Gracenote does, however, in their Amended Response, specifically deny RFAs Nos. 33 and 48.) When asked to admit whether specific disclosures were made in certain patent applications, Gracenote again places the specific words of the RFA into quotes, admitting or denying only that those very words do not appear in the application. Amended Response, RFA 36-40, 42-43, 53. Finally, as to RFA 49 which inquires as to references in Gracenote's server software, Gracenote's Amended Response, while containing a seeming admission, neither openly admits nor denies the RFA. Amended Response, RFA 49.
B. Analysis
The first question before the Court is whether Gracenote has satisfied its reasonable burden by conducting a good faith inquiry into the matters set forth in the RFAs. As stated above, a party responding to an RFA must not only state that he has conducted a reasonable inquiry, but that party must in fact conduct a good faith reasonable inquiry. Fed.R.Civ.P. 36(a); Asea, 669 F.2d at 1246-7. Throughout both its Original Response and Amended Response, Gracenote denies MusicMatch's RFAs based on a lack of sufficient information or knowledge. Nowhere in either response does Gracenote claim to have conducted any form of inquiry. Gracenote rests its argument on the proposition that it should not be forced to investigate knowledge held by third party Kan. While other jurisdictions struggle to determine whether third persons are under the parties "control" (Oppenheimer, 174 F.R.D. at 43) or share an "identity of interest" (Ericsson, 181 F.R.D. at 304), the Court finds no Ninth Circuit case adopting either of these approaches. The question in the Ninth Circuit is whether the requested information is "reasonably available" to the answering party. Asea, 669 F.2d at 1245.
Kan is a consultant and independent contractor working with Gracenote. Additionally, Kan.is represented by Gracenote's counsel in this litigation. Although Kan.is not a party to this litigation, these facts indicate that he is, in fact, "reasonably available" to Gracenote. Id. Gracenote contends that, as Kan.is not currently an employee of Gracenote, he is not under their control. However, as stated above, the test in the Ninth Circuit is one of reasonable availability, not control. Id. As Gracenote has close connections with Kan, it is not unreasonable for it to be required to inquire with him in forming its responses to the RFAs. As to Scherf, Gracenote does not dispute that he is a current Gracenote employee. His availability to Gracenote is, therefore, even greater than that of Kan. Requiring Gracenote to inquire with both Kan.and Scherf in forming its response to the RFAs is well within the reasonable burden requirement mandated by the Ninth Circuit. Id.
Nevertheless, the court finds that even under a control test, Gracenote's reasonable burden would extend to require inquiry with Kan, based on his close relationship with Gracenote.
The Court finds that Gracenote has not satisfied its duty of reasonable inquiry with respect to those RFAs which it has denied based on a lack of knowledge. See RFA Nos. 1-18, 21-29, 41, 52. Further, the Court finds that Gracenote's duty to investigate the matters contained in the RFAs extends to an inquiry into knowledge held by both Ti Kan.and Steve Scherf.
The second question facing the Court is whether Gracenote's responses fairly meet the substance of the RFAs as required by Rule 36(a). Where MusicMatch asks whether the inventorship on specific patents has been corrected, Gracenote's Original Response merely cites to a settled lawsuit with Adaptec, Inc. and Roxio, Inc., stating that the matter was settled before the inventorship could be corrected. While parties who cannot agree on exact wording may reword the admission to agree on an alternate wording (See Marchand, 22 F.3d at 938 citing Milgram Food Stores, Inc. v. United States, 558 F.Supp. 629, 636 (W.D.Mo. 1983)), by merely referring to a case in which the issue of inventorship was raised, Gracenote wholly dodged the issue of the inventorship of the patent. See Amended Response 34. Despite its evasive posturing, Gracenote does, in its Amended Response, flatly deny RFA Nos. 33 and 48.
The Court finds that where Gracenote merely refers to its previous lawsuit (see Amended Response No. 34), this response does not fairly meet the RFA, and therefore the response is insufficient. However, despite the continued reference to the previous lawsuit, where Gracenote specifically denies the RFAs as set forth by MusicMatch (see Amended Response Nos. 33, 48), the Court finds these denials fairly meet the RFAs. Accordingly, the Court finds the Amended Response Nos. 33 and 48 sufficient.
As to the practice of placing the language of the RFA into quotes, the court finds that Gracenote has crafted their response so as to alter the nature of the RFA. Several times, MusicMatch asks Gracenote to admit to whether certain information is "disclosed" in the text of certain patent applications. By placing the RFA wording into quotes, Gracenote admits only that certain specific phrasing does not appear in the applications. This is not a fair interpretation of the admissions sought by MusicMatch. Accordingly, the Court finds Gracenote's responses to RFAs 36-40, 42-43, and 53 insufficient.
Finally, in RFA Nos. 49 and 50, MusicMatch asks about facts it contends Gracenote has already acknowledged as true, either on its website or in its previous lawsuit with Adaptec, Inc. and Roxio, Inc. While Gracenote seemingly admits to RFA No. 49 in its Amended Response and to RFA No. 50 in its original response, the admission is vague and ambiguous, and therefore insufficient.
The Court finds no merit to Gracenote's multiple objections to MusicMatch's RFAs based on a claim of ambiguity. Gracenote has an obligation to render a good faith response wherever possible. Marchand. 22 F.3d at 938. There exists no ambiguity in any of MusicMatch's RFAs which would prevent Gracenote from providing a good faith intelligent response.
Accordingly the Court finds Gracenote's responses to the following RFAs insufficient: 1-18, 21-29, 34, 36-43, 49, 50, 52, 53.
The final issue is whether the Court will deem the insufficient RFAs as having been admitted or merely compel a proper response. A court should only enforce such a strict penalty where there is a blatant disregard for the obligations imposed by Rule 36(a). Asea. 669 F.2d at 1247. While Gracenote has twice submitted insufficient responses to MusicMatch's RFA's, neither of these insufficient responses was in direct disregard of a court order. Accordingly, the Court finds Gracenote's behavior is not yet so contemptible as to warrant this most severe sanction. The Court will instead allow Gracenote to file a proper response to all insufficiently answered RFAs. In forming its responses, Gracenote should conduct a reasonably inquiry, including an investigation into the knowledge of both Steve Scherf and Ti Kan. Further, Gracenote's responses should clearly deny or admit the RFAs, and all denials should fairly meet the substance of the corresponding RFA. The Court cautions that should Gracenote continue its practice of rendering elusive answers, the Court will impose stronger sanctions.
IT IS SO ORDERED.