Yith et al v. Johnson et al

Filing 101

ORDER REGARDING INFORMAL DISCOVERY DISPUTE CONFERENCE, signed by Magistrate Judge Sheila K. Oberto on 5/28/2019. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SEANLIM YITH, SEAK LEANG YITH,

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Case No. 1:14-cv-01875-LJO-SKO

Plaintiffs,

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v.

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ORDER REGARDING INFORMAL
DISCOVERY DISPUTE CONFERENCE

KIRSTJEN NIELSEN, ET AL.,

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Defendants.

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_____________________________________/

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ORDER

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On May 24, 2019, the parties appeared telephonically for an informal discovery dispute

20 conference. Attorney Bruce Leichty appeared on behalf of Plaintiffs Seanlim Yith and Seak
21 Leang Yith, and attorney Anthony Bianco appeared on behalf of Defendants.
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After reviewing the parties’ submissions and hearing the parties’ arguments, the Court

23 makes the following findings and orders:
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Production of Written Response and Responsive Documents Including Emails

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Plaintiffs contend that they served requests for production of documents on March 7, 2019,

26 and Defendants have not served a complete production of documents1 or any written response or
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Plaintiffs asserted in two separate disputes that Defendants have not served a complete production of documents
generally and have not served a complete production of responsive emails. Because the disputes are so related, the
Court will address both at the same time.

1 objections, and due to the delay Plaintiffs believe a “conditional” monetary sanction is
2 appropriate. Plaintiffs request that Defendants be directed to produce a written response, with
3 objections deemed waived, and produce the remaining responsive documents by May 31, 2019.
4 Defendants do not dispute that they failed to serve a written response or propound objections by
5 the April 6, 2019 deadline, but contend that they have produced all responsive documents in their
6 possession.
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“It is well established that a failure to object to discovery requests within the time required

8 constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d
9 1468, 1473 (9th Cir. 1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir. 1981)).
10 Written responses and objections to requests for production are due 30 days after service of the
11 requests, and any objection “must state with particularity whether any responsive materials are
12 being withheld on the basis of that objection.” Fed. R. Civ. P. 34(A), (C).
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It is undisputed that Defendants failed to serve a written response and failed to assert

14 objections to Plaintiffs’ requests for production within the time required. Accordingly, the Court
15 GRANTS Plaintiffs’ request that Defendants produce a written response with all objections to the
16 production of requested documents deemed waived. As Defendants represent that they have
17 produced all responsive documents, the Court DENIES without prejudice Plaintiffs’ request for
18 an order directing production of all remaining responsive documents. The Court declines to
19 impose a “conditional” monetary sanction for potential future non-compliance and DENIES
20 without prejudice Plaintiffs’ request for sanctions. Defendants shall serve a written response to
21 Plaintiffs’ requests for production on or before May 31, 2019, and the parties shall meet and
22 confer to determine whether any documents are missing from Defendants’ production on or
23 before June 7, 2019.
24 2.

Redaction of Produced Documents

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Plaintiffs contend Defendants produced documents that redacted critical information

26 regarding investigative details without offering any justification for the redactions. Plaintiffs
27 request that Defendants be required to produce un-redacted copies of previously produced
28 documents. Defendants respond that the documents were appropriately redacted to protect

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1 information covered by the Privacy Act of 1974 and the “law enforcement privilege.” Defendants
2 assert that they proposed a protective order at the beginning of the case, but the parties could not
3 come to an agreement.
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The appropriate method for protecting confidential information exchanged in discovery is

5 to seek a protective order in accordance with the Local Rules. See E.D. Cal. Local Rule
6 141.1(a)(1); Fed. R. Civ. P. 26. The Privacy Act of 1974 protects from public disclosure, among
7 other things, information disclosed at meetings of federal agencies that may disclose
8 “investigatory records compiled for law enforcement purposes” in some circumstances. 5 U.S.C.
9 § 552b(c)(7). “Privileges are narrowly construed, because they impede the full and fair discovery
10 of the truth.” Brooks v. County of San Joaquin, 275 F.R.D. 528, 529 (E.D. Cal. 2011) (citing
11 Eureka Financial Corp. v. Hartford Acc. and Indemnity Co., 136 F.R.D. 179, 183 (E.D. Cal.
12 1991)). The party asserting the privilege has the burden of establishing its applicability. Id.
13 (citing United States v. O’Neill, 619 F.2d 222, 227 (3rd Cir. 1980)). The “law enforcement
14 privilege” protects disclosure of law enforcement techniques and procedures; identities of
15 witnesses, law enforcement personnel, individuals involved in an investigation, sources, and
16 informants; and otherwise applies to “prevent interference with an investigation.” Brooks, 275
17 F.R.D. at 529 (quoting In re Dept. of Investigation of City of New York, 856 F.2d 481, 483-84 (2d
18 Cir. 1988)).
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The Court is unable to determine the applicability of asserted privileges and the propriety

20 of the redactions without examining the un-redacted documents in camera. As the parties now
21 have tangible discovery materials to examine and the case has proceeded for months since the
22 parties last discussed the possibility of a protective order, the Court DENIES without prejudice2
23 Plaintiffs’ request that Defendants produce the un-redacted documents and directs the parties to
24 meet and confer regarding a mutually agreeable protective order on or before May 31, 2019. If
25 Defendants intend to redact documents despite a protective order, Defendants must set forth the
26 basis for each redaction and serve a list that includes each redaction and the basis for each
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Defendants’ counsel is advised that if the parties are unable to meaningfully meet and confer and agree on terms of a
protective order, Defendants will be required to submit all produced documents for in camera review with a privilege
log identifying the reason for each redaction for the Court to determine the propriety of the redactions.
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1 redaction on Plaintiffs on or before June 7, 2019.
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Production of Exhibits Attached to July 31, 2015 Report of Investigation

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Finally, Plaintiffs contend that in April 2019, Defendants produced a report dated July 31,

4 2015 that referenced certain exhibits, but failed to produce the exhibits attached to the report.
5 Defendants contend that the exhibits are not within the scope of discovery as they involve
6 individuals other than Plaintiffs. Defendants admit, however, that the report is relevant to the
7 case. Plaintiffs contend Defendants have waived any objection to production of the exhibits and
8 request that Defendants be directed to produce the exhibits by May 31, 2019.
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As noted above, failure to object to discovery requests within 30 days constitutes a waiver

10 of any objection. See Richmark, 959 F.2d at 1473; Fed. R. Civ. P. 34(A), (C). Defendants
11 admittedly failed to object to the production of these documents within the time required. Thus,
12 the Court GRANTS Plaintiffs’ request that Defendants produce the exhibits. Defendants shall
13 produce the exhibits attached to the July 31, 2015 Report of Investigation on or before May 31,
14 2019.
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IT IS SO ORDERED.

17 Dated:
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May 28, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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