Yith et al v. Johnson et al

Filing 105

ORDER RE DISCOVERY DISPUTE FOLLOWING TELEPHONIC CONFERENCE, signed by Magistrate Judge Sheila K. Oberto on 6/12/2019. (Kusamura, W)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

SEANLIM YITH, SEAK LEANG YITH,

11
12
13
14

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

Plaintiffs,
v.

ORDER RE DISCOVERY DISPUTE
FOLLOWING TELEPHONIC
CONFERENCE

KIRSTJEN NIELSEN, ET AL.,
Defendants.

15
16

_____________________________________/

17
18

ORDER

19 I.

Procedural Background

20

Plaintiffs filed this case on November 25, 2014, alleging Defendants violated 8 U.S.C. §§

21 1446(b) and 1447(b) by failing to timely adjudicate Plaintiffs’ naturalization applications. (Doc.
22 1.) On March 10, 2015, the United States Citizenship and Immigration Services (USCIS)
23 conducted required interviews of Plaintiffs and anticipated adjudicating the applications before
24 July 8, 2015. (See Doc. 29 at 2.) However, instead of adjudicating the applications, USCIS issued
25 Plaintiffs notices to appear and initiated removal proceedings against them. (Doc. 31 at 2.)
26

On January 8, 2016, the assigned district judge granted summary judgment in favor of

27 Defendants, holding that 8 U.S.C. § 1429 precluded the district court from adjudicating Plaintiffs’
28 naturalization applications (or ordering USCIS to adjudicate the applications) while removal

1 proceedings were pending. (See Doc. 50 at 19.) The Ninth Circuit reversed and remanded on
2 February 7, 2018, ruling that 8 U.S.C. § 1429 precludes only the executive branch, and not the
3 district court, from considering a naturalization application, and only when there is a pending
4 removal proceeding pursuant to a warrant of arrest. (Doc. 61 at 25.)
5

Plaintiffs filed a first amended complaint on June 8, 2018. (Doc. 69.) On July 31, 2018,

6 Defendants filed a motion to remand the case to USCIS, which the assigned district judge denied
7 on October 26, 2018. (Docs. 78, 88.) On December 13, 2018, the Court entered a Scheduling
8 Order setting the non-expert discovery deadline for May 31, 2019, the dispositive motions
9 deadline for July 31, 2019, and trial for January 7, 2020. (Doc. 93.)
10 II.

Discovery Requests

11

On March 7, 2019, Plaintiffs served requests for production on Defendants. It is unclear

12 when Defendants began producing documents. As of May 13, 2019, Defendants represented they
13 had produced thousands of documents responsive to Plaintiffs’ requests, while Plaintiffs
14 contended the discovery responses were incomplete.
15

On May 6, 2019, the parties requested that the court extend the scheduling order deadlines,

16 including the non-expert discovery deadline, to July 15, 2019. (Doc. 95.) The parties stated that
17 there were “outstanding discovery disputes that the parties are actively attempting to resolve
18 without the need for the Court’s intervention.” (Id. at 2.) On May 8, 2019, the Court granted the
19 extensions but advised the parties that it was “the only stipulation to modify the Scheduling Order
20 that the Court will entertain.” (Doc. 96 at 4.)
21 III.

Discovery Disputes

22

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

23 conference. Attorney Bruce Leichty appeared on behalf of Plaintiffs Seanlim Yith and Seak
24 Leang Yith, and attorney Anthony Bianco appeared on behalf of Defendants. At the informal
25 discovery dispute conference, Plaintiffs requested that: (1) Defendants produce a written response
26 and documents responsive to Plaintiffs’ requests for production; (2) Defendants produce un27 redacted copies of previously produced, redacted documents; and (3) Defendants produce exhibits
28 attached to a previously produced report. On May 28, 2019, following the informal discovery

2

1 dispute conference, the Court issued an Order addressing Plaintiff’s requests. (Doc. 101.)
2

As to the first request, Defendants conceded that they failed to produce a written response

3 by the deadline, but asserted they had produced all responsive documents. Thus, the Court
4 directed Defendants to produce the written response by May 31, 2019, and directed the parties to
5 meet and confer to determine whether any documents were missing from the production by June 7,
6 2019. (Doc. 101 at 2.) Regarding the third request, Defendants conceded that they failed to
7 produce the exhibits attached to the previously produced report and failed to formally object to the
8 production of the exhibits by the deadline. Thus, the Court directed Defendants to produce the
9 exhibits by May 31, 2019. (Id. at 4.)
10

As to the second request, Defendants asserted that they properly redacted certain

11 documents to remove information protected under the Privacy Act of 1974 and the law
12 enforcement privilege. Defendants also stated they had proposed a protective order at the start of
13 discovery,1 but the parties were unable to reach an agreement. As the parties now had tangible
14 discovery materials to examine and the case has proceeded for months since the parties had last
15 discussed a protective order, the Court directed the parties to meet and confer regarding a mutually
16 agreeable protective order by May 31, 2019. (Doc. 101 at 3.) The Court further directed
17 Defendants that if they intended to redact documents in the absence of a protective order, they
18 must set forth the basis for each redaction and serve a privilege log on Plaintiffs by June 7, 2019.
19 (Id. at 3–4.)
On June 6, 2019, Defendants filed an “Update to the Court Regarding Informal Discovery

20

21 Dispute Conference,” stating that Defendants had served on Plaintiffs the written response, the
22 exhibits, and remaining responsive documents on May 31, 2019.2 (Doc. 104 at 1–2.) As to the
23 protective order and redactions, Defendants stated, “[t]he parties have met and conferred regarding
24 a mutually agreeable protective order but have been unable to reach an agreement.” (Id. at 2.)
25
26
27
28

In the parties’ joint scheduling report, they represented that they “began conferring on discovery issues on June 15,
2018” and exchanged initial disclosures in July 2018. (Doc. 75 at 10.) Thus, the parties apparently began discussing
the possibility of a protective order about one year ago.
2
Defendants previously filed a notice to the Court on May 31, 2019, but re-filed a corrected notice on June 6, 2019.
(Docs. 102, 104.) The Clerk of the Court entered a notation on the docket to disregard the first notice, as the
document was incomplete. (Doc. 103.)
1

3

1

On June 10, 2019, the Court received two binders of documents from Defendants with a

2 privilege log and letter explaining the submission. The letter stated Defendants simultaneously
3 sent the binders and privilege log to Plaintiffs’ counsel on June 7, 2019. The documents submitted
4 to both the Court and Plaintiffs’ counsel were redacted copies of the documents that Plaintiffs had
5 demanded in discovery.3
6

Upon receiving the documents and in light of the upcoming non-expert discovery deadline

7 of July 15, 2019, the Court promptly set a telephonic status conference to address the current
8 posture of the discovery dispute and the parties’ inability to arrive at a mutually agreeable
9 protective order to facilitate the production of unredacted documents. On June 11, 2019, the
10 parties appeared for a telephonic status conference. Attorney Bruce Leichty appeared on behalf of
11 Plaintiffs Seanlim Yith and Seak Leang Yith, and attorney Anthony Bianco appeared on behalf of
12 Defendants.
13

The Court noted that the parties had not yet agreed upon the terms of a protective order. It

14 appears that the sole remaining issue is whether the protective order should include a provision
15 limiting the use of the discovery material to this litigation. This limitation on the use of discovery
16 was also the remaining issue regarding the protective order at the discovery dispute conference on
17 May 24, 2019. It therefore appears that the parties have not adequately met and conferred
18 “regarding a mutually agreeable protective order,” as required by the Court’s previous order. 4
19 (See Doc. 101 at 3.)
20 IV.

Order

21

Although the parties began discussing the possibility of a protective order months ago,

22 they have been unable to arrive at a mutually agreeable protective order. In view of the July 15,
23 2019 non-expert discovery deadline, the Court sets the following schedule:
24
3

The Court’s May 28, 2019 Order advised Defendants’ counsel that if the parties were unable to agree on a protective

25 order, Defendants would be required to submit the un-redacted documents for in camera review with a privilege log.
26
27
28

(Doc. 101 at 3 n.3.) This was meant to encourage the parties to meaningfully meet and confer, but in any event
Defendants’ submission of redacted documents, as opposed to un-redacted copies, is unhelpful to determining the
propriety of the redactions.
4
In addition to any written correspondence in which the parties may engage, they are required to speak with each
other (i.e., either in person or over the telephone) regarding the dispute, to fulfill the Court’s directive that the parties
first meet and confer in a good faith effort to resolve disputes without court action. The parties are advised that failure
to meaningfully meet and confer in the future may result in sanctions.

4

1

1.

The parties were directed to meet and confer regarding the remaining issues related

2 to a protective order by the end of the day on June 11, 2019;
3

2.

Defendants shall file their motion for a protective order addressing any remaining

4 disputed issues by 5:00 PM on June 13, 2019;
5

3.

Plaintiffs shall file an opposition by 5:00 PM on June 18, 2019;5 and

6

4.

Defendants shall file a reply by 5:00 PM on June 19, 2019.

7

The parties are advised that all issues must be fully briefed, as it is within the Court’s

8 discretion whether to hear oral argument on the motion. See E.D. Cal. L.R. 230(g). The parties
9 are referred to Local Rule 141.1 governing the issuance of protective orders. See E.D. Cal. L.R.
10 141.1.
11
12

IT IS SO ORDERED.

13 Dated:

June 12, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5

The Court provided Plaintiffs’ counsel until June 18, 2019, to file his opposition, to accommodate his schedule.

5

.