Advanced Building & Fabrication, Inc., et al. v. California Highway Patrol, et al.

Filing 81

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/23/2017 GRANTING-IN-PART and DENYING-IN-PART 71 Motion to Compel. Parties are directed to the order for more details. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADVANCED BUILDING &
FABRICATION, INC., et al.,
Plaintiffs,

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ORDER
v.

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No. 2:13-cv-2380-MCE-CKD

CALIFORNIA HIGHWAY PATROL, et
al.,

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Defendants.

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Plaintiffs Advanced Building & Fabrication, Inc.’s and Robert Honan’s (collectively

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“plaintiffs”) motion to compel discovery and motion for sanctions against defendants California

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Highway Patrol and John Wilson (collectively “defendants”) came on regularly for hearing on

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March 22, 2017.1 ECF No. 71. Brendan Macaulay appeared for plaintiffs. William Cummings

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appeared for defendants. Upon review of the documents in support of the motion, upon hearing

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the arguments of counsel, upon review of the joint statement regarding the parties’ discovery

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disagreement, and good cause appearing therefor, THE COURT ORDERS AS FOLLOWS:

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Curtis Ayers is also named as a defendant to this action, but is not subject to plaintiffs’ present
motion.
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1. With regard to the parties’ dispute about plaintiffs’ Request for Production numbers 9

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and 27, defendants shall submit the entirety of defendant John Wilson’s California

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Highway Patrol personnel file to the court for in camera review by no later than 5:00

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p.m. on March 27, 2017. The copy of the file submitted to the court shall include

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Bates-stamp numbers for each page. Defendants may also submit an additional copy

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of John Wilson’s California Highway Patrol personnel file with redactions defendants’

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counsel believes are necessary to conceal sensitive, non-relevant information from

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plaintiffs were the court to order defendants to produce some or all of the documents

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contained in that file. If defendants provide the court with an additional redacted copy

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of the file, they shall label each page of that copy with the same Bate-stamp number

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pagination used for the un-redacted copy and clearly designate it as the copy

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containing redactions.
2. With regard to the parties’ dispute about plaintiffs’ Request for Production number

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128, plaintiffs’ motion is granted. Defendants shall produce discovery responsive to

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this request for production, and, in particular, discovery relating to the whereabouts of

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the officers transporting evidence from the scene of the May 30, 2012 raid referenced

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in the second amended complaint after that incident took place, to the extent such

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discovery is available, by no later than March 29, 2017.

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3. With regard to the parties’ dispute about Deposition Exhibit 14 that was produced in

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response to plaintiffs’ Request for Production number 32, defendants shall produce a

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copy of that document to plaintiffs that removes any redactions as to the names of the

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individuals that attended the pre-search operational planning meeting prior to the May

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30, 2012 raid referenced in the second amended complaint and any vehicle call codes

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contained in that document.2 Defendants shall produce a copy of this document to

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plaintiffs with such redactions removed by no later than March 29, 2017.

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As discussed during the hearing, defendants may maintain any redactions in this document as to
certain information that may pose a significant risk of revealing the sensitive personal information
regarding individual officers or other CHP personnel, such as vehicle license plate numbers. If
defendants are unsure whether they must remove a particular redaction, they may seek the court’s
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4. With regard to the parties’ dispute about plaintiffs’ Request for Production numbers

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67 and 129, plaintiffs’ motion to compel is denied to the extent defendants are able to

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certify through their counsel’s declaration discussed below that they have either

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already produced all responsive documents or that no responsive documents exist.

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However, to the extent defendants possess documents responsive to these requests that

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they have not already produced, they shall produce such documents by no later than

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March 29, 2017.

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5. With regard to the parties’ dispute about plaintiffs’ Request for Production numbers

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40, 41, 42, 98, 100, 102, 108, 114, 123, and 137, plaintiffs’ request is denied to the

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extent defendants are able to certify through their counsel’s declaration discussed

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below that they have either already produced all responsive documents or that no

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responsive documents exist. However, to the extent defendants possess documents

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responsive to these requests that they have not already produced, they shall produce

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such documents by no later than March 29, 2017.

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6. With regard to the parties’ dispute about plaintiffs’ Request for Production numbers

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118 and 136, plaintiffs’ motion is granted to the extent that defendants have not

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already produced all documents responsive to these requests. Specifically with regard

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to Request for Production number 136, the court finds that defendants have not waived

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any privileges they may claim with regard to documents responsive to that request and

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may withhold such documents pursuant to claims of privilege provided that the

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privileged nature of each withheld document is clearly articulated and there is a good

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faith reason for claiming each privilege asserted.

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7. By no later than March 29, 2017, defendants shall file with the court and serve on

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plaintiffs a declaration of defendants’ counsel regarding the accuracy and

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completeness of defendants’ responses and production with regard to each request for

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production at issue in plaintiffs’ present motion. Specifically, defendants’ counsel

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guidance on the matter.
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shall include in his declaration a certification that defendants have produced all non-

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privileged documents responsive to each of plaintiffs’ requests for production at issue

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in plaintiffs’ present motion, and, to the extent there are no documents responsive to a

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particular request, that no such documents currently exist. Furthermore, defendants’

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counsel shall also include, for each request at issue, a statement detailing the efforts he

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has undertaken to search for responsive documents. Finally, defendants’ counsel shall

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also explain whether any discovery responsive to any of plaintiffs’ requests at issue no

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longer exists because it was lost or destroyed, and, if so, how and why such discovery

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was lost or destroyed.

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8. By no later than March 29, 2017, defendants shall produce to plaintiffs a supplemental

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privilege log setting forth, document by document, the general nature of the withheld

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document, the identities and positions of the document’s author(s), the date on which

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the document was created, the identities and positions of all recipients of that

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document, and the specific reason(s) why that document is being withheld.

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9. Insofar as plaintiffs request the court’s leave to take further depositions of defendant

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Wilson and California Highway Patrol’s Rule 30(b)(6) witnesses, that request is

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denied without prejudice to renewal after defendants have completed the further

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production compelled by this order. After defendants have completed such

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production, counsel for the parties shall meet and confer to discuss whether further

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depositions are necessary in light of defendants’ further production. If the parties

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cannot reach an agreement on this matter, then plaintiffs may renew their request by

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scheduling an informal telephonic conference before the undersigned.

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10. With regard to plaintiffs’ proposed protective order, the court finds that such an order

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is warranted in this action, but does not adopt plaintiffs’ proposed order as of this time.

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Instead, counsel for the parties are ordered to meet and confer with one another by no

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later than March 27, 2017 regarding the possibility of submitting a stipulated

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protective order for the court’s approval. If the parties are unable to reach a

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stipulation as to a protective order after they have met and conferred, then plaintiffs
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may submit a proposed protective order for the court’s review, and the court will

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subsequently issue such an order with terms it deems necessary.

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11. Plaintiffs’ motion for sanctions is denied without prejudice to its renewal after

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defendants have produced the discovery compelled through this order, and provided

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that plaintiffs can provide further details regarding what relevant potential discovery

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was lost or destroyed through defendants’ actions and why those actions warrant the

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sanctions requested.

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Dated: March 23, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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