Dale v. Fernandez et al
Filing
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ORDER re 72 Joint Discovery Letter. Signed by Judge Beeler on 3/26/2012. (lblc1, COURT STAFF) (Filed on 3/26/2012)
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UNITED STATES DISTRICT COURT
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Northern District of California
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Oakland Division
DEXTER DALE,
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For the Northern District of California
UNITED STATES DISTRICT COURT
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No. C 05-01842 JSW (LB)
Plaintiff,
ORDER RE 3/8/2012 JOINT
DISCOVERY LETTER
v.
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L. FERNANDEZ, et al.,
[ECF No. 72]
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Defendants.
_____________________________________/
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I. INTRODUCTION
On March 3, 2012, Plaintiff Dexter Dale and Defendants Fernandez and Lough filed a joint
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discovery letter in which they detailed three disputes: (1) whether Defendants’ counsel agreed to
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accept service of a subpoena for deposition testimony and production of documents from the
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Correctional Training Facility in Soledad, California (“CTF”); (2) whether Defendants’ counsel had
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a duty to preserve documents related to CTF’s medical policies in 2003; and (3) whether
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Defendants’ counsel must review Defendants’ personnel records for documents responsive to
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Plaintiff’s requests for production of documents. 3/8/2012 Joint Discovery Letter, ECF No. 72 at 2.1
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On March 9, 2012, the district referred the above-captioned matter to the undersigned. Referral
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Order, ECF No. 73 at 1. Because the joint discovery letter comports with the undersigned’s
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procedures regarding discovery disputes, the court considers the letters and addresses the disputes.
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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
number at the top of the document, not the pages at the bottom.
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After reviewing the issues, the court finds in favor of Plaintiff.
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II. DISCUSSION
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A. Whether Defendants’ Counsel Agreed to Accept Service of a Subpoena for Deposition
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Testimony and Production of Documents from CTF
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The parties dispute whether Defendants’ counsel Kay Yu agreed to accept service of a subpoena
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for Rule 30(b)(6) deposition testimony and production of documents from CTF. 3/8/2012 Joint
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Discovery Letter, ECF No. 72 at 2.
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Plaintiff argues that, on January 25, 2012, Defendants’ counsel Kay Yu agreed to accept service
of a subpoena for the deposition of a Federal Rule of Civil Procedure 30(b)(6) (“Rule 30(b)(6)”)
upon receipt of the subpoena on January 25, Defendants’ counsel did not object to the request for
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For the Northern District of California
witness for CTF and the production of documents on February 24, 2012. Id. Plaintiff observes that,
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production of documents contained in the subpoena nor did she read the subpoena and the
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attachments until much later. Id. Defendant’s counsel also identified Dr. Friedricks as CTF’s Rule
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30(b)(6) witness and communicated that she would be representing him at the deposition. Id.
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Plaintiff argues that the court should follow the reasoning in McNally Tunneling Corp. v. City of
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Evanston, No. 00C6979, 2002 WL 59115, at *3 (N.D. Ill. Jan. 14, 2002), in which the court found
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that the plaintiff’s counsel had agreed to accept service of the supplemental subpoena where the
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counsel had accepted service of a deposition subpoena and was later served with a supplemental
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subpoena that called for the production of documents. Id. at 3.
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Plaintiff also notes that Defendants cite no authority for the proposition that the California
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Department of Corrections and Rehabilitation (“CDCR”) is immune from service of subpoenas in a
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civil case. Id. And Plaintiff discusses Allen v. Woodford, 544 F. Supp. 2d 1074 (E.D. Cal. 2008), in
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which the court held that “the Eleventh Amendment does not apply to preclude discovery from a
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State agency, which can only be obtained through the State’s custodians of records or from other
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employees having custody and control of the information or documents sought.” Id. at 3-4 (quoting
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Allen, 544 F. Supp. 2d at 1079; also citing Todd v. Lamarque, No. C03-3995 SBA (BZ), 2007 WL
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3151627, at *1 (N.D. Cal. Oct. 26, 2007) (denying motion to quash subpoena issued to CDCR for
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production of documents)).
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Defendants view McNally Tunneling Corp. as distinguishable because the subpoena in that case
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was served upon the attorney of a party to the action. Id. at 3. Defendant argues that, in McNally
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Tunneling Corp., the subpoena sought documents that the deponent, plaintiff’s expert witness, had
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relied upon in forming his expert opinion. Id. Here, CTF is not a party. Id.
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Defendants also maintain that the subpoena is invalid because CTF, as an agency of the CDCR
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enjoys sovereign immunity pursuant to the Eleventh Amendment. Id. According to Defendants, this
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immunity can only be specifically waived. Id. With reference to the deposition subpoena,
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Defendants’ counsel specifically waived this immunity in her e-mail but no such waiver was given
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with respect to the production of documents. Id.
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First, the court finds that Defendants’ counsel accepted service of the subpoena. Defendants
point out factual differences from McNally Tunneling Corp. but does not explain why these
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differences are material.
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Second, as to the sovereign immunity issue, the court is persuaded by the reasoning in Allen.
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The court in Allen observed that a third-party discovery request is not a suit, which are understood to
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be the prosecution, or pursuit, of some claim, demand, or request. 544 F. Supp. 2d at 1078. The
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Allen court also noted that the sovereign immunity of states prohibits plaintiffs from bringing suits
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where the judgment sought would expend itself on the public treasury or domain or interfere with
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the public administration. Id. Following the reasoning in Allen, the court holds that CTF may not
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refuse to respond to Plaintiff’s subpoena for the production of documents based on an assertion of
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sovereign immunity.
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B. Whether Defendants’ Counsel had a Duty to Preserve Memos and Policies Regarding
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Medical Care at CTF in 2003.
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The parties also dispute whether Defendants’ counsel had a duty to preserve memos and policies
regarding medical care at CTF in 2003. 3/8/2012 Joint Discovery Letter, ECF No. 72 at 4.
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On March 6, Defendants’ counsel Plaintiff that memos and policies regarding medical care at
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CTF in 2003 had been destroyed pursuant to CDCR’s five year document retention policy. 3/8/2012
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Joint Discovery Letter, ECF No. 72 at 4.
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Plaintiff argues that Defendants’ counsel had a duty to preserve those documents – even absent a
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discovery request for them – because they were highly relevant to Plaintiff’s claims, which were
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first filed in 2003, several years before the documents would have been destroyed pursuant to
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CDCR’s document retention policies. Id. Plaintiff notes that his original complaint characterized
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Defendants’ conduct as negligent. Id. at n.1.
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Defendants argue that Plaintiff could have made a specific request to CDCR to retain the
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relevant memos and policies but did not do so. Id. Defendants also argue that the memos and
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policies did not become relevant to this action until Plaintiff amended his complaint this year
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because a section 1983 claim does not need or require the discovery that Plaintiff is seeking
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presently, as such a claim only requires the factual circumstances and the state of mind of the
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Here, it is unclear what is actually at issue. If Plaintiff intends to seek sanctions for spoliation
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defendant. Id.
(as is indicated in the joint letter), he must follow the procedures set forth in this district’s local
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rules. See N.D. Cal. Civ. L. R. 7-8.
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To the extent that the parties are seeking guidance for the future, the court first notes that a
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failure to comply with a government policy generally cannot, by itself, be used to establish a
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constitutional violation. See generally United States v. Goodwin, 57 F.3d 815, 818 (9th Cir. 1995)
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(holding “[t]he failure of the AUSA to comply with internal department policy does not, without
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more, establish a deprivation of [the defendant's] constitutional rights.”). But, this does not mean
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that the policies might not be relevant and probative. See Cotton v. City of Eureka, Cal., No. C
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08-04386 SBA, 2010 WL 5154945, at *18-*19 (N.D. Cal. Dec. 14, 2010) (discussing the admission
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of government policies in a section 1983 deliberate indifference case). And, in this case, the policies
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and memos might help Plaintiff establish that Defendants were aware that a substantial risk of
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serious harm existed.
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Additionally, as the parties seem to acknowledge, after Plaintiff put Defendant on notice of his
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(potential) negligence claims, the policies’ relevance is clear. For example, in a related context, the
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California Supreme Court held that “the provisions of the CHP Officer Safety Manual may not
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properly be viewed as establishing the applicable standard of care, but they may be considered by
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the trier of fact in determining whether or not an officer was negligent in a particular case. ” Lugtu
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v. California Highway Patrol, 26 Cal.4th 703, 720 (Cal. 2001). This principle applies to the instant
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case with regard to the relevance of the policies regarding medical care at CTF.
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C. Whether Defendants’ Counsel Must Review Defendants’ Personnel Files for Responsive
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Information
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Finally, the parties disagree about whether Defendants’ counsel must review Defendants’
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personnel files for responsive information and produce anything relevant. 3/8/2012 Joint Discovery
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Letter, ECF No. 72 at 5.
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Plaintiff’s Requests for Production Numbers 13 and 15 seek information that may be
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contained, at least in part, in Defendants’ personnel files regarding complaints filed against
has not reviewed Defendants’ personnel files pursuant to Plaintiff’s discovery requests and refuses
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Defendants by other inmates and any investigations into those complaints. Id. Defendants’ counsel
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to do so. Id. Defendants argue that their counsel does not need to search the personnel files because
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they have stated in their interrogatories that they have never been disciplined and, according to
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Defendants’ counsel’s belief based on her experience in another case that involved employees at a
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different prison, the personnel files would only contain complaints that resulted in disciplinary
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action. Id.
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Plaintiff counters that there is no privacy protection that shields all personnel files from
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discovery and that he is not convinced that the types of documents kept in the personnel file of an
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employee at Salinas Valley Prison are the same as the types of documents retained in the files of
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employees at CTF. Id.
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Defendants’ counsel must review the files. Defendants do not argue that it is burdensome, make
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no showing that it is privileged, and do not dispute that the information sought is relevant.
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Moreover, Defendants provide no facts, law, or analysis that suggests that CTF and Salinas Valley
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Prison maintain their files in the same fashion (and that would not alter the court’s analysis anyway).
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III. CONCLUSION
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For the foregoing reasons, the court FINDS that (1) Defendants’ counsel agreed to accept
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service of a subpoena for deposition testimony and production of documents from CTF; (2)
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Defendants’ counsel had a duty to preserve documents related to CTF’s medical policies in 2003;
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and (3) Defendants’ counsel must review Defendants’ personnel records for documents responsive
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to Plaintiff’s requests for production of documents.
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This disposes of ECF No. 72.
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IT IS SO ORDERED.
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Dated: March 26, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge
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For the Northern District of California
UNITED STATES DISTRICT COURT
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