Dale v. Fernandez et al

Filing 80

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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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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