City and County of San Francisco et al v. United States Postal Service et al

Filing 349

***FILED IN ERROR, PLEASE DISREGARD*** ORDER on 252 MOTION to Compel PRIVILEGE LOG PLAINTIFF CITY AND COUNTY OF SAN FRANCISCO PROMISED TO PRODUCE AND FOR LIMITED REOPENING OF DISCOVERY IF NECESSARY filed by United States Postal Service, signed by Judge Elizabeth D Laporte on 10/17/2011. (kns, COURT STAFF) (Filed on 10/17/2011) Modified on 10/17/2011 (kns, COURT STAFF).

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Case3:09-cv-01964-RS Document252-1 1 2 3 4 Filed08/29/11 Page1 of 8 MELINDA HAAG (CABN 132612) United States Attorney JOANN M. SWANSON (CABN 88143) Chief, Civil Division JONATHAN U. LEE (CABN 148792) THOMAS R. GREEN (CABN 203480) VICTORIA CARRADERO (CABN 217885) Assistant United States Attorneys 5 6 7 8 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Telephone: (415) 436-7314 Facsimile: (415) 436-6748 jonathan.lee@usdoj.gov thomas.green@usdoj.gov victoria.carradero@usdoj.gov 9 Attorneys for Federal Defendant 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 CITY AND COUNTY OF SAN FRANCISCO, et al. Plaintiffs, 15 v. 16 17 UNITED STATES POSTAL SERVICE, 18 Defendant. 19 20 21 22 23 24 25 26 27 28 No. C 09-1964 RS (EDL) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV-09-1964 RS (EDL) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL PRIVILEGE LOG PLAINTIFF CITY AND COUNTY OF SAN FRANCISCO PROMISED TO PRODUCE AND FOR LIMITED REOPENING OF DISCOVERY IF NECESSARY Date: Time: Court: Judge: October 11, 2011 9:00 a.m. Courtroom F, 15th Floor Honorable Elizabeth D. Laporte Case3:09-cv-01964-RS Document252-1 MEMORANDUM OF POINTS AND AUTHORITIES 1 2 Filed08/29/11 Page2 of 8 I. 3 INTRODUCTION The Postal Service reluctantly brings this motion to compel a privilege log that plaintiff 4 City and County of San Francisco has promised to produce since May 2011. In an attempt to 5 avoid having to bring any further motions relating to discovery before this Court, the U.S. 6 Attorney's Office sought plaintiff's compliance with its unambiguous promises to provide the 7 privilege log. Those assurances were provided in writing in June and July, 2011. In a July 15th 8 email, plaintiffs' counsel stated the privilege log would be provided the following week. When it 9 10 11 was not, and the U.S. Attorney's Office attempted to seek plaintiffs' counsel compliance with their previous assurances, the log was not forthcoming. The U.S. Attorney's Office has concluded that the privilege log will not be provided informally, despite plaintiffs' assurances to 12 the contrary, and that intervention by the Court is necessary to obtain the City's compliance with 13 its previously stated promises. There is no way the privilege log can be assessed for its adequacy 14 when it has not been provided, after four months of assurances it would be. The documents that 15 16 17 18 19 are the subject of the overdue log go to a key issue in this case, namely whether SRO hotels are hotels or apartments. The motion should be granted as argued below and requested in the proposed order. II. FACTUAL BACKGROUND 20 According to their complaint, plaintiffs allege constitutional violations stemming from 21 the United States Postal Service's 2008 decision regarding the method of mail delivery used at 22 SRO hotels in San Francisco. Plaintiffs claim that the SRO hotels are "apartments," based on 23 their reading of a Postal Service regulation. The parties dispute whether plaintiffs' interpretation 24 of that regulation as well as whether plaintiffs can state a constitutional claim based on a Postal 25 Service regulation. 26 During discovery, the Postal Service requested production of the files the City maintains 27 for each of the approximately 500 properties the City contends is an SRO hotel. Each property 28 owner is required to submit annual reports concerning the use of the rooms in the hotel. Those No. C 09-1964 RS (EDL) 1 Case3:09-cv-01964-RS Document252-1 Filed08/29/11 Page3 of 8 1 annual reports and other documents collected by the City are kept in a file at the Department of 2 Building Inspection. Lee Declaration at ¶¶ 2-3. 3 After months of delay, rather than produce the files, the City said it would provide access 4 to the files. The City claimed the files would be made available only after a privilege review had 5 been conducted. The U.S. Attorney's Office informed the City that the files appeared to be 6 public documents subject to the City's Sunshine Ordinance. The City insisted, however, that no 7 files would be made available until a privilege review had been conducted. Lee Decl. ¶ 4. 8 9 10 11 The first review did not occur until March 2011 because of the City's stated need to conduct a privilege review. Altogether, the City provided access to approximately 55 of the files. The files were reviewed on four days: March 14, 2011, June 8, 9 and 20, 2011. Attorneys and staff for the Postal Service went to an office of the Building Inspection Department to conduct 12 the file review and make copies on portable scanning equipment. The City would not make 13 copying equipment available, so the U.S. Attorney's Office had to transport portable scanners 14 each day there was a file review. Lee Decl. ¶¶ 5-7. 15 The City allowed access to five files at a time. The U.S. Attorney's Office requested the 16 17 18 19 files by address. A DBI staffer would then bring the files to a conference room where the review and any scanning took place. On at least one occasion, a file requested was not located by the DBI staff, so it could not be reviewed. Lee Decl. ¶ 8. 20 As mentioned above, the City claimed throughout that it would not provide access to any 21 of the 500 files until it had conducted a privilege review. During meet and confer discussions in 22 May 2011, the City agreed to provide a supplemental privilege log. The privilege log provided 23 by the City on May 24, 2011 did not contain any entries for those 15 files. Lee Decl. ¶ 9-10. When asked to provide a privilege log of the DBI files it had reviewed, the City stated 24 25 that it would do so. In an email dated June 17, 2011, plaintiffs' counsel said a privilege log 26 would be provided (emphasis added). 27 /// 28 /// No. C 09-1964 RS (EDL) 2 Case3:09-cv-01964-RS Document252-1 Filed08/29/11 Page4 of 8 1 Jonathan, 2 I write to confirm that the DBI space has been reserved for you on Monday, June 20 at 2pm and the files you requested will be available. Please note that this is the only day that this space will 3 4 5 6 7 be made available. We will provide a privilege log of the documents withheld. Thanks, Kelly 8 Lee Decl, Exh. C. Defendant's counsel waited for the privilege log. When a month passed and 9 there was no privilege log, counsel asked for confirmation that it would be provided. In an email 10 dated July 15, 2011, plaintiffs' counsel said a privilege log would be provided in a few days 11 (emphasis added): 12 Jonathan, 13 1 - We will have the DBI privilege log to you early next week. 14 2 - We will send you the information relating to the selected blocks from the Court's May 18th order today. 15 18 3 - Not sure I understand your request. We are not aware of deficiencies in Plaintiffs' existing privilege log, or any efforts prior to the now-passed deadline for filing discovery motions, other than Defendant's desire to have a log updated with any new entries based on the DBI files your office recently selected (which we're going to provide next week). 19 Best, 20 Mike 16 17 21 22 23 24 Lee Decl. Exh. D. Again, the log was not forthcoming. On August 17, 2011, in a meet and confer discussion with Deputy City Attorney Tara Steeley, defendant's counsel asked for an update on the status of the overdue privilege log. Ms. Steeley did not know and suggested counsel contact the other plaintiffs' counsel about it. The 25 U.S. Attorney's Office sent email messages to the rest of the plaintiffs' attorneys requesting 26 production of the log or at least a status update. Over a week later, one of the plaintiffs' attorneys 27 28 Mr. Markman responded with a statement he was "looking into it." Lee Decl. ¶¶ 15-16, Exh. E. No. C 09-1964 RS (EDL) 3 Case3:09-cv-01964-RS Document252-1 1 Filed08/29/11 Page5 of 8 In addition, in the August 17, 2011, meet and confer discussion, the U.S. Attorney's 2 Office requested information from the City Attorney's Office about whether any litigation hold 3 had been issued to the pertinent City departments and employees. The City Attorney's Office 4 would not discuss the subject. Lee Decl. at ¶¶ 16-17. 5 III. 6 Plaintiffs may argue that the DBI files are irrelevant or of marginal relevance, in opposing ARGUMENT 7 this motion, as they have argued with respect to other motions. The argument should be 8 disregarded because plaintiffs assured the U.S. Attorney's Office the privilege log would be 9 10 11 provided. Moreover, the DBI files are relevant because they contain numerous documents confirming that SRO hotels are not apartments, but hotels. Lee Decl. ¶ 9, Exh. A ("The Most Common Questions Asked When Filing The Annual Unit Usage Report," Question 5 "What is 12 the difference between a residential guest room, tourist guest room, and an apartment unit?"). 13 This document is in a 1998 guide the City provided to SRO hotel owners. In the response to 14 question #5 on the document, the City distinguished between residential or tourist rooms in an 15 16 17 18 SRO and an apartment, which is "a dwelling unit by definition and must have cooking facilities and a private bathroom." Id. Plaintiffs' constitutional claims boil down to an allegation that it is unreasonable for the Postal Service to treat the SRO hotels as hotels. The DBI documents show 19 the Postal Service has acted reasonably because the City itself deems SRO hotels to be hotels, not 20 apartments. 21 22 23 24 A. The Postal Service Has Met and Conferred in Good Faith to Resolve This Dispute But Those Efforts Have Not Been Successful. The U.S. Attorney's Office requested an updated privilege log from the City. The City's attorneys said the log would be provided, in written communications on June 17 and July 15. On August 17, when U.S. Attorney's Office raised this request again, the City Attorney's Office said 25 it did not know about the privilege log. The U.S. Attorney's Office made the request to the other 26 counsel for plaintiff City. They have not responded other than a vague statement that it is being 27 28 looked into. More than enough time has passed for the City to have fulfilled its stated promise. No. C 09-1964 RS (EDL) 4 Case3:09-cv-01964-RS Document252-1 1 B. Filed08/29/11 Page6 of 8 Plaintiff Must Comply With The Court's Standing Order and Its Own Unambiguous Promises to Provide the Privilege Log. 2 3 4 5 6 7 8 9 10 11 12 There is no dispute that this Court's Standing Order at paragraph 5 instructs parties on the requirements of privilege logs. That order states: 5. Privilege logs. If a party withholds information that is responsive to a discovery request, and is otherwise discoverable under the Federal Rules of Civil Procedure, by claiming that it is privileged, or protected from discovery under the attorney work product doctrine or any other protective doctrine (including, but not limited to, privacy rights), that party shall prepare a “privilege log” (Fed. R. Civ. P. 26(b)(5)) setting forth the privilege relied upon and specifying separately for each document or for each category of similarly situated documents: a. The name and job title or capacity of the author; b. The name and job title or capacity of each recipient; c. The date the document was prepared and, if different, the date(s) on which it was sent to or shared with persons other than its author(s); d. The title and description of the document; e. The subject matter addressed in the document; f. The purpose(s) for which it was prepared or communicated; and g. The specific basis for the claim that it is privileged. 13 14 15 16 The privilege log will be produced as quickly as possible, but no later than 14 days after the discovery responses are due, unless the parties stipulate or the Court orders otherwise in a particular case. Order Re Discovery Procedures (Dkt. No. 60) at ¶ 5. In this case, plaintiffs provided a log on May 24, 2011, but it has no entries for any of the 17 DBI file documents. Plaintiff City's complete privilege log was due as quickly as possible 18 following its review of the DBI files, but in no case any later than 14 days after that review. The 19 DBI file review started in March 2011 and continued to June 20, 2011, when the City's counsel 20 indicated no further files would be made available. When plaintiffs provided their supplemental 21 log, they had already conducted privilege reviews for approximately 15 DBI files, but none of 22 23 24 those documents was shown on the log. The Postal Service was willing to be flexible on the schedule for the City to provide the privilege log, but this has gone on long enough. Furthermore, the Postal Service is not in a position to assess or evaluate the claim of 25 privilege asserted by the City due to the absence of any log entries for the DBI files. The Postal 26 Service believes the files are public documents, subject to open government laws, not privileged 27 28 documents. However, until a privilege log is provided, the City's claim cannot be assessed. The Court should permit an in camera review of a subset of documents on the City's privilege log, No. C 09-1964 RS (EDL) 5 Case3:09-cv-01964-RS Document252-1 Filed08/29/11 Page7 of 8 1 once the City complies with the Court's order. There are entries on the existing log that are 2 deficient or questionable. For example, on page 6 of the City's log, there is a reference to a 3 "Retained Expert" but no name is provided. 4 C. 5 6 To the Extent It Is Required, The Court Should Re-Open Discovery on a Limited Basis to Rule On This Motion. The Postal Service is well aware of the case schedule closing discovery in May and that 7 discovery-related motions were due June 2, 2011. The U.S. Attorney's Office attempted to 8 resolve this issue without filing a motion to compel, consistent with the Court's directions to the 9 parties. Receiving assurances from plaintiffs' counsel that the log would be provided seemed to 10 be progress in the direction of informal solutions to discovery problems, but the log has never 11 materialized. 12 This court has "broad discretion" when making pretrial rulings.” Johnson v. Mammoth 13 Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992). In general, the pretrial scheduling order can 14 only be modified “upon a showing of good cause.” Id. at 608 (citing Fed. R. Civ. P. 16(b)). The 15 pretrial schedule may be modified “if it cannot reasonably be met despite the diligence of the 16 party seeking the extension.” Id. at 609. Of course, if the party seeking the modification “was not 17 diligent, the inquiry should end” and the motion to modify should not be granted. Id. 18 Here, the Postal Service sought to resolve this issue informally, heeding the instructions 19 of the Court. Any delay resulting from defendant's attempts to work the matter out with plaintiffs 20 and take plaintiffs at their word should not weigh against this request. To the extent an order 21 reopening discovery is required in a situation where a party has promised to provide a privilege 22 23 24 25 log but failed to do so, the Court should find good cause for a limited reopening of discovery to order the City and County of San Francisco to provide a complete privilege log. D. The Court Should Order The City to Disclose Any Litigation Hold Issued In Connection With This Case or Provide a Declaration Confirming There Was None. 26 As the plaintiff, the City had reason to believe it needed to issue a litigation hold 27 28 sometime in the approximate timeframe of January 2009, when according to the City Attorney's Office it began to investigate the basis for this lawsuit against the Postal Service, to May 2009, No. C 09-1964 RS (EDL) 6 Case3:09-cv-01964-RS Document252-1 Filed08/29/11 Page8 of 8 1 when the complaint was filed. Whether any litigation hold was issued, in 2009 or at any time, 2 related to this litigation is an unknown because the City won't discuss it. The Postal Service has 3 concerns that documents and electronically stored data which should have been preserved may 4 not have been preserved. For example, during the DBI file review, DBI staff informed the U.S. 5 Attorney's Office that a file requested for review was missing. Lee Decl. ¶ 8. During meet and 6 confer discussions in August 2011 about evidence of returned mail, the City Attorney's Office 7 informed the U.S. Attorney's Office that City workers would not always retain copies of mail 8 returned to the City. Lee Decl. ¶ 17. Whether the City requested the pertinent City departments 9 10 11 and employees to preserve any files of information, hard copy or electronic, is unknown, as is whether the City Attorney's Office conducted any searches by key word or otherwise of any of the pertinent electronic sources of data, when responding to discovery. If the City Attorney's 12 Office will not discuss this, the ability of the defendant to assess whether it was done or done 13 satisfactorily is hampered considerably. The Court should order the City to provide the actual 14 litigation hold notices it sent out or a declaration that either describes the communications or 15 16 17 18 confirms there were no such communications. IV. CONCLUSION The motion should be granted. 19 20 Respectfully submitted, 21 MELINDA HAAG United States Attorney 22 Dated: August 29, 2011 23 24 25 /s/ JONATHAN U. LEE THOMAS R. GREEN VICTORIA R. CARRADERO Assistant United States Attorneys Attorneys for Federal Defendant 26 27 28 No. C 09-1964 RS (EDL) 8

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