Allen, et al v. County of Lake, et al

Filing 176

ORDER by Magistrate Judge Donna M. Ryu granting in part 153 Defendants' Motion for Sanctions. (dmrlc1, COURT STAFF) (Filed on 10/12/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MONA ALLEN, et al., Case No. 14-cv-03934-TEH (DMR) Plaintiffs, 8 v. ORDER ON DEFENDANTS' MOTION FOR SANCTIONS 9 10 COUNTY OF LAKE, et al., Re: Dkt. No. 153 Defendants. United States District Court Northern District of California 11 12 On August 27, 2015, the parties submitted a joint letter brief regarding Defendants’ motion 13 to compel responses to discovery. [Docket No. 137 (Joint Letter).] The court conducted a hearing 14 on October 8, 2015, and granted Defendants leave to file a motion for sanctions for discovery 15 misconduct, which Defendants timely filed. [Docket Nos. 143, 153.] Shortly before the March 10, 2016 hearing on sanctions, Plaintiffs filed an ex parte sealed 16 17 declaration describing Plaintiffs’ counsel’s medical condition in 2015. [Docket No. 166-3.] At 18 the hearing, Plaintiffs asked the court to consider the evidence ex parte as a mitigating factor in 19 connection with Defendants’ request for sanctions. The court ordered the parties to submit 20 supplemental briefing on Plaintiffs’ request. [Docket Nos. 171, 173, 174.] The court also ordered 21 Defendants to submit evidence supporting the amount of attorneys’ fees requested as a sanction. 22 [Docket No. 175.] For the following reasons, Defendants’ motion for sanctions is granted in part. 23 24 25 I. BACKGROUND In this action, Plaintiffs Mona Allen, Carl Ray Harris, Jonathan Holt, Shaun Jones, Scott 26 Oathout, Elvin Sikes, Nina Faye Sikes, Nicole Van Schaick, Preston Warren, and Hal Muskat sue 27 Defendants County of Lake (“Lake County”) and nine individual Defendants, challenging the 28 warrantless abatement of marijuana on property pursuant to Lake County Ordinance No. 2997. Plaintiffs, who are medical marijuana patients, allege that Defendants conducted warrantless 2 searches of their residential properties without notice and seized their marijuana plants in violation 3 of their constitutional rights. [Docket No. 111 (3d Am. Compl.).] On March 24, 2015, 4 Defendants served all Plaintiffs with interrogatories and requests for production of documents 5 (“RFPs”). [Docket No. 153-1 (Whitefleet Decl., Nov. 9, 2015) ¶ 2.)] Although Plaintiffs’ 6 responses were timely, Defendants considered them to be deficient. Defense counsel 7 unsuccessfully attempted to meet and confer regarding the deficiencies, (id. at ¶¶ 3-8), and on July 8 28, 2015, Defendants filed a motion to compel further responses, and also requested monetary 9 sanctions. [Docket No. 120.] On July 28, 2015, the Honorable Thelton E. Henderson referred the 10 case to the undersigned for all discovery and ordered the parties to meet and confer. [Docket No. 11 United States District Court Northern District of California 1 122.] On July 29, 2015, the undersigned issued an order denying the motion to compel without 12 prejudice, and directing the parties to meet and confer prior to filing a joint discovery letter. The 13 order noted that Defendants could seek leave to file a motion for sanctions after the court ruled on 14 the substantive discovery disputes. [Docket No. 124.] 15 At the August 4, 2015 case management conference, Judge Henderson ordered Plaintiffs to 16 file, (i.e., not just serve), amended responses to Defendants’ discovery by August 13, 2015. 17 [Docket No. 128 (Aug. 4, 2015 Minute Entry).] On August 13, 2015, Defendants filed a unilateral 18 discovery letter brief, asserting that Plaintiffs’ counsel had failed to respond to efforts to meet and 19 confer and participate in preparing a joint letter. [Docket No. 133 (Defs.’ Letter Brief).] The 20 letter also described deficiencies in Plaintiffs’ discovery responses. Defs.’ Letter Brief at 2-3; 21 Whitefleet Decl. ¶¶ 9-12. Plaintiffs filed a responsive unilateral letter, asserting that Defendants 22 “have failed to specifically identify what amended discovery responses they demand.” [Docket 23 No. 134.] 24 On August 19, 2015, the undersigned ordered the parties to meet and confer after service 25 of Plaintiffs’ amended responses, and to submit a joint letter regarding any outstanding disputes by 26 August 27, 2015. The court noted that “[a]ny failure to meet and confer in good faith and/or 27 take substantially justified positions may result in sanctions.” [Docket No. 136 (emphasis in 28 original).] 2 Plaintiffs did not file amended discovery responses by August 13, 2015, as ordered by 1 2 Judge Henderson.1 On August 27, 2015, the parties submitted a joint letter brief in which 3 Defendants represented that Plaintiffs had not served amended responses, notwithstanding Judge 4 Henderson’s order. [Docket No. 137.] According to Defendants, Plaintiffs had also failed to meet 5 and confer regarding the substantive issues with their discovery responses. Whitefleet Decl. ¶¶ 6 13-15. 7 At the October 8, 2015 hearing, the court identified significant deficiencies in Plaintiffs’ 8 discovery responses and granted Defendants leave to move for sanctions for Plaintiffs’ failure to 9 comply with court orders, as well as their failure to provide discovery responses that were substantially justified.2 This motion followed. 11 United States District Court Northern District of California 10 II. LEGAL STANDARD 12 Federal Rules of Civil Procedure 33 and 34 provide that a party must serve responses and 13 objections to interrogatories and RFPs within 30 days of service of the discovery. Fed. R. Civ. P. 14 33(b)(2), 34(b)(2). “Each interrogatory must, to the extent it is not objected to, be answered 15 separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3) (emphasis added). Rule 34 requires a party to produce or permit inspection of documents responsive to a 16 17 request for production when such documents are in the party’s “possession, custody, or control.” 18 Fed. R. Civ. P. 34(a)(1). A party has control of a document when it has “the legal right to obtain 19 documents upon demand.” In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999) (quotation 20 omitted). The requesting party “is entitled to individualized, complete responses to each of the 21 requests . . . , accompanied by production of each of the documents responsive to the request, 22 regardless of whether the documents have already been produced.” Louen v. Twedt, 236 F.R.D. 23 502, 505 (E.D. Cal. 2006). 24 25 26 1 Indeed, to date, Plaintiffs still have not complied with Judge Henderson’s order to file amended discovery responses. 2 27 28 The court also ordered the parties to meet and confer at defense counsel’s offices, to agree upon a deadline by which Plaintiffs would serve amended responses to discovery, and to file a letter with the court setting forth the agreements reached by the parties. [Docket No. 143.] The parties timely filed a letter setting forth their agreements. [Docket No. 146.] 3 Pursuant to Rule 37, a party may move for an order compelling responses to discovery. 1 2 Fed. R. Civ. P. 37(a)(3)(B). If the court grants the motion, it shall require the party whose conduct 3 necessitated the motion to pay the moving party’s reasonable expenses incurred in making the 4 motion, including attorneys’ fees, unless the opposing party’s response was substantially justified. 5 Fed. R. Civ. P. 37(a)(5)(A). Rule 37 also authorizes various sanctions, including attorneys’ fees, 6 for a party’s failure to obey a discovery order. Fed. R. Civ. P. 37(b)(2)(A), (C). Finally, Civil 7 Local Rule 37-1(a) provides that prior to filing a motion to compel further responses to discovery, 8 counsel must meet and confer to attempt to resolve discovery disputes. If counsel for the moving 9 party seeks to arrange such a conference and opposing counsel refuses or fails to confer, the court may impose an appropriate sanction, including attorneys’ fees caused by the refusal or failure to 11 United States District Court Northern District of California 10 confer. 12 III. DISCUSSION 13 A. Defendants’ Entitlement to Sanctions 14 Defendants’ sanctions motion is based on three grounds: 1) Plaintiffs’ failure to comply 15 with Judge Henderson’s August 4, 2015 order to file amended discovery responses by August 13, 16 2015; 2) Plaintiffs’ failure to comply with the court’s July 29, 2015 and August 19, 2015 orders to 17 meet and confer and thereafter submit joint letters; and 3) Plaintiffs’ failure to provide 18 substantially justified discovery responses. 19 As to the first basis, at the August 4, 2015 case management conference, Judge Henderson 20 ordered Plaintiffs to file amended responses to Defendants’ discovery by August 13, 2015. 21 [Docket No. 128.] Plaintiffs do not dispute that they have never filed amended responses, and in 22 their opposition, they do not offer any explanation for their failure to comply with Judge 23 Henderson’s order. Since Plaintiffs have not demonstrated that their failure to comply with Judge 24 Henderson’s August 4, 2015 discovery order was substantially justified, their conduct is subject to 25 sanctions. See Fed. R. Civ. P. 37(b)(2)(A), (C). 26 With respect to the second basis for sanctions, the undersigned twice ordered the parties to 27 meet and confer and to submit joint letters addressing any remaining disputes. [Docket Nos. 124, 28 136.] Defendants argue that Plaintiffs refused to meet and confer or otherwise participate in the 4 1 joint letter procedure in accordance with the July 29, 2015 order. Defendants also assert that 2 following the August 19, 2015 order, Plaintiffs refused to meet and confer about the substantive 3 issues with their discovery responses, claiming that other discovery disputes relieved them of the 4 obligation to amend their discovery responses. Mot. for Sanctions at 6-7. Defendants submit 5 ample evidence of their numerous unsuccessful attempts to meet and confer with Plaintiffs’ 6 counsel, including letters, telephone calls, and emails. Whitefleet Decl. ¶¶ 9-15; Exs. E-H. In 7 response, Plaintiffs argue that they were the ones who repeatedly requested to meet and confer, 8 and that “such meetings were held repeatedly before the filing of the motion to compel.” 9 According to Plaintiffs, they “have made every effort to work with defendants in ameliorating any discovery disputes, but their efforts have only met with contention or convenient excuses.” Pls.’ 11 United States District Court Northern District of California 10 Opp’n at 2. Although Plaintiffs make these sweeping statements, they offer no evidence to 12 support their contentions, and do not otherwise challenge or rebut Defendants’ evidence. 13 Plaintiffs’ repeated failures to meet and confer are therefore subject to sanctions. Finally, Defendants seek sanctions based upon the insufficiency of Plaintiffs’ discovery 14 15 responses. As discussed at the October 8, 2015 hearing, some of these responses were plainly 16 deficient. For example, several responses to interrogatories were incomplete and/or in draft form, 17 or were internally inconsistent with other responses.3 In response to RFP 23, which asked for 18 documents pertaining to any agreements with Plaintiffs’ landlords regarding cultivating marijuana 19 at the residences at issue, certain Plaintiffs simply responded “No.” Plaintiffs’ identical responses 20 to RFPs 1 and 4-11 also were insufficient, as they consisted of a “cut and paste” blanket list of 21 documents. It was not clear which documents were produced on behalf of which Plaintiffs, 22 because the documents themselves were not properly labeled, and the responses made no effort to 23 provide this information. The responses also did not indicate whether Plaintiffs’ responses to each 24 RFP were complete. Plaintiffs attempted to defend their responses by arguing that Defendants 25 26 27 28 3 For example, Interrogatory No. 1(e) asked Plaintiffs to state the full name of any spouse. Holt’s response stated ““Married; insert any previous spouses.” Interrogatory No. 3 asked Plaintiffs to identify the physical address of their residences at the time of the incident. Holt provided an address that was inconsistent with his other discovery responses. 5 1 could obtain the information through depositions. They also asserted that most of the documents 2 sought by Defendants were already in Defendants’ possession, custody, or control.4 These 3 arguments are unavailing. The fact that the opposing party may already possess some of the 4 requested information, or could obtain it through another discovery device, does not excuse a party 5 from providing complete, accurate, and thorough responses. Plaintiffs could have ameliorated the 6 situation by engaging in meaningful meet and confer sessions as ordered, and serving timely 7 amendments to their plainly deficient responses. Plaintiffs repeatedly failed to do so. The court 8 finds that Plaintiffs’ responses to the interrogatories and RFPs were not substantially justified, and 9 are thus subject to sanctions. B. The Amount of Sanctions 11 United States District Court Northern District of California 10 Defendants seek an award of $9,668.50 in sanctions, representing attorneys’ fees incurred 12 as a result of Plaintiffs’ discovery misconduct. Defendants submitted evidence of the attorneys’ 13 fees requested in the form of billing records. [Docket No. 175 (Whitefleet Decl., March 24, 2016 14 (2d Whitefleet Decl).] 5 The court determines reasonable attorneys’ fees according to the lodestar analysis, which 15 16 multiplies the number of hours reasonably expended on the matter by a reasonable hourly rate. 17 Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Jordan v. Multnomah Cty., 815 F.2d 1258, 1262 18 (9th Cir. 1987). The reasonable hourly rate depends on “the prevailing market rates in the relevant 19 community.” Blum v. Stenson, 465 U.S. 886, 896 (1984). Although the court presumes that the 20 lodestar represents a reasonable fee, Jordan, 815 F.2d at 1262, the court may adjust the award if 21 other factors make it unreasonable. See Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th 22 Cir. 1975). The court “should . . . exclude from the lodestar fee calculation any hours that were 23 24 25 26 27 28 4 In their opposition to Defendants’ motion for sanctions, Plaintiffs also argue that they are not required to bates-stamp documents produced in response to RFPs, citing Continental Insurance Co. v. Chase Manhattan Mortg. Corp., 59 Fed. Appx. 830 (7th Cir. 2003). The relevance of this argument is unclear, as Defendants did not raise the issue of Plaintiffs’ failure to bates-stamp documents in either their motion to compel or motion for sanctions. 5 Defendants explain in a supplemental declaration that the total sum of fees billed in connection with this dispute is actually $10,822.50, but that they are limiting their demand to the sum requested in the motion, which is $9,668.50. 2d Whitefleet Decl. ¶ 6. 6 1 not ‘reasonably expended,’ such as hours that are excessive, redundant, or otherwise unnecessary.” 2 Rodriguez v. Barrita, Inc., 53 F. Supp. 3d 1268, 1281 (N.D. Cal. 2014) (quoting Hensley, 461 U.S. 3 at 433-34). 4 Attorneys John Whitefleet and Jeffrey Clause seek hourly rates of $215 and $195, 5 respectively, for work necessitated by Plaintiffs’ discovery misconduct. Whitefleet has practiced 6 law for 14 years. Whitefleet Decl. ¶ 17. Clause has been admitted to practice law since 2014. 2d 7 Whitefleet Decl. ¶ 4. The court finds the requested rates are well within the range of reasonable 8 hourly rates for attorneys of comparable skill and experience litigating similar cases in the San 9 Francisco Bay Area. 10 Defendants seek attorneys’ fees incurred in connection with: 1) meeting and conferring United States District Court Northern District of California 11 regarding Plaintiffs’ deficient discovery responses; 2) preparing Defendants’ July 28, 2015 motion 12 to compel and subsequent joint discovery letters; and 3) preparing the present motion for 13 sanctions. The court has carefully reviewed Defendants’ billing records. As to the first two 14 categories, the court disallows time spent meeting and conferring prior to the filing of Defendants’ 15 July 28, 2015 motion to compel. Defendants were required to meet and confer with Plaintiffs 16 prior to moving to compel pursuant to Federal Rule of Civil Procedure 37(a)(1) and Local Rule 17 37-1(a). The court also disallows time spent drafting the July 28, 2015 motion to compel, which 18 the court denied without prejudice. Finally, the court disallows time spent meeting and conferring 19 on issues that were not raised in the parties’ August 13, 2015 and August 27, 2015 discovery letter 20 briefs. This includes the parties’ stipulation to dismiss the California Chapter of the National 21 Organization for the Reform of Marijuana Laws (“NORML”) as a plaintiff. The amount of 22 recoverable time is 18.8 hours at the hourly rate of $215, for a total of $4,042.00. 23 As to the preparation of the motion for sanctions, Defendants seek compensation for a total 24 of 26.9 hours, with 16.8 hours billed at the hourly rate of $195 and 10.1 hours billed at $215 per 25 hour, for a total of $5,447.50. The court does not find the hours spent to be “excessive, redundant, 26 or otherwise unnecessary,” Hensley, 461 U.S. at 434. Thus, the total amount of potential sanctions 27 for Plaintiffs’ discovery misconduct is $9,489.50. 28 7 C. Plaintiffs’ Counsel’s Medical Condition 1 As noted, prior to the hearing on this sanctions motion, Plaintiffs filed an ex parte 2 declaration under seal in which Plaintiffs’ counsel Joseph Elford described his medical condition 3 in 2015, and attached supporting evidence from three of his treating physicians. [Docket No. 1664 5 6 7 3 (under seal) (the “medical evidence”).] Plaintiffs ask the court to consider the medical evidence ex parte and in camera, and to take Elford’s medical condition into account as a mitigating factor in connection with Defendants’ request for sanctions. Specifically, Plaintiffs offer the evidence “to shed light on” Elford’s conduct in this litigation in 2015. [Docket No. 171 at 1.] 8 Defendants objected to Plaintiffs’ request that the court consider counsel’s medical 9 evidence ex parte. Following the hearing, the court ordered briefing on Plaintiffs’ request for ex 10 parte consideration (Docket No. 172), which the parties timely filed. [Docket Nos. 171, 173, 11 United States District Court Northern District of California 174.] 12 Plaintiffs do not cite any authority addressing these circumstances, i.e., whether a court 13 may consider sensitive information ex parte and in camera as evidence of a mitigating factor in 14 connection with a motion for sanctions. Instead, they rely primarily on In re John Doe, Inc., 13 F. 15 3d 633 (2d Cir. 1994), in which the Second Circuit reviewed the use of an in camera ex parte 16 procedure by which a district court evaluated the basis for invocation of the crime-fraud exception 17 to the attorney client privilege in connection with a grand jury proceeding. The court reiterated its 18 prior holding that “where an in camera submission is the only way to resolve an issue without 19 compromising a legitimate need to preserve the secrecy of the grand jury, it is an appropriate 20 21 22 23 procedure.” Id. at 636 (citing In re John Doe Corp., 675 F.2d 482, 490 (2d Cir. 1982)). Plaintiffs acknowledge that the case is distinguishable, but argue that the Second Circuit’s holding stands for the proposition that “in camera review is . . . appropriate where, as here, the need for confidentiality outweighs the need for disclosure.” [Docket No. 174 at 3 (citing In re John Doe 24 Corp., 675 F.2d at 490).] 25 26 27 Defendants oppose Plaintiffs’ request for ex parte consideration of the medical evidence. They argue that they are “still left in the dark as to the contents of what counsel is asking the court to consider,” and are unable to evaluate or challenge any of the statements made in counsel’s 28 8 1 declaration. [Docket No. 173 at 4.] Nonetheless, Defendants state that they “are certainly . . . 2 cognizant that physical or mental conditions may cause a delay[] in proceedings or day-to-day 3 issues, and do not desire to be insensitive to delicate issues.” Id. at 5. They note, however, that 4 they were forced to seek court intervention with respect to discovery from Plaintiffs, causing them 5 to incur unnecessary expenses. Id. 6 The information Plaintiffs ask the court to consider ex parte consists of sensitive, highly 7 personal medical information related to Elford’s medical condition in 2015. The court can decide 8 the matter without engaging in a detailed analysis of Elford’s private medical issues. To the 9 limited extent that the court relies upon information in the Elford declaration, the court finds that such information should not have been provided ex parte, and is not subject to sealing. 11 United States District Court Northern District of California 10 Defendants thus will not be prejudiced by their inability to learn sensitive medical details upon 12 which the court does not rely. The court therefore finds that it is appropriate to consider Elford’s 13 declaration to determine whether his medical condition in 2015 mitigates against the imposition of 14 sanctions. 15 In relevant part, Plaintiffs contend that Elford’s medical condition was undiagnosed and 16 untreated from approximately Spring 2015 through December 2015, overlapping with the 17 discovery misconduct described above. According to Elford, his medical condition impacted his 18 professional conduct during that time, and Plaintiffs ask the court to conclude that the symptoms 19 of Elford’s medical condition contributed to the discovery misconduct at issue in this motion. 20 Elford states that he is under the care of a physician and has taken steps to ensure that his medical 21 condition does not interfere with his professional conduct, including associating in co-counsel in 22 this litigation. [See Docket No. 164 (Notice of Association of Counsel).] 23 Rule 37 specifically contemplates situations where discovery sanctions may be warranted 24 but “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(iii). 25 Reduced to its essentials, the sanctionable behavior in this case amounts to sloppy work and the 26 repeated failure to engage with opposing counsel in meaningful court-ordered meet and confer 27 sessions. To be sure, this behavior is completely unacceptable. But the conduct did not result in 28 significant prejudice to Defendants other than to force them to expend more resources than 9 1 warranted to obtain basic discovery. The court recognizes that Elford’s medical condition 2 contributed to the sanctionable behavior, but is also cognizant of the fact that Defendants were 3 unnecessarily forced to seek court intervention and to incur unnecessary legal expenses. The court 4 also takes note of Elford’s statements that he has attended to his medical needs, and has taken 5 meaningful steps to make sure it does not interfere with his professional responsibilities. On 6 balance, the court finds that a sanction of $2,500 is justified in these circumstances. The sanctions 7 shall be paid by Plaintiffs and/or their counsel to Defendants within 45 days of the date of this 8 order. 9 IV. 10 CONCLUSION For the foregoing reasons, the court grants in part Defendants’ motion for sanctions and awards attorneys’ fees in the amount of $2,500.00, which must be paid within 45 days of the date 12 of this order. Upon pain of further sanctions, Plaintiffs shall also immediately comply with Judge 13 Henderson’s August 4, 2015 order to file amended discovery responses. 14 S RT 19 ER 21 22 23 24 25 26 27 28 10 R NIA M. Ryu H 20 onna Judge D FO NO 18 DERED O OR ______________________________________ IT IS S Donna M. Ryu United States Magistrate Judge LI 17 Dated: October 12, 2016 A 16 IT IS SO ORDERED. UNIT ED 15 S DISTRICT TE C TA RT U O United States District Court Northern District of California 11 N D IS T IC T R OF C

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