Garner v. State Farm Mutual Automobile Insurance Company

Filing 139

ORDER by Magistrate Judge Edward M. Chen Denying 97 Plaintiff's Motion to Compel. (emcsec, COURT STAFF) (Filed on 12/19/2008)

1 2 3 4 5 6 7 8 9 10 v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. ___________________________________/ ARNESHA M. GARNER, Plaintiff, ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (Docket No. 97) No. C-08-1365 CW (EMC) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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Having considered the parties' briefs and accompanying submissions, the oral argument of counsel, and all other evidence of record, the Court hereby DENIES Plaintiff's motion to compel. I. A. DISCUSSION

Documents in State Farm's Possession, Custody, or Control Ms. Garner contends that documents held by third parties Audatex and Mitchell are within

the legal control of State Farm and therefore must be produced by State Farm. Ms. Garner, however, has offered no evidence which establishes that State Farm has either (1) the legal right to obtain documents from Audatex or Mitchell on demand (other than those documents specifically prepared for State Farm) or (2) the practical ability to obtain documents from either third party upon demand. See Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 519 (D. Colo. 2003). For example, Ms. Garner has not offered any evidence that, pursuant to a contract or retainer agreement with State Farm, Audatex or Mitchell gave State Farm the right to obtain all documents from Audatex or Mitchell's files.

1 2 3 4 5 6 7 8 9 10 denied. B.

Accordingly, Ms. Garner's motion to compel documents held by Audatex and Mitchell is

Documents in State Farm's Counsel's Possession State Farm has represented that it has produced or withheld on the basis of privilege (as

indicated in a privilege log) all responsive documents related to the PIFC litigation. In addition, State Farm has represented that, since the enactment of the regulation at issue in 2006, it has not been involved in any litigation in California regarding the regulation. Based on these representations, which State Farm has stated it would memorialize in a declaration submitted under penalty of perjury, the motion to compel document in State Farm's counsel's possession is also denied. The Court further notes that State Farm's counsel represented to the Court that it has either produced or included in a privilege log all responsive documents, even if they involve counsel. It is difficult to imagine that if other former counsel were involved, these names would not appear in any document within the direct possession of State Farm which were already produced or identified. Plaintiffs have not provided any evidence that documents from any former counsel are missing from the production. State Farm shall provide a declaration to Ms. Garner within a week of the date of this order. C. Definition of Audatex, CCC, and Mitchell Although this issue was not specifically raised in Ms. Garner's motion, the Court addresses it in the interest of moving the litigation forward. The Court notes, however, that had the parties engaged in a good faith meet and confer, this issue need not have been brought to the Court for judicial resolution. Both parties share responsibility for having failed to meet and confer adequately. Because State Farm has represented that it has produced not only documents involving these parties, but also their agents or employees, the issue is moot. Accordingly, the Court denies the motion to compel with respect to the definition of Audatex, CCC, and Mitchell. D. State Farm's Request for Sanctions State Farm's request for sanctions is denied. While all of the issues above should have been resolved through meet-and-confer discussions, neither party is blameless for the inadequacies of the discussions. The parties are forewarned that they risk being sanctioned should they fail to meet and

United States District Court

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For the Northern District of California

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confer in good faith and comprehensively in the future. The parties are also forewarned that written meet-and-confer exchanges are not sufficient. There must be either an in-person meet and confer or a meet and confer by telephone, and, given that the parties are all represented by local counsel, the meet and confer should be in person rather than by telephone, absent a showing of good cause. II. CONCLUSION

For the foregoing reasons, the motion to compel is denied. This order disposes of Docket No. 97.

IT IS SO ORDERED.

United States District Court

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For the Northern District of California

Dated: December 19, 2008 ________________________ EDWARD M. CHEN United States Magistrate Judge

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