Ashker et al v. Schwarzenegger et al

Filing 1396

Order by Magistrate Judge Robert M. Illman granting in part and denying in part [1388-3] Discovery Letter Brief, granting [1390-3, 1392] Discovery Letter Brief. (rmilc2S, COURT STAFF) (Filed on 11/12/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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TODD ASHKER, et al.,

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Plaintiffs,
v.

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United States District Court
Northern District of California

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MATHEW CATE, et al.,
Defendants.

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Case No. 09-cv-05796-CW (RMI)
ORDER RE: THE PARTIES’ JOINTLY
FILED DISCOVERY DISPUTE
LETTER BRIEFS
Re: Dkt. Nos. 1388-3, 1390-3, 1392

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Now pending before the court are two jointly filed letter briefs setting forth a number of

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discovery disputes relating to the scope of discovery that will be afforded to support Plaintiffs’

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forthcoming retaliation motion relating to an individual Plaintiff’s placement in the Restrictive

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Custody General Population (“RCGP”) unit. For good cause shown, the court issues the following

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rulings.

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The first letter brief (dkt. 1388-3 *SEALED*) sets forth a dispute about certain

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documentation (in the form of seven autobiographies) that Plaintiffs seek as a substitute for some

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audio recordings which the court had previously ordered to be produced but which are unavailable

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due to having been destroyed. Id. at 2-3. Because Defendants have destroyed the audio recordings

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in question, Plaintiffs propose to select seven autobiographies as a substitute for the evidence that

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the recordings would have likely contained, and contend that the evidence in these autobiographies

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would be potentially relevant to the question of whether or not Defendants had any legitimate

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safety concerns that underpinned their decision to house that Plaintiff in the RCGP unit. See id. at

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3. Having considered the arguments in support of and in opposition to the relief sought, the court

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finds that for good cause shown, Plaintiffs’ request to compel the production of seven

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autobiographies of their choice is GRANTED.
The second letter brief (dkt. 1390-3 *SEALED*) presents a dispute wherein Plaintiffs seek

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an order compelling Defendants to identify two potential witnesses, making those witnesses (and

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two others that are already known to Plaintiffs) available for depositions, and to provide certain

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related documents. Id. at 1. Here, Plaintiffs seek additional discovery in order to address certain

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facts that have emerged as a result of the original discovery that this court had previously ordered.

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Id. at 2. The additional discovery which Plaintiffs seek can be sub-divided into four categories.

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First, Plaintiffs seek an order compelling Defendants to identify a particular lieutenant that
the parties believe spoke with the previous secretary of the CDCR (Mr. Ralph Diaz) about this

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Plaintiff’s placement and retention in the RCGP. Id. at 2. Specifically, Plaintiffs would like this

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United States District Court
Northern District of California

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person to be identified and made available for a deposition. Id. Defendants contend that despite a

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diligent search, they have been unable to identify any such person; and further, that Plaintiffs have

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already deposed Mr. Diaz, who was likewise unable to identify the lieutenant in question. Id. at 6-

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7. Plaintiffs refuse to accept this answer and contend that it is “implausible” that Defendants

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cannot identify this person and that “the only plausible inference is that no such person existed.”

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Id. at 3. Thus, Plaintiffs appear to suggest that the court should force Defendants to admit that

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there was in fact no such person, or in the alternative, for the court to simply proclaim “that it be

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taken as established for purposes of this action that there was no such person . . .” Id. To the extent

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that Plaintiffs ask the court to force Defendants to admit, here and now, that there was in fact no

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such person, that request is DENIED. To the extent that Plaintiffs ask the undersigned to decide

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now whether something has been established for the purposes of a forthcoming retaliation motion,

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that request is DENIED as premature.

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Next, Plaintiffs learned during a deposition previously ordered by the court that a member

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of CDCR’s Classification Services Unit (“CSU”) may have intervened in that witness’s

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investigation, but whose name the witness could not recall. Id. at 4. Consequently, Plaintiffs seek

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an order directing Defendants to identify that person and to make them available for a deposition,

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as well as producing “any emails or notes the person sent, received, or took in regard to or

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referencing” the Plaintiff in question. Id. While Defendants respond that this request is
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“cumulative, unduly burdensome, harassing, and irrelevant,” their arguments are unpersuasive.

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Accordingly, Plaintiffs’ requests in regard to the identification and deposition of this CSU staff

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member, along with the associated request for document production, are GRANTED.
Third, Plaintiffs seek to compel the deposition of the CSU correctional counselor who

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drafted the decision of the Departmental Review Board (“DRB”) relating to the RCGP placement

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of the Plaintiff in question, along with the production of any emails sent or received by that

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person, or any notes taken by that person, relating to or referencing the Plaintiff in question. Id. at

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5. Given that one of the issues to be determined in the adjudication of the forthcoming retaliation

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motion is whether or not Defendants had any legitimate safety concerns regarding that Plaintiff’s
placement or retention in the RCGP unit, Defendants themselves show the relevance of this

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United States District Court
Northern District of California

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particular discovery request when they submit that this particular witness’s role in the DRB

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decision “was limited to assisting with evaluating potential safety information and inputting the

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information into the draft document . . .” Id. at 9. Accordingly, Defendants’ objections that this

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request is “overly broad in scope, unduly burdensome, and harassing,” are unpersuasive, and

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Plaintiffs’ requests to compel this deposition and for the production of the attendant documents are

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GRANTED.

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Finally, Plaintiffs also seek to depose a certain CDCR facility’s warden, along with

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requesting the production of any emails sent or received by that person, as well as any notes taken

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or kept by that person that relate to or reference the Plaintiff in question. Id. at 2, 3. Plaintiffs

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submit that this deposition and document production is necessary to reconcile the conflicting

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information that is at the heart of the mysterious and unidentified lieutenant about whom Mr. Diaz

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reportedly testified but who the CDCR is unable to identify or locate; Plaintiffs submit that this

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warden “is the only identifiable witness to Diaz’s alleged crucial conversation with the non-

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existent Lieutenant . . .” Id. Defendants respond that deposing this person “would not provide any

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further information [that would be] relevant or necessary for Plaintiffs to draft their [] motion.” Id.

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at 8. The court finds Defendants objections to be unpersuasive. Accordingly, Plaintiffs’ requests to

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depose this witness and to compel the production of the attendant documents are GRANTED.

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//
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IT IS SO ORDERED.
Dated: November 12, 2020

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ROBERT M. ILLMAN
United States Magistrate Judge

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United States District Court
Northern District of California

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