Ashker et al v. Schwarzenegger et al

Filing 1516

ORDER RESOLVING DISCOVERY DISPUTES; SETTING A DISCOVERY CUT-OFF DATE; AND, ESTABLISHING A BRIEFING SCHEDULE FOR THE RETALIATION MOTION. Signed by Judge Robert M. Illman on 08/30/2021. (rmilc2S, COURT STAFF) (Filed on 8/30/2021)

Case 4:09-cv-05796-CW Document 1516 Filed 08/30/21 Page 1 of 6

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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: DISCOVERY DISPUTES,
DISCOVERY CUT-OFF DATE, AND
SETTING A BRIEFING SCHEDULE
Re: Dkt. Nos. 1513-3 *SEALED*

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Now pending before the court is a jointly filed letter brief (dkt. 1513-3 *SEALED*)

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through which the parties dispute the propriety of certain discovery sought by Plaintiffs in support

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of their forthcoming motion that will argue that one particular class member’s housing placement

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is the product of retaliation for participation in this action rather than being guided by legitimate

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penological concerns for individual or institutional security. The issues in dispute are relatively

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straightforward, but their resolution could nevertheless benefit from some context.1
BACKGROUND

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By way of background, a few basic facts about this case should be noted. This is a class

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action case that became the product of a comprehensive settlement agreement six years ago (see

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dkt. 424) which resulted in widespread reforms in the policies governing Defendants’ placement

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and retention of class members in security housing units. Thereafter, in January of 2019, Judge

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Wilken referred a discrete retaliation claim to be heard by the undersigned. See Order of January

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15, 2019 (dkt. 1118 *SEALED*) at 10. The retaliation claim was to be advanced, not by the entire

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Pursuant to Civil Local R. 7-1(b), the court finds that this matter is suitable for disposition without oral
argument.

Case 4:09-cv-05796-CW Document 1516 Filed 08/30/21 Page 2 of 6

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class, or even a number of class members, but by a single class member claiming that his

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placement in a particular housing unit was the product of Defendant’s retaliation against him for

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his participation in this case, and that any contentions about the individual’s safety and

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institutional security were merely pretext. When the retaliation matter was referred to the

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undersigned nearly three years ago, Judge Wilken ordered the production of certain discovery as

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such: “[i]f there are any new determinations or investigations conducted relating to [this class

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member’s] placement, Defendants are hereby ORDERED to produce such records to Plaintiffs’

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counsel within twenty-one days of this Order or within twenty-one days of when such document is

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created.” Id. This provision of Judge Wilken’s order creates a continuing obligation with which
the undersigned presumes that Defendants are in compliance – principally because the now-

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United States District Court
Northern District of California

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pending letter brief contains no complaints in that regard.

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Following this, Plaintiffs twice sought to significantly expand the scope of discovery

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underlying their forthcoming retaliation motion, and the undersigned granted the overwhelming

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majority of those requests for substantially expanded document production as well as the

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compelled depositions of various CDCR officials. See generally Order of August 9, 2019 (dkt.

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1203 *SEALED*); see also Order of November 12, 2020 (dkt. 1396). Further, in the 2019

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discovery order, the undersigned ordered the parties to “meet and confer in a good-faith effort to

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streamline the discovery process and, no later than Friday, August 30, 2019, submit a joint

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proposal regarding the timetable for completion of the discovery consistent with this order, as well

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as proposed dates for the subsequent briefing schedule for the retaliation motion.” Order of August

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9, 2019 (dkt. 1203 *SEALED*) at 8. No such joint proposal for a timetable to complete discovery,

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or a jointly proposed briefing schedule, was ever submitted by the Parties. Now, nearly three years

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has elapsed since Judge Wilken referred the retaliation motion to the undersigned and (as

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described below) Plaintiffs still seek more discovery and still contend that establishing a briefing

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schedule is premature. The undersigned disagrees and finds that the amount of time that has

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passed since the referral of the retaliation motion, during which the Parties seem to have been

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mired in a seemingly endless discovery process, is unreasonable. Therefore, the undersigned will

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herein fix an imminent cut-off date for the discovery process, and the undersigned will establish a
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firm briefing schedule for the retaliation motion.
DISCUSSION

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In November of 2020, the undersigned ordered certain depositions and certain document

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production in the nature of, “any emails sent or received by that person [to be deposed], as well as

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any notes taken or kept by that person that relate to or reference [the class member] in question.”

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Order of November 12, 2020 (dkt. 1396) at 3. Plaintiffs complain that notwithstanding this order,

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Defendants have only produced the emails and notes of the two pertinent CDCR employees that

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surround the class-member’s 2017 housing placement review, and Plaintiffs contend that “[i]t is

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undisputed that [a particular CDCR staff member] performed this role for each of [the classmember’s] subsequent DRB reviews as well . . .” Ltr. Br. (dkt. 1513-3 *SEALED*) at 2.

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United States District Court
Northern District of California

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Defendants contend that Plaintiffs are seeking an expansion of the scope of discovery previously

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ordered by the undersigned, and contend that acceding to Plaintiffs’ demands would be unduly

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burdensome. Id. at 7-8. Defendants proposed a production of such emails associated with the

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proposed deposition witnesses, the prison warden and the correctional officer, for the periods:

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“during March 2018, August 2019, and from April 1, 2021 through June 30, 2021 . . . [because]

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[t]hese periods surround [the class-member’s] housing reviews.” Id. at 7. Defendants note that

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they proposed this compromise to Plaintiffs but were rebuffed. Id. The undersigned finds this

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compromise to be reasonable. Accordingly, to the extent that Plaintiffs seek the production of

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emails or notes beyond the scope of Defendants’ compromise position described herein (to wit,

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email spanning 4 months on either side of each DRB review), that request is DENIED as overly

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broad, burdensome, and disproportional to the needs of the matter at hand, while Defendants’

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request to limit the scope of production for emails and notes to the time periods they have

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identified as being associated with the class-member’s housing placement determinations is

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GRANTED.

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Next, given that part of Defendants’ reasoning for refusing to transfer this class-member to

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other types of housing units is their concern that doing so would imperil the class-member by

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exposing him to the risk of violence from the associates and confederates of a certain prison gang,

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Plaintiffs have asked the undersigned to compel Defendants to inform Plaintiffs about the details
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of any prison units that are not currently housing affiliates and members of that prison gang –

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either so they can disclose this information to the class-member himself or (at least) to be able to

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make use of the information in the forthcoming retaliation motion. See Ltr. Br. (dkt. 1513-3

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*SEALED*) at 3-4. Plaintiffs’ justification for needing such information is dubious at best – they

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contend that the class member “is entitled to know which facilities did not house any [affiliates of

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a particular prison gang] as of the DRB’s most recent decision so he can demonstrate to Judge

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Wilken that, for at least those specific facilities, Defendants had no legitimate safety concerns

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about his placement.” Id. at 4 (emphasis in original). However, the undersigned finds this

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approach to be misguided. Plaintiffs seem to presume that this court can – by virtue of the
settlement agreement in this case – usurp the day-to-day management of California’s prison

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United States District Court
Northern District of California

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system by making housing decisions that are untethered to the strictures of the agreement itself.

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Or, to put it another way, Plaintiffs seem to be under the impression that this court can, in the

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abstract, simply overrule CDCR housing decisions whenever it sees fit. This approach is

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disagreeable because it seems to be oblivious of the mandate of Judge Wilken’s referral which

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makes it incumbent on Plaintiffs to prove retaliation, and confirming whether or not there are any

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members of a particular prison gang in one or another prison unit is of questionable relevance to

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that endeavor. Indeed, Plaintiffs’ seem to hope that this approach might yield a shaky and highly

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speculative sort of circumstantial evidence from which they hope to draw what the undersigned

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sees as an unreasonable inference, if even that. This is so because Plaintiffs’ approach turns a blind

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eye to the notion that it is well within the realm of imagination that if one prison gang wanted to

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visit harm or violence upon a particular person, they could quite easily arrange for the deed to be

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done by a member of another gang through the payment of money or the owing of a reciprocal

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type of attack or some other type of bargained for arrangement. On the other hand, the

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undersigned is persuaded by Defendants’ compelling arguments about both the irrelevance of this

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information, as well as Defendants’ contentions about how producing this information (that is,

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listing the prison units, if any, where this particular gang does not have a foothold) would

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endanger institutional safety and security. See id. at 6-7. Thus, for the reasons articulated by

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Defendants, Plaintiffs’ request to compel the production of this information is DENIED.
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Lastly, as mentioned, two years ago the undersigned directed the Parties to “streamline the

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discovery process and . . . submit a joint proposal regarding the timetable for completion of the

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discovery . . . as well as proposed dates for the subsequent briefing schedule for the retaliation

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motion.” See Order of August 9, 2019 (dkt. 1203 *SEALED*) at 8. At a status conference during

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that same period, the undersigned warned the parties that the failure to arrive at a jointly proposed

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briefing schedule would result in the court fixing its own schedule for briefing the retaliation

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motion. Because an unreasonable amount of time has passed since then, the court will now direct

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the Parties to adhere to the following schedule:

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It is hereby ORDERED that:
(1) The discovery cut-off date shall be December 15, 2021.

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United States District Court
Northern District of California

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(2) If any previously ordered depositions have not been undertaken by that date, those

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depositions shall be taken, if at all, no later than January 19, 2022.

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(3) Plaintiffs’ retaliation motion shall be due on or before March 1, 2022.

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(4) Defendants’ response in opposition shall be due on or before April 18, 2022.

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(5) Plaintiffs’ reply brief (if they chose to file one) shall be due no later than May 9, 2022.

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(6) All papers filed in this regard shall strictly comply with the page limitations set forth in

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the court’s Local Rules and no motions for excess pages will be entertained.
(7) Requests for filing Sur-Reply or Sur-Sur-Reply Briefs will not be entertained, therefore

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Plaintiffs are directed to refrain from filing evidence with their Reply Brief. Any

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evidentiary filings attached to the Reply Brief, or any otherwise non-conforming briefs

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will be stricken.

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(8) Absent the most extraordinary circumstances, any requests to alter or amend this
schedule will be denied.

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(9) Lastly, counsel for the Parties are reminded of their professionalism obligations and are

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herewith expressly directed to refrain from littering their papers with scurrilous attacks

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leveled at the integrity and reputation of opposing counsel. Counsel for both sides have

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been guilty of this in the past, however, in the currently-pending letter brief, Plaintiffs’

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counsel have, in passing, accused opposing counsel of misleading the court (see Ltr.
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Br. (dkt. 1513-3 *SEALED*) at 2 n.1); further, they have also alleged that Defendants’

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counsel have engaged in “deception,” and “falsehoods about the facts of this case . . .”

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Id. at 4. The undersigned will remind counsel of their obligation to maintain an

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appropriate degree of decorum in their pleadings. An attorney’s reputation for integrity

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is the very currency on which the business of law practice is conducted and the

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undersigned is losing patience with what is becoming a pattern and practice where the

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lawyers in this case tangentially accuse one another of such dishonesty in unrelated

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contexts and without even the provision of any concrete proof for such scandalous

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assertions. Counsel are warned that, going forward, this sort of bombast will no longer
be overlooked.

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United States District Court
Northern District of California

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IT IS SO ORDERED.

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Dated: August 30, 2021

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ROBERT M. ILLMAN
United States Magistrate Judge

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