Ashker et al v. Schwarzenegger et al

Filing 1562

ORDER DENYING PLAINTIFFS' MOTION TO COMPEL DISCOVERY [dkt. no. 1559-3 *SEALED*]. Signed by Judge Robert M. Illman on 01/03/2022. (rmilc2, COURT STAFF) (Filed on 1/3/2022)

Case 4:09-cv-05796-CW Document 1562 Filed 01/03/22 Page 1 of 4

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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,

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United States District Court
Northern District of California

ORDER RE: PLAINTIFFS’ MOTION
TO COMPEL DISCOVERY

v.

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Case No. 09-cv-05796-CW (RMI)

MATHEW CATE, et al.,

Re: Dkt. Nos. 1559-3 *SEALED*

Defendants.

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Now pending before the court is another discovery dispute pertaining to Plaintiffs’

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forthcoming motion in the matter of a single prisoner that Plaintiffs contend was the subject of

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retaliation with respect to his or her housing assignment. Previously, the court fixed a discovery

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cut-off date (December 15, 2021) and warned the Parties that “[a]bsent the most extraordinary

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circumstances, any requests to alter or amend this schedule will be denied.” See Order of August

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30, 2021 (dkt. 1516) at 5. On December 30, 2021, well after the discovery cut-off date, Plaintiffs

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moved to compel certain discovery. For the reasons described below, Plaintiffs’ request is denied.1

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In support of Plaintiffs’ desire to develop and present this retaliation claim – more than two

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years ago, the undersigned acceded to Plaintiffs’ request to significantly expand the scope of

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discovery that Plaintiffs could seek in support of this motion. See e.g., Order of August 9, 2019

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(dkt. 1203 *SEALED*); see also Order of November 12, 2020 (dkt. 1396). Then, in August of

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2021, the court sought to put an end to the seemingly endless period of discovery that Plaintiffs

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appeared to have in mind by setting a firm discovery cut-off date and a firm briefing schedule for

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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 1562 Filed 01/03/22 Page 2 of 4

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Plaintiffs’ forthcoming motion – while informing the Parties that only the most extraordinary of

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circumstances would be considered in altering or amending either the cut-off date or the briefing

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schedule. See Order of August 31, 2021 (dkt. 1516) at 5.

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As part of the significantly expanded scope of discovery previously permitted by the

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undersigned – in 2019, Plaintiffs deposed Mr. Ralph Diaz, a former CDCR Secretary. See Ltr. Br.

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(dkt. 1559-3 *SEALED*) at 5. During his deposition, Mr. Diaz stated that during his 2017 visit to

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the specific institution in question, he spoke about the housing of the prisoner in question with two

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correctional officers whose names he could not recall. Id. Defendants then conducted an

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investigation in order to determine the identity of those two correctional officers, which eventually
proved fruitful in early December of 2021 and “Defendants promptly informed Plaintiffs of their

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United States District Court
Northern District of California

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identities on December 7, 2021.” Id. It should also be noted that Defendants have offered to make

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both of those correctional officers available for depositions on January 12, 2022, which is before

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the deposition cut-off date. Id. Furthermore, CDCR has also agreed “to voluntarily produce certain

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documents from these officers to the extent they may relate to [the prisoner in question] and [his

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or her] retaliation claim.” Id. Plaintiffs now seek an order compelling the production of (1) emails

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exchanged between non-lawyers relating to the investigation that resulted in the identification of

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the two correctional officers in question; and, (2) emails regarding the same matter but involving

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Defendants’ counsel. Id. at 2. Plaintiffs also request an order precluding Defendants from

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instructing upcoming deposition witnesses to not answer questions about the investigation

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(including on grounds of privilege or work product). Id. at 4.

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In retrospect, perhaps it was a mistake to so significantly expand the scope of discovery

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that Plaintiffs can seek in pursuance of their effort to contend that a single class-member’s housing

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assignment was retaliatory because Plaintiffs seem to have gone quite far afield in their discovery

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quest. In short, the court finds that Plaintiffs’ three requests: (a) are late in that they were presented

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after the discovery cut-off; (b) are irrelevant to their task at hand; and, (c) are not proportional to

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the needs of the retaliation motion. First, Plaintiffs have been aware of the investigation into the

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correctional officers’ identities for quite some time and have not moved to compel any material or

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information related to those investigations until after the discovery cut-off date. Second, Plaintiffs
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were informed as to the two guards’ identities on December 7, 2021, a full week before the cut-off

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date and still no motion to compel was filed until two weeks after the cut-off date. Third,

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notwithstanding the lateness of Plaintiffs’ request, the court is unpersuaded by Plaintiffs’ efforts to

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establish the relevance and proportionality of the documents and information pertaining to the

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efforts to search for the identities of two guards who were mentioned by Mr. Diaz and who have

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now been identified and offered up for imminent depositions. The court finds that the process

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through which they were identified is tangential at best. In fact, Plaintiffs’ effort to establish the

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relevance of the documents they seek only serves to undermine that very effort. Plaintiffs explain

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that “Defendants’ representation to Plaintiffs and this Court that their investigation was ‘diligent’
as of October 30, 2020 raises very serious questions about the nature of that investigation and

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United States District Court
Northern District of California

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about how [the two correctional officers] came to be identified as the two officers whom Diaz

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spoke to on June 1, 2017.” Id. at 3. Thus, it is clear from Plaintiffs’ own argument that the only

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reason this discovery is sought is to undermine Defendants’ assurance that the search for these

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guards’ identities was “diligent.” Of course, the diligence – or lack thereof – attending the search

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for these guards’ identities will in no way prove or disprove Plaintiffs’ claim that the housing

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assignment of the prisoner in question was retaliatory. Plaintiffs’ discovery efforts have gone too

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far afield and the time has come to reign in what the court sees as a runaway inquiry that has lost

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its focus. Plaintiffs shall have an opportunity to depose these two individuals about the housing

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assignment of the prisoner in question in order to determine whether or not the housing

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assignment was retaliatory or whether there were genuine institutional concerns (such as safety)

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on which the decision was based. Whether or not the investigation into establishing the two

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guards’ identities was truly “diligent” is a distraction from the stated aim of Plaintiffs’ motion.

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Plaintiffs are mistaken if they think that attacking CDCR’s credibility as to the diligence with

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which they searched for these two guards’ identities can help Plaintiffs establish that a single

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prisoner’s housing assignment surely must have been retaliatory rather than based on legitimate

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institutional concerns.

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Fourth, because the two individuals have been offered up for depositions, the court also

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finds that Plaintiffs’ requests for email communications and documents related to the search for
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their identities – even if attended with a scintilla of relevance (which is not the case) – is not

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proportional to the needs of the retaliation motion (which concerns the safety needs attending a

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single class-member’s housing assignment), let alone being proportional to the needs of the entire

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case. Fifth, and for these same reasons, the court finds no merit in Plaintiffs’ request for an order

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precluding forthcoming deposition witnesses from being instructed to not answer questions about

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the investigation into the two guards’ identities including on grounds of privilege and work-

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product. In fact, the court expressly finds that any details underlying CDCR’s investigation into

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the identity of the two guards in question is irrelevant to the retaliation motion.

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In short, Plaintiffs’ requests to compel non-attorney communications and attorney-client
communication relating to this investigation are DENIED. Likewise, Plaintiffs’ request for an

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United States District Court
Northern District of California

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order precluding Defendants from instructing deposition witnesses to not answer questions about

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the investigation is DENIED. The discovery period for Plaintiffs’ long-awaited retaliation motion

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has now closed; at this point, the Parties should focus their efforts on completing any remaining

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depositions and strictly adhering to the established briefing schedule (while avoiding any tangents

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and rabbit-trails such as the details underlying the investigation into the identities of the two

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guards with whom Mr. Diaz conversed several years ago).

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IT IS SO ORDERED.
Dated: January 3, 2022

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ROBERT M. ILLMAN
United States Magistrate Judge

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