Ashker et al v. Schwarzenegger et al
Filing
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Order by Magistrate Judge Nandor J. Vadas granting 287 Motion to Compel.(njvlc2, COURT STAFF) (Filed on 1/29/2014)
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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.,
Case No. 09-cv-05796-CW (NJV)
Plaintiffs,
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ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL
v.
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MATHEW CATE, et al.,
Re: Dkt. No. 287
United States District Court
Northern District of California
Defendants.
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Defendants seek an order compelling Plaintiffs to produce or identify documents
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concerning the specific allegations in the Second Amended Complaint (“SAC”). See Doc. No.
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287 at 3-6 (moving to compel further responses to document requests numbers 4, 6, 10, 18-22, 25,
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27-30, 43, 45-46, 50-51, and 54-55). Their motion to compel was fully briefed by the parties and
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heard on January 28, 2014.
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A. “Equally Available” Documents.
Plaintiffs argue that they have produced all responsive, non-privileged, documents in their
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custody, possession, and control. However, Defendants point to correspondence from Plaintiffs
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admitting that they “may have withheld” certain documents on the ground that the documents are
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equally available to Defendants. Defendants move to overrule Plaintiffs’ objection to producing
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documents that are “equally available” to Defendants.
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First, Plaintiffs argue that they already identified allegations in the SAC that were based on
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publicly-available information, specifying the source from which each allegation was drawn.
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While Plaintiffs did provide this information for certain document requests, Defendants argue that
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(1) they are not asking Plaintiffs to identify documents in the public domain, but rather documents
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Plaintiffs contend are in Defendants’ possession, custody or control (for example, CDCR records);
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and (2) Plaintiffs did not provide this information for any of the requests at issue in this motion.
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Defendants therefore cannot determine whether they indeed have the documents at issue, or what
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those documents may be.
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Second, Plaintiffs do not establish that it would be unduly burdensome to produce the
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documents. Although they suggest that Defendants could obtain the documents from “some other
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source that is more convenient, less burdensome, or less expensive” (Doc. No. 286 at 5 (quoting
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Fed. R. Civ. P. 26(b)(2)(C)), they do not explain why it would be less costly or burdensome for
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Defendants to track down the documents Plaintiffs rely upon than it would be for Plaintiffs to
identify or produce them. Moreover, Defendants contend that Plaintiffs rejected their offer that
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United States District Court
Northern District of California
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Plaintiffs identify the documents instead of producing them.
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Third, Plaintiffs further argue that they “identified much of the proof supporting the
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allegations in supplemental interrogatory responses verified by each named Plaintiff” on
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November 29, 2013, and will “provide even greater specificity at an appropriate time, when they
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have had full discovery on their claims, in response to the additional contention interrogatories
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Defendants served last month.” Doc. No. 286. That they already provided “much of the proof”
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and will provide “even greater specificity” in the future does not relieve them of their discovery
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obligations today. Simply put,
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[t]here is nothing unusual about a discovery request asking Plaintiffs
to produce or identify documents relating to or supporting
allegations made in their FAC. Moreover, this is not a situation
where Plaintiffs are requested to produce a compilation of
documents, but only documents referenced in their FAC. Therefore,
Defendants are entitled to know the factual basis of Plaintiffs’
claims in order to prepare for trial.
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Plumbers and Pipefitters Local 572 Pension Fund v. Cisco Systems, Inc., 2005 U.S.
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Dist. LEXIS 43648, *22 (N.D. Cal. Jun. 21, 2005).
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Fourth, the case on which Plaintiffs rely to justify their objection, Lal v. Felker, 2010 U.S.
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Dist. LEXIS 21046, *9 (E.D. Cal. Feb. 10, 2010), does not support their position. Although the
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court in Lal did recognize that courts were split on the issue, the court explicitly did not resolve
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the split because it found that the documents were not equally accessible to the plaintiff in that
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case. Courts in this district, however, have rejected Plaintiffs’ position. See Bretana v. Internat’l
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Collection Corp., 2008 U.S. Dist. LEXIS 79334, *15 (N.D. Cal. Sep. 22, 2008) (“[I]t is generally
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not a ground for objection that requested documents are equally available from the requesting
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party’s own records”) (citing St. Paul Reinsurance Co., Ltd. v. Commerical Fin. Corp., 198 F.R.D.
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508, 514 (N.D. Iowa 2000)); Plumbers and Pipefitters Local 572 Pension Fund, 2005 U.S. Dist.
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LEXIS 43648, at *23 (“[T]he Court can see no justifiable reason why Plaintiffs should not
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produce, or at least identify, documents that support Plaintiffs’ allegations . . . whether they are in
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Defendant’s possession or in the public domain”) (citing St. Paul Reinsurance Co., 198 F.R.D. at
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514).
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Finally, Defendants argue that Plaintiffs have waived all objections to their document
United States District Court
Northern District of California
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requests by serving their responses more than two weeks late, without explanation. Plaintiffs fail
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to address this in their opposition.
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Plaintiffs’ objection is overruled. Plaintiffs shall produce any non-privileged documents
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that are responsive to the document requests listed above that they have failed to produce on the
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ground that they are “equally available” to Defendants. If the documents have been produced by
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Defendants, Plaintiffs may identify the relevant documents by Bates Number.
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B. Discovery matters improperly raised by the parties.
In their opposition brief, Plaintiffs request that the court “order that Plaintiffs need not
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provide substantive responses to Defendants’ contention interrogatories” until after the close of
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discovery. Doc. No. 286 at 7. This request concerning discovery that is not even at issue in
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Defendants’ motion is improper under the Federal Rules of Civil Procedure, the Civil Local Rules,
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and this Court’s Standing Orders. It is denied.
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At the hearing, Defendants requested that the court order Plaintiffs to provide further
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responses to their contention interrogatories. The court declined to rule on this equally improper
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request.
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The parties are ordered to meet and confer in person within ten days of the date of this
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order. If the parties cannot resolve their disputes relating to the contention interrogatories, they
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may file 5 page letter briefs setting forth their positions, which the court will take under
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submission without oral argument. See N.D. L.R. 7-1 (b).
IT IS SO ORDERED.
Dated: January 29, 2014
______________________________________
NANDOR J. VADAS
United States Magistrate Judge
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United States District Court
Northern District of California
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