Ashker et al v. Schwarzenegger et al

Filing 298

Order by Magistrate Judge Nandor J. Vadas granting 287 Motion to Compel.(njvlc2, COURT STAFF) (Filed on 1/29/2014)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

EUREKA DIVISION

7
8

TODD ASHKER, et al.,

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

Plaintiffs,
9
ORDER GRANTING DEFENDANTS’
MOTION TO COMPEL

v.
10
11

MATHEW CATE, et al.,

Re: Dkt. No. 287

United States District Court
Northern District of California

Defendants.
12
13
14

Defendants seek an order compelling Plaintiffs to produce or identify documents

15

concerning the specific allegations in the Second Amended Complaint (“SAC”). See Doc. No.

16

287 at 3-6 (moving to compel further responses to document requests numbers 4, 6, 10, 18-22, 25,

17

27-30, 43, 45-46, 50-51, and 54-55). Their motion to compel was fully briefed by the parties and

18

heard on January 28, 2014.

19
20

A. “Equally Available” Documents.
Plaintiffs argue that they have produced all responsive, non-privileged, documents in their

21

custody, possession, and control. However, Defendants point to correspondence from Plaintiffs

22

admitting that they “may have withheld” certain documents on the ground that the documents are

23

equally available to Defendants. Defendants move to overrule Plaintiffs’ objection to producing

24

documents that are “equally available” to Defendants.

25

First, Plaintiffs argue that they already identified allegations in the SAC that were based on

26

publicly-available information, specifying the source from which each allegation was drawn.

27

While Plaintiffs did provide this information for certain document requests, Defendants argue that

28

(1) they are not asking Plaintiffs to identify documents in the public domain, but rather documents

1

Plaintiffs contend are in Defendants’ possession, custody or control (for example, CDCR records);

2

and (2) Plaintiffs did not provide this information for any of the requests at issue in this motion.

3

Defendants therefore cannot determine whether they indeed have the documents at issue, or what

4

those documents may be.

5

Second, Plaintiffs do not establish that it would be unduly burdensome to produce the

6

documents. Although they suggest that Defendants could obtain the documents from “some other

7

source that is more convenient, less burdensome, or less expensive” (Doc. No. 286 at 5 (quoting

8

Fed. R. Civ. P. 26(b)(2)(C)), they do not explain why it would be less costly or burdensome for

9

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

11
United States District Court
Northern District of California

10

Plaintiffs identify the documents instead of producing them.

12

Third, Plaintiffs further argue that they “identified much of the proof supporting the

13

allegations in supplemental interrogatory responses verified by each named Plaintiff” on

14

November 29, 2013, and will “provide even greater specificity at an appropriate time, when they

15

have had full discovery on their claims, in response to the additional contention interrogatories

16

Defendants served last month.” Doc. No. 286. That they already provided “much of the proof”

17

and will provide “even greater specificity” in the future does not relieve them of their discovery

18

obligations today. Simply put,

19

22

[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.

23

Plumbers and Pipefitters Local 572 Pension Fund v. Cisco Systems, Inc., 2005 U.S.

24

Dist. LEXIS 43648, *22 (N.D. Cal. Jun. 21, 2005).

20
21

25

Fourth, the case on which Plaintiffs rely to justify their objection, Lal v. Felker, 2010 U.S.

26

Dist. LEXIS 21046, *9 (E.D. Cal. Feb. 10, 2010), does not support their position. Although the

27

court in Lal did recognize that courts were split on the issue, the court explicitly did not resolve

28

the split because it found that the documents were not equally accessible to the plaintiff in that
2

1

case. Courts in this district, however, have rejected Plaintiffs’ position. See Bretana v. Internat’l

2

Collection Corp., 2008 U.S. Dist. LEXIS 79334, *15 (N.D. Cal. Sep. 22, 2008) (“[I]t is generally

3

not a ground for objection that requested documents are equally available from the requesting

4

party’s own records”) (citing St. Paul Reinsurance Co., Ltd. v. Commerical Fin. Corp., 198 F.R.D.

5

508, 514 (N.D. Iowa 2000)); Plumbers and Pipefitters Local 572 Pension Fund, 2005 U.S. Dist.

6

LEXIS 43648, at *23 (“[T]he Court can see no justifiable reason why Plaintiffs should not

7

produce, or at least identify, documents that support Plaintiffs’ allegations . . . whether they are in

8

Defendant’s possession or in the public domain”) (citing St. Paul Reinsurance Co., 198 F.R.D. at

9

514).

10

Finally, Defendants argue that Plaintiffs have waived all objections to their document

United States District Court
Northern District of California

11

requests by serving their responses more than two weeks late, without explanation. Plaintiffs fail

12

to address this in their opposition.

13

Plaintiffs’ objection is overruled. Plaintiffs shall produce any non-privileged documents

14

that are responsive to the document requests listed above that they have failed to produce on the

15

ground that they are “equally available” to Defendants. If the documents have been produced by

16

Defendants, Plaintiffs may identify the relevant documents by Bates Number.

17
18

B. Discovery matters improperly raised by the parties.
In their opposition brief, Plaintiffs request that the court “order that Plaintiffs need not

19

provide substantive responses to Defendants’ contention interrogatories” until after the close of

20

discovery. Doc. No. 286 at 7. This request concerning discovery that is not even at issue in

21

Defendants’ motion is improper under the Federal Rules of Civil Procedure, the Civil Local Rules,

22

and this Court’s Standing Orders. It is denied.

23

At the hearing, Defendants requested that the court order Plaintiffs to provide further

24

responses to their contention interrogatories. The court declined to rule on this equally improper

25

request.

26

The parties are ordered to meet and confer in person within ten days of the date of this

27

order. If the parties cannot resolve their disputes relating to the contention interrogatories, they

28

may file 5 page letter briefs setting forth their positions, which the court will take under
3

1
2
3
4
5

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

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
4