R. Alexander Acosta v. International Longshore and Warehouse Union

Filing 123

Order by Magistrate Judge Donna M. Ryu granting in part and denying in part 80 Motion for Issuance of Letters Rogatory. (dmrlc3, COURT STAFF) (Filed on 11/18/2020)

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Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 1 of 17 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EUGENE SCALIA, Case No. 19-cv-02103-DMR Plaintiff, 8 v. 9 10 INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, 11 ORDER ON DEFENDANT'S MOTION FOR ISSUANCE OF LETTERS ROGATORY Re: Dkt. No. 80 United States District Court Northern District of California Defendant. 12 13 On April 18, 2019, Plaintiff Eugene Scalia, in his official capacity as the Secretary of the 14 U.S. Department of Labor (“DOL”), filed a complaint against Defendant International Longshore 15 and Warehouse Union (“ILWU”) under Title IV of the Labor-Management Reporting and 16 Disclosure Act of 1959, 29 U.S.C. §§ 481-83 (“LMRDA”). [Docket No. 1.] DOL filed an amended 17 complaint on August 30, 2019. [Docket No. 28 (“FAC”).] DOL seeks a judgment invalidating 18 ILWU’s September 2018 election of union officers and an order that ILWU conduct a new election 19 for those positions. On June 5, 2020, ILWU filed a motion requesting that the court issue letters 20 rogatory to the Republic of Panama. [Docket Nos. 80 (“Mot.”), 84 (“Reply”).] DOL opposes. 21 [Docket No. 83 (“Opp.”).] The court held a hearing on August 27, 2020. For the reasons stated below the motion is granted in part and denied in part. 22 23 I. BACKGROUND 24 A. Factual Background 25 ILWU represents approximately 44,500 workers in five U.S. states (California, Oregon, 26 Washington, Alaska, and Hawaii), as well as in Canada and Panama. [Docket No. 33, First 27 Declaration of Robert Remar (“First Remar Decl.”) ¶ 3.] ILWU has dozens of affiliated locals and 28 divisions and holds officer elections every three years. Id. The elections are governed by the union Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 2 of 17 1 election provisions of LMRDA and the Election Rules and Procedures in the ILWU Constitution. 2 Id. ¶ 4; see First Remar Decl., Ex. A, Appendix (“Rules”). As provided by the ILWU Constitution, 3 the Convention of the International is held every three years prior to officer elections. Id. ¶ 8. 4 Affiliated locals elect delegates to the Convention, and the delegates nominate and elect two 5 candidates for each of the four titled officer positions: President, Vice President (Mainland), Vice 6 President (Hawaii), and Secretary Treasurer. Id. 7 1. 2018 ILWU Election The 2018 election involved two political groups of candidates seeking to fill the four offices. 9 One group was led by Ray Familathe, the incumbent Vice President (Mainland), while the other 10 was headed by Willie Adams, the incumbent Secretary-Treasurer. First Remar Decl. ¶ 18. Several 11 United States District Court Northern District of California 8 years prior, Familathe had hired Greg Mitre to serve as the ILWU liaison for the two ILWU locals 12 in Panama: Panama Canal Pilots Union (“PCPU”) and SINTRAPORSPA. Id. ¶¶ 19-20. These 13 locals obtained their affiliation with ILWU in 2012 and 2015, respectively, and together comprise 14 the Panama Canal Division. Id. ¶ 20. According to Robert Remar, legal counsel for ILWU, 15 communications between ILWU and the two Panama locals “have gone through or been facilitated 16 by Familathe and/or Mitre, including those concerning the 2018 ILWU election.” Id. He avers that 17 Mitre “actively campaigned for the Familathe group during the 2018 election period.” Id. 18 ILWU held its 2018 Convention in Portland, Oregon, during the week of June 3, 2018. First 19 Remar Decl. ¶ 21. Prior to the Convention, most locals had submitted a list of their active members 20 in accordance with the Election Rules. Id. ¶¶ 10, 22, see Rule 14.C(1) (“Within thirty (30) days 21 prior to the Convention, each affiliate shall submit to the International Secretary-Treasurer a listing 22 of its active members specifying name, last known home address, and membership book number, if 23 available.”). Membership lists are necessary in order to mail ballots to union members. See First 24 Remar Decl. ¶ 27. However, SINTRAPORSPA had not submitted a membership list and no 25 delegates from that local attended the 2018 Convention. Id. ¶¶ 22, 24. 26 On June 6, 2018, Mitre emailed Familathe a list of names, which the email described as “the 27 list from the minister of labor of Panama the Sintraporspa union members.” First Remar Decl. ¶ 27; 28 see id., Ex. C (email dated June 6, 2018 from Mitre to Familathe, with an attached list of names). 2 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 3 of 17 Mitre represented to ILWU attorney Remar that the list was SINTRAPORSPA’s official list of 2 current union members. Id. ¶ 28. Mitre and Londor Rankin, a representative of PCPU, also 3 represented to the Convention delegates that the list was official. Id. Some delegates raised a 4 concern about the accuracy of the list. Id. ¶ 28. Remar advised the Convention that under the 5 Election Rules, a membership list submitted by a local is presumed to be valid, absent contrary 6 evidence. Id. ¶ 29. However, because the eligibility of any member to vote can be challenged before 7 the ballot count, it was decided that the ballots from Panama would be segregated to allow for 8 candidates to raise challenges or objections to them based on election irregularities or violations. 9 Id. ¶ 29. ILWU also requested that SINTRAPORSPA certify the accuracy of the list. [Docket No. 10 46, Second Declaration of Robert Remar, (“Second Remar Decl.”) ¶ 5.] ILWU received the 11 United States District Court Northern District of California 1 requested certification on August 8, 2018. Id. ¶ 7; see id., Ex. P. The certification was signed by 12 Rolando Jimenez, SINTRAPORSPA’s Secretary-Treasurer. ILWU used the list provided by Mitre 13 and certified by Jimenez to send ballots to members of SINTRAPORSPA. 14 The Panama Canal Division also proposed a modification to the mail ballot process to allow 15 for mailing of ballots to two Panama post offices rather than to individual members’ home addresses, 16 since most people in Panama do not have home addresses or home delivery service. First Remar 17 Decl. ¶ 25. Supporters of the Familathe group favored the proposal while supporters of the Adams 18 group opposed it. Id. ¶ 26. ILWU ultimately adopted the proposal and incorporated it into the 19 Election Rules for the 2018 Constitution. Id. 20 On July 23, 2018, Global Election Services (“GES”) mailed out 44,695 ballots, including to 21 the two Panama locals. First Remar Decl. ¶ 35. GES is the “outside agency hired to conduct the 22 election under the supervision of the ILWU Election Procedures Committee [EPC].”1 Id. ¶ 28. The 23 ballots were due to be returned within 45 days, by September 6, 2018. Id. ¶ 35; see Rule 14.E 24 (mandating a 45-day return period for ballots). Although the ballots were timely mailed, there were 25 some delays in delivering the ballots through the post office and they did not arrive in the Panama 26 27 28 ILWU’s Constitution mandates that “[a]ll ILWU referendum elections shall be conducted by mail ballot with the assistance of an outside impartial, certified and licensed professional elections agency.” Rule 14(A). 1 3 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 4 of 17 post offices until August 16, 2018, though possibly earlier.2 Id. ¶ 36. On August 20, 2018, Mitre 2 called GES to confirm that the Panama ballots had arrived, but he expressed concern whether there 3 was sufficient time for voted ballots to be received in San Francisco by September 6, 2018, and 4 whether additional postage was required (in addition to the pre-paid business return envelope 5 already provided). Id. He was informed that there was sufficient time to return the voted ballots 6 and that no additional postage was required. Id. On August 23, 2018, GES contacted the Panama 7 postal service to request special handling in order to ensure on-time delivery of returned ballots. Id. 8 The request was granted. Id. On August 31, 2018, SINTRAPORSPA official Lazaro Salas emailed 9 GES and represented that he had shipped a box of voted ballots on August 23, 2018. Id. Remar 10 represents that the August 31, 2018 email was the first he, the EPC, and the ILWU had heard of the 11 United States District Court Northern District of California 1 ballots being collected and mailed together in a box. Id. ¶ 37. 12 The ballot count was held on September 6, 2018. First Remar Decl. ¶ 38. Approximately 13 9,887 total ballots were received. Id. ¶ 38. GES representatives conducted the count, and no one 14 else was permitted to handle or touch the ballots. Id. ¶ 39. The box from Panama contained about 15 1,078 voted ballots. Id. The ILWU Balloting Committee challenged and disqualified the box of 16 ballots from Panama on the basis that the mailing method violated Election Rule 14.B, which 17 provides that “no one other than the [outside election] agency shall collect or handle any mail ballots 18 other than [the] member’s own ballot.” Rule 14.B. After excluding the Panama ballots, the tally 19 showed that the Adams group of candidates received the most votes. First Remar Decl. ¶ 40. 2. 20 Election Challenges 21 The election was challenged based on the disposition of the Panama ballots. First Remar 22 Decl. ¶ 41. EPC held a four-day hearing on the challenges on October 1 through 4, 2018. Id. ¶ 42. 23 In preparation for the hearing, EPC requested information on the balloting procedure from 24 SINTRAPORSPA. Id. ¶ 43. Salas, the officer who had shipped the box of ballots, provided 25 information about how the ballots were handled. Id. He represented that SINTRAPORSPA officials 26 27 28 2 Salas informed ILWU that the ballots arrived in Panama between August 10, 2020 and August 14, 2020 but did not start to arrive at the Balboa post office until August 16, 2020, and some ballots arrived later. First Remar Decl., Ex. K. 4 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 5 of 17 collected the ballots and bulk-mailed them in the box GES had received. Id.; see id., Ex. J 2 (September 27, 2018 email from Salas). During the hearing, GES presented the Panama ballots for 3 viewing by the individuals present. Id. ¶ 44. Remar represents that he personally viewed the ballots 4 and saw that the ballots were filled out with “near-identical penmanship and color ink” and “[e]very 5 Panama ballot [he] saw from the bulk-mailed box was voted for the Familathe group in all races in 6 the same color pen with the same type of markings.” Id. ¶ 45. He also avers that the voted ballots 7 from other locals within the ILWU “appear to have substantially more variety in who they voted 8 for, whether they voted for all offices and how they filled in the ballot (i.e., darkened ovals versus 9 “X” marks versus circling names).” Id. In contrast, the Panama ballots “looked like copies of each 10 other.” Id. The Balloting Committee found that the ballot collecting procedure in Panama violated 11 United States District Court Northern District of California 1 Rule 14.B,3 and therefore did not reach the issue of the ballots’ “suspiciously uniform markings.” 12 Id. ¶ 45. EPC accordingly overruled the challenges to the disposition of the ballots. Id. ¶ 46; see 13 id., Ex. L (EPC decision after hearing). The challengers appealed the decision to the International 14 Executive Board, which upheld EPC’s decision. Id. ¶ 47. 15 One of the challengers, Floyd Bryan, filed a complaint with DOL. First Remar Decl. ¶ 47. 16 According to Remar, Bryan was a “supporter of the Familathe group and a long-time friend of Ray 17 Familathe and his wife, Cathy.” Id. ¶ 48. ILWU informed DOL that the union wanted DOL to 18 investigate whether there had been fraud in the handling of the Panama Ballots. Id. ¶ 53. Attorney 19 Eleanor Morton represented ILWU during DOL’s investigation. [Docket No. 81, First Declaration 20 of Eleanor Morton (“First Morton Decl.”) ¶ 2.] ILWU provided DOL with contact information for 21 various officers and members of the Panama locals. Id. DOL then communicated with and 22 interviewed several individuals in Panama about the 2018 election, membership eligibility, when 23 the ballots arrived in Panama, whether return postage was required, and whether any eligible 24 members did not receive a ballot. Id. ¶ 4; see id., Exs. D, E. DOL also obtained documents 25 26 27 28 3 According to Remar, the actions taken by the SINTRAPORSPA officers violated several other Election Rules, including Rule 14.E.7 (providing that ballot packets may not be sent to any official union location or to a union officer’s office or home address) and Rule 14.E.13 (prohibiting union officers from requiring or requesting that members give their ballots to any officer). First Remar Decl. ¶ 49. 5 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 6 of 17 1 purporting to record the payment of union dues by members from Panama Ports and Serviestiba, 2 S.A., companies that employ SINTRAPORSPA members as dockworkers. Id., Ex. G; see Mot. at 3 18. In the motion now before the court, ILWU points to DOL’s investigation of these Panama 4 sources as a key reason to permit ILWU to take discovery from the same sources. B. 6 On April 18, 2019, DOL filed the present case against ILWU, seeking to void the election 7 results and require ILWU to conduct another election. FAC ¶ 1. DOL alleges that ILWU violated 8 LMRDA by denying members of the Panama Canal Division a “reasonable opportunity to vote” by 9 failing to provide “adequate safeguards to insure a fair election” in violation of sections 401(c) and 10 401(e) of LMRDA. Id. ¶¶ 48-49; see 29 U.S.C. §§ 481(c), (e). According to DOL, the ILWU’s 11 United States District Court Northern District of California 5 Claims and Defenses “voting instructions were not fully or accurately translated into Spanish and failed to adequately 12 notify voters of constitutional rules that [ILWU] invoked to disqualify the ballots.” Id. ¶ 18. For 13 example, “[n]either the English nor the Spanish voting instructions notified members that [ILWU] 14 would void ballots that were collected and mailed . . . within a larger shipping container.” Id. ¶ 17. 15 The international business reply envelope stated that there was “NO POSTAGE NECESSARY IF 16 MAILED TO THE UNITED STATES,” but did not have this message in Spanish. Id. ¶ 19. 17 DOL alleges that ILWU also failed to adequately respond to other concerns raised regarding 18 the voting process in Panama, including whether the delayed receipt of the ballots would permit 19 members adequate time to vote and return the voted ballots and whether the pre-paid business reply 20 envelope would be honored by the postal service in Panama. FAC ¶¶ 20-25, 46-47. DOL asserts 21 that ILWU had notice as early as August 31, 2018 that the voted ballots were bulk-mailed and “failed 22 to take reasonable steps in response, such as issuing those voters replacement (duplicate) ballots, 23 distributing and collecting ballots in person, and extending the voting period.” Id. ¶¶ 25, 48. 24 According to DOL, ILWU also failed to mail ballots to approximately 608 SINTRAPORSPA 25 members who were eligible to vote. Id. ¶ 13. DOL contends that ILWU’s actions constitute a 26 violation of LMRDA and that the proper relief is to declare the results of the 2018 ILWU election 27 void and order ILWU to conduct a new election. 28 ILWU asserts that DOL is not entitled to any of the relief it seeks for at least five reasons: 6 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 7 of 17 (1) ILWU complied with its Constitution and the law by using reasonable efforts to prepare the ballot mailing list, distribute ballots and collect them; (2) ILWU’s methods for distributing ballots to Panama were based on the advice given it by the DOL; thus DOL has waived and/or is estopped from challenging ILWU’s actions and/or the DOL’s prosecution violates due process; (3) no alleged legal errors by ILWU affected the outcome of the election because fewer people in Panama were eligible to vote than the margin of victory for each office; (4) to the extent any Panama voters were denied the right to vote, the misconduct by Panama officials and/ or the Familathe group and its supporters interfered in the normal conduct of the election and were an intervening cause that prevents a finding that any actions of ILWU affected the outcome of the election; and (5) equity prohibits the relief DOL is seeking (i.e., a re-run election with the resulting costs, resources, internal turmoil and instability imposed on ILWU, its members and candidates) as it would reward wrongdoing committed by the very group that filed the administrative complaint with DOL seeking a rerun of the election. 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 Mot. at 11; see Docket No. 30 (“Answer”). 12 C. Requested Discovery 13 ILWU moves the court to issue a letter rogatory to the appropriate judicial authority in 14 Panama, requesting judicial assistance to obtain information and documents from several people 15 and entities, including: SINTRAPORSPA; Salas, the SINTRAPORSPA Secretary of Defense; 16 Jimenez, the SINTRAPORSPA Secretary-Treasurer; PCPU; Rankin, Raul Fueillet, and Alvarez 17 Moreno, PCPU officers and 2018 Convention Delegates for the Panama Canal Division; and 18 Panama Ports and Serviestiba, S.A., employers of SINTRAPORSPA members. Mot. at 15-19; see 19 Docket No. 117, Third Declaration of Eleanor Morton (“Third Morton Decl.”), Ex. BB. 20 The requests seek information relating to membership and voter eligibility; the membership 21 list submitted to the Convention; communications about the 2018 ILWU election and the use of 22 general delivery of the ballots; communications from SINTRAPORSPA or its officers with any of 23 the candidates, their supporters, or campaigns; communications with postal employees regarding 24 the mailing of the ballots and return postage requirements; and SINTRAPORSPA’s decision to 25 collect ballots from members and bulk mail them. See Third Morton Decl., Ex. BB. 26 II. DISCUSSION 27 A. Letters Rogatory 28 A letter rogatory is “a formal written request sent by a court to a foreign court” for the 7 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 8 of 17 purpose of obtaining evidence, including depositions and documents, in a pending action. Barnes 2 & Noble, Inc. v. LSI Corp., Case No. 11-cv-02709-EMC (LB), 2012 WL 1808849, at *1 (N.D. Cal. 3 May 17, 2012); see also Optrics, Inc. v. Barracuda Networks, Inc., Case No. 17-cv-04977-RS 4 (TSH), 2019 WL 5485890, at *1 (N.D. Cal. Oct. 25, 2019) (“Parties may use letters rogatory to 5 ‘take evidence from a specific person within the foreign jurisdiction, including requests for 6 production of documents.”) (internal quotation marks and citation omitted)). The Federal Rules of 7 Civil Procedure provide for the taking of depositions within foreign countries through letters 8 rogatory.4 See Fed. R. Civ. P. 28(b)(1)(B) (“A deposition may be taken in a foreign country . . . 9 under a letter of request, whether or not captioned a ‘letter rogatory’ . . . .”). A court has inherent 10 authority to issue letters rogatory, and discretion in exercising that authority. Barnes & Noble, Inc, 11 United States District Court Northern District of California 1 2012 WL 1808849, at *2. When determining whether to exercise its discretion, “a court will 12 generally not weigh the evidence sought from the discovery request nor will it attempt to predict 13 whether that evidence will actually be obtained.” Asis Internet Servs. v. Optin Glob., Inc., Case No. 14 05-cv-05124-JCS, 2007 WL 1880369, at *3 (N.D. Cal. June 29, 2007). Instead, “a court’s decision 15 whether to issue a letter rogatory requires an application of Rule 28(b) in light of the scope of 16 discovery provided for by the Federal Rules of Civil Procedure.” Id. 17 Where the requests appear to be prevented by the application of a foreign law, courts must 18 consider principles of international comity and perform a “particularized analysis of the respective 19 interests of the foreign nation and the requesting nation.” 20 Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 544 (1987) (“Aerospatiale”); 21 see, e.g., Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992) (rejecting a 22 foreign corporation’s argument that state secrecy laws prohibited it from disclosing the information 23 ordered by the district court); In re Cathode Ray Tube (CRT) Antitrust Litig., Case No. 07-cv-5944- 24 SC, 2014 WL 5462496, at *4 (N.D. Cal. Oct. 23, 2014) (ordering foreign discovery despite a foreign 25 defendant’s argument that compliance may subject them to criminal sanctions under the French Societe Nationale Industrielle 26 27 28 The parties’ briefing discusses the Inter-American Convention on Letters Rogatory and Additional Protocol (“IACAP”), but at the hearing all parties agreed that the court’s authority to issue letters rogatory arises under the Rules. Accordingly, the court does not address arguments relating to the IACAP. 8 4 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 9 of 17 1 Blocking Statute); Optrics, Inc., 2019 WL 5485890, at *1-*3 (granting motion to issue letters 2 rogatory where the foreign defendant argued the documents requested may be confidential under 3 Canadian law). 4 Here, DOL does not raise any specific concerns that the discovery requested would run afoul 5 of Panama law or principles of international comity. Accordingly, the court analyzes the propriety 6 of the requests under the Federal Rules. 7 B. 8 Federal Rule of Civil Procedure 26 provides: 9 10 United States District Court Northern District of California 11 12 13 Rule 26 Analysis Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 14 Fed. R. Civ. P. 26(b)(1). “Rule 26(b) is liberally interpreted to permit wide-ranging discovery of all 15 information reasonably calculated to lead to discovery of admissible evidence.” Oakes v. Halvorsen 16 Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). The party resisting discovery “has the burden 17 to show that discovery should not be allowed, and has the burden of clarifying, explaining, and 18 supporting its objections.” Id. 19 1. Relevance 20 ILWU argues that information from Panama sources is highly relevant, both to DOL’s 21 claims and to ILWU’s defenses. DOL disagrees. It asserts that all of the requested discovery is 22 irrelevant because the only relevant evidence is what ILWU knew or reasonably should have known 23 before the September 2018 election and any evidence in Panama has no bearing on that issue. See 24 Opp. at 18. DOL does not provide authority for this restrictive theory of relevance. DOL undertook 25 an investigation in Panama and its findings there formed the factual basis for its claims. ILWU is 26 entitled to a fair opportunity to test DOL’s factual conclusions. In addition, even if ILWU violated 27 the LMRDA, the 2018 election can only be voided if ILWU’s alleged unlawful conduct “may have 28 9 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 10 of 17 1 affected the outcome of the election.”5 29 U.S.C. § 482(c)(2). Therefore, whether ILWU’s alleged 2 misconduct had any effect on the election depends on what actually happened in Panama, not merely 3 what ILWU knew or should have known in the weeks leading up to the election. For the reasons 4 stated below, the court finds that ILWU has established that the topics for which it requests 5 discovery are all relevant to the claims and defenses in this case. The court now examines the 6 specific topics for which ILWU seeks Panamanian-based discovery. a. 7 Voter Eligibility DOL alleges that “ILWU denied a reasonable opportunity to vote to approximately 608 9 Panama Division members who were not sent ballots despite paying dues or being on dues checkoff 10 during the relevant time period.” FAC ¶ 47. ILWU propounded interrogatories requesting factual 11 United States District Court Northern District of California 8 support for that allegation. See First Morton Decl., Ex. J (DOL’s responses to ILWU’s special 12 interrogatories). DOL responded: 13 Defendant did not obtain records indicating which SINTRAPORSPA members were paying dues or on dues checkoff during the relevant time period in or around May 2018 when it compiled its mailing list for its election contractor. In addition, a comparison between the Government List of members of SINTRAPORSPA used by ILWU to mail ballots to its members and the monthly dues checkoff reports for SINTRAPORSPA employers, PPC and Serviestiba, show that 608 SINTRAPORSPA members paid dues in May 2018 but were not sent a ballot because their names were not included on the Government List. Discovery is ongoing, and this response will be supplemented as necessary. 14 15 16 17 18 19 Id. According to ILWU, DOL’s response shows that its claims rely in part on documents it obtained 20 from Panama sources, including the dues records provided by SINTRAPORSPA employers. Mot. 21 at 11-12. It argues that it has the right to investigate these documents and that only individuals in 22 Panama could provide first-hand information about whether the records are “authentic, accurate and 23 complete.” Id. at 12. 24 LMRDA requires that unions “take all reasonable steps to ensure that its members are given 25 26 27 28 5 LMRDA also authorizes courts to void an election if the election was not held within the time period prescribed by statute, but DOL’s claim does not rely on that provision. See 29 U.S.C. § 482(c)(1). 10 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 11 of 17 a fair opportunity to vote.” Dole v. Graphic Commc’ns Int’l Union, AFL-CIO, CLC, 722 F. Supp. 2 782, 786 (D.D.C. 1989); see also 29 U.S.C. § 481(e); Wirtz v. Local Union No. 1622, United Bhd. 3 of Carpenters & Joiners of Am., AFL-CIO, 285 F. Supp. 455, 464 (N.D. Cal. 1968). DOL argues 4 that whether ILWU acted reasonably turns on whether it was “aware of or should have been aware 5 of the possibility that members in the Panama Division were unable to vote” and took reasonable 6 steps in response. Opp. at 16. However, it does not follow that the records of dues paying members 7 are irrelevant to that inquiry. DOL’s claim could only succeed if any Panama members were eligible 8 to vote but could not because of ILWU’s actions or failure to take actions. Whether eligible 9 members were denied the opportunity to vote relies on which members were in fact eligible.6 10 Further, as noted above, ILWU’s election can only be voided if its alleged unlawful conduct may 11 United States District Court Northern District of California 1 have affected the outcome of the election. If ILWU can show that at least some of the members 12 listed on the employers’ records were not in fact eligible to vote, then the number of members who 13 were actually disenfranchised may not have been sufficient to change the election outcome.7 See 14 Mot. at 13. DOL cannot both rely on the lists it obtained from Panama sources and prevent ILWU 15 from conducting its own discovery into whether those lists accurately show the number of eligible 16 voters. Accordingly, the information ILWU seeks from Panama sources regarding which members 17 18 were eligible to vote is relevant to the issues in this case. b. 19 Ballot Mailing 20 The FAC alleges that that ILWU acted unreasonably when it failed to “mail ballots to 21 Panama Division members in a manner that enabled each member to receive his or her ballot, mark 22 23 24 25 26 27 28 DOL argues that ILWU is improperly seeking to “challenge those same eligibility lists they received [and] used at the time of the election.” See Opp. at 20. This argument makes little sense. ILWU asserts that it was only obligated to use the certified list provided by the Panama Division to determine which members were eligible to vote. According to the interrogatory response, DOL’s position is that other eligible members did not appear on that list and ILWU therefore denied those members a reasonable opportunity to vote. DOL (not ILWU) is putting at issue the eligibility of the members appearing on the employers’ records. 6 Even if, as DOL argues, ILWU should have “act[ed] upon its suspicions that the SINTRAPORSPA list was inaccurate,” it is still relevant whether that violation may have affected the election. See Opp. at 20 n. 6. 7 11 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 12 of 17 1 the ballot, and return it by the September 6, 2018 ballot deadline.” FAC ¶ 50. The parties agree 2 that the date(s) the ballots arrived in Panama is currently unknown, although the best information 3 seems to be that they were received sometime between August 11, 2018 and August 23, 2018.8 See 4 First Remar Decl. ¶ 36. Contrary to DOL’s position, the ballot arrival date is directly relevant to 5 DOL’s allegation that ILWU failed to mail ballots “in a manner that enabled each member to receive 6 his or her ballot . . . and return it by the . . . ballot deadline.” See FAC ¶ 50. The LMRDA requires 7 no less than fifteen days for the receipt of voted ballots. 29 U.S.C. § 481(e). If the ballots were 8 received in Panama as early as August 11, 2018, they will have arrived more than fifteen days before 9 the September 6, 2018 ballot deadline. If they were received after August 23, 2018, then members 10 would have had less than fifteen days to return the ballots, in violation of LMRDA. United States District Court Northern District of California 11 Thus, the exact date the ballots arrived in Panama is relevant to DOL’s allegation that the 12 ballots were not timely received. DOL does not dispute ILWU’s assertion that this information can 13 only be obtained from first-hand sources in Panama. c. 14 Voting Instructions 15 DOL alleges that, while the ballot return envelopes stated “NO POSTAGE NECESSARY 16 IF MAILED TO THE UNITED STATES,” that information was not provided in Spanish. Id. ¶ 20. 17 Although DOL does not clearly state its argument, it appears to assert that some members may have 18 been disincentivized from voting because they believed they would have to pay to return the ballots. 19 ILWU argues that it needs Panamanian-based discovery to learn whether members were actually 20 disincentivized from voting because the envelopes did not have Spanish language instructions. Mot. 21 at 12. DOL responds that discovery in Panama is irrelevant to its allegation that ILWU unreasonably 22 failed to provide Spanish-language voting instructions because that information can be determined 23 simply by looking at the ballot return envelopes. 24 DOL’s argument is not convincing. The absence of Spanish-language instructions on the 25 ballot envelopes is not enough to show whether any union members were otherwise informed of the 26 mailing requirements or actually believed they would be charged. If the Panama members knew 27 28 8 Salas told ILWU that the ballots started arriving in the Balboa post office on August 16, 2020, but some ballots did not arrive until later. See First Remar Decl., Ex. K. 12 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 13 of 17 1 from other sources, such as Panama postal workers or union officials, that they did not have to pay 2 postage, then failing to provide Spanish-language instructions to that effect on the ballot itself would 3 not affect what the members knew about the ballot return requirements. Therefore, the members’ 4 actual knowledge about the postage charge is relevant to DOL’s allegation that ILWU failed to 5 provide adequate instructions about returning ballots. d. 6 Equitable Defense ILWU’s unclean hands defense posits that a court is not required to void an election “in the 8 exceptional circumstances of this case in which an incumbent union faction intentionally violated 9 the LMRDA election rules, lost the election, and then complained to the Secretary in an effort to 10 undo the election results.” Marshall v. Local 1010, United Steelworkers, 664 F.2d 146 (7th Cir. 11 United States District Court Northern District of California 7 1981). ILWU points out that Mitre, the ILWU liaison to Panama, was affiliated with the Familathe 12 campaign, and was the source of the SINTRAPORSPA voter list that ILWU relied on in sending 13 out ballots. It also notes that Familathe supporters favored the general delivery process. ILWU 14 argues that it is entitled to investigate whether Mitre or other members of the Familathe campaign 15 were responsible for the election irregularities in Panama. 16 SINTRAPORSPA will be able to provide information relevant to that inquiry, including why 17 SINTRAPORSPA certified that the membership list provided to the Convention was accurate and 18 why the Panama delegates to the Convention advocated for the general delivery process. See Mot. 19 at 15. 20 SINTRAPORSPA officials to undermine the integrity of the 2018 election, the officials in Panama 21 likely have information about their involvement. However, as discussed further below, the court 22 denies the requested Panamanian discovery on this topic because it is not proportional, given the 23 lack of evidentiary support for the defense theory that Mitre or other Familathe campaign members 24 engaged in election misconduct in Panama. 25 26 27 28 It asserts that individuals in The court acknowledges that if Familathe and/or his supporters collaborated with In sum, the court finds that the information ILWU seeks in Panama is relevant to the claims and defenses in this case. 2. Proportionality DOL argues that the proposed discovery is not proportional to the needs of the case because 13 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 14 of 17 1 (1) ILWU has not provided sufficient factual support for its proposed discovery; (2) ILWU has not 2 exhausted its discovery efforts in the United States: and (3) ILWU has not established good cause 3 for extending case deadlines, as will likely be required to complete the letters rogatory process. 4 As discussed above, DOL investigated the claims in its complaint through sources and 5 information in Panama. ILWU is entitled to test the factual bases of DOL’s allegations through its 6 own discovery and investigation. The resolution of some of these issues, such as when the ballots 7 arrived in Panama and whether every eligible member received a ballot, requires information that 8 does not appear to be available from sources in the United States. Further, ILWU has adequately 9 explained how such information is necessary to counter DOL’s claims. Therefore, at least some of 10 ILWU’s proposed discovery is both relevant and proportional to the issues in this case. United States District Court Northern District of California 11 However, in the hearing held on November 19, 2019, the court noted that ILWU’s unclean 12 hands defense seemed “speculative so far.” See Docket No.56 at 24:22-23. It advised ILWU that 13 the union “need[s] to connect the dots better before [Panama discovery] becomes proportional.” Id. 14 at 24:25-25:6. The court observed that some of the information relevant to the unclean hands 15 defense would likely be in the United States, such as the testimony of Familathe and Mitre, and that 16 the depositions of those individuals should be completed before engaging in international discovery. 17 Id. In the hearing on the current motion, the court again noted that there was little evidentiary 18 support for the equitable defense and that ILWU had not yet taken either Familathe’s or Mitre’s 19 deposition. Accordingly, the court allowed ILWU to proceed with those depositions and file 20 supplemental briefing “on the narrow issue of whether ILWU has sufficient factual grounds to seek 21 additional information about its equitable defense” from sources in Panama. [Docket No. 99.] 22 ILWU filed a supplemental brief on September 23, 2020 and attached portions of the 23 transcripts for Familathe’s and Mitre’s depositions as well as text messages between Mitre and 24 Salas. Docket Nos. 109 (“ILWU Supp. Br.”); 110, Second Declaration of Eleanor Morton (“Second 25 Morton Decl.”). It also attached two expert reports. One of the reports concludes that the 1,079 26 ballots received from Panama were all filled out by a small group of one to four individuals. The 27 other expert opines that the Panamanian ballots were anomalous when compared with the other 28 ballots cast in the 2018 election. Second Morton Decl., Exs. S and T. 14 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 15 of 17 With respect to the supplemental deposition testimony, Mitre testified that he was in contact 2 with Salas about the voting process for members of SINTRAPORSPA but he (1) did not know 3 whether Salas was also in communication with Familathe at the time; (2) did not know whether 4 Salas was the person who picked up the ballots from the post office; (3) did not know whether the 5 membership list he provided from SINTRAPORSPA was accurate; (4) did not know whether 6 everyone who completed a ballot for SINTRAPORSPA was a member of the local at the time of 7 the election; and (5) has never talked with Salas about how the ballots were completed. Second 8 Morton Decl, Ex. U, Deposition of Greg Mitre (“Mitre Depo.”) at 110:13-18; 124:8-24; 136:11-20; 9 139:11-20; 141:9-13; 141:18-22. Familathe similarly testified that he (1) did not know who was 10 responsible for tracking the membership of SINTRAPORSPA; (2) had no information about 11 United States District Court Northern District of California 1 whether the membership list provided by SINTRAPORSPA was correct; (3) never talked to Salas 12 about who picked up the ballots from the post office; and (4) did not know how the ballots were 13 collected or where they were filled out. Second Morton Decl., Ex. Y, Deposition of Ray Familathe 14 (“Familathe Depo.”) at 79:11:18; 79:20-80:17; 217:4-15; 219:13-21. At most, the testimony shows 15 that Familathe and Mitre were in contact with Salas and were encouraging members of 16 SINTRAPORSPA to vote. While ILWU says that these communications show “deep concern” by 17 the deponents that the Panama ballots were filled out and mailed, that is hardly surprising given that 18 Familathe and Mitre were campaigning in Panama. Their testimony does not raise an inference that 19 their campaign activities were inappropriate. See ILWU Supp. Br. at 3. ILWU argues that 20 Familathe’s and Mitre’s lack of communication about certain topics, such as their failure to ask what 21 union officials were doing to “count and track the number of Panama ballots cast,” is somehow in 22 itself suspicious, even though ILWU also admits that candidates would not normally be privy to this 23 information in a secret ballot election. Id. The text messages between Mitre and Salas also show 24 no sign of Mitre encouraging or condoning improper voting procedures. In fact, Mitre asked Salas 25 several times how many members had filled out their ballots and told him “I hope everything is fine 26 and you get a lot of people participating!!” See Second Morton Declaration, Ex. W at 14. This 27 exchange does not suggest that Mitre knew or encouraged a small group of individuals to fill out all 28 the ballots. While Mitre did ask Salas whether “everything [is] proceeding as planned,” there is no 15 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 16 of 17 1 indication that the “plan” was anything other than to encourage voter participation. See id. at 13. 2 In short, none of the additional evidence submitted by ILWU furthers their theory that Familathe’s 3 campaign engaged in or encouraged election fraud. 4 Based on the above considerations, the court makes the following findings. ILWU has 5 shown that there is information in Panama that is relevant to the claims and defenses in this case, 6 that the information is necessary to adequately respond to DOL’s allegations, and that the 7 information sought is not available in the United States. However, ILWU’s requests are somewhat 8 overbroad. First, ILWU has not adequately supported their request to depose multiple individuals 9 from SINTRAPORSPA and PCPU. For example, ILWU requests depositions from SINTRAPORSPA (in a manner similar to a 30(b)(6) deposition), Salas (the SINTRAPORSPA 11 United States District Court Northern District of California 10 Secretary of Defense) and Jimenez (the SINTRAPORSPA Secretary – Treasurer). The information 12 sought from each of these deponents is nearly identical and thus duplicative. Similarly, ILWU 13 requests depositions from PCPU, Rankin and Fueillet (PCPU officers and ILWU Convention 14 delegates), and Moreno (the PCPU Secretary General and an ILWU Convention delegate). The 15 proposed discovery related to these deponents is also virtually identical. According, the court finds 16 it appropriate to allow depositions from one SINTRAPORSPA representative, one PCPU 17 representative, and one representative from each of Panama Ports and Serviestiba, S.A., the 18 employers of dock workers who were members of SINTRAPORSPA. Given ILWU’s sparse 19 evidence relating to its unclean hands theory, ILWU’s request to take discovery in Panama on that 20 topic is denied. 21 Further, the court has narrowed the scope of the permissible deposition topics to those 22 directly relevant to the claims and defenses in the case.9 The modifications are reflected in the 23 amended letters rogatory that the court will issue separately. ILWU’s document requests have been 24 similarly narrowed. 25 26 27 28 9 For example, ILWU requests information relating to the past three elections of SINTRAPORSPA members. At the hearing, ILWU did not make a satisfactory showing that the past three SINTRAPORSPA elections are relevant to DOL’s allegations or ILWU’s defenses, and such discovery is overbroad and not proportional to the needs of this case. 16 Case 4:19-cv-02103-DMR Document 123 Filed 11/18/20 Page 17 of 17 1 III. CONCLUSION 2 For the reasons stated above, ILWU’s motion for issuance of letters rogatory is granted in 3 part and denied in part. The court will sign and affix its seal to the letters rogatory as amended by 4 the court and will return the letters to ILWU’s counsel for forwarding to the United States 5 Department of State. S FO ER 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 A H 11 United States District Court Northern District of California R NIA u ______________________________________ a M. Ry on Ryu e DM.n udg JDonna United States Magistrate Judge RT 10 Dated: November 18, 2020 D RDERE IS SO O IT NO 9 IT IS SO ORDERED. LI 8 UNIT ED 7 RT U O 6 ISTRIC ES D TC AT T N F D IS T IC T O R C

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