Steshenko v. McKay et al

Filing 375

ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO MAGISTRATE JUDGE'S ORDERS ENTERED APRIL 25, 2012. Signed by Judge Richard Seeborg on 7/2/12. (cl, COURT STAFF) (Filed on 7/2/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION 11 For the Northern District of California United States District Court 10 12 GREGORY NICHOLAS STESHENKO, Plaintiff, 13 14 v. 15 16 ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S ORDERS ENTERED APRIL 25, 2012 THOMAS MCKAY, et al., 17 No. C 09-5543 RS Defendants. 18 ____________________________________/ 19 20 Plaintiff Gregory Steshenko challenges certain aspects of the discovery orders issued by the 21 22 assigned magistrate judge in two orders entered on April 25, 2012.1 A district court may modify a 23 magistrate judge’s ruling on a non-dispositive matter only if the order is “clearly erroneous” or 24 “contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Bahn v. NME Hospitals, Inc., 929 25 26 27 28 1 This order addresses Steshenko’s challenges raised in Docket No. 298. Steshenko filed a separate motion attacking a specific aspect of one of the magistrate judge’s orders issued on April 25, 2012, which Steshenko incorrectly characterized as a “dispositive” ruling. That challenge will be addressed by separate order, to issue in due course. 1 F.2d 1404, 1414 (9th Cir. 1991). Because Steshenko has shown no such error here, his objections to 2 the orders will be overruled. 3 4 1. Steshenko’s motion to compel Hospital Defendants to disclose the “source” of allegedly privileged information underlying a discovery request. 5 6 The Hospital Defendants propounded Document Request No. 26, seeking production of 7 Steshenko’s W-2 forms dating back to 2005. Steshenko asserts that the time period specified in the 8 request is of “special significance” to him, and that he disclosed the facts regarding that significance 9 to his former attorney in this matter, with the expectation of attorney-client confidentiality. Steshenko speculated that defendant’s request for his W-2 forms covering that time period must 11 For the Northern District of California United States District Court 10 have been motivated by their receipt of information improperly disclosed to them by his former 12 counsel, and he moved to compel them to disclose the “source” of the information on which they 13 based the request (Dkt. No. 180). In response, defendants declared that they received no 14 information from plaintiff’s former counsel except materials provided in discovery responses. They 15 further explained that the time period stated in Request No. 26 merely reflects the four years prior to 16 plaintiff’s termination from the nursing program, which they believed represented a reasonable 17 balance between seeking potentially relevant information and imposing burdens on Steshenko. The 18 magistrate judge declined to grant Steshenko’s motion to require any further response. 19 Steshenko has shown no error in the magistrate judge’s ruling. Whatever “special 20 significance” the time period from 2005 may hold for him, there is no basis to conclude that 21 defendants were in the possession of privileged information when they formulated and propounded 22 Request No. 26. Given plaintiff’s damages claims in this action, it is well within routine defense 23 discovery practice to seek information relating to his earnings during the time period prior to the 24 events at issue, and selecting a four year range was completely reasonable. It may be that by some 25 happenstance that time period coincided with something of “special significance” to Steshenko, but 26 the record supports no reasonable inference of misconduct, nor is there any basis to compel 27 defendants to provide information they simply do not possess. Steshenko’s objection to the 28 magistrate judge’s ruling is overruled. 2 1 2. Steshenko’s motion to “suppress evidence” 2 In response to discovery requests seeking Steshenko’s academic records, his former counsel 3 produced a document reporting his GRE scores, and listing the academic institutions to which the 4 scores had been sent. When defendants subsequently propounded discovery relating to any 5 applications Steshenko had made to those institutions, he initially accused defendants of having 6 obtained confidential information from his prior counsel outside the discovery process. See Order 7 dated March 29, 2012 at 2:20-4:6. Steshenko now apparently understands that the document was in 8 fact produced by his former counsel in discovery, although he contends it should not have been. institutions to which the scores were sent (Dkt. No. 181). Although that motion referred to the 11 For the Northern District of California Steshenko moved to “suppress” the document containing his GRE scores and the list of 10 United States District Court 9 possibility that the document had been produced through “negligence,” it also reiterated Steshenko’s 12 suspicions that defendants had obtained it, and other information, through “improper means.” See, 13 e.g., Dkt. No 181 at 2:23-3:2; 3:11-12. The magistrate judge denied the motion, noting among other 14 things that the record supports no inference of collusion between his former attorney and 15 defendants. 16 Steshenko now recharacterizes his underlying motion as one that sought only to address 17 “inadvertent production,” and he argues that the magistrate judge’s order erroneously focused on the 18 lack of evidence of any conspiracy involving his former counsel and defendants. Regardless of how 19 the underlying motion should be characterized, however, Steshenko has shown no error in the 20 magistrate judge’s disposition of it. Neither the document nor the information it contained 21 regarding his GRE scores and the institutions that received those scores is subject to attorney-client 22 privilege. See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (“The privilege only protects 23 disclosure of communications; it does not protect disclosure of the underlying facts by those who 24 communicated with the attorney.”) While Steshenko could not have been compelled to testify as to 25 what documents he gave to his attorney, merely giving an otherwise unprivileged document to an 26 attorney does not cloak that document with the privilege or otherwise make it exempt from to 27 discovery. See id. at 395-96. 28 3 1 Whether the document necessarily was responsive to any of defendants’ then-pending 2 document requests is arguably a closer question. Even assuming, however, that Steshenko’s former 3 counsel would have been justified in withholding it from production, there is no basis to “suppress” 4 it at this juncture. Whether Steshenko’s GRE scores or the list of institutions to which they were 5 sent would be admissible at trial is a matter to be determined only if and when such evidence is 6 offered. To the extent defendants may seek further discovery flowing from the information in this 7 document, the relevance of any such requests, and/or burdens imposed thereby, can and should be 8 evaluated on the merits of those requests. Steshenko has not shown that the magistrate judge’s 9 ruling is clearly erroneous or contrary to law, and his objection is overruled. 11 For the Northern District of California United States District Court 10 3. Steshenko’s request for judicial notice 12 Steshenko filed a request for judicial notice as a stand-alone motion. (Dkt. No. 182). The 13 motion sought to establish a series of facts relating to current economic conditions, recent 14 unemployment statistics, historical job loss in American industries, and discrimination in hiring 15 against the long-term unemployed. Even if such facts could properly be established through judicial 16 notice, they are at most relevant to the question of whether Steshenko’s efforts to mitigate his 17 damages have been adequate, which may be presented as an issue at trial. Nothing in any of the 18 pending discovery disputes turned on that issue, or on the accuracy of the statistics and assertions 19 presented in the request for judicial notice. While Steshenko may very well be able to establish that 20 economic conditions have prevented him from obtaining other employment and that his mitigation 21 efforts have been more than satisfactory, that has no bearing on the discovery disputes raised in the 22 underlying motions. Steshenko has shown no error in the magistrate judge’s decision to decline 23 taking judicial notice, and his objection is overruled. 24 25 4. Steshenko’s motions to compel further document production 26 Steshenko filed two motions (Dkt. Nos. 183 and 215) to compel further document 27 production from the College Defendants, which were granted in part, and denied in part. Steshenko 28 challenges the portions of the magistrate judge’s orders that denied relief as to some of the 4 1 document requests in dispute. Steshenko’s objections, however, merely assert that the materials he 2 seeks are relevant to his claims, or take issue with conclusions that certain requests were responded 3 to fully. He fails to explain how or why the magistrate judge’s ruling was clearly erroneous or 4 contrary to law. The Court has reviewed the underlying motions and the magistrate judge’s orders 5 and finds no error. Steshenko’s objections are overruled. 6 7 5. Steshenko’s motions to quash third-party subpoenas 8 Pursuant to Rule 45(c)(3) of the Federal Rules of Civil Procedure, Steshenko moved to 9 quash a third-party subpoena issued to the State of California Employment Development Department (Dkt. No. 230). Without specifically citing any rule, Steshenko similarly moved to 11 For the Northern District of California United States District Court 10 quash a subpoena served on Johns Hopkins University. (Dkt. No. 210). Both motions were denied 12 on grounds that the subpoenas were issued under the authority of other district courts, such that any 13 challenges must be brought in those courts. Relying on Rule 26(c)(1), Steshenko now argues that, 14 as a party, he is entitled to seek a protective order in this district against the subpoenas. 15 In addition to the fact that he did not rely on Rule 26 in moving to quash the subpoenas, 16 Steshenko’s argument is foreclosed by S.E.C. v. CMKM Diamonds, Inc., 656 F.3d 829 (9th Cir. 17 2011). In that case, the Ninth Circuit expressly held “the issuing court, and not the court where the 18 underlying action is pending, has the authority to consider motions to quash or modify subpoenas.” 19 Id. at 832. Quoting In re Sealed Case, 141 F.3d 337, 341 (D.C.Cir.1998), the CMKM Diamonds 20 court observed that “[s]ubpoenas are process of the issuing court, . . . and nothing in the Rules even 21 hints that any other court may be given the power to quash or enforce them.” Id. Accordingly, 22 Steshenko’s objection to the magistrate judge’s denial of his motions to quash is overruled. 23 24 IT IS SO ORDERED. 25 26 27 Dated: 7/2/12 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 28 5

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