Low v. Trump University, LLC et al

Filing 95

ORDER on Discovery Issues. Signed by Magistrate Judge William V. Gallo on 3/2/12.(lmt) (jcj).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

)
)
)
)
)
)
)
)
)
)
)

TARLA MAKAEFF et al.,

12

Plaintiffs,

13

v.

14

TRUMP UNIVERSITY, LLC et al.,

15

Defendants.

Civil No. 10-CV-940-CAB(WVG)
ORDER ON DISCOVERY ISSUES

16
17

Rather than comply with the Court’s Chambers Rules on the

18

informal dispute resolution process or the Civil Local Rules on

19

Applications for Reconsideration, the parties sent e-mail communica-

20

tions directly to the Court’s research attorney without advance

21

notice.

22

issues presented in the e-mails.

23

After some admonishments below, the Court rules on the

I.

BACKGROUND

24

On January 6, 2012, without first contacting the Court by

25

telephone as required by Chambers Rules, Defendants submitted a 13-

26

page letter-brief on various written discovery disputes.

27

violated the Court’s Chambers Rules in more than one way.

28

given the nature and number of disputes, the Court elected to

1

This

However,

10CV940

1

overlook

Defendants’

transgression

and

accepted

the

brief.

2

Plaintiffs’ response brief included additional disputes that were

3

not included in Defendants’ brief.

4

issued on February 13, 2012.

An Order on these disputes

(Doc. No. 93.)

5

On February 22, 2012, counsel for Defendants sent an e-mail

6

directly to the Court’s research attorney and asked for an extension

7

of time to comply with a portion of the February 13, 2012, Order.

8

Although improper and violative of the Court’s Chambers Rules’

9

provision on communicating with chambers, the Court again elected to

10

overlook the transgression because the e-mail contained no legal

11

arguments and was essentially a written version of information

12

counsel would have conveyed via telephone.

13

That same day, Plaintiffs’ counsel sent a response e-mail to

14

the Court’s research attorney.

15

Defendants’ e-mail, Plaintiffs sought reconsideration of portions of

16

the February 13, 2012, Order, made arguments, and cited legal

17

authorities to that end.

18

Rules and Civil Local Rules. Two additional e-mails followed before

19

the Court had a chance to respond and ask the parties to cease.

20

In addition to responding to

This violated both the Court’s Chambers

II.

RULINGS

21

In the interest of efficiency, the Court again elects to

22

overlook the failure to comply with the rules and the violations of

23

protocol.

24

Court will summarily reject all future briefing, which may result in

25

the dispute not being heard if the time for bringing the dispute to

26

the Court’s attention has passed.

However, should the parties again fail to comply, the

27

Furthermore, through its recent dealings with the parties,

28

the Court has noticed a tendency to take liberties with presenting

2

10CV940

1

case law and facts in a manner that favors them, but which may not

2

be a faithful reading of the case, does not recognize distinctions

3

that set cases apart from theirs, or ignores the outcome of the case

4

or other contrary reasoning in a court’s opinion.

5

matter,

6

congruity of a case with yours, and citing a select passage but

7

failing to recognize that the remaining discussion or the outcome

8

militate against one’s argument are generally considered improper or

9

poor advocacy.

10

not

accurately

characterizing

a

case,

As a general

overstating

the

Indeed, as one jurist advised long ago:

“Nothing, perhaps so detracts from the force and persuasiveness of an argument as for the lawyer to claim more than he
is reasonably entitled to claim. Do not ‘stretch’ cases
cited and relied upon too far, making them appear to cover
something to your benefit they do not cover. Do not try to
dodge or minimize unduly the facts which are against
you. . . . .”

11
12
13
14

Antonin Scalia & Bryan A. Garner, Making Your Case:

The Art of

15

Persuading Judges 13 (2008) (quoting Hon. Wiley B. Rutledge).

16

Court is dismayed that the parties appear to advocate polarized

17

positions based on skewed, inaccurate, or incomplete interpretations

18

and representations.

19

clients to take better care in the future when they interpret case

20

law and advocate their position in a manner that is faithful to the

21

authority cited.

22

Court if this behavior continues. With these admonitions, the Court

23

now continues to the disputes at issue.

24

A.

The

The Court cautions the attorneys and their

Rule 11 sanctions always remain an option for the

Request For Extension of Time to Respond to RFP No. 11

25

By stipulation between the parties, Defendants’ request for

26

extension of time to respond to Plaintiff’s RFP No. 11 is granted.

27

Defendants shall respond no later than March 13, 2012.

28

3

10CV940

1

C.

Financial Privacy and Defendants’ Redaction of Contracts

2

Defendants

provided

a

list

of

putative

class

members,

3

identified the course each took, and provided a separate price list

4

for each course.

5

the

6

Defendants shall submit additional briefing on the propriety of the

7

redaction of the purchase amounts in the contracts, especially in

8

light of the fact that it appears each redacted purchase amount can

9

be ascertained by cross-referencing the two lists that together

10

identify each student, the course he or she purchased, and the price

11

of each course.

course

Plaintiffs object only that Defendants redacted

costs

on

the

individual

contracts

they

produced.

12

Keeping in mind the admonitions above, if Defendants choose

13

to continue to defend the redaction of the contracts on the basis of

14

a privacy right, the redacted information very well better be the

15

kind of information the privacy doctrine protects and that they do

16

not

17

contains numbers and a dollar sign (unless of course, a good faith

18

reading of the doctrine actually protects numbers and dollar signs

19

alone).

20

assert

it

simply

because

the

redacted

information

simply

Other than the above, the Court is satisfied that Defendants

21

have

22

calculate damages.

23

D.

24

produced

sufficient

information

to

allow

Plaintiffs

to

Communications With Putative Class Members
Plaintiffs seek the Court’s reconsideration of its ruling on

25

Plaintiffs’ response to Defendants’ RFP No. 15.

26

rather than being compelled to produce all of Plaintiffs’ counsel’s

27

communications with putative class members for in camera review,

28

Plaintiffs seek to produce either a privilege log or declaration.

4

Specifically,

10CV940

1

The Court is persuaded by some of Plaintiffs’ cases.

Rather

2

than produce documents for in camera review, Plaintiffs shall

3

produce a privilege log and declaration(s) to meet their burden to

4

establish “facts necessary to support a prima facie claim of

5

privilege . . . .”

6

P.3d 736, 741 (Cal. 2009).

7

mindful to fully discuss the dominant purpose of the subject

8

communication(s) as well the participants’ contemplated relation-

9

ship. See generally Taylor v. Waddell & Reed, Inc., 2011 U.S. Dist.

Costco Wholesale Corp. v. Superior Court, 219
When doing so, Plaintiffs should be

10

LEXIS 54109 (S.D. Cal. May 20, 2011).

11

need show more than the mere fact that counsel simply sent general

12

letters or e-mails to a putative class member because, as in Taylor,

13

the pivotal question is the nature of the relationship as well as

14

what counsel and the putative class members contemplated at the time

15

of the communication.

16

In other words, Plaintiffs

Defendants’ citation to In re McKesson HBOC, Inc. Secs.

17

Litig., 126 F. Supp. 2d 1239 (N.D. Cal. 2000), is unhelpful.

18

issue before that court was whether opposing counsel was barred by

19

ethics rules from communicating with putative class members.

20

court’s conclusion that putative class member were not “represented”

21

was in the context of a professional ethics rule that prohibited

22

communication with “represented” parties.

23

words, the court analyzed a very specific word used in a specific

24

ethics rule.

25

Rptr. 773, 776 (Cal. Ct. App. 1985) (citing former California Rule

26

of Professional Conduct 7-103)).

27

reasoning or conclusion in McKesson to the attorney-client privilege

28

context at issue here.

Id. at 1245.

The

The

In other

Id. (citing Atari, Inc. v. Superior Court, 212 Cal.

The Court declines to extend the

Defendants certainly have not provided the

5

10CV940

1

Court any reason why McKesson and its conclusion apply in this

2

context.

3

III.

4

CONCLUSION

The parties shall proceed in accordance with this Order.

5

IT IS SO ORDERED.

6

DATED:

March 2, 2012

7
8
Hon. William V. Gallo
U.S. Magistrate Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

6

10CV940