Mir v. Medical Board of California et al
Filing
235
ORDER Overruling Plaintiff's Objections and Affirming Magistrate Judges' Orders 183 , 185 , 215 . Signed by Judge Gonzalo P. Curiel on 1/17/17. (All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JEHAN ZEB MIR,
Case No.: 3:12-cv-02340-GPC-DHB
Plaintiff,
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ORDER OVERRULING
PLAINTIFF’S OBJECTIONS AND
AFFIRMING MAGISTRATE
JUDGES’ ORDERS
v.
KIMBERLY KIRCHMEYER et al.,
Defendants.
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[ECF Nos. 183, 185, 215.]
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Before the Court are Plaintiff Jehan Zeb Mir’s (“Plaintiff’s”) three sets of
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Objections to Orders issued by Magistrate Judge David H. Bartick and Magistrate Judge
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Louisa S. Porter:
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1. Objections (Dkt. No. 183) to Judge Bartick’s June 27, 2016 Order denying
Plaintiff’s motion to compel a further deposition of Joshua Bardin (Dkt. No. 174);
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2. Objections (Dkt. No. 185) to (1) Judge Bartick’s June 21, 2016 Order denying in
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part and reserving in part Plaintiff’s ex parte application to compel Defendant
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Kimberly Kirchmeyer to produce documents (Dkt. No. 169) and to (2) Judge
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Bartick’s July 1, 2016 Supplemental Order sustaining Kirchmeyer’s assertion of
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the deliberative process privilege and declining to compel Kirchmeyer to produce
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any further documents to Plaintiff (Dkt. No. 177); and
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3. Objections (Dkt. No. 215) to Judge Porter’s November 14, 2016 Order denying
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Plaintiff’s motion to compel production of documents from Defendant Sharon
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Levine (Dkt. No. 207).
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Defendants Kimberly Kirchmeyer and Sharon Levine, M.D. (collectively, “Defendants”),
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filed three separate responses to each set of Plaintiff’s Objections. (Dkt. Nos. 228, 229,
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221, respectively.) Plaintiff filed three replies. (Dkt. Nos. 231, 233, 234.)
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The Court deems Plaintiff’s Objections suitable for disposition without oral
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argument pursuant to Civil Local Rule 7.1(d)(1). Having reviewed the parties’ briefing
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and the applicable law, and for the reasons set forth below, the Court OVERRULES
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Plaintiff’s three sets of Objections and AFFIRMS Magistrate Judge Bartick’s and
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Magistrate Judge Porter’s Orders.
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BACKGROUND
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Because the Court has previously recited the facts of this case at length, (see Dkt.
No. 159), the Court will not repeat them here.
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Plaintiff initiated this action on September 25, 2012, alleging that Defendants
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wrongfully took disciplinary action against his physician’s and surgeon’s certificate.
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(Dkt. No. 1.) Plaintiff seeks prospective injunctive relief under 42 U.S.C. § 1983 against
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Defendants in their official capacities, challenging the underlying California Medical
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Board’s decision to revoke his license. (Dkt. No. 159 at 39.1)
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For clarity, the Court will detail the relevant procedural background to each set of
Plaintiff’s Objections infra in the Discussion section.
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LEGAL STANDARD
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Under Federal Rule of Civil Procedure 72(a), aggrieved parties may file objections
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to the rulings of a magistrate judge in non-dispositive matters within fourteen days.
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Fed. R. Civ. P. 72(a). In reviewing a magistrate judge’s order, the district judge “must
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All citations to the record refer to pagination generated by the CM/ECF system.
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consider timely objections and modify or set aside any part of the order that is clearly
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erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); see
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also United States v. Raddatz, 447 U.S. 667, 673 (1980); Osband v. Woodford, 290 F.3d
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1036, 1041 (9th Cir. 2002). Under the “clearly erroneous standard,” a court should
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overturn a magistrate judge’s ruling when it is “left with the definite and firm conviction
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that a mistake has been committed.” See Concrete Pipe & Prods. of Cal., Inc. v. Constrs.
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Laborers Pension Trust, 508 U.S. 602, 622 (1993). A magistrate judge’s legal
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conclusions as to non-dispositive matters are reviewable for clear error. Grimes v. City &
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Cnty. of San Francisco, 951 F.2d 236, 240–41 (9th Cir. 1991) (citing Maisonville v. F2
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America, Inc., 902 F.2d 746, 747–48 (9th Cir. 1990)).
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DISCUSSION
I.
Plaintiff’s First Set of Objections (Dkt. No. 183)
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A. Plaintiff’s Deposition of Dr. Bardin
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On October 21, 2015, Plaintiff served a deposition subpoena on third party Joshua
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Bardin, M.D. (“Dr. Bardin”) and included in the subpoena a request to produce
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documents. (Dkt. No. 157-2.) Dr. Bardin’s counsel invited Plaintiff to provide him with
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any documents Plaintiff wanted Dr. Bardin to review prior to the deposition, but Plaintiff
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did not provide counsel with any documents. (Dkt. No. 157-4 at 3, ¶ 4.)
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On December 16, 2015, Dr. Bardin appeared for his deposition. (Dkt. No. 157-3.)
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In response to Plaintiff’s document requests, Dr. Bardin produced his curriculum vitae,
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board certification, and license, but stated that he did not have any of the other documents
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that Plaintiff sought. (Id. at 4–6.) Dr. Bardin also testified that he did not have any
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copies of written communications with officials from the Board regarding Plaintiff’s
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underlying administrative matter, and that he lacked recollection of the medical journals,
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articles, and books upon which he based his testimony in October 2004. (Id. at 5.) Dr.
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Bardin stated that he did not review any documents before the deposition. (Id. at 15.)
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The deposition concluded after less than ninety minutes. (Id. at 61–62.) Shortly
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into the deposition, Plaintiff expressed frustration with Dr. Bardin’s inability to recall
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certain events and assumed that Dr. Bardin would thereafter be unable to answer
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Plaintiff’s remaining questions. (See, e.g., id. at 28–29.) Plaintiff asserted that the
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deposition had to be continued because Dr. Bardin had not reviewed his testimony from
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the underlying administrative proceedings or the medical records. (Id.) Despite opposing
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counsel’s repeated, good-faith efforts to encourage Plaintiff to proceed with the
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deposition, Plaintiff refused and responded that doing so would take too much time.
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(See, e.g., id. at 29–50, 59–60.) Plaintiff unilaterally terminated the deposition. (Id. at
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60–61.) Opposing counsel advised Plaintiff that Dr. Bardin would not agree to continue
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the deposition. (Id. at 45 – 46; Dkt. No. 157-1 at ¶¶ 5–6; Dkt. No. 157-4 at ¶¶ 7–8.)
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B. Magistrate Judge Bartick’s Order (Dkt. No. 174)
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On April 15, 2016, Plaintiff filed an ex parte motion to compel a further deposition
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of Dr. Bardin. (Dkt. No. 150.) On June 27, 2016, Judge Bartick denied Plaintiff’s
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motion to compel a further deposition of Dr. Bardin. (Dkt. No. 174.) Judge Bartick
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began by noting Plaintiff’s continued failure to comply with Judge Bartick’s chambers
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rules and orders, the Southern District’s Civil Local Rules, and the Federal Rules of Civil
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Procedure, despite prior warning from the Court. (Id. at 3–4.) Although it would have
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been well within Judge Bartick’s discretion to reject Plaintiff’s motion solely for
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Plaintiff’s noncompliance with multiple rules, Judge Bartick nonetheless addressed the
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merits of the parties’ discovery dispute. (Id.)
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First, Judge Bartick cited Federal Rule of Civil Procedure 45(d)(1)’s requirement
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that “[a] party or attorney responsible for issuing and serving a subpoena must take
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reasonable steps to avoid imposing undue burden or expense on a person subject to the
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subpoena.” (Id. at 4–5.) Judge Bartick also noted that Rule 45 does not impose a duty on
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a non-entity witness to review documents or otherwise prepare in advance of the
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deposition. (Id. at 5.) Judge Bartick then concluded that Dr. Bardin fulfilled his
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obligations under the subpoena by appearing for deposition on December 16, 2015, and
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by bringing the requested documents that he had in his possession. (Id.) Judge Bartick
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then concluded that Plaintiff’s refusal to continue questioning Dr. Bardin was
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unreasonable, inappropriate, and based on speculation. (Id. at 5–6.) Judge Bartick found
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that Plaintiff’s actions did not constitute “reasonable steps to avoid imposing undue
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burden or expense on a person subject to the subpoena” under Rule 45(d)(1) and denied
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Plaintiff’s motion. (Id.)
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C. Plaintiff’s Grounds for Objections
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Plaintiff objects on grounds that (1) Dr. Bardin is an expert; (2) Dr. Bardin did not
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produce documents as required under Rule 45(a)(1)(C)–(D), even though the documents
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were available to him and under his control; and (3) it was appropriate to terminate the
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deposition in order to provide Dr. Bardin with documents and time to refresh his
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recollection. (Dkt. No. 183 at 5–9.) In support of his motion to compel a further
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deposition of Dr. Bardin, Plaintiff cites Orrison v. Balcor Co., 132 F.R.D. 202, 203 (N.D.
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Ill. 1990) and Ethicon Endo-Surgery v. U.S. Surgical Corp., 160 F.R.D. 98, 99–100 (S.D.
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Ohio 1995), cases wherein motions to compel further deposition of witnesses were
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granted. (Id. at 8–9.) Finally, Plaintiff argues that continuing the deposition would
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impose no prejudice on Dr. Bardin. (Id. at 9–10.)
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Plaintiff’s grounds for objections amount to disagreement with Judge Bartick’s
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Order and fail to clear the high bar of demonstrating clear error. First, Plaintiff cannot
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demonstrate that Judge Bartick’s conclusion that Dr. Bardin is not an expert witness is
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contrary to law or clearly erroneous. Judge Bartick properly concluded that while Dr.
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Bardin was formerly a medical expert for the California Medical Board and was retained
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for purposes of testifying in the underlying disciplinary proceedings, Dr. Bardin was not
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retained or designated as an expert for purposes of this instant action. (Dkt. No. 174 at
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2.) Second, Dr. Bardin testified on the record that he did not have in his possession any
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of the other documents Plaintiff sought. (Dkt. No. 157-3 at 4–6.) Third, Plaintiff cites no
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law in support of his position that it was appropriate to unilaterally terminate the
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deposition to (1) provide Dr. Bardin with documents that Plaintiff did not provide to Dr.
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Bardin beforehand despite opposing counsel’s invitation to do so, and (2) provide Dr.
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Bardin with more time to refresh his recollection, despite the fact that nearly six hours of
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deposition time remained and the fact that Plaintiff improperly assumed that Dr. Bardin
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would be unable to answer his remaining questions. Furthermore, Plaintiff’s legal
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authorities are inapposite. See Contardo v. Merrill Lynch, Pierce, Fenner and Smith, 119
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F.R.D. 622, 625 (D. Mass. 1988) (holding that plaintiff could not circumvent an order
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prohibiting further discovery in the case “by serving a subpoena duces tecum upon an
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employee of the defendant commanding the employee to produce documents within the
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custody, control and/or possession of the defendant”); Orrison v. Balcor Co., 132 F.R.D.
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202, 203 (N.D. Ill. 1990) (holding that plaintiff could be required to submit to a second
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deposition even though the discovery cut-off date had passed because plaintiff “brought
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numerous documents which had not been produced previously” when appearing for the
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first deposition, and “[n]one of the defendants had a sufficient opportunity to review the
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documents prior to the deposition”); and Ethicon Endo-Surgery v. U.S. Surgical Corp.,
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160 F.R.D. 98, 99 (S.D. Ohio 1995) (concluding that “[t]he record reflects numerous
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instances of improper instructions to witnesses not to answer questions by attorneys”).
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Judge Bartick’s Order was neither contrary to law nor clearly erroneous.
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Accordingly, this Court OVERRULES Plaintiff’s Objections (Dkt. No. 183) and
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AFFIRMS Judge Bartick’s Order (Dkt. No. 174).
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II.
Plaintiff’s Second Set of Objections (Dkt. No. 185)
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A. Judge Bartick’s Orders (Dkt. Nos. 169, 177)
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On October 19, 2015, Plaintiff served a Request for Production of Documents on
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Defendant Kimberly Kirchmeyer (“Kirchmeyer”). (Dkt. No. 148 at 44–48.) In Requests
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Nos. 2, 6, and 10, Plaintiff requested minutes from the closed session meetings that the
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Medical Board held in 2006, 2008, and 2010 concerning the disciplinary action against
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Plaintiff. (Id.) On December 22, 2015, Kirchmeyer responded and asserted that the
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deliberative process privilege applied to the minutes from the closed sessions of the
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Board meetings. (Id. at 50–68.)
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On April 15, 2016, Plaintiff filed an ex parte motion to compel Kirchmeyer to
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produce documents. (Dkt. No. 148.) On June 21, 2016, Judge Bartick denied in part and
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reserved in part Plaintiff’s motion. (Dkt. No. 169.) Specifically, because Kirchmeyer did
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not provide a privilege log or a declaration substantiating her claim of deliberative
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process privilege, Judge Bartick reserved ruling on whether Kirchmeyer should be
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compelled to produce documents responsive to Plaintiff’s Requests for Production Nos.
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2, 6, and 10. (Id. at 4–6.)
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In addition, Judge Bartick noted Plaintiff’s failure to comply with the Court’s
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procedures for filing discovery motions, the Court’s rules governing ex parte
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applications, and the duty to meet and confer prior to bringing a discovery motion under
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Federal Rule of Civil Procedure 37(a) and under the Southern District’s Civil Local Rule
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26.1(a). (Dkt. No. 169 at 2–3.) Moreover, Plaintiff’s motion was untimely by two
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months without justification. (Id. at 3.) As Judge Bartick correctly stated, (id.), it would
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have been well within Judge Bartick’s discretion to reject Plaintiff’s motion for these
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reasons alone. See, e.g., Civ. L.R. 26.1(a) (“The court will entertain no motion pursuant
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to Rules 26 through 37, Fed. R. Civ. P., unless counsel will have previously met and
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conferred concerning all disputed issues.”); Rogers v. Giurbino, 288 F.R.D. 469, 477
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(S.D. Cal. 2012) (“A court can deny a motion to compel solely because of a party’s
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failure to meet and confer prior to filing the motion.”); Scheinuck v. Sepulveda, No. C 09-
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0727 WHA PR, 2010 WL 5174340, at *1 (N.D. Cal. Dec. 15, 2010) (same).
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On June 29, 2016, Kirchmeyer filed a declaration and privilege log pursuant to the
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Court’s June 21, 2016 Order. (Dkt. No. 176.) In a Supplemental Order on July 1, 2016,
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Judge Bartick concluded that the closed session minutes were predecisional and
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deliberative, and that Plaintiff’s need for the minutes did not outweigh the Board’s
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interest in nondisclosure. (Dkt. No. 177 at 3.) Judge Bartick further found that
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disclosure of the closed session minutes could chill frank and open discussion by Board
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members during closed session deliberations. (Id. at 4.) Accordingly, Judge Bartick
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sustained Kirchmeyer’s assertion of the deliberative process privilege. (Id.)
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B. Plaintiff’s Grounds for Objections
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Plaintiff asserts five objections: (1) the deliberative process privilege does not
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apply to civil rights claims (Dkt. No. 185 at 4–6); (2) Kirchmeyer’s assertion of the
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qualified deliberative process privilege is overcome by a number of factors, which the
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Court did not consider (id. at 6–8); (3) Kirchmeyer’s declaration is not consistent with the
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privilege log, which is independently defective (id. at 8–10); (4) administrative decisions
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are not protected by the deliberative process privilege (id. at 10); and (5) the privilege
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was waived by the publication of the Board’s decisions (id. at 10–11).
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Again, Plaintiff’s grounds for objections amount to disagreement with Judge
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Bartick’s Orders and fail to clear the high bar of demonstrating clear error. First, Plaintiff
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provides no legal authority to support his assertion that the deliberative process privilege
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does not apply to civil rights claims. Plaintiff’s cites to factually inapposite cases
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wherein courts held that the “deliberative process privilege does not apply when the
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government’s intent is at issue.” Jones v. City of Coll. Park, Ga., 237 F.R.D. 517, 520
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(N.D. Ga. 2006) (Title VII and Section 1983 claim alleging “racial discrimination in
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connection with nonrenewal of Plaintiff’s employment”); see also Waters v. U.S. Capitol
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Police Bd., 218 F.R.D. 323, 324 (D.D.C. 2003) (holding that the deliberative process
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privilege could not be used “to thwart discovery of information in a case in which a
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plaintiff challenges governmental action as discriminatory”); Qamhiyah v. Iowa State
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Univ. of Sci. & Tech., 245 F.R.D. 393, 399 (S.D. Iowa 2007) (holding that the
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deliberative process privilege did not apply where plaintiff alleged that the deliberative
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process itself was “tainted with unlawful discrimination”); Burka v. N.Y. City Transit
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Auth., 110 F.R.D. 660, 667 (S.D.N.Y. 1986) (concluding that “the recorded observations
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of an eyewitness” were not protected by the deliberative process privilege, as the
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“privilege applies only to expressions of opinion or recommendations, not to the facts
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upon which such evaluations might have been based”); Mem’l Hosp. for McHenry Cty. v.
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Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981) (holding that the deliberative process
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privilege did not apply where plaintiff “alleged that the defendants . . . used the Hospital
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committee apparatus discriminatorily to deny him staff privileges at the Hospital in
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furtherance of an unlawful restraint of trade”); United States v. Am. Tel. & Tel. Co., 524
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F. Supp. 1381, 1389 (D.D.C. 1981) (“An exception to the general thought-process rule is
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made where there are allegations of misconduct or misbehavior, and evidence to that
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effect is not privileged.” (emphasis added)); Kelly v. City of San Jose, 114 F.R.D. 653,
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659 (N.D. Cal. 1987) (dicta voicing the court’s opinion that “the ‘deliberative process’
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privilege should be limited to communications designed to contribute, directly, to the
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formulation of important public policy”). Government intent is not similarly at issue in
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this case, as this Court previously held that Plaintiff did not sufficiently state a claim for
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Fourteenth Amendment equal protection violations (inter alia, racial discrimination)
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under Section 1983. (Dkt. No. 59 at 14–16; Dkt. No. 159 at 32–34.)
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Second, Judge Bartick did in fact consider factors to determine whether the
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deliberative privilege applied. (Dkt. No. 177 at 3–4.) Applying settled law, Judge
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Bartick evaluated the following factors: “1) the relevance of the evidence; 2) the
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availability of other evidence; 3) the government’s role in the litigation; and 4) the extent
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to which disclosure would hinder frank and independent discussion regarding
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contemplated policies and decisions.” F.T.C. v. Warner Commc’ns Inc., 742 F.2d 1156,
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1161 (9th Cir. 1984). In particular, Judge Bartick found that Plaintiff already has the
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complete State administrative record available to him, and that disclosure of the closed
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session minutes would chill frank and independent discussion by Board members. (Dkt.
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No. 177 at 3–4.) This Court finds that there was no clear error in Judge Bartick’s
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conclusion that Plaintiff’s need for the information did not outweigh and override the
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deliberative process privilege.
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Third, Kirchmeyer’s declaration is not “incorrect and misleading” or inconsistent
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with the privilege log. (Dkt. No. 185 at 8.) Plaintiff’s citation to Grossman v. Schwarz,
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125 F.R.D. 376, 381 (S.D.N.Y. 1989) does not avail his objection to Kirchmeyer’s
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declaration. (Id.) In her declaration, Kirchmeyer stated that she is the Executive Director
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for the Medical Board of California, affirmed she had personal knowledge of the facts
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attested to in the declaration and privilege log, and provided the factual bases for her
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claim of injury to legitimate government interests flowing from a potential disclosure.
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(Dkt. No. 176.) Furthermore, Kirchmeyer’s list of the dates of the closed session
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meetings (November 2, 2006; April 24, 2008; and July 29, 2010) and the dates on which
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the decisions rendered at the meetings were adopted (December 6, 2006; June 13, 2008;
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and September 27, 2010, respectively) are completely consistent with the dates provided
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in the privilege log. Plaintiff does not establish how Kirchmeyer’s declaration is
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incorrect or misleading; rather, the record indicates that Kirchmeyer complied with
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applicable legal requirements. See Grossman, 125 F.R.D. at 381 (“Governmental
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privilege must ordinarily be invoked by a department head or other responsible agency
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official, after a personal review of the documents, in an affidavit stating a factual basis
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for the claim of injury to legitimate government interests flowing from disclosure.”).
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Nor is the privilege log independently defective. (Dkt. No. 176-1.) Contrary to
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Plaintiff’s assertions, (Dkt. No. 185 at 10), the privilege log contains sufficient
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information, including document descriptions and the subject matter contained within;
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the author, recipient, and/or custodian of the documents; and the category of privilege
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and application of privilege asserted for each document, (Dkt. No. 176-1). Plaintiff does
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not identify any defects in the privilege log that would inhibit Plaintiff or the Court from
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adequately assessing the claim of privilege. See Friends of Hope Valley v. Frederick Co.,
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268 F.R.D. 643, 650–51 (E.D. Cal. 2010).
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Fourth, Plaintiff mistakenly conflates the ultimate administrative decision itself
with the deliberative process that resulted in the decision. (Dkt. No. 185 at 10.) It is
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settled law that “the deliberative process privilege permits the government to withhold
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documents that reflect advisory opinions, recommendations and deliberations comprising
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part of a process by which governmental decisions and polices are formulated.”
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Hongsermeier v. C.I.R., 621 F.3d 890, 904 (9th Cir. 2010) (internal citation, quotation
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marks, and alteration omitted). Plaintiff’s legal authorities are factually inapposite. See
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Mem’l Hosp. for McHenry Cty. v. Shadur, 664 F.2d 1058, 1063 (7th Cir. 1981)
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(confidential medical disciplinary proceedings based on peer review required to be
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disclosed in antitrust action alleging conspiracy); Scott v. Bd. of Educ. of City of E.
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Orange, 219 F.R.D. 333, 337 (D.N.J. 2004) (concluding that “inquiry into the Board’s
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pre-decisional mental impressions and discussions [was] necessary to challenge the
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purported reason for Plaintiff’s termination,” as plaintiff “attack[ed] the integrity of the
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Board’s decision to terminate him” and “alleged that he was terminated . . . because he
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failed to participate in an illegal bidding scheme and because he attempted to unearth
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such scheme”).
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Fifth, Plaintiff provides no support for the proposition that the publication of the
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Board’s decisions results in an automatic waiver of the deliberative process privilege.
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(Dkt. No. 185 at 10–11.) Mobil Oil Corp. v. U.S. E.P.A., 879 F.2d 698, 699 (9th Cir.
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1989) (concluding that the EPA had not “waived its right to invoke statutory exemptions
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to Mobil’s request for documents under FOIA by its release of related documents to
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Mobil and third parties”) does not avail Plaintiff’s argument.
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Finally, this Court expresses concern with Plaintiff’s repeated failure to comply
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with the rules and orders governing discovery despite multiple warnings from the Court.
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It would have been well within Judge Bartick’s discretion to reject Plaintiff’s motion
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solely for his failure to comply with Judge Bartick’s scheduling order and chambers
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rules, the Southern District’s Civil Local Rules, and the Federal Rules of Civil Procedure.
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See, e.g., Civ. L.R. 26.1(a); Rogers, 288 F.R.D. at 477.
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In sum, this Court OVERRULES Plaintiff’s Objections (Dkt. No. 185) and
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AFFIRMS Judge Bartick’s Orders (Dkt. Nos. 169, 177).
2 III.
Plaintiff’s Third Set of Objections (Dkt. No. 215)
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A. Judge Porter’s Order (Dkt. No. 207)
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Plaintiff moved to compel documents from Defendant Sharon Levine (“Dr.
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Levine”) responsive to his amended Requests for Production of Documents A, B, C, D,
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E, and G. (Dkt. No. 201.) Judge Porter denied the motion on November 14, 2016. (Dkt.
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No. 207.) With respect to Requests A, B, and C, Judge Porter determined that the
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documents requested were equally available to Plaintiff, and that the Requests were
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improperly served after the discovery cut-off date without permission. (Id. at 3–4.) With
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respect to Requests D and E, Judge Porter determined to be sufficient Dr. Levine’s
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responses indicating that despite a diligent search and inquiry, the documents requested
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were not in her possession, custody or control. (Id. at 4–5.) Finally, with respect to
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Request G, Judge Porter concluded that the Request sought irrelevant information that
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violated privacy rights, and that Plaintiff did not establish sufficient need for the
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information, given his prior deposition of Dr. Garg.2 (Id. at 5.)
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B. Plaintiff’s Grounds for Objections
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Plaintiff contends that Judge Porter abused her discretion in denying his motion to
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compel responses to Requests A, B, and C. (Dkt. No. 215 at 7.) However, Plaintiff
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merely avers that Judge Porter’s determination was incorrect, without establishing any
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grounds for how Judge Porter’s decision was contrary to law. Plaintiff also objects to
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Judge Porter’s determination that his Requests A, B, and C, which requested new
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documents not requested in Plaintiff’s original Document Requests, exceeded the scope
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of the Court’s June 29, 2016 order. (Id.) Plaintiff’s objection is futile. Judge Porter’s
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June 29, 2016 order reopened discovery solely for the purpose of allowing the
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depositions of Kirchmeyer and Dr. Levine to go forward and directed Kirchmeyer and
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Plaintiff does not object to Judge Porter’s ruling regarding Request G. (Dkt. No. 215 at 8.)
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Dr. Levine to respond only to the Requests for Production of Documents that were
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attached to their deposition notices. (Dkt. No. 175 at 8.) Plaintiff improperly sought
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documents beyond the scope of discovery allowed by the Court’s order.
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With respect to Requests D and E, Plaintiff again asserts that the Court’s sustention
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of the deliberative process privilege is erroneous. (Dkt. No. 215 at 8.) Plaintiff’s
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objection to Judge Porter’s Order is misplaced, as Judge Porter based her decision not on
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Judge Bartick’s earlier ruling sustaining Defendants’ assertion of the deliberative process
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privilege, but on Dr. Levine’s statement that “after a diligent search and inquiry,” she was
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unable to locate any responsive documents, as the documents were not in her possession,
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custody, or control. (Dkt. No. 207 at 4–5.) Moreover, this Court has already addressed
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Plaintiff’s objections regarding the deliberative process privilege, supra Part II, with
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respect to the closed session minutes from 2006, 2008, and 2010.
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Finally, Plaintiff attached to his Objections excerpts from the deposition transcripts
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of Linda Whitney and Kimberly Kirchmeyer. (Dkt. No. 215 at 10–21.) This Court
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declines to consider the deposition transcripts, as Plaintiff provides no justification for
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not first raising the excerpts to the Magistrate Judge. See Harbridge v. Yates, No. 1:10-
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CV-00473 AWI, 2012 WL 639476, at *1 (E.D. Cal. Feb. 24, 2012) (“[O]bjections to a
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Magistrate Judge’s order are not the place for a party to make a new argument and raise
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facts not addressed in his original brief.” (internal citation and quotation marks omitted)).
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Accordingly, this Court OVERRULES Plaintiff’s Objections (Dkt. No. 185) and
AFFIRMS Judge Porter’s Order (Dkt. No. 207).
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CONCLUSION
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For the foregoing reasons, this Court OVERRULES Plaintiff’s three sets of
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Objections (Dkt. Nos. 183, 185, 215) and AFFIRMS Magistrate Judge Porter’s and
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Magistrate Judge Bartick’s Orders. (Dkt. Nos. 174; 169, 177, 207.)
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IT IS SO ORDERED.
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Dated: January 17, 2017
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