The Estate of Ruben Nunez et al v. County of et al

Filing 374

ORDER granting in part and denying in part 358 Plaintiff's Motion for Sanctions against Defendant CPMG. The motion is GRANTED only to the extent that Plaintiff may depose Drs. Mannis, Rao and Badre, for no more than four hours each, limited to questioning regarding the contents of the newly produced documents. In all other respects, the motion for sanctions is DENIED. Signed by Magistrate Judge Mitchell D. Dembin on 3/4/19. (Dembin, Mitchell)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THE ESTATE OF RUBEN NUNEZ
by and through its successor-ininterest LYDIA NUNEZ, ALBERT
NUNEZ, and LYDIA NUNEZ,

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Plaintiff,

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v.

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CORRECTIONAL PHYSICIANS
MEDICAL GROUP, INC., et al.,

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Case No.: 16cv1412-BEN-MDD
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR SANCTIONS
AGAINST DEFENDANT CPMG
[ECF No. 358]

Defendants.

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Before the Court is Plaintiff’s motion for sanctions against Defendant
Correctional Physicians Medical Group, Inc. (“CPMG”) based upon an alleged
discovery violation. On January 7, 2019, Plaintiff moved the district judge to
refer this matter to this Court. (ECF No. 337). The district judge granted
the motion on February 1, 2019. (ECF No. 343). Plaintiff filed this motion
for sanctions on February 12, 2019. (ECF No. 358). CPMG responded in
opposition on February 15, 2019. (ECF No. 363).
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16cv1412-BEN-MDD

LEGAL STANDARD

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The Court’s authority to impose sanctions stems from various

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provisions in the Federal Rules of Civil Procedure and from the Court’s

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inherent authority. The Court’s inherent authority was explained by the

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Supreme Court as follows:

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Federal courts possess certain “inherent powers,” not conferred by
rule or statute, “to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.” Link v. Wabash R.
Co., 370 U.S. 626, 630–631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
That authority includes “the ability to fashion an appropriate
sanction for conduct which abuses the judicial process.” Chambers
v. NASCO, Inc., 501 U.S. 32, 44–45, 111 S.Ct. 2123, 115 L.Ed.2d
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Goodyear Tire & Rubber Co. v. Haeger, __ U.S. __, 137 S. Ct. 1178, 1186, 197

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L. Ed. 2d 585 (2017). For the Court to act pursuant to its inherent authority,

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there must be bad faith or a willful abuse of the discovery process. Id.;

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Oregon RSA No. 6 v. Castle Rock Cellular of Oregon Ltd. Partnership, 76 F.3d

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1003, 1007 (9th Cir. 1996); CrossFit, Inc. v. National Strength and

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Conditioning Assoc., No. 14-cv-1191-JLS-KSC, 2017 WL 4700070 *3 (S.D.

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Cal. Oct. 19, 2017).

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Rule 26(g)(3), Fed. R. Civ. P., provides that a party or attorney who

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signs a discovery response that is incomplete or incorrect as of the time it is

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made, may be sanctioned unless the signer acted with substantial

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justification. Rule 26(e), Fed. R. Civ. P., requires that a party who has

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responded to a discovery request must supplement the response in a timely

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manner upon learning that the response was incorrect or incomplete in some

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material respect and that the corrective information had not otherwise been

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made known to other parties in the course of discovery.

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Rule 37(b)(2), Fed. R. Civ. P., provides for sanctions for failing to obey a
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16cv1412-BEN-MDD

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discovery order. Rule 37(c) provides for sanctions for failing to supplement a

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response. And, Rule 37(e) provides for sanctions for the loss of electronically

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stored information that should have been preserved and was lost because a

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party failed to take reasonable steps to preserve it and it cannot be restored

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or replaced.

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DISCUSSION
Plaintiff asserts that counsel for Defendants CPMG, Sara Hansen and

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San Diego County engaged in a conspiracy to withhold critical evidence from

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discovery in this case. These are serious allegations and the Court has

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reviewed the history of discovery disputes in this case, reviewed all of the

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pleadings filed in connection with this motion in this Court and before the

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district judge and reviewed the allegedly withheld discovery. The Court finds

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no evidence of a conspiracy to withhold discovery. Although the parties did

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attempt to make some evidence non-discoverable, through the use of certain

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state protections, that does not make for a conspiracy. The Court overruled

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their objections and the evidence was disclosed. This is no different than

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attorneys unsuccessfully seeking to protect information under the attorney-

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client privilege or work-product protection. It is not unlawful or suspicious to

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seek to use legal protections. There is no evidence of willfulness or bad faith

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to implicate the Court’s inherent authority.

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The bulk of the discovery allegedly withheld by CPMG is an email

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chain, most of which does not involve Plaintiff. The remainder appear to be

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meeting notes and certain documents that appear to have originated with the

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County of San Diego. There is no evidence of destruction of information,

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merely tardy disclosure. Because no electronically stored evidence appears to

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have been lost or destroyed, Rule 37(e) is not implicated.

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The Court finds that CPMG timely supplemented its response under
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16cv1412-BEN-MDD

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Rule 26(e). Perfection is not required in discovery. Cf. Fed. R. Civ. P. 26(g)

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(certification of discovery responses must be informed by “a reasonable

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inquiry”); Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y.

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2012) (“the Federal Rules of Civil Procedure do not require perfection”). The

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relevant portions of the email chain were contained within a much larger,

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mostly irrelevant thread of mail. And the Court accepts CPMG’s statement

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that the other documents were unknown.

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The Court finds that with the trial date being vacated to be reset

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shortly, there is time for certain corrective action. The Court will permit

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Plaintiff to depose Dr. Mannis, Dr. Rao and Dr. Badre based solely on the

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contents of the newly disclosed evidence. Each deposition shall be no longer

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than four hours and shall be taken, if Plaintiff chooses to do so, within 21

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days of this Order. Each party shall bear their own costs. This is not

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intended to authorize discovery about discovery; the questioning is limited to

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issues raised in the contents of the newly discovered documents.
CONCLUSION

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Plaintiff’s motion for sanctions against Defendant CPMG is GRANTED

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IN PART AND DENIED IN PART.

The motion is GRANTED only to the

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extent that Plaintiff may depose Drs. Mannis, Rao and Badre, for no more

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than four hours each, limited to questioning regarding the contents of the

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newly produced documents. In all other respects, the motion for sanctions is

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DENIED.

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IT IS SO ORDERED.

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Dated: March 4, 2019

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