Ortega v. New Mexico Legal Aid, Inc. et al

Filing 171

ORDER ON NMLA'S MOTION TO COMPEL DISCOVERY by Magistrate Judge Kirtan Khalsa. NMLA's Motion to Compel Discovery from Plaintiff (Doc. 122) is granted in part and denied in part. Plaintiff shall serve the required discovery responses by 12/2/2019. (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

MINA ORTEGA,
Plaintiff,
vs.

Civ. No. 18-111 MV/KK

NEW MEXICO LEGAL AID, INC. et al.,
Defendants.

ORDER ON NMLA’S MOTION TO COMPEL DISCOVERY
THIS MATTER is before the Court on Defendant New Mexico Legal Aid, Inc.’s
(“NMLA”) Motion to Compel Discovery from Plaintiff (Doc. 122), filed August 26, 2019.
Plaintiff filed a response in opposition to the motion on September 19, 2019, (Doc. 136), and
NMLA filed a reply in support of it on October 3, 2019. (Doc. 149.) The Court, having reviewed
the pleadings, the record, and the relevant law, being otherwise fully advised, and for the reasons
stated below, FINDS that the motion is well-taken in part and should be GRANTED IN PART and
DENIED IN PART.
In its motion, NMLA asks the Court to compel Plaintiff to respond, or supplement her
responses, to four written discovery requests to which she objected on July 29, 2019. (Doc. 1221.) The Court will address each of these requests in turn.
1.

Interrogatory No. 1
With respect to this interrogatory, NMLA asks the Court to compel Plaintiff to provide

“the name and contact information for any adult who has lived with Plaintiff . . . during the past
ten years.” (Doc. 122 at 3 (emphasis omitted).) Pursuant to Federal Rule of Civil Procedure 33,
parties may serve interrogatories “relat[ing] to any matter that may be inquired into under Rule

26(b).” Fed. R. Civ. P. 33(a)(2). Rule 26(b), in turn, permits parties to “obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not
be admissible in evidence to be discoverable.” Id.
Factors the Court should consider in determining whether discovery is “proportional to the
needs of the case” include:
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.
Id. “The court’s responsibility, using all the information provided by the parties, is to consider
these . . . factors in reaching a case-specific determination of the appropriate scope of discovery.”
Fed. R. Civ. P. 26(b)(1), 2015 Amendment, Advisory Committee Notes.
Any adults who have lived with Plaintiff within the last ten (10) years may have knowledge
relevant to Plaintiff’s claims of harassment by her supervisors while employed at NMLA,
emotional distress, other damages, and mitigation efforts. (Doc. 7 at 19-20, 31.) NMLA is
therefore entitled to information that would allow it to interview or, if necessary, subpoena any
such persons to testify at trial. Moreover, NMLA’s request for these potential witnesses’ names
and contact information is not onerous and is appropriate and proportional to the needs of the case
in light of the factors listed in Rule 26(b)(1). The Court will therefore grant NMLA’s motion to
compel Plaintiff to provide the requested information.
2.

Interrogatory No. 22
In this interrogatory, NMLA asked Plaintiff to identify by make, model year, and serial

number all computers she has used from January 1, 2014 to the present. (Doc. 122 at 3.) Plaintiff
objected to providing the requested information on the bases of relevance and invasion of privacy.
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(Id. at 4.) In its motion, NMLA argues that the requested information is relevant to “Plaintiff’s
repeated claims of computer problems” and her allegations that NMLA and its counsel have
hacked into her computer. (Id.) Plaintiff responds that “[p]roviding NMLA with the any [sic]
information regarding her computer compromises the security of her computer.” (Doc. 136 at 7.)
In her Amended Complaint, Plaintiff makes allegations concerning her computer problems
to support her claims against the Union. (Doc. 7 at 23-24.) Thus, information about the computer
or computers she was using at that time are relevant to her claims as she has stated them. In
addition, the information NMLA has requested is proportional to the needs of the case in light of
the factors listed in Rule 26(b)(1). The burden on Plaintiff to provide the requested information is
minimal, notwithstanding Plaintiff’s argument to the contrary. The allegations Plaintiff has made
during discovery to the effect that NMLA has hacked into her computer are unsupported and
unconvincing. Thus, the Court finds Plaintiff’s objections to providing the requested information
to be without merit. In short, the Court will order Plaintiff to provide NMLA with the make, model
year, and serial number of all computers she has used from January 1, 2014 to December 31, 2017,
a time frame which amply encompasses the pertinent events alleged in Plaintiff’s Amended
Complaint.
The Court will not, however, order Plaintiff to provide information regarding the computer
or computers she has used during the pendency of this litigation, though she has, as NMLA
observes, accused counsel of hacking into her computer and has repeatedly relied on computer
problems to request extensions. Satellite litigation about Plaintiff’s conduct and accusations
during discovery is not an appropriate or productive use of the parties’ and the Court’s time, nor
is discovery in support of such litigation proportional to the needs of the case in light of the factors
listed in Rule 26(b)(1).

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3.

Interrogatory No. 23
In this interrogatory, NMLA asked Plaintiff to provide the name and contact information

of all persons and entities that have provided her with technical assistance related to her use of
computers since January 1, 2014. (Doc. 122 at 4.) For the reasons just discussed regarding
Interrogatory No. 22, the Court will order Plaintiff to provide the requested information for the
period of January 1, 2014 to December 31, 2017, but not for the period of January 1, 2018 to the
present.
4.

Request for Production No. 9
Finally, in this request, NMLA asked Plaintiff to produce all “journals, diaries, calendars,

letters, appointment books, agendas, notebooks, notes and correspondence” reflecting or referring
to “any of the events, damages, injuries or allegations in her Amended Complaint.” (Id. at 5.)
Plaintiff objected to this request as vague, ambiguous, overbroad, and seeking irrelevant
information, and stated that she was withholding documents responsive to it, including her notes
and her calendar, based on the work-product doctrine. (Id.; Doc. 136 at 8-9.) In her response to
NMLA’s motion, Plaintiff clarifies that she has already produced all responsive “writings made
by her during her employment” and will amend her response to reflect this. (Doc. 136 at 9
(emphasis added).) However, she does not indicate whether she has continued to withhold any
documents responsive to this request that she prepared after her employment with NMLA ended.
A party may request any other party to produce and permit inspection and copying of any
designated documents or electronically stored information in the party’s custody or control that
contain matters within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). Certain materials, however,
are only discoverable in limited circumstances. For example, Rule 26(b)(3) sets forth what is
commonly called the “work-product doctrine,” and provides that

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[o]rdinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety, indemnitor,
insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered
if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows
that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means.
Fed. R. Civ. P. 26(b)(3)(A). “If the court orders discovery of those materials, it must protect
against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's
attorney or other representative concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
“Because the work-product doctrine applies to documents prepared by a party, it applies
equally to pro se parties.” United States v. Melot, 2012 WL 12898791, at *3 (D.N.M. Aug. 6,
2012).

However, like any other privilege limiting discovery, the work-product doctrine is

narrowly and strictly construed. See e.g., Mims v. Dallas Cnty., 230 F.R.D. 479, 484 (N.D. Tex.
2005) (“Like all privileges, the work product doctrine must be strictly construed.”); McCook
Metals LLC v. Alcoa Inc., 192 F.R.D. 242, 260 (N.D. Ill. 2000) (the work-product doctrine
“significantly restricts the scope of discovery and must be narrowly construed in order to aid in
the search for the truth”).
The party asserting work-product protection has the burden of demonstrating that it applies.
Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984). A blanket assertion of
the work-product doctrine does not satisfy the burden of the party asserting the protection. Burke
v. Glanz, 2013 WL 3994634, at *1 (N.D. Okla. Aug. 5, 2013); Kannaday v. Ball, 292 F.R.D. 640,
645 (D. Kan. 2013); McCoo v. Denny’s Inc., 192 F.R.D. 675, 680 (D. Kan. 2000); see also
Valencia v. Colo. Cas. Ins. Co., 2007 WL 5685148, at *9 (D.N.M. Dec. 6, 2007) (“bald” assertion
of privilege is insufficient). Rather,
[w]hen a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial-preparation material, the
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party must: (i) expressly make the claim; and (ii) describe the nature of the
documents, communications, or tangible things not produced or disclosed—and do
so in a manner that, without revealing information itself privileged or protected,
will enable other parties to assess the claim.
Fed. R. Civ. P. 26(b)(5)(A). “This detailed and specific showing . . . is typically presented in the
form of a privilege log.” Kannaday, 292 F.R.D. at 645.
In light of the foregoing standards, Plaintiff’s assertion of the work-product doctrine in her
response to Request for Production No. 9 is inadequate. Plaintiff has not provided NMLA with a
privilege log, nor has she described the nature of the documents withheld in a manner that would
enable NMLA to assess her entitlement to the doctrine’s protection. However, NMLA’s request
is also overbroad in that it encompasses documentation of Ms. Ortega’s “mental impressions,
conclusions, opinions, or legal theories . . . concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B).
The Court will therefore order Plaintiff to produce a privilege log regarding any documents
responsive to Request for Production No. 9 that she has withheld on the basis of the work-product
doctrine, except for documentation of her mental impressions, conclusions, opinions, and legal
theories concerning the litigation, which need not be logged. In particular, the privilege log need
not include drafts of pleadings and notes regarding same, drafts of letters to opposing counsel and
notes regarding same, legal research and notes regarding same, and notes Ms. Ortega prepared for,
at, or regarding any hearing before this Court.
At a minimum, Ms. Ortega’s privilege log must indicate: (a) the type of document, e.g.,
handwritten notes, calendar entry, journal entry; (b) the date(s) on which the document was
prepared; (c) the identity of all person(s) who participated in preparing the document and, for
persons other than Plaintiff, the nature of each such person’s association with Plaintiff; (d) the
identity of all person(s) who have reviewed the document and the nature of each such person’s

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association with Plaintiff; (e) a general description of the topic(s) the document addresses; (f) the
reason(s) the document was prepared; and, (g) the document’s length.
Finally, the Court will deny NMLA’s request for an award of attorney fees it incurred in
bringing this motion. Pursuant to Rule 37, if a motion to compel is granted in part and denied in
part, the Court “may . . . apportion the reasonable expenses for the motion.” Fed. R. Civ. P.
37(a)(5)(C) (emphasis added). The Court has granted NMLA’s motion to compel in some respects
but denied it in others and declines to apportion the parties’ expenses associated with the motion.
IT IS THEREFORE ORDERED that NMLA’s Motion to Compel Discovery from Plaintiff
(Doc. 122) is GRANTED IN PART and DENIED IN PART as follows:
1.

Plaintiff shall supplement her answer to NMLA’s Interrogatory No. 1 by providing the

name and contact information for any adult who has lived with her during the past ten years, i.e.,
between November 1, 2009 and the present.
2.

Plaintiff shall answer NMLA’s Interrogatory No. 22 by providing the make, model year,

and serial number of all computers she has used from January 1, 2014 to December 31, 2017.
3.

Plaintiff shall answer NMLA’s Interrogatory No. 23 by providing the name and contact

information of all persons and entities that have provided her with technical assistance related to
her use of computers from January 1, 2014 to December 31, 2017.
4.

Plaintiff shall supplement her response to NMLA’s Request for Production No. 9 by

providing a privilege log regarding any documents responsive to the request that she has withheld
on the basis of the work-product doctrine, except that documents this Order has expressly excluded
need not be logged. The privilege log shall comply with the requirements set forth in this Order.
5.

Plaintiff shall serve the required discovery responses by Monday, December 2, 2019.

6.

NMLA’s request for an award of attorney fees associated with this motion is denied.

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IT IS SO ORDERED.

_______________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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