Sanchez v. County of Sacramento ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRYSTAL R. SANCHEZ, No. 2:19-cv-01545-MCE-AC 12 Plaintiff, 13 v. ORDER 14 COUNTY OF SACRAMENTO, et al., 15 Defendants. 16 17 This case is before the court on plaintiff’s motion to compel responses to her requests for 18 production, and for expenses and sanctions. ECF Nos. 25, 28 (joint statement). This discovery 19 motion was referred to the undersigned pursuant to E.D. Cal. R. 302(c)(1). This is the second 20 motion to compel from plaintiff, and the parties have previously engaged in an informal 21 telephonic discovery conference. See ECF Nos. 18, 21. The parties met and conferred but were 22 unable to reach an agreement, and they dispute the sufficiency of meet and confer efforts. ECF 23 No. 28 at 2-12. This matter was submitted on the papers. ECF No. 26. For the reasons stated 24 below, the court DENIES plaintiff’s motion, in part without prejudice to renewal. 25 I. Relevant Background 26 Plaintiff filed this case on August 12, 2019. ECF No. 1. The following is a summary of 27 plaintiff’s allegations. Plaintiff is a resident of the County of Sacramento who is a member of the 28 Sacramento Homeless Organizing Committee, the Sacramento Tenants’ Union, and the Poor 1 People’s Campaign. ECF No. 1 at 2. Plaintiff also heads a non-profit organization whose 2 mission is to assist needy persons who suffer from homelessness. Id. For months prior to May 3 20, 2019, plaintiff had been assisting homeless persons who were living on an undeveloped lot 4 located in the 5700 block of Stockton Boulevard (“5700 lot”) in the County of Sacramento. Id. at 5 3. 6 On May 1, 2019, plaintiff was assisting homeless people on the 5700 lot who had been 7 given notice by the County of Sacramento that they would have to vacate their encampment, and 8 during that time, she came into contact several times with defendant “Allbee,” a law enforcement 9 officer employed by defendants the County of Sacramento and Sacramento County Sherriff’s 10 Department. Id. Plaintiff and about 50 other persons were protesting the clearing of homeless 11 people from the 5700 lot and the destruction of their belongings. Id. When plaintiff attempted to 12 help people pack up their belongings, she was barred from re-entering the property by Officer 13 Allbee and was told that she was “this close to being arrested.” Id. 14 On May 17, 2019, plaintiff was attending a meeting to discuss negotiations with the 15 County of Sacramento to permit homeless individuals to return to the 5700 lot. Id. She was 16 informed by one of the homeless persons who had previously resided at the 5700 lot that the 17 Sacramento County Sherriff’s Department deputies were arresting people. Id. Plaintiff went to 18 the location to observe and assist when she was confronted by Officer Allbee, who immediately 19 handcuffed her and accused her of driving without a valid California Driver’s License. Id. 20 Officer Allbee told plaintiff that her car would be towed. Id. Plaintiff responded that there were 21 persons ready to take custody of her vehicle so that the food and equipment in the vehicle would 22 not be spoiled or stolen, to which Officer Allbee responded that he was towing the vehicle and 23 would have it impounded for 30 days pursuant to Cal. Veh. Code § 14601. Id. at 4. 24 Officer Allbee stated to someone over the radio “I got one of the protestors” and 25 proceeded to search plaintiff’s vehicle, including plaintiff’s purse, which was closed. Plaintiff’s 26 vehicle was impounded. Plaintiff alleges Officer Allbee’s actions were intentional and malicious, 27 and that the Officer targeted plaintiff because of her leadership position in providing assistance to 28 the homeless persons at the 5700 lot. 1 II. Motion 2 The parties have been engaging in discovery since at least October of 2019. ECF No. 28 3 at 2. In the motion at bar, plaintiff moves to compel responses to the following requests for 4 production (“RFP”): (a) RFP No. 7 (Allbee personnel files); (b) RFP No. 13 (psychiatric 5 evaluation); and (c) RFP Nos. 25-30 (other lawsuits involving Allbee). Each category of requests 6 is addressed individually below. Plaintiff further requests an award of expenses, including 7 attorneys’ fees, should her motion be granted in whole or in part, as well as sanctions. 8 III. Analysis 9 A. Legal Standard 10 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 11 party’s claim or defense . . . Relevant information need not be admissible at the trial if the 12 discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. 13 Civ. P. 26(b)(1). Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make 14 a fact more or less probable than it would be without the evidence; and (b) the fact is of 15 consequence in determining the action. Fed. R. Evid. 401. Relevancy to the subject matter of the 16 litigation “has been construed broadly to encompass any matter that bears on, or that reasonably 17 could lead to other matter that could bear on, any issue that is or may be in the case.” 18 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Relevance, however, does not 19 establish discoverability; in 2015, a proportionality requirement was added to Rule 26. Under the 20 amended Rule 26, relevance alone will not justify discovery; discovery must also be proportional 21 to the needs of the case. 22 A party seeking to compel discovery has the initial burden to establish that its request is 23 proper under Rule 26(b)(1). If the request is proper, the party resisting discovery has the burden 24 of showing why discovery was denied; they must clarify and support their objections. 25 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). General or boilerplate 26 objections, without explanation, are not prohibited but are insufficient as a sole basis for an 27 objection or privilege claim. Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 28 408 F.3d 1142, 1149 (9th Cir. 2005). 1 B. RFP No. 7 (Allbee Personnel Files) 2 Plaintiff’s RFP No. 7 (Allbee Personnel Files) reads as follows: “All DOCUMENTS 3 relating to Defendant ALLBEE’s personnel files - including, but not limited to educational 4 records, employee performance appraisals, training records, employment applications, letters of 5 recommendation, letters of commendation, discipline records, employee orientation records, 6 records of promotion; and memoranda regarding any changes in assignment.” ECF No. 28-1, 7 Declaration of Mark E. Merin (“Merin Decl.”)., Ex. A (Requests for Production) at 4:10-4:19. 8 On March 31, 2020, defendant submitted an response, stating: “Defendant [County] will produce 9 documents responsive to this Request under the protective order executed by the Court on March 10 30, 2020, in accordance with its order dated February 7, 2020, and subject to a privilege log for 11 those items excluded based on representations in court regarding items not required.” Merin 12 Decl. Ex. H (Amended RFP Resp.) at 4:18-5:1. The County also produced a privilege log that 13 identified several withheld items. Id., Ex. I (Privilege Log). 14 Plaintiff raises challenges to the adequacy of the produced privilege log as well as that of 15 the supplemental responses. ECF No. 28 at 7-10. Defendant, however, represents that plaintiff 16 failed to make any meet and confer efforts following the supplemental production, and the parties 17 have not met and conferred regarding the adequacy of the privilege log. Id. at 10-11. As the 18 parties are aware, before bringing a motion to compel production, the movant must show that she 19 conferred, or made a good faith effort to confer, with the party opposing disclosure before seeking 20 court intervention. Fed R. Civ. P. 37(a)(1). 21 The burden of ensuring that proper meet and confer discussions take place is on the 22 moving party. E.D. Cal. R. 251(b). The rule is clear: “Counsel for the moving party or 23 prospective moving party shall be responsible for arranging the conference, which shall be held at 24 a time and place and in a manner mutually convenient to counsel.” Id. (emphasis added). “A 25 court can deny a motion to compel solely because of a party’s failure to meet and confer prior to 26 filing the motion.” Rogers v. Giurbino, 288 F.R.D. 469, 477 (S.D. Cal. 2012); see also, 27 Scheinuck v. Sepulveda, No. C 09-0727 WHA, 2010 WL 5174340, at *1–2, 2010 U.S. Dist. 28 LEXIS 136529 N.D. Cal. Dec. 15, 2010. 1 The obligation to meet and confer is made doubly clear by the Local Rules for the Eastern 2 District of California. The Local Rules unequivocally state that discovery motions will not be 3 heard unless (1) the parties have conferred and attempted to resolve their differences, and (2) the 4 parties have set forth their differences and the bases for those differences in a Joint Statement. 5 LR 251(b). The sole exceptions to these requirements are “(1) when there has been a complete 6 and total failure to respond to a discovery request or order, or (2) when the only relief sought by 7 the motion is the imposition of sanctions.” LR 251(e). Finally, the undersigned’s standing 8 orders, available at on the Court’s website, state in no uncertain terms that meet and confer 9 requirements are strictly enforced. The standing orders state that “[w]ritten correspondence 10 between the parties, including email, is insufficient to satisfy the parties’ meet and confer 11 obligations under Local Rule 251(b). Prior to the filing of a Joint Statement, the parties must 12 confer in person or via telephone or video conferencing in an attempt to resolve the dispute.” 13 Plaintiff does not dispute that she failed to meet and confer following the production of 14 the privilege log or supplemental production, arguing instead that the meet and confer efforts 15 prior to the March 31, 2020 production were sufficient. ECF No. 28 at 11. Specifically, she 16 argues “[t]here is no requirement that a requesting party re-initiate meet-and-confer efforts after 17 each new occasion that a responding party refuses to produce responsive records-if there were, 18 meet-and-confer efforts would never be exhausted.” Id. This is a misconstruction of the situation 19 at hand; plaintiff is making a challenge based upon the March 31, 2020 supplemental/privilege 20 log production. It is not redundant for the parties to meet and confer about the particular topic 21 challenged when circumstances have changed, even if the parties have met and conferred in the 22 past under a different set of circumstances. 23 To the extent plaintiff argues that the court already ordered a complete production for this 24 RFP contingent upon the entry of a stipulated protective order following her last motion to 25 compel, defendant is correct in its understanding that the prior order did not substantively address 26 privilege issues; it did not operate as a waiver of privilege. See ECF No. 18. Before a challenge 27 to defendant’s privilege log or supplemental production to this RFP can be brought before the 28 Court, the parties must properly meet and confer regarding the specific assertions of privilege. 1 This portion of the motion is therefore denied without prejudice to renewal. 2 C. Psychiatric Records (RFP No. 13) 3 Plaintiff’s RFP No. 13 requests “All DOCUMENTS relating to any psychiatric evaluation 4 of Defendant ALLBEE.” Merin Decl. Ex. A at 5:9-10. On March 31, 2020, defendant provided 5 an amended response to RFP No. 13, stating: “Following reasonable inquiry into the records 6 where such matters are ordinarily maintained in the ordinary course of business, in this case the 7 individual personnel files, Defendant [County] responds as follows: There are no documents 8 responsive to this Request.” Merin Decl., Ex. H at 5:19-25. 9 Plaintiff believes defendant did not do an adequate search for responsive documents 10 because “state law affirmatively requires that ‘[t]he department shall maintain the psychological 11 suitability declaration in the candidate’s background investigation file” which ‘shall be available 12 to POST during compliance inspections.’ See Cal. Code Regs., tit. 11, § 1955(f)(3).” ECF No. 13 28 at 13. Defendant responds that plaintiff failed to meet and confer on this topic, that she has no 14 factual basis to support her argument that this document exists, and that plaintiff’s “speculation 15 notwithstanding, . . . 11 C.C.R. 1955 (based on former section 9055) was first enacted in 2009, 16 many years after Defendant Albee was first hired.” Id. 17 The undersigned finds that there is no production to compel with respect to this Request. 18 In the absence of evidence to the contrary, plaintiff is required to accept defendant’s response to 19 this request that, despite a diligent search, no responsive documents exist. See e.g., Mootry v. 20 Flores, 2014 WL 3587839, *2 (E.D. Cal. 2014) (“Defendants cannot be required to produce 21 documents that do not exist. Absent evidence to the contrary, which has not been presented, 22 Plaintiff is required to accept Defendants’ response no such documents exist.”); accord, Holt v. 23 Nicholas, 2014 WL 250340, *4 (E.D. Cal. 2014) (“Absent evidence to the contrary, which has not 24 been presented, Plaintiff is required to accept Defendant’s amended response that no such 25 documents responsive to his request exist.”). Plaintiff has failed to put forth any concrete 26 evidence that that defendant is being untruthful in its assertion or was incomplete in its search. In 27 the absence of concrete evidence to the contrary, the court will accept defendant’s sworn 28 statement that no responsive document exists, and will not compel production. 1 D. RFPs 25-30 (Other Cases Involving Allbee) 2 Plaintiff requested that Defendant County produce records relating to six other federal 3 civil rights actions in which Defendant Allbee was a party-defendant: (1) Wilkes v. Sacramento 4 Sheriff, E.D. Cal. Case No. 2:02-cv-00952-MCE-DAD (RFP No. 25); (2) Bellinger v. Allbee, 5 E.D. Cal. Case No. 2:02-cv-02335-LKK-GGH (RFP No. 26); (3) Craver v. Sacramento County, 6 E.D. Cal. Case No. 2:03-cv-01979-GEB-EFB (RFP No. 27); (4) Walker v. Allbee, E.D. Cal. Case 7 No. 14 2:04-cv-02075-LKK-DAD (RFP No. 28); (5) Wimberly v. County of Sacramento, E.D. 8 Cal. Case No. 15 2:06-cv-00289-JAM-GGH (RFP No. 29); and (6) Smith v. Albee, E.D. Cal. 9 Case No. 2: 15-cv-01598- JAM-KJN (RFP No. 30). Merin Decl., Ex. A at 6:17-17:18. 10 On November 15, 2019, the County responded that it would not produce the requested 11 records because production would be “burdensome,” and the requested records were “irrelevant.” 12 Merin Decl., Ex. C (RFP Resp.) at 10:16-13:9. Plaintiff’s counsel attached an e-mail which he 13 drafted memorializing a January 22, 2020 discovery meet and confer session. Merin Decl., Ex. F. 14 He wrote with respect to the requests at issue here: “Defendant County has agreed to amend its 15 response to produce officers’ reports generated from the underlying incidents giving rise to the 16 litigation, without prejudice to Plaintiffs’ ability to later request further documents related to the 17 same incidents (e.g., non-officer witness statements, litigation documents, etc.).” Id. at 2. 18 On March 17, 2020, the parties engaged in an informal discovery conference which 19 addressed, in part, these RFPs. A minute order issued that day states: defendant “shall produce 20 responses to the FRPs identified in paragraph 1 of the joint letter by March 31, 2010.” ECF No. 21 21. The relevant paragraph in the joint letter states as follows: “On January 22, 2020, the parties’ 22 counsel conducted a telephonic meet-and-confer. Therein, Defendant County’s counsel agreed to 23 contact Defendant County and to provide Plaintiff with further responses to various discovery 24 requests, including RPD Nos. 3, 5, 9, 10, 11, 12, 13, 14, 15, 16, 25, 26, 27, 28, 29, 30, 31, 32, 33, 25 34, 35, 36, with updates by January 27, 2020, in order to avoid the filing of a motion to compel. 26 However, to date, Defendant County has not complied nor has Defendant County’s counsel 27 provided responses to Plaintiff’s counsel’s inquiries as to when responses will be produced.” 28 The parties disagree on the meaning of the subsequent minute order requiring defendant to wOASe 2 LDV METS IVINS Ne MUO OO eer OY OMI 1 | “produce responses.” To clarify, the Court did not overrule any relevance or burden objections 2 | by minute order; the minute order merely set a deadline for the defendant to either produce 3 || documents or lodge further objections. Plaintiff's argument that the merits of the RFPs are 4 | irrelevant in light of this order is incorrect; the minute order did not require a production of 5 || particular documents. Further, to the extent plaintiff argues that the defendant agreed to a 6 || document production as opposed to a further inquiry into these RFPs, and must be held to this 7 || agreement, her argument cannot succeed. She points only to letters drafted by her own counsel 8 || purporting to memorialize meet and confer discussions; this is not conclusive evidence of an 9 || agreement to produce documents and defendant disputes that there ever was such an agreement. 10 | Compare ECF No. 28 at 17, and Merin Decl. Ex. F (1-23-20 PHM Email) at 2; Ex. G (3-5-20 11 || PHM Email) at 1. 12 Plaintiff’ s counsel is clear that “[a]t this time, Plaintiff does not seek to compel the records 13 || requested. Rather, Plaintiff seeks only to enforce Defendant County’s agreement to ‘produce 14 | Officers’ reports generated from the underlying incidents giving rise to the litigation,’ made 15 || during meet-and-confer efforts.” ECF No. 28 at 19. In the absence of conclusive evidence that 16 || there was any such agreement, the court will not enforce it. The court will not reach the merits of 17 || discoverability as plaintiff does not seek to compel production. 18 IV. Conclusion 19 Plaintiff’ □ motion (ECF No. 25) is DENIED, without prejudice as to RFP No. 7 only. 20 IT IS SO ORDERED. 21 || DATED: April 24, 2020 ~ 22 Chthien—Chare ALLISON CLAIRE 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28