Weil v. Raisin City Elementary School District ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRENDA J. WEIL, Case No. 1:21-cv-00500-JLT-EPG 12 Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTION TO COMPEL AND REQUEST FOR 13 v. SANCTIONS 14 RAISIN CITY ELEMENTARY SCHOOL (ECF No. 74) 15 DISTRICT, et al., 16 Defendants. 17 18 This case proceeds on Plaintiff Brenda J. Weil’s claims for breach of contract, implied 19 contractual indemnity, equitable indemnity, negligence, and various state labor law violations 20 against Defendants Raisin City Elementary School District (“RCESD”) and Fresno County 21 Superintendent of Schools (“FCSS”). (ECF Nos. 14, 20). Plaintiff generally alleges that 22 Defendants, acting as her joint employers, willfully misclassified Plaintiff as an independent 23 contractor, which deprived her of employment rights and benefits and resulted in damages when 24 Plaintiff was required to reimburse improperly received pension benefits. 25 Before the Court is Plaintiff’s Motion to Compel and Request for Sanctions regarding 26 Outstanding Discovery Issues. (ECF No. 74). For the reasons set forth below, the Court grants in 27 part and denies in part Plaintiff’s motion. 28 \\ 1 I. LEGAL STANDARDS 2 Federal Rule of Civil Procedure 26(b) governs the scope of discovery: Parties may obtain discovery regarding any nonprivileged matter that is relevant to 3 any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the 4 parties' relative access to relevant information, the parties' resources, the 5 importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within 6 this scope of discovery need not be admissible in evidence to be discoverable. 7 Fed. R. Civ. P. 26(b). 8 A. Interrogatories 9 Rule 33(b) permits a party to issue interrogatories “relat[ing] to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(b). “An interrogatory is not objectionable 10 merely because it asks for an opinion or contention that relates to fact or the application of law to 11 fact . . . .” Fed. R. Civ. P. 33(a)(2). Further, each interrogatory must be answered “fully” and 12 objections “to an interrogatory must be stated with specificity.” Fed. R. Civ. P. 33(b)(3)-(4). 13 B. Requests for Production 14 Rule 34(a) permits a party to request the production or inspection of, among other things, 15 “any designated documents or electronically stored information” within the responding party’s 16 possession, custody, or control. Fed. R. Civ. P. 34(a)(1)(A). “An objection must state whether any 17 responsive materials are being withheld on the basis of that objection,” and “[a]n objection to part 18 of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C) 19 (emphasis added). Further, “[a]s provided in Rule 45, a non-party may be compelled to produce 20 documents and tangible things or to permit inspection.” Fed. R. Civ. P. 34(c). 21 C. Requests for Admission 22 Rule 36(a) permits a party to issue requests to admit “the truth of any matters within the 23 scope of Rule 26(b)(1) relating to: fact, the application of law to fact, or opinions about either; 24 and the genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1)(A)-(B). Rule 36 25 further provides: If a matter is not admitted, the answer must specifically deny it or state in detail 26 why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party 27 qualify an answer or deny only a part of a matter, the answer must specify the part 28 admitted and qualify or deny the rest. The answering party may assert lack of 1 knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can 2 readily obtain is insufficient to enable it to admit or deny. 3 Fed. R. Civ. P. 36(a)(4). “A party must not object solely on the ground that the request presents a 4 genuine issue for trial.” Fed. R. Civ. P. 36(a)(5). 5 D. Claims of Privilege 6 Federal Rule of Civil Procedure 26(b)(5) allows a party to withhold “information 7 otherwise discoverable by claiming that the information is privileged or subject to protection as 8 trial-preparation material.” To claim privilege, the party must: (i) expressly make the claim; and 9 (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 10 itself privileged or protected, will enable other parties to assess the claim. 11 Fed. R. Civ. P. 26(b)(5)(i)-(ii). 12 E. Motions to Compel 13 Rule 37 permits “a party seeking discovery [to] move for an order compelling an answer, 14 designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). “Broad discretion is vested in 15 the trial court to permit or deny discovery, and its decision to deny discovery will not be disturbed 16 except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant.” Sablan v. Dep’t of Fin. of Com. of N. Mariana Islands, 856 17 F.2d 1317, 1321 (9th Cir. 1988) (internal citation and quotation marks omitted). 18 Rule 36(a)(6): “The requesting party may move to determine the sufficiency of an answer 19 or objection. Unless the court finds an objection justified, it must order that an answer be served. 20 On finding that an answer does not comply with this rule, the court may order either that the 21 matter is admitted or that an amended answer be served. The court may defer its final decision 22 until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of 23 expenses.” 24 “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to 25 disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). 26 // 27 // 28 1 F. Sanctions 2 Federal Rule of Civil Procedure 37(a)(5)(A) generally provides that if a motion to compel 3 discovery is granted (or if disclosure or discovery is provided after filing), then “the court must, 4 after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable 5 expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). 6 However, “the court must not order this payment if: 7 (i) the movant filed the motion before attempting in good faith to obtain the 8 disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially 9 justified; or (iii) other circumstances make an award of expenses unjust. 10 Id. The Federal Rules also provide that, when a party fails to obey an order to provide or permit 11 discovery, including an order under Rule 37(a), then the Court may, among other things, “treat[t] 12 as contempt of court the failure to obey any order[.]” Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi). 13 II. DISCUSSION 14 The Court directed Plaintiff to file a single statement of all discovery requests at issue and 15 the current objections and/or responses by Defendants. (ECF No. 82). On December 1, 2023, 16 Plaintiff filed her statement, which represents that the following discovery responses remain in 17 dispute: 18 (i) RCESD's Further Response to Plaintiffs Request for Admissions, Set One, Nos. 21, 28, 30-31, 36, 44-45, 49, 51-53, 55, 61, and 96-101 (served on or 19 around September 27, 2023); 20 (ii) RCESD's Supplement to Further Responses to Plaintiffs Request for Admissions, Set One, No. 36 (served on or around November 3, 2023); 21 (iii) FCSS' Further Response to Plaintiffs Request for Admissions, Set One, 22 Nos. 21, 28, 30-31, 44-45, 49, 51, 53, 55, 61, and 102-107 (served on or around September 27, 2023); 23 (iv) RCESD's Further Responses to Plaintiffs Request for Production of 24 Documents, Set Two, Nos. 130-159 (served on or around November 3, 2023); and 25 (v) FCSS' Further Responses to Plaintiffs Request for Production of 26 Documents, Set Two, Nos. 68-69 (served on or around November 3, 2023). 27 (ECF No. 84, p. 2). Additionally, Plaintiff’s original motion asked for an order compelling Defendants “to 28 1 produce the non-privileged, improperly withheld documents referenced within the instant Motion 2 and revised statutorily-compliant privilege logs in relation to Plaintiff’s Request for Production of 3 Documents, Set One.” (ECF No. 74-1, p. 3). 4 On December 4, 2023, Defendants filed objections to Plaintiff’s statement. (ECF No. 85). The Court reviews each dispute in turn below, including the request at issue, the 5 Defendant’s current response, and the Court’s order regarding that request. 6 A. Requests for Admission 7 RFA, Set One, No. 21: 8 Admit that the document attached hereto as Exhibit "21" and produced in 9 discovery as Bates Stamp Number BW000334 is a genuine copy of the Accounts Payable Hold Notice YOU and/or FCSS issued regarding PLAINTIFF's January 10 25, 2019 check. 11 (ECF No. 84, p. 2). Defendant RCESD’s current response states: 12 Subject to, and without waiving, the objections in the original response which are incorporated herein, and subject to the explicit qualification that Responding 13 Party’s response is on only its behalf, Responding Party hereby responds for itself and no other party or third party in this action and admits that Exhibit “21” to the 14 Request for Admission is a genuine copy of a document labeled “ACCOUNTS 15 PAYABLE HOLD NOTICE” regarding “District Name” of “Raisin City ESD”, “Vendor Name” of “Pacific Rim Business Solutions”, and “Check Issue Date” of 16 “01/25/19”.” 17 (Id., p. 2-3). The request sent to Defendant FCSS and Defendant FCSS’s current response are 18 substantively identical. (Id., p. 9). 19 The Court will grant the motion to compel. As discussed above, the Federal Rules of Civil Procedure state that “[i]f a matter is not admitted, the answer must specifically deny it or state in 20 detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to 21 the substance of the matter; and when good faith requires that a party qualify an answer or deny 22 only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The 23 answering party may assert lack of knowledge or information as a reason for failing to admit or 24 deny only if the party states that it has made reasonable inquiry and that the information it knows 25 or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4). 26 Defendants’ responses do not comply with these rules. They do not include any admission 27 or a denial. They do not include any reason why the answer cannot be admitted. Instead, 28 1 Defendants include a different statement and then admit to their own statement, without explicitly 2 denying the parts of the statement they failed to include. 3 While the Court does not purport to know the relevant changes and omissions in 4 Defendants’ revised statements, some are apparent. Plaintiff’s request for admission includes the statement that the document is one that “YOU and/or FCSS issued.” Defendants do not address 5 this aspect of the request in their response. Additionally, Plaintiff’s request asks for an admission 6 that the document is an “Accounts Payable Hold Notice.” Yet Defendants’ response merely states 7 that it is “labeled ACCOUNTS PAYABLE HOLD NOTICE,” without saying that the document 8 is an Accounts Payable Hold Notice. While this change in wording may or may not be material, 9 Defendants’ attempt to recharacterize the requests in their responses is improper. Defendants 10 must respond to the request as written, and as required by the Federal Rules. 11 Plaintiff’s motion to compel Defendants to respond to RFA, Set One, No. 21 is 12 GRANTED. 13 RFA, Set One, No. 28: 14 Admit that the document attached hereto as Exhibit "28" and produced in 15 discovery as Bates Stamp Numbers BW000354 – BW000355 is a genuine copy of a May 9, 2019 letter from FCSS' General Counsel to Scott N. Kivel regarding 16 FCSS' withholding of PLAINTIFF's pay. 17 (ECF No. 84, p. 3). Defendant RCESD’s current response states: Subject to, and without waiving, the objections in the original response which are 18 incorporated herein, Responding Party admits that Exhibit “28” to the Request for 19 Admission is a genuine copy of a May 9, 2019 letter from current and/or former General Counsel of Responding Party to Scott N. Kivel regarding numerous 20 matters, including, as stated by the author of the letter: “I authorized our payroll [sic] department to make payment for Ms. Weil’s invoices despite not receiving a 21 final determination from CalPERS and the questionable back-up information.” 22 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are 23 substantively identical. (Id., pp. 9-10). 24 For the same reason discussed above, Plaintiff’s motion to compel Defendants to respond 25 to RFA, Set One, No. 28 is GRANTED. 26 RFA, Set One, No. 30: Admit that the document attached hereto as Exhibit "30" and produced in 27 discovery as Bates Stamp Numbers BW000626 – BW000628 is a genuine copy of 28 W-2s YOU and/or FCSS provided PLAINTIFF for the years of 2015, 2016, and 1 2017. 2 (ECF No. 84, p. 3). Defendant RCESD’s current response states: 3 Subject to, and without waiving, the objections in the original response which are incorporated herein, and subject to the explicit qualification that Responding 4 Party’s response is on only its behalf, Responding Party hereby responds for itself and no other party or third party in this action and admits that each of the 5 documents comprising Exhibit “30” to the Request for Admission is a genuine copy of a W-2, one each for years 2015, 2016, and 2017, and each showing the 6 “Employers name, address and ZIP code” as “Raisin City Elementary, P. O. Box 7 69, Raisin City, CA 93632” and the “Employee’s first name, initial and last name” as BRENDA J WEIL”. 8 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are 9 substantively identical. (Id., p. 10). 10 For the same reason discussed above, Plaintiff’s motion to compel Defendants to respond 11 to RFA, Set One, No. 30 is GRANTED. 12 RFA, Set One, No. 31: 13 Admit that the document attached hereto as Exhibit "31" and produced in discovery as Bates Stamp Numbers BW000630 – BW000632 is a genuine copy of 14 Internal Revenue Service Form 1099-MISCs YOU and/or FCSS provided PLAINTIFF for the years of 2015, 2016, and 2017. 15 (ECF No. 84, p. 3). Defendant RCESD’s current response states: 16 Subject to, and without waiving, the objections in the original response which are 17 incorporated herein, and subject to the explicit qualification that Responding Party’s response is on only its behalf, Responding Party hereby responds for itself 18 and no other party or third party in this action and admits that each of the documents comprising Exhibit “31” to the Request for Admission is a genuine 19 copy of an Internal Revenue Service Form 1099-MISC, one each for years 2015, 2016, and 2017, and each showing the “PAYER’S name, street address, city, state, 20 ZIP code, and telephone no.” as “Raisin City Elementary, P. O. Box 69, Raisin 21 City, CA 93632, (559) 233-0128” and the “RECIPIENT’S name, street address (including apt. no.), city, state and ZIP code” as “Weil, Brenda J.” (other 22 information redacted). 23 (Id., p. 4). The request sent to Defendant FCSS and Defendant FCSS’s current response are 24 substantively identical. (Id., pp. 10-11). For the same reason discussed above, Plaintiff’s motion to compel Defendants to respond 25 to RFA, Set One, No. 31 is GRANTED. 26 RFA, Set One, No. 36 sent to Defendant RCESD: 27 Admit that, during the period at issue in this ACTION, YOU were responsible for 28 1 compensating PLAINTIFF for the services she performed on behalf of YOU. 2 (ECF No. 84, p. 4). Defendant RCESD’s current response states: 3 Subject to, and without waiving, the objections in the original response which are incorporated herein, Responding Party responds as follows: Responding Party 4 admits that Responding was responsible for compensating PLAINTIFF for the services she performed on behalf of Responding Party as billed to Responding 5 Party in her time sheets and/or invoices. 6 (Id.) 7 For the same reason discussed above, Plaintiff’s motion to compel RCESD to respond to 8 RFA, Set One, No. 36 is GRANTED. 9 RFA, Set One, No. 44: Admit that the California Public Employees' Retirement System ("CalPERS") 10 determined that, during the period of April 1, 2015 to March 31, 2017, 11 PLAINTIFF provided training to RCESD school employees. (ECF No. 84, p. 4). Defendant RCESD’s current response states: 12 Subject to, and without waiving, the objections in the original response which are 13 incorporated herein, Responding Party admits that in a letter dated June 25, 2019, 14 from CalPERS to “Brenda Weil”, CalPERS stated that she “provided training to RESD school employees.” 15 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are identical. 16 (Id., p. 11). 17 For the same reason discussed above, Plaintiff’s motion to compel Defendants to respond 18 to RFA, Set One, No. 44 is GRANTED. 19 RFA, Set One, No. 45: 20 Admit that, between April 1, 2015 and September 30, 2019, PLAINTIFF provided training to RCESD school employees. 21 (ECF No. 84, p. 5). Defendant RCESD’s current response states: 22 Subject to, and without waiving, the objections in the original response which are 23 incorporated herein, Responding Party responds as follows: Admit, to the extent “PLAINTIFF” means Brenda J. Weil dba Pacific Rim Business Solutions in 24 capacity as an independent contractor. 25 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are identical. 26 (Id., p. 11). 27 The Court will deny the motion to compel. Plaintiff argues that Defendant should respond without qualification to its Request for Admission especially as to “Plaintiff.” However, 28 1 Defendants contend that the Admission is properly limited and cites to Plaintiff’s deposition 2 testimony indicating that she performed certain tasks in her capacity as Pacific Rim Business 3 Solutions. Defendants have admitted the request with a qualification that is relevant to that 4 admission. Nor does Plaintiff argue otherwise, i.e., that Plaintiff in her personal capacity, and not through Pacific Rim Business Solutions, performed the services described in the request. 5 Thus, Plaintiff’s motion to compel as to RFA, Set One, No. 45 is DENIED. 6 RFA, Set One, No. 49: 7 Admit that the California Public Employees' Retirement System ("CalPERS") 8 determined that, during the period of April 1, 2015 to March 31, 2017, YOU issued an email address to PLAINTIFF. 9 (ECF No. 84, p. 5). Defendant RCESD’s current response states: 10 Subject to, and without waiving, the objections in the original response which are 11 incorporated herein, Responding Party admits that in a letter dated June 25, 2019, from CalPERS to “Brenda Weil”, CalPERS stated that she was issued an email 12 address. 13 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are 14 substantively identical. (Id., p. 11). 15 The Court finds that Defendants’ responses to RFA, Set One, No. 49 are adequate and 16 denies Plaintiff’s motion to compel a further response. The Request asks for an admission related 17 to a purported determination by a third party, CalPERS. The Court finds that Defendants 18 response, admitting to what CalPERS said, is adequate. 19 Thus, Plaintiff’s motion to compel as to RFA, Set One, No. 49 is DENIED. RFA, Set One, No. 51: 20 Admit that the California Public Employees' Retirement System ("CalPERS") 21 determined that, during the period of April 1, 2015 to March 31, 2017, 22 PLAINTIFF's services for YOU were performed in an “at will” capacity. (ECF No. 84, p. 5). Defendant RCESD’s current response states: 23 Subject to, and without waiving, the objections in the original response which are 24 incorporated herein, and subject to the explicit qualification that Responding Party’s response is on only its behalf, Responding Party hereby responds for itself 25 and no other party or third party in this action as follows: Responding Party admits 26 that in a letter dated June 25, 2019, from CalPERS to “Brenda Weil”, CalPERS stated that she “served in an at will capacity under RESD. . . .” 27 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are 28 1 substantively identical. (Id., p. 12). 2 For the same reason as the prior request, Plaintiff’s motion to compel as to RFA, Set One, 3 No. 51 is DENIED. 4 RFA, Set One, No. 52 sent to Defendant RCESD: Admit that, between April 1, 2015 and September 30, 2019, PLAINTIFF's services 5 for YOU and/or FCSS were performed in an “at will” capacity. 6 (ECF No. 84, p. 5). Defendant RCESD’s current response states: 7 Subject to, and without waiving, the objections in the original response which are incorporated herein, construing “at-will” in the context of the agreement of 8 October 2014 and subsequent similar agreements alleged in the complaint, and 9 subject to the explicit qualification that Responding Party’s response is on only its behalf, Responding Party hereby responds for itself and no other party or third 10 party in this action as follows: Responding Party admits that it could decline to renew agreements, or enter new ones, at the expiration of their respective terms or 11 not provide projects to PLAINTIFF, either as BRENDA J. WEIL or Pacific Rim Business Solutions. 12 (Id., p. 6). 13 The Court will grant Plaintiff’s motion to compel as to this response. Instead of admitting 14 or denying the request as phrased by Plaintiff, Defendant RCESD has recharacterized the 15 response. Plaintiff is entitled to a clear admission or denial as to whether Plaintiff’s services were 16 performed in an “at-will” capacity, and Defendant provides no meaningful objection to this 17 request. 18 Plaintiff’s motion to compel as to RFA, Set One, No. 52 is GRANTED. 19 RFA, Set One, No. 53: 20 Admit that the California Public Employees' Retirement System ("CalPERS") determined that, during the period of April 1, 2015 to March 31, 2017, 21 PLAINTIFF provided business and/or financial services that overlapped with an 22 existing school position of RCESD. (ECF No. 84, p. 6). Defendant RCESD’s current response states: 23 Subject to, and without waiving, the objections in the original response which are 24 incorporated herein, Responding Party admits that in a letter dated June 25, 2019, from CalPERS to “Brenda Weil”, CalPERS stated that she “provided 25 business/financial services that overlapped with an existing school position under 26 RESD.” (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are identical. 27 (Id., p. 12). 28 1 The Court finds that Defendants’ responses to RFA, Set One, No. 53 are adequate and 2 denies Plaintiff’s motion to compel a further response. 3 Plaintiff’s motion to compel as to RFA, Set One, No. 53 is DENIED. 4 RFA, Set One, No. 55: Admit that the California Public Employees' Retirement System ("CalPERS") 5 determined that, during the period of April 1, 2015 to March 31, 2017, 6 PLAINTIFF provided business and/or financial services that were integral to YOUR operations. 7 (ECF No. 84, p. 6). Defendant RCESD’s current response states: 8 Subject to, and without waiving, the objections in the original response which are 9 incorporated herein, Responding Party admits that in a letter dated June 25, 2019, from CalPERS to “Brenda Weil”, CalPERS stated that her “services were integral 10 to RESD business and financial operations.” 11 (Id.) The request sent to Defendant FCSS and Defendant FCSS’s current response are substantively identical. (Id., p. 12). 12 The Court finds that Defendants’ responses to RFA, Set One, No. 55 are adequate and 13 denies Plaintiff’s motion to compel a further response. 14 Plaintiff’s motion to compel as to RFA, Set One, No. 55 is DENIED. 15 RFA, Set One, No. 61: 16 Admit that the California Public Employees' Retirement System ("CalPERS") 17 determined that official Fresno County School report information provided by YOU and/or FCSS confirmed the services PLAINTIFF provided YOU during the 18 period of April 1, 2015 to March 31, 2017 were that of a common law employee of RCESD. 19 (ECF No. 84, pp. 6-7). Defendant RCESD’s current response states: 20 Subject to, and without waiving, the objections in the original response which are 21 incorporated herein, Responding Party admits that in a letter dated June 25, 2019, from CalPERS to “Brenda Weil”, CalPERS stated that, “Official Fresno County 22 School report information confirmed the services you provided were as an 23 employee under RESD (dated July 18, 2017).” (Id., p. 7). The request sent to Defendant FCSS and Defendant FCSS’s current response are 24 substantively identical. (Id., p. 13). 25 The Court finds that Defendants’ responses to RFA, Set One, No. 61 are adequate and 26 denies Plaintiff’s motion to compel a further response. 27 Plaintiff’s motion to compel as to RFA, Set One, No. 61 is DENIED. 28 1 RFA, Set One, No. 96 sent to Defendant RCESD: 2 Admit that the services and/or work PLAINTIFF performed for YOU in 2014 were part of YOUR normal financial and/or business operations. 3 (ECF No. 84, p. 7). Defendant RCESD’s current response states: 4 Subject to, and without waiving, the objections in the original response which are 5 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 6 some services and/or work PLAINTIFF performed for RCESD in 2014, if any, were part of RCESD’s normal financial and/or business operations but Responding 7 Party makes no admission, and is not asked to in the request, to identify which services and/or work was part of RCESD’s normal financial and/or business 8 operations. 9 (Id.) 10 The Court will grant Plaintiff’s motion to compel as to this request. Defendants’ response 11 improperly includes limitations to the request, including admitting the relevant fact only as to 12 “some” of the services “if any.” Moreover, it’s purported limitation that it will make not 13 admission to identify which services were part of RCESD’s normal financial and/or business 14 operations is not sensical and only services to suggest in ambiguous way that not all work 15 performed by Plaintiff was part of RCESD’s normal financial and/or business operations. Plaintiff’s motion to compel as to RFA, Set One, No. 96 is GRANTED. 16 RFA, Set One, No. 97 sent to Defendant RCESD: 17 Admit that the services and/or work PLAINTIFF performed for YOU in 2015 18 were part of YOUR normal financial and/or business operations. 19 (ECF No. 84, p. 7). Defendant RCESD’s current response states: Subject to, and without waiving, the objections in the original response which are 20 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business 21 Solutions, Responding Party responds as follows: Responding Party admits that some services and/or work PLAINTIFF performed for RCESD in 2015, if any, 22 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 23 services and/or work was part of RCESD’s normal financial and/or business operations. 24 (Id.) 25 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 26 One, No. 97 is GRANTED. 27 // 28 1 RFA, Set One, No. 98 sent to Defendant RCESD: 2 Admit that the services and/or work PLAINTIFF performed for YOU in 2016 were part of YOUR normal financial and/or business operations. 3 (ECF No. 84, p. 8). Defendant RCESD’s current response states: 4 Subject to, and without waiving, the objections in the original response which are 5 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 6 some services and/or work PLAINTIFF performed for RCESD in 2016, if any, were part of RCESD’s normal financial and/or business operations but Responding 7 Party makes no admission, and is not asked to in the request, to identify which services and/or work was part of RCESD’s normal financial and/or business 8 operations. 9 (Id.) 10 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 11 One, No. 98 is GRANTED. 12 RFA, Set One, No. 99 sent to Defendant RCESD: 13 Admit that the services and/or work PLAINTIFF performed for YOU in 2017 were part of YOUR normal financial and/or business operations. 14 (ECF No. 84, p. 8). Defendant RCESD’s current response states: 15 Subject to, and without waiving, the objections in the original response which are 16 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 17 some services and/or work PLAINTIFF performed for RCESD in 2017, if any, were part of RCESD’s normal financial and/or business operations but Responding 18 Party makes no admission, and is not asked to in the request, to identify which services and/or work was part of RCESD’s normal financial and/or business 19 operations. 20 (Id.) 21 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 22 One, No. 99 is GRANTED. 23 RFA, Set One, No. 100 sent to Defendant RCSED: 24 Admit that the services and/or work PLAINTIFF performed for YOU in 2018 were part of YOUR normal financial and/or business operations. 25 (ECF No. 84, p. 8). Defendant RCESD’s current response states: 26 Subject to, and without waiving, the objections in the original response which are 27 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 28 some services and/or work PLAINTIFF performed for RCESD in 2018, if any, 1 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 2 services and/or work was part of RCESD’s normal financial and/or business operations. 3 (Id., pp. 8-9). 4 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 5 One, No. 100 is GRANTED. 6 RFA, Set One, No. 101 sent to Defendant RCESD: 7 Admit that the services and/or work PLAINTIFF performed for YOU in 2019 8 were part of YOUR normal financial and/or business operations. 9 (ECF No. 84, p. 9). Defendant RCESD’s current response states: Subject to, and without waiving, the objections in the original response which are 10 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 11 some services and/or work PLAINTIFF performed for RCESD in 2019, if any, 12 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 13 services and/or work was part of RCESD’s normal financial and/or business operations. 14 (Id.) 15 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 16 One, No. 101 is GRANTED. 17 RFA, Set One, No. 102 sent to Defendant FCSS: 18 Admit that the services and/or work PLAINTIFF performed for RCESD in 2014 were part of RCESD's normal financial and/or business operations. 19 (ECF No. 84, p. 13). Defendant FCSS’s current response states: 20 Subject to, and without waiving, the objections in the original response which are 21 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 22 some services and/or work PLAINTIFF performed for RCESD in 2014, if any, 23 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 24 services and/or work was part of RCESD’s normal financial and/or business operations. 25 (Id.) 26 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 27 One, No. 102 is GRANTED. 28 1 RFA, Set One, No. 103 sent to Defendant FCSS: 2 Admit that the services and/or work PLAINTIFF performed for RCESD in 2015 were part of RCESD's normal financial and/or business operations. 3 (ECF No. 84, p. 13). Defendant FCSS’s current response states: 4 Subject to, and without waiving, the objections in the original response which are 5 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 6 some services and/or work PLAINTIFF performed for RCESD in 2015, if any, were part of RCESD’s normal financial and/or business operations but Responding 7 Party makes no admission, and is not asked to in the request, to identify which services and/or work was part of RCESD’s normal financial and/or business 8 operations. 9 (Id., pp. 13-14). 10 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 11 One, No. 103 is GRANTED. 12 RFA, Set One, No. 104 sent to Defendant FCSS: 13 Admit that the services and/or work PLAINTIFF performed for RCESD in 2016 were part of RCESD's normal financial and/or business operations. 14 (ECF No. 84, p. 14). Defendant FCSS’s current response states: 15 Subject to, and without waiving, the objections in the original response which are 16 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business Solutions, Responding Party responds as follows: Responding Party admits that 17 some services and/or work PLAINTIFF performed for RCESD in 2016, if any, were part of RCESD’s normal financial and/or business operations but Responding 18 Party makes no admission, and is not asked to in the request, to identify which services and/or work was part of RCESD’s normal financial and/or business 19 operations. 20 (Id.) For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 21 One, No. 104 is GRANTED. 22 RFA, Set One, No. 105 sent to Defendant FCSS: 23 Admit that the services and/or work PLAINTIFF performed for RCESD in 2017 24 were part of RCESD's normal financial and/or business operations. 25 (ECF No. 84, p. 14). Defendant FCSS’s current response states: 26 Subject to, and without waiving, the objections in the original response which are incorporated herein, and construing PLAINTIFF to include Pacific Rim Business 27 Solutions, Responding Party responds as follows: Responding Party admits that some services and/or work PLAINTIFF performed for RCESD in 2017, if any, 28 1 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 2 services and/or work was part of RCESD’s normal financial and/or business operations. 3 (Id.) 4 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 5 One, No. 105 is GRANTED. 6 RFA, Set One, No. 106 sent to Defendant FCSS: 7 Admit that the services and/or work PLAINTIFF performed for RCESD in 2018 8 were part of RCESD's normal financial and/or business operations. 9 (ECF No. 84, p. 14). Defendant FCSS’s current response states: Subject to, and without waiving, the objections in the original response which are 10 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business 11 Solutions, Responding Party responds as follows: Responding Party admits that some services and/or work PLAINTIFF performed for RCESD in 2018, if any, 12 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 13 services and/or work was part of RCESD’s normal financial and/or business operations. 14 (Id., pp. 14-15). 15 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 16 One, No. 106 is GRANTED. 17 RFA, Set One, No. 107 sent to Defendant FCSS: 18 Admit that the services and/or work PLAINTIFF performed for RCESD in 2019 19 were part of RCESD's normal financial and/or business operations. 20 (ECF No. 84, p. 15). Defendant FCSS’s current response states: Subject to, and without waiving, the objections in the original response which are 21 incorporated herein, and construing PLAINTIFF to include Pacific Rim Business 22 Solutions, Responding Party responds as follows: Responding Party admits that some services and/or work PLAINTIFF performed for RCESD in 2018, if any, 23 were part of RCESD’s normal financial and/or business operations but Responding Party makes no admission, and is not asked to in the request, to identify which 24 services and/or work was part of RCESD’s normal financial and/or business operations. 25 (Id.) 26 For the same reasons as discussed above, Plaintiff’s motion to compel as to RFA, Set 27 One, No. 107 is GRANTED. 28 1 B. Form of the Privilege Logs 2 Plaintiff contends that the privilege logs provided by Defendants in response to Plaintiff’s 3 Request for Production, Set One1, are deficient. (ECF No. 74-1, p. 11). Specifically, Plaintiff 4 argues that Defendant RCESD’s logs for RFP, Set One, Nos. 17, 18, 68, 69, 84, 115, 118, 119, (id., pp. 75-79), and Defendant FCSS’s logs for RFP, Set One, Nos. 27, 28, 29, 30, 34, 42 and 53, 5 (id., pp. 125-127) are impermissibly vague and fail to describe or identify the withheld documents 6 in compliance with Federal Rule of Civil Procedure 26(b)(5)(A). (Id.) 7 The entries at issue reference categories of documents without providing the date or any 8 document (“No date limitations”), a description of the document (“DOCUMENTS as defined in 9 the request”), a specific subject description (“All confidential communications between counsel 10 for RCESD and RCESD relating to PLAINTIFF, as that term is defined. All attorney research, 11 analysis, opinion, and consulting with experts, concerning proceedings and/or litigation involving 12 ‘PLAINTIFF’ or the status of PLAINTIFF as an employee or independent contractor.”); any 13 author’s names (“RCESD attorneys and staff; RCESD superintendent, Board members and 14 employees; expert consultants”). 15 Defendants argue in response that their log is sufficient because “the defined terms are 16 impermissible blanket requests and create an unreasonable burden on Responding Party to 17 identify every privileged document.” Defendants also claim that “if the production of a 18 document-by-document privilege log would be “unduly burdensome,” the requirements of Rule 19 26(b)(5)(A) may be complied with by crafting a privilege log in some other format. Moreover, 20 they argue that the requests do not contain a date cut-off and would therefore include 21 communications to the present. 22 Federal Rule of Civil Procedure 26(b)(5) governs the disclosure requirements when 23 documents are withheld as privileged. That rule states: When a party withholds information otherwise discoverable by claiming that the 24 information is privileged or subject to protection as trial-preparation material, the party must: 25 (i) Expressly make the claim; and 26 27 1 Copies of the Requests for Production, Set One sent to RCESD and FCSS are attached to Plaintiff’s July 20, 2023, Informal Discovery Dispute Letter Brief. (ECF No. 53, pp. 36-40, 42-43) 28 1 (ii) Describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing 2 information itself privileged or protected, will enable other parties to assess the claim.” 3 Fed. R. Civ. P. 26(b)(5)(A). Moreover, the Advisory Committee Notes to this Rule provides the 4 following guidance: 5 The party must also provide sufficient information to enable other parties to 6 evaluate the applicability of the claimed privilege or protection. . . . The rule does not attempt to define for each case what information must be provided when a 7 party asserts a claim of privilege or work product protection. Details concerning time, person, general subject matter, etc., may be appropriate if only a few items 8 are withhold, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by 9 categories. 10 Fed. R. Civ. P. 26, Advisory Committee's Notes to 1993 Amendments (emphasis added). 11 As to their first argument, Defendants do not explain why their privilege log entries are 12 justified due to the fact “the defined terms are impermissible blanket requests.” Defendants do not 13 point to any such terms, or why those terms exempt them from the requirement of giving a 14 privilege log. After all, Defendants presumably understood the requests sufficiently to gather 15 responsive documents and then exclude them from production on the basis of privilege. 16 Moreover, it appears that the documents concern fairly straightforward and relevant categories of documents concerning “proceedings and/or litigation involving Plaintiff or the status of Plaintiff 17 as an employee or independent contractor.” 18 Nor to the cases cited by Defendants support their position. In the unpublished case of 19 Herrera v. General Atomics, No. 21-CV-1632-AJB(BLM), 2022 WL 1343001, at *6 (S.D. Cal., 20 May 3, 2022), the Court declined to compel a privilege log listing of all responsive documents 21 where the definitions would require listing of all communications with attorneys, who were 22 included in the definition of YOU, which “renders the RFPs impermissibly overbroad and creates 23 an unreasonable burden on Defendant to identify every privileged document.” However, the 24 Court also held that “Defendant is ordered to reconsider the responsive documents by eliminating 25 the Defendant's attorneys from the definition of ‘YOU.’ If under this new definition, Defendant is 26 withholding relevant responsive documents on the grounds that they are privileged, Defendant 27 must provide a privilege log identifying those documents to Plaintiff by May 13, 2022.” Id. at *5. 28 1 Here, Defendants have not claimed that the scope of the requests is unreasonable broad or 2 targeted to attorney-communication. Nor do they offer to provide a privilege log on some more 3 limited subset of documents. 4 Defendants’ reliance on the case of Pizana v. Sanmedica International, LLC, No. 1:18-cv- 00644-DAD-SKO, 2020 WL 6075846, at *9 (E.D. Cal., Oct. 15, 2020) appears even more 5 misplaced given that, in that case, the Magistrate Judge compelled Plaintiff’s motion to compel a 6 privilege log, stating: 7 Plaintiff is entitled, however, to the discovery sought by RFP No. 45, which seeks 8 documents pertaining to customer complaints about the Product made during the putative class period. (See Doc. 91-3 at 10.) Defendant objected that the request 9 called for documents subject to the attorney-client and work product privileges, 10 and it further responded that it would produce documents responsive to the request. (See 91-6 at 19–20.) Both parties agree that a privilege log is required 11 but disagree on the timing of the log. Defendant states that although it has begun preparing a privilege log, such preparation is a “time consuming task,” as 12 Defendant has identified “more than 7000 documents as attorney-client communications (or potentially privileged communications).” (Doc. 91 at 61.) 13 Plaintiff requests that the Court order production of Defendant's privilege log by a 14 date certain. (See id. at 59.) Plaintiff's request is well-taken. RFP No. 45 was propounded six months ago—more than enough time to not only 15 begin, but to substantially complete, a privilege log of this size. Accordingly, Defendant will be required to provide a complete log of all documents 16 responsive to RFP No. 45 but withheld on the basis of privilege within thirty (30) days of the date of this order. As Defendant indicates in the parties’ joint 17 statement that it has produced all non-privileged documents that are responsive to 18 RFP No. 45 (see Doc. 91 at 60–61), which Plaintiff does not contest, Plaintiff's motion to compel a further response to that request will be otherwise denied as 19 moot. 20 Id. at *9 (emphasis added). 21 As to Defendants’ argument that it would be unreasonably burdensome to list specific 22 documents, Defendants do not provide any support for this position. They do not provide any 23 estimate of the number of documents involved. Nor do they provide any estimate as to the amount of time or burden involved. 24 While the Court agrees that something other than a document-by-document log could 25 satisfy the requirements of Rule 26, Defendants do not even claim that their log does so. The 26 log’s categories are so broad that they do not provide useful information for evaluating the 27 privilege, including, for example, whether the document provides legal advice, or comments on 28 1 outstanding litigation. The description of the authors and recipients are similarly almost limitless 2 and includes many categories of persons whose communications would not ordinarily be subject 3 to privilege including RCESD “staff,” RCESD superintendent, Board members, and employees. 4 The categories lack any date limitation. Thus, while it is conceivably possible that a privilege log could comply with Rule 26 by use of categoric description, this one does not do so. 5 Defendants’ final argument, that the date range runs through the present, is well taken. 6 The Court will not compel further specification regarding any document dated after the filing of 7 the complaint in this litigation because such documents would include voluminous privileged 8 litigation correspondence. 9 Accordingly, Plaintiff’s motion to compel Defendants to provide a revised privilege log 10 for Defendant RCESD’s logs for RFP, Set One, Nos. 17, 18, 68, 69, 84, 115, 118, 119 and 11 Defendant FCSS’s logs for RFP, Set One, Nos. 27, 28, 29, 30, 34, 42 and 53 is GRANTED IN 12 PART as follows: No later than 45 days from the date of this order, Defendants shall supplement 13 their privilege log to provide entries addressing the documents withheld in RFP, Set One, Nos. 14 17, 18, 68, 69, 84, 115, 118, 119, (see ECF No. 74-1, pp. 75-79), and Defendant FCSS’s logs for 15 RFP, Set One, Nos. 27, 28, 29, 30, 34, 42 and 53, (id., pp. 125-127), in a form that complies with 16 Federal Rule of Civil Procedure 26(b)(5)(A).2 However, Defendants need not include entries for 17 any document dates after the date of the complaint in this action, i.e., February 2, 2021. 18 C. Claims of Privilege 19 As background, the Court held an informal discovery conference regarding Defendants’ 20 responses to Plaintiff’s Requests for Production, Set One, on July 21, 2023. (ECF Nos. 52, 53, 21 54). At that conference, the parties indicated there was a dispute regarding documents created 22 23 2 A document-by-document list of the withheld documents will fulfill this requirement. Alternatively, entries that are grouped by category may be sufficient so long as they “[d]escribe the nature of the 24 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.” 25 Fed. R. Civ. P. 26(b)(5)(A). Without deciding what precise disclosure would satisfy these rules, such entries would need to include a specific date or date range, a description of the subject matter of the 26 communications sufficiently specific to evaluate whether that subject matter falls under the applicable privilege, and specific names of authors and recipients for each document or group of documents. 27 Defendants are warned, however, that if the applicability of the privilege cannot be determined based on any such privilege log, Defendants may waive the right to claim such privilege as to the referenced 28 documents. 1 during the time Plaintiff and Defendant RCESD were both represented by the same counsel, Scott 2 Kivel, as part of the underlying CalPERS litigation. The Court did not make a formal ruling 3 regarding the dispute but directed the parties to file a joint discovery statement following meet 4 and confer efforts. (ECF No. 55). The parties’ joint discovery statement outlined the parties’ dispute as to documents that 5 were part of Plaintiff’s client file when she was represented by Mr. Kivel, including those 6 identified in Defendants’ privilege log as PL-RCSD090-0292. (ECF No. 56, pp. 17-23). The 7 Court held a hearing in response to the parties’ discovery statement on September 9, 2023. (ECF 8 No. 57). Following the hearing, the Court granted Plaintiff’s motion to compel “as to documents 9 identified in Defendants’ privilege log as having been created, sent, or received by Mr. Kivel 10 prior to November 26, 2019” and “as to documents identified in Defendants’ privilege log as PL- 11 RCSD0290 through PL-RCSD0292.” (ECF No. 58). The Court directed Defendants to produce 12 the identified documents by September 22, 2023. (Id.) 13 The Court held another informal dispute conference regarding Plaintiff’s deposition of 14 Defendant FCSS’s Rule (30(b)(6) witness on September 29, 2023. (ECF Nos. 64, 65, 67). The 15 Court granted Plaintiff permission to file a motion to compel and/or motion for sanctions 16 regarding any outstanding discovery requests. (ECF No. 68). 17 Plaintiff’s instant motion to compel argues that Defendants’ privilege logs indicate that 18 Defendants continue to impermissibly withhold responsive documents on the basis of attorney- 19 client privilege, work product, or privacy that were created or transmitted during the time Mr. 20 Kivel jointly represented Plaintiff and Defendant RCESD. (ECF No. 74-1, p. 12). Plaintiff’s 21 motion seeks to compel all documents that are either identified in RCESD’s privilege log for 22 RFP, Set One, Nos. 75, 83, 94, 95, 96, and 97 as “Scott Kivel representation” and/or created or 23 transmitted during the joint representation period of September 25, 2018 through November 26, 2019 (ECF No. 74-1, p. 13; see id., pp. 75-79 [“RCESD’s Privilege Log, RFP, Set One”]). As set 24 forth in Defendant RCESD’s privilege log, the documents described as “Scott Kivel 25 representation” are identified as an email string between former RCESD Superintendent Juan R. 26 Sandoval and Mr. Kivel dated September 27-28, 2018. Additionally, Plaintiff seeks to compel a 27 November 27, 2019 email string between Mr. Sandoval and Mr. Kivel regarding “Weil’s file” as 28 1 identified in RCESD’s privilege log for RFP, Set One, Nos. 98, 99, 104, and 105. (Id.) 2 In opposition, Defendants argue that they have not withheld any documents that they were 3 ordered to produce by the Court’s order. (ECF No. 75, p. 14). Defendants contend that Plaintiff’s 4 motion should be denied as to the September 2018 email string because Plaintiff has not established an initial date of joint representation and because the retainer agreement between Mrs. 5 Kivel and RCESD is dated October 9, 2018. (Id., pp. 14-15). As for the November 2019 email 6 string, Defendants argue that they were not required to produce the email because it was dated 7 one day after the period of joint representation identified by the Court (i.e., prior to November 26, 8 2019) and because Plaintiff is not included on the email. (Id., p. 15). Defendants also argue that 9 Plaintiff’s motion to compel should be denied because each request from Plaintiff’s RFP, Set One 10 identified in Defendants’ privilege logs was also objected to on other grounds. (Id.) 11 However, notwithstanding their arguments as to why they should not be compelled to 12 produce the September 2018 documents or November 27, 2019 email string, Defendants 13 represent that Mr. Kivel produced to Plaintiff additional documents, “includ[ing] all of the 14 specifically identified documents in the privilege log subject to Plaintiff’s motion to compel, one 15 of which is also on the privilege log of Kivel documents previously considered by this Court but 16 was not ordered to be produced.” (ECF No. 75, p. 13). In reply, Plaintiff seeks the Court’s ruling 17 regarding the September 2018 documents and November 27, 2019 emails “with respect to 18 whether such documents were improperly withheld by Defendants or, alternatively, improperly 19 produced by Mr. Kivel and should be destroyed/not used.” (ECF No. 78, p. 9).3 20 i. September 2018 Emails 21 The Court finds that the September 27-28, 2018 emails between Mr. Kivel and Mr. 22 Sandoval identified in Defendant RCESD’s privilege log as “Scott Kivel Representation” are not 23 privileged under the joint representation exception. See Cal. Evid. Code § 962 (“Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, 24 nor the successor in interest in any of them may claim a privilege under this article as to a 25 communication made in the course of that relationship when such communication is offered in a 26 27 3 Defendants’ opposition and Plaintiff’s reply indicate that some of the documents produced by Mr. Kivel were attorney-client privileged based on an earlier retainer agreement between Mr. Kivel and Defendant 28 RCESD. 1 civil proceeding between one of such clients (or his successor in interest) and another of such 2 clients (or his successor in interest).”).4 Here, the initial email sent by Mr. Sandoval to Mr. Kivel 3 concerns the joint representation of both Defendant RCESD and Plaintiff in appealing the 4 CalPERS determination. Although Defendants argue that no joint client relationship existed at that time because the retainer agreement was not executed until October 9, 2018, “the joint-client 5 exception contained in section 962 contains no limitation to communications within the scope of 6 the fee agreement. Section 962 does not even require a fee agreement.” Vieste, LLC v. Hill 7 Redwood Development, No. C009004024 JSW, 2010 WL 4807058, at * 4 (N.D. Cal. Nov 18, 8 2010). Moreover, the September 27-28, 2018 emails clearly concern the handling of the CalPERS 9 determination on behalf of Defendant RCESD and Plaintiff, i.e., the matter of common interest 10 between Defendant RCESD and Plaintiff. Cf. Glacier Gen. Assurance Co. v. Super. Ct., 95 11 Cal.App.3d 836, 842 (1979) (“[W]hen an insurer, is required by its contract of insurance, employs 12 counsel to defend its insured, any communication with the lawyer concerning the handling of the 13 claim against the insured, is necessarily a matter of common interest to both the insured and the 14 insurer.”). 15 Accordingly, Plaintiff’s motion to compel the production of the September 27-28, 2018 16 email string between Mr. Kivel and Mr. Sandoval identified in Defendant RCESD’s privilege log 17 as “Scott Kivel Representation” and overrule the claim of privilege is GRANTED. 18 ii. November 27, 2019 Emails 19 The Court finds that the November 27, 2019 email string between Mr. Kivel and Mr. 20 Sandoval identified in Defendant RCESD’s privilege log as “Weil’s file” is not privileged under 21 the joint client exception. Although the email post-dates (by one day) the termination of the joint 22 client relationship, the email concerns the joint client relationship and Mr. Kivel’s handling of the 23 CalPERS determination on behalf of Defendant RCESD and Plaintiff. Accordingly, Plaintiff’s motion to compel the production of the November 27, 2019 24 emails string between Mr. Kivel and Mr. Sandoval identified in Defendant RCESD’s privilege 25 log as “Weil’s file,” and overrule the claim of privilege is GRANTED. 26 27 4 As discussed at the September 8, 2023 informal dispute conference, “all counsel appear to agree that. . . 28 California Evidence Code 962 would apply here.” (ECF No. 63, p. 29). 1 D. Requests for Production, Set Two 2 The Court will next address Plaintiff’s motion to compel as to Defendants’ responses to 3 Plaintiff’s Requests for Production, Set Two, which contained thirty (30) RFPs sent to Defendant 4 RCESD (RFP Nos. 130-159) and two RFPs sent to Defendant FCSS (RFP Nos. 68-69). (ECF No. 74-1, pp. 158-192). 5 According to Plaintiff’s motion, Defendants provided “objections-only responses to every 6 single Request contained in Plaintiffs' RFP, Set Two” on September 28, 2023, and September 29, 7 2023. (ECF No. 74-1, p. 2). Plaintiff requested that Defendants provide “provide substantive RFP 8 Set Two discovery responses and documents no later than October 16, 2023.” (Id.) At the time of 9 filing of the instant motion, Plaintiff had not received any documents or further responses 10 regarding RFP, Set Two. (Id.) 11 Defendants’ opposition argues that Plaintiff’s motion to compel further response as to 12 RFP, Set Two, is moot because Defendants “served further responses and produced documents” 13 on November 3, 2023. (ECF No. 75, p. 15). Additionally, Defendants generally argue Plaintiff’s 14 motion should be denied as Plaintiff has not demonstrated the relevance of the requests for 15 production. (Id., pp. 15-16). 16 In reply, the declaration of Plaintiff’s counsel, Benjamin West, argues that Defendants’ 17 further responses to RFP, Set Two “remain incomplete, deficient, evasive, and/or otherwise 18 improper.” (ECF No. 78-2, p. 3). According to Mr. West’s declaration, the wording of 19 Defendants’ responses make it unclear as to whether Defendants have limited their production to 20 only certain types, such as “communications responsive” or “documents responsive” to certain 21 requests or “documents that comprise” the report or specific document identified by certain 22 requests. (Id., pp. 3-4). 23 The Court will deny Plaintiff’s motion to compel as to RFP, Set Two, Nos. 130-159 and RFP, Set Two, Nos. 68-69. Defendants represent that they have served further responses, 24 including documents, on Plaintiff. Defendants’ further responses to each request contained in 25 Plaintiff’s RFP, Set Two states that Defendants will produce documents that are responsive to the 26 requests. Plaintiff’s only argument in reply is that the wording of Defendants’ further responses 27 seems to indicate that Defendants may have not provided all responsive documents. However, 28 1 Plaintiff does not explain how the scope of Defendants’ production is insufficient. Absent 2 compelling evidence that responsive documents have been withheld, the Court cannot compel 3 Defendant to produce further responses to requests that have been answered. See Grossman v. 4 Directors Guild of Am., Inc., 2018 WL 5914242, at *5 (C.D. Cal. Aug. 22, 2018) (citing Unilin Beheer B.V. v. NSL Trading Corp., 2015 WL 12698382, at *5 (C.D. Cal. Feb. 27, 2015) (“A 5 plaintiff's mere suspicion that additional documents must exist is an insufficient basis to grant a 6 motion to compel.”). 7 That said, the Court appreciates that Defendants’ production came after Plaintiff had filed 8 its motion to compel. The Court will take the timing of such production into account when 9 evaluating Plaintiff’s request for sanctions, below. 10 Accordingly, Plaintiff’s motion to compel as to RFP, Set Two, Nos. 130-159 and RFP, Set 11 Two, Nos. 68-69 is DENIED as moot. 12 E. Sanctions 13 Plaintiff seeks $9,150.00 in compensation for her attorney fees and costs associated with 14 the instant motion to compel and underlying discovery disputes. (ECF No. 74-1, pp. 15-18). 15 Plaintiff contends that monetary sanctions are warranted under the Federal Rules of Civil 16 Procedure based on Defendants’ refusal to produce responsive documents and unmeritorious 17 objections to discovery. (Id.) Defendants argue that monetary sanctions are not warranted as 18 Defendants’ objections were justified and because Plaintiff’s attorney fee request is unsupported. 19 (ECF No. 75, pp. 16-19). Instead, Defendants argue that they could be awarded their reasonable 20 expenses, including attorney fees and costs, in opposing Plaintiff’s motion. (Id., p. 17). 21 Again, Federal Rule of Civil Procedure 37(a)(5) states that “[i]f the motion [to compel 22 disclosure or discovery] is granted—or if the disclosure or requested discovery is provided after 23 the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or 24 both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s 25 fees. But the court must not order this payment if . . . the opposing party’s nondisclosure, 26 response, or objection was substantially justified.” Fed. R. Civ. P. 37(a)(5). 27 As described above, the Court has granted Plaintiff’s motion to compel regarding the 28 eee eee IE I EI OSE IEE EE 1 | majority of the issues raised. For the reasons stated above, Defendants’ position was not 2 | substantially justified as to those requests. Moreover, Defendants relied solely on objections as to 3 || requests for production, only to produce responsive documents after Plaintiff filed a motion to 4 || compel. Despite the multiple informal conferences where the Court attempted to provide 5 | guidance to the parties on the scope of discovery, the current motion included several hundred 6 | Pages of documents, necessitating this lengthy order. 7 However, the Court appreciates that it did not grant Plaintiff's motion to compel in full. 8 Accordingly, the Court finds that a haircut of 25% is warranted on Plaintiff's request for sanctions. 9 Accordingly, Plaintiff's motion to compel is GRANTED IN PART insofar as the Court 10 will require Defendants and/or their attorneys to pay Plaintiff's reasonable expenses incurred in 11 making the motion, including attorneys’ fees, in the amount of $6,862.50 no later than 60 days 12 from the date of this order. 13 Wl. CONCLUSION The Court grants in part and denied in part Plaintiff's motion compel as provided in this order.5 16 Unless otherwise specified in the order, any supplemental production should be provided 17 | no later than 30 days from the date of this order.° 18 19 IT IS SO ORDERED. 20 Dated: _ January 17, 2024 [sf ey UNITED STATES MAGISTRATE JUDGE 22 23 24 25 | ° Plaintiffs’ request leave to bring motion to compel with regard to FCSS’s rule 30(b)(6) witnesses and the Duran subpoena is denied without prejudice as unripe. (ECF No. 74-1, pp. 18-21). If Plaintiff wishes for 26 | further permission to file a motion to compel, it may submit a motion to do so, no longer than 2 pages, explaining good cause for the delay, which the Court will consider in due course. 27 || © If Defendants need additional time to fulfill any of these orders, they shall meet and confer with Plaintiff and attempt to agree on a reasonable extension of time. If such an agreement is reached, the parties may 28 | file an appropriate stipulation. 26