Disability Rights Washington v. Meneses

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DISABILITY RIGHTS WASHINGTON, a CASE NO. 3:22-cv-05651-RJB 11 nonprofit membership organization for the federally mandated Protection and ORDER ON DEFENDANT JILMA 12 Advocacy Systems, MENESES’ MOTION TO COMPEL 13 Plaintiff, v. 14 JILMA MENESES, in her official capacity 15 as Acting Secretary of the Washington State Department of Social and Health 16 Services; and SUSAN BIRCH, in her official capacity as Director of the 17 Washington State Health Care Authority, 18 Defendants. 19

20 This matter comes before the Court on Defendant Jilma Meneses’ Motion to Compel 21 Plaintiff Disability Rights Washington to Participate in Discovery. Dkt. 123. The Court has 22 considered the pleadings filed regarding the motion and the remaining file. It is fully advised. 23 For the reasons provided below, the motion to compel (Dkt. 123) should be granted, in 24 part, and denied, in part. 1 I. FACTS 2 The Plaintiff in this case seeks declaratory and injunctive relief regarding The Rainier 3 School (“Rainier”), a state-run, residential facility for people with intellectual and developmental 4 disabilities. Dkt. 83. It contends that it is a dangerous place to live and fails to provide for the 5 health and safety of its residents. Id. The Plaintiff brings claims for violations of Title II of the

6 Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102, et. seq., and the Rehabilitation 7 Act (“RA”), 29 U.S.C. § 701, et. seq. Id. In addition to declaratory and injunctive relief, it seeks 8 attorneys’ fees and costs. Id. 9 According to the Amended Complaint, Plaintiff Disability Rights Washington is “the 10 statewide protection and advocacy system designated by the Governor of the State of 11 Washington to protect and advocate for the legal and civil rights of those residents of this state 12 who have disabilities” pursuant to various federal and state statutes. Dkt. 83 at 4. Those statutes 13 include the Developmental Disabilities Act, 42 U.S.C. §§ 15041-45, the Protection and 14 Advocacy of Individuals with Mental Illness Act, 42 U.S.C. §§ 10801-51, and RCW

15 71A.10.080(2). The Developmental Disabilities Act includes a provision allowing advocacy 16 organizations like Disability Rights Washington to “pursue legal, administrative, and other 17 appropriate remedies” for people with developmental disabilities. 42 U.S.C. § 18 15043(a)(2)(A)(ii). Plaintiff Disability Rights Washington was held to have associational 19 standing to bring this lawsuit on behalf of its members - some of whom are residents at Rainier. 20 Dkt. 82 at 10-13. 21 The moving party, Defendant Meneses is the Acting Secretary of the Washington State 22 Department of Social and Health Services (“DSHS”) and is sued in her official capacity. Dkt. 23 24 1 83. The Amended Complaint asserts that Defendant Meneses is responsible for operating 2 Rainier and other similar state-run facilities. Id. 3 Defendant Meneses propounded 15 interrogatories and five requests for production to the 4 Plaintiff on May 23, 2023. Dkt. 124 at 1. She received responses on June 22, 2023 and on June 5 23, 2023. Dkt. 124-1 and 124-2. The Plaintiff did not produce a privilege log (Dkt. 124 at 1)

6 despite asserting in several of its discovery responses that the information sought was protected 7 by attorney client privilege or attorney work product (See e.g. Response to Interrogatories No. 2- 8 15, Requests for Production No. 1-5; Dkt. 124-1 at 7-16). The Plaintiff also responded that the 9 information sought was confidential under federal law, citing the Developmental Disabilities 10 Act, 42 U.S.C. §§ 15041-45 and 45 C.F.R. § 1326.28. See e.g. Response to Interrogatories No. 11 2, 6, 7, and 10-13; and Response to Requests for Production Nos. 1-3; Dkt. 124-1 at 8, 10-16. 12 As required under Rule 37, the parties met and conferred regarding the Defendant’s 13 complaints about the provided discovery on August 9, 2023. Dkt. 124 at 2. They were unable to 14 resolve the issues. Id. This motion (Dkt. 123) followed.

15 Defendant Meneses moves for an order finding that the Plaintiff’s failure to provide a 16 privilege log constitutes a waiver of privilege and an order compelling the Plaintiff to answer 17 Defendant’s interrogatories and produce documents requested by the Defendant regardless of 18 privilege within 30-days. Dkt. 123. In the alternative, the Defendant moves the Court for an 19 order compelling Plaintiff to answer Defendant’s interrogatories and requests for production and 20 to produce a privilege log as required by Fed. R. Civ. P. (“Rule”) 26(b)(5). Id. The Defendant 21 moves for an award of expenses under Rule 37 for having to file the motion. Id. 22 The Plaintiff has responded (Dkt. 129) and the Defendant has filed a reply (Dkt. 132). 23 The motion is ripe for decision. 24 1 II. DISCUSSION 2 A. STANDARD ON DISCOVERY GENERALLY AND ON A MOTION TO COMPEL 3 Rule 26(b)(1) provides: “[U]nless otherwise limited by court order, the scope of 4 discovery is as follows: parties may obtain discovery regarding any nonprivileged matter that is 5 relevant to any party's claim or defense and proportional to the needs of the case. . .” “The court 6 should and ordinarily does interpret ‘relevant’ very broadly to mean matter that is relevant to 7 anything that is or may become an issue in the litigation.” Oppenheimer Fund, Inc. v. 8 Sanders, 437 U.S. 340, 351, n.12 (1978)(quoting 4 J. Moore, Federal Practice ¶ 26.56 [1], p. 26- 9 131 n. 34 (2d ed. 1976)). 10 Rule 37(a)(3)(B), provides in relevant part, that “[a] party seeking discovery may move 11 for an order compelling an answer, designation, production, or inspection. This motion may be 12 made if: . . . (iii) a party fails to answer an interrogatory submitted under Rule 33, or (iv) a party 13 fails to produce documents . . . as required under Rule 34.” 14 B. MOTION TO COMPEL ANSWERS TO INTERROGATORIES AND REQUESTS 15 FOR PRODUCTION

16 The Defendant’s motion to compel the Plaintiff to more thoroughly answer her 17 interrogatories and requests for production (Dkt. 123) should be granted. The Plaintiff’s answers 18 are boilerplate and overly broad. “Boilerplate assertions of any type, including assertions of 19 attorney-client privilege, work product doctrine, confidentiality, etc. are improper.” See 20 Goldwater Bank, N.A. v. Elizarov, 2022 WL 17081192, at *2 (C.D. Cal. Sept. 21, 2022). The 21 Plaintiff’s responses should be provided within 30-days of the date of this order. 22 To the extent that some of the interrogatories could be considered “contention” 23 interrogatories, and to the extent the Plaintiff asserts that they can’t be fully answered until 24 1 discovery is complete, the Plaintiff should be ordered to respond based on the information it 2 currently has, and supplement if necessary. Although the parties have received several 3 extensions of the discovery deadline (the current deadline is September 16, 2024 (Dkt. 108)), the 4 parties have been engaged in litigation for over a year. The discovery in the case should not be 5 delayed.

6 While the Plaintiff maintains in its responses to discovery that the information sought is 7 protected by the Developmental Disabilities Act, 42 U.S.C. §§ 15041-45, and 45 C.F.R. § 8 1326.28, it now fails to demonstrate that anything in those laws provide it with a blanket 9 evidentiary privilege to avoid discovery. The Developmental Disabilities Act citation is 10 exceptionally broad and points to provisions that create allotments to support a protection and 11 advocacy system, detail the allotments to be paid, and govern the creation, monitoring and 12 administration of the system. 42 U.S.C. §§ 15041-45. The regulation at issue, 45 C.F.R. § 13 1326.28, requires that protection and advocacy system entities, like the Plaintiff, keep certain 14 information, for example, pertaining to clients and the identity of individuals who report abuse,

15 “confidential.” It does not create an evidentiary privilege. See Woods Services, Inc. v. Disability 16 Advocates, Inc., 2018 WL 4932706 (E.D. Pa. Oct. 11, 2018)(holding that 45 C.F.R. § 1326.28 17 does not constitute an evidentiary privilege). 18 To the extent that the Plaintiff maintains that the information sought is protected by attorney- 19 client privilege or attorney work product, it should produce a privilege log within 30-days of the 20 date of this order. Boilerplate objections or blanket refusals in a response to discovery requests 21 are insufficient to assert a privilege. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for 22 Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). Rule 26(b)(5)(A) requires that: 23 24 1 When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the 2 party must:

3 (i) expressly make the claim; and

4 (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 5 itself privileged or protected, will enable other parties to assess the claim.

6 The Plaintiff’s failure to provide a privilege log violates Rule 26(b)(5)(A). The Plaintiff fails to 7 support its contention that a privilege log is overly burdensome. Further, it has chosen to file a 8 large case with sweeping allegations. It is obligated to respond to discovery in accord with the 9 rules. 10 To the extent the Defendant moves the Court for an order finding that the Plaintiff’s 11 assertion of privilege is waived because a privilege log was not produced within the 30-days 12 required under Rule 34, the motion (Dkt. 123) should be denied. In determining whether to 13 deem a privilege waived when a party has failed to produce a timely privilege log, courts in the 14 Ninth Circuit consider the following factors: 15 [1] the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld 16 documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are 17 presumptively insufficient);

18 [2] the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is 19 sufficient);

20 [3] the magnitude of the document production; and

21 [4] other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents 22 were the subject of discovery in an earlier action) or unusually hard.

23 Burlington at 1149. 24 1 Two of the Burlington factors favor finding that the privilege should be held as waived: 2 the first factor, the objections and assertions of privilege made here do not enable the Defendant 3 or the Court to determine whether each of the withheld documents are privileged and the second 4 factor, no privilege log has been created to date. These first two factors are not determinative 5 here, however. It is the last two Burlington factors that are most relevant in this case. The last

6 two factors favor finding that the privilege should not be held as having been waived: the third 7 Burlington factor, the magnitude of document production and fourth Burlington factor, the 8 particular circumstances of this case make responding to discovery (for both parties) unusually 9 hard. There has, and continues to be, a great deal of document production. Further, this case is 10 somewhat unusual. It is brought by Disability Rights Washington, an entity acting in a 11 representative capacity. Disability Rights Washington operates as an investigator, advocate (if 12 necessary), and lawyer (if necessary). Its role is somewhat blurred. Overall, the circumstances 13 in this case do not favor finding that the Plaintiff has waived its assertions of privilege by failing 14 to create a privilege log at this point.

15 The Plaintiff should fully respond to the Defendant’s discovery requests within 30-days 16 of the date of this order, including producing a privilege log, if applicable. 17 C. EXPENSES 18 Pursuant to Rule 37(a)(5)(A), if a motion to compel is granted the court must require the 19 party whose conduct necessitated the motion to pay the movant’s reasonable expenses, including 20 attorneys’ fees, incurred in making the motion unless “other circumstances make an award of 21 expenses unjust.” 22 23 24 1 The Defendant’s motion for an award of expenses, including attorney’s fees, (Dkt. 123) 2 should be denied without prejudice. At this point, an award of expenses would be unjust. An 3 award of expenses may be appropriate if the Plaintiff fails to respond to the discovery at issue. 4 III. ORDER 5 It is ORDERED that:

6 • Defendant Jilma Meneses’ Motion to Compel Plaintiff Disability Rights 7 Washington to Participate in Discovery (Dkt. 123) IS: 8 o DENIED as to: 9  the motion to deem the Plaintiff’s assertion of privilege as waived 10 because a privilege log was not produced, and 11  the motion for an award of expenses; 12 o GRANTED in all other respects: 13  The Plaintiff IS ORDERED to fully respond to the Defendant’s 14 discovery requests within 30-days of the date of this order,

15 including producing a privilege log, if applicable. 16 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 17 to any party appearing pro se at said party’s last known address. 18 Dated this 4th day of October, 2023. 19 A

20 ROBERT J. BRYAN 21 United States District Judge

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