D.M. v. County of Merced

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 D.M., et al., Case No. 1:20-cv-00409-JLT-SAB

12 Plaintiffs, ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF 13 v. DOCUMENTS

14 COUNTY OF MERCED, et al., (ECF Nos. 60, 62,63, 64, 65, 66, 67) 15 Defendants.

16 17 I. 18 INTRODUCTION 19 Currently before the Court is Plaintiffs’ motion to compel responses to requests for 20 production pursuant to Federal Rules of Civil Procedure 34 and 37. (ECF No. 60.)1 Having 21 considered the joint statement regarding the discovery dispute, the separately filed declarations 22 and the exhibits attached thereto, as well as the Court’s file, the Court issues the following order 23 granting the motion to compel production of documents. The Court also grants Plaintiffs’ 24 request for sanctions in the form of reasonable attorneys’ fees subject to the filing of a noticed 25 motion, and denies Plaintiffs’ request for evidentiary sanctions at this time. 26 / / / 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 II. 2 BACKGROUND 3 A. Factual Background and Pleading Allegations 4 This lawsuit arises from the death by suicide of Rene Snider (“Ms. Snider”) in the 5 Merced County Jail on March 23, 2019. (Joint Statement (“JS”) at 7, ECF No. 62.) Ms. Snider 6 entered the Merced County Jail after being found incompetent to stand trial and remanded for 7 restoration of competency. (Id.) Plaintiffs allege that Ms. Snider was at a significantly increased 8 risk of suicide, due to her mental illness, prior history of suicide attempts, the abrupt cessation of 9 her mental health medications, and the fact that the court itself found her to be a danger to herself 10 and others in its decision to remand her into custody. (Id.) Defendants in this matter include 11 Wellpath and California Forensic Medical Group, the third-party service providers who provide 12 mental and medical health care services at the Merced County Jail; the County of Merced; and 13 various employees and agents of each. (Id.) 14 Plaintiffs allege that Defendants knew, or recklessly disregarded, the fact that Ms. Snider 15 was at an increased risk of suicide and that Defendants did not adequately screen Ms. Snider for 16 being a suicide risk, even though she advised them of prior suicide attempts during an initial 17 screening. (Id.) Plaintiffs allege Defendants knew, or recklessly disregarded, the fact that Ms. 18 Snider had been found incompetent and ordered into custody specifically because of the risks her 19 mental health concerns posed; that Defendants knew Ms. Snider was taking mental health 20 medications, but withdrew those medications upon her admission to the facility; and additionally, 21 the Defendants failed to adequately monitor Ms. Snider once she was housed in the jail, thereby 22 violating their own policies on the frequency of cell checks. (Id. at 7-8.) Ms. Snider died on 23 March 23, 2019, her suicide having been discovered at approximately 6:00 p.m., after she had 24 hanged herself from a bed sheet tied to a bunk bed ladder. (JS at 6.) 25 B. Procedural Background and Prior Orders Relating to Discovery Dispute 26 Plaintiffs D.M., L.M., Denise Sawyer, and Doug Snider (“Plaintiffs”), filed this action on 27 March 19, 2020. A first amended complaint was filed on April 13, 2020. (ECF No. 11.) The 1 California Forensic Medical Group Inc. (“CFMG”), Amanpreet Atwal, Alicia Dunwoody, 2 Gianfranco Burdi, Keriann Quinn-Fitzpatrick, Dylan Fulcher, Shawn Autrey, and Adriana Kifan. 3 The scheduling order issued on September 29, 2020, setting among other deadlines, a 4 nonexpert discovery deadline of September 21, 2020. (ECF No. 35.) On July 30, 2021, the 5 Court granted Plaintiffs’ motion to compel and ordered Defendants to provide further responses 6 and responsive documents to Plaintiffs’ Requests for Production numbers 20 and 21, within 7 fourteen (14) days of entry of the order. (ECF No. 44.) The Court also granted Plaintiffs’ 8 request for sanctions in the form of attorneys’ fees, in part. (Id.) 9 On August 18, 2021, Plaintiffs filed a motion for sanctions in relation to the Court’s 10 previous order compelling production. (ECF No. 45.) On August 30, 2021, the Court granted 11 the parties’ stipulated request to extend the discovery deadlines and trial date, and extended the 12 nonexpert discovery deadline until April 28, 2022. (ECF No. 47.) On September 16, 2021, the 13 Court denied Plaintiffs’ motion for sanctions, in part because of a lack of insufficient meeting 14 and conferring in relation to the dispute and filing of the motion, which did not justify the 15 imposition of sanctions. (ECF No. 51.) 16 Plaintiffs filed the instant motion to compel on February 10, 2021. (ECF No. 60.) The 17 motion relates to the same requests for production that were the subject of the July 30, 2021 18 order granting Plaintiffs’ first motion to compel. On February 11, 2022, the Court reset the 19 hearing on the motion for March 9, 2022. (ECF No. 61.) On March 2, 2022, the parties filed 20 what is entitled a joint statement regarding the discovery dispute. (ECF No. 62.) However, as 21 indicated in the filing, Defendants did not provide a typical draft section to include within the 22 joint statement. Rather, Defendants directed Plaintiffs to use a letter sent to Plaintiffs on the 23 evening of March 1, 2022, that concerned the status of the document production, as their 24 statement for the joint statement. (JS at 15.) The copy of the March 1, 2022 letter is attached as 25 an exhibit to the separately filed declaration of Christopher Lisieski. (Decl. Christopher A. 26 Lisieski Supp. JS Disc. Dispute (“Lisieski Decl.”), ECF No. 63; Id., Ex. V, ECF No. 63-1 at 119- 27 121.) On March 2, 2022, Plaintiffs also filed three other declarations in support of the motion to 1 Decl. Nathan Martin Supp. JS Disc. Dispute (“Martin Decl.”), ECF No. 65; Decl. Jay 2 Christofferson Supp. JS Disc. Dispute (“Christofferson Decl.”), ECF No. 66.) On March 8, 3 2022, the Court issued an order finding the matter suitable for decision pursuant to Local Rule 4 230(g), and vacated the March 9, 2022 hearing on the motion to compel. (ECF No. 68.) 5 III. 6 LEGAL STANDARD 7 Rule 26 the Federal Rules of Civil Procedure provides that a party “may obtain discovery 8 regarding any nonprivileged matter that is relevant to any party’s claim or defense and 9 proportional to the needs of the case, considering the importance of the issues at stake in the 10 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ 11 resources, the importance of the discovery in resolving the issues, and whether the burden or 12 expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). 13 Information need not be admissible in evidence to be discoverable. Id. “Evidence is relevant if: 14 (a) it has any tendency to make a fact more or less probable than it would be without the 15 evidence; and (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. 16 Rule 34 of the Federal Rules of Civil Procedure provides that a party may serve upon any 17 other party a request for production of any tangible thing within the party’s possession, custody, 18 and control that is within the scope of Rule 26. Fed. R. Civ. P. 34(a)(1)(B). The party receiving 19 the request has thirty days in which to respond. Fed. R. Civ. P. 34(b)(2). 20 Motions to compel are governed by Federal Rule of Civil Procedure 37. A party may 21 move for an order compelling production where the opposing party fails to produce documents 22 as requested under Rule 34. Fed. R. Civ. P. 37(a)(3(B)(iv). Rule 37 provides in pertinent part: 23 (a) Motion for an Order Compelling Disclosure or Discovery.

24 (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. 25 The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or 26 party failing to make disclosure or discovery in an effort to obtain it without court action. 27 1 must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). 2 If a motion to compel discovery is granted, the Court must order the “party or deponent 3 whose conduct necessitated the motion, the party or attorney advising that conduct, or both to 4 pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees” 5 unless: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure 6 or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection 7 was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. 8 R. Civ. P. 37(a)(5)(A). If the motion is denied, the court must “require the movant, the attorney 9 filing the motion, or both to pay the party or deponent who opposed the motion its reasonable 10 expenses incurred in opposing the motion, including attorney’s fees,” however the court “must 11 not order this payment if the motion was substantially justified or other circumstances make an 12 award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(B). Where the motion is granted in part and 13 denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable 14 expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C). 15 Furter, if a party fails to obey an order to provide or permit discovery, the court may issue 16 further just orders, which may include: “(i) directing that the matters embraced in the order or 17 other designated facts be taken as established for purposes of the action, as the prevailing party 18 claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or 19 defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or 20 in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or 21 proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or 22 (vii) treating as contempt of court the failure to obey any order except an order to submit to a 23 physical or mental examination.” Fed. R. Civ. P. 37(b)(2)(A). “Instead of or in addition to the 24 [other sanctions outlined in the Rule,] the court must order the disobedient party, the attorney 25 advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by 26 the failure, unless the failure was substantially justified or other circumstances make an award of 27 expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). 1 admission—must supplement or correct its disclosure or response: . . . as ordered by the court.” 2 Fed. R. Civ. P. 26(e)(1)(B). If a party fails to do so, “the party is not allowed to use that 3 information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the 4 failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). “In addition to or 5 instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) 6 may order payment of the reasonable expenses, including attorney’s fees, caused by the failure; 7 (B) may inform the jury of the party’s failure; and (C) may impose other appropriate sanctions, 8 including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Fed. R. Civ. P. 37(c)(1)(A)-(C). 9 IV. 10 DISCUSSION 11 A. Overview of the Plaintiffs’ Position on the Motion to Compel 12 The motion to compel pertains to discovery sought from Defendants Wellpath and 13 CFMG (hereinafter “Defendants” for purposes of this motion). (JS at 2.) This is the second 14 motion to compel requesting the Court to order Defendants to produce documents responsive to 15 Requests for Production of Documents (“RFP(s)”) Nos. 20 and 21, which the Court ordered 16 production of on July 30, 2021. (ECF No. 44.) 17 Mindful of the Court’s previous admonition concerning insufficient meet and confer, 18 Plaintiffs proffer they have spent months seeking to have Defendants complete a production that 19 includes all responsive documents, basic metadata and unique numerical identification (such as a 20 Bates number), as well as that identifies which documents are being produced in response to 21 which RFP, as required by Rule 34, and as Defendants have agreed. (JS at 2.) Approximately 22 seven months after the initial order granting the motion to compel, Defendants still have not 23 provided Plaintiffs with a compliant production, and recent communications from Defendants 24 suggest that all prior document productions should now be disregarded, though Plaintiffs state 25 that Defendants have not clarified what this means or the basis for their decision that the prior 26 productions should be disregarded. (JS at 2.) 27 Apparently as Plaintiffs proffer, and given the lack of a statement from Defendants 1 must produce the documents, and have not done so in a manner that complies with Rule 34, and 2 further, according to their recent communications, Defendants have not submitted a valid 3 production at all. (Id.) Thus, Plaintiffs submit that the Court need not weigh the factual 4 circumstances argued by each party, but rather all that remains for the Court is to decide what 5 should be done: (1) compulsion with monetary sanctions; or (2) evidentiary sanctions in the form 6 of adverse inference instructions. 7 B. The Course of Meet and Confer and Discovery Responses 8 Plaintiffs served the RFPs in question on October 21, 2020. (ECF No. 40 at 2–5.) RFP 9 No. 20 to Defendant Wellpath states as follows: 10 Please produce all DOCUMENTS REGARDING, REFERRING OR RELATING TO or showing reports, data, schedules, or 11 analyses of in-custody deaths in facilities for which YOU, CFMG, or any related or predecessor entity was contracted to provide 12 medical and mental healthcare. 13 (JS at 8.) RFP No. 21 to Defendant Wellpath states as follows: 14 Please produce all DOCUMENTS REGARDING, REFERRING OR RELATING TO or showing any budgets, financial analyses, 15 projections of revenue, costs, or profits, audits, or other financial documents related to the provision of medical and mental 16 healthcare by YOU, CFMG, or any related or predecessor entity at the MERCED COUNTY JAIL. 17 18 (JS at 8.) 2 Initial responses were served on December 7, 2020. (JS at 3.) The parties met and 19 conferred during January 2021, and reached an agreement to produce documents on February 9, 20 2021, following the entry of a stipulated protective order, which occurred on February 25, 2021. 21 Thereafter, Plaintiffs followed up with Defendants multiple times—on April 1, 2021, April 8, 22 2021, and April 23, 2021—at which point Defendants advised they had no documents responsive 23 to RFP No. 21. (JS at 4.) Following additional repeated contacts throughout May 2021, 24

25 2 In the Court’s order granting Plaintiff’s first motion to compel, the Court noted that while the RFPs are identical except for specifying between CFMG and Wellpath after the word “YOU,” as served, these were distinct RFPs to each entity, however, only the precise text of RFP Nos. 20 and 21 as served on Wellpath were provided in the Joint 26 Statement. This is the same in the current Joint Statement. Plaintiffs do advise the Court in the Joint Statement that “[b]ecause Defendants have advised that, for all intents and purposes, Wellpath and CFMG are the same entity in 27 terms of record-keeping, employees, and other functions, and that any responses to discovery will be exactly the same for the two entities, they will not be further distinguished in this motion and will be referred to collectively as 1 Plaintiffs received supplemented responses to RFP Nos. 20 and 21 in June 2021. The June 2021 2 production consisted of only 25 total pages, containing no e-mail, direct messaging, notes, text 3 messages, correspondence, letters, or memoranda. 4 Plaintiffs filed their first motion to compel in relation to RFP Nos. 20 and 21 on June 23, 5 2021; continued to meet-and-confer with Defendants, who protested that they could not 6 formulate search terms; and while Plaintiffs sought to assist Defendants with formulating search 7 terms, Plaintiffs state no meaningful interactions were received from Defendants to allow 8 Plaintiffs to participate in this process. (JS at 4, citing ECF No. 40 at 2-5.) The Court granted 9 Plaintiffs’ motion to compel on July 30, 2021, and thereafter, what Defendants represented to be 10 the full production of documents was made slightly after the date ordered by the Court, on 11 August 18, 2021. (JS at 4; Lisieski Decl. ¶ 5, Ex. B.) However, that production remained 12 deficient as Plaintiff submits that: (1) it lacked even the most basic organization required by Rule 13 34; (2) it contained no unique numerical identifiers (e.g., Bates numbers); and (3) it did not even 14 attempt to identify which of the 700,000 plus pages of documents pertained to RFP No. 20, and 15 which pertained to RFP No. 21. (Lisieski Decl. ¶¶ 6–7, Ex. C.) Plaintiffs outlined these 16 deficiencies in a letter dated August 24, 2021, and provided Defendants four weeks to re-produce 17 the documents in a compliant fashion. Defendants responded by letter on August 31, 2021, and 18 indicated they would provide a compliant production by September 28, 2021. (Lisieski Decl. ¶ 19 8, Ex. D.) 20 Defendants failed to re-produce documents by September 28, 2021. Plaintiffs contacted 21 Defendants on September 29, 2021, and were advised that the document production was not yet 22 complete. (Lisieski Decl. ¶ 9, Ex. E.) Plaintiffs received a communication from Defendants on 23 September 30, 2021, that advised that Defendants were still in the process of completing the 24 production. (Lisieski Decl. ¶ 10, Ex. F.) Plaintiffs responded the following day, October 1, 25 2021, seeking clarification of what was being produced and when the production would occur. 26 (JS at 4-5; Lisieski Decl. ¶ 11, Ex. G.) Plaintiffs and Defendants spoke by phone on October 1, 27 2021, and agreed to pursue certain depositions which were unlikely to be impacted by the 1 mails through October 12, 2021, advising the production was still in process but not yet 2 complete. (Lisieski Decl. ¶ 13, Exs. I, J, K.) The re-production was completed on October 15, 3 2021. (Lisieski Dec., ¶ 14, Ex. L.) 4 Upon review of the re-production, however, Plaintiffs realized what was produced was 5 still deficient. In a letter dated October 27, 2021, Plaintiffs notified Defendants that they 6 believed the re-produced documents did nothing to clarify the organizational issues, and in fact, 7 made them substantially worse. (Lisieski Decl. ¶ 15, Ex. M.) Plaintiffs requested: Defendants: 8 “(1) Produce the ESI in a manner that preserves metadata, so that the files can be preserved, 9 searched, and accessed in their original formats; (2) a unique numerical identifier for each 10 document, so that when a witness or party is referencing a document, it is clear to everyone 11 which document is being referenced and that it is the same document that produced in discovery; 12 and (3) an understanding of which documents are responsive to which RFP.” (Id.) Plaintiffs 13 also offered in the letter to make their IT administrator available to answer any technical 14 questions Defendants had about how to complete an ESI production. (Id.) 15 In subsequent communications, Defendants again indicated they would fix these 16 problems and would have their technical consultant contact Plaintiffs’ IT administrator to confer 17 on certain technical issues to resolve the issues with Defendants’ production. (Lisieski Decl. ¶ 18 16, Ex. N.) However, no such contact was received, and Plaintiffs followed up again on 19 November 24, 2021, and December 7, 2021. (Lisieski Decl. ¶¶ 16-17, Exs. N, O.) Defendants’ 20 technical consultant contacted Plaintiffs’ IT administrator on December 7, 2021, at which point 21 Plaintiffs provided specific instructions on how to produce load files, as well as reiterated the 22 request that the documents be produced natively. (Allen Decl. ¶ 5.) Defendants indicated they 23 understood this request. (Id.) Plaintiffs followed up again on December 16, 2021, and this time 24 were advised Defendants’ computer had “crashed” and so the data had to be transferred, that the 25 technical consultant would be “starting over,” and “should be able [to] have at least one 26 completed for Monday.” (Allen Decl. ¶ 7, Ex. A, ECF No. 64-1 at 2.) 27 On January 4, 2022, Plaintiffs were contacted and advised that Defendants’ technical 1 consequently limited.” (Lisieski Decl. ¶ 18, Ex. P.) Plaintiffs indicated they would agree to 2 another, further extension, but asked that all documents be produced in a usable format by 3 January 14, 2022. (Id.) 4 Plaintiffs began receiving piecemeal productions on January 5, 2022; however, these 5 productions again continued to suffer from significant technical issues, including missing native 6 files, and missing load files that permit the native files to be accessed. (JS at 6; Allen Decl. ¶ 8, 7 Ex. B.) Defendants continued to aver that they understood the problems and would fix these 8 issues. (Id.) Defendants advised they had made a full production, fixing all prior technical 9 issues, on January 13, 2022. (Lisieski Decl. ¶ 19, Ex. Q.) Specifically, the January 13, 2022 10 email from defense counsel stated that the Defendants’ technical advisor had “advised [defense 11 counsel] that all files have been successfully uploaded to the Dropbox folder. Will you please 12 review and advise” (Ex. Q, ECF No. 63-1 at 81.) However, Plaintiffs’ review revealed the 13 production was not complete, and on January 18, 2022, Plaintiffs contacted Defendants noting 14 issues with this production, including missing files and password protected files that could not be 15 accessed. (Allen Decl. ¶¶ 9–10, Exs. C, D.) While Defendants again represented they were 16 working to fix these issues, Plaintiffs state that subsequent efforts to meet-and-confer yielded no 17 results. (Allen Decl. ¶¶ 11–12, Exs. E, F; Lisieski Decl. ¶ 20, Ex. R.) Plaintiffs proffer that 18 Defendants acknowledged they had not yet successfully produced these documents in February 19 4, 2022, and February 7, 2022 e-mails. (Lisieski Decl. ¶ 20, Ex. R; Allen Dec., ¶ 12, Ex. F.)3 20 Plaintiffs sent a final letter attempting to meet-and-confer on February 10, 2022, noting 21 that, despite the fact that adequate load files had not been produced, Plaintiffs had nevertheless 22 begun going through the extensive document production manually, and had located dozens of 23 files that were missing or password protected. (Christofferson Decl. ¶ 3, Ex. A.) In the February 24 10, 2022 communication, Plaintiffs asked for: (1) all responsive documents to be produced, 25 including the missing files; (2) all passwords to be produced, or all documents to be produced in

26 3 On February 4, 2022, counsel Peter Bertling replied that “As you are aware we have hired an outside vendor to assist with production of this documentation. We will be having a meeting with him today to discuss your email and 27 concerns. He may need to consult with Renee to find a satisfactory resolution to this issue.” (ECF No. 63-1 at 93.) The email provided as Exhibit F to the Allen declaration is illegible and the Court cannot read the text of the email. 1 unprotected form; (3) a sufficient load file containing the relevant metadata that would allow the 2 files to be loaded into an e-discovery platform; and (4) that Defendants identify which 3 documents are responsive to which RFP. (Id.) As of the date of the filing of the joint statement, 4 the document production remains incomplete. (JS at 6; Lisieski Decl. ¶ 26.) 5 Finally, Plaintiffs proffer that recent communications from Defendants suggest that 6 Plaintiffs may not be able to rely at all on the productions that have occurred to date. On 7 February 21, 2022, Defendants sent Plaintiffs’ IT administrator—omitting counsel for 8 Plaintiffs—an e-mail stating, in part: “Please disregard any and all previous document 9 productions as they were produced incorrectly and possibly contain privileged material.” (JS at 10 7; Allen Decl. ¶¶ 13-14, Ex. G.)4 Plaintiffs responded on February 22, 2022, noting Defendants 11 had done nothing to establish a “clawback” of previously produced documents, and that 12 “disregard[ing] any and all previous document productions” was likely not possible, since 13 documents had already been shown to witnesses. (Lisieski Decl. ¶ 21, Ex. S.) Defendants 14 responded on the same date, and seemed to retract their prior statement in part, advising that the 15 prior communication was “applicable to Wellpath’s e-mail productions only.” (Lisieski Decl. ¶ 16 22, Ex. T (emphasis in original).) The Court shall reproduce the communication in full for 17 further context of this issue: 18 Dear Mr. Lisieski:

19 It was an error for Chris Soriano not to include you on the email to IT Director, Renee Allen. However, we are troubled by your 20 response.

21 First, it is not Chris Soriano’s job to make federal civil procedure arguments to your office. He communicated a problem, which, 22 with professionalism should not have elicited your response, and you could have simply requested that we issue a statement 23 regarding the legal bases for our error. We are not attempting to “claw back.” We are humans, operating to the best of our 24 capacities, which the law recognizes are fallible. An IT error was

25 4 The Court notes the email did omit Plaintiffs’ counsel. The email was sent for the outside technical consultant to the Plaintiffs’ IT administrator, and cc’d Defendants’ counsel. (ECF No. 64-1 at 78.) In full, the email states: “We 26 (Bertling Law Group) just finished reviewing all the PST files again and I am now starting the exporting then ingesting of the .PST files. I will keep you updated on the status of completion and when they are uploaded for you 27 to download. Please disregard any and all previous document productions as they were produced incorrectly and possibly contain privileged material.” (Id.) 1 made, and then identified by our IT to your IT. Presumably it was forwarded to you which is the basis for your email. I agree you 2 should have been on the email initially.

3 What Chris Soriano communicated was that he unintentionally uploaded documents which were not intended nor required to be 4 produced, applicable to Wellpath’s email productions only. This has nothing to do whatsoever with the documents which you have 5 shown witnesses during deposition or otherwise.

6 That said, this weekend I have already approved the corrected production and it will be sent to you as soon as possible. We will 7 advise the Court of our error. Under the protective order, we will seek all remedies should you maintain your position and continue 8 with your motion to compel which seems designed not to obtain relevant documentation but is rather punitive in nature. 9 10 (ECF No. 63-1 at 114-115.) 11 Plaintiffs replied on February 23, 2022, noting that it was now unclear whether 12 Defendants were asking for Plaintiffs to delete prior productions or not. (Lisieski Decl. ¶ 23, Ex. 13 U.) Regardless, Plaintiffs maintain Defendants’ productions remain insufficient for all the 14 reasons stated above. (Id.) 15 1. Defendants’ March 1, 2022 Letter 16 As noted above, Defendants did not provide a draft section to include the joint statement 17 but rather directed Plaintiffs to use a letter sent to Plaintiffs on the evening of March 1, 2022, that 18 concerned the status of the document production, as their statement for the joint statement. (JS at 19 15.) Given the lack of participation in the drafting of the joint statement, the Court shall 20 reproduce the text of that letter here: 21 Dear Mr. Lisieski:

22 This is an update regarding the status of the ESI re-production. As you know, it was recently discovered the documents uploaded and 23 produced previously were found to have been unintentionally collected from the wrong files and were therefore produced in 24 error. Our office and Mr. Soriano have been working diligently to correct this error since its discovery. 25 There are 3259 documents to produce, consisting of a total of 26 411,707 bates stamped pages. Currently, 2439 documents have been completed. While we endeavored to have this completed and 27 sent, or at least partially sent, this was not possible due to technical constraints. Mr. Soriano has advised that he cannot stop the 1 there are approximately 800 documents left so we do not anticipate the remainder to be much longer, and Mr. Soriano has stated that a 2 reasonable estimate at this time is completion on Friday, March 4 and production on Monday, March 7. The bates numbers are being 3 generated concurrently, so that will not be an additional step.

4 We note that initially, Mr. Soriano was requested to generate and produce four fields: 5 PROD_BEGDOC, PROD_ENDOC, PROD- 6 BEGATTACH, and PROD_ENDATTACH. 7 Based on his multiple conferences with Ms. Allen, at her request 8 the number of fields have significantly expanded by an additional ten, resulting in 14 total fields. These ten additional fields are: 9 FILE_EXT, NATIVE, DOCUMENT TYPE, SUBJECT, 10 TITLE, MAIL TO, MAIL FROM, MAIL CC, MAIL BCC, and MAIL SEND 11 DATE.

12 Mr. Soriano approximates that this production would have been completed sooner had these additional fields not been belatedly 13 added.

14 We will continue to keep you updated. As stated above, we anticipate the production to occur on or before Monday, March 7. 15 Please do not hesitate to reply with any questions. 16 17 (Lisieski Decl. ¶ 24, Ex. V.)

18 C. Plaintiffs’ Arguments in Favor of Compelling Production and Imposing Sanctions 19 20 Plaintiffs emphasize the Court’s prior order to compel production of documents 21 responsive to the same RFP Nos. 20 and 21, by August 13, 2021, and the fact that it is clear that 22 all responsive documents have still not been produced, and what has been produced is 23 functionally inaccessible. (JS at 9; Lisieski Decl. ¶ 26; Allen Decl. ¶¶ 15–18.) 24 Plaintiffs focus the Court on Rule 34’s requirement that a responding party produce 25 documents “as they are kept in the usual course of business or must organize and label them to 26 correspond to the categories in the request,” and that if a request does not specifically request a 27 specific form, the producing party must “produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(i)-(ii). Here, 1 the original RFPs requested that documents be produced in the same form they were kept in the 2 usual course of business. (Lisieski Decl. ¶ 4, Ex. A.) 3 The documents received from Defendants in the ESI productions were separated into four 4 productions, each bearing a different person’s name. (Lisieski Decl. ¶ 6.) Plaintiffs assume 5 these productions generally correspond to search results from four different Wellpath employees’ 6 e-mails and/or electronic files, although Plaintiffs do not know who these individuals are or why 7 their e-mails were selected for search and production. (Id.) Further, Plaintiffs maintain that the 8 scope of each production remains unclear, as there appear to be numerous non-email documents, 9 including Word, Excel, and PDF files, included in what has been produced, and there is no 10 apparent organization beyond these four categories, and nothing indicates which documents are 11 responsive to which RFPs. (JS at 9-10.) 12 Additionally, Plaintiffs submit that no sufficient load file5 was produced for these 13 productions. (Allen Decl. ¶ 16.) Plaintiffs argue these additional fields are what enable search 14 functionality in e-discovery software platforms, which is critically important here with a 15 document production of over 700,000 pages, and submit that Defendants acknowledged their 16 failure to comply, but still have not actually produced a file that contains this basic information. 17 (JS at 10; Allen Decl. ¶ 12, 17, Ex. F.) Further, Plaintiffs emphasize it is clear that not all 18 documents have been produced, as despite not having load files that would permit these 19

20 5 “A load file is a ‘file that relates to a set of scanned images or electronically processed files, and indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and 21 ends,’ and may also include ‘data relevant to the individual documents, such as metadata, coded data, text, and the like.’ ” Aguilar v. Immigr. & Customs Enf't Div. of U.S. Dep't of Homeland Sec., 255 F.R.D. 350, 353 (S.D.N.Y. 22 2008) (quoting The Sedona Conference Glossary 31 (2d ed.2007), http://www.TheSedona Conference.org/content/miscFiles/TSCGlossary_12_07.pdf.). Plaintiffs emphasize that load files are commonplace 23 in discovery. See CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, 1332 (Fed. Cir. 2013) (“Some of the basic information in load files is comparable to the slip sheets (blue sheets of paper, say) used to separate distinct 24 documents in a paper production.”); McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 322 F.R.D. 235, 250 (N.D. Tex. 2016) (“Defendants also submitted sworn testimony that they each produced ESI in a searchable and 25 sortable form, paired with relevant metadata, and including load files, which satisfies Rule 34(b)(2)(E)(ii)'s requirement to—where (as here) no form for producing ESI is specified—produce ESI in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”). Plaintiffs proffer that load files are essentially 26 the means of transferring metadata in a useable format; are easily and automatically compiled by e-discovery programs in the course of rendering an ESI production; and the load files produced here included only Bates 27 Numbers—referred to in the load files as “PROD_BEGDOC” and “PROD_ENDDOC”—and no additional metadata fields, which would include information relevant to e-mail communications such as “Subject,” “Title,” “Mail To,” 1 productions to be reviewed in a meaningful way, Plaintiffs began reviewing the productions on a 2 page-by-page basis, to determine what had been produced and whether it could be reviewed. 3 (Martin Decl. ¶ 3.) The limited review so far has revealed that there are numerous missing and 4 password-protected documents, including more than 50 documents to date that are simply 5 missing (meaning a Bates number exists for these documents, but there is no corresponding file 6 in either the “Natives” or “Images” folders). This limited review also showed that some of the 7 documents in the production are password-protected, and therefore inaccessible. (Allen Decl. ¶¶ 8 9-10, 18, Exs. C, D.)

9 D. The Court shall Grant Plaintiffs’ Motion to Compel, and Grant Plaintiffs’ Request for Fees Subject to the Filing of a Noticed Motion 10 11 Plaintiffs submit that at this juncture, they see two options for how the Court can proceed. 12 The first would involve the Court again ordering responsive documents to be produced, perhaps 13 with greater specificity than in the July 30, 2021 order, although Plaintiffs state it is unclear 14 whether greater specificity is necessary, as Defendants have generally indicated they understand 15 the need to resolve all of the issues Plaintiffs have identified. Nonetheless, Plaintiffs request that 16 if the Court re-orders production, it should specify that Defendants must: (1) produce all missing 17 documents; (2) produce passwords for any password-protected documents; (3) organize the 18 documents in some logical fashion, including specifying which documents are responsive to 19 which RFPs; and (4) produce a sufficient load file, as they have agreed to do. (JS at 11-12.) 20 Plaintiffs note that this option would necessarily require the extension of the discovery 21 deadlines in this action again, as even if Defendants promptly complete their document 22 production, Plaintiffs still need time to review the final production anticipated to be over 700,000 23 pages—once it is actually fully produced, before proceeding to the remaining depositions. The 24 Court need not detail Plaintiffs’ arguments here, as the Court agrees there is good cause to 25 extend the discovery deadlines in light of the massive forthcoming production of documents.6 26 6 The Court will not extend the discovery deadlines and other dates, including trial and dispositive motion filing 27 deadlines, in this order. Rather, given the various moving parts, the Court only informs the parties that it will grant a stipulated or later ex parte request from the Plaintiffs outlining a proposed modification to all the dates and 1 Plaintiffs highlight that further delay rewards Defendants’ bad behavior as it continues to 2 delay a case that has already been pending for two years, to the prejudice of Plaintiffs, all so 3 Defendants can complete the basic discovery steps they should have finished well over a year 4 ago. Plaintiffs proffer continued delay may well be Defendants’ goal. 5 Given the totality of the circumstances, Plaintiffs argue there is no justification, let alone 6 substantial justification, for the continued failure to produce documents, and thus an award of 7 attorneys’ fees is warranted under Rule 37. (JS at 12.) Under this remedy, Plaintiffs request 8 monetary sanctions both for the motion itself and otherwise to compensate for the extensive 9 delay caused by Defendants’ refusal to produce the documents they were ordered to produce in 10 July of 2021. Plaintiffs request retrospective monetary sanctions, and additionally argue 11 Defendants should be ordered to pay for all damages and costs associated with the delay and 12 reviewing whatever forthcoming documents are produced in response to the Court’s order for 13 compliance. Plaintiffs state that after an extension of the discovery deadlines to provide time for 14 Plaintiffs to review the document productions, Plaintiffs thereafter intend to file a motion for 15 attorneys’ fees under Local Rule 230. 16 The Court shall grant the Plaintiffs’ motion to compel. Fed. R. Civ. P. 37(a)(4) (“[A]n 17 evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, 18 answer, or respond.”) (emphasis added). 19 The Court shall also award attorneys’ fees to Plaintiffs as an appropriate sanction and to 20 compensate Plaintiffs for the fees incurred throughout this discovery dispute. Fed. R. Civ. P. 21 37(a)(5)(A). However, the Court declines to make a definitive ruling as to the extent of 22 attorneys’ fees that the Court will award as to each of the above requested categories, until 23 Plaintiff brings the forthcoming motion for attorneys’ fees and it is fully briefed and before the 24 Court. The Court does inform Plaintiffs and the Defendants that it is nearly fully inclined to 25 award the requests as to the four categories outlined by Plaintiffs as to the retrospective fees, 26 namely: 1) the time Plaintiffs have spent reviewing the deficient document productions; (2) the 27 scheduling in light of the document production, future depositions, expert discovery, dispositive motions, and setting 1 time Plaintiffs have spent meeting-and-conferring with Defendants about these deficient 2 document productions; (3) the time Plaintiffs have spent briefing this second motion to compel; 3 and (4) compensation for the time and resources spent by Plaintiffs’ IT administrator attempting 4 to assist Defendants and performing quality control reviews of Defendants’ productions. The 5 Court encourages Defendants to consider stipulating to a reasonable amount of attorneys’ fees as 6 to these categories of expenses, or limiting their objections to those fees that Plaintiffs would 7 have incurred in a normal discovery process without the repeated failures and issues presented by 8 the Defendants’ untimely and technologically deficient electronic productions. The Court is 9 somewhat less inclined to grant Plaintiffs’ request to order the Defendants to pay for the future 10 costs of reviewing documents that are produced in response to this order, unless for additional 11 expenses Plaintiffs incur in reviewing the new document productions in relation to or as caused 12 by the Defendants’ erroneous productions, and Plaintiffs would not have incurred such future 13 discovery costs in the normal discovery process. The Court is cognizant that such future time 14 may be enhanced due to the previous noncompliant discovery responses, and may make 15 compliance checks more time-intensive than under normal circumstances. 16 E. The Court Denies Plaintiffs’ Request for an Adverse Inference Instruction 17 Plaintiffs submit that the second option for the Court are evidentiary sanctions, 18 specifically, adverse inference instructions. Plaintiffs emphasize that RFP No. 20 requested 19 documents relating to in-custody deaths in the facilities for which Wellpath was the medical and 20 mental healthcare provider, and was sought to help develop evidence concerning Wellpath’s 21 awareness of rates of suicide and failure to remedy those risks in the facilities for which it 22 provides healthcare and mental health coverage. As to RFP No. 20, Plaintiffs request the 23 following instruction be given to the jury: 24 Defendants Wellpath and CFMG failed to produce all documents related to in-custody deaths, including suicides, at the facilities for 25 which they were the medical and/or mental healthcare provider. You may infer that Defendants did not produce this information to 26 Plaintiffs because Defendants believe this information would help Plaintiffs and harm Defendants. 27 1 financial analyses, projections of revenue, costs, or profits, audits, and other financial documents. 2 As to RFP No. 21, Plaintiffs request the following instruction be given to the jury: 3 Defendants Wellpath and CFMG failed to produce all documents related to budgets, financial analyses, revenue, and costs for the 4 facilities at which they were medical and/or mental healthcare provider. Plaintiffs sought this information to determine whether 5 Defendants maintained sufficient resources at their facilities to provide adequate medical and mental health care. You may infer 6 that Defendants did not produce this information to Plaintiffs because Defendants believe this information would help Plaintiffs 7 and harm Defendants. 8 (JS at 14.) Additionally, Plaintiffs argue that a separate reason for RFP No. 21 was to seek 9 financial information which might help a jury determine a reasonable amount of punitive 10 damages, and because Defendants have prevented Plaintiffs from learning this information by 11 failing to respond to RFP No. 21, they should also be prevented from submitting evidence to the 12 jury that contradicts any evidence Plaintiffs are otherwise able to develop concerning the 13 financial health of Defendants. (JS at 15.) 14 Plaintiffs submit that while they do not request such lightly, these discovery requests 15 were served over 16 months ago; the parties finished meeting-and-conferring on any substantive 16 issues related to the productions an entire year ago; and Defendants’ failure to produce 17 documents has resulted in at least one delay in trial date for this case already. Plaintiffs state that 18 while a harsher sanction, they have the benefit of not further delaying this case, and 19 appropriately assign fault to the party responsible. 20 Despite Defendants’ lack of a substantive statement incorporated into the joint statement, 21 leaving the Court to only gleam from the March 1, 2022 letter and other communications why 22 Defendants appear to be still failing to produce documents in compliance with the discovery 23 requests and the Court’s order, the Court finds adverse inference instructions to be an 24 unwarranted sanction at this juncture and based on this record. While admittedly making 25 mistakes regarding the technical aspects of the production and causing immense delay, there 26 does not appear to be indications of intentionally withholding or destroying relevant evidence. 27 That analysis may change based on what Defendants now produce, and what transpires during 1 record before the Court, Plaintiffs’ request for an adverse inference instruction shall be denied. 2 Courts recognize that adverse inference instructions are a harsh sanction. Apple Inc. v. 3 Samsung Elecs. Co., 888 F. Supp. 2d 976, 993–94 (N.D. Cal. 2012) (collecting cases and stating 4 “the Court does not find that such a strong adverse inference instruction is justified by this record 5 [as] courts must choose ‘the least onerous sanction corresponding to the willfulness of the 6 destructive act and the prejudice suffered by the victim[,]’ . . .any exercise of a court’s inherent 7 powers must be exercised with great restraint and discretion [and while] an adverse inference 8 instruction is a ‘lesser’ sanction than dismissal or default . . . does not mean it should be imposed 9 casually.”); Nutrition Distribution LLC v. PEP Rsch., LLC, No. 16CV2328-WQH-BLM, 2018 10 WL 6323082, at *5 (S.D. Cal. Dec. 4, 2018) (“An adverse inference instruction is a harsh 11 sanction . . . Courts vary the language of an adverse inference instruction according to the degree 12 of fault of the spoliating party.”). 13 Adverse inference instructions are generally utilized where there is a showing of 14 spoliation of evidence, or a complete and demonstrated failure to provide particular documents, 15 or types of documents. See Nutrition Distribution LLC v. PEP Rsch., LLC, No. 16CV2328- 16 WQH-BLM, 2018 WL 6323082, at *4 (S.D. Cal. Dec. 4, 2018) (“Courts in the Ninth Circuit 17 apply a three-element test when a party seeks an adverse inference instruction on grounds of 18 spoliation: (1) the person in control of the evidence had the obligation to preserve relevant 19 evidence at the time of destruction, (2) the evidence was destroyed with a culpable state of mind, 20 and (3) the evidence was relevant.”); Aidini v. Costco Wholesale Corp., No. 21 215CV00505APGGWF, 2017 WL 10774823, at *1 (D. Nev. May 4, 2017) (“There is 22 insufficient evidence to justify an adverse inference jury instruction based on spoliation, so 23 I deny Aidini’s request.”). Plaintiffs submit there are cases where courts have found adverse 24 inference instructions warranted where sufficient evidence was simply not timely produced, 25 regardless of whether it was destroyed. The Court finds the circumstances do not rise to the level 26 of violations in those cases, and involved other factors not present or not equivalent to here. Full 27 Tilt involved “a series of discovery disputes,” and the most recent violation related to the court 1 discovery closing 60 days prior. The Court specifically found the following regarding the lack of 2 documents in light of the party’s proffer that the records do not exist and never existed: 3 KEP’s supplemental responses indicate that no documented communications exist about the operation or management of the 4 fund. This seems highly unlikely, unless Defendants performed all the tasks related to operation or management of the fund 5 themselves and did not communicate amongst themselves about it via email or text. It would also mean that Defendants never 6 communicated with auditors about the fund and never provided disclosures to other franchisees about the fund. The Court doubts 7 the truthfulness of this response. (Dkt. 72 at 22.) Further Response Same response given. (Dkt. 104-5 at 9.) 8 KEP’s further response to RFP 28 is still deficient and is 9 inconsistent with the produced index indicating responsive documents are in shared folder 28. (Dkt. 104-7 at 6.) At the 10 hearing, KEP’s counsel unreasonably asserted that any transaction reports involving the Systemwide Marketing Fund were not 11 “communications” and did not involve “management and operation” of the Fund. (See also Dkt. 124 at 14.) Thus, counsel 12 unreasonably determined that financial transaction reports involving the Fund were not responsive. Accordingly, Plaintiff is 13 entitled to an ADVERSE INFERENCE, instructing the jury it may infer that KEP did not produce these documents because it 14 believed that this information would help Plaintiff and harm Defendants. 15 16 Full Tilt Boogie, LLC v. KEP Fortune, LLC, No. 219CV09090ODWKESX, 2021 WL 5563334, 17 at *1, 10 (C.D. Cal. Oct. 21, 2021), report and recommendation adopted, No. 18 219CV09090ODWKESX, 2021 WL 5564685 (C.D. Cal. Oct. 26, 2021). Parrick involved the 19 imposition of an adverse inference instruction in denying a request for terminating sanctions, 20 after numerous discovery disputes, and after the repeated failure to produce documents 21 previously ordered, and included a failure that had an impact on the ability complete a deposition 22 relevant to the missing documents pertaining to company policies: 23 Plaintiff's counsel took Mr. Payne's deposition on June 16, 2010. Although Mr. Payne produced a 42–page index identifying the 24 purported policies of FedEx responsive to Plaintiff's request at his deposition, he did not produce any FedEx safety policies as 25 requested. Mr. Payne did not provide any satisfactory explanation as to why he failed to produce the safety policies as required under 26 Rule 30(b)(2) . . .

27 . . . Based on the forgoing, FedEx completely failed to produce its company policies. FedEx failed to comply with the Court's April 1 Rule 34 request for production in the referenced Notice of Deposition. 2 3 Parrick v. FedEx Ground Package Sys., Inc., No. CV 09-95-MDWMJCL, 2010 WL 3724825, at 4 *4 (D. Mont. Sept. 17, 2010). 5 For these reasons, the Court does not elect to impose the sanction of an adverse inference 6 instruction at this time. 7 / / / 8 / / / 9 / / / 10 / / / 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / / / / ene ne nee ne non nn nn nn nn nn nn no

1 V. 2 CONCLUSION AND ORDER 3 Based on the foregoing, IT IS HEREBY ORDERED that: 4 1. Plaintiffs’ motion to compel (ECF No. 60) is GRANTED; 5 2. Defendants Wellpath, LLC, and California Forensic Medical Group, Inc., shall 6 serve all documents responsive to Plaintiffs’ Requests for Production numbers 20 7 and 21, with a standard load file, any necessary passwords, and organized in a 8 manner compliant with Federal Rule of Civil Procedure 34 including 9 identification of which documents are responsive to which Request for 10 Production, within seven (7) days of entry of this order; and 11 3. Plaintiffs’ request for sanctions in the form of attorneys’ fees is GRANTED 12 subject to the filing and consideration of a noticed motion for attorneys’ fees, 13 which shall be filed within twenty-one (21) days of this order; and 14 4. Plaintiffs’ request for evidentiary sanctions in the form of adverse inference 15 instructions is DENIED.’ 16 17 IT IS SO ORDERED. DAM Le 18 | Dated: _ March 9, 2022 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 | 7 While the Court generally prefers to allow at least 14 days for compliance, even in cases of lengthy delay as here, 23 | Defendants’ most recent communication dated March 1, 2022, which was provided as the only statement from Defendants to incorporate into the joint statement, states compliant production is anticipated on or before March 7, 24 2022. (ECF No. 63-1 at 121.) Accordingly, the Court shall grant Plaintiffs’ request for a seven day deadline, given Defendants have provided the Court with no objection or response to that request. Additionally, as noted above, the 25 Court does not alter the current scheduling order by this order, but does find good cause to do so, and will accept a stipulated request or ex parte request outlining proposed dates and deadlines. Finally, as to the deadline to file a 26 motion for attorneys’ fees, it was somewhat unclear from the filing whether Plaintiffs desired to wait until a time after review of production to compute potential future requests for attorneys’ fees incurred within the 90 day proposed extended discovery period, or if they only wanted to file a noticed motion twenty-one (21) days after the 27 entry of this order. (Compare JS at 12 and 16.) If Plaintiffs wish to submit such motion after the twenty-one day period, they may submit such within the request for modification of the scheduling order, or in a separate filed 28 stipulation or request.