Goolsby v. San Diego, County of

Opinion

1 2 3 4 5 6 7 10 11 THOMAS GOOLSBY, Case No.: 3:17-cv-564-WQH-NLS

12 Plaintiff, ORDER ON DISCOVERY DISPUTE 13 v. NO. 2

14 COUNTY OF SAN DIEGO, et al., [ECF No. 128] 15 Defendants.

16 17 Before the court is plaintiff Thomas Goolsby’s (“Plaintiff”) motion to compel 18 further responses from Defendant, the County of San Diego (“Defendant”), to discovery 19 he propounded as “Set Three” and “Set Four.” ECF No. 128. The court issued a briefing 20 schedule and ordered the parties to meet and confer, and then file a notice of resolution or 21 opposition to the motion if the parties were unable to reach agreement. ECF No. 130. 22 The parties filed a notice indicating they were able to resolve their disputes for several 23 items. ECF No. 132. This notice identified as remaining in dispute five individual 24 requests from Set Three, and one issue regarding 11 requests from Set Four. Id. 25 Defendant timely submitted its opposition to the requests that remain in dispute. ECF 26 No. 133. Plaintiff did not submit a reply brief. See ECF No. 130 (providing until August 27 12, 2019 for Plaintiff to submit a reply; as of the date of this order, no reply has been 28 received). Accordingly, this order addresses only the items identified as remaining in 1 dispute. ECF Nos. 132, 133. After due consideration and for the reasons provided in this 2 order, the court denies the motion to compel. 4 Plaintiff is a prisoner currently incarcerated at California State Prison, Corcoran, 5 who filed this 42 U.S.C. § 1983 civil rights action, alleging violations of his 6 constitutional rights during his stay in San Diego County Jail. Following motion 7 practice, Plaintiff has 2 remaining claims: (1) a Fourteenth Amendment claim against the 8 County of San Diego regarding placement in administrative segregation (see ECF No. 97 9 at 6, 10), and (2) an Eighth Amendment claim against the County based on lack of out of 10 cell exercise (see ECF No. 97 at 8, 10). 12 Rule 26 permits discovery of “any nonprivileged matter that is relevant to any 13 party’s claim or defense and proportional to the needs of the case, considering the 14 importance of the issues at stake in the action, the amount in controversy, the parties’ 15 relative access to relevant information, the parties’ resources, the importance of the 16 discovery in resolving the issues, and whether the burden or expense of the proposed 17 discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information need not 18 be admissible to be discoverable. Id. Once the propounding party establishes that the 19 request seeks relevant information, “[t]he party who resists discovery has the burden to 20 show discovery should not be allowed, and has the burden of clarifying, explaining, and 21 supporting its objections.” Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215, 217 22 (C.D. Cal. 2009); see Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) 23 (requiring defendants “to carry heavy burden of showing why discovery was denied”). 24 “The 2015 amendments to Rule 26(b)(1) emphasize the need to impose ‘reasonable 25 limits on discovery through increased reliance on the common-sense concept of 26 proportionality.’” Roberts v. Clark County Sch. Dist., 312 F.R.D. 594, 603 (D. Nev. 27 2016). The fundamental principle of amended Rule 26(b)(1) is “that lawyers must size 28 and shape their discovery requests to the requisites of a case.” Id. Discovery and Rule 1 26 is intended to provide parties with “efficient access to what is needed to prove a claim 2 or defense, but eliminate unnecessary or wasteful discovery.” Id. This requires active 3 involvement of federal judges to make decisions regarding the scope of discovery. Id. 4 To the extent that the discovery sought is “unreasonably cumulative or duplicative, or is 5 obtainable from some other source that is more convenient, less burdensome, or less 6 expensive,” the court is directed to limit the scope of the request. Fed. R. Civ. P. 7 26(b)(2). Limits should also be imposed where the burden or expense outweighs the 8 likely benefits. Id. How and when to so limit discovery, or to “issue an order to protect a 9 party or person from annoyance, embarrassment, oppression, or undue burden or 10 expense,” remains in the court’s discretion. Fed. R. Civ. P. 26(c)(1). 12 Plaintiff propounded discovery, Sets Three and Four. Pursuant to the Notice of 13 Partial Resolution and Defendant’s opposition, only the following items remain in 14 dispute: 15 • Set Three: Special Interrogatory No. 22, Request for Production No. 142; 16 and Requests for Admission Nos. 22, 23, and 25 17 • Set Four: Requests for Production Nos. 173-183 on the issue of searching 18 personal devices of County employees. 19 A. Set Three 20 Interrogatory No. 22 and Request for Production No. 142 21 Both Interrogatory No. 22 and RFP 142 seek further information and documents 22 related to a notation that appears on a document Defendant produced that states Plaintiff 23 was “involved in stabbing [inmate].” ECF No. 133-1 at 8, 16.1 Defendant’s initial 24 responses stated that the information Plaintiff references in his request has since been 25 redacted;2 and was not used in the Plaintiff’s classification decision in 2016: “it was a 26

27 1 All page references are to the pagination provided in the CM/ECF generated headers. 28 1 carryover note … removed on 12/13/16 and subsequently replaced with notes reflecting 2 the basis for Plaintiff’s classification….” ECF No. 133-1 at 8, 16-17. The amended 3 responses reiterate that the note was not relied on when Plaintiff was classified, adding 4 that the information requested is not relevant to the case and that the production of the 5 requested documents could “jeopardize institutional security and compromise criminal 6 investigations.” Id. at 8-9, 17. 7 Plaintiff challenges that the entry could be a carry over note, but then concludes 8 that “Defendant’s [sic] should be compelled to state the allegation was not, will not be 9 used to classify, house, or restrict Plaintiff in any way.” Id. at 9-10. 10 Plaintiff’s desire to extract assurances regarding future classifications is not a valid 11 reason to reason to compel a further response. Future classifications are not the subject 12 of this litigation and are not a proper reason to compel further response or production of 13 documents related to an incident for which Plaintiff’s own submission makes clear he 14 already possesses the relevant RVR. See ECF No. 128 at 141-142 (serious RVR for 2009 15 battery of inmate attached to Plaintiff’s motion). 16 To the extent Plaintiff seeks confirmation that this notation was not used in his 17 classification in 2016, Defendant has stated in its responses (see ECF No. 128 at 92; ECF 18 No. 133-1 at 8) and in its amended/supplemental responses (see ECF No. 133-1 at 8-9), 19 that the notation was not considered in Plaintiff’s classification that is the subject of the 20 pending litigation. Under Rule 33, responses to interrogatories must be verified. Fed. R. 21 Civ. P. 33(b)(3). Accordingly, Plaintiff should already have the information he desires as 22 to past classifications, and Defendant’s verified responses stating that this notation was 23 not considered renders any further response or production irrelevant and disproportionate 24 to the needs of the case. However, the responses attached to Plaintiff’s motion indicate 25 “verification to follow.” ECF No. 128 at 94. The amended responses appear in the Joint 26 Statement submitted by Defendant but are not attached. Accordingly, Defendant is 27 instructed to LODGE the verifications to the interrogatory and amended interrogatory 28 1 responses for the court’s review within 3 business days of this order. Plaintiff’s motion 2 to compel further responses is DENIED. 3 In addition, Defendant’s belated redaction of an inmate name in documents 4 produced to Plaintiff is inconsistent with the unredacted references to this inmate made in 5 relation to this motion. This name should be redacted from court filings. Accordingly, 6 Defendant’s Opposition (ECF No. 133), Joint Statement (ECF No. 133-1), and Notice of 7 Lodgment and Exhibits thereto (ECF No. 133-2) are all hereby STRICKEN from the 8 record. Defendant shall refile the documents with appropriate redactions within 3 9 business days of this order. 10 Requests for Admission Nos. 22, 23, and 25 11 Plaintiff challenges Defendant’s response to three specific RFAs. 12 RFA No. 22 asks Defendant to admit Plaintiff was not found guilty of the 13 allegations of an incident and related RVR. ECF No. 133-1 at 2. The incident report in 14 question summarizes that during razor pick up a blade was missing from the razor that 15 Plaintiff returned. ECF No. 133-2 at 4. Deputies searched the cell and located 2 blades. 16 Id. As a result Plaintiff was put on razor restriction. Id. 17 Defendant’s response and amended response to the RFA make clear that the 18 incident report recommended razor restriction, apparently resolving the matter and so, no 19 hearing was held. Plaintiff argues that without a hearing, he could not be found guilty 20 and requests the court deem the RFA admitted. The court declines to do so. The 21 Defendant’s response is complies with Rule 36. Moreover, the relevance of this RFA to 22 the case is tenuous at best. Plaintiff’s motion to compel is DENIED. 23 RFA No. 23 requests Defendant admit Plaintiff was never found guilty of another, 24 separate, incident report and related RVR. ECF No. 133-1 at 4. This incident relates to a 25 search of Plaintiff’s cell that found pruno and other items (extra clothes and a 26 questionable object). ECF No. 133-2 at 8. The report does not indicate a hearing was 27 conducted. Id. 28 1 As before, Defendant’s response and amended response indicate there was no 2 hearing conducted and so no “finding” which would result from a rule violation hearing, 3 and denies the remainder of the request. Defendants’ response complies with Rule 36. 4 Plaintiff’s motion to compel is DENIED. 5 RFA No. 25 asks the Defendant to “[a]dmit or deny the San Diego County 6 Sheriff’s Department followed the Exercise Programs and Yard Schedule listed in the 7 SDSD Detentions Services Bureau-San Diego Central Jail Green Sheets (CSD000376).” 8 ECF No. 133-1 at 6. Defendant’s initial response is “Unable to admit or deny. The 9 exercise schedule is a guideline that may be modified due to institutional demands and 10 limitations.” ECF No. 133-1 at 6. The amended response adds objections to address 11 ambiguities in the request such as, the phrasing that applies to the entire Sheriff’s 12 department, not just the facility where Plaintiff was housed; and the request being 13 unbound by time, and the unclear nature of the use of “follow” as to seeking an 14 admission that there is a “perfect correlation” between the proposed schedule and actual 15 yard time. The amended response denies the entire Sheriff’s department “follows” the 16 schedule, noting each facility has a different schedule, and continues it cannot admit or 17 deny the request as phrased. 18 Plaintiff argues that the Defendants should be compelled to answer because the 19 “Plaintiff’s RFA asked about an event that occurred in the past.” Reviewing Plaintiff’s 20 request, it is not about an event that occurred in the past. Plaintiff’s request does not 21 provide any specific date or date range. Plaintiff’s request asks for an admission about 22 general practices. The Defendant correctly responds that it is unable to admit or deny the 23 request as phrased, and responds to the extent it can. Defendant’s response to the request 24 as phrased satisfies Rule 36. Plaintiff’s motion to compel is DENIED. 25 B. Set Four: Employees’ Personal Devices 26 The only issue raised with respect to Set Four, Requests for Production Nos. 173- 27 183, is the search of Defendant’s employees’ personal devices. Plaintiff argues that 28 because deputies carry and use personal devices at work, that they may contain messages 1 that document the verbal complaints Plaintiff made to deputies. ECF No. 133-1 at 32. 2 Plaintiff submits “[t]here is simply no other way to obtain this information.” Id. Plaintiff 3 also challenges Defendant’s assertion of attorney-client privilege.3 Id. The reasons to 4 compel are similar, if not identical, for each of the remaining Requests, Nos. 174-183. 5 Defendant responds that the deputies’ personal devices are not within the 6 possession, custody, or control of the County. ECF No. 133 at 6. The County represents 7 that in addition to a search of business records and emails, it asked the affected 8 employees to independently search “county owned devices such as cell phones and 9 computers” and that Plaintiff was provided all responsive documents. Id. 10 “[F]ederal courts have consistently held that documents are deemed to be within 11 the ‘possession, custody or control’ for purposes of Rule 34 if the party has actual 12 possession, custody or control, or has the legal right to obtain the documents on demand.” 13 In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995) (emphasis in original). The 14 burden of establishing control over the documents sought is on the party seeking 15 production. United States v. Int’l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 16 1452 (9th Cir.1989); Bryant v. Armstrong, 285 F.R.D. 596, 607 (S.D. Cal. 2012); 7 James 17 Wm. Moore et al., Moore’s Federal Practice, § 34.14[2][b], at 34–77. 18 While Federal courts are divided on what circumstances render an employee’s 19 personal device subject to the “possession, custody, and control” of its employer, 20 generally the plaintiff must show that personal devices were used for business purposes. 21 See Stinson v. City of New York, 10 CIV. 4228 (RWS), 2016 WL 54684, at *5 (S.D.N.Y. 22 Jan. 5, 2016) (noting divide and citing cases); Cotton v. Costco Wholesale Corp., 12- 23 2731-JW, 2013 WL 3819974, at *6 (D. Kan. July 24, 2013) (denying discovery for 24 employee text messages and emails where not issued by employer or used for business 25

26 3 Defendant’s response makes clear that the documents for which attorney-client privilege was asserted 27 were created after the litigation of this matter commenced. ECF No. 133-1 at 31 (“they are emails to and from staff…regarding this litigation.”). This is a proper assertion of attorney-client privilege and 28 1 purposes). The circumstances of Plaintiff’s request are nearly identical to those presented 2 in Cotton v. Costco, where the court found that the employer did not have a legal right to 3 obtain text messages: “Mr. Cotton does not contend that Costco issued the cell phones to 4 these employees, that the employees used the cell phones for any work-related purpose, 5 or that Costco otherwise has any legal right to obtain employee text messages on 6 demand.” Id. 7 Here, Defendant already searched and produced relevant documents that were on 8 government issued devices. In addition, Plaintiff can only offer his own speculation that 9 deputies use their personal devices while at work; there is no evidence that the use of 10 personal devices was for “business purposes.” Finally, the County represents that it 11 asked its employees to search for relevant and responsive documents and produced what 12 was provided. See Alter v. Rocky Point Sch. Dist., No. 13 Civ. 1100, 2014 WL 4966119, 13 at *10 (E.D.N.Y. Sept. 30, 2014) (holding employees should preserve evidence on 14 personal devices). Plaintiff fails to meet his burden showing that County has sufficient 15 control over employees’ personal devices to require more than what the County has 16 already requested and produced. Under these circumstances, there is nothing left to 17 compel. Plaintiff’s motion is DENIED. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 Plaintiff’s motion to compel further responses is DENIED. Defendant is 3 ||instructed to LODGE the verifications to the Set Three interrogatory and amended 4 interrogatory responses for the court’s review within 3 business days of this order. 5 || Defendant’s Opposition (ECF No. 133), Joint Statement (ECF No. 133-1), and Notice of 6 ||_Lodgment and Exhibits thereto (ECF No. 133-2) are all hereby STRICKEN from the 7 ||record; Defendant shall refile these documents with appropriate redactions within 3 8 || business days of this order. 10 Dated: August 19, 2019 Mie. Lom 12 Hon. Nita L. Stormes 3 United States Magistrate Judge

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