L.S. v. Oliver

• Court: District Court, S.D. California
• Decided: October 1, 2019
• Docket: 3:19-cv-00746
• Status: Unknown

Opinion

l 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || L.S., Case No.: 19cv746-JLS-LL 12 Plaintiff, ORDER DENYING DEFENDANT’S 13 || Vv. MOTION TO COMPEL 14 |} WILLIAM ASHLEY OLIVER III, et al. [ECF No. 13] 15 Defendants. 16 17 18 19 Currently before the Court is Defendant William A. Oliver III’s Motion to Compel 0 [ECF No. 13] (“Mot.”) and Plaintiff L.S.’s Opposition [ECF No. 15] (“Opp.’). For the 91 || Teasons set forth below, the Court DENIES Defendant’s Motion. 09 RELEVANT DISCOVERY BACKGROUND 3 The instant motion arises from Defendant’s Request for Production No. 14. 4 RFP No. 14 requests: 25 All documents and ESI, including text messages, emails, and 26 social media messages (including Facebook, Snapchat and Instagram), You have sent to any person, including Oliver, Lidia 27 Chesnokova, Brock Gorubec, Caroline Oliver and Stephen 28 Lucas, dated January 1, 2018 to the present.

I 5 The term “Oliver” shall mean and refer to Defendant, William A. Oliver III. 3 4 Mot., Ex. A at 3. Plaintiff responded to the RFP as follows:

5 Plaintiff repeats the objection and reservation of rights set forth above. Plaintiff further objects that this request is not 6 proportional to the needs of the case, is overbroad and, to the 7 extent it is overbroad, calls for the production of items that are private, privileged (including items protected from disclosure 8 under the attorney-client privilege and attorney work product 9 doctrine), and not relevant to any claim or defense in this action, and is not likely to lead to the discovery of admissible evidence. 10 Subject to these objections and reservation of rights, Plaintiff will 11 produce all responsive documents within her possession, custody or control that are relevant to the claims and defenses in this 12 action. 13 Id. at 3-4 (emphasis added). 14 Defendant argues the underlined language above ts the “center of the controversy.” I at 3. Specifically, Defendant argues Plaintiff improperly withheld responsive 16 |! documents “based on [Plaintiff's] counsel’s unilateral determination that the records are 17 not ‘relevant to the claims and defense.’” Id. at 4. 18 In response, Plaintiff argues she has already produced approximately three-hundred 19 pages of documents “pertaining to any matter even tangentially related” to the litigation. 20 Opp. at 1-2. Instead, Plaintiff argues that rather than seeking relevant communications, 21 || Defendant’s requests are designed to “uncover evidence of Plaintiff's sexual history, 22 |! unrelated to Defendant[.]” Id. 23 LEGAL STANDARD 24 Federal courts hearing diversity cases apply federal procedural law and state 25 || substantive law. Hanna v. Plumer, 380 U.S. 460, 465 (1965); Erie R. Co. v. Tompkins, 304 26 64, 78 (1938). The Federal Rules of Civil Procedure authorize parties to obtain 27 discovery regarding any unprivileged matter that is relevant to any claim or defense and 28 proportional to the needs of the case, “considering the importance of the issues at stake in

| the action, the amount in controversy, the parties’ relative access to relevant information, 2 || the parties’ resources, the importance of the discovery in resolving the issues, and whether 3 || the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. 4 26(b)(1). Per the Federal Rules, “[i]Jnformation within this scope of discovery need not 5 |l be admissible in evidence to be discoverable.” Id. 6 A party may request the production of any document within the scope of Rule 26(b). 7 R. Civ. P. 34(a). “For each item or category, the response must either state that 8 inspection and related activities will be permitted as requested or state with specificity the ? grounds for objecting to the request, including the reasons. The responding party may state 10 || that it will produce copies of documents or of electronically stored information instead of II permitting inspection.” Id. at 34(b)(2)(B). 12 Pursuant to Federal Rule of Civil Procedure 37, ‘“‘a party may move for an order 13 compelling disclosure of discovery.” Fed. R. Civ. P. 37(a)(1). “The party seeking to compel 14 discovery has the burden of establishing that its request satisfies the relevancy requirements 15 || of Rule 26.” Bryant v. Ochoa, No. 07cv200 JM (PCL), 2009 U.S. Dist. LEXIS 42339, at 16 |} (S.D. Cal. May 14, 2009) (internal citations omitted). Thereafter, “the party opposing 17 discovery has the burden of showing that the discovery should be prohibited, and the 18 || burden of clarifying, explaining or supporting its objections.” Id. (internal citations 19 |) omitted). 20 ANALYSIS 21 All Communications Between Plaintiff and Defendant 22 Defendant seeks an order from the Court compelling Plaintiff to produce all 23 || communications between Plaintiff and Defendant from January 1, 2018 to the present. Mot. 24 || at 5. Defendant argues the “responsive documents withheld by Plaintiff (or counsel) . . . 25 || will evidence a ‘normal’ relationship between two adults[.]” Id. at 7-8. Defendant argues 26 |/these communications are relevant in “evaluating whether there was ‘malicious’ or 27 ||‘oppressive’ conduct” for Plaintiffs punitive damages claim and are “probative of 28 || Plaintiffs prayer for non-economic damages.” Id. at 8.

Plaintiff argues Defendant offers no support “for the proposition that couples 2 expressing affection toward each other at one point in their relationship . . . somehow 3 || minimizes the severity of the abusive conduct or undermines malicious intent.” Opp. at 5. 4 District courts have broad discretion to determine relevancy for discovery 5 purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also 6 broad discretion to limit discovery to prevent its abuse. See Fed. R. Civ. P. 7 26(b)(2) (instructing that courts must limit discovery where the party seeking the discovery 8 had ample opportunity to obtain the information by discovery in the action” or where 9 || the proposed discovery is “unreasonably cumulative or duplicative,” “obtain[able] from 10 || some other source that is more convenient, less burdensome, or less expensive,” or where I! it “is outside the scope permitted by Rule 26(b)(1)”). 12 The scope of relevancy under the Federal Rules is not boundless. See Hickman v. 13 Taylor, 329 U.S. 495, 507 (1947) (“[D]iscovery, like all matters of procedure, has ultimate 14 and necessary boundaries.”). Here, the Court finds Defendant’s blanket request for “all 15 communications” between Plaintiff and Defendant across multiple communication 16 platforms from January 1, 2018 to the present—without regard to subject matter—to be 17 overly broad and disproportionate to the needs of the case. 18 Defendant argues communications showing Plaintiff and Defendant engaged in a 19 “normal dialogue” over the course of their relationship are relevant to: (1) □□□□□□□□□□□ 20 || punitive damages claim; and (2) Plaintiff’s claim that she suffered mental and emotional 21 || distress. Mot. at 7-8. Defendant’s claim however is unsupported by any legal authority or 22 |! analysis that Defendant is entitled to the broad range of documents he seeks. See Mot. 23 Defendant’s argument that Plaintiff's counsel improperly withheld documents based 24 a unilateral determination of their relevancy is similarly unpersuasive. Although 25 || Defendants are correct that an “interested party cannot be the ‘final arbiter’ of relevance . 26 ||. . [d]iscovery in our adversarial system is based on a good faith response to demands for 27 || production by an attorney constrained by the Federal Rules and by ethical obligations.” 28 || Mackelprang v. Fid. Nat’] Title Agency of Nev., Inc., No. 2:06-cv-00788-JCM-GWFE, 2007

! Dist. LEXIS 2379, at *23-24 (D. Nev. Jan. 9, 2007) (quoting Rozell v. Ross-Holst, 2 05 Civ. 2936 (JGK) (JCF), 2006 U.S. Dist. LEXIS 2277, at *11-12 (S.D.N.Y. Jan. 20, 3 2006)). Accordingly, “[w]hen a party can demonstrate that an adversary may be wrongfully 4 withholding relevant information, it can seek relief].]” Id. 5 Here, Defendant has made no such showing that Plaintiff's counsel is wrongfully 6 withholding relevant communications. Defendant’s mere speculation that other relevant 7 || communications exist and are being improperly withheld is insufficient to warrant granting 8 |/a motion to compel “all communications” unbounded by subject matter. See FormFactor, 9 v. Micro-Probe, Inc., No. C-10-03095 PJH (JCS), 2012 U.S. Dist. LEXIS 62233, at 10 || «29 (N.D. Cal. May 3, 2012) (defendant’s “grave doubt” that plaintiff failed to produce all II responsive documents is not a “colorable basis” for its belief that relevant, responsive 12 || documents were being withheld); Tapia v. Huntington Park Police Dep't, No. CV 09-07624 13 || VBF (SSx), 2010 U.S. Dist. LEXIS 152015, at *4-5 (C.D. Cal. May 5, 2010) (“A party's 14 || mere suspicion that additional documents exist does not justify a motion to compel.”); 15 || Goodrich Corp. v. Emhart Indus., Inc., No. EDCV 04-00759-VAP (SSx), 2005 U.S. Dist. 16 LEXIS 17193, at *9 (C.D. Cal. June 20, 2005) (a party’s mere speculation that relevant 17 || documents exist and are being improperly held is not a “sound basis” for a motion to 18 compel). 19 For these reasons, the Court DENIES Defendant’s motion to compel further 20 || communications between Plaintiff and Defendant from January 1, 2018 to the present. 21 |/11. All Communications Between Plaintiff and David Weible and Keith Carrigan 22 Defendant seeks an order from the Court compelling Plaintiff to produce all 23 || communications between Plaintiff and Mr. David Weible (a former boyfriend) from July 24 2017 to the present. Mot. at 5. In support, Defendant argues that during Plaintiff’s 25 || deposition, Plaintiff testified: (1) she sent the subject photograph, or a substantively similar 26 ||image to Mr. Weible in Fall 2017; and (2) she communicated with Mr. Weible about 27 Defendant and the instant litigation. Mot. at 9. Despite Plaintiff's testimony, Defendant 28 argues Plaintiff did not produce any communications with Mr. Weible in discovery. Id.

! || Defendant therefore seeks an order “compelling Plaintiff to produce communications she 2 exchanged with Mr. Weible, including all sexually explicit photographs she sent, to 3 || corroborate her deposition testimony[.]” Id. 4 Similarly, Defendant requests an order from the Court compelling Plaintiff to 5 produce all communications between Plaintiff and Mr. Keith Carrigan (another former 6 boyfriend) from January 1, 2018 to the present. Id. at 6. In support, Defendant proffers 7 || evidence Plaintiff allegedly exchanged sexually charged text messages with Mr. Carrigan. 8 Mot, Ex. F. From this, Defendant argues Plaintiff's communications with Mr. Carrigan ? || relate to: (1) Plaintiff's damages theory; and (2) liability. Id. 10 Plaintiff argues that Defendant’s aim is to improperly “raise Plaintiffs sexual history 11 in violation of Fed. R. 412[.]” Opp. at 6. Specifically, Plaintiff argues that “the fact that 12 || Plaintiff may have sent nude or semi-nude photos privately to an individual in the past has 13 |/no bearing on whether she intended to maintain the privacy of the photos, or the emotional 14 damage she suffered[.]’’ Id. at 9. 15 The Court finds Defendant’s blanket request for “all communications” between 16 || Plaintiff and Mr. Weible and Mr. Carrigan—without regard to subject matter—to be overly 17 |! broad and disproportionate to the needs of this case. Defendant’s argument that it needs 18 || Plaintiffs communications with Mr. Weible to corroborate Plaintiff’s testimony on more 19 || narrow subjects (the Defendant, the instant litigation, and the photo at issue) is inconsistent 20 || with Defendant’s request for a Court order compelling every communication exchanged 21 between Plaintiff and Mr. Weible across multiple communication platforms from July 1, 22 onwards. 23 Similarly, Defendant’s justification for “all communications” between Plaintiff and 24 || Mr. Carrigan is even more tenuous. Defendant does not make clear and cites to no legal 25 || authority as to how the production of every communication between Plaintiff and Mr. 26 || Carrigan (a non-party) within a certain time period is relevant to either Plaintiffs damages 27 || theory or liability. 28 It is also not clear how Defendant’s request for all communications from: (1) July 1,

! to the present (for Mr. Weible) and (2) January 1, 2018 to the present (for Mr. 2 Carrigan) is justified. The incidents at dispute in this litigation allegedly occurred in late 3 ||2018. ECF No. 1 at q§| 6-7. Despite this, Defendant has requested all communications 4 spanning many months before and then many months after. 5 To the extent Defendant is seeking evidence Plaintiff sent the instant photograph to 6 || Mr. Weible and Mr. Carrigan, Defendant has not shown at this juncture how this is relevant 7 || to his affirmative defense. Defendant appears to be relying on Cal. Civ. Code § 1708.85(6), 8 || which states that “there shall be no liability” on the part of a person distributing material ? under § 1708.85 if “[t]he distributed material was previously distributed by another 10 person.” Contrary to Defendant’s construction however, § 1708.85 does not state that I! |/*there shall be no liability” as long as the distributed material was previously distributed 12 by “the person appearing in the material.” Defendant’s argument does not comport with 13 the plain text of the statute, and Defendant provides no other support for his argument that 14 has an affirmative defense so long as Plaintiff shared the instant photograph with any 15 |! other person at any previous point in time. 16 The Court is also not convinced Defendant’s requests are proper given the 17 underlying policies set forth in Federal Rule of Evidence 412 and the discovery that has 18 already taken place. Federal Rule of Evidence 412 provides: “[t]he following evidence is 19 || not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) 20 || evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence 21 |! offered to prove a victim’s sexual predisposition.” Fed. R. Evid. 412(a). 22 Rule 412 is designed to “safeguard the alleged victim against the invasion of privacy, 23 || potential embarrassment and sexual stereotyping that is associated with the public 24 || disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding 25 || process.” Fed. R. Evid. 412, Advisory Committee Notes (1994). Evidence regarding sexual 26 behavior is therefore barred except “in designated circumstances in which the probative 27 || value of the evidence significantly outweighs possible harm to the victim.” Id. Although 28 412 governs the admissibility of sexual behavior evidence rather than its

discoverability, the policies underlying the Rule are considered when resolving discovery 2 disputes. See Doe v. City of San Diego, No. 12-cv-0689-MMA (DHB), 2013 U.S. Dist. 3 ||LEXIS 109061, at *11 (S.D. Cal. Aug. 1, 2013) (collecting cases). 4 The Court notes Defendant was already given the opportunity at □□□□□□□□□□□ 5 deposition to ask Plaintiff questions regarding her previous relationships with Mr. Weible 6 and Mr. Carrigan, including whether she had sent sexually explicit photographs to either 7 of them. See Mot., Ex. C at 70:10-72:73:12; Opp., Ex. 3 at 220:2-223:16; 293:1-295-20; 8 During her deposition, Plaintiff testified under oath she longer possesses any text 9 messages to Mr. Weibel containing sexually explicit photographs: 10 Q As you sit here today, do you have any text messages 11 where naked photographs were sent to Mr. Weible? 12 eee THE WITNESS: No. 13 Opp., Ex. 3 at 222:1-10. Plaintiff also testified under oath she did not recall sending any text messages with 15 sexually explicit photographs to Mr. Carrigan: 16 Q Did you ever send any sexually explicit photograph to Mr. V7 Carrigan? 18 bee 19 THE WITNESS: Not to my recollection.

50 Id. at 294:5-8.

54 In addition, Plaintiff also fully responded to Defendant’s Interrogatory No. 12, which asked Plaintiff to: 22 3 State the name, address, and telephone number of every person You have sent a ‘sexually explicit’ (as that term is used in the 24 Complaint) photograph to from January 1, 2018 to the present. 25 46 Opp., Ex. 2 at 8. In response, Plaintiff stated she had sent “two sexually explicit photos to Defendant during the time period” set forth in the Interrogatory. Id. at 9. 27 Defendant was also given the opportunity to ask Plaintiff questions regarding her 28

sexual history after the incident and her relationship with Defendant ended, including: (1) 2 || whether Plaintiff has had sexual relations after her relationship with Defendant ended; (2) 3 Il how many times; and (3) with how many persons. See Opp. Ex. 3 at 270:23-271:21. 4 Given the discovery that has already taken place, Defendant has not shown how > ||further intrusions into Plaintiff's private affairs is appropriate and not needlessly 6 || cumulative. For these reasons, the Court DENIES Defendant’s motion to compel all 7 || communications between: (1) Plaintiff and Mr. Weible from July 1, 2017 to the present; 8 || and (2) Plaintiff and Mr. Carrigan from January 1, 2018 to the present. 9 11. All Communications Between Plaintiff and Lidia Chesnokova, Ayla Basha, 10 Sharon Blum and Steven Lucas 11 Defendant seeks a Court order compelling Plaintiff to produce all communications 12 || between Plaintiff and Lidia Chesnokova, Ayla Basha, Sharon Blum and Steven Lucas in 13 || December 2018. Defendant notes Ms. Chesnokova, Ms. Blum and Mr. Lucas are listed in 14 || Plaintiffs Initial Disclosures as individuals with knowledge regarding: (1) “Defendant’s 15 || dissemination of one or more sexually explicit photos of Plaintiff’; and (2) “the impact that 16 || the theft and dissemination of one or more sexually explicit photos by Defendant has had 17 || on Plaintiff.” Mot., Ex. B at 2-4.! Despite this, Defendant argues Plaintiff produced only a 18 || few communications between Plaintiff and these individuals. Mot. at 9. As such, Defendant 19 seeks “fall communications” between Plaintiff and these witnesses in December 2018. 20 || Defendant argues these communications bear on Plaintiff's “claimed emotional distress 21 ||damages and the credibility of the witnesses.” Id. 22 Plaintiff states she “already has reviewed and produced every December 23 |}communication that is related in any way to the litigation.” Mot. at 6. 24 Here, the Court again finds Defendant’s request for Plaintiff to produce “all 25 ||communications” regardless of subject matter to be overly broad and disproportionate to 26 27 ' Defendant makes this same representation for Ms. Basha, but Ms. Basha does not appear 28 to be identified in Plaintiff's Initial Disclosures. See Mot., Ex. B.

needs of the case. Defendant provides no evidence to cast doubt on Plaintiffs 2 representation she already produced all relevant communications between Plaintiff and Ms. 3 Chesnokova, Ms. Basha, Ms. Blum and Mr. Lucas. For example, the text communication + || between Plaintiff and Ms. Chesnokova that Defendant cites to in support is bates-stamped > and appears to have been produced by Plaintiff. See Mot., Ex. E. On these facts, 6 || Defendant’s mere suspicion that other relevant documents are being improperly withheld 7 are insufficient to warrant granting a motion to compel. See FormFactor, 2012 U.S. Dist. 8 || LEXIS 62233, at *22; Tapia, 2010 U.S. Dist. LEXIS 152015, at *4-5; Goodrich Corp., ? |/2005 U.S. Dist. LEXIS 17193, at *9. 10 For these reasons, the Court DENIES Defendant’s motion to compel all 11 || communications between Plaintiff and Lidia Chesnokova, Ayla Basha, Sharon Blum and 12 || Steven Lucas in December 2018. 13 CONCLUSION 14 For the reasons set forth above, the Court DENIES Defendant’s Motion to Compel. ID light of the Court’s ruling, the Court does not address Defendant’s request for sanctions 16 |! under Rule 37(a)(5)(A) because Defendant is not the prevailing party. 17 IT IS SO ORDERED. 18 19 || Dated: October 1, 2019 20 SN | — 1 Honorable Linda Lopez United States Magistrate Judge 22 23 24 25 26 27 28 10