1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 GUS REDDING, Case No. 2:19-cv-00412-JCM-EJY
5 Plaintiff, ORDER 6 v.
7 SOC, LLC,
8 Defendant.
9 10 Before the Court is Defendant’s Motion to Compel Discovery, for Fees and Costs, and 11 Motion to Extend Discovery (Second Request). ECF No. 38. The Court has reviewed Defendant’s 12 Motion, Plaintiffs’ Opposition (ECF No. 40), and Defendant’s Reply (ECF No. 43). The Court also 13 held a lengthy hearing on June 30, 2020 (the “Hearing”) regarding Defendant’s Motion to Compel 14 through which the Court resolved some of the issues presented therein. The transcript of the 15 proceeding is the Court’s Order with respect to Defendant’s Interrogatory Nos. 18 and 20, and 16 Request for Production No. 30.1 At the conclusion of the Hearing, Plaintiff was ordered to gather 17 certain information after which the parties were to meet and confer regarding Defendant’s Requests 18 for Production Nos. 4 and 5. The parties were also ordered to present a revised discovery plan and 19 scheduling order, if one could be agreed upon. If the parties could not agree, the parties were ordered 20 to submit their respective positions to the Court on or before July 14, 2020. The Court has before it 21 the Joint Status Report it ordered. (ECF No. 54). 22 As represented in the Joint Status Report, Plaintiff disclosed the electronic platforms on 23 which he and Ms. Glover (who has an EEOC Charge pending against Defendant) communicated.2 24 Specifically, Plaintiff identified text messaging as his “primary mode of written communications” 25 with Ms. Glover. Id. at 2. However, messages dating back more than 30 days are not stored on 26 Plaintiff’s phone. Thus, the parties agree that a subpoena to the telecommunications provider 27 1 (AT&T) will be required to obtain additional text messages. Id. at 3 and 4. Despite this agreement, 2 three disputes remain regarding disclosure of Plaintiff’s electronic communications with Ms. Glover. 3 These include: (1) who should first review the response to the subpoena; (2) whether the current 4 dates for the depositions for Plaintiff and Ms. Glover should be vacated; and, (3) whether there 5 should be an extension of discovery deadlines. 6 Plaintiff states that his counsel should “be permitted first review” of documents produced by 7 AT&T. Plaintiff further states that he does not object to an extension of discovery; however, he 8 contends that his deposition and the deposition of Ms. Glover, scheduled for the week of July 20, 9 2020, should proceed as planned. Plaintiff agrees that “both witnesses” may be “re-deposed as to 10 any documents later recovered through subpoenas … .” Id. at 4-5. 11 Defendant argues that an extension of discovery is proper to allow for: (1) the production of 12 AT&T documents responsive to Defendant’s Requests for Production 4 and 5; (2) potential review 13 of these documents by the Court or a special master; and, (3) the depositions of Plaintiff and Ms. 14 Glover after the documents produced pursuant to Requests Nos. 4 and 5 occurs, and after the 15 “subpoena issued to a movie production company for records relating to Plaintiff” has been returned. 16 Id. at 3. Defendant states that it is inefficient to depose Plaintiff and Ms. Glover twice. Defendant 17 proposes new scheduling deadlines including a discovery cutoff date of October 15, 2020, a 18 disposition motion deadline of November 16, 2020, and a pretrial order due date of December 15, 19 2020. Id. at 4. 20 This Order addresses Defendant’s Request for Production Nos. 4 and 5, the extension of 21 dates in the discovery plan and scheduling order, and the scheduling of Plaintiff’s and Ms. Glover’s 22 depositions. The Court’s understanding is that, together with the orders entered on June 30, 2020, 23 the parties resolved all other outstanding discovery issues raised by Defendant in its Motion to 24 Compel (ECF No. 38). 25 DISCUSSION 26 Defendant’s Requests for Production No. 4 states:
27 Documents that either directly or indirectly reference, concern, reflect or 1 correspondence, text messages, instant messages, social media comments/ conversations (including, but not limited to, comments/conversations 2 shared through Facebook, Tumblr, Twitter, Snapchat, Instagram, and LinkedIn), voicemails, photos exchanged, or facsimiles. 3 4 Defendant’s Request No. 5 states:
5 Documents that either directly or indirectly reference, concern, reflect or relate to any communications you have had with Jennifer Glover regarding 6 the allegations in Jennifer Glover’s Charge, including without limitation, emails, correspondence, text messages, instant messages, social media 7 comments/conversations (including, but not limited to, comments/conversations shared through Facebook, Tumblr, Twitter, 8 Snapchat, Instagram, and LinkedIn), voicemails, photos exchanged, or facsimiles. 9 10 The parties agree that a subpoena directed to AT&T is required to obtain the universe of documents 11 potentially responsive to Defendant’s document requests; however, the parties disagree regarding 12 who should review those documents for potential privilege. Depending on the size of the production, 13 the Court previously offered to review the documents itself or appoint a special master to make 14 preliminary privilege determinations. Defendant continues to agree with this option. Plaintiff states 15 he (through his counsel) should first review the documents. 16 As was true at the Hearing, the Court remains without sufficient information to determine 17 how many documents may be received from AT&T in response to a subpoena that are, potentially, 18 relevant to the issues in this case. While it is true the Court may appoint a special master to “address 19 pretrial and posttrial matters that cannot be effectively and timely addressed by an available district 20 judge or magistrate judge of the district,” (Fed. R. Civ. P. 53(a)(1)(C)), the Court finds it is premature 21 to do so as it is unclear whether a special master is needed to effectively and efficiently review 22 documents received from AT&T. 23 The Court further finds that it is the party asserting privilege that has the burden of 24 demonstrating a privilege properly applies. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 25 2009) (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (“a party asserting the 26 attorney-client privilege has the burden of establishing the [existence of an attorney-client] 27 relationship and the privileged nature of the communication”); Murphy v. Kmart Corp., 259 F.R.D. 1 bears the burden of providing a factual basis for asserting the privilege.”); FSP Stallion 1, LLC v. 2 Luce, Case No. 2:08-cv-1155-PMP-PAL, 2010 WL 3895914, at *9 (D. Nev. Sept. 30, 2010) (“[a]s 3 the parties asserting [the common interest] privilege, the Defendants bear the burden of establishing 4 that the documents are actually privileged”).3 5 Given that it is premature to appoint a special master, that Plaintiff bears the burden of 6 establishing privilege, and there is no basis for the Court to conclude that Plaintiff will fail to properly 7 review all documents, produce all non-privileged relevant documents, and provide a fully compliant 8 privilege log, it is efficient and appropriate to allow Plaintiff first review of the documents received 9 from AT&T. However, Plaintiff is required to do so promptly. And, Plaintiff is required to produce 10 a fully compliant privilege log pertaining to any documents withheld by Defendant.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 GUS REDDING, Case No. 2:19-cv-00412-JCM-EJY
5 Plaintiff, ORDER 6 v.
7 SOC, LLC,
8 Defendant.
9 10 Before the Court is Defendant’s Motion to Compel Discovery, for Fees and Costs, and 11 Motion to Extend Discovery (Second Request). ECF No. 38. The Court has reviewed Defendant’s 12 Motion, Plaintiffs’ Opposition (ECF No. 40), and Defendant’s Reply (ECF No. 43). The Court also 13 held a lengthy hearing on June 30, 2020 (the “Hearing”) regarding Defendant’s Motion to Compel 14 through which the Court resolved some of the issues presented therein. The transcript of the 15 proceeding is the Court’s Order with respect to Defendant’s Interrogatory Nos. 18 and 20, and 16 Request for Production No. 30.1 At the conclusion of the Hearing, Plaintiff was ordered to gather 17 certain information after which the parties were to meet and confer regarding Defendant’s Requests 18 for Production Nos. 4 and 5. The parties were also ordered to present a revised discovery plan and 19 scheduling order, if one could be agreed upon. If the parties could not agree, the parties were ordered 20 to submit their respective positions to the Court on or before July 14, 2020. The Court has before it 21 the Joint Status Report it ordered. (ECF No. 54). 22 As represented in the Joint Status Report, Plaintiff disclosed the electronic platforms on 23 which he and Ms. Glover (who has an EEOC Charge pending against Defendant) communicated.2 24 Specifically, Plaintiff identified text messaging as his “primary mode of written communications” 25 with Ms. Glover. Id. at 2. However, messages dating back more than 30 days are not stored on 26 Plaintiff’s phone. Thus, the parties agree that a subpoena to the telecommunications provider 27 1 (AT&T) will be required to obtain additional text messages. Id. at 3 and 4. Despite this agreement, 2 three disputes remain regarding disclosure of Plaintiff’s electronic communications with Ms. Glover. 3 These include: (1) who should first review the response to the subpoena; (2) whether the current 4 dates for the depositions for Plaintiff and Ms. Glover should be vacated; and, (3) whether there 5 should be an extension of discovery deadlines. 6 Plaintiff states that his counsel should “be permitted first review” of documents produced by 7 AT&T. Plaintiff further states that he does not object to an extension of discovery; however, he 8 contends that his deposition and the deposition of Ms. Glover, scheduled for the week of July 20, 9 2020, should proceed as planned. Plaintiff agrees that “both witnesses” may be “re-deposed as to 10 any documents later recovered through subpoenas … .” Id. at 4-5. 11 Defendant argues that an extension of discovery is proper to allow for: (1) the production of 12 AT&T documents responsive to Defendant’s Requests for Production 4 and 5; (2) potential review 13 of these documents by the Court or a special master; and, (3) the depositions of Plaintiff and Ms. 14 Glover after the documents produced pursuant to Requests Nos. 4 and 5 occurs, and after the 15 “subpoena issued to a movie production company for records relating to Plaintiff” has been returned. 16 Id. at 3. Defendant states that it is inefficient to depose Plaintiff and Ms. Glover twice. Defendant 17 proposes new scheduling deadlines including a discovery cutoff date of October 15, 2020, a 18 disposition motion deadline of November 16, 2020, and a pretrial order due date of December 15, 19 2020. Id. at 4. 20 This Order addresses Defendant’s Request for Production Nos. 4 and 5, the extension of 21 dates in the discovery plan and scheduling order, and the scheduling of Plaintiff’s and Ms. Glover’s 22 depositions. The Court’s understanding is that, together with the orders entered on June 30, 2020, 23 the parties resolved all other outstanding discovery issues raised by Defendant in its Motion to 24 Compel (ECF No. 38). 25 DISCUSSION 26 Defendant’s Requests for Production No. 4 states:
27 Documents that either directly or indirectly reference, concern, reflect or 1 correspondence, text messages, instant messages, social media comments/ conversations (including, but not limited to, comments/conversations 2 shared through Facebook, Tumblr, Twitter, Snapchat, Instagram, and LinkedIn), voicemails, photos exchanged, or facsimiles. 3 4 Defendant’s Request No. 5 states:
5 Documents that either directly or indirectly reference, concern, reflect or relate to any communications you have had with Jennifer Glover regarding 6 the allegations in Jennifer Glover’s Charge, including without limitation, emails, correspondence, text messages, instant messages, social media 7 comments/conversations (including, but not limited to, comments/conversations shared through Facebook, Tumblr, Twitter, 8 Snapchat, Instagram, and LinkedIn), voicemails, photos exchanged, or facsimiles. 9 10 The parties agree that a subpoena directed to AT&T is required to obtain the universe of documents 11 potentially responsive to Defendant’s document requests; however, the parties disagree regarding 12 who should review those documents for potential privilege. Depending on the size of the production, 13 the Court previously offered to review the documents itself or appoint a special master to make 14 preliminary privilege determinations. Defendant continues to agree with this option. Plaintiff states 15 he (through his counsel) should first review the documents. 16 As was true at the Hearing, the Court remains without sufficient information to determine 17 how many documents may be received from AT&T in response to a subpoena that are, potentially, 18 relevant to the issues in this case. While it is true the Court may appoint a special master to “address 19 pretrial and posttrial matters that cannot be effectively and timely addressed by an available district 20 judge or magistrate judge of the district,” (Fed. R. Civ. P. 53(a)(1)(C)), the Court finds it is premature 21 to do so as it is unclear whether a special master is needed to effectively and efficiently review 22 documents received from AT&T. 23 The Court further finds that it is the party asserting privilege that has the burden of 24 demonstrating a privilege properly applies. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 25 2009) (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (“a party asserting the 26 attorney-client privilege has the burden of establishing the [existence of an attorney-client] 27 relationship and the privileged nature of the communication”); Murphy v. Kmart Corp., 259 F.R.D. 1 bears the burden of providing a factual basis for asserting the privilege.”); FSP Stallion 1, LLC v. 2 Luce, Case No. 2:08-cv-1155-PMP-PAL, 2010 WL 3895914, at *9 (D. Nev. Sept. 30, 2010) (“[a]s 3 the parties asserting [the common interest] privilege, the Defendants bear the burden of establishing 4 that the documents are actually privileged”).3 5 Given that it is premature to appoint a special master, that Plaintiff bears the burden of 6 establishing privilege, and there is no basis for the Court to conclude that Plaintiff will fail to properly 7 review all documents, produce all non-privileged relevant documents, and provide a fully compliant 8 privilege log, it is efficient and appropriate to allow Plaintiff first review of the documents received 9 from AT&T. However, Plaintiff is required to do so promptly. And, Plaintiff is required to produce 10 a fully compliant privilege log pertaining to any documents withheld by Defendant. If, however, 11 upon receipt of the documents from AT&T, Plaintiff’s counsel finds the number of documents to be 12 reviewed is so voluminous that review cannot be accomplished efficiently, Plaintiff must 13 immediately notify the Court so that a special master may be appointed. Further, Defendant shall 14 be entitled to challenge the designation of any withheld document and, after consultation with 15 Plaintiff, shall also be entitled to seek either the appointment of a special master to review documents 16 withheld or seek the Court’s assistance in reviewing the documents. Should the Court determine 17 that Plaintiff’s claims of privilege and Defendant’s challenges to claims of privilege pertain to a 18 large number of documents, the Court may, sua sponte, reconsider appointment of a special master. 19 The above process is going to take time. So too will it take some time for Defendant to obtain 20 a response from the movie company from which documents are sought. Under these circumstances, 21 and without sufficient information to know the volume of documents that may be produced or the 22 substance of any document over which privilege may be claimed, there is good reason to grant 23
3 The common interest privilege protects a communication made when a non-party sharing the client’s interest 24 is a party to a confidential communication between attorney and client. In re Mortgage & Realty Trust, 212 B.R. 649, 652 (C.D. Cal. 1997) (citation omitted). The common interest privilege is an exception to the waiver rule when the 25 parties sharing the communication are engaged in a discussion of common interest. This privilege is a vital and important part of a client's right to representation by counsel. Id. citing Continental Oil Co. v. United States, 330 F.2d 347, 350 26 (9th Cir. 1964). The common interest privilege applies where (1) the communication was made by separate parties in the course of a matter of common interest, (2) the communication was designed to further that effort, and (3) the privilege 27 has not been waived. Id. citing In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 126 (3d Cir. 1 Defendant’s request to vacate the deposition dates set for Plaintiff and Ms. Glover. There is also 2 good cause to extend discovery deadlines. Requiring Defendant to depose the named Plaintiff and 3 a key witness twice is the antithesis of efficiency. 4 ORDER 5 Accordingly, and based on the above together with arguments made before the Court on June 6 30, 2020, 7 IT IS HEREBY ORDERED that Defendant’s Motion to Compel Discovery, for Fees and 8 Costs, and Motion to Extend Discovery (Second Request), ECF No. 38, is GRANTED in part and 9 DENIED in part. 10 IT IS FURTHER ORDERED that, in addition to those portions of Defendant’s Motion 11 decided at the June 30, 2020 hearing, the Court grants Defendant’s Motion seeking to compel 12 documents responsive to Defendant’s Requests for Production Nos. 4 and 5, as stated above in this 13 Order. 14 IT IS FURTHER ORDERED that, the parties agrees that Defendant, if it has not already 15 done so, shall subpoena AT&T for documents consistent with Requests to Produce Nos. 4 and 5. 16 IT IS FURTHER ORDERED that upon receipt of the response to the subpoena, Defendant 17 shall be entitled to determine the number of pages produced by AT&T along with other broad indicia 18 of the content (e.g., the date range covered by the production) such that Defendant has a general, 19 good sense of the scope (albeit not the content) of what was produced. Defendant shall not retain 20 copies of the documents produced by AT&T. 21 IT IS FURTHER ORDERED that Defendant shall, within three calendars days of receipt of 22 the document from AT&T, transmit the same to Plaintiff for review by Plaintiff’s Counsel. 23 IT IS FURTHER ORDERED that Plaintiff shall review all documents received from AT&T 24 for purposes of identifying responsive non-privileged documents, documents that Plaintiff claims 25 are irrelevant to the issues in these proceedings, and all documents responsive but for which a 26 privilege is claimed. Plaintiff shall ensure he retains a copy of all documents received, irrespective 27 of a claim of irrelevancy or privilege. This will allow the Court or special master, if appointed, to 1 IT IS FURTHER ORDERED that within 15 days of receipt of the documents from AT&T, 2 Plaintiff shall produce to Defendant all relevant documents responsive to Requests for Production 3 Nos. 4 and 5 that Plaintiff does not claim are privileged, as well as a compliant privilege log for all 4 responsive documents withheld based on privilege. 5 IT IS FURTHER ORDERED that the parties shall meet and confer regarding any dispute 6 pertaining to the claims of privilege within seven days of Defendant’s receipt of Plaintiff’s privilege 7 log. To the extent agreement cannot be reached, the parties shall each be entitled to file a brief with 8 the Court addressing (1) the number of documents withheld and whether a special master is needed 9 to review the documents, and (2) their respective positions on the privileges asserted. The briefs 10 shall be filed no later than 10 days after the period to meet and confer expires. The parties must 11 address, inter alia, what law (state or federal) applies to the common interest doctrine analysis in 12 this case, and provide a concise argument in support of their respective positions. The briefs are 13 limited to 12 pages each (excluding the cover and service pages), plus exhibits. For purposes of this 14 briefing, Plaintiff shall be entitled to file any document for which privilege is claimed under seal. 15 IT IS FURTHER ORDERED that Plaintiff’s and Ms. Glover’s depositions set for the week 16 of July 20, 2020 are VACATED. 17 IT IS FURTHER ORDERED that the discovery extension proposed by Defendant at ECF 18 NO. 54, at 4, is adopted by the Court. 19 IT IS FURTHER OREDERED that Defendant’s request for fees and costs is DENIED. 20 Dated this 15th day of July, 2020 21 22
23 ELAYNA J. YOUCHAH 24 UNITED STATES MAGISTRATE JUDGE 25 26 27