1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 STEVE R. ROJAS and ANDREA N. Case No. 18-cv-05841-BLF ROJAS, on behalf of themselves and all 8 others similarly situated, ORDER GRANTING IN PART 9 Plaintiffs, PLAINTIFFS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL 10 v. ORDER OF MAGISTRATE JUDGE COUSINS; AND REFERRING 11 BOSCH SOLAR ENERGY MATTER TO JUDGE COUSINS FOR CORPORATION, FURTHER PROCEEDINGS 12 Defendant. [Re: ECF 128] 13
14 15 16 Plaintiffs Steve R. Rojas and Andrea N. Rojas (“Plaintiffs”) sue Defendant Bosch Solar 17 Energy Corporation (“Bosch”) for breach of warranty and related claims arising out of alleged 18 defects in solar panels manufactured by Bosch. Before the Court is Plaintiffs’ motion for relief 19 from Magistrate Judge Nathanael M. Cousins’ nondispositive pretrial order denying Plaintiffs’ 20 motion to compel and for sanctions. See Mot. for Relief, ECF 128. The motion for relief, which 21 is opposed by Bosch, has been submitted for decision without oral argument. See Order, ECF 22 129; Opp., ECF 134. 23 For the reasons discussed below, Plaintiff’s motion for relief from Judge Cousins’ order is 24 GRANTED IN PART, and the matter is REFERRED to Judge Cousins for further proceedings. 25 I. BACKGROUND 26 On May 14, 2020, the parties filed a Discovery Letter Brief informing Judge Cousins of 27 multiple discovery disputes. See Discovery Letter Brief, ECF 98. The following day, Judge 1 schedule, and set a hearing for June 3, 2020. See Clerk’s Notice, ECF 99. Plaintiffs timely filed 2 their motion to compel and for sanctions on May 20, 2020. See Mot. to Compel and for Sanctions, 3 ECF 106. The Notice of Motion identified the relief sought as follows:
4 [A]n order compelling Defendant Bosch Solar Energy Corporation to do the following: 5 1. Produce the documents described in Plaintiffs’ First Request for Production of 6 Documents and Third Request for Production of Documents (the “Document Requests”) in the manner described in the Proposed Order submitted herewith. 7 2. Provide amended, responsive responses to Plaintiffs’ First Set of Interrogatories 8 and Second Set of Interrogatories in the manner described in the Proposed Order submitted herewith. 9 3. Produce solar panels for inspection pursuant to Plaintiffs’ Second Request for 10 Production of Documents and to preserve the solar panels until inspection can be accomplished, in the manner described in the Proposed Order submitted herewith. 11 4. To not destroy, recycle or otherwise dispose of Bosch solar panels, model 12 number c-SIM 60 NA30119, (“NA30119 panels”) that are currently being stored or which may hereafter be de-installed, without a Court order or stipulation of the 13 parties.
14 5. To store all NA30119 panels pending inspection.
15 6. To return to California for inspection and testing the approximately one hundred NA30119 panels which were previously in California after de-installation but 16 which were removed to Arkansas by Bosch; Plaintiffs request that the Court order Bosch to ship said panels to Arnold Rodio of Evaluation and Remediation Services 17 located at 43141 Business Center Parkway, Suite #202, Lancaster, CA 93535. 18 See id. at 1. Plaintiffs also sought sanctions against Bosch and leave to file a motion for 19 evidentiary preclusion based on spoliation of evidence. See id. at 1-2. 20 After completion of briefing on the motion, Judge Cousins heard oral argument on June 3, 21 2020. See Minute Entry, ECF 114. Judge Cousins observed at the outset that the most urgent 22 issues raised by Plaintiffs’ motion appeared to be those relating to inspection and retention of the 23 solar panels. See 6/3/20 Hrg. Tr. 4:9-6:12, ECF 117. After hearing from both sides on those 24 issues, Judge Cousins directed the parties to meet and confer on an inspection and retention 25 protocol and he continued the hearing for two weeks. See id. 20:15-21:19. Judge Cousins 26 deferred oral argument on the remaining issues raised in Plaintiffs’ motion. See id. 21:15-17. 27 Judge Cousins held a further hearing on June 17, 2020. See Minute Entry, ECF 121. At 1 inspection and retention protocol. See 6/17/20 Hrg. Tr. 3:3-25, ECF 128-1. Judge Cousins 2 suggested continuing the hearing for another week to allow further meet and confer on the 3 protocol. See id. 4:12-21. However, when Plaintiffs’ counsel requested that oral argument 4 proceed, Judge Cousins agreed to hear argument on the remaining issues raised by Plaintiffs’ 5 motion. See id. 5:21-6:9. Judge Cousins indicated that he would hear from Plaintiffs’ counsel 6 first, and then from Bosch’s counsel. See id. 6:8-9. Plaintiffs’ counsel spoke at length, focusing 7 primarily on the spoliation and sanctions aspects of the motion and touching only briefly on 8 Bosch’s document production. See id. 6:10-15:17. Bosch’s counsel responded, also focusing on 9 spoliation and sanctions. See id. 15:22-17:17. Judge Cousins then stated his ruling on the record, 10 denying Plaintiffs’ motion to compel and for sanctions with the caveat that the parties should keep 11 working on the inspection and retention protocol. See id. 17:18-20:8. Judge Cousins spoke for 12 several minutes, addressing issues relating to the inspection and retention of the solar panels, 13 Plaintiffs’ allegations that Bosch had engaged in a bad faith discovery strategy, and Plaintiffs’ 14 assertion of spoliation. See id. 15 Judge Cousins did not specifically address the portion of Plaintiffs’ motion seeking 16 production of documents. See 6/17/20 Hrg. Tr. 17:18-20:8, ECF 128-1. After Judge Cousins 17 rendered his ruling, Plaintiffs’ counsel sought clarification, asking “What about the documents? I 18 mean, they haven’t produced – what about the motion for them to produce the documents?” Id. 19 20:14-16. Judge Cousins responded, “I’ve denied your motion. Thank you. We’re in recess.” Id. 20 20:17-18. 21 Plaintiffs seek relief from four aspects of Judge Cousins’ ruling, all related to Bosch’s 22 asserted failure to produce documents. 23 II. LEGAL STANDARD 24 A district court may refer nondispositive pretrial matters to a magistrate judge for 25 disposition. See 28 U.S.C. § 636(b)(1)(A). “When a pretrial matter not dispositive of a party’s 26 claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must 27 promptly conduct the required proceedings and, when appropriate, issue a written order stating the 1 days after being served with a copy.” Id. In this district, such an objection must be made as a 2 “Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge.” Civ. L.R. 72-2. 3 “A non-dispositive order entered by a magistrate must be deferred to unless it is ‘clearly 4 erroneous or contrary to law.’” Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th 5 Cir. 1991) (citing Fed. R. Civ. P. 72(a), 28 U.S.C. § 636(b)(1)(A)). “[T]he magistrate’s factual 6 determinations are reviewed for clear error, and the magistrate’s legal conclusions are reviewed to 7 determine whether they are contrary to law.” Perry v. Schwarzenegger, 268 F.R.D. 344, 348 8 (N.D. Cal. 2010). This standard is highly deferential – the district court “may not simply 9 substitute its judgment for that of the deciding court.” Grimes, 951 F.2d at 241. 10 III. DISCUSSION 11 Plaintiffs assert that four aspects of Judge Cousins’ ruling are contrary to law.
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 STEVE R. ROJAS and ANDREA N. Case No. 18-cv-05841-BLF ROJAS, on behalf of themselves and all 8 others similarly situated, ORDER GRANTING IN PART 9 Plaintiffs, PLAINTIFFS’ MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL 10 v. ORDER OF MAGISTRATE JUDGE COUSINS; AND REFERRING 11 BOSCH SOLAR ENERGY MATTER TO JUDGE COUSINS FOR CORPORATION, FURTHER PROCEEDINGS 12 Defendant. [Re: ECF 128] 13
14 15 16 Plaintiffs Steve R. Rojas and Andrea N. Rojas (“Plaintiffs”) sue Defendant Bosch Solar 17 Energy Corporation (“Bosch”) for breach of warranty and related claims arising out of alleged 18 defects in solar panels manufactured by Bosch. Before the Court is Plaintiffs’ motion for relief 19 from Magistrate Judge Nathanael M. Cousins’ nondispositive pretrial order denying Plaintiffs’ 20 motion to compel and for sanctions. See Mot. for Relief, ECF 128. The motion for relief, which 21 is opposed by Bosch, has been submitted for decision without oral argument. See Order, ECF 22 129; Opp., ECF 134. 23 For the reasons discussed below, Plaintiff’s motion for relief from Judge Cousins’ order is 24 GRANTED IN PART, and the matter is REFERRED to Judge Cousins for further proceedings. 25 I. BACKGROUND 26 On May 14, 2020, the parties filed a Discovery Letter Brief informing Judge Cousins of 27 multiple discovery disputes. See Discovery Letter Brief, ECF 98. The following day, Judge 1 schedule, and set a hearing for June 3, 2020. See Clerk’s Notice, ECF 99. Plaintiffs timely filed 2 their motion to compel and for sanctions on May 20, 2020. See Mot. to Compel and for Sanctions, 3 ECF 106. The Notice of Motion identified the relief sought as follows:
4 [A]n order compelling Defendant Bosch Solar Energy Corporation to do the following: 5 1. Produce the documents described in Plaintiffs’ First Request for Production of 6 Documents and Third Request for Production of Documents (the “Document Requests”) in the manner described in the Proposed Order submitted herewith. 7 2. Provide amended, responsive responses to Plaintiffs’ First Set of Interrogatories 8 and Second Set of Interrogatories in the manner described in the Proposed Order submitted herewith. 9 3. Produce solar panels for inspection pursuant to Plaintiffs’ Second Request for 10 Production of Documents and to preserve the solar panels until inspection can be accomplished, in the manner described in the Proposed Order submitted herewith. 11 4. To not destroy, recycle or otherwise dispose of Bosch solar panels, model 12 number c-SIM 60 NA30119, (“NA30119 panels”) that are currently being stored or which may hereafter be de-installed, without a Court order or stipulation of the 13 parties.
14 5. To store all NA30119 panels pending inspection.
15 6. To return to California for inspection and testing the approximately one hundred NA30119 panels which were previously in California after de-installation but 16 which were removed to Arkansas by Bosch; Plaintiffs request that the Court order Bosch to ship said panels to Arnold Rodio of Evaluation and Remediation Services 17 located at 43141 Business Center Parkway, Suite #202, Lancaster, CA 93535. 18 See id. at 1. Plaintiffs also sought sanctions against Bosch and leave to file a motion for 19 evidentiary preclusion based on spoliation of evidence. See id. at 1-2. 20 After completion of briefing on the motion, Judge Cousins heard oral argument on June 3, 21 2020. See Minute Entry, ECF 114. Judge Cousins observed at the outset that the most urgent 22 issues raised by Plaintiffs’ motion appeared to be those relating to inspection and retention of the 23 solar panels. See 6/3/20 Hrg. Tr. 4:9-6:12, ECF 117. After hearing from both sides on those 24 issues, Judge Cousins directed the parties to meet and confer on an inspection and retention 25 protocol and he continued the hearing for two weeks. See id. 20:15-21:19. Judge Cousins 26 deferred oral argument on the remaining issues raised in Plaintiffs’ motion. See id. 21:15-17. 27 Judge Cousins held a further hearing on June 17, 2020. See Minute Entry, ECF 121. At 1 inspection and retention protocol. See 6/17/20 Hrg. Tr. 3:3-25, ECF 128-1. Judge Cousins 2 suggested continuing the hearing for another week to allow further meet and confer on the 3 protocol. See id. 4:12-21. However, when Plaintiffs’ counsel requested that oral argument 4 proceed, Judge Cousins agreed to hear argument on the remaining issues raised by Plaintiffs’ 5 motion. See id. 5:21-6:9. Judge Cousins indicated that he would hear from Plaintiffs’ counsel 6 first, and then from Bosch’s counsel. See id. 6:8-9. Plaintiffs’ counsel spoke at length, focusing 7 primarily on the spoliation and sanctions aspects of the motion and touching only briefly on 8 Bosch’s document production. See id. 6:10-15:17. Bosch’s counsel responded, also focusing on 9 spoliation and sanctions. See id. 15:22-17:17. Judge Cousins then stated his ruling on the record, 10 denying Plaintiffs’ motion to compel and for sanctions with the caveat that the parties should keep 11 working on the inspection and retention protocol. See id. 17:18-20:8. Judge Cousins spoke for 12 several minutes, addressing issues relating to the inspection and retention of the solar panels, 13 Plaintiffs’ allegations that Bosch had engaged in a bad faith discovery strategy, and Plaintiffs’ 14 assertion of spoliation. See id. 15 Judge Cousins did not specifically address the portion of Plaintiffs’ motion seeking 16 production of documents. See 6/17/20 Hrg. Tr. 17:18-20:8, ECF 128-1. After Judge Cousins 17 rendered his ruling, Plaintiffs’ counsel sought clarification, asking “What about the documents? I 18 mean, they haven’t produced – what about the motion for them to produce the documents?” Id. 19 20:14-16. Judge Cousins responded, “I’ve denied your motion. Thank you. We’re in recess.” Id. 20 20:17-18. 21 Plaintiffs seek relief from four aspects of Judge Cousins’ ruling, all related to Bosch’s 22 asserted failure to produce documents. 23 II. LEGAL STANDARD 24 A district court may refer nondispositive pretrial matters to a magistrate judge for 25 disposition. See 28 U.S.C. § 636(b)(1)(A). “When a pretrial matter not dispositive of a party’s 26 claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must 27 promptly conduct the required proceedings and, when appropriate, issue a written order stating the 1 days after being served with a copy.” Id. In this district, such an objection must be made as a 2 “Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge.” Civ. L.R. 72-2. 3 “A non-dispositive order entered by a magistrate must be deferred to unless it is ‘clearly 4 erroneous or contrary to law.’” Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th 5 Cir. 1991) (citing Fed. R. Civ. P. 72(a), 28 U.S.C. § 636(b)(1)(A)). “[T]he magistrate’s factual 6 determinations are reviewed for clear error, and the magistrate’s legal conclusions are reviewed to 7 determine whether they are contrary to law.” Perry v. Schwarzenegger, 268 F.R.D. 344, 348 8 (N.D. Cal. 2010). This standard is highly deferential – the district court “may not simply 9 substitute its judgment for that of the deciding court.” Grimes, 951 F.2d at 241. 10 III. DISCUSSION 11 Plaintiffs assert that four aspects of Judge Cousins’ ruling are contrary to law. First, 12 Plaintiffs argue that the ruling “fails to properly consider or apply the requirements of Rule 34,” 13 which “permits requests for production of documents within a responding party’s ‘possession, 14 custody, or control.’” Mot. for Relief at 3, ECF 128. Second, they contend that the ruling “fails to 15 properly consider or apply the provisions of Rules 26 and 34 in denying Plaintiffs’ requests that 16 the Court order Bosch’s general objections overruled and the corresponding conditional language 17 withdrawn.” Id. at 4. Third, Plaintiffs claim that Judge Cousins’ ruling “fails to properly consider 18 and apply the requirements of Rules 34 and 26 and the relevant Ninth Circuit test concerning 19 waiver of privilege objections when a timely privilege log is not produced.” Id. at 5. Fourth, 20 Plaintiffs argue that the ruling “fails to properly consider or apply Rule 37 with respect to 21 Plaintiffs’ request for discovery sanctions” based on Bosch’s failure to produce documents. Id. 22 “A decision may be contrary to law if it fails to apply or misapplies relevant statutes, case 23 law, or rules of procedure.” United States v. Cathcart, No. C 07-4762 PJH, 2009 WL 1764642, at 24 *2 (N.D. Cal. June 18, 2009). Here, the Court cannot determine whether Judge Cousins failed to 25 apply, or misapplied, the relevant legal standards to the four issues identified above, because 26 Judge Cousins did not articulate his reasons for denying those aspects of Plaintiffs’ motion to 27 compel and for sanctions. Absent explanation for Judge Cousins’ ruling, it cannot be 1 Procedure 72(a) state that “[t]he rule calls for a written order of the magistrate’s disposition to 2 || preserve the record and facilitate review.” Fed. R. Civ. P. 72, Advisory Committee Notes (1983), 3 || 97 F.R.D. 165, 228. While “[a]n oral order read into the record by the magistrate will satisfy this 4 || requirement,” see id., some reasoned decision clearly is required. Accordingly, the Court will 5 refer the matter back to Judge Cousins so that he may provide his reasons for denying Plaintiffs’ 6 || motion to compel production of documents and sanctions relating to the asserted non-production. 7 || Plaintiffs thereafter may file a renewed motion for relief from Judge Cousins’ ruling, if 8 appropriate. 9 The Court observes that in opposing Plaintiffs’ current motion for relief, Bosch argues that 10 || Plaintiffs have failed to show that Judge Cousins’ ruling is clearly erroneous. “The clear error 11 standard allows the court to overturn a magistrate’s factual determinations only if the court reaches 12 a definite and firm conviction that a mistake has been committed.” Perry v. Schwarzenegger, 268 13 F.R.D, 344, 348 (N.D. Cal. 2010) (quotation marks and citation omitted). Bosch’s argument is 14 || inapposite, because Plaintiffs have not challenged Judge Cousins’ ruling as clearly erroneous. 15 Their motion is expressly limited to challenging the ruling as contrary to law. 16 || IV. ORDER 3 17 (1) Plaintiffs’ motion for relief from Judge Cousins’ nondispositive pretrial order S 18 is GRANTED IN PART, in that the matter is REFERRED back to Judge Cousins 19 so that he may articulate the reasons for his ruling; and 20 (2) This order terminates ECF 128. 21 22 || Dated: July 20, 2020 han hom hw omen) BETH LABSON FREEMAN 24 United States District Judge 25 26 27 28