Jackson v. Cnty. of Bexar
Jackson v. Cnty. of Bexar
2009 WL 10699965 (W.D. Tex. 2009)
October 1, 2009

Primomo, John W.,  United States Magistrate Judge

Possession Custody Control
Proportionality
Failure to Produce
Initial Disclosures
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Summary
The court ordered the plaintiff to provide a more complete verified answer to Interrogatory 13, as well as verified responses to Interrogatory Nos. 14, 17, 18, 19 and 20, Requests for Production Nos. 7, 8, 9, 10, 14, and 16. The plaintiff was also ordered to produce all documents in her possession, custody, or control that may be used to support her claims or defenses, including ESI, in an electronic format.
Julia Ann JACKSON, Erica Bernal, and Martin Martinez, Plaintiffs,
v.
The COUNTY OF BEXAR, Defendant
Civ. No. SA–07–CA–928–FB
United States District Court, W.D. Texas, San Antonio Division
Signed October 01, 2009

Counsel

Alexandra C. Warren, Cuneo Gilbert & LaDuca LLP, Alexandria, VA, Charles J. LaDuca, Cuneo Gilbert & LaDuca, LLP, Gary E. Mason, Nicholas A. Migliaccio, Mason LLP, Washington, DC, Elmer Robert Keach, III, Law Offices of Elmer Robert Keach, III, PC, Amsterdam, NY, James C. Harrington, Texas Civil Rights Project, Austin, TX, Kerrisa Chelkowski, Sam Howard Lock, Law Office of Kerrisa Chelkowski, San Antonio, TX, for Plaintiffs.
Laurence S. Kurth, Lori W. Hanson, Clark, Thomas & Winters, P.C., Sue Ann Gregory, Bexar County District Attorney's Office, San Antonio, TX, William P. Johnson, Clark Thomas & Winters, PC, Austin, TX, for Defendant.
Primomo, John W., United States Magistrate Judge

ORDER

*1 Before the Court is defendant Bexar County's Motion to Compel Supplemental Discovery Responses from plaintiffs Julia Ann Jackson, Erica Bernal, and Martin Martinez. (Docket nos. 71, 78, 80). Plaintiffs have responded. (Docket no. 77). Upon consideration of the motion, response, and applicable law, the Court finds the motion should be GRANTED IN PART and DENIED IN PART.
BACKGROUND
Plaintiffs brought this suit, alleging they were wrongfully subjected to strip searches at the Bexar County Adult Detention Center while being detained for “misdemeanors and/or violation offenses.” Docket no. 46, Plaintiffs' Amended Class Action Complaint, pg. 2. Plaintiffs allege these searches violated their rights against unreasonable searches under the Fourth Amendment of the United States Constitution, and that as a direct and proximate result of these searches, they have suffered, and will continue to suffer, psychological pain, humiliation, suffering and mental anguish. Id. at pgs. 10–11. In addition to a permanent injunction enjoining the searches complained of, plaintiffs seek compensatory damages and attorneys' fees. Id. at pg. 14.
Defendant served its First Set of Interrogatories and First Set of Requests for Production directed to Julia Jackson on June 24, 2008, and served Amended Notices of Video Duces Tecum of Erica Bernal and Martin Martinez on June 19, 2008. Docket no. 77, Plaintiffs' Response to Defendant's Motion to Compel, pg. 1–2. Although some discovery was exchanged and the plaintiffs were deposed, defendant argues that no supplemental responses to discovery has been received. Defendant now moves to compel responses to its discovery requests.
STANDARD OF REVIEW
“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense...” FED.R.CIV.P. 26(b)(1). Upon a showing of good cause, the party may obtain a court order to discover any matter relevant to the subject matter involved in the action. Id. “Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id.“Courts construe discovery rules liberally to serve the purposes of discovery: providing the parties with information essential to the proper litigation of all relevant facts, eliminating surprise, and promoting settlement.” Ferko v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 132 (E.D.Tex. 2003).
The party resisting discovery bears the burden of establishing lack of relevance, specifically by demonstrating the requested discovery either does not come within the broad scope of relevance under Rule 26(b)(1) or is of such marginal relevance the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Sec. & Exch. Comm'n v. Brady, 238 F.R.D. 429, 435 (N.D. Tex. 2006). The rules of broad discovery available under Rule 26 apply also to document requests under Rule 34. See Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (D.Kan. 2003).
DISCUSSION
*2 Defendant initially moves to compel supplemental responses to duces tecum requests to Martin Martinez and Erica Bernal with respect to Request No. 8, pertaining to employment history, Request No. 9 pertaining to salary, wages and overtime pay, and Request No. 10, pertaining to governmental aid received. Although plaintiffs objected to these requests on the grounds of relevance, broadness, and harassment, they nevertheless responded that Martinez had no documents regarding financial assistance, and “to the extent that [he] has documents responsive to requests 8 and 9, [he would] produce them.” Docket no. 71, Defendant's Motion to Compel, Exhibit B, letter to Ms. Hanson from Alexandra Warren, dated May 20, 2009. Plaintiffs now represent to this Court that Martinez has no documents in his possession responsive to Requests Nos. 8, 9 or 10.
Similarly, with respect to Erica Bernal, plaintiffs produced a medicaid form in response to Request no. 10 and further, stated that Ms. Bernal “has no documents in her possession which are responsive to requests 8 and 9.” Additionally, plaintiffs represent to this Court that “[t]his production constitutes all documents Ms. Bernal has in her possession which are responsive to the subject duces tecum. Thus, Plaintiff has already provided full and complete responses to Defendant's duces tecum requests directed to Mr. Martinez and Ms. Bernal.”
Although plaintiffs initially objected to these requests on the grounds that they were irrelevant, overbroad, and harassing, plaintiffs failed to demonstrate the requested discovery either does not come within the broad scope of relevance under Rule 26(b)(1) or is of such marginal relevance the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Brady, 238 F.R.D. at 435. Here plaintiffs have alleged that as a direct and proximate result of the strip searches conducted, plaintiffs have suffered and will continue to suffer psychological pain, humiliation, suffering and mental anguish. Docket no. 46, Plaintiffs' Amended Complaint, pg. 9. Plaintiffs further allege that their claims are typical of the claims of the members of the class, that they and all members of the class sustained these damages because of defendant's conduct, and that the harms suffered by plaintiffs are typical of the harms suffered by all class members. Id. at pg. 5.
An award of compensatory damages for mental injury in a case alleging violation of civil or constitutional rights must “be supported by competent evidence concerning the injury.” Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978); Brady v. Fort Bend Cty., et al., 145 F.3d 691, 718 (5th Cir. 1998). Competent evidence of mental anguish must pertain to the nature and extent of the injury and must show actual manifestation of the mental anguish. Brady, 145 F.3d at 718 (citing Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 938–40 (5th Cir. 1978)). A claimant's testimony alone may not be sufficient to satisfy the necessary evidentiary burden regarding mental anguish, which is typically manifested through symptoms such as “sleeplessness, anxiety, stress, depression, marital strain, humiliation, emotional distress, loss of self esteem, excessive fatigue, or a nervous breakdown.” See Patterson, 90 F.3d at 938 (quoting EEOC POLICY GUIDANCE NO. 915.002 § II(A)(2), at 10–12 (July 14, 1992); see alsoBrady, 145 F.3d at 718–20. A plaintiff's failure to present sufficient evidence of mental anguish must result in an award of only nominal damages. Carey, 435 U.S. at 266–67; Brady, 145 F.3d at 718.
In view of plaintiffs' claims that they have suffered and will continue to suffer psychological pain, humiliation, suffering and mental anguish, information pertaining to plaintiffs' general ability to work, including plaintiffs' work history, would appear to be reasonably calculated to lead to the discovery of admissible evidence. This information might be relevant to show, for example, the extent of emotional harm caused by the violation. SeePatterson, 90 F.3d at 938. Similarly, information pertaining to governmental aid plaintiff may have received might also be relevant to show that plaintiff was unable to work for any number of reasons. FED.R.CIV.P. 26(b)(1). Further, many of the symptoms of emotional distress are also readily attributable to other factors, such as loss of employment or general financial hardships and as such, the requested information is relevant to the defense. Id. Moreover, defendants have limited their request for information pertaining to employment, salary, and governmental aid to November 1, 2005 to the present. This time frame does not appear to be overbroad given that Martinez's claims arise from an incident that occurred on or about November 27, 2005, and Bernal's claims arise from an incidence that occurred on or about February 27, 2007. See Docket no. 71, exh. 3(Bernal's Response to Duces Tecum) and exh. 4 (Martinez's Response to Duces Tecum).
*3 Although plaintiffs' represent, notwithstanding their objections, that they have provided full and complete responses to these requests, it appears, based on their depositions, that both Martinez and Bernal were employed during the time frame in question and therefore, should either have records of their employment or the ability to obtain them. FED.R.CIV.P. 34(a) (a party is required to produce documents not only within his possession but also within his custody, or control); see also 8A C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 22.10(2005)(responding party has obligation to produce documents it has a legal right to control). Further, having responded to these requests, plaintiffs are now required to supplement their responses in a timely manner. See FED.R.CIV.P. 26(e).
Accordingly, defendant's motion to compel responses to Duces Tecum Request Nos. 8, 9, and 10 to Martin Martinez and Erica Bernal is GRANTED. To the extent plaintiffs, Martinez and Bernal, have merely produced documents responsive to Request Nos. 8, 9 and 10, within their physical possession, they are ORDERED to produce all documents responsive to the above requests within their “possession, custody or control,” within ten (10) days from the date of this order.
Defendant also seeks to compel supplemental verified responses to defendant's First Set of Interrogatories Nos. 10, 11, 13, 14, 17, 18, 19 and 20, and supplemental responses to defendant's First Requests for Production Nos. 7, 8, 14, and 16 from Julia Jackson.
In Interrogatory No. 10, defendant requests the identity by name, address and date and type of care of any and all medical care or mental health providers who have seen, examined and/or treated plaintiff from 2000 to present. Similarly, Request for Production No. 14 seeks a medical record authorization permitting defendant to review any relevant medical or mental health records concerning plaintiff's physical and or mental health condition between 1998 to the present. Plaintiff objected to these requests on the grounds that they are overbroad and irrelevant. Specifically, plaintiff maintains that any information pertaining to medical treatment plaintiff received prior to the incident in question is irrelevant, and further, that because she did not seek medical treatment as a result of the incident, information pertaining to any medical treatment received after the incident in question is likewise irrelevant.
Nevertheless, plaintiff filed suit based on an incident that occurred on or about April 14, 2006, and alleged that “as a direct and proximate result of the unlawful strip search conducted,” plaintiff suffered or will suffer psychological pain, humiliation, suffering and mental anguish. Docket no. 46, Plaintiffs' Amended Class Action Complaint, pg. 10. While corroborating testimony and medical evidence is not required in every case involving compensatory damages, plaintiffs seeking damages for emotional harm resulting from a deprivation of a constitutional right must prove an actual injury and the nature and extent of the injury, along with a sufficient causal connection between the violation and the alleged injury. See Patterson, 90 F.3d at 938. Thus, while information regarding plaintiff's mental and medical health history, past, present and future, may not support or be relevant to plaintiff's claims, the information may nevertheless be relevant to the defense. FED.R.CIV.P. 26(b)(1). However, the Court agrees that defendant's request for production, seeking information pertaining to plaintiff's physical and mental health condition from 1998 to the present is overbroad and should be limited to the same time frame as that identified by Interrogatory No. 10.
*4 Accordingly, defendant's motion to compel is GRANTED as to Interrogatory No. 10 and GRANTED IN PART as to Request for Production No. 14. Plaintiff is ORDERED to provide a complete verified answer to Interrogatory No. 10, and a HIPAA compliant authorization form for the years 2000 to the present, within ten (10) days from the date of this order.
In Interrogatory No. 11, defendant requests a list of each and every element of damages plaintiff is claiming to have suffered as a result of the allegations in this lawsuit, and the dollar value which plaintiff is seeking. Plaintiff responds that she is unable to “fully calculate her damages, or the damages for the putative class,” and states only that she “seeks, for herself and on behalf of the putative class, economic and non-economic damages as provided in 42 U.S.C. § 1983 et seq., punitive damages, attorneys' fees and costs, and pre-judgment and post-judgment interest.”
Federal Rule of Civil Procedure 26(a)(1)(A)(iii) provides that “a party must, without awaiting a discovery request, provide to the other parties: ... (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered.” FED.R.CIV.P. 26(a)(1)(A)(iii). Rule 26 further provides that initial disclosures must be made at or within 14 days after the parties' Rule 26(f) conference. FED.R.CIV.P. 26(a)(1)(C). Additionally, “a party must make its initial disclosures based on the information then reasonably available to it” and “is not excused from making its disclosures because it has not fully investigated the case.” FED.R.CIV.P.26(a)(1)(E).
Plaintiff filed this suit approximately two years ago and the parties submitted their scheduling recommendations on February 15, 2008. See Docket no. 29, Scheduling Recommendation. Although Rule 26(a)(1)(C) permits a party to object during the Rule 26(f) conference that initial disclosures are not appropriate, no objection appears to have been raised and presented to the Court. Therefore, initial disclosures were due well before plaintiff was served with discovery in this case. Although defendant seeks to compel this information pursuant to discovery, the requested information should have been initially disclosed to the defendant pursuant to Rule 26.
Accordingly, defendant's motion to compel is GRANTED; plaintiff is ORDERED to provide a verified answer to Interrogatory No. 11 within ten (10) days from the date of this order.
Interrogatory No. 13 requests information pertaining to compensation paid by unemployment, workers compensation or income received from child support, government aid, social security, disability or other sources. Plaintiff objects that this request is overbroad and irrelevant and further, states that she is not seeking to recover damages in the form of lost wages. Nevertheless, plaintiff responds that she received food stamps, received Medicaid from 1994–1995, and received life insurance benefits after her husband died. Further, in a supplemental response, plaintiff stated she was still unemployed, began receiving unemployment benefits in 2003, received food stamps for four to six months while she was pregnant, and is still on Medicaid which she began receiving when she was pregnant.
*5 For reasons previously set forth in response to plaintiffs' objections to requests for similar information from plaintiffs Bernal and Martinez, the Court overrules plaintiff's objection as to relevance. However, the Court agrees that Interrogatory No. 13, which does not specify a time frame, is overbroad in scope. In light of the fact that plaintiff has produced documents pertaining to 1994–1995 and 2003, the Court limits the time frame of this request to 1994 to the present. Accordingly, the Court GRANTS IN PARTdefendant's motion to compel and ORDERS plaintiff to provide a more complete verified answer to Interrogatory 13 within ten (10) days from the date of this order.
In Interrogatory Nos. 14, 17, 18, 19 and 20, defendant seeks the following: trial exhibits; the identification of persons plaintiff discussed this lawsuit with; statements or admissions by defendant or its employees; documents, witnesses or evidence supporting plaintiff's allegations; and the identification of persons who have provided information or documents before case was filed. Plaintiff responded that these requests are premature, or seek plaintiff's “trial proof and strategy, and implicates Plaintiff's work product and trial strategy.”
The Court notes initially that with respect to Interrogatory No. 17, plaintiff states that she has provided the identification of persons with whom she discussed this case and in a supplemental response, provided contact information for plaintiff's parents that was initially omitted. However, to the extent plaintiff has not provided a verified supplemental answer, she is ORDERED to do so within ten (10) days from the date of this order.
Although plaintiff objects to a number of defendant's requests for information, the disclosure of much of this information is controlled by Rule 26(a)(1)(A), which provides the following:
A party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.
FED.R.CIV.P. 26(a)(1)(A)(emphasis added). Here, Interrogatory No. 14 seeks the identification of each photograph, movie, video, sound recording, demonstrative exhibit, medical chart, model, diagram, electronic image or illustration which in any manner whatsoever pertains to plaintiff's claim for damages that she will offer into evidence and/or use before the jury in the trial of this lawsuit. Although plaintiff objected that this interrogatory was premature and seeks plaintiff's trial strategy, to the extent the requested information constitutes “tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses,” it should have been disclosed pursuant to Rule 26. Id.(emphasis added). Accordingly, plaintiff's objections to Interrogatory No. 14 are without merit.
Similarly, Interrogatory No. 18 seeks the identification of any statements, or admissions made by Bexar County, the Bexar County Sheriff's Department, or employees of Defendant Bexar County regarding any of plaintiff's allegations in this lawsuit. Plaintiff objects that this Interrogatory is “vague as to the meaning of the term “statements”, and seeks information protected from disclosure by the attorney-client privilege and the work-product doctrine, especially as it relates to the investigatory efforts of class counsel.” However, Rule 26 requires a party claiming a privilege to “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED.R.CIV.P. 26(b)(5)(A).
*6 Here, the Court has not been provided with any information which would enable it to assess plaintiff's claims of privilege. Further, plaintiff's objection that the meaning of the word “statement” is “vague” is also without merit. Thus, to the extent the requested information may be used to support plaintiff's claims or defenses, plaintiff is required to disclose “the name and, if known, the address and telephone number of each individual likely to have discoverable information [including information regarding statements or admissions]—along with the subjects of that information.” FED.R.CIV.P.26(a)(1)(A).
Interrogatory No. 19 seeks the identification of any and all documents, witnesses or evidence that plaintiff contends support any of the allegations made by her in this lawsuit. Although plaintiff objects to this interrogatory on the grounds that it seeks “disclosure of Plaintiff's trial proof and strategy, as well as information protected from disclosure by the work-product doctrine, for reasons previously set forth, the Court is unable to assess plaintiff's claims of privilege. Further, notwithstanding plaintiff's objection that this request seeks disclosure of plaintiff's “trial proof and strategy,” this information should have been disclosed without the necessity of a discovery request. FED.R.CIV.P. 26(a)(1)(A).
Interrogatory No. 20 also seeks the identification by name and address of all inmates, employees, staff, agents or former employees, staff or agents of Bexar County who have provided information, interviews and/or documents to Plaintiff before this case was filed, along with a description of the information provided, the person it was provided to, and the date any interview took place. Plaintiff again objects that this interrogatory seeks information protected from disclosure by the attorney-client privilege and work-product doctrine, especially as it relates to the investigatory efforts of class counsel. The party asserting the privilege has the burden of establishing its applicability. In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2nd Cir. 2007). In the present case, the Court is unable to assess plaintiff's claims of privilege as plaintiff has not described nor otherwise identified any information she claims to have that is privileged. FED.R.CIV.P. 26(b)(5)(A). Accordingly, plaintiff's objections to Interrogatory Nos. 14, 17, 18, 19 and 20 are without merit.
Plaintiff is therefore ORDERED to provide:
i. the identification of each photograph, movie, video, sound recording, demonstrative exhibit, medical chart, model, diagram, electronic image or illustration that plaintiff has in her “possession, custody, or control and may use to support [plaintiffs'] claims or defenses” (Request No. 14);
ii. the name and, if known, the address and telephone number of each individual likely to have discoverable information pertaining to any statements made by Bexar County, the Bexar County Sheriff's Department, or employees of Defendant Bexar County, along with the subjects of that information—that the disclosing party may use to support its claims or defenses (Request No. 18);
iii. all documents and tangible things [evidence] that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, as well as the name and, if known, the address and telephone number of each individual likely to have discoverable information [witnesses] along with the subjects of that information—that the disclosing party may use to support its claims or defenses(Request No. 19); and
*7 iv. the name and, if known, the address and telephone number of all inmates, employees, staff, agents or former employees, staff or agents of Bexar County who have provided information, interviews and /or documents [i.e. individual likely to have discoverable information] to plaintiff before this case was filed, along with the subjects of that information—that the disclosing party may use to support its claims or defenses (Request No. 20).
Finally, although some of the requested information was provided, defendant complains that plaintiff did not produce a verified response. SeeFED.R.CIV.P.33(b)(3)(providing that an interrogatory, if not objected to, must be answered in writing under oath). To the extent plaintiff has responded but has not done so under oath, she is ORDERED to produced verified responses within ten (10) days from the date of this order.
Defendant's Request Nos. 7 and 8 seek all non-privileged documentation referencing Jackson's employment, salary, wages and/or overtime pay from November 15, 2005 to the present. Jackson objected that these requests seek information that is neither relevant nor likely to lead to the discovery of admissible evidence. Nevertheless, plaintiff produced payment stubs reflecting her employment and stated, in correspondence to the defendant, that she had no other documents in her possession; however, plaintiff is required to produce all documents in her possession, custody or control. See FED.R.CIV.P. 34(a)(1); see 8A C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 22.10(2005)(responding party has obligation to produce documents it has a legal right to control). For reasons previously set forth in response to plaintiffs' objections to requests for similar information from plaintiffs Bernal and Martinez, the Court overrules plaintiff's objection as to relevance. To the extent she has not done so, plaintiff is ORDERED to produce all documents responsive to Requests Nos. 8 and 9 in her possession, custody or control no later than ten (10) days from the date of this order. Accordingly, defendant's motion to compel is GRANTED as to Requests for Production Nos. 8 and 9.
Defendant's Request for Production No. 16 seeks all attorney/client contracts between Jackson and any of her attorneys. Defendant contends that the terms on which the attorneys were hired is relevant to the class certification motion, as well as the issue of attorneys' fees. Plaintiff argues that defendant's request for any contracts with attorneys related to other lawsuits to which plaintiff was a party is overly broad and irrelevant, and further, that the retainer agreement(s) between Plaintiff and Class Counsel is protected from disclosure by the attorney-client privilege.
The Court notes initially, that in response to defendant's Interrogatory No. 16, seeking information pertaining to all civil and/or criminal legal proceedings to which plaintiff had ever been a party, plaintiff was less than forthcoming. See Docket no. 71, Plaintiff's Response to Defendant's First Set of Interrogatories to Plaintiff, Julia Ann Jackson, pg. 8, No. 16. It is unclear from plaintiff's response to this related interrogatory whether plaintiff has been involved in a prior civil suit or not. Further, although plaintiff objects that Request for Production No. 16, seeking all contracts between plaintiff and her attorneys, is overly broad and seeks information that is not relevant, plaintiff, as the party resisting discovery, bears the burden of establishing lack of relevance, and must demonstrate the requested discovery either does not come within the broad scope of relevance under Rule 26(b)(1) or is of such marginal relevance the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure. Brady, 238 F.R.D. at 435. Here, plaintiff has failed to cite to any authority and makes little or no attempt to demonstrate the requested discovery is irrelevant. As plaintiff has failed to meet her burden, her objections that contracts between plaintiff and her present attorneys pertaining to other cases are irrelevant and over broad are overruled. Id.
*8 Similarly, although plaintiff maintains that her contract with her attorneys in the present case is not relevant and subject to the attorney client privilege, she mistakenly shifts her burden of establishing lack of relevance to defendant by arguing that “defendant has failed to articulate what possible relevance [plaintiff's] retainer agreement may have in this case.” Nevertheless, it is plaintiff's burden to establish lack of relevance and her failure to sustain this burden defeats her objection. Moreover, although plaintiff contends that her retainer agreement is protected from disclosure by the attorney client privilege, this privilege generally protects confidential communication between the client and attorney and extends to the attorney fee arrangements only when the fee agreement is “connected inextricably with a privileged communication.” See In re Grand Jury Subpoena for Attorney Representing Criminal Defendant, 926 F.2d 1423, (5th Cir. 1991). Plaintiff's bald assertion that the retainer agreement is privileged is insufficient to establish plaintiff's entitlement to the privilege. Here, plaintiff is requesting attorney's fees; therefore, her contract with her attorneys reflecting what those fees would be is reasonably calculated to lead to the discovery of admissible evidence. FED.R.CIV.P. 26(b)(1). Accordingly, defendant's motion to compel is GRANTED; plaintiff is ORDERED to produce all documents responsive to Request for Production No. 16 that are within her possession, custody or control within ten (10) days from the date of this order.
CONCLUSION
IT IS ORDERED that the Defendant's Motion to Compel Plaintiffs' Response to Discovery is GRANTED IN PART. Plaintiffs are compelled to provide formal written responses and supplemental production response to Duces Tecum request 8, 9 and 10 to Erica Bernal and Martin Martinez.
Plaintiffs are further compelled to provide complete answers and produce all documents responsive to Interrogatories 10, 11, 14, 17, 18, 19 and 20, and Requests for Production 7, 8, and 16, to Julia Jackson. Additionally, plaintiffs are compelled to provide complete answers and produce all documents responsive to Interrogatory No. 13, as modified, and Request for Production No. 14, as modified, to Julia Jackson. Plaintiffs shall provide amended, verified answers to the interrogatories and amended responses to these requests for production, along with relevant documents, within ten (10) days from the date of this Order.
It is so ORDERED.