Lamya Brewster, et al. v. City of Los Angeles, et al. Case No. ED CV 14-2257-JGB (SPx) United States District Court, C.D. California Filed July 15, 2019 Counsel Kimberly Carter, Deputy Clerk, No. Attorneys Present for Plaintiff: None Present None, Court Reporter / Recorder, None, Tape No., Attorneys Present for Defendant: None Present Pym, Sheri, United States Magistrate Judge Proceedings: (In Chambers) Order Denying Plaintiffs' Motion to Compel [145] I. INTRODUCTION *1 On June 17, 2019, plaintiffs Lamya Brewster, Elias Arizmendi, and Julian Vigil filed a motion to compel non-party Archer's Vineland Service (“AVS”) to produce electronic text data in response to plaintiffs' subpoena duces tecum. The motion is supported and opposed in a Joint Stipulation (“JS”). Plaintiffs' arguments are supported by the declarations of Donald W. Cook (“Donald Decl.”) and Dwight W. Cook (“Dwight Decl.”), and exhibits thereto. AVS's arguments are supported by the declarations of Russ Milhoan (“6/12/19 Milhoan Decl.”) and Lawrence M. Boesch (“Boesch Decl.”), and exhibits thereto. On June 25, 2019, AVS filed a supplemental memorandum, and plaintiffs filed supplemental declarations of Donald W. Cook (“Donald Suppl. Decl”) and Dwight W. Cook (“Dwight Suppl. Decl”). The court has considered the papers submitted and finds a hearing on the motion would not materially assist the court. Accordingly, the court previously took the July 9, 2019 hearing off calendar. The court now denies plaintiffs' motion for the reasons that follow. II. BACKGROUND The instant motion concerns plaintiffs' May 3, 2019 subpoena to AVS, an Official Police Garage (“OPG”). The subpoena requests documents and data concerning the tow and storage of plaintiff Vigil's car, namely: All WRITINGS (as defined by Cal. Ev. Code § 250) re the seizure, storage and release of 2014 Mercedes license #7LXT463, impounded 5/30/17, Log #15-77733. This includes, but is not limited to, any electronically stored data, Laserfiche stored records, VIIC data, scanned documents. JS, Ex. A. On May 6, 2019, plaintiffs informed AVS they had included the incorrect license plate number in the subpoena. Boesch Decl., Ex. F ¶¶ 5-6. In response to the subpoena as modified, on May 20, 2019, AVS produced nine pages of documents with certain redactions and a May 7, 2019 declaration from its custodian of records, Russ Milhoan. Boesch Decl. ¶ 5, Exs. F and G. Milhoan's May 7 declaration stated the only responsive documents in its possession, custody, or control were the produced nine pages. Id., Ex. F ¶ 8. Plaintiffs informed AVS that the production did not comply with the subpoena. Boesch Decl., Ex. I. On May 22, 2019, AVS supplemented the production with documents with fewer redactions. Id. ¶ 9, Ex. H. Plaintiffs indicated the supplemental production still did not comply with the subpoena because of the redactions and the omission of electronically recorded data in its original form. Id., Ex. I. On May 24, 2019, AVS asked plaintiffs in what electronic format they would accept the produced documents. Id. ¶ 11, Ex. J. AVS also asked why plaintiffs needed an unredacted version of the documents. Id. Plaintiffs responded the AVS electronic data should be created and stored as electronic text data, and is exportable as such. Id., Ex. K. On May 28, 2019, AVS inadvertently included plaintiffs' counsel's assistant on an email thread that attached the unredacted documents. Id. ¶ 15. AVS requested plaintiffs' counsel destroy all copies of the email and its attachment but plaintiffs' counsel has not yet confirmed the same, nor did he respond to AVS's email request. Id., Ex. L.[1] *2 The parties thereafter met and conferred regarding the May 3, 2019 subpoena. Id. ¶¶ 16-19. After the court held an informal telephonic conference on May 31, 2019, plaintiffs served a new subpoena on AVS the same day. Id. ¶¶ 20-21, Ex. N. The subpoena requested testimony by an AVS agent and production of the following: Any WRITINGS (as defined by Cal. Evid. Code § 250) descsribing [sic] or regaring [sic] the TOPS program used by Archer's Vineland Service, Inc., to create and/or store data regarding vehicles towed and stored. This includes, but is not limited to, user manual(s). Id. The parties communicated via letters on June 5 and 6, 2019 regarding the subpoena and plaintiffs' request for “electronic text data.” Id. ¶¶ 22-23, Exs. O, P, and Q. AVS raised a number of issues with the May 31, 2019 subpoena. Id., Ex. O. Plaintiffs then informed AVS they intended to discuss the issues regarding the May 31, 2019 subpoena on the next day, June 7, 2019, during a prescheduled conference regarding a subpoena filed in a similar case. Id., Ex. P. AVS rejected this proposal, and refused to talk about the issues on such short notice. Id., Ex. Q. The May 31 subpoena is not at issue in this motion. III. DISCUSSION A. Plaintiffs Have Failed to Show the Electronic Text Data Currently Exists in a Form Accessible to AVS The subpoena at issue here calls for, inter alia, “any electronically stored data” containing the requested information. Rule 34 provides for parties to produce electronically stored information in their “possession, custody, or control.” For nonparties such as AVS, Rule 45 requires the production of electronically stored information “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 45(e)(1)(B). Plaintiffs argue AVS's computer system created electronic text data when it towed and stored plaintiff Vigil's vehicle. JS at 10. Eric Rose, the executive director of Official Police Garage, Los Angeles (“OPG-LA”), testified he could not speak for every OPG keeping their information in a computer system, but agreed some OPGs did do so. Donald Decl., Ex. D at 65-66. Plaintiffs rely on this deposition testimony to argue AVS has the electronic text data. JS at 10. Plaintiffs also note AVS's counsel stated during the court's May 31, 2019 telephonic conference that it uses the TOPS computer system, and two other OPGs have testified to using TOPS. Donald Decl. ¶¶ 2, 3. Plaintiffs researched the TOPS website and determined TOPS software is offered to police garages to manage the towing and storage of vehicles. Id. ¶ 4A. The software collects and stores electronic text data. Id. ¶ 4B. AVS points out the term “electronic text data” was not used in the subpoena and contends it was never defined during the parties' meet and confer discussions. JS at 11. AVS's general manager, Russ Milhoan, states he used the Tow Dawg system to generate a report on the subject tow in the subpoena. 6/12/19 Milhoan Decl. ¶ 5. This report gave no more details than what was already in the previously produced nine pages of documents. Id. ¶ 6. Including this report, Milhoan states the only documents in AVS's possession, custody or control that are responsive to the subpoena have already been produced to plaintiffs. Id. ¶ 8. Milhoan also states he cannot produce an electronic version of the report produced to plaintiffs. Id. ¶ 9. Milhoan states any additional documents are not reasonably accessible because AVS would have to hire an IT specialist to extract the data, and such data is not in its control. Id. ¶ 10. In short, AVS maintains it has produced the requested information in a usable form as it is ordinarily maintained and accessed by AVS. This appears to comply with Rule 45(e)(1)(B). *3 But plaintiffs argue AVS can and should do more to comply with the portion of the subpoena calling for electronically stored data. Dwight Cook states in his supplemental declaration that the Tow Dawg system is similar to the TOPS system, and captures and records electronic text data in a database. Dwight Suppl. Decl. ¶ 2. Dwight Cook also states the electronic text data is easily exportable and belongs to AVS, not Tow Dawg. Id. ¶¶ 3-4. Dwight Cook so declares not based on any personal experience with Tow Dawg, much less AVS's Tow Dawg system, but based on his Internet research and general expertise. Plaintiffs attempt to bolster their argument by pointing to the deposition of Eric Rose, OPG-LA's executive director. But Rose's deposition does not prove this data exists at AVS. Rose testified he could create an Excel spreadsheet, but the context in which he said this is unclear, and it is also unclear whether he was even referring to the same program at issue here. Boech Decl., Ex. D at 63. Rose also testified some OPGs kept information on whether vehicles went to lien sales or were sold at lien sales in a computer system. Id. at 65-66. This is not evidence this data exists specifically at AVS or that AVS has the ability to export electronic text data. Thus, on this record, plaintiffs have failed to show the data exists in an accessible format at AVS and may be exported. As this court discussed with the parties during the May 31, 2019 telephonic conference, without more evidence, the court sees no basis to compel AVS to turn over data that may or may not exist. The court cautioned plaintiffs to gather support for their assertions of this data's existence before bringing a formal motion, but plaintiffs failed to do so. Instead, plaintiffs took a step to gather such evidence by noticing a deposition (which is the subject of a separate pending motion), but then went ahead and filed this motion without waiting for the deposition. B. Requiring AVS to Extract the Requested Electronic Text Data Is Not Proportional to the Needs of This Case Given plaintiffs' failure to show AVS has not complied with Rule 45's requirements in responding to the subpoena, the court need not address the remaining arguments. Yet because the record indicates AVS may well be able to access the electronic data sought by hiring an outside expert, the court addresses the alternative arguments regarding burden and proportionality. Plaintiffs argue the electronic text data is proportional to their needs because the data includes vehicle owners' names and addresses and the amounts actually paid to recover a vehicle or the amount AVS was paid if the vehicle went to a lien sale. JS at 13-14. They argue the data is important because it can be searched, compiled, and used in mathematical formulas and to create lists, but the already-produced PDF files cannot be used in the same way. Id. at 14. Of course, as AVS points out, it has already produced all the information sought by the subpoena here, and given how scant that information is, there is no need for plaintiffs to be able to search and sort it electronically. See JS at 17. What is really at issue here, as discussed on the May 31 call, is whether AVS can produce such electronic data so that, if the class is certified, plaintiffs can obtain and sort such data for all class members. This is a legitimate inquiry. The question is whether it is proportional to the needs of the case to require AVS to assume what it contends would be a substantial burden to access such data when it maintains it currently cannot and, as discussed above, plaintiffs have not shown otherwise. *4 Rule 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Rule 45(e)(1)(D) governs a nonparty's duties in responding to a subpoena regarding inaccessible electronically stored information. The responding party must show the requested information is not reasonably accessible because of undue burden or cost. Fed. R. Civ. P. 45(e)(1)(D). After that showing is made, the court may still order discovery if the requesting party shows good cause. Id. As discussed, AVS has maintained the data sought is inaccessible to it, with a declaration stating no AVS staff member can produce an electronic version of the report containing the responsive information already produced here. 6/12/19 Milhoan Decl. ¶ 9. AVS further states it would have to hire an IT expert to extract the data from the Tow Dawg system, which is operated by an independent company. Id. ¶ 10. AVS argues plaintiffs should bear the burden of extracting data because AVS has no ability to extract the data. JS at 20. AVS also argues plaintiffs have not shown good cause pursuant to Rule 45(e)(1)(D) of the Federal Rules of Civil Procedure. Id. at 21. Plaintiffs argue specialized expertise is not needed to export the requested data, and if expertise is needed, such cost is modest. JS at 19; Dwight Suppl. Decl. ¶ 3. But as discussed above, plaintiffs offer nothing more than the declaration of Dwight Cook, who has no personal knowledge of the TOPS system, the Tow Dawg system, or AVS, to show this data is easily accessible. The true burden to access the data is unknown on this record. But at this point there is no basis to find the burden or cost would be insignificant, and plaintiffs have not shown good cause to require AVS to assume that burden. As discussed, AVS appears to have met its obligations to respond to the subpoena at issue in compliance with Rule 45(e)(1)(B). Plaintiffs legitimately seeks to know if it can obtain sortable electronic text data with this information, but it asks this court to compel AVS to hire an outside expert to access and export this data on very little showing. Given that the information actually called for in the subpoena has been produced, plaintiff has not shown good cause to require AVS to assume the burden of extracting data not currently accessible to it, nor would such a requirement be proportional to the needs of the case at this juncture. Should plaintiffs obtain evidence that AVS can in fact readily access the electronic data, or that the burden to do so would be minimal, the court is willing to revisit this decision. C. The Court Will Not Decide Whether the Data Is Privileged or If a Protective Order Is Necessary Plaintiffs additionally argue none of the electronic text data is privileged because the data concerns plaintiff Civil's vehicle. JS at 20. AVS argues 18 U.S.C. § 2721(a)(1) prohibits the release of the requested information. Id. at 21. Section 2721(a)(1) prohibits a state department of motor vehicles and any officer, employee, or contractor thereof from knowingly disclosing driver personal information. *5 The court need not discuss this issue in depth here because at this time it will not compel AVS to extract and produce the electronic text data. But the court does note it has previously discussed another OPG's reliance on § 2721(a)(1) as a reason for nondisclosure of driver information. See docket no. 86. As noted in that previous order, it was not clear whether the OPG qualified as a contractor as defined in the statute. AVS likewise has not shown it does here. Lastly, the parties also briefly argue whether a protective order should be issued. JS at 22. Again, the court will not decide that issue at this juncture. IV. CONCLUSION For the foregoing reasons, plaintiffs' motion to compel (docket no. 145) is DENIED without prejudice. Footnotes [1] It is not clear from the parties' submissions if plaintiffs destroyed all copies of the email and its attachment after AVS's inadvertent production. The court assumes plaintiffs' counsel has fulfilled his professional duties in doing so by now.