*1 On November 5, 2019, Plaintiff Colonies Partners, L.P. (“Colonies”) filed a Motion to Compel Compliance With Subpoena Propounded to the Office of the Attorney General of California (“Motion” or “Mot.”) seeking internal documents and communications of the Office of the Attorney General of California (“AGO”) regarding the state criminal investigation and prosecution of Colonies and its partners in the San Bernardino County Superior Court. Electronic Case Filing Number (“ECF No.”) 242, Mot. After a brief telephonic hearing, a hearing in open court, and a review of the parties' briefs, the Court GRANTS IN PART Plaintiff's Motion with respect to the internal documents and communications of the AGO regarding the state criminal investigation and prosecution of Colonies but with the limitation that the parties are to discuss the application of electronic search parameters to limit the production to the appropriately relevant material, as discussed below.

I. BACKGROUND

A. Procedural History

On November 2, 2018, Colonies filed a First Amended Complaint (“FAC”) against Defendants, including, the County of San Bernardino (“County”), San Bernardino County Flood Control District (“District”), and the following County officials: former District Attorney (“DA”) Michael Ramos, Deputy District Attorneys R. Lewis Cope and James Hackleman, Investigators Hollis “Bud” Randles and Robert Schreiber, County Supervisor Josie Gonzales, County Counsel Ruth Stringer, Field Representative and Assistant Assessor Adam Aleman (collectively, “County Defendants”). ECF No. 64, FAC. The FAC also named as Defendants Edmund G. Brown, Jr., Kamala D. Harris, Melissa Mandel, and Gary Schons (“AGO Defendants”). Id. The FAC alleges six causes of action, several under 42 U.S.C. § 1983 (“§ 1983”): (1) retaliation; (2) municipal liability; (3) supervisorial liability; (4) conspiracy; (5) breach of contract; and (6) breach of implied covenant of good faith and fair dealing. Id.

On October 2, 2018, District Judge Jesus G. Bernal dismissed, without leave to amend, the claims in the FAC against the AGO Defendants. ECF No. 86, Order. A judgment, pursuant to Fed. R. Civ. P. 54(b), dismissing the AGO Defendants, with prejudice, was entered on July 19, 2019. ECF No. 216. No timely appeal appears to have been filed. Accordingly, the dismissal appears to be final as to the AGO Defendants regarding the claims raised in the FAC.

On November 5, 2019, Colonies filed the present Motion to Compel. ECF No. 242, Mot. The AGO filed its opposition on November 19, 2019, ECF No. 250, Opposition, and Colonies filed their reply on November 26, 2019, ECF No. 254, Reply. On December 3, 2019, the Court conducted a hearing and the matter is ready for decision.

B. Factual Background

In 2006, Colonies and the County were involved in litigation over the County's “taking” of Colonies' land without just compensation. ECF No. 64, FAC ¶¶ 2, 29, 34. During the litigation, Colonies' partners took political positions against the County Board of Supervisors' interests and publicly criticized the County's handling of the dispute. Id. ¶¶ 38-42, 44, 56-57.

*2 After a trial in San Bernardino Superior Court, the judge issued a statement of intended decision in favor of Colonies in which the judge found that the County acted in bad faith by “engag[ing] in a well-documented pattern of coercion and deceit to avoid paying Colonies just compensation.” ECF No. 135, Mot. at 3; ECF No. 64, FAC ¶ 35. The County's Board of Supervisors ultimately settled the case in 2006, according to the FAC, despite pushback from the County. ECF No. 64, FAC ¶ 43.

Colonies alleges that in retaliation for this defeat, the Public Integrity Unit of the County's District Attorney's Office (“DAO”) and the AGO commenced an investigation of two county Supervisors, with Colonies and its partners as unindicted co-conspirators, for what they deemed “potentially the largest public corruption scandal in the history of California.” Id. ¶¶ 48, 65, 68. Colonies claims that in several instances before the commencement of the investigation, various Defendants revealed personal or political motives to seek retribution against Colonies and its partners. See, e.g., id. ¶¶ 47-55, 79-81, 83-91, 94, 96-97, 99-100, 106, 111. The investigation culminated in a criminal prosecution of Colonies' managing partner Jeffrey Burum (“Burum”) in 2011. Id. ¶ 110-11. Following a criminal trial in 2017, a jury acquitted Burum of all charges in 2017. Id. ¶ 112.

The criminal investigation and criminal prosecution form the basis of Colonies' instant action. Colonies alleges that the criminal investigation, falsifying and fabrication of evidence, and ultimate prosecution of Burum constituted a conspiracy to retaliate against Colonies for its exercise of its First and Fifth Amendment rights. Id. ¶¶ 134-163. Colonies alleges this conspiracy was motivated by the County's unlawful policies, practices, or customs and caused by failures to train and supervise by certain individual District Attorney (“DA”) Defendants. Id. Colonies also alleges that by failing to indemnify Colonies in legal actions spurred by the criminal prosecution and by “voluntarily and extensively assisting prosecutors” in this criminal action, the County and DAO violated the settlement agreement reached as part of the 2006 takings case and breached the implied covenant of good faith and fair dealing. Id. ¶¶ 171-76.

C. Subpoena Issued To AGO And Information Sought

Attached as Exhibit 4 to Colonies' Motion, is the subpoena served pursuant to Federal Rule of Civil Procedure 45 (“Rule 45”) to the AGO. ECF No. 242-5, Rule 45 Subpoena. The subpoena was dated March 29, 2019 and required responses, four weeks later, on April 26, 2019. Id. at 1. The subpoena provided the following, relevant, definitions, incorporated into this Order:

ECF No. 242-5, Rule 45 Subpoena at 6.

Attached as Exhibit 7 to Colonies' Motion are the objections and responses provided by the AGO to the Rule 45 subpoena, on May 10, 2019, following an agreed upon two-week extension to respond. ECF No. 242-8, AGO Responses and Objections; ECF No. 242-6, E-mail of April 24, 2019. There is no indication that the AGO provided a privilege log identifying the documents that were being withheld and that are otherwise responsive to the materials sought by Plaintiffs.

In the Motion, Colonies stated: “Colonies seeks only internal AGO documents and communications that have not been produced previously.” ECF No. 242, Motion at 6, n. 1 (emphasis added). At the hearing, Colonies' counsel sought to expand the categories of information that Colonies' was seeking as part of the Motion. The briefing, however, asked the Court to address the narrow category of information of “internal AGO documents and communications that have not been produced previously” and is the subject matter to which this order is limited. Additionally, at the hearing, counsel for the AGO indicated that the AGO was not opposed to presenting witnesses for depositions, and that these witnesses would be allowed to testify to communications made by the witnesses to people outside of the AGO.

II. DISCUSSION

A. Requirements of Rule 45 and Scope of Discovery

“Where a non-party possesses potentially relevant information, the party seeking discovery may obtain a subpoena for the evidence pursuant to Rule 45. ‘The same broad scope of discovery set out in Rule 26 applies to the discovery that may be sought pursuant to Rule 45.’ ” Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014) (quoting AF Holdings LLC v. Does 1–1,058, 286 F.R.D. 39, 46 (D.D.C.2012) (citing Watts v. S.E.C., 482 F.3d 501, 507 (D.C.Cir.2007)).

In Dale Evans Parkway 2012, LLV. v. Nat'l Fire and Marine Ins. Co., ED CV 15-979-JGB (SPx), 2016 WL 7486606, at *3–4 (C.D. Cal. Oct. 27, 2016), this Court provided the following applicable general scope for discovery under Rule 26:

*4 However, “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45. In the Rule 45 context, this Court must “ ‘weigh the burden to the subpoenaed party against the value of the information to the serving party.’ ” Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D.Cal.2005) (quoting Travelers Indem. Co. v. Metropolitan Life Insur. Co., 228 F.R.D. 111, 113 (D.Conn.2005)). This means that “[w]hile discovery is a valuable right and should not be unnecessarily restricted, the ‘necessary’ restriction may be broader when a non-party is the target of discovery.” Dart Indus. Co., Inc. v. Westwood Chemical Co., 649 F.2d 646, 649 (9th Cir.1980). “In addition to the need of the requesting party for the information and the burden on the non-party in complying with the subpoena, other factors a court should consider include the relevance of the requested information and the breadth or specificity of the discovery request.” In re Pioneer Corp., No. CV 18-4524 JAK (SSx), 2019 WL 5401015, at *5 (C.D. Cal. Jan. 9, 2019) (citation omitted).

With respect to asserting objections, Rule 45(d)(2)(B) provides:

B. Prosecutorial Immunity Does Not Bar Discovery of Information Related to Prosecutorial Decisions

The AGO first argues that because the discovery being sought is related to prosecutorial decisions that are not actionable because of prosecutorial immunity, that material is not discoverable. ECF No. 250, Opposition at 2-5. Plaintiff disagrees.

The Magistrate Judge is mindful of the ruling in Chang v. United States, 246 F.R.D. 372, 373-74 (D.D.C. 2007), which extended the Supreme Court's ruling in Imbler v. Pachtman, 424 U.S. 409, 423 (1976), from prosecutorial immunity for damages in a civil action to discovery regarding issues related to actions that are covered by prosecutorial immunity in a civil action. See also Merritt v. Arizona, No. CV-17-04540-PHX-DGC, 2018 WL 3729757, at *5 (D. Ariz. Aug. 6, 2018) (noting that “Defendants have made a credible assertion that prosecutorial immunity prevents the depositions, and Plaintiff has not shown that Defendants are wrong” in a case where depositions were sought of non-party prosecutors related to intra-office communications regarding prosecution of Plaintiff); Dowling v. Arpaio, No. CV-09-1401-PHX-JAT, 2011 WL 1456732, at *5 (D. Ariz. Apr. 15, 2011) (“To allow a party to depose a prosecutor, even though the prosecutor is not a named party to the action, would implicate the same concerns that have been articulated above, namely a chilling effect on a prosecutor's decision-making and thought processes. The Court will not allow Defendant, or future defendants, to create an end run around the protections and prohibitions articulated in Imbler.”); Karunyan v. Maricopa, Cty. of, No. CV-10-00198-PHX-ROS, 2015 WL 13747126, at *2 (D. Ariz. Feb. 3, 2015) (noting that “the Court will recognize a limited privilege such that Plaintiffs will not be permitted to inquire or seek documents regarding the prosecutors' actions ‘intimately associated with the judicial phase of the criminal process’ ”) (quoting Stapley v. Pestalozzi, 733 F.3d 804, 810 (9th Cir. 2013)).

*5 The Magistrate Judge is also mindful of the cases that come out the opposite way and allow the depositions of non-party prosecutors. Caples v. City of Phoenix, No. CV-14-02619-PHX-SRB, 2017 WL 10128323, at *2 (D. Ariz. Sept. 5, 2017) (holding that “[a]bsolute prosecutorial immunity does not extend to an absolute prohibition from discovery in a civil suit not brought against the prosecutor or the prosecutorial agency when the prosecutor may have information that is relevant to the claims or defenses in the case”); Ramirez v. Abreo, No. 5:09-CV-189-C, 2010 WL 11565408, at *2 (N.D. Tex. Mar. 1, 2010) (noting that “[w]hile [the prosecutor] is correct in arguing that absolute or prosecutorial immunity protects [the prosecutor] from suit, the Court does not believe that absolute immunity provides a blanket protection for [the prosecutor] as a potential witness in a civil case”) (citing Dennis v. Sparks, 449 U.S. 24, 31 (1980) (“Neither are we aware of any rule generally exempting [an official with absolute immunity] from the normal obligation to respond as a witness when he has information material to a criminal or civil proceeding.”)).

Though neither of the parties nor the Magistrate Judge were able to locate any controlling authority regarding application of the prosecutorial immunity bar for discovery purposes, there appears be to be “no controlling case law [that] prevents the depositions of prosecutors.” See Norton v. Arpaio, No. CV-15-00087-PHX-SPL, 2016 WL 11513612, at *2 (D. Ariz. Aug. 4, 2016) (citing generally McCleskey v. Zant, 499 U.S. 467, 498 at n.* (1991); McSherry v. City of Long Beach, 584 F.3d 1129, 1138-41 (9th Cir. 2009); Stubbs v. Gomez, 189 F.3d 1099, 1102 (9th Cir. 1999); Mannhalt v. Reed, 847 F.2d 576, 579, 583 (9th Cir. 1988)).

In light of these competing policy reasons, the Magistrate Judge finds that the more persuasive strain of cases, which more directly addresses the point of being able to depose a party otherwise protected by immunity in a civil suit, warrants the ability to depose prosecutors regarding facts that are relevant to the civil case. The Magistrate Judge is persuaded by the collection of Ninth Circuit cases in Norton v. Arpaio, No. CV-15-00087-PHX-SPL, 2016 WL 11513612, at *2 (D. Ariz. Aug. 4, 2016), which show that prosecutors can indeed be deposed regarding acts that are protectable under prosecutorial immunity. Additionally, this conclusion seems more in line with the Supreme Court's holding in Dennis, which noted that a judge, who is otherwise immune from a civil suit for actions taken as part of the normal functions of a judge, is not excused from “responding as a witness when his co-conspirators are sued” for acts related to actions taken by the otherwise immune official Dennis, 449 U.S. at 30.

Therefore, the prosecutorial immunity-based objection is overruled.

C. The Deliberate Process Privilege Objection Was Waived

The third argument the AGO raises is that the deliberative process privilege protects the information that Plaintiffs are seeking. This objection fails because neither was raised in the objections propounded by the AGO, nor was it discussed or raised during the meet and confer process that preceded Colonies' present Motion. See ECF No. 242-8, AGO's Responses and Objections; ECF Nos. 242-6 through 242-17.

Rule 45(d)(2)(B) provides that “[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” (emphasis added). Perhaps, in an effort to show that it preserved the deliberative process privilege objection, the AGO argues that the deliberative process privilege is a “ ‘sub-species of work-product privilege,’ ” and the work produce objection was timely raised. ECF No. 250, Opposition at 7 (quoting Estate of Dabela v. Town of Redding, No. 3:16cv534 (RNC), 2018 WL 1445577 (D. Conn. March 23, 2018)).

This argument is not persuasive because not even the parties thought that deliberative process privilege objection was raised, as evidenced by the e-mails and letters provided by Colonies that show the meet and confer process regarding the objections the AGO was asserting. As a result, the Court concludes that the AGO waived the deliberative process privilege objection as this objection could have been asserted in a timely fashion. See Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409 (C.D. Cal. 2005) (holding that “[i]f a party fails to file timely objections to [discovery] requests, such a failure constitutes a waiver of any objections which a party might have to the requests.”) (emphasis in original) (citations omitted); see also Green Payment Sols., LLC v. First Data Corp., No. CV 18-1463 DSF (ASx), 2018 WL 6333696, at *2 (C.D. Cal. Oct. 30, 2018) (stating that “[t]o the extent that [an] objection was included in Plaintiff's boilerplate objections to the Requests, they were too general to merit consideration and are therefore waived”).

*6 Moreover, Rule 45(e)(2) requires “[a] person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must ... expressly make the claim and ... describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” This was not done here.

D. Relevancy Under Rule 45 Warrants Limiting The Available Discovery

Colonies argues that the entirely internal communications of the AGO are relevant because Rule 26's broad application warrants the production of materials that go towards the “DA prosecutions team's conduct, bias, motive, and intent regarding the criminal investigation and prosecution.” ECF No. 242, Mot. at 8. Colonies also appears to contend that such discovery is relevant to the “DA's Office['s assessment of] key strategic issues, including the strength of the evidence, who to pursue criminally, and how to approach certain witnesses.” Id. “In short, [Plaintiff's contend that] the discovery already obtained demonstrates that the AGO's internal records on these matters are highly relevant to Colonies' claims that [it] would offer contemporaneous and unguarded insight into the County Defendants' conduct, tactics, bias, motives and intent with respect to Colonies and Mr. Burum.” Id. at 14. Plaintiffs also summarily claim that “the AGO's views about the tactics and motives and motives of the County Defendants” are relevant. Id.

The AGO argues, in sum, that this case is about the “County Defendants' actions and their motives for those actions – not what the AGO prosecutors may have thought about the criminal defendants or the strengths of the criminal case.” ECF No. 250, Opposition at 6. Finally, the AGO did not provide any information regarding why producing all the internal communication materials related to the criminal investigation of Colonies and the related matters would be unduly burdensome. Specifically, the AGO has not identified the volume of discovery at issue nor any information how providing this information would be an undue burden.

Though Rule 26 provides a wide scope of discovery, the scope of discovery from a third party under Rule 45 may be restricted to a “broader [degree] when a non-party is the target of discovery.” Dart Indus., 649 F.2d at 649. This means that a court should consider the “relevance of the requested information.” In re Pioneer Corp., No. CV 18-4524 JAK (SSx), 2019 WL 5401015, at *5 (C.D. Cal. Jan. 9, 2019) (citation omitted).

In the present case, though any internal communication involving the CRIMINAL INVESTIGATION, CRIMINAL PROSECUTION, or FBI INVESTIGATION may potentially be relevant, the Magistrate Judge believes that balancing the relevancy against the burden and disclosure of potentially wholly irrelevant information warrants limiting the scope of available discovery. For example, the Magistrate Judge does not believe that legal theories discussed wholly within the AGO and never disclosed externally or motivations of the AGO alone regarding the investigation or prosecution are appropriate other than as, potentially, expert opinion.

Consequently, the information sought is limited to the following areas:

This scope would allow Colonies to conduct the necessary discovery involving the DA Defendants and their “conduct, tactics, bias, motives and intent with respect to Colonies and Mr. Burum,” ECF No. 242, Mot. at 14, and also allow the exploration of factual evidence related to the claims or defenses in the FAC. This would also allow Colonies to use potentially contemporaneous information to seek information from witnesses during any depositions or a trial.

In this regard, the parties are ORDERED to meet and confer to determine and agree upon electronic search terms that may appropriate to review any e-discovery that the AGO may have in its possession, custody, or control over and that may have relevant material, as discussed above.

E. Depositions of Ms. Mandel and Mr. Schons

Plaintiffs also seeks an order to be allowed to depose AGO prosecutors Ms. Mandel and Mr. Schons. At the hearing, the AGO indicated that it was prepared to present these witnesses for deposition and to allow them to be questioned regarding communications outside of the AGO. With respect to communications solely inside the AGO, the parties now have the Court's guidance regarding the scope of relevancy a to guide them during the depositions of Ms. Mandel and Mr. Schons.

IT IS SO ORDERED.