Gerrie v. Cnty. of San Bernardino
Gerrie v. Cnty. of San Bernardino
2020 WL 3978061 (C.D. Cal. 2020)
June 3, 2020

Pym, Sheri,  United States Magistrate Judge

Failure to Produce
Proportionality
Cooperation of counsel
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Summary
The court denied the plaintiff's motion to compel the defendant County of San Bernardino to produce documents in response to her discovery requests. The court found that the defendant was not required to produce documents that do not exist and that additional meet and confer may be necessary regarding the ESI sought in one of the requests.
Jennifer Gerrie
v.
County of San Bernardino, et al.
Case No. ED CV 19-1435-JGB (SPx)
United States District Court, C.D. California
Filed June 03, 2020

Counsel

Rebekah S. Yabko, Jack H. Anthony, Law Office of Jack H. Anthony, Costa Mesa, CA, Shawn A. McMillan, Adrian Michael Paris, Stephen D. Daner, Shawn A. McMillan Law Offices APC, San Diego, CA, for Jennifer Gerrie.

Christie Bodnar Swiss, Collins Collins Muir and Stewart LLP, Carlsbad, CA, Jacqueline Shulman, Mark M. Rudy, Mark A. Weinstein, Peter H. Crossin, Veatch Carlson LLP, Los Angeles, CA, Rada Feldman, Collins Collins Muir and Stewart LLP, Carlsbad, CA, for County of San Bernardino, et al.
Pym, Sheri, United States Magistrate Judge

Proceedings: (In Chambers) Order Denying Plaintiff's Motion to Compel [102]

I. INTRODUCTION
*1 On April 29, 2020, plaintiff Jennifer Gerrie filed a motion to compel defendant County of San Bernardino's production of documents in response to her discovery requests. Docket no. 102. On the same day, plaintiff filed an amended motion to compel. Docket no. 103. The motion is supported by the declaration of plaintiff's counsel Jack Anthony (“Anthony Decl.”) and exhibits thereto. Defendants County of San Bernardino, Treleisha Finch, and Christa Banton filed their opposition (“Opp.”) on May 14, 2020. Docket no. 114. Defendants' opposition is supported by the declaration of Teri Self, a Deputy Director of Children and Family Services for the County of San Bernardino (“Self Decl.”) and exhibits thereto. On May 19, 2020, plaintiff filed a reply to the motion to compel that is supported by the supplemental declaration of plaintiff's counsel (“Anthony Supp. Decl.”) and additional exhibits. Docket no. 117.
 
The court found a hearing on the motion would not be of assistance, and so previously vacated the hearing scheduled for June 2, 2020. The court now denies plaintiff's motion to compel for the reasons discussed below.
 
II. BACKGROUND[1]
Plaintiff is the mother of decedent Makayla Massey, who was removed from her mother's custody by defendant County on May 8, 2018 after reporting that her stepfather was abusing her. Mtn. at 4. After her removal, decedent became a dependent of the juvenile court and was placed in a group home. Id.; Opp. at 3. Decedent ran away from the group home several times, and on one of these occasions, was sexually assaulted by approximately six adult men. Mtn. at 4. On June 21, 2018, decedent was recovered by the Riverside County Sheriff's Department and returned to the custody of defendant County. Id. at 4-5. Decedent was then placed in another shelter, and on June 26, 2018, ran away permanently. Id. at 5. Decedent's dependency case in juvenile court was terminated on April 29, 2019 when she turned 18 and aged out of foster care. Id.; Opp. at 4. Decedent's whereabouts remained unknown until June 25, 2019, when she was found shot and killed on the side of a road. Mtn. at 5; Opp. at 3.
 
Plaintiff raises various civil rights claims arising out of the allegedly illegal seizure of her daughter and the level of care provided to her while in defendants' custody. Defendants Finch and Banton are social workers employed by the County of San Bernardino Department of Children and Family Services (“CFS”).
 
On November 25, 2019, plaintiff served her first set of Requests for Production of Documents (“RFPs”) on defendant County. See Reply, Ex. 8 at 10. It is unclear when defendant County served its responses and objections, but it appears defendant served at least its objections at some point in December 2019. Opp. at 4.
 
On January 3, 2020, plaintiff sent defendant County a meet and confer letter requesting a telephonic conference to discuss defendant's responses to her RFPs. See Anthony Decl. ¶ 2, Ex. 1. On January 10, 2020, the parties met and conferred telephonically. Id. ¶ 3, Ex. 2. On January 30, 2020, defendant County provided further responses and objections. Id. ¶ 4. On February 12, 2020, plaintiff sent defendant County a second meet and confer letter. Id. ¶ 4, Ex. 3. On February 25, 2020, the parties held their second telephonic conference. Id. ¶ 5, Ex. 4. Per plaintiff's email summary of the telephonic conference, it appears the parties were able to reach some limited agreement on two of the disputed RFPs. Id.
 
*2 After inquiring about the status of defendant County's production on March 9 and 12, 2020 and receiving no response, plaintiff informed defendant that she would proceed with preparing a Joint Stipulation. Id. ¶ 6. On April 21, 2020, plaintiff provided defendant County with her portion of the Joint Stipulation. Id. ¶ 7, Ex. 5. As of the date of the filing of the instant motion, defendant County did not return its portion of the Joint Stipulation. Id. ¶ 7.
 
Plaintiff notes that on September 25, 2018, the San Bernardino Juvenile Court issued a Standing Order providing that in cases involving claims against CFS, counsel for the parties are permitted to review and obtain copies of juvenile records, including those maintained by CFS on dependents of the Juvenile Court. Id. ¶ 8, Ex. 6.
 
III. DISCUSSION
As an initial matter, the instant motion was not filed in the form of a Joint Stipulation as required for all discovery motions under Local Rule 37-2. Local Rule 37-2.4 provides that the court will not consider any discovery motion in the absence of a joint stipulation unless there is a declaration from counsel for the moving party establishing that opposing counsel failed to confer in a timely manner, failed to provide the opposing party's portion of the joint stipulation, or refused to sign and return the joint stipulation. If such a declaration accompanies the motion, it is governed by Local Rules 6-1, 7-9, and 7-10. Id. Plaintiff's counsel has provided such a declaration here. Meanwhile, defendant County provides no explanation about why it did not return its portion of the Joint Stipulation. Accordingly, the court considers the substance of plaintiff's motion to compel.
 
A. Discovery Standards
Fed. R. Civ. P. 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. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).
 
B. RFP Nos. 38 and 44
Plaintiff moves to compel defendant County to produce documents responsive to two requests, RFP Nos. 38 and 44. RFP No. 38 asks defendant County to produce copies of any and all SafeMeasures case history reports regarding the decedent from January 1, 2018 through the present. Mtn. at 6. SafeMeasures is a reporting service used by defendant County that provides data on metrics including agent, unit, and worker performance over time, workload, out-of-compliance cases, quality of services throughout the life of a case, and whether federal, state, and local requirements are being met. Id. at 12-13. RFP No. 44 asks defendant County to produce copies of any and all documents pertaining to the number of children or cases on the active caseloads of all social service practitioners and supervising social service practitioners who were assigned to provide services to the decedent from January 1, 2018 through the present. Id. at 14.
 
*3 Although defendant County raises various objections in its response to RFP No. 38, it chiefly contends in its opposition that it is unable to produce the documents because no SafeMeasures report exists in the decedent's case file or was ever generated and saved for her case, and all information that could be contained in such reports has already been produced to plaintiff. Opp. at 5-10. Defendant County further argues that even if these reports existed, they would be protected from discovery because they are privileged and subject to certain confidentiality provisions of the County's technology user agreement. Id. Defendant County raises a similar objection to RFP No. 44, and contends it cannot produce the documents sought because it does not possess any retroactive list of social workers' caseloads. Id. at 10.
 
1. Defendant Is Not Required to Produce Documents That Do Not Exist
Plaintiff contends she is entitled to the documents sought in RFP No. 38 because a San Bernardino Juvenile Court Standing Order permits her to access juvenile case files and SafeMeasures reports are part of a case file. Mtn. at 12-14. Plaintiff also contends she is entitled to the documents sought in RFP No. 44 because defense counsel previously represented that defendant County was willing to produce information on social worker caseloads, and such information bears on whether social workers were able to provide the level of care necessary to ensure the decedent's health and safety. Id. at 14-18.
 
Defendant County essentially contends it is unable to comply with plaintiff's RFPs because the documents sought do not exist. More specifically, defendant contends it cannot produce documents in response to RFP No. 38 because SafeMeasures functions as a search engine, and a report is created only when a user inputs a search, generates a report, and then prints the report to save it. Self Decl. ¶¶ 8-9. Defendant states SafeMeasures reports are not required to be retained in a juvenile case file, and that no SafeMeasures reports were generated and saved in decedent's case file during the pendency of her juvenile court case. Id. ¶¶ 9-10. As to RFP No. 44, defendant contends its database contains information about a social worker's current caseload, but does not permit retroactive searches for past caseloads over a period of time. Id. ¶¶ 17-18.
 
The court will not compel a party to produce documents that do not exist. Although the parties have not attached a copy of defendant County's verified responses to plaintiff's RFPs as an exhibit, defendant has attached a verified declaration from a CFS Deputy Director stating that the documents sought do not exist. With respect to RFP No. 44, plaintiff essentially argues that defendant's position that no such documents exist is incredible, but offers no evidence to undermine the declaration.
 
As for RFP No. 38, plaintiff argues the SafeMeasures reports effectively exist because they were accessible to social workers and therefore part of decedent's file. Mtn. at 12 (citing In re Charlotte C., 33 Cal. App. 5th 404, 424-25 (2019) (“[A] case file includes all documents filed in the child's dependency proceeding, documents made available to a Child Welfare Services (CWS) social worker in preparation of court reports, and other documents related to the child that are maintained in the office files of CWS social workers.”)). That does not quite follow. Although SafeMeasures reports pertaining to decedent would have been part of her file had they been generated and save, there is no indication here that was the case, or that any exist now. Ultimately, plaintiff is asking the court to order defendant to create new documents to produce in response to a request for production. That is beyond what is required in discovery. See Goodrich Corp. v. Emhart Industries, Inc., 2005 WL 6440828 at *5 (C.D. Cal. June 10, 2005).
 
*4 Accordingly, defendant County is not required to produce documents that do not exist or generate new documents in response to plaintiff's requests. Yet there are some ambiguities in the parties' arguments about RFP No. 38, as discussed below.
 
2. Additional Meet and Confer on RFP No. 38 May Be Necessary
The parties' dispute regarding RFP No. 38 encompasses a range of issues, including whether the declarations submitted by defendant County contain various inaccuracies, the information sought is privileged, production of SafeMeasures data would constitute a breach of defendant County's technology user agreement, SafeMeasures reports include relevant information that has not yet been produced in discovery, and defendant has previously produced SafeMeasures reports in other unrelated cases. Given that none of these issues would affect defendant's contention that there are no SafeMeasures reports on the decedent, the court does not address these arguments here.
 
But there is some ambiguity about the scope of plaintiff's request in RFP No. 38. Plaintiff argues in her reply that she is not only seeking documents but electronically stored information (“ESI”) – in essence, not just physical SafeMeasures reports but all pertinent SafeMeasures data – and that consequently whether any SafeMeasures reports were printed or physically generated is immaterial. Reply at 7-13. Based on the parties' meet and confer letters and their related written communications, it does not appear that the parties have previously discussed whether the information sought in RFP No. 38 can be produced as ESI, or whether RFP No. 38 may be fairly construed to seek such data. See Anthony Decl. ¶¶ 2-6, Exs. 1-4. To the extent the parties' dispute extends to the production of ESI and this issue has not been raised previously, the parties must meet and confer further on this topic.
 
IV. ORDER
For the foregoing reasons, plaintiff's motion to compel (docket no. 102) is denied as set forth above.
 
Footnotes
Part of the information in this section is drawn from plaintiff's Second Amended Complaint. See docket no. 80.