Cameron v. City of El Segundo
Cameron v. City of El Segundo
2021 WL 3466324 (C.D. Cal. 2021)
April 30, 2021
Chooljian, Jacqueline, United States Magistrate Judge
Summary
The court discussed the application of the attorney-client privilege and the attorney work product doctrine to ESI. The court found that the subpoena was not overly broad or irrelevant, and that the information requested was relevant to the plaintiff's claims. The court also noted that the defendant was required to comply with Rule 26(b)(5) of the Federal Rules of Civil Procedure in order to protect ESI.
Additional Decisions
Joseph M. Cameron
v.
City of El Segundo, et al
v.
City of El Segundo, et al
Case No. 2:20-cv-04689-JFW-JC
United States District Court, C.D. California
Filed April 30, 2021
Counsel
Kerri Hays, Deputy Clerk, Attorneys Present for Plaintiff: NoneNone, Court Reporter / Recorder, N/A, Tape No., Attorneys Present for Defendants: None
Chooljian, Jacqueline, United States Magistrate Judge
Proceedings: (In Chambers) ORDER (1) DENYING PLAINTIFF'S MOTION TO QUASH SUBPOENAS WITHOUT PREJUDICE (DOCKET NOS. 45, 47); AND (2) DIRECTING PARTIES FURTHER TO MEET AND CONFER REGARDING AMENDED SUBPOENAS
I. Summary
*1 Pending before the Court is Plaintiff Joseph M. Cameron's Motion to Quash Subpoenas (“Plaintiff's Motion”) which was noticed for hearing on April 27, 2021 at 9:30 a.m. and has been submitted for decision. See Docket Nos. 45, 47, 48, 50.[1] Plaintiff's Motion seeks to quash seven materially identical subpoenas (collectively, “Subpoenas”) served by Defendant the City of El Segundo (“City”) on non-parties Andrew McEntyre, Brandon Browning, Scott Black, Ryan Smith, Eric Atkinson, Scott O'Connor and Jeff Humphrey (collectively, “Subpoenaed Individuals”) which essentially call for the production of certain records, including certain electronically stored information (“ESI”) of the Subpoenaed Individuals.[2]
The Court denies Plaintiff's Motion without prejudice at this juncture because the Subpoenas which are the subject of Plaintiff's Motion have been materially amended (“Amended Subpoenas”) and directs the parties to further meet and confer in good faith to attempt to resolve, or at least narrow the parties' disputes regarding the Amended Subpoenas.[3] Because – notwithstanding their material differences – the Amended Subpoenas (which contain nine categories of items to be produced) to some degree overlap with the original Subpoenas (which contain five categories of items to be produced) and to facilitate the parties' further meet and confer discussions, the Court below addresses/gives the parties its tentative views regarding certain likely recurring matters raised in Plaintiff's Motion. Most importantly, the Court is currently of the view that while the Subpoenas/certain categories contained therein are overbroad, Plaintiff's blanket and conclusory privilege objections – unaccompanied by a privilege log – are insufficient to enable the Court to assess whether the information sought is actually privileged/whether any waiver of the privilege has been effected by Plaintiff's disclosure of multiple communications with certain of the Subpoenaed Individuals. Having said that, because the Subpoenas call for items from non-parties – items to which Plaintiff may not have access, such that Plaintiff is unable to provide a detailed log – the Court would be inclined to allow Plaintiff's counsel to review the subpoenaed items for privilege (but not relevance) before the provision thereof to Defendant at Plaintiff's (not the Defendant's) expense, and to require Plaintiff to produce a detailed privilege log with respect to any specific document(s) Plaintiff believes should be withheld based upon Plaintiff's assertion of privilege. Any remaining disputes should be the subject of further meeting and conferring to avoid or at least minimize the need for court intervention.
II. Factual and Procedural Background
A. Factual Background
*2 Plaintiff was employed as a Police Officer with the El Segundo Police Department, until he resigned effective August 14, 2020. Plaintiff went on leave under the Family and Medical Leave Act on May 25, 2020 and was scheduled to return to work on August 14, 2020. (Third Amended Complaint (alternatively, “TAC”) ¶ 111). Prior to his resignation, Plaintiff was President of the Board of Directors for the El Segundo Peace Officers' Association (ESPOA).
Plaintiff alleges that in 2014, he began publicly speaking out against proposed budget cuts that might impact the City's police department, created and distributed mailers and videos opposing the cuts, and spoke at and held rallies at City Council meetings. (TAC ¶¶ 27-30). Plaintiff alleges that shortly after he and the ESPOA began opposing budget cuts, Defendant began a pattern of harassment, discrimination, and retaliation against him and other ESPOA Board members. (TAC ¶ 31).
Subsequently, Plaintiff alleges that myriad disputes arose between him and/or the ESPOA on the one hand, and members of the Police Department's “Command Staff,” on the other, concerning the following issues: (1) implementation of the Body Camera and In-Car Video policies by Lieutenant Ray Garcia in January 2019 (TAC ¶¶ 38-39); (2) the use of unmarked cars in February 2019 (TAC ¶¶ 40-44); and (3) an allegation that Captain Carlos Mendoza had leaked sergeant promotion exam questions in October 2019 (TAC ¶¶ 57-61).
Unrelated to any ESPOA business, Plaintiff also alleges personal grievances related to two separate incidents involving: (1) a Team Building Workshop in May 2019; and (2) his annual evaluation meeting with Lieutenant Dan Kim in November 2019. During the May 2019 Team Building Workshop, Plaintiff assumed that Lt. Jeff Leyman was referring to Plaintiff or other ESPOA Board members when Leyman announced he intended to retire early because a group of officers were spreading lies about him [Leyman]. According to Plaintiff, he wanted to address the issue and offered to attend a Command Staff meeting as President of the ESPOA, but Captain Mendoza declined the offer and told Plaintiff that “all members of Command Staff would back Lt. Leyman no matter who [was] right or wrong and further indicated that he would not want to be alone in that room.” (TAC ¶¶ 45-55). Plaintiff alleges that he “reasonably interpreted [Captain] Mendoza's statement as intimidation and/or a threat of physical violence and/or career suicide should Plaintiff continue to press the matter and insist on attending a Command Staff meeting and on directly addressing Command Staff concerning Plaintiff's legitimate concerns.” (TAC ¶ 56).
In November 2019, Plaintiff alleges that he felt threatened and intimidated during a meeting with his supervisor, Lt. Dan Kim, to discuss Plaintiff's dissatisfaction with the “meets standards” rating in his annual performance evaluation. (TAC ¶¶ 64-70). Specifically, Plaintiff alleges that during the meeting, “[i]n a very threatening and intimidating tone, Lt. Kim told Plaintiff that Lt. Kim was not done talking and told Plaintiff to ‘sit down.’ Plaintiff advised Lt. Kim that he did not feel comfortable anymore and that Plaintiff wanted to leave. Plaintiff then stood up from the chair and attempted to leave the room. Lt. Kim raised his voice even louder and said, ‘sit down,’ which Plaintiff interpreted as an official order and, in fear of insubordination, complied with Lt. Kim's order.” (TAC ¶ 70).
*3 Plaintiff further alleges that on December 12, 2019, he made a written complaint to the City's Human Resources Director, David Serrano, concerning his evaluation meeting with Lt. Kim, but an investigation was not conducted, and instead he was issued a false “write-up.” (TAC ¶ 79). Since filing his written complaint, Plaintiff alleges that he has suffered the following adverse employment actions: (1) he has been verbally disciplined for trivial matters (TAC ¶ 81); (2) he has been constantly isolated for normal communication within the Community Engagement Division (TAC ¶ 81); (3) his work schedule has been adjusted, which has impacted his overtime hours (TAC ¶ 81); (4) he has been held out of School Resource Officer related activities where El Segundo Elected Officials are involved (TAC ¶ 81); (5) he has been denied promotion (TAC ¶ 84); and (6) he has been denied additional work opportunities and assignment to earn overtime or other premium pay (TAC ¶ 85).
In addition, Plaintiff alleges he was retaliated against for his speech and association rights as follows: (1) he was constructively forced to leave the SWAT team (TAC ¶ 118, v.); (2) he was instructed that he could not be promoted to sergeant until he resigned his position on the ESPOA Board (TAC ¶ 118, ix.); (3) Command Staff was told that Plaintiff is not loyal to the Police Department and Plaintiff and ESPOA Board members were referred to as “gang-members,” “organizational terrorists,” “rogues,” “liars,” and “the group trying to get Chief Whalen Fired” (TAC ¶ 118, xiii.); and (4) an illegal audit of Plaintiff's Body Worn Camera footage was ordered and permitted in an attempt to discover and/or manufacture false and untrue disciplinary charges against him, although he was never actually disciplined (TAC ¶ 118, xvii.).
Plaintiff further alleges that on or about March 24, 2020, Chief Whalen issued a directive to Plaintiff, in his capacity as President of the ESPOA, prohibiting Plaintiff from communicating with ESPOA members on how to process COVID-19 exposure notices. (TAC ¶ 89).
B. Procedural History
On May 26, 2020, Plaintiff filed the original Complaint. (Docket No. 1). On July 24, 2020, Plaintiff filed a First Amended Complaint. (Docket No. 13). On August 21, 2020, Plaintiff filed a Second Amended Complaint. (Docket No. 20). On September 11, 2020, Plaintiff filed the Third Amended Complaint. (Docket No. 26). On November 3, 2020, the District Judge dismissed portions of the Third Amended Complaint, leaving claims for relief for: (1) retaliation (42 U.S.C. § 1983) against the City; (2) municipal liability – ratification (42 U.S.C. § 1983) against the City; (3) municipal liability – unconstitutional custom or policy (42 U.S.C. § 1983) against the City; (4) discrimination for participation in employee representative organization (California Government Code § 3506) against the City;[4] and (5) retaliation for exercise of lawful action as elected representative of employee bargaining unit (California Government Code § 3502.1) against the City.[5] (Docket Nos. 35-36). In his Third Amended Complaint, Plaintiff alleges that he was retaliated against and subject to a threat of violence for exercising his free speech and public employee union association rights.
*4 On November 18, 2020, the City filed an Answer. (Docket No. 37).
Meanwhile, on July 16, 2020, the City served Plaintiff with Requests for Production of Documents seeking, among other things, certain text messages between Plaintiff and, among others, five of the Subpoenaed Individuals – Scott O'Connor, Andrew McEntyre, Scott Black, Brandon Browning, and Jeff Humphrey. (Yim Decl. ¶ 3; Yim Ex. 1 [RFP Nos. 56-57, 60-62). On October 16, 2020, Plaintiff responded thereto. (Yim Decl. ¶ 3; Yim Ex. 2). Plaintiff later produced multiple text message communications between him and four of the Subpoenaed Individuals – Andrew McEntyre, Scott O'Connor, Scott Black, and Jeff Humphrey – as well as a text group identified as “2020 ESPOA Board.” (Yim Decl. ¶¶ 5 ¶, 6; Yim Exs. 3, 4).
On March 11, 2021, Plaintiff received notice from Defendant regarding the issuance of the Subpoenas and copies of the Subpoenas which call for the production of certain records on April 12, 2021. (Urban Decl. ¶ 3; Urban Ex. A). More specifically, the Subpoenas essentially call for the production of all documents/communications the Subpoenaed Individuals published, sent to, or received from (1) Plaintiff Cameron regarding any complaint, grievance, or concern about any aspect of his employment with the City from January 1, 2018 to the present; (2) any past or present ESPOA member regarding any complaint, grievance, or concern about any aspect of Plaintiff Cameron's employment with the City from January 1, 2018 to the present; (3) any person/entity and its agents, employees, staff members, owners, representatives, or the like regarding any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present; (4) any person, agent, employees, staff members, owners, representative, or the like working for or associated with Connect Political[6] regarding any union matters, negotiations, social marketing, general strategies, political strategies, community involvement, and/or any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present; and (5) any person, agent, employees, staff members, owners, representative, or the like working for or associated with Public Safety Consultants, LLC[7] regarding any union matters, negotiations, social marketing, general strategies, political strategies, community involvement, and/or any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present. (Urban Ex. A).
*5 Between March 12, 2021 and March 22, 2021, counsel conferred regarding their disputes relative to the Subpoenas. As they were unable to resolve their differences, Plaintiff's Motion followed.
On March 30, 2021 – the day before Plaintiff's Motion was filed – Plaintiff received notice from Defendant regarding the issuance of the Amended Subpoenas and copies of the Amended Subpoenas, which call for the production of certain items on April 28, 2021. (Urban II Decl. ¶ 4; Urban Ex. C). The Amended Subpoenas differ from the original Subpoenas in multiple respects and essentially call for the production of all documents/communications the Subpoenaed Individuals published, sent to, or received from (1) Plaintiff Cameron regarding any complaint, grievance, or concern about his employment with the City from January 1, 2018 to the present;[8] (2) any past or present employee of the City regarding any complaint, grievance, or concern about Plaintiff Cameron's employment with the City from January 1, 2018 to the present;[9] (3) any person/entity and its agents, employees, staff members, owners, representatives, or the like regarding any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present;[10] (4) any person, agent, employees, staff members, owners, representative, or the like working for or associated with Connect Political regarding “strategizing about, publicizing or marketing” any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present;[11] (5) any person, agent, employees, staff members, owners, representative, or the like working for or associated with Public Safety Consultants, LLC regarding “strategizing about, publicizing or marketing” any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present;[12] (6) any person, agent, employees, staff member, owner, representative, or the like working for or associated with Connect Political regarding the services or quotes it provided to/proposed to provide to the Subpoenaed Individuals in their individual capacity or in their capacity as a member of the ESPOA [related to] any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present;[13] (7) any person, agent, employees, staff member, owner, representative, or the like working for or associated with Public Safety Association Consultants, LLC regarding the services or quotes it provided to/proposed to provide to the Subpoenaed Individuals in their individual capacity or in their capacity as a member of the ESPOA [related to] any employment or labor lawsuit (filed, intended to be filed, prospective or contemplated) against the City and/or any City employee(s) from January 1, 2018 to the present; (8) Plaintiff or any current or former employee of the City regarding/referring to the El Segundo Police Department's Command Staff in general or any of the following individuals: Police Chief Bill Whalen, Police Captain Jaime Bermudez, Police Captain Carlos Mendoza, Police Lieutenant Dan Kim, Police Lieutenant Jeff Leyman, Police Lieutenant Ray Garcia, Police Lieutenant Hugo Perez, and/or Police Lieutenant Aaron Corkins, from January 1, 2018 to the present; and (9) any current or former employee of the City regarding/referring to ways to get any of the El Segundo Police Department's Command Staff fired or terminated, including any of the following individuals: Police Chief Bill Whalen, Police Captain Jaime Bermudez, Police Captain Carlos Mendoza, Police Lieutenant Dan Kim, Police Lieutenant Jeff Leyman, Police Lieutenant Ray Garcia, Police Lieutenant Hugo Perez, and/or Police Lieutenant Aaron Corkins, from January 1, 2018 to the present. (Urban II Ex. C).
III. Pertinent Law
A. Governing Local Rules
*6 Local Rules 37-1 through 37-4 govern the filing of discovery motions in the Central District of California. Local Rule 37-2.2 – which governs the preparation of joint stipulations – provides in relevant part that following the required conference of counsel:
[C]ounsel for the moving party must ... deliver ... to counsel for the opposing party the moving party's portion of the stipulation, together with all declarations and exhibits to be offered in support of the moving party's position. Unless the parties agree otherwise, within seven days of receipt of the moving party's material, counsel for the opposing party must ... deliver ... to counsel for the moving party the opposing party's portion of the stipulation, together with all declarations and exhibits to be offered in support of the opposing party's position.
C.D. Cal. R. 37-2.2 (emphasis added). Once the joint stipulation is submitted, Local Rule 37-2.3 permits the parties to each file a supplemental memorandum:
After the Joint Stipulation is filed, each party may file a supplemental. memorandum of law not later than fourteen (14) days prior to the hearing date. Unless otherwise ordered by the Court, a supplemental memorandum shall not exceed five (5) pages in length. No other separate memorandum of points and authorities shall be filed by either party in connection with the motion.
C.D. Cal. R. 37-2.3 (emphasis added).
Local Rule 37-2.3 – read in isolation – does not expressly prohibit additional declarations with a supplemental memorandum. However, when read together, Local Rule 37-2.2 and Local Rule 37-2.3 do appear to prohibit the filing of the declarations or exhibits with the supplemental memorandum. Having said that decisions are split as to the propriety of submitting/considering additional declarations with a supplemental memorandum. Vancouver Alumni Asset Holdings, Inc. v. Daimler AG, 2019 WL 4492950, *5 (C.D. Cal. July 11, 2019); Compare FDIC v. Appleton, 2012 WL 12887400, at *5 & n.3 (C.D. Cal. Aug. 27, 2012) (declining to consider declaration submitted with supplemental memorandum in attempt to satisfy plaintiff's burden when invoking privilege; noting Local Rules 37-2.2 and 37-2.3 do not contemplate the submission of new evidence after the filing of the joint stipulation and that plaintiff had made no showing that the information in declaration was not previously available), reconsideration denied, 2012 WL 12891381 (C.D.Cal. Oct. 15, 2012); Tagtrends, Inc. v. Nordstrom, Inc., 2014 WL 12587045, at *1, (C.D. Ca. Aug. 29, 2014) (granting motion to strike because “the supplemental filings clearly violated Local Rule 37-2.2”; noting plaintiffs did not offer any explanation for why they could not have submitted supplemental declaration with their portion of the joint stipulation); In re Air Crash at Taipei, Taiwan, 2002 WL 32155477, at *1 nn.1-2 (C.D. Cal. Oct. 23, 2002) (striking declarations because “Rule 37-2.3 does not provide for declarations.”) with Fleming v. Unum Life Ins. Co. of Am., 2018 WL 6521498, *1 (C.D. Cal. Sept. 21, 2018) (considering, without objection or analysis, supplemental declaration and exhibits); Sprengel v. Mohr, 2012 WL 12885115, at *2, n.3 (denying oral motion made at hearing to strike declaration submitted with supplemental memorandum; “Although L.R. 37-2.3 does not explicitly permit supplemental declarations and exhibits, it also does not prohibit them. And while L.R. 37-2.2 appears to contemplate that all exhibits will be filed with the Joint Stipulation, given the absence in the rules of an explicit prohibition of supplemental exhibits, and given the circumstances in this case, the court will not strike the Supplemental Declaration or its exhibits.”); Grasshopper House, LLC v. Renaissance Recovery Servs., LLC, 2011 WL 13214102, at *1 n.3 (C.D. Cal. Mar. 30, 2011) (considering, without objection or analysis, supplemental declaration with exhibits).
B. General Discovery Law
*7 Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering 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.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).
C. Subpoenas/Motions to Quash/Objections
Federal Rule of Civil Procedure 45 governs subpoenas duces tecum for the production of documents.[14] Fed. R. Civ. P. 45(c)(2).[15] One of the purposes of Rule 45 is “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties.....” Advisory Committee Notes to 1991 Amendment to Rule 45. “The non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.” Id.
If a subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party. Fed. R. Civ. P. 45(a)(4).[16]
*8 Under Rule 45, the nonparty served with the subpoena duces tecum may make objections to the subpoena duces tecum within 14 days after service or before the time for compliance, if less than 14 days. Fed.R.Civ.P. 45(d)(2)(B).
Only the nonparty can prevent disclosure by objection. McCoy v. Southwest Airlines Co., 211 F.R.D. 381, 385 (C.D. Cal. 2002) (citation omitted); see also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n. 5 (9th Cir.1983) (“Once the person subpoenaed objects to the subpoena ... the party seeking discovery must obtain a court order directing compliance.”).
A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash. Schwarzer, Tashima & Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, ¶ 11:2291.
Rule 45(d)(3)(A) sets forth the bases for a court to quash or modify a subpoena. It provides that on timely motion, the court for the district where compliance is required must quash or modify a subpoena if, among other things, it fails to allow a reasonable time to comply, requires disclosure of privileged or other protected matter, if no exception or waiver applies, or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A). Rule 26(c)(1) provides for the issuance of a protective order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense if good cause is shown to do so. Fed. R. Civ. P. 26(c)(1).
A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (1) expressly make the claim; and (2) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Fed. R. Civ. P. 45(e)(2)(A).
The party who moves to quash a subpoena has the “burden of persuasion” under Rule 45(d)(3). Travelers Indem. Co. v. Metropolitan Life Insur. Co., 228 F.R.D. 111, 113 (D. Conn. 2005); Concord Boat Corp., 169 F.R.D. at 48; United States v. IBM, 83 F.R.D. 97, 104 (S.D.N.Y.1979).
D. Privileges
1. Choice of Law
Questions of privilege that arise in the course of the adjudication of federal rights are governed by the principles of federal common law. United States v. Zolin, 491 U.S. 554, 562 (1989) (citing Federal Rules of Evidence 501). Where, as in this case, federal question and pendent state law claims are present, federal law on privilege, not state law, applies. Agster v. Maricopa County, 422 F.3d 836, 839 (9th Cir.), cert. denied, 546 U.S. 958 (2005). Accordingly, to the extent the parties rely on state law/state-based privileges, the Court will not address the same.[17]
2. Attorney-Client Privilege/Common Interest-Joint Defense Privilege
The purpose of the attorney-client privilege is to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
*9 To invoke the attorney-client privilege, a party asserting the privilege must show: (1) that legal advice was sought, (2) from a professional legal advisor in his legal capacity, (3) the communications were related to that purpose, (4) were made in confidence, (5) by the client or the attorney, (6) the privilege is asserted by the client, (7) to prevent disclosure by the client or the attorney, and (8) the protection must not be waived. See United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citations omitted).
An entity's privilege extends to communications between its employees/outside consultants and counsel as long as the communications are made at the direction of superiors in order to secure legal advice. Graf, 610 F.3d at 1158-59 (citing Upjohn Co., 449 U.S. at 390-94, United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996), cert. denied, 520 U.S. 1167 (1997) and In re Bieter Co., 16 F.3d 929, 937-38 (8th Cir. 1994)).
“[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn Co., 449 U.S. at 390. It encompasses communications made by a client's employees to counsel, acting as such, to enable counsel to be in a position to give legal advice to the client. Id. at 390-97. Courts have also concluded that it encompasses communications made to counsel, acting as such, by independent contractors and other third parties who are functional equivalents of employees. See Trustees of the Electrical Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 7-9 (D.D.C. 2010); Memry Corp. v. Kentucky Oil Technology, N.V., 2007 WL 39373 *2 (N.D. Cal. 2007); Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 491-92 (Fed. Cl. 2000); In re Bieter Co., 16 F.3d at 935-40.
The fact that a person is a lawyer does not make all communications with that person privileged. United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (citation omitted). An entity cannot insulate documents from discovery simply by sending a “cc” to counsel. United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994) (attorney-client privilege would apply to documents copied to attorney if documents contain communications intended to be confidential and dominant purpose of communications was to obtain legal advice); see also Clavo v. Zarrabian, 2003 WL 24272641 *2 (C.D. Cal. 2003) (insufficient evidence presented to demonstrate that documents exchanged between company employees which were merely copied to counsel were privileged; mere transmittal of documents to lawyer insufficient to bring documents under umbrella of attorney-client privilege), reconsideration granted in non-pertinent part, 2004 WL 3708920 (C.D. Cal. 2004).
*10 Although the Ninth Circuit does not appear to have addressed the issue, other circuits and other district courts in the Ninth Circuit have adopted the “dominant purpose” test in assessing whether a communication is privileged, concluding that a communication is privileged if the “dominant” or “primary” purpose of the communication is to obtain legal advice. See, e.g., County of Erie, 473 F.3d 413, 420 & n.7 (2d Cir. 2007) (applying “predominant purpose” test) (citing, inter alia, 24 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5490 (1986) (observing that while this issue is “seldom discussed by the courts and writers,” the majority rule is the “dominant purpose doctrine”)); Mora v. Baroni, 2008 WL 2509143 *7 (E.D. Cal. June 23, 2008); United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002).
Correspondence which reveals the motive of the client in seeking representation, litigation strategy, or the specific nature of services provided, such as researching particular areas of law, fall within the privilege. Clarke v. American Commerce National Bank, 974 F.2d 127, 129 (9th Cir. 1992) (citations omitted). Communications between a lawyer and a client which enable the lawyer to perform a legal function are also privileged. United States v. Chen, 99 F.3d at 1501. Legal advice regarding the client's business affairs are encompassed within the attorney-client privilege. Id. Accordingly, the attorney-client privilege applies to communications between lawyers and their clients when the lawyers act in a counseling and planning role, as well as when lawyers represent their clients in litigation. Id.
The privilege generally does not apply to communications with or involving third parties. United States v. Palmer, 536 F.2d 1278, 1281 (9th Cir. 1976); United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 161 (E.D.N.Y. 1994)); see also ChevronTexaco Corp., 241 F. Supp. 2d at 1070 (privilege generally does not extend to communications between the client or his attorney and a third party).
Having said that, participants in a joint or common defense or individuals with a community of interests may communicate among themselves and with the separate attorneys on matters of common legal interest, for the purpose of preparing a joint strategy, and the attorney-client privilege will protect those communications to the same extent as it would communications between each client and his own attorney. Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007). The joint defense privilege protects not only the confidentiality of communications passing from a party to his or her attorney but also from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel. United States v. Austin, 416 F.3d 1016, 1021 (9th Cir. 2005); see also United States v. Gonzalez, 669 F.3d 974, 978 (9th Cir. 2012) (“Whether the jointly interested persons are defendants or plaintiffs, and whether the litigation or potential litigation is civil or criminal, the rationale for the joint defense rule remains unchanged: persons who share a common interest in litigation should be able to communicate with their respective attorneys and with each other to more effectively prosecute or defend their claims.”) (quoting In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir. 1990)). The privilege applies irrespective of whether or not litigation has begun or is contemplated. Continental Oil v. United States, 330 F.2d 347, 350 (9th Cir. 1964); see also Hyundee v. United States, 355 F.2d 183, 185 (9th Cir. 1965) (client's admissions to his own criminal attorney in presence of co-defendant and attorney for co-defendant protected by attorney-client privilege; communications concerned common issues and were intended to facilitate representation in possible subsequent proceedings).
*11 The burden to establish all the elements of the privilege is on the party asserting the privilege. United States v. Munoz, 233 F.3d 1117, 1128 (9th Cir. 2000). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981). Nonetheless, “hard cases should be resolved in favor of the privilege, not in favor of disclosure ... ‘[A]n uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.’ ”). United States v. Mett, 178 F.3d 1058, 1065 (9th Cir.1999) (quoting Upjohn Co., 449 U.S. at 393).
3. Attorney Work Product Doctrine
The work product doctrine/privilege, codified in Rule 26(b)(3) of the Federal Rule of Civil Procedure, generally protects from discovery documents prepared (1) in anticipation of litigation or for trial; and (2) by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent). See F.R. Civ. P. 26(b)(3); In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management) (“Torf”), 357 F.3d 900, 906 (9th Cir. 2004). A document should be deemed prepared “in anticipation of litigation,” and thus eligible for work product protection under Rule 26(b)(3) if in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation. Torf, 357 F.3d at 907 (citation omitted). The “because of” standard does not consider whether litigation was a primary or secondary motive behind the creation of a document. Id. at 908. Rather, it considers the totality of the circumstances and affords protection when it can fairly be said that the document was created because of anticipated litigation, and would not have been created in substantially similar form but for the prospect of that litigation. Id. (citation omitted). However, a generalized fear of litigation is insufficient. See Lewis v. Wells Fargo & Co., 266 F.R.D. 433 (N.D. Cal. 2010) (generalized fear of litigation does not turn compliance audit into attorney work product). The timing of the preparation of the documents in issue relative to litigation is a relevant factor to consider in assessing whether the documents were prepared in anticipation of litigation. See Lewis, 266 F.R.D. at 440-41 (fact that audits in issue began at least a year before litigation filed suggest that documents would have been created in substantially similar form even if no litigation anticipated).
Rule 26(b)(3) distinguishes between work product, which consists of factual material prepared in anticipation of litigation or trial (“fact work product”), and opinion work product, which consists of the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” F.R. Civ. P. 26(b)(3). Fact work product is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. See F.R. Civ. P. 26(b)(3); Upjohn Co., 449 U.S. at 400-02. Opinion work product is discoverable only “when mental impressions are at issue in a case and the need for the material is compelling.” Holmgren v. State Farm Mutual Automobile Insurance Co., 976 F.2d 573, 577 (9th Cir. 1992).
*12 The party claiming work product immunity has the burden of proving the applicability of the doctrine. United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D. Cal. 1995); see also United States v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006) (party asserting work product privilege bears burden of establishing that documents party seeks to protect were prepared in anticipation of litigation). To meet this burden, a party must demonstrate that its documents adhere to the essential elements of the privilege by making a prima facie showing that the privilege protects the information the party intends to withhold. In re Grand Jury Investigation, 974 F.2d 1068, 1070-71 (9th Cir. 1992) (citation omitted). The Ninth Circuit has recognized a number of means of sufficiently establishing a privilege, one of which is the privilege log approach. Id. at 1171 (citing Dole v. Milonas, 889 F.2d 885, 888 n.3, 890 (9th Cir. 1989)).[18]
4. Waiver of Attorney-Client Privilege/Work Product
Although as general matter, “[a] party is not entitled to discovery of information protected by the attorney-client privilege[,]” Navajo Nation v. Confederated Tribes & Bands of the Yakima Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citation omitted), the privilege is not absolute. Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir.), cert. denied, 534 U.S. 1066 (2001). It may be waived “either implicitly, by placing privileged matters in controversy, or explicitly, by turning over privileged documents.” Id.
An express waiver occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public. Bittaker v. Woodford, 331 F.3d 715, 719 (9th Cir.), cert. denied, 540 U.S. 1013 (2003); Tennenbaum v. Deloitte & Touche, 77 F.3d 337, 341 (9th Cir. 1996) (citing Weil, 647 F.2d at 25).[19] “Inadvertence” of disclosure does not as a matter of law prevent the occurrence of waiver. Weil, 647 F.2d at 24. Disclosures that effect an express waiver are typically within the full control of the party holding the privilege; courts have no role in encouraging or forcing the disclosure-they merely recognize the waiver after it has occurred. Bittaker, 331 F.3d at 719 & n.4 (“express” waiver need not be effectuated by words or accompanied by litigant's subjective intent; rather, privilege may be waived by client's, and in some cases the attorney's, actions, even if the disclosure that gave rise to the waiver was inadvertent) (citations omitted).
*13 Rule 502 of the Federal Rules of Evidence provides that a disclosure of a privileged document does not operate as a waiver of the privilege if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).[20] Fed. R. Evid. 502(b). The Advisory Committee Notes reflect that Rule 502(b) “does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.”
5. Privacy
Federal courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests. A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 191 (C.D. Cal. 2006). Courts balance the need for the information sought against the privacy right asserted. Id.
6. First Amendment
In Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010), amending and denying reh'g en banc of 591 F.3d 1126 (9th Cir. 2009), the Ninth Circuit held that “[a] party who objects to a discovery request as an infringement of the party's First Amendment rights is in essence asserting a First Amendment privilege.” (emphasis in original) (citation omitted). An assertion of that privilege in response to discovery is subject to a two-part framework. Id.
The party asserting the privilege must demonstrate a prima facie showing of arguable First Amendment infringement. Perry, 591 F.3d at 1140 (citing Brock v. Local Union 375, Plumbers Int'l Union of America, 860 F.2d 346 (9th Cir. 1988)). Such party must show that disclosure would result in (1) harassment, membership withdrawal, or discouragement of new members, or (2) other consequences which objectively suggest an impact on, or chilling of members' associational rights. The court in Brock noted that “[m]any courts have grappled with the sufficiency of such a showing[,]” (860 F.2d at 350 n.1 (citations omitted)), stating:
A factor emphasized in each of those decisions is the need for objective and articulable facts, which go beyond broad allegations and subjective fears. The Supreme Court, in Buckley v. Valeo, seemed to suggest that a merely subjective fear of future reprisals is an insufficient showing of infringement of associational rights. 424 U.S. at 71-72 [ ]. However, the Buckley court also recognized that “unduly strict requirements of proof could impose a heavy burden ....” The Court therefore required that the “evidence offered need show only a reasonable probability that the compelled disclosure ... subject [contributors] to threats, harassment, or reprisals from either Government officials or private parties. Id. at 74 [ ]. See also Brown v. Socialist Workers 74 Campaign Committee, 459 U.S. 87, 93 [ ] (1982); In re Grand Jury Proceeding, 842 F.2d [1229,] 1235-36; O'Neal v. United States, 601 F.Supp. [874,] 879 [(N.D. Ind. 1985)].
*14 Brock, 860 F.2d at 350 n.1.
Dole v. Service Employees Union, 950 F.2d 1456, 1460 (9th Cir. 1991) provides an example of the type of evidence that suffices to establish the prima facie case. In Dole, the union objected to a Department of Labor subpoena for its membership meeting minutes which were sought pursuant a government investigation into corruption by union officials. The court held that the union satisfied its prima facie case by showing that the members discussed sensitive and private topics during the meetings and by producing two letters from union members stating that they would no longer attend meetings if the minutes were disclosed to the government.
If the party asserting the privilege makes the necessary prima facie showing, the burden then shifts to the party seeking the information to show that (1) the information sought is rationally related to a compelling governmental interest; and (2) that the disclosure requirements are the least restrictive means of obtaining the desired information. Perry, 591 F.3d at 1140 (citing Dole, 950 F.2d at 1459-61). “[T]he party seeking the discovery must show that the information sought is highly relevant to the claims or defenses in the litigation – a more demanding standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The request must also be carefully tailored to avoid unnecessary interference with protected activities, and the information must be otherwise unavailable.” Id. “[T]he second step of the analysis is meant to make discovery that impacts First Amendment associational rights available only after careful consideration of the need for such discovery, but not necessarily to preclude it.” Id. The question is therefore whether the party seeking the discovery “has demonstrated an interest in obtaining the disclosures it seeks ... which is sufficient to justify the deterrent effect ... on the free exercise ... of [the] constitutionally protected right of association.” Id. at 1161 (citation and internal quotation marks omitted). This standard is applied by balancing the burden imposed on individuals and associations against the significance of the interest in disclosure to determine whether the interest outweighs the harm. Id. Courts may take into account the importance of the litigation, the centrality of the information sought to the issues in the case, the existence of less intrusive means of obtaining the information, and the substantiality of the First Amendment interests at stake. Perry, 591 F.3d at 1140-41.
IV. Discussion
As noted above, the Court denies Plaintiff's Motion without prejudice at this juncture because it is directed to the Subpoenas which have since been materially amended, but the Court nonetheless addresses certain of the parties' contentions to facilitate further meet and confer sessions relative to the Amended Subpoenas.
Plaintiff essentially seeks to quash the Subpoenas on the following grounds: (1) the information sought is subject to “the attorney-client privilege and work product privilege” as Plaintiff “shares a common interest privilege” with the Subpoenaed Individuals;[21] (2) the Subpoenas are improper and are intended to harass and annoy Plaintiff;[22] (3) the Subpoenas violate the First Amendment;[23] (4) the Subpoenas are not narrowly tailored/grossly overreach; (5) the Subpoenas disregard privacy rights;[24] and (6) the Subpoenas disregard other constitutional rights. (JS at 4-6, 10, 13, 16).[25] Plaintiff alternatively seeks a protective order allowing Plaintiff's counsel to review the subpoenaed items for relevance and privilege before the provision thereof to Defendant, at the expense of the defense. (JS at 10, 13, 16).
*15 Defendant essentially responds that (1) Plaintiff has failed to establish that the attorney-client privilege/work product/common interest privilege applies, but even if he could, such privilege would not cover all communications, and has to some degree been waived; (2) the Subpoenas are proper as the communications sought are relevant to Plaintiff's claims and the City's defense; and (3) the Subpoenas do not violate the First Amendment or other constitutional rights. (JS at 11-12, 13-15, 17-18). Defendant also objects to the consideration of the New Declarations submitted in conjunction with Plaintiff's Supplemental Memorandum, arguing that such materials violate Local Rules 37-2.2 and 37-2.3
First, the Court sustains in part and overrules in part Defendant's objection to consideration of the New Declarations submitted in conjunction Plaintiff's Supplemental Memorandum. After considering the authorities cited above in Part IIIA, supra, the Court is persuaded that Local Rules 37-2.2 and 37-2.3, prohibit the filing of new declarations or exhibits with a supplemental memorandum absent court authorization. Accordingly, the Court sustains Defendant's objection to the Declarations of Joseph Cameron and Andrew McEntyre (which belatedly attempt to provide evidentiary support for Plaintiff's privilege objections) because their submission violates the aforementioned Local Rules and – particularly since Plaintiff's counsel represents both Cameron and McEntyre – there is nothing in the record to suggest that such declarations could not have been timely submitted with the Joint Stipulation so that Defendant would have had an opportunity to respond to their contents.[26] The Court, however, exercises its discretion to consider the Supplemental Declaration of Aleksandra Urban and the exhibit thereto (the Amended Subpoenas) and overrules Defendant's objection thereto, because such declaration and exhibit effectively update the Court regarding a material change to the procedural predicate for Plaintiff's Motion which occurred after Plaintiff provided its portion of the Joint Stipulation to Defendant.
Second, the Court declines to sustain Plaintiff's attorney-client privilege/work product/common interest privilege objections at this juncture because Plaintiff's blanket invocation thereof is conclusory and fails to provide Defendant or the Court with sufficient information to enable the Court to assess whether the information sought is actually privileged/whether any waiver of the privilege has been effected by Plaintiff's disclosure of multiple communications with certain of the Subpoenaed Individuals. See Fed. R. Civ. P. 45(e)(2)(A). As noted above, however, because the items in issue belong to non-parties such that the details necessary to prepare an appropriate privilege log may not be available to Plaintiff, the Court would be inclined to allow Plaintiff's counsel to review the subpoenaed items for privilege (but not relevance) before the provision thereof to Defendant at Plaintiff's (not the Defendant's) expense, to require Plaintiff to produce a detailed privilege log with respect to any specific document(s) Plaintiff believes should be withheld based upon Plaintiff's assertion of privilege, and to require the parties to meet and confer regarding any remaining disputes to avoid or at least minimize the need for court intervention.
Third, to the extent Plaintiff claims the Subpoenas are improper and intended to harass and annoy Plaintiff as demonstrated by service thereof without notice to/the consent of counsel for the Subpoenaed Individuals as assertedly required by the ethical rule which prohibits contact with represented persons, the Court disagrees. As noted above (see supra note 16), Fed. R. Civ. P. 45(b)(1) expressly requires that subpoenas be personally served and the ethical rule in issue – Rule 4.2 – does not prohibit such a contact as it is “otherwise authorized by law,” i.e., Rule 45. Nor does Plaintiff point to any other provision which purports to require that advance notice be afforded to counsel for the Subpoenaed Individuals (as opposed to advance notice to Plaintiff's counsel pursuant to Rule 45(a)(4), which occurred in this case).
*16 Fourth, the Court agrees with Plaintiff that the Subpoenas are overbroad and not sufficiently narrowly tailored but declines to ascribe nefarious motives to Defendant – such as an intent to harass or intimidate – attendant thereto.[27] Defendant asserts, without reference to any specific portion of the operative Third Amended Complaint or its Answer, that the Subpoenas seek information “relevant to the claims in this suit, i.e., that the City has widespread union animus against him and the members of the ESPOA board, and also support its defenses, including its defense that Plaintiff and some of the third parties have filed lawsuits or threatened lawsuits in order to exert political pressure on the City's Police Chief and the Police Department's Command Staff.” (JS at 7). More specifically, but again without reference to any specific portion of the Third Amended Complaint or Answer, Plaintiff alleges that the communications sought through the Subpoenas are relevant because (1) Plaintiff alleges that the City failed to adequately meet and confer with him and the ESPOA Board concerning matters related to the body worn camera policy and COVID-19;[28] (2) Plaintiff alleges that the City and Department Command Staff harbored a union animus by refusing to promote members of the ESPOA Board and or retaliating against them;[29] and (3) Plaintiff has communicated with at least one current ESPOA Board member (Scott O'Connor) using encryption communication (see Yim Decl. ¶ 6; Yim Ex. 4) related to potential claims of retaliation and referencing Department Command Staff in a derogatory manner, including Chief Bill Whalen, Captain Jaime Bermudez and Lieutenant Jeff Leyman. (JS at 11, 14, 17).
The Court agrees that the Complaint very broadly alleges that the City has widespread union animus against Plaintiff and members of the ESPOA board and given the breadth of such allegations would be inclined to find relevant (irrespective of potential privilege issues) communications referencing interactions between Plaintiff/the Subpoenaed Individuals and those alleged to harbor such animus. However, in the absence of Defendant's reference to a specific portion of the Answer or any affirmative defense which asserts that Plaintiff/some of the third parties who have filed lawsuits or threatened lawsuits are doing so to exert political pressure on the City's Police Chief and the Police Department's Command Staff, the Court does not find communications relating to the filing/threatened filing of lawsuits to be relevant or proportional to the needs of the case considering the factors set forth in Rule 26(b)(1).[30] Although the Court agrees that communications concerning matters specifically alleged in the Third Amended Complaint (e.g., the body worn camera policy, whether Plaintiff could communicate with ESPOA members regarding COVID-19, the refusal to promote members of the ESPOA Board, the retaliation against Plaintiff/ESPOA board members) are relevant, the Subpoenas are not narrowly tailored to seek such communications. In light of the foregoing, and separate and apart from any privilege issues, the Court would be inclined to narrow the first two categories of items sought by the Subpoenas to the production of all documents/communications (whether encrypted or not) that the Subpoenaed Individuals published, sent to, or received from (1) Plaintiff Cameron regarding any complaint, grievance, or concern about his employment with the City that is referenced in the Third Amended Complaint from January 1, 2018 to the present; (2) any past or present ESPOA member regarding any complaint, grievance, or concern about Plaintiff Cameron's employment with the City that is referenced in the Third Amended Complaint from January 1, 2018 to the present. The Court would not be inclined to require the Subpoenaed Individuals to produce the items called for in the third, fourth and fifth categories of items sought by the Subpoenas and views the Subpoenas to be overbroad to the extent they seeks such items.
*17 Fifth, the Court declines to sustain Plaintiff's First Amendment privilege objection at this juncture because – particularly given the Court's determination that it will not consider the untimely declarations of Cameron and McEntyre – Plaintiff's blanket invocation thereof is currently unsupported by evidence sufficient to make out a prima facie case, is conclusory and fails to provide Defendant or the Court with sufficient information to enable the Court to assess whether the information sought is actually entitled to protection under the First Amendment. See Fed. R. Civ. P. 45(e)(2)(A). Again, however, because the items in issue belong to non-parties such that the details necessary to prepare an appropriate privilege log may not be available to Plaintiff, the Court would be inclined to allow Plaintiff's counsel to review the subpoenaed items for purposes of assessing whether to invoke a First Amendment privilege before the provision thereof to Defendant at Plaintiff's expense, to require Plaintiff to produce a detailed privilege log with respect to any specific document(s) Plaintiff believes should be withheld based upon Plaintiff's assertion of a First Amendment privilege, and to require the parties to meet and confer regarding any remaining disputes to avoid or at least minimize the need for court intervention.
Sixth, after weighing Defendant's need for the relevant items sought by the portions of the Subpoena which the Court has not deemed overbroad against Plaintiff's privacy interests, the Court would not be inclined to quash the Subpoenas based on Plaintiff's privacy objections.
Seventh, the Court would not be inclined to quash the Subpoenas based on Plaintiff's asserted objections regarding his other constitutional rights – apparently his rights under the Fourth and Fourteenth Amendments – as the Court is not persuaded that such amendments provide a basis to withhold discovery in response to a subpoena duces tecum in a civil action in which – as here – parties/non-parties have the opportunity to be heard in court and to challenge the reasonableness of requiring production of items pursuant thereto in advance of such production.
V. Order
IT IS THEREFORE ORDERED:
1. Plaintiff's Motion is denied without prejudice.
2. Counsel are directed forthwith to further meet and confer in good faith to attempt to resolve, or at least narrow the parties' disputes regarding the Amended Subpoenas.
Footnotes
In connection with Plaintiff's Motion, the parties submitted a a Notice of Hearing (“Notice”), a Joint Stipulation (“JS”), a Declaration of Kevin Lipeles (“Lipeles Decl.”), a Declaration of Aleksandra Urban (“Urban Decl.”) with exhibits (“Urban Ex.”), a Declaration of Joung H. Yim (“Yim Decl.”) with exhibits (“Yim Ex.”), a Declaration of Douglas Winter (“Winter Decl.”), a Declaration of Robert M. Wexler (“Wexler Decl.”), Plaintiff's Supplemental Memorandum with three additional declarations (collectively, “New Declarations”) of Aleksandra Urban (“Urban II Decl.”) with exhibits (“Urban II Ex.”), Andrew McEntyre and Joseph Cameron, and Defendant's Objections to New Declarations Filed with [Plaintiff's] Supplemental Memorandum of Law Pursuant to Local Rule 37-2.3. (Docket Nos. 45, 47, 68).
Although not fully supported by evidence in the record, it appears that the Subpoenaed Individuals are all current or former members of the Board of Directors of the El Segundo Police Officers Association (alternatively, “ESPOA”). See Lipeles Decl. ¶ 4 (identifying Andrew McEntyre as ESPOA board member; referencing Defendant's desire to “forensically image the phones of the ESPOA Board”); Wexler Decl. ¶¶ 4, 5 (identifying Jeffrey Humphrey as President of ESPOA; referencing Defendant's intent to forensically image all/parts of cellular phones belonging to “members of the Board of Directors of ESPOA”); Yim Decl. ¶ 6 (identifying Scott O'Connor as current ESPOA Board member); JS at 15-16 (representing that Brandon Browning, Ryan Smith, Eric Atkinson, Jeff Humphrey, Scott Black are members of the ESPOA Board). Contrary to Plaintiff's/other declarants' indication (JS at 4; Lipeles Decl. ¶ 4; Urban Decl. ¶ 2; Wexler Decl. ¶ 4; Winter Decl. ¶ 5), the Subpoenas do not actually call for forensic images of the Subpoenaed Individuals' cell phones, although they do call for, among other types of documents, electronic copies of certain ESI with metadeta which may be located on cell phones/other electronic devices. See infra Part IIB.
The Court expects that as with the original Subpoenas, Defendant will extend the deadline to comply with the Amended Subpoenas until the parties have resolved/reached a compromise regarding their differences or the Court has ruled on a motion regarding the Amended Subpoenas.
California Government Code section 3506 prohibits public agencies and employee organizations from interfering with, intimidating, restraining, coercing or discriminating against public employees because of their exercise of their rights under section 3502, which essentially affords public employees the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations, the right refuse to join or participate in the activities of employee organizations, and the right to represent themselves individually in their employment relations with the public agency. Cal. Gov't Code §§ 3506, 3502.
California Government Code section 3502.1 provides: “No public employee shall be subject to punitive action or denied promotion, or threatened with any such treatment, for the exercise of lawful action as an elected, appointed, or recognized representative of any employee bargaining unit.”
The parties have not provided this Court with any information regarding the entity “Connect Political” or its role relative to the instant proceeding beyond that which may be inferred from the Subpoenas/Amended Subpoenas.
The parties have not provided this Court with any information regarding the entity “Public Safety Consultants, LLC” or its role relative to the instant proceeding beyond that which may be inferred from the Subpoenas/Amended Subpoenas.
This category is modified to call for information about Plaintiff's referenced “employment” instead of “any aspect of” his referenced employment. Compare Urban Ex. A with Urban II Ex. C.
This category is modified to call for information (a) published, sent to, or received from any past or present “employee of the City” instead of any past or present ESPOA member; and (b) about Plaintiff's referenced “employment” instead of “any aspect of” his referenced employment. Compare Urban Ex. A with Urban II Ex. C.
This category is unchanged. Compare Urban Ex. A with Urban II Ex. C.
This category is modified to insert “strategizing about, publicizing or marketing” in the place of “any union matters, negotiations, social marketing, general strategies, political strategies, community involvement, and/or[.]” Compare Urban Ex. A with Urban II Ex. C.
This category is also modified to insert “strategizing about, publicizing or marketing” in the place of “any union matters, negotiations, social marketing, general strategies, political strategies, community involvement, and/or[.]” Compare Urban Ex. A with Urban II Ex. C.
Categories 6-9 are new. Compare Urban Ex. A with Urban II Ex. C.
Rule 34, pertaining to the production of documents, states that “[a]s provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.” Fed. R. Civ. P. 34(c).
Pursuant to Rule 45(b)(1), serving a subpoena requires delivering a copy to the named person. Fed. R. Civ. P. 45(b)(1).
Although Plaintiff appears to suggest that Defendant had an additional obligation beyond service of such notice to confer with counsel for Plaintiff, counsel for certain other Subpoenaed Individuals and counsel for the ESPOA/its Board of Directors before issuing the Subpoenas (JS at 2-3, 5; Urban Decl. ¶ 2; Wexler Decl. ¶¶ 4, 5; Winter Decl. ¶¶ 5, 6; Plaintiff's Supplemental Memorandum at 5), Plaintiff points to no authority which so requires. Plaintiff relies on Rule 4.2 (previously Rule 2-100) of the California/State Bar Rules of Professional Conduct – which, with certain exceptions, essentially prohibits a lawyer from communicating directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, absent the consent of the other lawyer – and suggested that defense counsel violated such rule by causing at least Andrew McEntyre (who Plaintiff's counsel represents in a similar but unrelated case against the City) to be served with one of the Subpoenas in issue (Urban Decl. ¶ 5; Plaintiff's Supplemental Memorandum at 5-6). The Court disagrees. Rule 4.2(c)(2) of the California Rules of Professional Conduct expressly provides that Rule 4.2 does not prohibit “communications otherwise authorized by law ....” As noted above (see supra note 15), Rule 45 expressly requires that subpoenas be personally served. Fed. R. Civ. P. 45(b)(1). Accordingly, service of the Subpoenas upon McEntyre (and others) – even if they are represented on the subject matter in issue – did not violate Rule 4.2 because such service is expressly authorized, and indeed required by law, i.e., Fed. R. Civ. P. 45(b)(1).
Plaintiff, for example, relies on California Government Code 3506, whereas Defendant relies on California Evidence Code section 912 and California state privilege cases.
If a party asserting a privilege has made a threshold showing sufficient to demonstrate the essential elements of the privilege in issue, an opposing party seeking to justify an in camera review must show a factual basis sufficient to support a reasonable good faith belief that in camera inspection may reveal evidence that information in the materials is not privileged. Id. at 1075. If the party makes such a showing, the decision whether to conduct an in camera review rests within the discretion of the court. Such discretion is to be guided by the factors enumerated in Zolin, 491 U.S. 554 (courts should make decision to review in light of amount of material they have been asked to review, the relevance of the alleged privilege material to the case, and the likelihood that in camera review will reveal evidence to establish the applicability of exception warranting production of material). Id. at 1075.
However, confidential communications between third parties such as independent contractors, who are the functional equivalents of employees, and counsel, acting in such capacity, may be privileged where the communication is intended to facilitate the attorney's ability to render legal advice to the client. See, e.g., Memry Corp. v. Kentucky Oil Technology, N.V., 2007 WL 39373 *2 (N.D. Cal. 2007) (characterizing disclosure to independent contractors and other third parties who are functional equivalents of employees as “exception” to general rule that disclosure to third parties waives the attorney-client privilege).
Rule 26(b)(5) addresses claims of privilege and work product protection. As to information withheld on such bases, it requires a party expressly to so claim, and to describe the nature of the items not produced or disclosed 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). As to information produced which is subject to such a claim, Rule 26(b)(5) indicates that the party making the claim may notify the receiving party of such claim and the basis therefor, that the receiving party must promptly return or otherwise dispose of such information, and that the receiving party may promptly present the information to the court under seal for a determination of the claim. Fed. R. Civ. P. 26(b)(5)(B).
As Plaintiff's Motion to Quash is expressly brought by Plaintiff's counsel on behalf of Plaintiff only (see, e.g., Notice), the Court does not address objections to the Subpoenas which may be asserted by/on behalf of others in the Joint Stipulation or declarations from Subpoenaed Individual Andrew McEntyre (who Plaintiff's counsel represents in a separate matter), Subpoenaed Individual O'Connor and attorney Douglas Winter (who represents O'Connor in a separate matter), and attorney Robert M. Wexler (who represents the ESPOA Board). For example, to the extent Plaintiff's Motion may purport to assert non-common interest-based attorney-client privilege/work product objections relative to Andrew McEntyre as to communications between McEntyre and his own counsel (who also happens to be Plaintiff's counsel), Plaintiff's Motion brought on behalf of Plaintiff only is not a proper vehicle to do so.
Plaintiff also argues that the Subpoenas are intended to harass and annoy the Subpoenaed Individuals and the ESPOA Board (JS at 10) but – as discussed in note 21, supra – because Plaintiff's Motion brought on behalf of Plaintiff only is not a proper vehicle through which to assert objections on behalf of others, the Court will not address such objections herein.
Apparently in connection with such objection Plaintiff asserts that the Subpoenas will have a chilling effect on constitutionally protected activities like freedom of speech and freedom of association (e.g., they will make it unlikely that at least certain Subpoenaed Individuals will continue to communicate about Plaintiff's claims and their own claims which are the subject of active litigation, and will discourage others from becoming ESPOA Board members or joining ESPOA at all).
For reasons previously explained – see supra notes 21 & 22 – the Court construes this objection to refer to Plaintiff's privacy rights only.
The Court utilizes the pagination on the electronic version of the Joint Stipulation on CM/ECF.
In light of the Court's denial of Plaintiff's Motion without prejudice, the Court expects Defendant to consider the information contained within such declarations in meeting and conferring with Plaintiff (and, if appropriate the Subpoenaed Individuals) regarding the Amended Subpoenas.
Although irrelevance and overbreadth are not among the litany of enumerated reasons for quashing a subpoena found in Rule 45, courts have incorporated such matters as factors when determining motions to quash a subpoena. See, e.g., Travelers Indem. Co. v. Metropolitan Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005) (“An evaluation of undue burden requires the court to weigh the burden to the subpoenaed party against the value of the information to the serving party. Whether a subpoena imposes an ‘undue burden’ depends upon ‘such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed.’ ” (quoting United States v. Int'l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979)).
See TAC ¶¶ 38, 39 (referencing body camera policy and meeting re same); TAC ¶¶ 89-91 (referencing COVID-19).
See TAC ¶¶ 1, 26 (referencing alleged retaliation against Plaintiff); TAC ¶¶ 31, 50 (referencing alleged retaliation against ESPOA Board members and Plaintiff); TAC ¶ 82 (referencing alleged refusal to promote Plaintiff); TAC ¶ 80 (referencing alleged retaliation against Plaintiff); TAC ¶ 85 (referencing alleged retaliation against Plaintiff and alleged refusal to promote Plaintiff); TAC ¶ 86 (referencing alleged retaliation against Plaintiff); TAC at 22 (First Claim for Relief) & TAC ¶ 118 (referencing alleged retaliation against Plaintiff/refusal to promote Plaintiff and ESPOA Board members); TAC ¶ 135 (referencing alleged retaliation against ESPOA Board members and alleged refusal to promote ESPOA Board members); TAC at 30 (Fifth Claim for Relief) & TAC ¶ 152 (referencing alleged retaliation against Plaintiff/refusal to promote Plaintiff); TAC ¶ 163 (referencing alleged retaliation against Plaintiff); TAC at 32 (Seventh Claim for Relief) & TAC ¶ 172 (referencing alleged retaliation against Plaintiff).
Nor is it clear to the Court that Plaintiff's alleged filing of this action to exert political pressure upon others would even constitute a defense.