*1 On June 16, 2021, plaintiff filed a motion to compel defendant County of San Bernardino to produce documents requested at defendant's deposition. Docket no. 192. Plaintiff's motion is supported by the declaration of plaintiff's counsel Rebekah Yabko (“Yabko Decl.”) and exhibits thereto. On June 29, 2021, defendant filed an opposition to plaintiff's motion to compel, which is supported by the declaration of defense counsel Jacqueline L. Shulman (“Shulman Decl.”). Plaintiff filed a reply in support of her motion to compel on July 6, 2021, supported by another declaration of plaintiff's counsel (“Yabko Reply Decl.”). Plaintiff additionally filed a declaration of plaintiff's counsel Jack H. Anthony on July 9, 2021. On the same day, defendant filed an objection to plaintiff's additional declaration on the ground that it was untimely and an improper reply to defendant's opposition.

The parties came before the court for a hearing on July 13, 2021, at which they reported one category of documents and information requested remains at issue. After considering the arguments advanced and the record before it, the court denies plaintiff's motion to compel without prejudice, and orders further meet and confer.

On February 18, 2020, plaintiff Jennifer Gerrie, individually and as a personal representative of her deceased daughter Makayla Massey, filed a Second Amended Complaint (“SAC”) alleging eight causes of action: (1) 42 U.S.C. § 1983 Unwarranted Seizure; (2) 42 U.S.C § 1983 Deception in the Presentation of Evidence; (3) 42 U.S.C. § 1983 Failure to Provide Minimally Adequate Care and Maintain Safety and Security; (4) Monell Related Claim; (5) Wrongful death; (6) Breach of Mandatory Duties; (7) Breach of Duties Imposed Under Special Relationship; and (8) Negligence.

On January 3, 2020, plaintiff sent defendant County of San Bernardino a meet and confer letter to defendant to discuss defendant's responses to various of plaintiff's first set of document requests, including defendant's refusal to produce SafeMeasures documents and information. Yabko Decl. ¶ 2, Ex. 1. During the subsequent telephonic conference on January 10, 2020, defendant said it would provide further responses. Id. ¶ 4, Ex. 2. On January 30, 2020, defendant provided further responses, in which it provided objections and again refused to produce SafeMeasures documents. Id. ¶ 6. On February 12, 2020, plaintiff sent defendant a second meet and confer letter, and provided a redacted copy of SafeMeasures documents from another case to defense counsel. Id., Ex. 3. The parties held their second telephonic conference on February 25, 2020, at which defendant indicated it was going to follow up with plaintiff as to what documents defendant was willing to produce. Id. ¶ 8, Ex. 4.

After inquiring about the status of defendant's production on March 9 and 12, 2020 and receiving no response, plaintiff informed defendant that she would proceed with preparing her portion of the joint stipulation. Id. On April 29, 2020, plaintiff filed a motion to compel defendant to produce documents responsive to her Requests for Production of Documents (“RFPs”) Nos. 38 and 44, which ask defendant to produce copies of any and all SafeMeasures case history report regarding the decedent from January 1, 2018 through the present. See docket no. 102. On June 3, 2020, the court denied plaintiff's motion to compel on the ground that defendant was not required to produce documents that did not exist, and ordered the parties to further meet and confer regarding whether SafeMeasures data could be produced as electronically stored information (“ESI”). See docket no. 123 at 6-7.

*2 On August 21, 2020, plaintiff served an amended deposition notice on defendant, requesting defendant to designate one or more persons most knowledgeable (“PMK”) to testify under Rule 30(b)(6) on 42 topics, and requesting production of 38 categories of documents. Yabko Decl. ¶ 10, Ex. 5. Defendant served its objections and responses on October 7, 2020. Id. ¶ 11, Ex. 6. On October 15, 2020, plaintiff deposed defendant's PMK, Teri Self. Id. ¶ 14, Ex. 7. During the deposition, Self testified that SafeMeasures was responsive to almost every request, but defendant refused to produce SafeMeasures documents and ESI. Id., Ex. 7 at 25, 26, 33-35, 36, 43, 55, 56, 58, 59, 64-65, 69, 73-75, 78.

On June 2, 2021, plaintiff's counsel Rebekah Yabko sent defendant a meet and confer letter regarding the documents requested at defendant's October 15, 2020 deposition, and requested a telephonic conference, which would have occurred on or before June 14, 2021. Id. ¶ 16, Ex. 8. On June 9, 2021, defense counsel Mark Rudy, who was responsible for objecting to the documents requests at issue, sent an email to all counsel, including plaintiff's counsel, advising he was on vacation from June 9-11, 2021 with no ability to access files. Shulman Decl. ¶¶ 4, 7, Ex. A. After defense counsel did not respond to the June 2 letter, plaintiff filed the instant motion on June 16, 2021. Yabko Decl. ¶ 18. During this same time frame, the parties engaged in separate meet and confer discussions regarding other discovery disputes, but at no point during these discussions, did plaintiff's counsel ever bring up the SafeMeasures or ESI issues related to the instant motion. Shulman Decl. ¶¶ 8-13.

On June 29, 2021, defendant spoke with plaintiff's counsel and advised her that there had been a SafeMeasures policy change, and defendant was authorized and willing to produce decedent's SafeMeasures Case History Report. Id. ¶ 15. Because defendant believed this was the only document at issue and defendant was prepared to produce it immediately, defendant requested that the subject motion be taken off calendar so defendant did not have to prepare an opposition. Id. ¶ 16. In response, plaintiff indicated she would not withdraw her motion unless defendant produced all ESI of all SafeMeasures documents and those responsive to Request No. 32, which asks for “SafeMeasures dashboard, history, reports, maps, KPIs, lists, and graphs.” Id. ¶ 18, Ex. B. Defendant responded that it would not waive its objections to plaintiff's Request No. 32. Id. ¶ 19. The parties held another meet and confer conference on July 12, 2021, during which the parties briefly discussed this motion and defendant produced the SafeMeasures Case History Report. At the July 13, 2021 hearing, plaintiff stated the July 12 meet and confer resolved much of this motion, but Request No. 32 remains at issue.

As filed, this instant motion asks the court to compel defendant County to produce a SafeMeasures Case History Report and all SafeMeasures data in the form of ESI regarding the decedent in response to Requests Nos. 2-17 and 19-32 made in the amended notice of deposition of defendant's PMK, which plaintiff took on October 15, 2020. See Mtn. at 2, 6-22, 23; Yabko Decl., Ex. 5. 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. Mtn. at 25-26; Yabko Decl., Ex. 10. During the hearing, defendant indicated that it produced the SafeMeasures Case History Report, and plaintiff acknowledged that this Report resolved the parties' disputes as to Request Nos. 2-31. As such, the only remaining dispute concerns plaintiff's Request No. 32, which asks defendant to produce “any SafeMeasures dashboards, history, reports, maps, [key performance indicators], lists, and graphs for Makayla Massey.” See Yabko Decl., Ex. 5, Att. B.

*3 Defendant argues plaintiff failed to meet and confer in good faith regarding plaintiff's discovery requests at issue prior to filing the instant motion. See Opp. at 10-12. Local Rule 37-1 requires that counsel for the parties must meet and confer in good faith to resolve as many of the disputes as possible before filing any discovery-related motion. The parties must confer within ten days after the moving party serves a letter requesting such conference. L.R. 37-1.

Here, plaintiff failed to satisfy its meet and confer obligation under Local Rule 37 prior to filing the instant motion. Although the parties met and conferred regarding plaintiff's request for SafeMeasures documents in 2020, those discussions concerned different discovery requests and did not involve whether SafeMeasures documents could be produced in the form of ESI. See Yabko Decl. ¶¶ 2-8, Exs. 1-4. In the court's June 3, 2020 order, the court specifically instructed the parties to meet and confer regarding whether defendant could produce SafeMeasures documents in the form of ESI. See docket no. 123 at 6. Despite this instruction, plaintiff waited until June 2, 2021, almost a year after the court's order, and eight months after the October 15, 2020 deposition of defendant's PMK, to send a single meet and confer letter about the discovery requests at issue. Shulman Decl. ¶ 13. Meanwhile, defense counsel Mark Rudy, who was responsible for handling any objections to the document requests at issue, informed plaintiff that he would be on vacation from June 9-11, 2021, which reduced the amount of time defendant had to adequately respond to plaintiff's meet and confer letter. Id. ¶¶ 7-9, Ex. A. Instead of following up with defendant to determine their availability to meet and confer after learning counsel was on vacation, plaintiff immediately filed the instant motion.

Plaintiff's single failed attempt to confer about her request for SafeMeasures data in the form of ESI did not amount to a good faith effort to attempt to resolve all of their disputes prior to filing the instant motion. Plaintiff's failure to sufficiently meet and confer is further demonstrated by the fact that the SafeMeasures Case History Report produced by defendant pursuant to further meet and confer efforts made after this motion was filed in fact resolved most of the discovery disputes at issue in the instant motion. The remaining dispute regarding plaintiff's Request No. 32 may likewise be resolved with further meet and confer.

Plaintiff argues that SafeMeasures data in the form of ESI is relevant to plaintiff's Monell claim because it presents a readily accessible summary of an assigned social worker's activity or lack of activity on a given child's dependency case, and this will show that any supervisor could access this information to monitor the social worker's performance handling decedent's case. See Reply at 4. Plaintiff also argues that SafeMeasures ESI data would allow plaintiff to ensure that she has obtained all relevant documents by cross-referencing what has already been produced, and it would provide additional information that is not contained within the juvenile file. Id. at 3. Specifically, plaintiff contends the SafeMeasures data includes time to referral assignment, time to investigation, time to first actual/attempted contact, time to first actual contact to close, time to investigation, time open of emergency response, and time to approved case plan. Id., Ex. 11.

*4 Courts have found that “the primary source of ESI to be produced during discovery's progression should be active ESI, typically defined as ESI currently or habitually in use by the requested entity.” U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 246 (S.D. Cal. 2015). Request No. 32, which seeks “any SafeMeasures dashboards, history, reports, maps, KPIs, lists, and graphs for Makayla Massey,” appears consistent with what is normally permitted under the Federal Rules of Civil Procedure. Further, as plaintiff argues, this information appears sufficiently relevant to plaintiff's Monell claim since it may provide more information about the social worker's performance on decedent's case and the supervisor's ability to monitor that performance.

Nonetheless, given the lack of full meet and confer, the court will not now order defendant to produce data in response to Request No. 32. During the hearing, rather than contest the relevance of this information, defendant primarily argued that Request No. 32 calls for information that only SafeMeasures has access to, and that it would need to request authorization from SafeMeasures in order to produce such data. At first blush the court finds it implausible that the County lacks authority over its own data, but the record has not been developed on this point, and this is a matter the parties must further discuss, with defendant bearing the burden to support its contention that it lacks authority to produce the data. In addition, the parties should further meet and confer about which specific SafeMeasures reports and other ESI plaintiff is seeking, and how defendant can best access this information from SafeMeasures.

Based on the foregoing, plaintiff's motion to compel production of documents requested at defendant's deposition (docket no. 192) is denied without prejudice, and the parties are ordered to further meet and confer as set forth above.