Sanchez v. Albertson's LLC
Sanchez v. Albertson's LLC
2021 WL 9826687 (D. Nev. 2021)
October 27, 2021

Albregts, Daniel J.,  United States Magistrate Judge

Instant Messaging
Redaction
Privilege Log
Text Messages
Social Media
Facebook
Failure to Produce
Proportionality
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Summary
The court granted the defendant's motion to compel and motion for sanctions, and ordered the plaintiff to provide responsive documents to the requests for production and a privilege log for those documents he had withheld. The court also ordered the plaintiff to download complete copies of his Facebook and Twitter accounts from a year before the incident and provide a proper privilege log for his social media accounts. The plaintiff was required to follow the Federal Rules of Civil Procedure and Federal Rules of Evidence in his future disclosures.
Additional Decisions
Victor Sanchez, Plaintiff,
v.
Albertson's LLC, et al., Defendants
Case No. 2:19-cv-02017-JAD-DJA
United States District Court, D. Nevada
Filed October 27, 2021

Counsel

Jordan P. Schnitzer, The Schnitzer Law Firm, Las Vegas, NV, for Plaintiff.
Jacquelyn Michelle Franco, Melissa Roose, Xiao Wen Jin, Jack P. Burden, Backus, Carranza & Burden, Las Vegas, NV, for Defendants.
Albregts, Daniel J., United States Magistrate Judge

Order

*1 This is a personal injury action arising out of an umbrella that fell on Plaintiff Victor Sanchez's head while he was shopping at Defendant Albertson's store for which he claims $15,225,835.26 in future damages and $115,511.02 in past medical damages. After the Court granted Defendant's motion to compel (ECF No. 32) and motion for sanctions (ECF No. 41), Plaintiff filed a motion for clarification, asking the Court to explain perceived contradictions in its orders. (ECF No. 50). The Court grants Plaintiff's motion to the extent it provides the clarification below. The Court finds these matters properly resolved without a hearing. LR 78-1.
 
I. Background.
A. Plaintiff's responses to Defendants RFP Nos. 30-33.
Defendant's RFP Nos. 30-33, asked Plaintiff to:
Provide copies of any and all written communications including but not limited to text messages, Facebook messenger and/or email between You and/or Carrie Comrie[, David Lack, Michael Escobedo, and Celia Reynolds] relating to this subject incident.
 
(ECF No. 32 at 9). After the Court granted Defendant's motion to compel responses to these requests, Plaintiff responded to these RFPs with 13 pages of messages. (ECF No. 41-5). Most of the messages are screenshots of brief conversations between Plaintiff and unknown numbers. See id. at 2-5. In a few of those snippets, Plaintiff talks about his chiropractor, his lack of income, and his attorney. See id. at 2-3. In another, Plaintiff discusses his brain damage, that he received an offer of judgment with which he was unhappy, and that he would be meeting with someone who is unidentified because the message cuts off. See id. at 5. In another set of two emails, Plaintiff's former romantic partner details the difficulty Plaintiff has faced since his accident. See id. Both emails appear to be in response to a prompt from Plaintiff. See id. But Plaintiff did not provide his email that prompted this response. In another single screenshot of a text conversation, a person named “Dave” asserts that he hopes “they lose 20 million for screwing your life over.” See id. at 6. There are no other screenshots or messages to provide context or explain what Plaintiff and Dave were discussing or why it is relevant to his case. In the final set of messages, Plaintiff discusses his financial difficulties with Michael Escobedo and asks him how his conversation with Plaintiff's attorney went. See id. at 9-14. This conversation—the longest of all of them—only includes certain days in February of an unknown year and December of 2020. See id.
 
Defendant moved for sanctions after receiving these messages. (ECF No. 41). It argued:
The emails and text messages Plaintiff produced appear to be selective responses to Plaintiff's prompts for written support for his case and from a former romantic partner and other friends. Several texts have an unverified sender. None of the texts or the emails provide Plaintiff's original prompt for the conversation. All of the texts do provide glowing, heavily solicited support for his case.
 
*2 The Court granted this motion. (ECF No. 49). The Court found that Plaintiff had provided “meager texts and emails, selectively chosen” and did not provide a privilege log to support the missing parts of the messages. Id. at 4. In his motion for clarification, Plaintiff explains that he was only required to produce communications “relating to this subject incident,” which is why he “selectively chose the texts, messages and emails...” (ECF No. 50). “Plaintiff requests clarification regarding what else the Court believes Plaintiff should produce in response to RFP 30-33 or if the [ECF 49] wording inadvertently expanded this Court's Order from [ECF 40].” Id.
 
B. Plaintiff's responses to Defendant's request for copies of his social media accounts.
After Defendant moved to compel Plaintiff to produce copies of his social media accounts, the Court ordered that:
Plaintiff must download complete copies of his Facebook accounts under the names “Victor Sanchez,” “Vic Sanchez,” and “Wayde King Water Filtration – for the Whole House,” along with copies of his Twitter accounts under the names “Wayde King Water Filtration – for the Whole House,” and “VIC” from April 14, 2017 (a year before the incident) up to and including the date that Plaintiff downloads the data. Plaintiff's counsel must then review the documents, preserve the account for additional review, and produce the items which discuss or show the incident, Plaintiff's injuries, or the impact of the incident on Plaintiff's personal relationships, his ability to work, or his ability to engage in activities he had previously enjoyed. ...Plaintiff's counsel must produce a copy of Plaintiff's Facebook accounts with redactions where Plaintiff's counsel has withheld items to Defendant's counsel. Plaintiff's counsel must also produce a privilege log showing each redaction and giving an explanation why each redacted item was withheld.
 
(ECF No. 40 at 7). But Plaintiff produced the wrong things, instead providing only a heavily redacted activity log—rather than a complete copy of the account—for a different account under “Vitar Sancho.” (ECF No. 41-4). Defendant moved for sanctions, arguing in part that Plaintiff produced the wrong thing and that the privilege log Plaintiff untimely produced for the “Vitar Sancho” page was insufficient. (ECF Nos. 41 at 8, 46 at 2-3). Plaintiff's privilege log included only two fields of information: the bates number and the reason for withholding. (ECF No. 45-3).
 
After the Court granted Defendant's motion for sanctions related, in part, to Plaintiff's privilege log, Plaintiff sought clarification. (ECF No. 50). Plaintiff explains he redacted items that were not responsive to the Court's order which did not “discuss the incident, Plaintiff's injuries, or the impact of the incident on Plaintiff's personal relationships, his ability to work, or his ability to engage in the activities he had previously enjoyed.” (ECF No. 50). Plaintiff seeks clarification on “whether the Court is now ordering Plaintiff to produce the Facebook log in its entirety regardless of whether or not it relates to the topics delineated in [ECF 40 at 7:9-13].” Id.
 
II. Discussion.
Under Federal Rule of Evidence 401, evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. Fed. R. Evid. 401. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Under Federal Rule of Civil Procedure 26(b)(5)(A), “[w]hen a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so 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 it applies to the attorney-client privilege, the Ninth Circuit has found a privilege log which contains the following information to be sufficient: “(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.” In re Grand Jury Investigation, 974 F.2d 1068, 1070-71 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 888 n.3 (9th Cir.1989)).
 
A. Plaintiff must provide responsive documents to RFP Nos. 30-33 and a privilege log for those responsive documents he has withheld.
*3 Plaintiff claims that he “selectively chose” texts, emails, and messages to comply with the Court's Order at ECF 40 to produce communications “relating to this subject incident.” (ECF No. 50). Plaintiff asks whether the Court's language in ECF 40 “was meant to encompass more than what was requested in RFP 30-33.” Id. He also requests clarification regarding “what else the Court believes Plaintiff should produce in response to RFP 30-33.” Id.
 
To clarify, the Court found Plaintiff's “selectively chosen” texts, emails, and messages to violate his discovery obligations because they violated the Rules of Evidence and of Civil Procedure. Plaintiff's “selectively chosen” items omitted texts, emails, and messages that were responsive to RFP Nos. 30-33, relevant, and discoverable, without providing a sufficient privilege log, or any privilege log at all. The Court did not expand the scope of ECF 40 or of RFP Nos. 30-33.
 
Take, for example, ECF No. 41-5 at 5. It depicts a screenshot showing only part of a conversation with an unknown number who appears to be “Dave.” (ECF No. 41-5). This is the only part of this conversation thread that Plaintiff has produced. But there is clearly more within Plaintiff's messages to this person that are responsive to RFP Nos. 30-33, relevant, and discoverable. In his message to this individual, Plaintiff explains that he “was calling to tell you about what's been going on with my case...” His next message to this person involves Plaintiff's attorney and begins to talk about the “red flags with my case” before it cuts off. The remainder of this message is clearly responsive to RFP Nos. 30-33, relevant, and discoverable, but Plaintiff withholds it without providing a privilege log. This is a direct violation of the Rules.
 
Another example of a direct violation is Plaintiff's assortment of screenshots of a message he received from Carrie Comrie detailing the injuries Plaintiff has faced. (ECF No. 41-5 at 8). These screenshots selectively exclude Plaintiff's message to Comrie that prompted her to send a letter, clearly a responsive, relevant, and discoverable message. And Plaintiff's prompt clearly exists as an email—not as a call or in-person conversation—because Plaintiff provides the beginning of his email to Comrie:
From: Mr Vis <vics7739@gmail.com>
Date: Thu, Nov. 2019, 7:42 AM
Subject: Letter explaining our break-up Victor Sanchez and Carrie?
 
Plaintiff's withholding of this initial message without a privilege log is a direct violation of the Rules.
 
These are only two examples of Plaintiff's direct violations of the Rules. But Plaintiff's other withholdings—even if not direct violations—are suspicious. One method Plaintiff could have employed to avoid this suspicion is to have produced the entire message thread of each email, each text conversation, and each message conversation with redactions for non-responsive and privileged information. Plaintiff must closely follow the Federal Rules of Civil Procedure and Federal Rules of Evidence in his future disclosures following the use of an IT professional to gather his outstanding emails, texts, and messages.
 

B. Plaintiff must provide a proper privilege log for his social media accounts.
Plaintiff asserts that he redacted items from his Facebook activity log for “relevance” because they were not responsive to the Court's Order at ECF No. 40. (ECF No. 50). He asks “whether the Court is now ordering Plaintiff to produce the Facebook log in its entirety regardless of whether or not it relates to the topics delineated in [ECF 40 at 7:9-13]. Id.
 
*4 To clarify, the Court does not expect Plaintiff to produce items that are not responsive to Defendant's requests for production. However, Plaintiff's privilege log was insufficient to comply with Federal Rule of Civil Procedure 26(b)(5)(A) because it did not describe the nature of the communications in a manner that would enable Defendant to assess his claim of responsiveness. The purpose of Plaintiff producing a privilege log along with his redactions to his social media accounts was so that Defendant could decide whether to challenge certain redactions. Plaintiff's current privilege log prevents Defendant from doing so.
 
Plaintiff's redactions require more explanation considering his heavy redactions and prior failures to produce information. The Ninth Circuit's factors that it uses to evaluate claims of attorney client privilege are instructive here. In creating his privilege log, Plaintiff should provide the: (1) individuals involved in each conversation, comment, or photo; (2) the nature of the conversation, comment, or photo; (3) all individuals shown in the interaction to whom Plaintiff sent the conversation, comment, or photo, if applicable; (4) and the date the conversation, comment, or photo was generated.
 
IT IS THEREFORE ORDERED that Plaintiff's motion for clarification is granted as stated herein. Plaintiff is directed to comply with these directives in his future discovery responses.
 
DATED: October 27, 2021