*1 On October 18, 2023, defendants County of San Bernardino, San Bernardino County Sheriff's Department, John McMahon, Shannon D. Dicus, Trevor Strand, and Daniel Popa (“Defendants”) filed a Motion seeking an order quashing the subpoena served on non-party Deputy District Attorney Lynette Grulke (“Motion to Quash”). ECF Docket Nos. (“Dkts.”) 85, 86. On the same date, plaintiff Julius Taylor (“Plaintiff”) filed a Motion seeking an order compelling defendant County of San Bernardino to produce documents responsive to Plaintiff's Requests for Production, Set Two, Nos. 7, 9, and 10 (“Motion to Compel”). Dkts. 88, 89. For the reasons set forth below, Defendants' Motion to Quash is GRANTED IN PART and DENIED IN PART and Plaintiff's Motion to Compel is DENIED.

On December 14, 2021, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 1983 against defendants County of San Bernardino, San Bernardino County Sheriff's Department, John McMahon, and Does 1 through 20. Dkt. 1. Plaintiff alleges violations of his Fourth and Fourteenth Amendment rights and related state-law claims arising from a July 8, 2021 incident during which a San Bernardino County Sheriff's Department deputy shot Plaintiff. Id.

On February 8, 2022, Plaintiff filed a First Amended Complaint adding defendant Shannon D. Dicus. Dkt. 14.

On June 28, 2022, Plaintiff filed a Second Amended Complaint (“SAC”). Dkt. 33.

On September 16, 2022, defendants County of San Bernardino, San Bernardino County Sheriff's Department, John McMahon, and Shannon D. Dicus filed an Answer to the SAC. Dkt. 50.

On October 21, 2022, Plaintiff filed a Third Amended Complaint (“TAC”) adding defendants Trevor Strand and Daniel Popa. Dkt. 56.

On November 10, 2022, Defendants filed an Answer to the TAC. Dkt. 60.

On November 22, 2022, the Court issued a Scheduling Order and set a discovery cut-off of June 19, 2023 and a jury trial for October 24, 2023. Dkt. 66.

On June 8, 2023, the Court granted Plaintiff's Motion to modify the November 22, 2022 Scheduling Order and continued the discovery cut-off to January 15, 2024 and the jury trial to May 21, 2024. Dkt. 76.

On June 29, 2023, Plaintiff served Requests for Production, Set Two, on defendant County of San Bernardino. Dkt. 89-1 at 1-3, Declaration of Michelle R. Prescott in Opposition to Plaintiff's Motion to Compel (“Prescott MTC Decl.”), ¶ 3, Ex. A.

On August 28, 2023, defendant County of San Bernardino served responses to Plaintiff's Requests for Production of Documents, Set Two. Id., ¶ 4, Ex. B.

On September 25, 2023, Plaintiff served a subpoena on non-party Deputy District Attorney Lynette Grulke commanding Ms. Grulke to appear for deposition on October 27, 2023. Dkt. 86-1 at 1-3, Declaration of Michelle R. Prescott in Support of Defendants' Motion to Quash (“Prescott MTQ Decl.”), ¶ 3, Ex. A. In addition, the subpoena commanded Ms. Grulke to produce documents (1) “evidencing a communication made or received that shows [Ms. Grulke's] involvement in all matters pertaining to the shooting incident of July 8, 2021”; (2) “related to the findings of the July 8, 2021 shooting”; and (3) “related to any meetings had or observed pertaining to the July 8, 2021 shooting[.]” Id.

*2 During the week of October 2, 2023, counsel for the parties met and conferred telephonically regarding defendant County of San Bernardino's responses to Plaintiff's Requests for Production of Documents, Set Two. Prescott MTC Decl., ¶ 7. The parties were unable to reach an agreement. Id., ¶ 8.

On October 4, 2023, Defendants served objections to Plaintiff's subpoena of Ms. Grulke. Prescott MTQ Decl., ¶ 4, Ex. B. Specifically, Defendants argued the subpoena subjects Ms. Grulke to an “undue burden” given that “Ms. Grulke's limited involvement in this action was confined solely to her attendance at a meeting and the reading of reports prepared as a result of that meeting that have already been provided to [Plaintiff's] counsel.” Id. In addition, Defendants argued the subpoenaed documents are protected by the attorney-client privilege and work product doctrine. Id.

On October 9, 2023, counsel for the parties met and conferred telephonically regarding Defendants' objections to the subpoena. Id., ¶¶ 8-9, Ex. F. The parties were unable to reach an agreement. Id.

On October 18, 2023, Defendants filed the instant Motion to Quash with a Joint Stipulation pursuant to Local Rule 37-1. Dkts. 85, 86. On October 27, 2023, Defendants filed a Supplemental Brief in support of the Motion to Quash. Dkt. 93. On October 30, 2023, Plaintiff filed a Supplemental Brief in opposition to the Motion to Quash. Dkt. 94.

Also on October 18, 2023, Plaintiff filed the instant Motion to Compel with a Joint Stipulation pursuant to Local Rule 37-1. Dkts. 88, 89. On October 26, 2023, Defendants filed a Supplemental Brief in opposition to the Motion to Compel. Dkt. 92. On November 1, 2023, Plaintiff filed a Supplemental Brief in support of the Motion to Compel. Dkt. 98.

On October 23, 2023, Plaintiff filed the operative Fourth Amended Complaint (“4AC”). Dkt. 91.

On October 30, 2023, Defendants filed an Answer to the 4AC. Dkt. 96.

The matters thus stand submitted.

Federal Rule of Civil Procedure 26(b) provides that parties may obtain discovery regarding

Fed. R. Civ. P. 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).

A. DEFENDANTS' MOTION TO QUASH IS GRANTED IN PART AND DENIED IN PART

1. Applicable Law

A party seeking discovery from a nonparty may obtain a subpoena pursuant to Federal Rule of Civil Procedure 45 (“Rule 45”). Amini Innovation Corp. v. McFerran Home Furnishings, Inc., 300 F.R.D. 406, 409 (C.D. Cal. 2014). The scope of discovery allowed under a Rule 45 subpoena is the same as that allowed under Federal Rule of Civil Procedure 26. Miller v. Ghirardelli Chocolate Co., No. C 12-4936 LB, 2013 WL 6774072, at *2 (N.D. Cal. Dec. 20, 2013).

*3 A court “must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” FED. R. CIV. P. 45(d)(3)(A). When a party seeks to quash a subpoena on the basis of an asserted privilege, the party asserting the privilege has “the burden of establishing all of the elements of the privilege.” Green v. Baca, 226 F.R.D. 624, 650 (C.D. Cal. 2005).

2. Analysis

As an initial matter, the Court finds the subpoenaed documents are relevant to Plaintiff's claims. Plaintiff's claims arise from the July 8, 2021 incident during which a San Bernardino County Sheriff's Department deputy shot Plaintiff. See dkt. 92. It is undisputed that Ms. Grulke was involved in a subsequent investigation of the July 8, 2021 incident. See dkt. 89 at 11-12, 14-15. Documents related to Ms. Grulke's investigation of the July 8, 2021 incident are, therefore, relevant to Plaintiff's claims arising from the July 8, 2021 incident. See Medina v. Cnty. of San Diego, No. 08-cv-1252 BAS (RBB), 2014 WL 4793026, at *10 (S.D. Cal. Sept. 25, 2014) (finding records created in the course of investigation into fatal shooting incident were “clearly relevant” to plaintiffs' claims arising from the incident).

Defendants argue the subpoenaed documents are protected by the attorney-client privilege. See dkt. 86 at 9-13. The attorney-client privilege applies when legal advice is sought from a professional legal advisor in her capacity as such, and the communications relating to that purpose are made in confidence by the client. Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995) (citing United States v. Miller, 874 F.2d 1255 (9th Cir. 1989)). Here, however, Defendants have not met their burden of demonstrating the attorney-client privilege applies to the subpoenaed documents. See Green, 226 F.R.D. at 650. First, Defendants fail to identify which specific documents have been withheld on the basis of attorney-client privilege. See Clarke v. Am. Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992) (holding “blanket assertions” of privilege are “extremely disfavored” and claims of privilege “must ordinarily be raised as to each record sought to allow the court to rule with specificity”). Second, Defendants offer no evidence supporting a conclusion that an attorney-client relationship existed between Ms. Grulke and Defendants or that Defendants had a reasonable expectation of confidentiality in their communications with Ms. Grulke. Defendants' conclusory statement that the subpoenaed documents encompass communications “made in confidence by Defendants to Ms. Grulke in her role as a Deputy District Attorney” is insufficient to establish the applicability of the attorney-client privilege. See Griffith, 161 F.R.D. at 696 (finding attorney-client privilege inapplicable to federal officer's statements during agency investigation into fatal shooting incident because officer could have no reasonable expectation of confidentiality with respect to these statements). Hence, Defendants have not established the subpoenaed documents are protected by the attorney-client privilege.

Defendants additionally argue the subpoenaed documents are subject to the work product doctrine. The work product doctrine protects against discovery of “documents and tangible things prepared by a party or his representative in anticipation of litigation.” United States v. Sanmina Corp. & Subsidiaries, 968 F.3d 1107, 1119 (9th Cir. 2020). Here, however, Defendants have not met their burden of demonstrating the work product doctrine applies to the subpoenaed documents. See Green, 226 F.R.D. at 650. Defendants have offered no specific facts or evidence establishing the subpoenaed documents were prepared “by or for” a party to the instant litigation. See Doubleday v. Ruh, 149 F.R.D. 601 (E.D. Cal. 1993) (finding work product doctrine did not apply to documents prepared by County prosecutor with respect to prior criminal proceedings because documents were not prepared “for” County defendant). Likewise, Defendants have offered no specific facts or evidence establishing the subpoenaed documents were prepared as “as an aid in possible future litigation.” See Myles v. Cnty. of San Diego, No. 15-cv-1985-BEN (BLM), 2016 WL 2343914, at *10 (S.D. Cal. May 4, 2016) (finding documents from internal investigation into sheriff's deputies' alleged misconduct were “assembled in the ordinary course of business,” not “as an aid in possible future litigation”). Hence, Defendants have not established the subpoenaed documents are protected by the work product doctrine.

*4 Finally, Defendants appear to object to production of the subpoenaed documents on the basis of the official information privilege. See dkt. 86 at 6-7. Courts recognize a “qualified” privilege for official information, under which a court must “balance the government's interest in protecting official information from disclosure against the plaintiff's need for the information.” Rogers v. Giurbino, 288 F.R.D. 469, 481 (S.D. Cal. 2012). The party asserting the official information privilege must make a “substantial threshold showing,” including “a specific identification of the governmental or privacy interests that would be threatened by disclosure” and “a description of how disclosure subject to a carefully crafted protective order would create substantial risk of harm to significant governmental interests if disclosure were made.” Id. Here, Defendants have not met their burden of demonstrating the official information privilege precludes disclosure of the subpoenaed documents. See Boyd v. City & Cnty. of San Francisco, No. C-04-5459 MMC (JCS), 2006 WL 1141251, at *5 (N.D. Cal. May 1, 2006) (finding official information privilege did not preclude disclosure of prosecutorial file where district attorney “failed to provide specific information about the governmental and privacy interests that would be jeopardized by the disclosure of the documents sought in this case” (emphasis in original)). In fact, despite referencing the official information privilege in their briefing, Defendants fail to provide any argument with respect to its applicability. See dkt. 86. Hence, Defendants have not established the subpoenaed documents are protected by the official information privilege.

Defendants' Motion to Quash is, therefore, DENIED with respect to production of the subpoenaed documents. Ms. Grulke shall serve responses to the subpoena on Plaintiff no later than December 1, 2023.

Nevertheless, the Court finds requiring Ms. Grulke to appear for deposition at this time would subject Ms. Grulke to undue burden. See Fed. R. Civ. P. 45(d)(3)(A). In evaluating whether a subpoena subjects a person to “undue burden, a court “weigh[s] the burden to the subpoenaed party against the value of the information to the serving party,” considering factors such as relevance and the party's need for the requested information. Moon v. SCP Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005) (quoting Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005)). Here, requiring Ms. Grulke to appear for an in-person deposition would, among other things, render her unavailable for court appearances in her role as a Deputy District Attorney. Furthermore, Plaintiff has not shown deposing Ms. Grulke would provide relevant information that Plaintiff cannot obtain from her production of the subpoenaed documents. Thus, Plaintiff's need to depose Ms. Grulke does not outweigh the burden imposed by requiring her to appear for deposition. Defendants' Motion to Quash is, therefore, GRANTED with respect to the deposition of Ms. Grulke.

B. PLAINTIFF'S MOTION TO COMPEL IS DENIED

1. Applicable Law

Federal Rule of Civil Procedure 34 (“Rule 34”) governs requests for production of documents. Fed. R. Civ. P. 34. A party may request documents “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). The responding party must respond in writing and is obligated to produce all specified relevant and nonprivileged documents, tangible things, or electronically stored information in its “possession, custody, or control” on the date specified. Fed. R. Civ. P. 34(a). Alternatively, a party may state an objection to a request, including the reasons. Fed. R. Civ. P. 34(b)(2)(A)-(B).

“A party seeking discovery may move for an order compelling an answer, ... production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B)(iii), (iv). “[A]n evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). “In moving to compel the production of documents, the moving party has the burden of demonstrating ‘actual and substantial prejudice’ from the denial of discovery.” Grossman v. Dirs. Guild of Am., Inc., No. EDCV 16-1840-GW (SPx), 2018 WL 5914242, at *4 (C.D. Cal. Aug. 22, 2018). In addition, “relevancy alone is no longer sufficient to obtain discovery, the discovery requested must also be proportional to the needs of the case.” Centeno v. City of Fresno, No. 1:16-CV-653 DAD (SAB), 2016 WL 7491634, at *4 (E.D. Cal. Dec. 29, 2016) (citing In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016)).

2. Analysis

*5 Request for Production No. 7 seeks “any and all reports and calls for service taken by San Bernardino County Sheriff's Department or any other law enforcement agency, county, city, federal or other governmental agency at or near the LOCATION of the INCIDENT ... for the two years before July 8, 2021.” Prescott MTC Decl., ¶ 3, Ex. A.

Request for Production No. 9 seeks “[a]ny and all DOCUMENTS that show that portion of Hillview Street where the INCIDENT took place as a high crime area.” Id.

Request for Production No. 10 seeks “any and all reports where officer Trevor Strand of the San Bernardino County Sheriff's Department recovered a weapon in the last two years prior to the date of July 8, 2021.” Id.

Defendant County of San Bernardino objected to Requests for Production Nos. 7, 9, and 10 on the grounds of vagueness, ambiguity, overbreadth, and relevance. Id., ¶ 4, Ex. B. In addition, in its responses to Requests for Production Nos. 7, 9, and 10, defendant County of San Bernardino stated:

Id.

Plaintiff contends “[a]ny allegations of data breaches or network interruptions are insufficient to excuse Defendants['] responsibility to produce” documents responsive to Requests for Production Nos. 7, 9, and 10, because “a data breach does not entail the removal of any data[.]” Dkt. 89 at 10. However, Defendants have produced a declaration from Systems Information Administrator Andy Lerma indicating, as of October 16, 2023, “the documents involved in the data breach ha[ve] not been restored to the County of San Bernardino, the San Bernardino County Sheriff's Department, or any other county agency.” Dkt. 89-2 at 1-3, Declaration of Andy Lerma, ¶ 5. Mr. Lerma further stated defendant County of San Bernardino “is currently working with a third party forensic services firm to attempt to recover the data subject to the data breach[,]” but, as of October 16, 2023, “the documents sought by [Requests for Production Nos. 7, 9, and 10] are unable to be accessed as a result of the data breach.” Id., ¶¶ 5, 7. The Court cannot compel a party to produce documents that do not exist or are not in its possession, custody, or control. See Bryant v. Armstrong, 285 F.R.D. 596, 607-08 (C.D. Cal. 2012) (stating a party cannot be compelled to produce documents that are not in the party's possession, custody, or control). In addition, Plaintiff's mere speculation that the requested documents must be in defendant County of San Bernardino's possession, custody, or control because “a data breach does not entail the removal of any data[ ]” is insufficient to compel further responses from defendant County of San Bernardino.[1] See Moran v. Pak, No. SACV 16-0705-CJC (DFMx), 2017 WL 11632943, at *2 (C.D. Cal. Jan. 4, 2017) (“[C]ourts do not grant motions to compel based solely on speculation that the responding party has incorrectly asserted that all responsive documents have been produced.”).

*6 Accordingly, Plaintiff's Motion to Compel is DENIED.

For the reasons set forth above, Defendants' Motion to Quash is GRANTED IN PART and DENIED IN PART and Plaintiff's Motion to Compel is DENIED. Ms. Grulke shall serve responses to the subpoena on Plaintiff no later than December 1, 2023.

IT IS SO ORDERED.