Shenbaum v. City of Manhattan Beach
Shenbaum v. City of Manhattan Beach
2024 WL 5411348 (C.D. Cal. 2024)
December 30, 2024
Stevenson, Karen L., United States Magistrate Judge
Summary
The plaintiffs filed a motion to compel the production of documents and for attorneys' fees, alleging that the defendants' legal hold procedures were deficient and resulted in the deletion of text messages and emails. However, the court found that the defendants' procedures were not deficient and denied the plaintiffs' request for sanctions and an adverse inference jury instruction for spoliation. The court also denied the plaintiffs' request for an order prohibiting the defendants from using any discovery at trial that was not produced to the plaintiffs.
David Shenbaum et al.
v.
City of Manhattan Beach et al
v.
City of Manhattan Beach et al
Case No.: CV 22-8062-KS
United States District Court, C.D. California
Filed December 30, 2024
Stevenson, Karen L., United States Magistrate Judge
Proceedings: ORDER RE: PLAINTIFF'S MOTION TO COMPEL REGARDING PLAINTIFFS' REQUESTS FOR PRODUCTION AND ATTORNEYS' FEES [DKT. NO. 93]
*1 Before the Court is Plaintiffs' Motion to Compel Regarding Plaintiffs' Requests for Production and Attorneys' Fees (“Motion”) filed in the joint stipulation format on November 27, 2024, along with several declarations and related exhibits. (Dkt. No. 93.) The Court held oral argument on the Motion on December 18, 2024 and took the matter under submission. (Dkt. No. 96.)
For the reasons discussed below, the Motion is DENIED in its entirety. Defendants' request to strike the Declaration of Thomas H. Schelly is GRANTED.
RELEVANT BACKGROUND
This is a civil rights action arising out of Defendant City of Manhattan Beach's alleged approval, adoption, and ratification of policies constituting a continuing pattern and practice of retaliation, discrimination, harassment, and intentional violations of Plaintiffs' rights. (See Dkt. No. 38.) Plaintiffs filed the operative third amended complaint (“TAC”) on July 31, 2023. (Dkt. No. 38.) On October 11, 2023, former United States Magistrate Judge Michael R. Wilner dismissed the allegations of retaliatory conduct in the first cause of action except for those concerning “the City's enactment of the 2020 Battalion Chief Contract allegedly in retaliation for Plaintiffs' protected public speech” as well as the second and third causes of action regarding Defendant City's liability via ratification and Monell[1] theories under Section 1983. (Id. ¶ 4.) Defendant timely answered the TAC on November 1, 2023. (Dkt. No. 48.)
On August 28, 2024, following Judge Wilner's retirement from the Court, this case was reassigned to Chief Magistrate Judge Karen L. Stevenson. (Dkt. No. 66.) On October 18, 2024, Plaintiffs filed a motion for leave to file a fourth amended complaint (“FAC”) to add facts concerning (1) the liability of City Manager, Bruce Moe (“Moe”) and the Fire Chief, Michael Lang (“Lang”); (2) the imposed contract; and (3) the testing change and Lang's perjury. (Dkt. No. 76-1 at 10-12.) The Court denied Plaintiffs' motion for leave in its entirety, finding the motion was untimely, and Plaintiffs could not demonstrate that the allegations they sought to add were newly discovered. (See Dkt. No. 92.) During a scheduling conference with the parties on October 29, 2024, the Court extended the fact discovery cut-off to December 30, 2024. (See Dkt. No. 79.)
On November 14, 2024, the Court held a telephonic conference with counsel for the parties regarding numerous discovery disputes raised by Plaintiffs. (Dkt. No. 91.) During that hearing, the Court found that “Plaintiffs have effectively waived any objections to the parameters for basic document searches.” (Id. at 3.) The Court further found that “in camera review of Defendants' privilege log and certain documents redacted on the basis of the assertion of attorney-client privilege is appropriate” and ordered that “Defendants [ ] provide their entire privilege log to the Court on or before November 20, 2024,” along with copies of the redacted and unredacted documents identified on the privilege log. (Id.) The Court also ordered Defendants to “provide Sworn Affidavits signed by the custodians of the devices regarding the status of accessing those devices collected for this litigation and for which Defendants have represented that the devices cannot be accessed or have been lost or returned to the MHBFD.” (Id. at 4.) Lastly, the Court allowed the parties to brief their positions on the remaining issues in an expedited motion to compel in joint stipulation format pursuant to Local Rule 37-2. (Id.) The parties timely filed the instant Motion on November 27, 2024. (Dkt. No. 93.)
LEGAL STANDARDS
I. Scope of Permissible Discovery
*2 A party may obtain discovery concerning any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). When determining if the proportionality requirement has been met, courts consider six factors: (1) the importance of the issues at stake in the action; (2) the amount in controversy; (3) the parties' relative access to relevant information; (4) the parties' resources; (5) the importance of the discovery in resolving the issues; and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Relevant information need not be admissible to be discoverable. Id.
Federal Rule of Civil Procedure 37 provides that “[a] party seeking discovery may move for an order compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). Once the moving party demonstrates the relevance of its motion to compel discovery per Rule 26(b)(1), “the party opposing discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections.” Cortinas v. Vasquez, No. 1:19-cv-00367-JLT-SKO (PC), 2023 U.S. Dist. LEXIS 44489, at *4 (E.D. Cal. Mar. 16, 2023). “An opposing party can meet its burden by demonstrating that the information is being sought to delay bringing the case to trial, to embarrass or harass, is irrelevant or privileged, or that the person seeking discovery fails to show need for the information.” Colaco v. ASIC Advantage Simplified Pension Plan, 301 F.R.D. 431, 434 (N.D. Cal. 2014).
District courts have broad discretion in controlling discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). When considering a motion to compel, the Court has similarly broad discretion in determining relevancy for discovery purposes. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005) (citing Hallet, 296 F.3d at 751).
II. Attorney-Client Privilege
The attorney-client privilege protects confidential communications between clients and attorneys that are made for the purpose of giving legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). Whether information is covered by the attorney-client privilege is determined by an eight-part test:
(1) Where legal advice of any kind is sought; (2) from a professional legal advisor acting as such; (3) communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are permanently protected; (7) from disclosure by the client or by the legal advisor; (8) unless the protection is waived.
United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010). The attorney-client privilege is strictly construed. Weil v. Investment/Indicators, Research and Mgmt. Inc., 647 F.2d 18, 24 (9th Cir. 1981). The party asserting the attorney-client privilege has the burden of establishing the existence of the attorney-client relationship and the privileged nature of the communication. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal citation omitted.)
DISCUSSION
I. Failure to Safeguard Electronically Stored Information (“ESI” and Destruction of Evidence
Plaintiffs first assert that the City's legal hold procedures were deficient. (Dkt. No. 93 at 4.) As a result, Bruce Moe, former City Manager for the City of Manhattan Beach, deleted several of his text messages from his cell phone. (Id. at 4-5.) Additionally, Plaintiffs argue that the City failed to update its policy of automatically purging emails after two years, resulting in several human resources employees' emails being deleted. (Id. at 6.) Plaintiffs assert that “sanctions are warranted” and “request jury instructions permitting the presumption that the destroyed evidence was unfavorable to the City, the opportunity to present evidence and arguments at trial regarding the deletion, or alternatively monetary sanctions to emphasize that such conduct will not be tolerated.” (Id. at 7.)
*3 Defendant City contends that it properly instructed employees not to delete emails and text messages in accordance with the legal hold letters. (Id. at 18-19.) Defendant City also contends that “Plaintiffs do not show prejudice because they fail to explain the relevance of any of the ESI they allege they lost.” (Id. at 34.) Furthermore, because “[t]here is no evidence of intentional destruction of evidence, no evidence of bad faith, nor evidence of any prejudice to Plaintiffs in pursuing their claims by the unintentional deletion of lower-level HR emails,” the City contends that “Plaintiffs' request for a spoliation jury instruction is unsupported by the evidence and should be denied by the Court.” (Id. at 35.)
The Court has reviewed Defendant City's legal hold procedures and communications and finds that Defendants' legal hold procedures were not deficient. Further, Plaintiffs have not demonstrated that they have been prejudiced by the loss of ESI or that any alleged loss of ESI was intentional by Defendant. See Fed. R. Civ. P. 37(e)(1)-(2).
II. Adverse Inference Jury Instruction Not Warranted Here
When considering a request for an adverse inference instruction based on the destruction of evidence, the party seeking the instruction must show: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records at issue were destroyed with a culpable state of mind; and (3) that the evidence “was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1078 (N.D. Cal. 2006) (citing Residential Funding Corp., v. DeGeorge Fin., Corp., 306 F.3d 99 (2d Cir. 2002)).
In establishing the requisite “state of mind,” bad faith is not required; willfulness or fault may be sufficient. Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (internal citation omitted). Destruction of evidence may be deemed wilfull spoliation if the party was on “some notice that the documents were potentially relevant to the litigation before they were destroyed.’ ” Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006) (emphasis in original, internal citations omitted). The Ninth Circuit has emphasized that “[a] party does not engage in spoliation when, without notice of the evidence's potential relevance, it destroyed the evidence according to its policy in the normal course of business.” United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 758 (9th Cir. 2008).
Here, Plaintiffs fail to establish the requisite state of mind and the potential relevance of any information that may have been destroyed according to Defendant City's policies in the normal course of its business. Unigard Sec. Ins. Co., 982 F.2d at 368. Plaintiffs have, therefore, failed to establish that an adverse inference jury instruction for spoliation is warranted here. Plaintiffs' bare speculation that Defendant City acted with the culpable state of mind to destroy potentially relevant information is not sufficient.
Accordingly, Plaintiffs' requests for sanctions and an adverse inference jury instruction re: spoliation are DENIED.
III. Duty to Conduct Thorough Searches for ESI and Failure to Amend Responses to Requests for Production (“RFPs”)
Next, Plaintiffs assert that “Defendants have yet to provide the agreed-upon Amended Responses to the RFP Sets One, Two, or Three.” (Dkt. No. 93 at 7.) “Plaintiffs request that Defendants amend their responses to the RFPs to include only documents from 2018 onward, excluding privileged materials, with a privilege log provided as previously agreed in their initial responses.” (Id. at 8.) “If no responsive documents exist, the responses should be amended to state so.” (Id.) Plaintiffs assert that the relevant RFP numbers are as follows: 1-4, 8-9, 12, 14-19, 21-23, 31-44, 47-48, 50-52, 54, 56, 60, 63-64, 66-67, 69-75, 77-79, 87-88, 91-95, 97-101, 103-106, 110, 116-121, 127-132, 140-144, 152, 158, 163-164, 175-179, 185-213, 215, and 217. (Id.)[2] “Plaintiffs request an order prohibiting Defendants from using any discovery at trial that was not produced to Plaintiffs, as many RFPs sought evidence Defendants would rely on at trial but were objected to and not produced.” (Id. at 8-9.)
*4 Defendants contend that “Plaintiffs have not and cannot identify any specific documents they have been denied, nor how they have been prejudiced by such a denial.” (Id. at 20.) Defendants also assert that: (1) Plaintiffs waived challenges to the fundamental search terms by waiting until well into the discovery period; (2) their responses to the above RFPs stated that Defendants would search for responsive documents from 2018 onwards; and (3) Defendants have provided Plaintiffs with a privilege log. (Id. at 20-21.) Defendants assert that “considering the City has already provided documents from the time range requested and provided a privilege log,” the relief sought by Plaintiffs is unclear. (Id. at 21.)
After reviewing the parties' briefing and related declarations, Plaintiffs' RFPs, Defendants' Objections and Responses to the RFPs, and Defendants' privilege log, the Court agrees that, at this late stage in the discovery process, after thousands of pages of documents have been produced, any challenge to the initial search terms would be highly prejudicial to the extent Plaintiffs seek to have a re-do of Defendants' broad search and review for documents. In addition, because the general rule is that a party cannot use at trial late produced documents that were not produced in discovery, and a party has a continuing duty to disclose evidence, the Court finds that a preemptive order prohibiting Defendants from using any discovery at trial that was not produced to Plaintiff to be unnecessary. Indeed, Rule 26(e)(1) already requires that:
a party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission – must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process[.]
F.R.C.P. 256(e)(1)(A).
Accordingly, after reviewing the parties' briefing, supporting declarations, the discovery requests and responses at issue, and hearing the parties' arguments at the hearing on the Motion, Plaintiffs' requests for Defendants to provide further amended responses to the RFPs and an order prohibiting Defendants from using any discovery at trial that was not produced to Plaintiffs are DENIED without prejudice to any party's right to seek any appropriate motion(s) in limine prior to trial.
IV. Failure to Produce
Plaintiffs assert that Defendants objected to all 13 requests in RFP, Set 4 using boilerplate language, and that Defendant has improperly altered the requests to restrict the production of relevant documents. (Dkt. No. 93 at 9.) Accordingly, Plaintiffs request an order compelling Defendants to produce the documents requested in the following RFPs. (Id.) Defendant contends that its responses and objections are valid. (Id. at 21.)
The RFPs and responses that are at issue are reproduced in relevant part as follows:
Any and all DOCUMENTS RELATING TO the testing process for becoming Battalion Chief and/or Division Chief at the Manhattan Beach Fire Department from 2014 to the present.
The City objects to this request as overbroad, irrelevant, unduly burdensome, and disproportionate to the needs of the case. The Court's October 11, 2023 order granting in part the City's motion to dismiss states that the TAC will proceed based on only two alleged retaliatory acts: the City's adopting of the 2020 MBFMA Agreement, and the alleged post-complaint retaliation. Plaintiffs' alleged protected speech (the vote of no confidence) occurred in 2018. The requested information is not tailored to either alleged retaliatory act or the protected speech. The City objects to this request to the extent it seeks information that is protected by the attorney-client privilege, the attorney work-product doctrine, deliberative process privilege, or any other privilege or rule of law.
*5 Without waiving the foregoing objections, the City responds as follows: The City will produce documents in its possession, custody, or control related to Plaintiffs' 2022 interviews, testing, and the required qualifications at that time.
Any and all DOCUMENTS RELATING TO the process utilized for ranking candidates for promotion to Battalion Chief and/or Division Chief at the Manhattan Beach Fire Department from 2014 to the present.
The City objects to this request as overbroad, irrelevant, unduly burdensome, and disproportional to the needs of the case.... Without waiving the foregoing objections, the City responds as follows: The City will produce the eligibility lists from 2019 to 2022 and the documents in its possession, custody, or control related to Plaintiffs' 2022 interviews, testing, and the required qualifications at that time.
Any and all DOCUMENTS and/or COMMUNICATIONS RELATING TO the dissolution of the MBFMA.
The City objects to this request as overbroad, irrelevant, unduly burdensome, and disproportional to the needs of the case.... Without waiving the foregoing objections, the City responds as follows: The City will provide the October 2022 request from Kevin Tiscareno to dissolve the MBFMA.
Any and all DOCUMENTS RELATED TO how those persons who interviewed and/or rated candidates for Battalion Chief/Division Chief at the Manhattan Beach Fire Department from January 2019 to the present were chosen to be interviewers or raters.
The City objects to this request as overbroad, irrelevant, unduly burdensome, and disproportional to the needs of the case.... Without waiving the foregoing objections, the City responds as follows: The City will provide Plaintiffs' 2023 Interview Ratings Sheet and the City's communications with the interviewers related to the interviews.
Any and all DOCUMENTS and/or COMMUNICATIONS RELATED TO YOUR policies CONCERNING employees' salary reduction and/or compaction from June 2011 to the present.
The City objects to this request as overbroad, irrelevant, unduly burdensome, and disproportional to the needs of the case.... City objects that the phrase “policies concerning employees' salary reduction and/or compaction” is vague and ambiguous and the City will interpret it to mean wage and salary terms as forth in the contract and MOUs which are being produced in response to other requests.
Having considered Defendants' Objections and Responses to RFP, Set 4, and the arguments of the parties at the hearing on the Motion, the Court concludes that that requests in RFP, Set 4 are disproportionate to the needs of the case and wholly irrelevant to the limited remaining claims given the Court's ruling on Plaintiffs' Motion for Leave to File a Fourth Amended Complaint (see Dkt. No. 92).
Accordingly, the Court will not require Defendants to respond to RFP, Set 4. Plaintiffs' request for an order compelling Defendants to produce the documents as requested is DENIED.
V. Failure to Cooperate and Discovery Delays
Plaintiffs assert that Defendants have failed to cooperate in discovery in the following ways, thus causing discovery delays:
(1) Defendants failed to propose meaningful terms and to cooperate in limiting false hits;
*6 (2) Defendants' privilege log omitted Bates numbers, relying on internal document identifiers and failing to show relationships between documents;(3) Defendants failed to produce documents in numerous RFPs despite agreeing to do so;(4) Defendants' counsel permitted their employees to self-collect evidence by manually searching their computers instead of using proper data extraction methods thus causing delays and the potential omitting of responsive documents;(5) Defendants incorrectly claimed they could not unlock the cell phones of Laursen and Hafdell;(6) Defendants withheld 119 documents from the privilege log related to contract negotiations between Peter Brown and Mike McGill;(7) Defendants objected to all RFPs.
(Dkt. No. 93 at 13-15.) Based on the above, Plaintiffs seek $9,000.00 in attorney fees and costs for the delays incurred due to Defendants' failure to comply with discovery obligations. (Id. at 16.)
Defendants contend that Plaintiffs improperly attempt to litigate settled discovery matters such as the City's custody of the cell phones and the use of agreed-upon search terms. (Id. at 26.) Defendants further contend that “the City worked diligently in light of Plaintiffs' massive demands and were consistently responsive, even when Plaintiffs themselves were not.” (Id. at 28.)
Plaintiffs request that the Court award them attorney fees and costs for the delays purportedly caused by Defendants' failure to comply with discovery obligation. (Dkt. No. 93 at 16.) But Plaintiffs' recitation of various discovery issues that the Court addressed during its informal discovery conference with the parties on November 14, 2024, and in this Order, does not support an award of attorneys' fees. Indeed, Rule 37 provides that the Court “must not” award reasonable fees incurred by a moving party when an “opposing party's nondisclosure, response or objection was substantially justified; or other circumstances make an award of expenses unjust.” F.R.C.P. 37(a)(5)(A)(ii), (iii).
Here, the Court already found that Plaintiffs effectively waived any objections to the parameters for basic document searches by waiting until the near close of fact discovery to first present their objections to the Court. (See Dkt. No. 91 at 3.) Plaintiffs have also effectively waived any objections regarding Defendants' custody of the cellphones as Plaintiffs concede they are now the custodians of those cellphones. Furthermore, the Court already found above that Defendants' legal hold procedures, handling of ESI, and RFP Objections and Responses were not deficient as Plaintiffs assert.
The Court, therefore, finds that an award of attorney fees and costs, the imposition of sanctions, or any other remedial relief would be unjust and unwarranted. Plaintiffs' request for $9,000 in attorneys' fees is DENIED.
THE PARTIES' OBJECTIONS TO SUPPORTING DECLARATIONS
I. Declaration of Thomas H. Schelly
Defendants object to the Declaration of Thomas H. Schelly on the following grounds: (1) Plaintiffs failed to send the City a copy of the Schelly Declaration prior to its filing; (2) Plaintiffs failed to meet and confer with the City prior to moving to compel production of responses to their Fourth set of Requests for Production; and (3) Mr. Schnell failed to justify the reasonableness of his rate and failed to differentiate the various rates of individuals working on the Motion. (Dkt. No. 94.)
*7 Under Local Rule 37, “counsel for the moving party must personally deliver, e-mail, or fax 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.” C.D. Cal. L.R. 37-2.2. Failure to confer in a timely manner or to provide the opposing party's portion of the joint stipulation in a timely manner may result in the Court not considering the motion or any portion thereof. C.D. Cal. L.R. 37-2.4. Because Plaintiffs' counsel failed to timely present the Declaration of Thomas H. Schelly to Defendant's counsel, the Court orders that Declaration the be STRICKEN.
II.Affidavit of Miguel Guardado
Plaintiffs object to the Affidavit of Miguel Guardado on the following grounds: (1) the statement in Paragraphs 2, 5, and 6 are untrue because Miguel Guardado did not begin his role as the Information Technology Director for the City of Manhattan Beach until October 10, 2023; (2) the statements in Paragraphs 4 and 8 constitute hearsay as Miguel Guardado has no direct knowledge of these statements. (Dkt. No. 95 at 1-3.) Plaintiffs request an order compelling Defendants to provide affidavits from each City employee, relevant to this case, who was assigned a cell phone or iPad, detailing: (1) the state of the phone/iPad upon its return; (2) to whom the phone/iPad was returned; (3) the date the phone/iPad was returned, and (4) the condition of the phone/iPad when returned (e.g., reset, locked, etc.). (Id. at 3-4.)
To the extent Plaintiffs challenge the veracity of certain statements in the Guardado Affidavit or the basis of his knowledge on behalf of Defendant City based on his role as the current Information Technology Director for Defendant City, that objection is OVERRULED. Other than the statements of counsel, Plaintiffs offer no admissible evidence countering Mr. Guardado's purportedly false statements. Second, Plaintiffs cannot use their objection to the Guardado Affidavit as the basis to seek an order compelling additional discovery concerning the cell phones from a potentially wide-ranging group of City employees. Indeed, even if such a request were procedurally proper, Plaintiffs fail to demonstrate the relevance and/or proportionality of such a request with respect to the remaining two alleged actions of retaliation as articulated in the Third Amended Complaint. Accordingly, Plaintiffs' request for further discovery based on their objections to the Guardado Affidavit is DENIED.
CONCLUSION
For the reasons outlined above, Plaintiffs' Motion is DENIED in its entirety. Defendant City's request to strike the Declaration of Thomas H. Schelly is GRANTED.
IT IS SO ORDERED.