Couch v. State of California, et al
Filing
153
ORDER Regarding California Department of Corrections and Rehabilitation's Motion to Modify Portions of Plaintiffs' Subpoenas; ORDER Regarding Request to Strike Declarations signed by Magistrate Judge Dennis L. Beck on 06/23/2011. Requests due by 7/1/2011; Responses due by 7/22/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RYAN COUCH, et al.,
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Plaintiffs,
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v.
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TOMMY WAN, KIMBERLI BONCORE, )
and RALPH DIAZ
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Defendants.
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1:08cv1621 LJO DLB
ORDER REGARDING CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION’S MOTION TO MODIFY
PORTIONS OF PLAINTIFFS’ SUBPOENAS
ORDER REGARDING REQUEST TO STRIKE
DECLARATIONS
(Documents 131 and 149[Sealed])
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On May 16, 2011, Real Party in Interest/Non-Party California Department of Corrections
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and Rehabilitation (“CDCR”) filed the instant motion to modify portions of Plaintiffs’ subpoenas
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pursuant to Federal Rule of Civil Procedure 45. CDCR also filed a request to strike Plaintiffs’
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declarations. The motions were heard before the Honorable Dennis L. Beck, United States
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Magistrate Judge, on June 20, 2011. Mary Horst, Deputy Attorney General, appeared on behalf
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CDCR and on behalf of Defendants Tommy Wan, Kimberli Boncore and Ralph Diaz. Brooks
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Beard, Daniel Zlatnik and Edward Caden appeared on behalf of Plaintiffs Ryan Couch and
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Kenneth Jimenez.
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BACKGROUND
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Following remand from the Ninth Circuit Court of Appeals, Plaintiffs Ryan Couch
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("Officer Couch") and Kenneth Jimenez ("Officer Jimenez") (collectively “Plaintiffs”) filed a
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second amended complaint on July 8, 2010. Officer Couch and Officer Jimenez are correctional
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officers of CDCR and worked at CDCR’s Substance Abuse Treatment Facility ("SATF") in
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Corcoran, California. At SATF, Plaintiffs worked in the Investigative Services Unit ("ISU") as
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investigative officers. By their amended complaint, Officers Couch and Jimenez allege
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violations of their free speech rights and violations of the Racketeer Influenced Corrupt
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Organizations Act ("RICO"), 18 U.S.C. § 1964, against Defendants Tommy Wan, Kimberli
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Boncore and Ralph Diaz in their individual and official capacities. Defendant Tommy Wan is
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the Associate Warden in charge of Central Services and Facility C at SATF. Defendant Kimberli
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Boncore served as an investigator and corrections officer at SATF. Defendant Ralph Diaz was a
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Facility C Captain at SATF and now serves as an Associate Warden.
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Between December 13, 2010, and May 5, 2011, SATF and CDCR, non-parties to this
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lawsuit, received ten subpoenas from Plaintiffs in this case. Between February 8 and March 3,
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2011, CDCR responded to the subpoenas. On March 23, 2011, CDCR provided supplemental
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responses. Exhibits A, B and C to Declaration of Mary Horst ("Horst Dec.").
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On May 16, 2011, CDCR filed the instant motion to modify portions of the subpoenas.
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On June 3, 2011, Plaintiffs filed a request to seal their opposition to CDCR's motion. The
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Court granted the request, and Plaintiffs' opposition and several supporting declarations were
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filed under seal.
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On June 10, 2011, CDCR filed a reply. CDCR also filed, under seal, a motion to strike
certain declarations.
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DOCUMENTS AT ISSUE
According to the motion, CDCR and Plaintiffs disagree regarding the following
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categories of documents: (1) certain inmate central files; (2) confidential section documents
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contained within each inmate's central file; (3) debriefing reports/confidential memoranda; and
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(4) electronic discovery.
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CDCR explains that it maintains case records for all incarcerated inmates that reflect
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findings, considerations, action and dispositions with respect to classification, treatment,
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employment, training and discipline. Cal. Penal Code § 2081.5. A central file (“c-file”) is the
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master file maintained by CDCR concerning these records. A c-file is divided into several
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categories and may include a separate "confidential" folder. Declaration of Everett Fischer
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("Fischer Dec.") ¶ 6.
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A confidential folder may contain memoranda and/or reports of gang activity.
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Department of Operations Manual ("DOM"), Chapter 6, Article 2, § 61020.5 et seq. The
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confidential folder may also contain "debriefs," which are statements by a gang investigator from
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a subject who claims to have dropped out of a gang. DOM, Chapter 6, Article 2 § 61020.7.
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Debriefs are used to obtain information that adversely impacts the gang and is an investigation
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into the gang's operation. The subject of a debrief is asked to describe all of his activities and
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knowledge of gang activities since the time he became involved with the gang. Fischer Dec. ¶ 9.
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A gang intelligence report is a working document containing information about ongoing gang
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related investigations. These documents are maintained in the confidential folder of the c-file.
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Fischer Dec. ¶¶ 10, 12.
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DISCUSSION
A.
Motion to Modify Subpoenas
CDCR asserts that the c-file documents requested are not discoverable because: (1) the
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requests are overbroad and do not seek relevant information; (2) release of the requested
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information will cause specific prejudice or harm; and (3) the requests are unduly burdensome.
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1.
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The subpoenas at issue request the entire c-files of eight different inmates and request
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complete copies of debriefing reports. In part, CDCR claims that these requests are an undue
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burden because they are overbroad and are not relevant to the issues presented by this litigation.
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For example, CDCR indicates that c-files span the entire length of an inmate’s incarceration and
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many of the requested c-files are for inmates who have been housed within CDCR for 15-20
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years (or more). As Plaintiffs’ allegations concern events beginning in 2006, CDCR argues that
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there is no basis to produce the entire c-file of an inmate. The Court agrees.
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Overbreadth, Relevance and Undue Burden
Federal Rule of Civil Procedure 45 authorizes issuance of a subpoena to command a
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non-party to produce designated documents, electronically stored information, or tangible things
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in its possession, custody or control. Fed. R. Civ. P. 45(a)(1)(A)(iii). The scope of discovery
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through subpoena is the same as that applicable to Rule 34 and to the other discovery rules. See
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Fed. R. Civ. P. 45 Advisory Committee Notes 1991 Amendment; see also McCoy v. Southwest
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Airlines Cos., Inc., 211 F.R.D. 381, 384 (C.D. Cal. 2002); Brinckerhoff v. Town of Paradise,
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2010 WL 4806966, *7 (E.D. Cal. Nov. 18, 2010). Rule 34, pertaining to the discovery of
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documents, provides that requests “must describe with reasonable particularity each item or
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category of items” to be produced. Fed. R. Civ. P. 34(b)(1)(A). Further, the information sought
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must be relevant to the claims and defenses in the underlying matter and must be “reasonably
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calculated to lead to admissible evidence.” Fed. R. Civ. P. 26 (b). Overbroad subpoenas seeking
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irrelevant information may be quashed or modified. Century Sur. Co. v. Master Design Drywall,
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Inc., 2010 WL 2231890, *1 (S.D. Cal. Jun. 2, 2010) (modifying subpoena seeking documents
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beyond effective date of insurance policy at issue).
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Here, Plaintiffs’ requests for the entire c-files of eight different inmates is unnecessarily
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broad and unduly burdensome. Given the range of documents and information contained in a c-
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file, the requests for entire files encompass documents that are not relevant to the claims or
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defenses presented in this case. More precisely, the requests fail to describe with particularity the
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documents which may exist in the c-files that relate to a claim or defense in this litigation.
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Additionally, the requests lack a temporal limitation that corresponds with the allegations in the
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SAC.
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2.
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CDCR also seeks to modify the subpoena regarding requests for confidential memoranda
Specific Prejudice or Harm
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and debrief reports contained in the c-files. CDCR asserts that release of confidential
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memoranda and debrief reports compromises not only the safety and security of the debriefed
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gang member, but also his family. Fischer Dec. ¶¶ 8-9, 11, 13-14. According to Everett Fischer,
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who has worked in different capacities in CDCR's Office of Correctional Safety ("OCS"), prison
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gangs pose a serious danger to confidential informants, who are inmates with first-hand
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knowledge of other inmates' gang affiliations or who are inmates seeking protection from
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enemies who are gang members. When a confidential informant identifies another inmate as a
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gang member or associate, this is documented in a confidential memorandum. According to Mr.
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Fischer, disclosure of the memorandum would imperil the informant's safety. Mr. Fischer
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declares that there have been several instances in which redacted and unredacted briefing reports
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have been released over the years. Fischer Dec. ¶ 13.
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As pointed out by Plaintiffs, the protective order addresses certain of CDCR's concerns
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regarding the production of confidential information and debriefing reports. However, additional
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measures are appropriate, including modifying the protective order to allow these documents to
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be produced as "Attorneys' Eyes Only."
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Further, as with the requests for entire c-files, the scope of Plaintiffs’ requests for entire
debriefing reports and confidential memoranda may, or will, include information that is not
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relevant to the claims and defenses in this litigation. Indeed, the debrief reports and confidential
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memoranda may contain information regarding ongoing matters or persons who are unrelated to
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this litigation. Therefore, Plaintiffs should narrow their requests and provide a revised
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description that allows CDCR to identify relevant portions of the debriefing reports and
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confidential memoranda and to redact irrelevant information. To address Plaintiffs’ expressed
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concerns regarding the potential for redaction of relevant information, a designated member of
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Plaintiffs’ counsel, such as Edward Caden, a retired CDCR warden, may review, but not copy,
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debriefing reports/confidential documents in confidence to evaluate whether portions are
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irrelevant before CDCR redacts them. If the parties cannot reach agreement regarding specific
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documents, they may seek in camera review.
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3.
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Based on the holding in Open TV v. Liberate Technologies, 219 F.R.D. 474, 476 (N.D.
Electronic Discovery
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Cal. 2003), CDCR proposes cost sharing for the requested electronic discovery. The court in
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Open TV, adopted the approach of Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284
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(S.D.N.Y 2003) to determine whether cost shifting is appropriate. Zubulake identified the
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following factors to be considered:
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1. Extent to which the request is specifically tailored to discover relevant information;
2. Availability of such information from other sources;
3. Total cost of production, compared to the amount in controversy;
4. Total cost of production, compared to the resources available to each party;
5. Relative ability of each party to control costs and its incentive to do so;
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6. Importance of the issues at stake in the litigation; and
7. Relative benefits to the parties of obtaining the information.
Id. at 284. Cost-shifting should only be considered when discovery imposes an “undue burden or
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expense” that outweighs the likely benefit of the discovery. Fed. R. Civ. P. 26(b)-(c). With
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discovery of electronic documents, “whether production of such documents is unduly
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burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible
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format.” Zubulake v. UBS Warburg LLC, et al., 217 F.R.D. 309, 318 (N.D. Cal. 2003).
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Accessibility turns largely on the expense of production. Id.
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Here, CDCR reports that it has copied all available e-mail communications for defendants
and all text information from the computers located in the Investigative Services Unit at SATF.
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Data from approximately 16 computers was downloaded. The total size of the information is
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estimated at 140 gigabytes. Declaration of Sean Cotulla ("Cotulla Dec.") ¶ 2. Plaintiffs offered,
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and CDCR accepted, a proposal that Plaintiffs provide a list of search terms that would be used
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to narrow down the universe of potentially relevant documents. CDCR asserts that the Attorney
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General's office does not have the resources available to search the voluminous data. Cotulla
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Dec. ¶ 2. In order to process the information, CDCR will need to hire an outside contractor and is
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in the process of getting such a contract in place. Cotulla Dec. ¶ 2. A cost estimate for running
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this data is at least $54,000. Further Declaration of Sean Cotulla ¶ 3.
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The Court concludes that Plaintiffs’ discovery requests impose a burden on CDCR that is
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sufficient to warrant cost-shifting or sharing. Plaintiffs and CDCR are directed to meet and
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confer to determine the appropriate cost sharing for the data to be processed using Plaintiffs’
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search terms.
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B.
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Request to Strike Declarations
On June 10, 2001, CDCR filed a motion to strike the declarations of Edward Caden, Ryan
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Couch and Kenneth Jimenez, which were filed under seal in support of Plaintiffs' opposition to
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CDCR's motion to modify the subpoenas. CDCR’s motion to strike is without merit.
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CDCR claims that the declarations of Couch and Caden attempt to expand the allegations
contained in the SAC. However, Plaintiffs did not submit the declarations to amend the
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operative complaint. Rather, Plaintiffs submitted the declarations to explain the relevance of the
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discovery requests at issue.
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CDCR next claims that the declarations are replete with inadmissible hearsay and
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speculative conclusions. While CDCR is correct, the declarations are offered for purposes of a
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discovery motion, not for evidence to support a motion on the merits of this case. See, e.g.,
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Jimena v. UBS AG Bank, 2010 WL 4363193, *5 (E.D. Cal. Oct. 25, 2010) (recognizing
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distinction between declarations submitted for non-merits based discovery motions and
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declarations submitted as evidence to support a motion on the merits of a case). More
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importantly, the Court is neither relying on the declarations to render a decision on the motion to
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modify the subpoenas, nor is it relying on the declarations for the truth of the matters asserted in
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those declarations. Thus, CDCR’s objections are without merit.
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Finally, CDCR asserts that Caden, who is Plaintiffs' counsel, is not an objective witness
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and his declaration includes speculation and unsupported conclusions. As with CDCR’s
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previous objections regarding hearsay and speculation, the Court finds CDCR’s objections to be
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without merit. Again, the declarations, including Caden’s declaration, were submitted to explain
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the relevance of the requested discovery and not to support the merits of this litigation. Further,
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the Court is not considering the statements contained in the declarations as evidence to prove the
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truth of the matters asserted. Fed. R. Evid. 801(c).
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CONCLUSION AND ORDER
Based on the above, CDCR’s motion to strike the declarations of Edward Caden, Ryan
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Couch and Kenneth Jimenez is DENIED. CDCR’s motion to modify the subpoenas is
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GRANTED IN PART. Plaintiffs shall submit refined requests for production of c-file documents
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to CDCR on or before July 1, 2011. CDCR shall submit its response, including any objections,
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on or before July 22, 2011. Further, CDCR and Plaintiffs shall share the costs of producing
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requested electronic data. Plaintiffs and CDCR are directed to meet and confer regarding the
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appropriate cost sharing amounts for the electronic data to be processed using Plaintiffs' search terms.
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IT IS SO ORDERED.
Dated:
June 23, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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