Nehad et al v. Browder et al, No. 3:2015cv01386 - Document 100 (S.D. Cal. 2016)
Court Description: ORDER Denying Defendants' 90 Motion for Reconsideration of discovery Ruling on Joint Motion for Discovery Dispute No. 2. The Court denies Plaintiffs' request for sanctions. Signed by Magistrate Judge Nita L. Stormes on 7/15/16. (dlg)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 S.R. NEHAD, an individual, K.R. NEHAD, an individual, ESTATE OF FRIDOON RAWSHAN NEHAD, an entity, Plaintiffs, Case No.: 15-CV-1386 WQH NLS ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION OF DISCOVERY RULING ON JOINT MOTION FOR DISCOVERY DISPUTE NO. 2 v. NEAL N. BROWDER, an individual, and DOES 1 through 10, inclusive, Defendants. (Dkt. No. 90) 18 19 Before the Court is Defendants’ Motion for Reconsideration of this Court’s earlier 20 discovery ruling on the Joint Motion for Determination of Discovery Dispute Number 2. 21 (Dkt. No. 90.) Plaintiffs filed an Opposition, and also requested sanctions for the amount 22 of expenses incurred in opposing the motion. (Dkt. No. 95.) Defendants filed a Reply. 23 (Dkt. No. 98.) District Judge Hayes referred this motion to the undersigned based on the 24 new information presented in Defendants’ motion. (Dkt. No. 99.) Having reviewed and 25 considered the papers submitted, the Court DENIES Defendants’ motion for 26 reconsideration in its entirety and DENIES Plaintiffs’ request for sanctions. 27 28 I. Relevant Background The parties and the undersigned are familiar with the background of the case and 1 15-CV-1386 WQH NLS 1 the underlying discovery dispute, and so the Court only briefly summarizes the dispute 2 here. In the Joint Motion for Determination of Discovery Dispute No. 2, the parties 3 requested the Court’s involvement in resolving discovery disputes regarding 4 approximately forty separate requests for production and interrogatories. Among those 5 requests, Plaintiffs moved to compel Defendants to provide further responses to their 6 Request for Production No. 34 (“RFP 34”.) That request sought “DOCUMENTS 7 RELATING TO YOUR investigations of any officer involved shootings, from 2010 to 8 the present.” Defendants objected on various grounds, including undue burden. They 9 contended that the search would “yield dozens of investigations, thousands of pages of 10 documents” and that “[t]o review such investigations would require thousands of man- 11 house to copy, sift through, redact etc.” (Dkt. No. 68 at 17.) 12 In considering and ruling on RFP No. 34, the Court narrowed the scope of the 13 discovery “to only seek responsive documents from the past three years (as opposed to 14 five years), and to the internal affairs/investigation files for incidents involving officer- 15 involved shootings that resulted in physical injury or death (as opposed to any incident in 16 which an officer fired his or her weapon).” (Dkt. No. 83 at 16.) The Court thus ordered 17 Defendants to provide further responses to Plaintiffs’ requests for documents pertaining 18 to investigations, including internal affairs files, of officer-involved shootings that 19 resulted in physical injury or death from 2013 to the present. (Id. at 19.) 20 On May 23, 2016, Defendants filed a motion for reconsideration and objections to 21 that ruling under Federal Rule of Civil Procedure 72(a). The parties briefed the matter, 22 and on June 30, 2016, District Judge Hayes referred the motion for reconsideration to the 23 undersigned. 24 II. 25 Because this Court cannot review its prior ruling under Rule 72(a), the Court 26 construes the motion as a request for reconsideration under the Court’s inherent authority Legal Standard 27 28 2 15-CV-1386 WQH NLS 1 to reconsider interlocutory orders.1 The Court maintains an inherent authority to 2 reconsider all interlocutory orders. Amarel v. Connell, 102 F.3d 1494, 1515 (9th 3 Cir.1996); Abada v. Charles Schwab & Co., Inc., 127 F.Supp.2d 1101, 1102 (S.D. Cal. 4 2000) (“District courts retain inherent authority to revise interim or interlocutory orders 5 any time before entry of judgment”). Motions for reconsideration are “not to re-hash 6 arguments the court has already thought through, or present arguments or evidence for 7 the first time which could reasonably have been raised earlier in the litigation. It is not a 8 vehicle for a ‘second bite at the apple,’ ‘after thoughts,’ or ‘shifting of ground.’” Salazar 9 v. Monaco Enters., 2015 U.S. Dist. LEXIS 167081 (E.D. Wash. Dec. 14, 2015) (citation 10 omitted). 11 III. Discussion a. Defendants’ Objection Based on Burden 12 13 Defendants object to the discovery ruling on the grounds that Plaintiffs’ request is 14 unduly burdensome and disproportional to the needs of the case. (Dkt. No. 90-1 at 6.) 15 Defendants argue that in making the earlier discovery ruling, the Court omitted 16 discussion of other investigations, such as homicide investigations, which contain 17 thousands of pages of documents. (Dkt. No. 90-1 at 8, 10-11.) Defendants assert the 18 burden imposed is not proportional to the needs of the case because although roughly 19 $12,000 in expenses may not seem unduly burdensome at first blush, it would be unduly 20 burdensome to require Defendants to engage in thousands of hours of labor to review and 21 analyze the more than 15,000 pages of documents, 403 compact discs, and possibly 217 22 DVDs for privacy redactions and accuracy. (Dkt. No. 98 at 2-3, 8; see also Dkt. No. 91 23 at ¶ 8.) They also argue the ruling should be narrowed so that Defendants only need to 24 provide Internal Affairs Investigation summaries from April 30, 2013 through April 30, 25 26 27 28 Federal Rule of Civil Procedure 72(a) provides that “[a] party may serve and file objections to the [magistrate judge’s] order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to. The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” 1 3 15-CV-1386 WQH NLS 1 2 2015, because any documents thereafter are irrelevant. (Id.) Plaintiffs respond that the Court’s earlier order was neither clearly erroneous nor 3 contrary to law, and that the discovery sought is relevant. (Dkt. No. 95 at 10.) They 4 contend Defendants’ argument fails because they present new evidence not previously 5 submitted, including a specific recounting of documents plus their “roughly $12,000” 6 calculation of expenses. (Id. at 11.) They maintain Defendants also make no effort to 7 show this expense would create an undue strain on their resources. (Id.) They further 8 contend Defendants fail to explain why documents after April 30, 2015 would not be 9 relevant, particularly given that Defendants do not assert the SDPD’s policy changed 10 11 following the shooting incident in this case. (Id. at 10-11.) The Court is unpersuaded by Defendants’ burden arguments. Defendants provide 12 no persuasive reason why they failed to present the quantitative information regarding the 13 estimated cost and the amount of documents and things in the briefing on the joint motion 14 for determination of discovery dispute. Defendants summarily contend they could not 15 have determined the estimated amount of costs or the estimated amount of documents to 16 be reviewed before the Court’s ruling on this discovery request. Not so. Defendants 17 were well aware of the scope of the discovery request, and Defendants had the obligation 18 of explaining and supporting its burden objection when the dispute was first brought 19 before the Court. Bryant v. Ochoa, 2009 WL 1390794 at *1 (S.D. Cal. May 14, 2009) 20 (“the party opposing discovery has the burden of showing that the discovery should be 21 prohibited, and the burden of clarifying, explaining or supporting its objections.”) 22 Defendants did not gather information about the estimated costs or number of documents 23 that would need to be reviewed despite the fact that these arguments and evidence could 24 have, and should have, been raised at the time the parties first brought this dispute before 25 the Court. Defendants’ attempt at a second bite of the apple by presenting evidence and 26 argument that should have been raised earlier frustrates the systematic efficiencies of the 27 judicial process. Their belated attempt to re-hash arguments the Court has already 28 thought through is unavailing. 4 15-CV-1386 WQH NLS 1 Likewise unavailing is Defendants’ argument that documents after April 30, 2015 2 bear no relevance on Plaintiff’s claims and thus would be unduly burdensome to produce. 3 As Plaintiffs aptly noted, Defendants have not explained why these documents would not 4 be relevant, nor have they asserted the San Diego Police Department’s (“SDPD”) policy 5 changed following the shooting incident in this case. 6 Defendants also appear to contend the discovery request must be narrowed because 7 Plaintiffs’ Monell claims lack merit, and because Plaintiffs failed to comply with the 8 Court’s earlier order compelling Plaintiffs to respond to contention interrogatories stating 9 the basis for their Monell claims. (See Dkt. No. 98 at 4-5.) But Defendants’ objection to 10 producing discovery based on burden is not the proper vehicle to challenge the viability 11 of the Monell claims, nor is it the proper vehicle for seeking sanctions for Plaintiffs’ 12 asserted failure to comply with the Court’s earlier order. 13 In sum, and for the aforementioned reasons, the Court does not find grounds to 14 warrant revising its earlier ruling. While the Court does not revise its earlier ruling, the 15 Court nonetheless encourages the parties to work together in producing the discovery in 16 an efficient manner. The Court encourages the parties to discuss whether they can 17 voluntarily agree that (a) the internal affairs investigation summaries will first be 18 produced, and (b) whether, after Plaintiffs have reviewed those summaries, Plaintiffs will 19 agree to voluntarily further narrow the request so that only certain of those corresponding 20 homicide investigation documents need be produced. But if Plaintiffs review the 21 summaries and nonetheless determine all the homicide investigation documents need to 22 be produced, then they must be produced. 23 24 b. Defendants’ Request for Cost-Shifting Defendants alternatively request the Court to shift to Plaintiffs the cost of 25 production for responses to RFP No. 34. (Dkt. No. 90-1 at 11-15.) They contend 26 Plaintiffs should pay the cost of assembly and production because Plaintiffs did not 27 establish the basis for their Monell claims and fail to demonstrate the relevance of the 28 homicide investigations. (Id at 6.) Plaintiffs argue Defendants’ cost-shifting request fails 5 15-CV-1386 WQH NLS 1 because they did not raise it earlier and regardless, Defendants fail to meet the standard 2 for cost-shifting. (Id. at 13-17.) 3 The authorities cited by the parties do not assist the Court in determining whether a 4 party may raise for the first time a cost-shifting argument on a motion for 5 reconsideration; the cases they cited are either not on-point or are otherwise 6 distinguishable. But even if Defendants’ cost-shifting arguments are appropriately 7 brought before the Court, Defendants have not shown cost-shifting is warranted here. 8 As an initial matter, Defendants do not adequately demonstrate that the cost- 9 shifting analysis even applies to the type of discovery at issue. Defendants describe the 10 discovery as documents being maintained in binders, media DVDs and compact discs. 11 (Dkt. No. 90-1 at 10, 15.) In Zubulake, the court discussed when it is appropriate to 12 consider cost-shifting. Zubulake v. UBS Warburg, 217 F.R.D. 309, 324 (S.D.N.Y. 2003). 13 The court stated that cost-shifting should only be considered when electronic discovery 14 imposes an “undue burden or expense” on the responding party. The court also stated, 15 however, that “[a] court should consider cost-shifting only when electronic data is 16 relatively inaccessible, such as in backup tapes.” Id. at 324 (emphasis in original); see 17 also id at 318 (discussing different types of electronic data and its accessibility based on 18 the media in which it is stored). Defendants make no mention of how or why a cost- 19 shifting analysis should apply to their hardcopy documents in binders, DVDs or compact 20 discs, and do not cite any cases in support. Indeed, unlike here, the cases Defendants 21 cited applied a cost-shifting analysis for production of discovery for source code, backup 22 databases, and metadata. See OpenTV v. Liberate Techs., 219 F.R.D. 474, 479 (N.D. Cal. 23 2003) (source code); see also U.S. ex rel. Carter v. Bridgeport Educ., Inc., 305 F.R.D. 24 225, 239 (S.D. Cal. 2015) (backup data bases, active email, and metadata). Given the 25 absence of authority from Defendants demonstrating a cost-shifting analysis should apply 26 to documents in binders, DVDs and compact discs, the Court is indeed skeptical that 27 cost-shifting should be considered. 28 Further, even if the cost-shifting analysis is applied, the overall factors do not 6 15-CV-1386 WQH NLS 1 weigh in favor of cost-shifting. Courts generally consider the following factors in a cost- 2 shifting analysis: (1) the extent to which the request is specifically tailored to discover 3 relevant information; (2) the availability of such information from other sources; (3) the 4 total costs of production, compared to the amount in controversy; (4) the total costs of 5 production, compared to the resources available to each party; (5) the relative ability of 6 each party to control costs and its incentive to do so; (6) the importance of the issues at 7 stake in the litigation; and (7) the relative benefits to the parties of obtaining the 8 information. United States ex rel. Carter., 305 F.R.D. at 242, citing Zubulake, 217 F.R.D. 9 at 322. The “list should be read in descending order of importance.” Id., citing Zubulake 10 at 323. 11 The first four factors tend to weigh in favor of costs not being shifted. First, 12 Defendants only take issue with the scope of the request insofar as it seeks documents for 13 investigations after April of 2015. But Defendants fail to explain why discovery of 14 investigations after April of 2015 would not be tailored to discover relevant information. 15 Second, the Court agrees with Plaintiffs that the information sought is not necessarily 16 available from the internal affairs investigation summaries, as it is unclear how the realm 17 of information contained in the thousands of pages of investigation documents, DVDs 18 and CDs could reasonably be contained in the internal affairs summaries. Third, 19 Defendants concede the amount in controversy exceeds the cost of production. Fourth, 20 Defendants assert they assume Plaintiffs are financially prepared to handle the costs of 21 this production, without discussing the resources available to each party. Plaintiffs put 22 forth information indicating the cost of production may only amount to about .0004% of 23 Defendants’ $3.2 billion budget, which Defendants do not appear to dispute. (Dkt. No. 24 95 at 11; McKissick Decl., Exh. A.) 25 The fifth factor tends to weigh in favor shifting costs. While the party seeking 26 discovery has an ability to control costs, this is analyzed under the first factor and comes 27 in the form of a party framing its discovery request “broadly enough to obtain relevant 28 evidence, yet narrowly enough to control costs.” See Zubulake, 217 F.R.D. at 322. 7 15-CV-1386 WQH NLS 1 Defendants contend that because they cannot farm out the work to review the 2 investigation documents, the only way to control the cost of production is to control the 3 scope of information being sought. (Dkt. No. 98 at 7.) Neither party proposes how 4 Defendants could otherwise control the costs, and so this factor tends to weigh in favor of 5 shifting the costs. 6 The sixth and seventh factors tend to weigh in favor of not shifting the costs. The 7 “‘importance of the issues at stake in the litigation’ is a critical consideration, even if it is 8 one that will rarely be invoked. For example, if a case has the potential for broad public 9 impact, then public policy weighs heavily in favor of permitting extensive discovery.” 10 Zubulake, 217 F.R.D. at 321. Defendants do not address the importance of issues at 11 stake, and instead take the position that much of the information sought is irrelevant or 12 can be found in other sources. (Dkt. No. 90-1 at 15.) Plaintiffs assert the issues at stake 13 are important because they claim Defendants failed to properly investigate the shooting 14 incident and apply appropriate discipline. (Dkt. No. 95 at 16.) “[T]he last factor … is the 15 least important because it is fair to presume that the response to a discovery request 16 generally benefits the requesting party.” Zubulake, 217 F.R.D. at 323. Defendants do not 17 explain why the benefits to Plaintiffs would be “minimal,” and the Court finds otherwise 18 given that the discovery is relevant to Plaintiffs’ Monell and supervisory liability claims. 19 Accordingly, the Court denies Defendants’ request to shift costs of assembly for RFP No. 20 34. 21 c. Request for Sanctions 22 Plaintiffs assert the Court should award fees under Federal Rule of Civil Procedure 23 37 because they were required to oppose Defendants’ unjustified and meritless motion for 24 reconsideration, and so Defendants’ conduct warrants imposing sanctions. (Dkt. No. 95 25 at 17-18.) They seek $7,605, which they contend constitutes the reasonable expenses 26 incurred in opposing the motion. (Id. at 18.) 27 28 Defendants contend Plaintiffs are not entitled to attorneys’ fees because they merely seek reconsideration of one argument earlier addressed by the Court. (Dkt. No. 8 15-CV-1386 WQH NLS 1 98 at 9.) They contend raising this issue with the Court is thus substantially justified and 2 so Plaintiffs’ counsel are not entitled to fees. (Id.) 3 Federal Rule of Civil Procedure 37(a)(5) provides for payment of the prevailing 4 party’s reasonable expenses incurred. See Fed. R. Civ. P. 37(a)(5)(A). However, the Rule 5 recognizes various exceptions, such as where the court finds the opposing party’s conduct 6 was substantially justified, or an award of expenses would be unjust. See id. “A request 7 for discovery is ‘substantially justified’ under Rule 37 if reasonable people could differ 8 on the matter in dispute.” Blair v. CBE Grp., Inc., 2014 WL 4658731, at *1 (S.D. Cal. 9 Sept. 17, 2014) (citations omitted). 10 Although Defendants have not demonstrated any basis for the Court to revise its 11 earlier order, Defendants’ positions were not patently unreasonable in disputing whether 12 the scope of the discovery was proper or whether cost-shifting should be permitted. As 13 such, the Court cannot say that Defendants’ arguments were so unjustified that they must 14 bear the costs. Accordingly, the Court denies Plaintiffs’ request for sanctions. 15 IV. 16 For the foregoing reasons, the Court DENIES Defendants’ motion for Conclusion 17 reconsideration, including their request to shift the costs to Plaintiffs. The Court 18 DENIES Plaintiffs’ request for sanctions. 19 20 IT IS SO ORDERED. Dated: July 15, 2016 21 22 23 24 25 26 27 28 9 15-CV-1386 WQH NLS
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