Court Sides with Plaintiff on Some Discovery Disputes, But is “Frustrated” by Her Position on Others: eDiscovery Case Law

It’s May Day!  Here’s a case law post to start May off right!  🙂

In Pertz v. Heartland Realty Invs., Inc. et al., No. 19-cv-06330-CRB (TSH) (N.D. Cal. Mar. 27, 2020), California Magistrate Judge Thomas S. Hixson issued orders to the defendants to address certain discovery deficiencies, but indicated its frustration with some arguments by the plaintiff with regard to relevance, proportionality, privacy and handling of redactions.

Case Background

In this case against the owner and operator of an apartment complex for sex discrimination involving a former on-site maintenance supervisor at the apartment complex (who was criminally convicted for his conduct), there were several discovery disputes concerning the plaintiff’s requests for production served on the defendants in the case leading to a motion to compel from the plaintiff.  After a hearing the previous day, they were each addressed by Judge Hixson in this order.

Judge’s Ruling

Possession, Custody or Control: With regard to the defendants indication that they would produce all non-privileged documents in their possession and plaintiff’s argument that in addition to producing documents in their possession, they must also produce documents in their custody or control, Judge Hixson stated: “She’s right, and Defendants do not even respond to this argument. Accordingly, for all RFPs as to which Defendants produce documents, the Court orders them to produce documents in their custody or control, in addition to those in their possession.”

Production Deadline: Judge Hixson stated: “Defendants’ response does not specify a production deadline.  That means the documents were due at the time specified in the request, which was mid-January, although Plaintiff agreed to extend that deadline to the end of January. Defendants are already almost two months late. The Court orders them to complete their production of documents in response to this set of RFPs within 30 days, a deadline both sides said was workable at the hearing.”


Failure to State if Withholding: Judge Hixson noted that “Rule 34(b)(2)(C) states that ‘[a]n objection must state whether any responsive materials are being withheld on the basis of that objection’” and that “Plaintiff is right that all of Defendants’ RFP responses fail to comply with this requirement.”  As a result, he ordered the defendants to “revise their discovery responses to fix this problem within 14 days.”

Privacy Objections: Judge Hixson indicated that “[t]his part of the joint discovery letter brief was frustrating for the Court”, stating: “Plaintiff’s section of the letter brief assumed – rather than showed – that everything sought by RFPs 5, 6, 9 and 13 was relevant and proportional. Then Plaintiff waved away any privacy objections by saying they could all be mitigated by the entry of a protective order. As a result, Plaintiff’s section of the letter brief had no substantive discussion of relevance, proportionality or privacy – giving the Court nothing to work with. Further, some of these RFPs seem really broad, at least as written…For the Court to adequately determine relevance and proportionality, and then to weigh them against privacy interests, the Court needs some analysis from the moving party, which was absent here.”  As a result, Judge Hixson stated: “This portion of Plaintiff’s motion to compel is denied because the briefing was inadequate to enable the Court to conclude that Defendants should be compelled to produce anything more than what they have agreed to produce. This denial is without prejudice to Plaintiff submitting a joint discovery letter brief that makes a better case for the production of documents.”

Redactions: Judge Hixson stated: “Plaintiff states that ‘Defendants have indicated that they have produced and will produce documents with redactions of private information. Such redactions are improper.’ This is another example of an ineffective argument that does not explain anything. What is being redacted? Why is the redaction improper? This aspect of the motion to compel is denied without prejudice.”

Judge Hixson, noting the need for a protective order, also ordered the parties “to meet and confer and in 14 days file either a jointly proposed protective order, or competing proposed orders and a joint discovery letter brief, not to exceed five pages, presenting each side’s arguments.”

So, what do you think?  Should courts give individual plaintiffs more leeway to address deficiencies in their arguments?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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