In Vargas v. U.S., No. 5:23-cv-00380-JWH-SPx (C.D. Cal. Nov. 6, 2024), California Magistrate Judge Sheri Pym granted in part plaintiff’s motion to compel, ruling: “USA Is Ordered to Produce Its Document Retention Policies and Portions of Its Litigation Hold Notices”, among other rulings.

Case Discussion and Judge’s Ruling

This case filed by the son of a decedent (Martin Vargas Arellano), who died after contracting COVID in the custody of U.S. Immigration and Customs Enforcement (“ICE”). There was also a class action filed by detainees at an ICE facility challenging their conditions of confinement due to the COVID-19 pandemic in Roman v. Wolf.

After the decedent died on March 8, 2021, the Department of Homeland Security’s Office of the Principal Legal Advisor (“OPLA”) issued a preservation notice to ICE concerning Mr. Vargas Arellano’s death on March 30. Two days later, plaintiff also sent Defendant GEO Group a document preservation letter concerning information related decedent’s death.

On September 23, 2024, plaintiff’s counsel met and conferred with USA’s counsel. The parties discussed the litigation hold documents related to the Roman case, but the parties disagreed over whether USA should be considered a party to the Roman case. Ultimately, the plaintiff filed a motion to compel defendant USA to produce documents responsive to plaintiff’s requests for production (“RFPs”), including compelling USA to produce any document retention policies and litigation hold notices issued by USA in both this case and the Roman litigation (RFP Nos. 22 and 57).

Regarding USA’s contention that plaintiff failed to comply with Local Rule 37’s meet and confer requirement prior to filing the instant motion to compel, Judge Pym, after noting the “local rules of this court require the parties to meet and confer in good faith”, stated: “Here, the record shows plaintiff did bring up the issue of USA’s allegedly deficient response to his RFP Nos. 22 and 57 in his September 12 meet and confer letter, albeit briefly…Moreover, it does appear both parties agree they talked about these issues to some degree during their September 23 meet and confer session…While plaintiff and his counsel certainly could have addressed this issue more thoroughly, their meet and confer was sufficient at this juncture for the court to decide the matter.”

Judge Pym also rejected USA contention the issue was partially moot because it agreed to produce ICE’s document retention policies applicable to video surveillance because there was “dispute as to whether USA provided the operative 2020/2021 version of ICE’s document retention policies to plaintiff”. So, she ordered them to confirm they did so or do so immediately.

Regarding USA’s argument that the litigation hold documents were protected from discovery by the attorney-client privilege, Judge Pym stated: “Multiple courts in this circuit have held that while the attorney-client privilege protects litigation hold documents, ‘the basic details surrounding the litigation hold are not.’…’These basic details include (1) when and to whom the litigation hold notices were given, (2) what kinds and categories of information and data [defendant’s] employees were instructed to preserve and collect, and (3) what specific actions they were instructed to take to that end.’”

Judge Pym rejected plaintiff’s argument that the attorney-client privilege was not applicable in this case because USA disclosed a litigation hold notice from the Office of the Principal Legal Advisor to ICE regarding Mr. Vargas Arellano’s death, stating: “while it is true the privilege may be waived with respect to the notice that was actually disclosed, plaintiff provides no argument as to why the attorney-client privilege would be waived as to other, non-disclosed notices under Federal Rule of Evidence 502(a). Accordingly, the privilege as to those documents still applies.”

However, Judge Pym rejected USA’s argument it should not be required to produce the requested documents because they “relat[e] to another party’s litigation hold in another matter”, stating: “It is not clear to the court why this should matter. Even if USA was not itself party to the Roman litigation hold, the hold itself could have applied to documents relevant to this case.”

So, Judge Pym ordered USA to “Produce Its Document Retention Policies and Portions of Its Litigation Hold Notices”, stating: “because certain details about the litigation hold notices and USA’s document retention policies are not protected by the privilege, USA is ordered to produce information concerning: (1) when and to whom the litigation hold notices were given; and (2) what kinds and categories of information and data USA instructed to be preserved and/or collected, as well as its document retention policies.”

So, what do you think? Are you surprised that the Court ordered USA to produce portions of its litigation hold notices even though the notices themselves were considered privileged? Please share any comments you might have or if you’d like to know more about a particular topic.

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