noting that “Rule 26(b) has never been a license . . . to engage in 15 . . . unwieldy [and] burdensome” discovery
How later courts described this case
- noting that “Rule 26(b) has never been a license . . . to engage in 15 . . . unwieldy [and] burdensome” discovery
Written by the judges who cited it.
The opinion
1
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3
4
5
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7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 DARRYL DUNSMORE, et al., Case No.: 20-cv-406-AJB-DDL
12 Plaintiffs, ORDER:
13 v.
1) GRANTING IN PART AND
14 DENYING IN PART PLAINTIFFS’
SAN DIEGO COUNTY SHERIFF’S MOTION TO COMPEL;
15
DEPARTMENT, et al.,
and
16 Defendants.
2) GRANTING MOTION TO
17
SEAL
18
[Dkt. Nos. 489, 490]
19
20 Before the Court is Plaintiffs’ Motion to Compel Production of Documents
21 and Interrogatory Response. Dkt. No. 489. The Court heard argument on the
22 Motion on February 6, 2024 (the “February 6 Discovery Hearing”) and again on
23 February 9, 2024 (the “February 9 Discovery Hearing”). Concurrently with the
24 Motion, Plaintiffs filed a Motion to Seal certain exhibits (the “Motion to Seal”), which
25 Defendants join. See Dkt. Nos. 490, 502. For the reasons stated on the record at
26 the February 6 and February 9 Discovery Hearings and in this Order, the Motion
27 to Compel [Dkt. No. 489] is GRANTED IN PART and DENIED IN PART. The
28 Motion to Seal [Dkt. No. 490] is GRANTED.
1 I.
2 BACKGROUND
3 Plaintiffs are a certified class of individuals “who are now, or will be in the
4 future, incarcerated in any of the San Diego County Jail facilities.” Dkt. No. 435 at
5 10.1 Plaintiffs’ Third Amended Complaint (“TAC”) asserts multiple causes of action
6 under 42 U.S.C. § 1983 against the County of San Diego and other Defendants,
7 and seeks declaratory and injunctive relief to “remedy the dangerous,
8 discriminatory, and unconstitutional conditions in the Jail.” Dkt. No. 231, ¶ 4.
9 Plaintiffs move to compel further responses to their Third and Fifth Sets of
10 Requests for Production (“RFPs”) and Interrogatories No. 24 and 25.2 Plaintiffs
11 also seek an order requiring Defendants to employ Plaintiffs’ requested ESI search
12 terms, and to search for responsive text and instant messages. Defendants
13 oppose. Dkt. No. 504 (“Opposition” or “Opp.”). The Court has conducted
14 numerous discovery conferences on these disputes, including an in-person
15 discovery hearing on December 20, 2023 (the “December 20 Discovery Hearing”).
16 In preparation for that hearing, the parties submitted a joint statement of all items
17 in dispute (the “Joint List”), which consisted of 140 RFPs and one interrogatory to
18 Defendants, and 25 RFPs and 23 interrogatories to Plaintiffs. Dkt. No. 466. After
19 hearing over three hours of argument at the December 20 Discovery Hearing, the
20 Court directed the parties to further meet and confer about each of the specific
21 RFPs and interrogatories in dispute, and set briefing deadlines for any disputes
22 not resolved by good faith meet and confer. Dkt. No. 478. The Motion followed.
23
24
25 1 All citations are to the CM/ECF page numbers unless otherwise stated.
26 2 The Court denied the parties’ Joint Motion for an extension of the deadline to brief the
dispute as to “Individual Medical and Custody Records” and Interrogatory No. 24. See Dkt. Nos.
27 487, 495. Nevertheless, the Court has considered the parties’ subsequent position statements
as stated in the January 30, 2024 Joint Status Report [“1/30/24 JSR,” Dkt. No. 512] and elects
28
1 II.
2 LEGAL STANDARDS
3 Federal Rule of Civil Procedure 26 provides:
4
parties may obtain discovery regarding any non-privileged matter that
5 is relevant to any party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the
6
action, the amount in controversy, the parties’ relative access to
7 relevant information, the parties’ resources, the importance of the
discovery in resolving the issues and whether the burden or expense
8
of the proposed discovery outweighs its likely benefit.
9
10 Fed. R. Civ. P. 26(b)(1).
11 Although broad, “the scope of discovery is not without limits.” Compass Bank
12 v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 (S.D. Cal. 2015);
13 see also U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 237 (S.D.
14 Cal. 2015) (noting that “Rule 26(b) has never been a license . . . to engage in
15 . . . unwieldy [and] burdensome” discovery).3 The federal rules require parties “to
16 work cooperatively in controlling the expense and time demands of litigation” by,
17 among other things, “siz[ing] and shap[ing] their discovery requests to the
18 requisites of a case.” Roberts v. Clark Cnty. Sch. Dist., 312 F.R.D. 594, 603 (D.
19 Nev. 2016) (citing John Roberts, 2015 Year-End Report on the Federal Judiciary
20 (Dec. 31, 2015)). Rule 26 requires parties to tailor their requests to the needs of
21 the case, and where they fail to do so, the Court “must limit” the discovery. See
22 Fed. R. Civ. P. 26(b)(2)(C)(iii). Rule 26(g) further promotes “responsible” pretrial
23 discovery “by imposing a certification requirement that obliges each attorney to
24 stop and think about the legitimacy” of their requests, responses and objections.
25 See Fed. R. Civ. P. 26(g) advisory committee’s note to 1983 amendment.
26
27
3 All citations and internal quotation marks are omitted, and emphasis and alterations are
28
1 III.
2 DISCUSSION
3 A. Motion to Compel Production of Documents
4 At the Case Management Conference on May 24, 2023, the Court granted
5 Plaintiffs’ counsel’s request not to place limits on the number of document requests
6 the parties could serve. The Court’s expectation was that forgoing numerical limits
7 would enable the parties to serve carefully crafted discovery requests,
8 appropriately tailored to the needs of the case as required by Rule 26. Instead,
9 many of the 252 RFPs propounded by Plaintiffs are “exceptionally broad.”
10 Transcript of December 20 Discovery Hearing (“12/20/23 Tr.,” Dkt. No. 480) at 107.
11 For example, Plaintiffs’ RFP No. 28 requests “ALL4 memoranda issued by
12 YOU5 RELATING TO6 the JAIL7 from January 1, 2021 to the present.”8 As drafted,
13 this RFP requires Defendants to produce information “having no relation to the
14 issues in this litigation,” and is therefore overbroad and not proportional to the
15 needs of the case. See 12/20/23 Tr. at 80. There are numerous other such
16 requests seeking production of “all” documents relating to an array of topics that
17
18
4 The terms “ANY” and “ALL,” as used [in the Requests], shall include “each” and “every”
19 and are not to be construed to limit a request. See Dkt. No. 489-3 at 42.
20 5 The terms “DEFENDANTS,” “YOU,” or “YOUR” means the San Diego County Sheriff’s
Department, San Diego County, and the San Diego County Probation Department, and anyone
21 acting on their behalf. See Dkt. No. 489-3 at 43.
22 6 The terms “RELATED TO,” “RELATING TO,” or “REGARDING” means, without limitation,
anything that, in whole or in part, analyzes, comments upon, comprises, concerns, constitutes,
23 contains, describes, discusses, embodies, evidences, explains, identifies, manifests, mentions,
pertains to directly or indirectly to, reflects, refers to, regards, relates to, responds to, states,
24
summarizes, or in any way relevant to the particular subject matter identified. Dkt. No. 489-3 at
25 45-46.
26 7 The term “JAIL” means the San Diego County Jail, including all of its facilities. See Dkt.
No. 489-3 at 45.
27 8 See Dkt. No. 489-3 at 47. Although this RFP was included in the parties Joint List of
disputed discovery in December 2023, it was not the subject of the instant Motion. See Dkt. No.
28
1 touch on nearly every aspect of jail operations for a three-year period, including
2 laundry, legal mail, staffing, inmate discipline, drug and alcohol withdrawal, health
3 care, dental care, demographics, and more. As further examples:
4 RFP 33: ALL DOCUMENTS9 and COMMUNICATIONS10 RELATING
5 TO identifying, responding to, housing, treating, monitoring, and/or
tracking INCARCERATED PERSONS11 in the SHERIFF’S
6
7
8
9 The term “DOCUMENT” means any writing, however produced or reproduced, of every
9 kind and regardless of where located, which is in YOUR possession, custody, or control,
including drafts; or in the possession, custody or control of any servant or agent of YOU or of
10
YOUR attorneys. The terms include the following: electronically recorded information such as
11 electronic mail, html files, databases, data processing cards or tapes, computerized data,
computer diskettes, or information otherwise contained on a computer’s hard drive, disks or
12 backup tapes; video tapes, audio tapes, view-graphs, or any information maintained on digital,
electronic, magnetic or other media; and any other summary, schedule, memorandum, note,
13 statement, letter, telegram, interoffice communication, report, diary, worksheet, list, graph, chart,
or index, tape record, partial or complete report of telephone or oral conversation, transcript or
14
minutes, compilation, tabulation, study, analysis, or other such writing or recording. The terms
15 “DOCUMENT” and “DOCUMENTS” include any originals, all file copies, all other copies, no
matter how prepared, and all drafts prepared in connection with such DOCUMENTS, whether or
16 not used, as well as the file in which the DOCUMENTS are maintained. A draft or non-identical
copy of a DOCUMENT, including a copy or duplicate of a DOCUMENT which has any
17 nonconforming notes, marginal annotations or other markings, and any preliminary version, draft
or revision of the foregoing, is a separate DOCUMENT within the meaning of these terms. The
18
term “DOCUMENT” does not include any writing that constitutes a privileged or otherwise
19 protected communication between YOU and YOUR attorneys. See Dkt. No. 489-3 at 44.
10 The term “COMMUNICATIONS” means any transmittal of information from one person or
20
entity to another by any means, including letters, correspondence, notes, memoranda, records,
21 reports, papers, facsimiles, electronic mail (whether to, from, copied or blind copied), electronic
mail generated from a hand held personal device including an Android or iPhone, instant
22 messaging, electronic mail generated from business or personal email accounts, internet relay
chat, news group, group or collaboration servers, electronic bulletin boards, electronic
23 discussion boards, text messages, dictation tapes, video recordings, audio recordings, digital
recordings, memoranda, telegrams, telecopies and telexes, teleconference, collaboration
24
servers (including share point servers), web-based or software virtual meetings including Web-
25 X, Zoom, and any other meeting software and share point servers, and oral contact such as
face-to-face discussions or meetings, telephone conversations, and voice mail messages. See
26 Dkt. No. 489-3 at 42-43.
27 11 The terms “INCARCERATED PERSON(S)” or “INCARCERATED PEOPLE” mean any
person incarcerated, detained, or in the custody of the SHERIFF’S DEPARTMENT. See Dkt.
28 No. 489-3 at 45.
1 DEPARTMENT’s medication-assisted treatment (“MAT”) program
from January 21, 2021 to the present.
2
3 RFP 106: ALL DOCUMENTS, including but not limited to logs, audits,
lists and summaries, RELATING TO tracking and/or scheduling
4
HEALTH CARE13 appointments.
5
6 RFP 139: ALL DOCUMENTS RELATING TO the housing of
INCARCERATED PERSONS with MENTAL DISORDERS14 or who
7 are receiving MENTAL HEALTH CARE,15 including but not limited to
8 determinations of need for housing, evaluations of housing, and
requests for funding for MENTAL HEALTH CARE and programming.
9
RFP 244: ALL DOCUMENTS RELATING TO alternatives to
10
incarceration, including drug court and reentry court.16
11
12 During the December 20 Discovery Hearing, Plaintiffs’ counsel
13 acknowledged the Court’s concerns that their discovery requests were overbroad
14 as drafted but explained that Plaintiffs “anticipated, through meet and confer, that
15 [the parties] would be able to discuss what types of documents we’re looking for
16
17
12 The term “SHERIFF’S DEPARTMENT” means Defendant San Diego County Sheriff’s
18
Department and anyone acting on its behalf. See Dkt. No. 489-3 at 46.
19 13 The term “HEALTH CARE” means the provision of care or services, to identify and/or
address health needs of an INCARCERATED PERSON in the JAIL (including medical, mental
20 health, dental care, and vision care needs), whether those needs arise as a result of injury,
illness, disease, age, or trauma, or care or services provided for diagnostic or preventive
21 purposes. See Dkt. No. 489-3 at 45.
22 14 The term “MENTAL DISORDER” means any condition diagnosable on Axis I or Axis II
per the Diagnostic and Statistical Manual of Mental Disorders (5th ed.) or that substantially
23 impairs cognitive functioning or psychological wellbeing. Dkt. No. 489-3 at 67.
24 15 The term “MENTAL HEALTH CARE” means the provision of care or services, to identify
and/or address the mental health needs of an INCARCERATED PERSON in the JAIL, whether
25 those needs arise as a result of injury, illness, disease, age, or trauma, or care or services
provided for diagnostic or preventive purposes. See Dkt. No. 489-3 at 45-46.
26
16 In addition to their overbreadth, many of Plaintiffs’ document requests are redundant.
27 This RFP, for example, appears to the Court to subsume RFPs 238, 239, 240, 241, 246 and
247, all of which call for a narrower subset of documents related to alternatives to incarceration.
28
1 [and] what kinds of documents exist.” 12/20/23 Tr. at 106-107. The Court finds
2 this approach is inconsistent with the Plaintiffs’ obligation to reasonably tailor their
3 discovery and to endeavor in good faith to “control[] the expense and time
4 demands of [this] litigation.” Roberts, 312 F.R.D. at 603. The Court understands
5 Plaintiffs may not have known what types of documents Defendants maintain, but
6 Defendants’ point that a Rule 30(b)(6) deposition on those issues would have
7 saved time and resources is well-taken. Plaintiffs’ approach also unfairly shifts the
8 burden to Defendants to define the universe of documents Plaintiffs require and
9 prejudices the Court and the parties alike by building delay into an already-
10 protracted course of discovery.
11 Implicitly acknowledging the overbreadth of their document requests,
12 Plaintiffs have now “substantially limited most discovery requests at issue in th[e]
13 Motion to . . . only four categories of documents: 1) policies and procedures; 2)
14 training; 3) evidence of practice; and 4) quality assurance/audits.” Memorandum
15 of Points and Authorities in Support of Plaintiffs’ Motion to Compel (“Mem.”, Dkt.
16 No. 489-1) at 4. Plaintiffs’ proposed narrowing begs the question of why those four
17 categories of documents – which do not appear to have necessitated any special
18 insight into the existence of or nomenclature for Defendants’ documents – were
19 not the focus of the RFPs in the first instance. Nevertheless, the Court has
20 carefully considered the requests and proposed narrowing for each of the four
21 categories.
22 1. Training Materials (Category II)17
23 Plaintiffs seek production of training materials, including training bulletins
24 and “any tracking documents showing dates and attendance of staff.” Mem. at 9-
25
26
17 Plaintiffs’ motion does not address Policies and Procedures (Category I), and Defendants
27 represented at the February 6 Discovery Hearing that all responsive documents have been
produced. 2/6/24 Tr. at 37. Thus, there does not appear to be any dispute concerning this
28
1 10. Defense counsel confirmed at the February 6 Discovery Hearing that all
2 responsive documents have been produced, including training bulletins, green
3 sheets, policies and procedures. Transcript of February 6 Discovery Hearing
4 (“2/6/24 Tr.,” Dkt. No. 535) at 38. Plaintiffs’ motion to compel production of training
5 materials in response to RFP Nos. 32, 33, 98, 99, 100, 110, 111, 114, 118, 121,
6 129, 138, 143, 144, 145, 146, 147, 148, 150, 155, 156, 157, 158, 159, 161, 162,
7 164, 165, 166, 167, 171, 175, 180, 182, 184, 198, 211, 217, 218, 219, 220, 221,
8 225, 230, 232, 233, 234, 236, 240, and 246 is DENIED AS MOOT.
9 2. Audits and Quality Assurance Documents (Category IV)
10 Plaintiffs seek production of audits and quality assurance documents, stating
11 this evidence of the “steps . . . Defendants take to understand and correct
12 deficiencies within the Jail is critical to [their] claims.” Mem. at 8-9. At the February
13 6 Discovery Hearing, defense counsel confirmed that all responsive audits and
14 quality assurance documents have been produced. 2/6/24 Tr. at 38. Plaintiffs’
15 motion to compel production of audits and quality assurance documents in
16 response to RFP Nos. 32, 33, 98, 99, 104, 106, 109, 110, 111, 118, 121, 125, 126,
17 127, 128, 129, 138, 143, 144, 145, 146, 147, 148, 150, 153, 155, 157, 158, 159,
18 161, 162, 164, 165, 166, 167, 171, 172, 179, 180, 184, 193, 195, 211, 220, 221,
19 225, 230, 232 and 236 is DENIED AS MOOT.
20 3. “Evidence of Practice” (Category III)
21 Plaintiffs also seek a category of documents they describe as “evidence of
22 practice” to support their claims that “Defendants do not consistently operate
23 according to policy.” Mem. at 4, 11. As Defendants correctly point out, however,
24 none of the RFPs at issue contain the word “practice,” nor can many of them fairly
25 be interpreted to call for documents relating to practices. Opp. at 12-13. To the
26 extent Plaintiffs’ RFPs seek “documents evidencing practice,” Mem. at 10, they fail
27 to “place [the responding] party upon reasonable notice of what is called for and
28 what is not,” as required by Rule 34. See Mailhoit v. Home Depot U.S.A., Inc., 285
1 F.R.D. 566, 570 (C.D. Cal. 2012); see also Fed. R. Civ. P. 34(b)(1)(A) (“The
2 request . . . must describe with reasonable particularity each item or category of
3 items to be inspected.”).
4 Plaintiffs’ failure to satisfy Rule 34’s particularity requirement as to these
5 RFPs is a sufficient basis to deny their motion to compel. See Mailhoit, 285 F.R.D.
6 at 570. Further, as the Court noted during the February 6 Discovery Hearing, “the
7 phrase ‘evidence of practice’ is, in and of itself, very, very broad . . . [and] not
8 subject to being limited in a meaningful way.” 2/6/24 Tr. at 42. Nevertheless, the
9 Court has reviewed each RFP in the “evidence of practice” category and orders
10 the production of additional documents and information where appropriate, as set
11 forth below. Where the motion to compel is denied, the Court finds that the RFP
12 in question, both as written and as narrowed, is amorphous, overbroad, and not
13 proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(2)(C). Where
14 Defendants have represented that they do not possess responsive documents, the
15 Court also denies the Motion on that alternative basis.
16
17 Request Ruling
18 RFP 32: ALL DOCUMENTS and Denied.
COMMUNICATIONS RELATING TO
19
identifying, responding to, housing, treating,
20 monitoring, and/or tracking INCARCERATED
PERSONS covered by the SHERIFF’S
21
DEPARTMENT’s alcohol and opiate
22 withdrawal protocols from January 1, 2021 to
the present.
23
24
25
26
27
28
1 Request Ruling
2
RFP 49: ALL logs RELATING TO Defendants must produce
3 INCARCERATED PERSONS placed in EOH, EOH, PSU and safety cell
PSU, and SAFETY CELLS from January 1, logs for the period
4 2021 to the present. 1/1/2021 to 12/31/23.18
5
The motion is otherwise
6 denied.
7
RFP 82: ALL DOCUMENTS RELATING TO Waived because not
8 use of tactical teams at the JAIL from included in the Joint List
January 1, 2021 to the present, including but for the 12/20/23 hearing,
9
not limited to documentation of debriefs after but the Court nevertheless
10 use of force or weapons by the JAIL’s tactical orders Defendants to
teams. investigate the existence
11
and volume of any “Watch
12 Commander Logs.”
13 RFP 97: ALL DOCUMENTS showing the Denied.
time between a person arrives at the JAIL
14
and the time the person receives intake
15 screening.
16
17
RFP 99: ALL DOCUMENTS RELATING TO Denied.
18 pending sick call requests where the
INCARCERATED PERSON making the sick
19
call request is transferred to another JAIL
20 facility.
21
22
23
24
25
26 18 To the extent the Court’s sporadic references to “the present” during the February 6
Discovery Hearing created confusion, the Court confirms here that the relevant period for
27 Defendants’ further responses is January 1, 2021 to December 31, 2023. See 2/6/24 Tr. at 121.
The Court understands Defendants have largely produced current information and that Plaintiffs
28
1 Request Ruling
2
RFP 100: ALL DOCUMENTS, including but Defendants must produce
3 not limited to logs, audits, lists, and medical and mental sick
summaries, RELATED TO continuing call logs, specialist logs,
4 HEALTH CARE treatments, including but not medication logs, mental
5 limited to medications, for INCARCERATED health care logs and dental
PEOPLE upon arrival at the JAIL. care logs for the period
6
1/1/2021 to 12/31/23.
7
The motion is otherwise
8 denied.
9
RFP 105: ALL DOCUMENTS, including but Defendants must produce
10 not limited to logs, audits, lists, and a spreadsheet of cancelled
summaries, showing the number or percent and refused sick calls for
11
of INCARCERATED PERSONS at the JAIL the period 1/1/2021 to
12 who submitted a sick call request and were 12/31/23.
not seen by HEALTH CARE STAFF in
13 connection with that sick call request. The motion is otherwise
denied.
14
15 RFP 106: ALL DOCUMENTS, including but Denied.
not limited to logs, audits, lists, and
16
summaries, RELATING TO tracking and/or
17 scheduling HEALTH CARE appointments.
18 RFP 109: ALL DOCUMENTS, including but Defendants must produce
not limited to logs, audits, lists, and spreadsheets of specialty
19
summaries, RELATING TO outside (off-site care referrals for 2021 and
20 from the JAIL) HEALTH CARE providers who 2022 and must produce
provide HEALTH CARE to INCARCERATED spreadsheets of
21
PEOPLE. emergency transport and
22 specialty care
appointments for the
23
period 1/1/2021 through
24 12/31/23.
25
The motion is otherwise
26 denied.
27
28
1 Request Ruling
2
RFP 110: ALL DOCUMENTS RELATING Denied.
3 TO the confidentiality of HEALTH CARE
appointments and the provision of HEALTH
4 CARE in confidential, semi-confidential, or
5 non-confidential settings.
6 RFP 111: ALL DOCUMENTS, including but Denied.
not limited to logs, audits, lists, training
7
materials, and summaries, RELATING TO
8 the provision of diagnostic testing for
INCARCERATED PEOPLE.
9
10 RFP 113: ALL DOCUMENTS, including but Denied.
not limited to logs, audits, lists, training
11
materials, and summaries, showing the time
12 between an INCARCERATED PERSON is
evaluated for eyeglasses and the time the
13
INCARCERATED PERSON receives
14 eyeglasses.
15 RFP 114: ALL DOCUMENTS, including but Denied.
not limited to logs, audits, lists, training
16
materials, and summaries, RELATING TO
17 HEALTH CARE discharge planning.
18
RFP 119: DOCUMENTS sufficient to show Denied.
19 the average waiting time between the time
an INCARCERATED PERSON is prescribed
20
medication and the time the person receives
21 the prescribed medication.
22 RFP 121: ALL DOCUMENTS, including but Denied as moot. See RFP
23 not limited to logs, audits, lists, and 109.
summaries, showing the time when an
24 INCARCERATED PERSON was referred for
HEALTH CARE outside the JAIL and the
25
time when the INCARCERATED PERSON
26 was seen by the HEALTH CARE provider
27 outside the JAIL.
28
1 Request Ruling
2
RFP 125: ALL logs, spreadsheets, patient Defendants must produce
3 lists, and reports RELATING TO chronic spreadsheet(s) of
care, including but not limited to care for incarcerated individuals
4 diabetes, hypertension or other with chronic conditions (as
5 cardiovascular disease, hepatitis, HIV/AIDS, can be identified in JIMS)
tuberculosis, cancer, neurological disorders, and pending psychiatry
6
OB/GYN, and MENTAL HEALTH. sick calls for the period
7 1/1/2021 to 12/31/23.
8 The motion is otherwise
denied.
9
10 RFP 126: ALL DOCUMENTS RELATING to Denied.
the process and criteria for and ANY
11
limitations on admitting INCARCERATED
12 PERSONS to outside hospitals, specialty
clinics, or other medical providers, for the
13
purpose of providing HEALTH CARE.
14
RFP 127: ALL DOCUMENTS RELATING to Denied.
15 the process and criteria for and ANY
limitations on discharging INCARCERATED
16
PERSONS from outside hospitals, specialty
17 clinics, or other medical providers, back to
the JAIL after receiving HEALTH CARE.
18
19 RFP 128: ALL DOCUMENTS RELATING Defendants must produce
TO any delays in admission of a chart of scheduled
20
INCARCERATED PERSONS into specialty appointments for the
21 clinics, or other HEALTH CARE providers, for period 1/1/2021 to
the purpose of providing HEALTH CARE. 12/31/23.
22
The motion is otherwise
23
denied.
24
RFP 129: ALL DOCUMENTS, including but Denied as moot. See RFP
25
not limited to logs, audits, lists, training 100.
26 materials, and summaries, RELATING TO
cancellation of HEALTH CARE
27
appointments.
28
1 Request Ruling
2
RFP 130: ALL logs, spreadsheets, patient Denied.
3 lists, and reports RELATING TO treatment
orders.
4
RFP 138: ALL DOCUMENTS, including but Denied.
5
not limited to logs, audits, lists, training
6 materials, and summaries, RELATING TO
medication provided to INCARCERATED
7
PEOPLE at discharge from the JAIL.
8
RFP 141: ALL logs RELATING TO Defendants must produce
9
INCARCERATED PERSONS placed in the a spreadsheet of
10 Outpatient Step Down Unit from January 1, individuals in the
2021 to present. Outpatient Step Down Unit
11
for the period 1/1/2021 to
12 12/31/23.
13 The motion is otherwise
denied.
14
15 RFP 146: ALL DOCUMENTS RELATING Defendants must produce
TO any delays in admission of a log of transfers for
16
INCARCERATED PERSONS with MENTAL admission to outside
17 DISORDERS into outside hospitals, forensic mental health care
facilities, or other psychiatric facilities, providers for the period
18
including but not limited to the Department of 1/1/2021 to 12/31/23.
19 State Hospital, for the purpose of providing
MENTAL HEALTH CARE. The motion is otherwise
20 denied.
21
RFP 147: ALL DOCUMENTS, including but Denied as moot. See RFP
22 not limited to logs, audits, lists, training 100.
materials, and summaries, RELATING TO
23
the identification, tracking, and/or treatment
24 of INCARCERATED PERSONS’ MENTAL
HEALTH CARE needs.
25
26
27
28
1 Request Ruling
2
RFP 148: ALL DOCUMENTS, including but Denied.
3 not limited to logs, audits, lists, training
materials, and summaries, RELATING TO
4 the provision of a comprehensive MENTAL
5 HEALTH assessment for INCARCERATED
PERSONS.
6
RFP 150: ALL DOCUMENTS, including but Denied.
7
not limited to logs, audits, lists, training
8 materials, and summaries, RELATING TO
the time between an INCARCERATED
9
PERSON is referred for MENTAL HEALTH
10 CARE evaluation or care and the time the
INCARCERATED PERSON receives
11
MENTAL HEALTH CARE evaluation or care.
12
RFP 152: ALL DOCUMENTS, including but Denied.
13
not limited to logs, audits, lists, training
14 materials, and summaries, and
COMMUNICATIONS RELATING TO hiring
15
mental health staff, retaining existing staff,
16 contracting with third-party providers,
diverting incarcerated people with mental
17
illness to community providers, and/or
18 supporting mental health-based alternatives
to incarceration.
19
RFP 155: ALL DOCUMENTS, including but Denied.
20
not limited to logs, audits, lists, training
21 materials, and summaries, RELATING TO
continuing MENTAL HEALTH CARE
22
treatments and medications for
23 INCARCERATED PERSONS who arrive at
the JAIL.
24
25
26
27
28
1 Request Ruling
2
RFP 156: ALL DOCUMENTS, including but Defendants shall confirm
3 not limited to logs, audits, lists, training whether any further
materials, and summaries, RELATING TO responsive documents
4 MENTAL HEALTH CARE programs for exist.
5 INCARCERATED PERSONS at the JAIL,
including therapy and counseling. The motion is otherwise
6 denied.
7
RFP 157: ALL DOCUMENTS, including but Denied.
8 not limited to logs, audits, lists, training
materials, and summaries, RELATING TO
9
identifying, tracking, and or treating
10 INCARCERATED PERSONS’ MENTAL
HEALTH needs according to a level of care
11
system.
12
RFP 158: ALL DOCUMENTS, including but Denied.
13 not limited to logs, audits, lists, training
materials, and summaries, RELATING TO
14
monitoring and following-up with
15 INCARCERATED PERSONS who have
MENTAL HEALTH needs.
16
17 RFP 159: ALL DOCUMENTS, including but Defendants must produce
not limited to logs, audits, lists, training monthly logs for EOH and
18
materials, and summaries, RELATING TO safety cell actions for the
19 housing suicidal INCARCERATED period 1/1/2021 to
PERSONS in isolation. 12/31/23.
20
The motion is otherwise
21
denied.
22
RFP 161: ALL DOCUMENTS, including but Denied.
23
not limited to logs, audits, lists, training
24 materials, and summaries, RELATING TO
follow-up care for INCARCERATED
25
PERSONS discharged from the Inmate
26 Safety Program.
27
28
1 Request Ruling
2
RFP 162: ALL DOCUMENTS, including but Denied.
3 not limited to logs, audits, lists, training
materials, and summaries, RELATING TO
4 INCARCERATED PERSONS with acute
5 MENTAL HEALTH CARE needs.
6 RFP 164: ALL DOCUMENTS, including but Defendants must produce
not limited to logs, audits, lists, training a log of individuals with
7
materials, and summaries, RELATED TO the mental health disorders or
8 placement of INCARCERATED PEOPLE intellectual disabilities
with MENTAL HEALTH DISORDERS and/or placed in administrative
9
intellectual DISABILITIES in administrative segregation for the period
10 segregation. 1/1/2021 to 12/31/23.
11
The motion is otherwise
12 denied.
13 RFP 165: ALL DOCUMENTS, including but Defendants must produce
not limited to logs, audits, lists, training the administrative
14
materials, and summaries, RELATED TO the segregation log for the
15 provision of MENTAL HEALTH CARE for period 1/1/2021 to
INCARCERATED PEOPLE with MENTAL 12/31/23.
16
HEALTH CARE needs in administrative
17 segregation or other isolation housing. The motion is otherwise
denied.
18
19
20
21
22
23
24
25
26
27
28
1 Request Ruling
2
RFP 167: ALL DOCUMENTS, including but Defendants must produce
3 not limited to logs, audits, lists, training program participation logs
materials, and summaries, RELATING TO for incarcerated people
4 programs and services for INCARCERATED with disabilities, if they
5 PEOPLE with DISABILITIES. exist, for the period
1/1/2021 to 12/31/23.
6
Defendants must also
7 produce a list of available
programs effective as of
8 November 2021, and
9 effective as of November
2022.
10
The motion is otherwise
11
denied.
12
RFP 172: ALL DOCUMENTS, including but Denied.
13
not limited to logs, audits, lists, training
14 materials, and summaries, RELATING TO
laundry, clothes, and linens.
15
RFP 175: ALL DOCUMENTS, including but Denied.
16
not limited to logs and audits, RELATING TO
17 trash collection and removal from housing
units in the JAIL.
18
19 RFP 176: ALL DOCUMENTS, including but Defendants must produce
not limited to logs and audits, RELATING TO invoices for
20
sanitization of cells, including but not limited decontamination services
21 to cleaning of human waste and bodily fluids. for the period 1/1/2021 to
12/31/23.
22
The motion is otherwise
23
denied.
24
25
26
27
28
1 Request Ruling
2
RFP 179: ALL DOCUMENTS, including but Without ordering
3 not limited to logs, audits, lists, training production, the Court
materials, and summaries, RELATING TO orders Defendants to
4 contraband narcotics. investigate the existence of
5 logs showing contraband
seizures for the period
6
1/1/2021 to 12/31/23.
7
RFP 180: ALL DOCUMENTS, including but Defendants must produce
8 not limited to logs, audits, lists, training logs of safety checks, if
materials, and summaries, RELATING TO they exist, for the period
9
the timeliness and/or adequacy of safety 1/1/2021 to 12/31/23.
10 checks.
The motion is otherwise
11
denied.
12
RFP 182: ALL DOCUMENTS, including but Denied.
13 not limited to logs, audits, and training
materials, RELATING TO YOUR
14
EMPLOYEES’ response, including response
15 times, to emergency intercom use by
INCARCERATED PERSONS.
16
17 RFP 193: ALL DOCUMENTS RELATING Denied.
TO body scanners at the JAIL, including but
18
not limited to DOCUMENTS RELATING TO
19 body scanning software, maintenance and
repair of body scanners, contracts related to
20
body scanners, POLICIES AND
21 PROCEDURES related to the use of body
scanners, and internal and/or third-party
22
reports regarding the efficacy and/or utility of
23 body scanners.
24
25
26
27
28
1 Request Ruling
2
RFP 195: ALL DOCUMENTS RELATING TO Denied.
3 video cameras and body-worn cameras at
the JAIL, including but not limited to
4 DOCUMENTS RELATING TO video camera
5 and/or body-worn camera software,
maintenance and repair of video cameras
6
and/or bodyworn cameras, contracts related
7 to video cameras and/or body-worn cameras,
POLICIES AND PROCEDURES19 related to
8 the use of video cameras and/or body-worn
9 cameras, and internal and/or third-party
reports regarding the efficacy and/or utility of
10
video cameras and/or body-worn cameras.
11
RFP 221: ALL DOCUMENTS RELATING Denied as moot. See RFP
12 TO the provision or prescription of 100.
medication, including but not limited to
13
antibiotic medication, to INCARCERATED
14 PERSONS for the purpose of treating,
managing, or alleviating dental pain or
15
swelling.
16
RFP 231: ALL DOCUMENTS AND Waived because not
17
COMMUNICATIONS, including but not included in the Joint List
18 limited to logs, audits, lists, training materials, for the 12/20/23 hearing.
and summaries, RELATING TO Alternatively, denied
19
confidentiality of communications between because Plaintiffs did not
20 INCARCERATED PEOPLE and their make a showing of
attorneys, including the recording of phone relevance or the reasons
21
calls between INCARCERATED PEOPLE why Defendants’
22 and their attorneys. production was deficient
were provided.
23
24
25
26
27 19 The term “POLICIES AND PROCEDURES” means policies, procedures, handbooks,
advice, directives, training materials, forms, instructions, and guidelines that comprise
28
1 Request Ruling
2
RFP 232: ALL DOCUMENTS and Defendants must produce
3 COMMUNICATIONS RELATING TO spreadsheets of facility
attorney callback requests. notifications with respect to
4 attorney visits for the
5 period 1/1/2021 to
12/31/23.
6
The motion is otherwise
7
denied.
8
RFP 233: ALL DOCUMENTS and Denied.
9
COMMUNICATIONS RELATING TO wait
10 times for professional visits, including the
time it takes to release visitors from the
11
professional visiting room after a request has
12 been made.
13 RFP 234: ALL DOCUMENTS and Defendants must produce
COMMUNICATIONS RELATING TO the law documents sufficient to
14
library and INCARCERATED PERSONS’ show the hours of
15 access to the law library. availability for the law
library for the period
16
1/1/2021 to 12/31/23.
17
The motion is otherwise
18
denied.
19
RFP 235: ALL DOCUMENTS, including but Denied.
20 not limited to logs, audits, lists, training
materials, and summaries, RELATING TO
21
the provision of legal materials to pro se
22 litigants.
23
RFP 236: ALL DOCUMENTS, including but Denied.
24 not limited to logs, audits, lists, training
materials, and summaries, RELATING TO
25
legal mail.
26
27
28
1 4. Contractor Activity Reports (RFP No. 78)
2 Plaintiffs seek an order compelling production of “Contractor Activity
3 Reports,” citing language in Defendants’ contract with medical care provider
4 NaphCare requiring “various types of reports.” Mem. at 13. Defendants’ counsel
5 confirmed at the February 9 Discovery Hearing that the County does not maintain
6 these reports. Plaintiffs’ motion to compel further responses to RFP No. 78 is
7 DENIED AS MOOT.
8 5. Staffing Plans (RFP No. 191)
9 Plaintiffs seek “staffing plans” to ascertain whether the County’s jail facilities
10 “have sufficient staff for tasks like safety checks, medical escorts, and responding
11 to emergencies.” Mem. at 13. During the February 9 Discovery Hearing, Plaintiffs’
12 counsel represented that Defendants had produced some information in document
13 SD_97886-97913 that reflects staffing as of March 2023. Defendants shall
14 produce the same information as of March 2021 and March 2022. Similarly, the
15 information in the staffing spreadsheet produced at document SD_725946
16 (covering the period February 10, 2023 to June 29, 2023) shall be produced for
17 the period January 1, 2021 to December 31, 2023. Plaintiffs’ motion to compel
18 further responses to RFP No. 191 is otherwise DENIED.
19 6. RFPs Not Addressed in the Motion
20 As noted at the February 6 Hearing, Exhibit A to the Swearingen Declaration
21 includes multiple RFPs that are not the subject of Plaintiffs’ briefing. See Dkt. No.
22 489-3 at 6-37. At the February 6 Hearing, Plaintiffs’ counsel noted that Exhibit A
23 was incorporated by reference in their brief as follows: “This Memorandum broadly
24 describes the categories of missing documents, and a Request-by-Request
25 summary of documents outstanding is attached as Exhibit A to the Declaration of
26 Van Swearingen.” 2/6/24 at 107 (citing Mem. at 4). He further explained that the
27 omission of some RFPs in the brief was the result of “simple oversight” but that
28 others were not briefed because they did not “fall[] neatly” into the categories
1 described in the motion and, due to the 15-page limit for the brief, Plaintiffs chose
2 to rely on the descriptions in Exhibit A. 2/6/24 Tr. at 107-108.
3 Exhibits are not the place to raise legal argument. Defendants (whose
4 argument was confined to the 15-page limit) and the Court reasonably understood
5 the RFPs at issue to be those specifically identified in Plaintiffs’ memorandum of
6 points and authorities. If Plaintiffs believed they required additional pages to brief
7 important arguments, they were free to request an enlargement of the page limit.
8 They did not do so, and their use of Exhibit A as an extension of their briefing
9 notwithstanding the Court’s page limitations was improper.
10 Setting that aside, however, the Court also finds that the truncated
11 descriptions of assertedly “missing documents” in Exhibit A fall short of “informing
12 the court: (1) which discovery requests are the subject of [the] motion to compel;
13 (2) which of the defendants’ responses are disputed; (3) why the responses are
14 deficient; (4) the reasons defendants’ objections are without merit; and (5) the
15 relevance of the requested information to the prosecution of his action.” Valenzuela
16 v. City of Calexico, No. 14-CV-481-BAS-PCL, 2015 WL 926149, at *1 (S.D. Cal.
17 Mar. 4, 2015) (describing moving party’s burden on a motion to compel); see also
18 Hancock v. Aetna Life Ins. Co., 321 F.R.D. 383, 390 (W.D. Wash. 2017) (same).
19 Accordingly, subject to the following exceptions, the Court finds that Plaintiffs
20 have failed to establish a basis for relief as to those RFPs that were not included
21 in Plaintiffs’ brief:
22
• Defendants must produce a spreadsheet showing MAT participants for
23 the period January 1, 2021 to December 31, 2023 in response to RFP
24 No. 33. The motion is otherwise denied.
25 • Without ordering production, the Court orders Defendants to
investigate the existence of documents responsive to RFP No. 137
26
(communications with contractors) and any burden associated with
27 their production.
28
1 • In response to RFP No. 174, Defendants must produce vermin and
pest control logs for the period January 1, 2021 to December 31, 2023.
2
The motion to compel further responses to this RFP is otherwise
3 denied.
4 • The motion to compel further responses to RFP Nos. 139 and 223 is
5 denied as moot, as responsive information will be included in
Defendants’ responses to other requests.
6
• Without ordering production, the Court orders Defendants to
7
investigate the existence of blank forms used for classification in
8 response to RFP No. 185.
9
• Plaintiffs must file a motion to compel further responses to RFP Nos.
10 203-207 by not later than February 20, 2024. The motion must not
exceed 5 pages. Defendants’ opposition must be filed by not later than
11
March 5, 2024 and must not exceed five pages. The Court will take
12 the motion under submission as of March 5, 2024 and issue a ruling in
due course. No reply shall be filed and no argument will be heard
13
absent further order of the Court.
14
• Without ordering production, the Court directs the parties to further
15 meet and confer regarding what responsive documents regarding
16 alternative-to-incarceration programs exist (RFP Nos. 238-244, 246
and 247) and any burden associated with their production. The parties
17 must file a Joint Status Report by not later than February 20, 2024
18 describing the results of their meet and confer efforts.
19
20 The motion to compel further responses to RFPs No. 101, 102, 103, 135,
21 136, 168, 173, 187, 188, 192, 194, 196, 197, 199, 200, 201, 202 and 222 is
22 DENIED.
23 7. “Individual Custody and Medical Records”
24 The parties also dispute the appropriate parameters for identifying and
25 collecting a subset of individual medical, mental health records.20 Plaintiffs’
26
27
20 Plaintiffs state in the motion that “many” of their RFPs call for this information, but do not
28
1 operative proposal, dated December 7, 2023, calls for the production of 570
2 individual records. See Dkt. No. 512 at 52-53. At the February 6 Discovery
3 Hearing, Defendants described the burden associated with Plaintiffs’ proposal, but
4 reported that they had begun reviewing and producing individual medical and other
5 records utilizing Plaintiffs’ categories (although reducing the total number of files
6 for certain categories). 2/6/24 Tr. at 164-170. Defendants further represented that
7 they are providing the most recent records for each category, which Plaintiffs
8 agreed would be appropriate. Id. at 164-65. To facilitate Plaintiffs’ review, the
9 Court ORDERS Defendants to identify for Plaintiffs which records correspond to
10 which categories as set forth in Plaintiffs’ December 7, 2023 proposal. The parties
11 shall continue to meet and confer in good faith.
12 B. Text and Instant Messages
13 Plaintiffs seek an order compelling Defendants to collect and produce text
14 and instant messages responsive to their RFPs. Mem. at 13-15. For the reasons
15 discussed on the record at the February 9 Discovery Hearing, the Court ORDERS
16 the parties to meet and confer regarding: (1) the use of text and instant messaging
17 among custody staff and command staff; (2) to what extent employees in the jails
18 use their own or County-issued cell phones and other devices; (3) whether
19 messages from TechCare are retained, and if so for how long; (4) assuming
20 TechCare messages are retained, whether they are searchable; (5) whether
21 Microsoft Teams messages are retained, and if so for how long; (6) assuming
22 Microsoft Teams messages are retained, whether they are searchable; and (7) the
23 burden associated with searching, collecting and producing any responsive
24 messages. The parties shall include the results of their meet and confer efforts on
25 this topic in the Joint Status Report due February 20, 2024.
26
27
identify in the motion or the Joint Status Report which RFPs are at issue with respect to the
28
1 C. ESI Search Parameters
2 Plaintiffs move for an order compelling Defendants to produce documents
3 responsive to Plaintiffs’ search term proposal dated November 29, 2023,
4 complaining that “Defendants chose their own search terms” which were
5 inadequate to capture responsive ESI. Mem. at 15-16. Alternatively, Plaintiffs
6 ask the Court to compel Defendants to provide them with a hit count and to order
7 the parties to further meet and confer on the appropriate parameters for
8 Defendants’ ESI search. Id.
9 On November 22, 2023, the Court issued an order requiring Defendants to
10 provide Plaintiffs with a preliminary search term proposal, and to consider any
11 additional search terms requested by Plaintiffs. Dkt. No. 454. The Court
12 explained, however, that it would not compel any party to conduct specific ESI
13 searches because “the party who will be responding to discovery requests is
14 entitled to select the custodians it deems most likely to possess responsive
15 information and to search the files of those individuals.” Id. at 2 (citing In re EpiPen
16 (Epinephrine Injection, USP) Mktg., Sales Pracs. & Antitrust Litig., No. 17- MD-
17 2785-DDC-TJJ, 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018). The Court
18 required Defendants to inform Plaintiffs of their final ESI search term parameters.
19 Id. at 3.
20 The record demonstrates Defendants fully complied with the Court’s
21 November 22, 2023 Order. Plaintiffs have not established good cause to
22 reconsider that order or to compel Defendants to run Plaintiffs’ search terms. See
23 Mem. at 15-16. The motion to compel regarding ESI search terms is DENIED.
24 D. Motion to Compel Further Responses to Interrogatories
25 1. Interrogatory No. 24
26 Plaintiffs’ Interrogatory No. 24 asks Defendants to identify audits of custody
27 operations and healthcare services at County jail facilities from January 1, 2020.
28 1/30/24 JSR at 8; see also Dkt. No. 489-3 at 108. Defendants provided a list of
1 inspections from January 1, 2022 to the present, which they “deem . . . complete.”
2 1/30/24 JSR at 9. Although this issue was not specifically discussed at the
3 discovery hearings, the Court’s analysis and findings as to the relevance of
4 information from an earlier timeframe is equally applicable here. Accordingly, the
5 Court ORDERS Defendants to serve a supplemental response to Interrogatory No.
6 24 to include information for the period January 1, 2021 to December 31, 2023, by
7 not later than February 29, 2024. If Defendants believe doing so would impose
8 an unreasonable burden, they may include a statement describing their position in
9 the Joint Status Report. The motion to compel further responses to Interrogatory
10 No. 24 is otherwise denied.
11 2. Interrogatory No. 25
12 Interrogatory No. 25 was not included in the Joint List of disputed issues
13 submitted to the Court in December. Plaintiffs explain its omission by stating they
14 believed they had an agreement with Defendants regarding the form and content
15 of the response but that the response they received did not comport with their
16 expectations. For the reasons stated on the record during the February 9
17 Discovery Hearing, the Court ORDERS the parties to meet and confer regarding
18 this dispute. The parties shall update the Court in the Joint Status Report.
19 E. Motion to Seal
20 Plaintiffs move, and Defendants join, to seal (or alternatively redact) Exhibits
21 JJ, KK and NN to Plaintiffs’ motion. Dkt. Nos. 490, 502. Generally, the Court
22 applies a good cause standard to motions to seal documents related to a discovery
23 motion. See Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th
24 Cir. 2016).
25 Exhibits JJ and KK contain medical, dental and other personal information
26 about detainees. Although the personal information could be redacted from Exhibit
27 JJ, given the length of the document, the extensive redactions that would be
28 required, and its tangential importance to the Court’s resolution of the motion, the
1 ||Court further finds there is good cause to seal the entire document. Exhibit KK
2 ||consists almost entirely of detainees’ personal information and is also sealable in
3 entirety under the good cause standard.
4 Exhibit NN reveals specifics about jail staffing and, again, was tangential to
5 resolution of the motion to compel. The Court finds Defendants have
6 ||established good cause to maintain this document under seal.
7 For the foregoing reasons, the Motion to Seal [Dkt. No. 490] is GRANTED.
8 || The Court takes the opportunity to remind the parties that only documents for
9 which sealing is sought should be lodged under seal.
10 IV.
11 CONCLUSION
12 For the reasons stated above, Plaintiffs’ Motion to Compel Production of
13 || Documents and Interrogatory Response [Dkt. No. 489] is GRANTED IN PART and
14 || DENIED IN PART. The Motion to Seal [Dkt. No. 490] is GRANTED.
15 || IT IS SO ORDERED.
16 || Dated: February 14, 2024 ait
17 Tb hohe
Hon. David D. Leshner
19 United States Magistrate Judge
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