Smallwood

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

10

11 SHAWN SMALLWOOD, Case No. 1:24-cv-01198-KES-CDB

12 Plaintiff, ORDER RE REQUEST FOR

RESOLUTION OF DISCOVERY

13 v. DISPUTE

14 SASD DEVELOPMENT GROUP LLC, (Doc. 40)

et al.,

15 10-Day Deadline

Defendants.

16

17 Currently before the Court is a discovery dispute that Plaintiff Shawn Smallwood

18 (“Plaintiff”) and Defendants SASD Development Group LLC (“SASD”), Thomas Carosella, and

19 Lisa M. Carosella, James C. Lundy, and Tianna T. Lundy (collectively, “Defendants”) have agreed

20 to submit to the Court for adjudication through the Court’s informal discovery dispute procedure.

21 (Doc. 40).

22 Relevant Background

23 On October 4, 2024, Plaintiff initiated this action with the filing of a complaint against

24 Defendants SASD, Thomas Carosella, and Lisa M. Carosella. (Doc. 2). Pursuant to the Court’s

25 order on the parties’ stipulated request, on January 24, 2025, Plaintiff filed the operative, first

26 amended complaint (“FAC”). (Docs. 18, 20).

27 By his FAC, Plaintiff seeks relief pursuant to Section 11(g)(1)(A) of the Endangered

1 disturbing the ground surface of and removing vegetation upon) land they own in whole or in part

2 in Bakersfield that is occupied habitat of the San Joaquin kit fox (Vulpes macrotis mutica), a species

3 listed as endangered under the ESA, all in violation of the ESA and its implementing regulations.

4 (Doc. 15 at 1-2, 5-6). Plaintiff alleges that the Department of Veterans Affairs (“VA”) has proposed

5 the construction and operation of a community-based outpatient clinic facility on Defendants’ land

6 that is at issue in the suit. Id. at 11. Plaintiff seeks declaratory and injunctive relief prohibiting

7 Defendants from committing further violations of the ESA and ordering them to refrain from

8 disking or conducting other comparable vegetation management measures that will harass, and thus

9 impermissibly “take” under the ESA, San Joaquin Kit Fox on Defendants’ property without first

10 obtaining an appropriate permit. Id. at 19-20.

11 In their answer to the FAC, Defendants assert the affirmative defense of unclean hands on

12 the grounds that Plaintiff “is acting at the direction of the current owners of the existing VA clinic,

13 Progress for Bakersfield Veterans, LLC, to delay the eventual construction of the new VA

14 Bakersfield Community Based Outpatient Clinic by Defendant SASD.” (Doc. 31 at 13).

15 Defendants assert that “Plaintiff is playing a key role in in this anti-competitive and racketeering

16 endeavor by engaging in frivolous litigation in an effort to increase legal fees and costs relating to

17 delays in construction for the new clinic.” Id.

18 On September 18, 2025, following meet and confer efforts between the parties, counsel for

19 Defendants requested to convene for an informal discovery conference to resolve disputes

20 concerning certain of Plaintiff’s responses to Defendants’ requests for admission (“RFA”) and

21 requests for production of documents (“RPD”) and certain of Plaintiff’s failures to respond to

22 questions presented during deposition (on instruction by counsel to not answer) addressing the same

23 or similar topics as those at issue in the disputed RFAs/RPDs. (Doc. 39). The parties thereafter

24 filed a joint letter brief addressing the discovery disputes. (Doc. 40). The Court convened via

25 Zoom for an informal discovery dispute videoconference on September 25, 2025. (Doc. 42).

26 Plaintiff appeared through attorney Michael R. Lozeau; Defendants appeared through attorney

27 Jayson Parsons. At the beginning of the conference, the parties agreed to resolution of the identified

1 anticipated order of the Court resolving the disputes to the exclusion of seeking relief through either

2 a motion to compel or for protective order, reserving only the parties’ rights to seek review of the

3 undersigned’s order by the assigned district judge pursuant to Fed. R. Civ. P. 72(a) under the

4 “clearly erroneous” or “contrary to law” standards.

5 Governing Legal Standards

6 Rule 26 of the Federal Rules of Civil Procedure provides that a party “may obtain discovery

7 regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional

8 to the needs of the case, considering the importance of the issues at stake in the action, the amount

9 in controversy, the parties’ relative access to relevant information, the parties’ resources, the

10 importance of the discovery in resolving the issues, and whether the burden or expense of the

11 proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information need not

12 be admissible in evidence to be discoverable. See, e.g., Ford v. Unknown, No. 2:21-cv-00088-

13 DMG-MAR, 2023 WL 6194282, at *1 (C.D. Cal. Aug. 24, 2023). “Evidence is relevant if: (a) it

14 has any tendency to make a fact more or less probable than it would be without the evidence; and

15 (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Although relevance

16 is broadly defined, it does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v.

17 Sanders, 437 U.S. 340, 350-51 (1978).

18 Relevant here, under Rule 36, a “party may serve on any other party a written request to

19 admit, for purposes of the pending action only, the truth of any matters within the scope of Rule

20 26(b)(1).” A responding party may answer in one of three manners: (1) admit the request if the

21 party has no reason to dispute its truthfulness and accuracy; (2) deny the request, in whole or in

22 part, if it has a reasonable basis to dispute the requested matter; or (3) state that it cannot admit or

23 deny the request and provide a “reasonable explanation[], in adequate detail, as to why it cannot

24 respond.” F.D.I.C. v. Halpern, 271 F.R.D. 191, 195-96 (D. Nev. 2010).

25 Additionally, in response to a party’s request for production of documents, the receiving

26 party “is obliged to produce all specified relevant and nonprivileged documents or other things

27 which are in its ‘possession, custody or control’ on the date specified in the request.” Jadwin v.

1 (quoting Fed. R. Civ. P. 34(a)).

2 “The party who resists discovery has the burden to show that discovery should not be

3 allowed, and has the burden of clarifying, explaining, and supporting its objection.” Id. (quotation

4 and citations omitted).

5 Discussion

6 As set forth below, Defendants challenge Plaintiff’s failure and refusal to respond

7 substantively to their written discovery demands and related deposition questions (on various

8 privilege grounds) pertaining to Defendants belief that Plaintiff is being compensated or receiving

9 financing for this lawsuit.

10 A. Requests for Admission and Deposition Responses

11 In RFA Nos. 4 through 7, Defendants direct Plaintiff to admit that he is being, has been, or

12 will be compensated by various identified organizations and people associated with those

13 organizations, including at least two purported owners of the current VA clinic, which, Defendants

14 argue, stand to lose hundreds of thousands of dollars of monthly rent when the VA project planned

15 for construction on Defendants’ property becomes operational. (Doc. 24 at 6; Doc. 40-1 at 5-7).

16 Defendants assert that they are entitled to know the identity of any third-party funders as a corollary

17 to their “right to know the true identities of the parties who are suing them.” (Doc. 40 at 3).

18 Separately, Defendants assert the information is necessary to their assessing privilege claims

19 Plaintiff has asserted in objecting to the discovery demands in dispute. Id. Finally, Defendants

20 argue the information sought through these RFAs bears on the issue of witness credibility

21 (presumably, Plaintiff’s) and Defendants’ ability to assess potential defenses and counterclaims.

22 Id.

23 In response to the RFAs, Plaintiff neither admitted, nor denied, nor stated he could not admit

24 or deny the requests with reasonable explanations, in adequate detail, as to why he could not

25 respond. See Fed. R. Civ. P. 36. Instead, Plaintiff asserted objections on the grounds of

26 “compound, conjunctive or disjunctive” phrasing, relevance, speculative, and “attorney-client

27 privilege, attorney work product doctrine, and/or common interest privilege.” (Doc. 40-1 at 5-7).

1 and, without any elaboration or explanation, on the grounds that the RFAs are irrelevant and/or

2 speculative are improper boilerplate objections and will be overruled. See Villery v. Jones, No.

3 1:15-cv-01360-DAD-HBK (PC), 2021 WL 2227363, at *3 (E.D. Cal. June 2, 2021) (“boilerplate

4 objections to requests for admission are not sufficient”); Pecover v. Electronic Arts, Inc., No. 08-

5 cv-02820 CW (NC), 2012 WL 12921363, at *4 (N.D. Cal. May 23, 2012) (“Plaintiffs’ objection

6 that the requests are ‘compound’ is unpersuasive, because Rule 36 allows responding parties to

7 ‘qualify an answer or deny only a part of a matter’ as long as the answer specifies the part admitted

8 and qualifies or denies the rest … Indeed, Rule 36 requires responding parties to ‘admit to the

9 fullest extent possible, and explain in detail why other portions of a request may not be admitted.’”)

10 (citing Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 (9th Cir. 1994)).

11 Second, although Plaintiff has separately objected to responding to these RFAs on grounds

12 of attorney-client privilege, attorney work product doctrine, and/or common interest privilege, none

13 of these privileges attaches to shield Plaintiff from confirming whether he is receiving

14 compensation from identified third parties in connection with the litigation. That is because such

15 an admission (or denial) would neither (1) necessarily implicate the subject of a privileged attorney-

16 client communication, or (2) necessarily reveal the mental impressions or strategies of attorneys.1

17 See Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (“The [attorney-client] privilege only

18 protects disclosure of communications; it does not protect disclosure of the underlying facts by

19 those who communicated with the attorney[.]”); United States v. Gonzalez, 669 F.3d 974, 978, 981

20 (9th Cir. 2012) (common interest doctrine protects communications among aligned parties and their

21 attorneys); Continental Circuits LLC v. Intel Corp., 435 F. Supp.3d 1014, 1020, 1028 n.5 (D. Ariz.

22 2020) (mere fact of existence of litigation funding agreements not protected from disclosure by

23 work product doctrine).

24 Accordingly, Plaintiff will be directed to serve amended responses to RFA Nos. 4 through

25

1 Although Rule 26(b)(3) applies only to documents and tangible things, some courts have noted

26 that the work product doctrine established by the Supreme Court in Hickman v. Taylor (329 U.S. 495

(1947)) may extend under certain circumstances to “intangible” expressions. See Continental Circuits

27 LLC., 435 F. Supp.3d at 1023-24 (citing cases). Even if such prelitigation privilege attaches to intangible

work product in general, Plaintiff does not develop any argument that the privilege would shield him from

responding to RFA Nos. 4 through 7. See id. at 1024 (holding that work product privilege does not attach

1 7 without reliance on any of the asserted, overruled objections.

2 Defendants also challenge counsel for Plaintiff’s instruction to Plaintiff to not answer

3 questions put to him during deposition concerning his knowledge of his and other third parties’

4 execution of litigation agreements involved in this case. See (Doc. 40-4). During deposition,

5 counsel for Plaintiff represented that a “common interest agreement” existed but would not identify

6 the parties to such agreement, notwithstanding that Plaintiff objected to responding both to RFA

7 Nos. 4 through 7 and the challenged RPDs (see infra) on the grounds of common interest privilege.

8 See id. Tr. 183-86.

9 As set forth above, the fact of the existence of such litigation agreements is not protected

10 by the privileges Plaintiff identifies. Given that Plaintiff has refused to answer discovery demands

11 and deposition questions concerning the existence of third-party funders and common interest

12 agreements, Plaintiff will be directed to serve upon Defendants a verified response identifying any

13 common or joint interest agreement relevant to this action and the parties thereto.2

14 B. Request for Production of Documents

15 In RPD Nos. 15, 16, 19, 21, 22, and 23, Defendants seek production of communications

16 between Plaintiff and suspected third-party funders and an identified law firm and records reflecting

17 any payments between Plaintiff and these third parties. In response, Plaintiff objected on grounds

18 of relevance, undue burden and overbreadth, and asserted the same privilege objections as those he

19 advanced in response to RFA Nos. 4 through 7, and further, represented that he was withholding

20 production of responsive documents on those grounds, among others. See (Doc. 40-2).

21 Plaintiff’s objections on grounds of relevance, undue burden and overbreadth are well taken

22 and will be sustained. Defendants neither limited by time the scope of documents sought nor

23 restricted by topic the nature of documents called for by the requests. Moreover, to the extent

24 Plaintiff properly may withhold from production any documents responsive to these RPDs on

25

2 During the informal discovery dispute conference, the undersigned observed it may become

26 necessary to direct Plaintiff to lodge with the Court any relevant common/joint interest agreement for its

ex parte and in camera inspection. However, because Defendants do not presently ask the Court to

27 determine the propriety of Plaintiff’s withholding of documents from production due to any existence of a

common/joint interest agreement, the Court will not direct Plaintiff to lodge any such agreements. Cf.

Primex Farms, LLC v. Schuco USA LLP, No. 1:24-cv-00880-CDB, 2025 WL 401184, at *2 (E.D. Cal. Jan.

1 grounds of privilege, Defendants largely conceded during the discovery dispute conference that,

2 for present purposes, they could not identify a “substantial need” for such documents as required

3 under Rule 26(b)(3).

4 However, there is “no bright-line prohibition” on discovery of litigation funding-related

5 information. E.g., V5 Techs. V. Switch, Ltd., 334 F.R.D. 306, 312-13 (D. Nev. 2019). Here,

6 Plaintiff has represented in response to Defendants’ discovery requests that he is withholding from

7 production on grounds of privilege responsive information. Given his discovery responses,

8 Plaintiff is required to provide Defendants certain information sufficient to enable them to

9 reasonably assess Plaintiff’s privilege claim(s). See Fed. R. Civ. P. 26(b)(5)(A).

10 One method by which Plaintiff may satisfy Rule 26(b)(5) is to serve a privilege log. See In

11 re Grand Jury Investigation, 974 F.2d 1068, 1070-71 (9th Cir. 1992). The Advisory Committee

12 Note to what is now Rule 26(b)(5)(A) does not specify the specific information that must be

13 provided in a privilege log. Advisory Committee Note to Fed. R. Civ. P. 26(b)(5) (1993) (“The

14 rule does not attempt to define for each case what information must be provided when a party

15 asserts a claim of privilege or work product protection.”). Nevertheless, in order to permit a

16 receiving party (and the Court) to assess a producing party’s privilege claim, a log typically must

17 identify: the document’s general nature and description; author’s identity; date written,

18 name/addressee of any recipient; and the document’s location. See Martinez v. City of Fresno, No.

19 CV F 06-0233 OWW LJO, 2006 WL 3762050, at *6 (E.D. Cal. Dec. 20, 2006) (citing United States

20 v. Construction Products Research, Inc., 73 F.3d 464, 473 (2nd Cir.), cert. denied, 519 U.S. 927

21 (1996)). Accord “What Constitutes an ‘Adequate Privilege Log’ under Rule 26(b)(5),” 51 A.L.R.

22 Fed. 3d Art. 2 (2020) (citing Haydock and Herr, Discovery Practice (Aspen Publishers 2009) &

23 Sky Angel U.S., LLC v. Discovery Comms., LLC, 28 F. Supp. 3d 465 (D. Md. 2014), aff'd on other

24 grounds, 885 F.3d 271 (4th Cir. 2018)).

25 Absent agreement by the parties, “[p]rivilege logs are due at the time a discovery response

26 is made.” Sanchez v. Cnty. of Sacramento Sheriff's Dep't., No. 2:19-cv-01545 MCE AC, 2020 WL

27 3542328, at *2 (E.D. Cal. June 20, 2020) (citing Fed. R. Civ. P. 26(b)(5) & 34(b)).

1 | Conclusion and Order

2 Accordingly, IT IS HEREBY ORDERED, within ten (10) days of entry of this order,

3 | Plaintiff shall serve upon Defendants:

4 1. Amended responses to RFA Nos. 4 through 7, consistent with this order;

5 2. A verified response identifying any common or joint interest agreement relevant to this

6 action and the parties thereto, consistent with this order; and

7 3. A privilege log compliant with Fed. R. Civ. P. 26(a)(5)(A), consistent with this order.

8 | IT IS SO ORDERED.

| Dated: _ September 30, 2025 | Word

10 UNITED STATES MAGISTRATE JUDGE

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28