The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ERIC TALLAKSEN, Case No.: 25-cv-1073-W-DDL
12 Plaintiff,
ORDER RE EXPENSES UNDER
13 v. FED. R. CIV. P. 37(a)(5)(A)
14 ALEXANDER SMITH; ESTEBAN
HERNANDEZ,
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Defendants.
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I.
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INTRODUCTION
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On April 30, 2026, the Court granted Plaintiff’s motions to compel the production
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of documents and to compel Defendant Smith to answer deposition questions that he was
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instructed not to answer on privilege grounds. Dkt. No. 46. This Order addresses
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Plaintiff’s request for payment of attorney’s fees incurred bringing the motions to compel.
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See Fed. R. Civ. P. 37(a)(5).
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II.
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DISCUSSION
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Where a motion to compel discovery is granted, “the court must, after giving an
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opportunity to be heard, require the party or deponent whose conduct necessitated the
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1 expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
2 37(a)(5)(A). However, the court must not order such payment where the movant failed to
3 make a good faith effort to obtain the discovery before filing the motion, the opposing
4 party’s objection was substantially justified, or “other circumstances make an award of
5 expenses unjust.” Id. A position is substantially justified when “the parties had a genuine
6 dispute on matters on which reasonable people could differ as to the appropriate outcome.”
7 Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. Nev. 2016) (citing Pierce v.
8 Underwood, 487 U.S. 552, 565 (1988)). “The party facing an award of expenses bears the
9 burden of establishing substantial justification.” Eisenberg v. Marriott Int’l, Inc., No. 2:25-
10 CV-00208-RFB-NJK, 2026 WL 772447, at *3 (D. Nev. Mar. 18, 2026).
11 At issue here is whether Defendant Smith was substantially justified in (1) declining
12 to produce two “memoranda of direction” in response to Plaintiff’s request for production
13 (“RFP”) seeking “disciplinary records” and (2) invoking the attorney-client privilege in
14 response to deposition questions regarding his written discovery responses. The Court
15 concludes Defendant Smith has demonstrated substantial justification for his response to
16 Plaintiff’s request for production seeking disciplinary records but not with respect to his
17 invocation of the attorney-client privilege.
18 A. Failure to Produce Memoranda of Direction
19 Plaintiff’s Request for Production No. 18 sought “[a]ll your disciplinary records.”
20 Dkt. No. 41-1 at 3. Defendant Smith responded by objecting and then asserting he did not
21 possess responsive documents. Id. at 4. However, Defendant Smith subsequently testified
22 that he had been disciplined for violating “various policies.” Dkt. No. 41 at 5. Those
23 events are reflected in three “memorandum of direction” documents dated August 29,
24 2023, July 6, 2024 and July 26, 2024, that the Court reviewed in camera. These
25 memoranda describe patrol car crashes and an incident involving an encounter with a
26 civilian, direct Defendant Smith to undergo remedial training and warn that similar conduct
27 may result in “Adverse Action” against him.
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1 In response to Plaintiff’s motion to compel production of the memoranda of
2 direction, defense counsel argued that the memoranda are not disciplinary records – and
3 thus not within the scope of Plaintiff’s RFP No. 18 – because they are “remedial or
4 counseling in nature” and are not appealable to the California State Personnel Board. Dkt.
5 No. 42 at 2-3. “[T]he language of discovery requests should not be read or interpreted in
6 an artificially restrictive or hyper-technical manner to avoid disclosure of information fairly
7 covered by the discovery request.” O.H. v. Secret Harbor, No. 2:23-CV-60, 2024 WL
8 310281, at *3 (W.D. Wash. Jan. 26, 2024) (citing Fed. R. Civ. P. 37, Advisory Committee
9 Note (1993 Amendments)). Defense counsel’s argument that the memoranda of direction
10 do not constitute disciplinary records toes the line of an artificially restrictive or hyper-
11 technical reading of Plaintiff’s request for disciplinary records. Indeed, Defendant Smith’s
12 deposition testimony reflects his common sense understanding that he was disciplined for
13 the events reflected in the memoranda.
14 The better practice would have been for defense counsel to acknowledge the
15 existence of the memoranda to Plaintiff’s counsel and articulate the position taken in the
16 motion that the memoranda did not constitute disciplinary records. At least then Plaintiff’s
17 counsel would not have learned about the memoranda for the first time at Defendant
18 Smith’s deposition. However, having considered defense counsel’s justification for taking
19 the position that memoranda of direction do not constitute “disciplinary records,” the Court
20 finds Defendant Smith’s discovery response was substantially justified.
21 B. Invocation of Attorney-Client Privilege
22 Defendant Smith has not established that his counsel’s assertions of attorney-client
23 privilege in response to deposition questions about responses to Requests for Admission
24 and Requests for Production were substantially justified. As explained at the motion
25 hearing and in the April 30 Order, the deposition questions did not require Defendant Smith
26 to divulge confidential attorney-client information. For example, when Plaintiff’s counsel
27 asked Defendant Smith whether he had reviewed the documents produced in response to
28 RFP No. 5, defense counsel asserted a blanket objection and instruction not to answer: “I’m
1 invoking the attorney-client privilege for this entire line of questioning.” Dkt. 41-3 at 73-
2 75. But asking Defendant Smith about the documents he reviewed did not, on its face,
3 require him to divulge privileged communications with his counsel. And by asserting the
4 privilege as to the entire line of questioning, defense counsel prevented Plaintiff from
5 asking questions seeking non-privileged information.
6 In response to Plaintiff’s motion to compel, Defendant Smith argued that he properly
7 declined to answer deposition questions because his written discovery responses “were
8 prepared by counsel in consultation with Ofc. Smith” and “[t]o inquire into Ofc. Smith’s
9 state of mind when he verified the RFAs, RFP no. 5, and amended RFP no. 17 would
10 consequently reveal substance and nature of communications between attorney and client.”
11 Dkt. No. 43 at 5. This argument is inconsistent with the precept that the attorney-client
12 privilege does not “create a broad zone of silence over the subject matter of the [attorney-
13 client] communication.” Murdoch v. Castro, 609 F.3d 983, 995 (9th Cir. 2010). The
14 privilege “only protects disclosure of communications; it does not protect disclosure of the
15 underlying facts by those who communicated with the attorney.” Admiral Ins. Co. v. U.S.
16 Dist. Ct., 881 F.2d 1486, 1493 (9th Cir. 1989). Thus, the facts underlying confidential
17 attorney-client communications are the proper subject of discovery, “so long as the
18 underlying facts can be proven without resort to the privileged materials.” Murdoch, 609
19 F.3d at 995. Defendant’s argument that counsel’s participation in the drafting of discovery
20 responses thereby precluded Plaintiff’s counsel from asking any deposition questions about
21 those discovery responses is inconsistent with the longstanding rule that the attorney-client
22 privilege protects communications, not underlying facts.
23 The Court concludes Defendant Smith has not established that his refusal to answer
24 deposition questions on privilege grounds was substantially justified and that Rule
25 37(a)(5)(A) requires payment of Plaintiff’s expenses in bringing the motion to compel.
26 Given that Defendant Smith followed his counsel’s instruction not to answer the questions
27 and that counsel sought guidance from his chain of command in the Attorney General’s
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1 || Office with respect to the objections, the Court finds that the Attorney General’s Office
2 ||should be responsible for the payment, not Defendant Smith.
3 II.
4 CONCLUSION
5 For the foregoing reasons, the Court ORDERS as follows:
6 1. Pursuant to Rule 37(a)(5)(A), the Attorney General’s Office must pay
7 || Plaintiff's reasonable expenses incurred in moving to compel Defendant Smith to answer
8 || deposition questions.
9 2. By not later than May 19, 2026, Plaintiff's counsel must file a declaration
10 ||setting forth the attorney’s fees and costs incurred in bringing the motion to compel
11 |}answers to deposition questions (but not the motion to compel production of the
12 ||memoranda of direction).
13 3. By not later than May 27, 2026, defense counsel must file any response to
14 || Plaintiff's counsel’s declaration.
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16 IT ISSO ORDERED.
17 || Dated: May 12, 2026 _—
Tb hohe A
20 United States Magistrate Judge
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