UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
July 24, 2008
CATHY ENWERE, PLAINTIFF,
TERMAN ASSOCIATES, L.P., DBA TERMAN APARTMENTS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Patricia V. Trumbull United States Magistrate Judge
ORDER RE PLAINTIFF'S MOTION TO COMPEL DFEH TO PRODUCE DOCUMENTS
On July 15, 2008, Plaintiff and non-party Department of Fair Employment and Housing ("DFEH") appeared before Magistrate Judge Patricia V. Trumbull for hearing of Plaintiff's motion 20 to compel DFEH to produce documents responsive to a subpoena.*fn1 Based on the moving, opposition and reply*fn2 papers filed and arguments submitted,
IT IS HEREBY ORDERED that Plaintiff's motion to compel DFEH to produce documents*fn3 is GRANTED IN PART and DENIED IN PART for the reasons stated herein.
This is an action for discrimination in housing. Plaintiff filed a complaint with the U.S. Department of Housing and Urban Development ("HUD") on November 9, 2005. HUD waived jurisdiction to DFEH and informed Plaintiff that her complaint would be processed by DFEH.*fn4 DFEH processed the complaint until March 21, 2006, when jurisdiction was waived to HUD and Plaintiff's complaint was "reactivated" for processing by HUD.*fn5 When Plaintiff's complaint was reactivated by HUD, it appears that DFEH returned Plaintiff's case file to HUD.*fn6 On January 9, 2007, HUD issued a Determination of No Reasonable Cause (Title VIII), and on January 16, 2007 it dismissed Plaintiff's complaint. (See Plaintiff's Reply Papers, Exh. 5.) On January 30, 2007 HUD received a Freedom of Information Act ("FOIA") request from Plaintiff.*fn7
HUD sent Plaintiff a response to her FOIA request in which it agreed to provide her with a partial copy of the case file. (See Plaintiff's Reply Papers, Exh. 9.) In the response, HUD noted it was withholding the following documents in their entirety:
1. Memorandum from Anné Quesada to R. Faye Austin dated 12/18/06.
2. 100 Day Letter Worksheet dated 7/31/06.
3. Memorandum from Anné Quesada to Linda Creel, dated 7/5/06.
4. Investigative Plan, undated.
5. Waiting List, Rent Rolls and tenant applications for Terman Apts.
6. Title VIII Case Completion Checklist.
7. DFEH Case Diary.
8. DFEH Memorandum from Anita Joseph to Susan Sheftel, dated 3/31/06.
9. Emails from Linda Creel, Jeff Jackson and Ralph Douglass, dated 7/6/07 [sic], 7/10/06, 8/24/06 and 8/25/06.
10. Draft handwritten notes.
11. Documents relating to the conciliation process.
HUD also redacted from the documents it was providing the names, addresses and telephone numbers of neutral witnesses as well as other personal information about them. (See Plaintiff's Reply Papers, Exh. 5.)
II. ELECTRONIC DOCUMENTS AND INFORMATION
Plaintiff's motion is GRANTED to the extent DFEH has any responsive documents and/or information in electronic form that it has not already produced to Plaintiff. DFEH shall do a reasonable search*fn8 for any emails, letters, memoranda, information sheets or other documents that remain on its computers. The search shall include any and all computers used by DFEH personnel who handled any part of Plaintiff's DFEH complaint, or otherwise had communications with Plaintiff or Defendants in connection with Plaintiff's DFEH complaint. The production shall also include a screenshot of the CMIS page related to Plaintiff.*fn9 Within one week from the date of this order DFEH shall either produce to Plaintiff any responsive electronic documents it has not yet produced, or else file and serve a declaration confirming that it has searched all of the computers referenced above, and no further responsive documents were found.*fn10
III. HARD COPY OF PLAINTIFF'S DFEHFILE
Plaintiff's motion is DENIED as to the hard copy of Plaintiff's DFEH file. As noted above, DFEH informs the court that it sent Plaintiff's case file to HUD without keeping any copies. While Ms. Sheftel may have told Plaintiff she would send Plaintiff the file, it appears from the record that any implication that DFEH still had Plaintiff's file was factually incorrect. Nor does it appear, as Plaintiff argued, that DFEH has any control over the documents in HUD's possession by virtue of the Worksharing Agreement. The court has reviewed the Worksharing Agreement and finds nothing that would give DFEH any legal right to obtain copies of Plaintiff's case file from HUD after HUD reactivated its own processing of Plaintiff's complaint. (See Sheftel Decl., Exh. 1.) Because DFEH has no obligation to produce records that are not in its "possession, custody or control," there is no basis for the court to order it to produce any documents other than the electronic documents that may still be retained on its computers. See United States v. International Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir. 1989).
IV. OBTAINING THE DOCUMENTS FROM HUD
As discussed at the hearing, Plaintiff must subpoena HUD in order to obtain further documents from HUD for use in this lawsuit. Plaintiff stated she already had served a subpoena on HUD. At the hearing the court asked counsel for DFEH, and counsel agreed, to contact HUD and communicate the following from the court: 1) a statement that the court expects HUD to retain in its possession any and all documents it has regarding Plaintiff's complaints until further order of this court or written agreement of Plaintiff otherwise, or final termination of this action; and 2) an inquiry regarding whether HUD has received a subpoena from Plaintiff in the past few months. Counsel further agreed that, no later than July 22, 2008, she would inform the court and Plaintiff of HUD's response. She has now done so in a response filed July 22, 2008. In response to counsel's inquiry, HUD advised that it has possession of Plaintiff's complete case file. It further advised that it was not served with any subpoena by Plaintiff. It did receive a copy of the subpoena Plaintiff served on the DFEH, and while the subpoena was not directed to HUD, HUD nonetheless looked into producing responsive documents to Plaintiff by treating the subpoena as a FOIA request. In the process, HUD realized it has already responded to a FOIA request from Plaintiff, and informed her that it has already sent her copies of all documents it is allowed to disclose pursuant to its regulations. The scope of records that can be obtained with a subpoena is broader than the scope of records that must be disclosed under FOIA. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1185 (9th Cir. 2006) (noting that documents which are exempt from disclosure under FOIA are not automatically privileged in civil discovery). Thus, Plaintiff may be able to obtain some or all of the documents withheld by HUD by serving HUD with a proper subpoena for the records it withheld in responding to her FOIA request.*fn11
The court notes that HUD is correct in its observations that the subpoena Plaintiff served on DFEH was not properly issued. As a party representing herself pro per, Plaintiff must ask the clerk's office to issue a blank subpoena. The subpoena will be signed and dated by clerk's office personnel. Plaintiff may then fill out the subpoena with all appropriate information. The date set for HUD to provide the documents should be at least a week after the date Plaintiff serves the subpoena on HUD. See Fed.R.Civ.Pro. 45(c)(3)(A)(i). If, after being served with a proper subpoena, HUD then fails to respond or withholds any documents or information Plaintiff believes it should produce, then Plaintiff may file a motion to compel HUD to produce those documents. Plaintiff shall notice any such motion for hearing on this court's motion calendar (which is held Tuesdays at 10:00 a.m.), and shall serve the motion papers on HUD at least 35 days before the noticed hearing date as required by this court's Civil Local Rule 7-2.
Any such motion shall also include a copy of the subpoena.