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Dawe v. Corrections USA

October 1, 2009



On July 29, 2009, this court heard the respective discovery motions*fn1 of plaintiffs and defendants.*fn2 Attorney Daniel Baxter appeared on behalf of plaintiffs; Phillip Mastagni appeared on behalf of defendants. For the reasons set forth herein and on the record, the court enters the following order.

I. Plaintiffs' Motion to Compel Further Responses to Production Requests, and for Further Document Production

Plaintiffs seek, in pertinent part, further responses and production of documents in response to their Document Requests Nos. 31 and 52, propounded by plaintiff Brian Dawe on November 7, 2007 (Requests for Production of Documents, Set No. One), upon defendant Correction USA ("CUSA"). These requests sought the following:

* No. 31: All documents reflecting communications by any CUSA representative to any other person or entity regarding Brian Dawe, Richard Loud, or Gary Harkins in relation to the claims at issue in this lawsuit.

* No. 52: All documents evidencing any investigation of Brian Dawe, Richard Loud, or Gary Harkins by or at the behest of CUSA or CCPOA.

Defendants served their initial responses on December 20, 2007. On April 23, 2008, pursuant to plaintiffs' motion to compel, the court issued an order which found these requests relevant to claims and defenses in this action, and directed defendants to respond to them fully. Dckt. No. 106, at 20. On April 28, 2009, pursuant to a subsequent motion filed by plaintiffs, the court directed defendants' counsel to serve upon plaintiffs' counsel written certification that defendants had conducted a diligent search and produced all responsive documents within their custody and control. The order further provided that, "[t]his certification shall include, when pertinent, reference to each responsive document, including Bates-stamped page numbers."

Dckt. No. 173, at 2-4.

On May 21, 2009, defendants served an "Amended Certification of Responses to Request for Production of Documents, Set One." In response to Request Nos. 31 and 52, defendants' certification broadly referenced every document produced by CUSA, as follows:

The responding party certifies, that after a diligent search, the responding party has produced all documents in the responding party's possession, control, and/or custody. CUSA000001-CUSA 031456.

Dckt. No. 211 at 5.

Plaintiffs seek an order of this court compelling defendants to particularize this certification. Plaintiffs assert that defendants' current certification violates this court's April 28, 2009 order, and "affirmatively stymies Plaintiffs' efforts to ensure that its discovery efforts have been satisfied." Dckt. No. 211, at 6. Defendants respond that their certification complies with the court's order, given the "extreme breadth" of the requests and the fact that all documents produced by CUSA are indeed responsive to the requests as framed. Id. at 16-17.

The court's April 28, 2009 order was intended to ensure, and to provide assurances to plaintiffs, that defendants had produced all documents responsive to plaintiffs' requests and, if necessary, to provide a basis for challenging the later introduction of evidence not previously disclosed through the discovery process. The same principles govern plaintiffs' production of documents to defendants. The court's additional requirement -- that defendants cite to Bates-stamped page numbers "when pertinent" -- was intended to reflect the court's statement at the April 1, 2009 hearing that a clear record would advance the interests of all parties should production later be challenged.*fn3 See, e.g., Transcript of April 1, 2009 Hearing, Dckt. No. 170, at 8-10.

The court has given due consideration to the parties' respective positions, as addressed at the hearing on this matter, and finds that defendants' certification in response to Request Nos. 31 and 52 is adequate. While the certification is broad, so are the requests. The court agrees with defendants that to require greater particularity at this time would reveal defendants' assessment of the relative importance of the various documents and thus defendants' litigation strategy, impinging on work product.

Accordingly, plaintiffs' motion to compel defendants' further responses and production of documents in response to Plaintiffs' Requests for Production of Documents, Nos. 31 and 52, is denied.

II. Plaintiffs' Motion for Court Order to Prevent Spoilation of Evidence

Plaintiffs seek an order of this court requiring defendants to preserve and maintain all recordings and other memorializations of meetings convened by CUSA and CCPOA; requiring defendants to verify that no such items have been or will be destroyed, discarded, or altered during the pendency of this litigation; authorizing plaintiffs' inspection of audio and other recordings moved on April 21, 2009; and providing a mechanism for seeking sanctions in the event such order is violated. For the following reasons, this motion will be denied.

This motion was precipitated by the following. On April 18, 2009, CCPOA held a State Board meeting at the Red Lion Inn in Bakersfield, California. At that meeting, Donald Baumann, CCPOA Chapter President and State Board Member, made a motion ("resolution"), which passed (but was later amended), that endorsed the destruction of audio recordings of CCPOA meetings after approval of the written minutes. Thereafter, on April 21, 2009, CCPOA Chief Operating Officer (and General Counsel) David Sanders and CCPOA State Secretary Perry Speth moved CCPOA recordings from one warehouse, not controlled by CCPOA, to another warehouse that is controlled by CCPOA. The move was witnessed and assisted by Steve Fournier, a CCPOA member who was present at the April 18 meeting, and who managed storage at the first warehouse. Fournier states that he thereafter attended a meeting on April 25, 2009, of retired correctional officers in Sacramento, where he was told by a third party that Sanders and Speth had stated they were directed to destroy the recordings. See Fournier Decl, ¶¶ 4-9. This hearsay led to plaintiffs' concern that defendants had destroyed, or intended to destroy, evidence relevant to this litigation.

Defendants have responded, with several supporting declarations, stating that the primary purpose of the April 21, 2009 motion was to protect union members from disclosure of private grievances, and was prospective only. Sanders Decl., ¶¶ 10-11; Baumann Decl., ¶ 15. Moreover, in response to the instant motion, CCPOA passed an amended resolution on July 13, 2009, at CCPOA's next regularly scheduled meeting, that expressly requires CCPOA to secure and maintain the recordings of all its Board meetings, and to release no recordings unless directed to do so by court order or a 3/4 majority vote of the Board. Sanders Decl., ¶ 39 and Ex. "E" thereto. In addition, defendants state that the recordings were moved for the purpose of bringing all recordings within CCPOA's control in order to conduct required discovery. Pursuant to the declarations of Sanders and CCPOA employee Steven Barefoot, defendants state that they spent over 90 hours listening to every recording, which date from the 1980s, in order to respond fully and accurately to all of plaintiffs' discovery requests, thus providing all references to CUSA, Dawe, Harkins, and Loud. Defendants represent that no recordings have been destroyed, and all will remain secure pending resolution of this litigation.

At the hearing on this motion, the parties addressed the impact of CCPOA's new resolution requiring a court order for further disclosure of responsive material. While plaintiffs contend, appropriately, that they should not be required to obtain a court order to obtain responsive, relevant discovery, defendants maintain that all non-privileged responsive information has already been disclosed. Defendants seek to avoid again going through every recording since the 1980s, most of which are "totally irrelevant, [] involve privacy of third parties, [] union grievances, [and] [] privileges of litigation, and they have nothing to do with this case." Transcript of July 29, 2009 Hearing (hereafter, "Transcript"), Dckt. No. 224, at 26. As this matter is not squarely presented to the court as a discovery dispute, the court does not reach it. As the court stated at the hearing on this matter:

I'm simply going to direct you -- both of you to comply with the Federal Rules of Civil Procedure as to preservation of evidence as well as discovery. If there's an appropriate discovery request that's submitted or has been submitted for the recordings, then you'll need to respond to that request. And if there is a proper basis for a privilege, you'll ...

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