The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge
Previously pending on the undersigned's law and motion calendar for March 18, 2010, was plaintiff's amended motion to compel production of documents in compliance with court order, and for sanctions. Anthony Caso represented plaintiff. Amanda Butts appeared on behalf of defendants County of Sacramento, Roger Dickinson, Robert MacGlashan, Susan Peters, Jimmie Yee, Don Nottoli, and G. Hardy Acree. After reviewing the papers and hearing oral argument, the court now issues the following order.
This case concerns plaintiff's operation of a Java City concession at Sacramento International Airport, which she alleges was terminated by defendants on July 31, 2009, after almost 20 years of operation. The complaint alleges the termination was based on race, but defendants contend her sublease was not renewed due to poor financial performance of her concession.
This motion concerns a continuation of a dispute previously resolved by order of December 21, 2009. Plaintiff claims that defendants delayed in producing much of the discovery ordered by the court. Initial Rule 26 disclosures were to be produced by January 15, 2010, but were not produced until January 18, and amended disclosures were produced on February 16, 2010. Documents were ordered produced by February 15, and although some were produced on February 16, additional documents were not produced until March 3, March 8, and March 11 (the deadline for filing this joint statement), with a promise to look for more documents responsive to the court order. At hearing, defendants represented that still more documents had been delivered by the County to defense counsel the night before the hearing (March 17), but counsel had not yet reviewed them. Of the documents produced, plaintiff claims that many of them were in no particular order, that pages within documents were scrambled, that some emails either did not have their attachments, or the attachments were separated from the email by hundreds of pages. According to plaintiff, some documents were produced in no useable format. The privilege log was produced on February 16 as ordered; however, a supplemental privilege log was produced on March 8.
Plaintiff seeks an order compelling defendants to produce documents over which privileges have been claimed but which plaintiff asserts are not privileged, an order protecting plaintiff from further delayed discovery, and sanctions for having to bring this motion and the previous motion.
Defendants argue that their lead counsel was out of the country on a personal vacation from February 4 to 27, 2010, during part of the time that production was ordered to occur, and as a result, some documents were produced late because they were mistakenly left out of the February 16th production. In all, only 20 items out of 5,181 pages were mistakenly omitted. Defendants also claim that plaintiff failed to meet and confer prior to noticing this motion. It was not until March 9, when plaintiff's counsel delivered his portion of the joint statement to defense counsel that defendants became aware of specific documents plaintiff contends were not part of the previous production, as well as plaintiff's issues with documents already produced. Defendants claim that due to the immense amount of documents and data in this case, it is possible that they unintentionally overlooked some documents.
The disputes specifically raised by the parties pertain to specific document requests as outlined herein.
A. DEFENDANTS' CLAIM OF TRADE SECRET PRIVILEGE
Original Request No. 32 - All documents relating to Chuck Van Vleet, as later limited to his Java City concessions at Sacramento International Airport from 2006 to present.
Defendants claimed trade secret privilege, and did not produce any documents in response, contending that Java City was the holder of the privilege and it had not yet responded to defendants' request to produce the documents subject to a protective order. At hearing, defendants updated their position, and indicated that they had already forwarded a proposed protective order for plaintiff's review.
There is a trade secrets privilege. Union Pacific R. Co. v. Mower, 219 F.3d 1069, 1077 (9th Cir. 2000). In order to claim such a privilege, the party seeking the protection must produce a declaration outlining specific descriptions of the information sought, and how it can be used to the opposing party's advantage, amounting to an adequate factual basis for application of the privilege. Id. See generally Lion Raisins v. U.S. Dept. of Agriculture, 354 F.3d 1072, 1080 (9th Cir. 2004). Defendants have not produced any declarations and therefore have not made a showing, although the undersigned can understand that trade secrets might be implicated.
In any event, the undersigned previously ordered a stipulated protective order; however, none was submitted up to March 25, 2010, when a proposed order was placed in the court's record. Protective orders are permitted to protect trade secrets or allow them to disseminated in a designated manner. Fed. R. Civ. P. 26(c)(7). There is no harm in ordering the allegedly protected material produced pursuant to a protective order. Defendants shall produce all ...