This matter came on for hearing on May 26, 2011 on plaintiffs' motion to quash. Jeremy Cloyd appeared for plaintiffs. Derek Haynes appeared for defendants. Upon review of the motion to quash, defendants' opposition, discussion of the appearing parties and good cause appearing therefor, THE COURT ORDERS AS FOLLOWS:
FACTUAL AND PROCEDURAL BACKGROUND
This action commenced on June 8, 2009 and is proceeding on an amended complaint filed on August 27, 2009. Therein, plaintiffs (Tamara Dumas; her husband, Rick Dumas; and her children, Katelin and Kimberly Dumas*fn1 ) allege that on July 1, 2008 seven police officers and one police explorer arrested Tamara Dumas in her home after a neighbor complained that she had not returned a $20 horse harness he had lent her that day. Tamara Dumas contends she suffered injuries as a result of excessive force used by the officers during the arrest and that her then-7-year old daughter, Katelin, saw the incident.
Plaintiffs bring suit for unreasonable seizure / wrongful arrest in violation of the Fourth Amendment and the California Constitution; due process violations (on behalf of Rick, Katelin and Kimberly); entity liability / unconstitutional policies and practices pursuant to 42 U.S.C. § 1983; entity / supervisory liability pursuant to 42 U.S.C. § 1983; battery; negligence; and intentional and negligent infliction of emotional distress claims (on behalf of Katelin). Plaintiffs seek damages and costs.
On July 27, 2010, the parties participated in a mediation before retired District Judge Raul Ramirez. Plaintiffs were represented by Stewart Katz at the mediation. Although the parties did not settle at the mediation, a mediator's proposal was submitted for consideration by each side. The following day, the parties agreed to the proposal.
The parties subsequently filed two notices of settlement. See Doc. Nos. 31-32. Following multiple discussions between counsel to reduce the settlement agreement to writing, negotiations eventually failed. On October 18, 2010, plaintiffs' attorney, Stewart Katz, filed a motion to withdraw. On November 5, 2010, defendants filed their first Motion to Enforce Settlement Agreement. On December 6, 2010, the motion to withdraw as counsel was granted and the motion to enforce the settlement was withdrawn.
On January 13, 2011, new counsel was substituted for plaintiffs. On January 20, 2011, this new counsel also filed a motion to withdraw. On April 1, 2011, the motion to withdraw was granted and the attorneys currently representing plaintiffs were substituted.
On April 20, 2011, defendants filed a second Motion to Enforce Settlement Agreement. This motion is scheduled to be heard before the Honorable Garland E. Burrell on June 6, 2011.
On April 22, 2011, defendants issued a subpoena to Stewart Katz, which calls for Katz to appear at the hearing on their motion to enforce settlement agreement to testify and to produce and permit inspecting and copying of the following:
All documents and/or notes reflecting communications between you and your previous clients Tamara Dumas, Rick Dumas, Katelin Dumas, and Kimberly Dumas regarding the agreement to resolve the above-referenced matter including, but not limited to, all communications authorizing you to agree to the settlement on half of Plaintiffs.
On May 10, 2011, plaintiffs filed the instant motion to quash. On May 24, 2011, defendants filed an opposition.
Plaintiffs bring this motion asserting that the subpoena is improper because it calls for testimony and documents that concern or consist of privileged attorney-client communications and/or documents covered by the work-product doctrine. Plaintiffs contend the privilege has not been waived and no exception applies. Plaintiffs request that the subpoena be quashed. In the alternative, they ask that it be modified so that only testimony and/or documents concerning whether the settlement agreement was effective or binding before signature be permitted.
Defendants assert that plaintiffs will argue in opposition to defendants' motion to enforce the settlement agreement that they never agreed to the terms of the settlement. This argument, they aver, ...