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Juan Carlos Vera v. James O'keefe Iii

September 23, 2011


The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge



Before the Court is the Joint Motion of the parties for a ruling on a discovery dispute filed on September 15, 2011. (Doc. No. 42). According to the Complaint, Plaintiff was an employee of the Association of Community Organizations for Reform Now ("ACORN"). In a single cause of action, Plaintiff alleges a violation of California Penal Code § 632, a criminal statute, which allows for a private cause of action for damages under § 637.2. Specifically, Plaintiff alleges that the two Defendants, both individuals, secretly recorded a conversation between Plaintiff and Defendants in violation of law. (Doc. No. 1). Plaintiff also brought the Complaint against "DOES 1-20" and stated that Plaintiff is "truly ignorant of the true names and capacities of [the DOES] and is truly ignorant of the facts giving rise to their liability and will amend this complaint once their identities have been ascertained." (Id.)

The elements of the charged violation are as follows:

1. Defendant intentionally recorded Plaintiff's conversation by using an electronic device;

2. Plaintiff had a reasonable expectation that the conversation was not being recorded;

3. Defendant did not have consent of all parties to the conversation;

4. Plaintiff was harmed; and,

5. Defendant's conduct was a substantial factor in causing the Plaintiff's harm.

See CACI 1809. A successful plaintiff is entitled to statutory damages of $5,000 and up to three times actual damage. See California Penal Code § 637.2.

The instant dispute arises from certain interrogatories and production requests propounded by Plaintiff to each of the Defendants. Each will be addressed below.

Legal Standard

The Federal Rules of Civil Procedure generally allow for broad discovery, authorizing parties to obtain discovery regarding "any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Also, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id. Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence," and need not be admissible at trial to be discoverable. Id. There is no requirement that the information sought directly relate to a particular issue in the case. Rather, relevance encompasses any matter that "bears on" or could reasonably lead to matter that could bear on, any issue that is or may be presented in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 354 (1978). District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Similarly, district courts have broad discretion to limit discovery where the discovery sought is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(C). Limits also should be imposed where the burden or expense outweighs the likely benefits. Id.

"An interrogatory may relate to any matter that may be inquired under Rule 26(b)." Fed. R. Civ. P. 33(a)(2). The responding party must answer each interrogatory by stating the appropriate objection(s) with specificity or by "answer[ing] separately and fully in writing under oath." Id. at 33(b). The responding party has the option in certain circumstances to answer an interrogatory by specifying responsive records and making those records available to the interrogating party. Id. at 33(d).

Similarly, a party may request the production of any document within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Id. at 34(b). The responding party is responsible for all items in "the responding party's possession, custody, or control." Id. at 34(a)(1). Actual possession, custody or control is not required. Rather, "[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D.Cal.1995).


Discovery Requests Propounded to Defendant O'Keefe Interrogatory #4 This Interrogatory requires Defendant O'Keefe to state and list all media that he has published. The Interrogatory was narrowed to media published by Defendant related to the nonconsensual taping or recording of others. Defendant objects on grounds of overbreadth, burden and relevance. Plaintiff claims that the information is relevant because Plaintiff holds himself out as a journalist and has claimed First Amendment protection for his actions.

Defendant has asserted an affirmative defense based upon his First Amendment rights including freedom of the press. (Doc. No. 5). Plaintiff is entitled to discovery of information relevant to that asserted defense. Although the Court views the information requested in this Interrogatory as only marginally relevant to that asserted defense, the Court ORDERS Defendant O'Keefe to produce a list, to the extent that it exists, of his publications related to the nonconsensual taping or recording of others. Copies of such publications, if within the Defendant's custody, possession or subject to his control, must be produced.

Interrogatory #7

This Interrogatory requires Defendant O'Keefe to list all expenses incurred as a result of interviews and recordings of all ACORN employees throughout the United States. Defendant objects on the grounds of overbreadth, burden and relevance. Plaintiff claims he has a right to discover the identities of persons who may have provided financial assistance or otherwise participated in the actions alleged in the complaint and to uncover evidence of the expenditures of other incidents. Defendant states that he has provided, in connection with another Interrogatory, the identities of all persons (the Defendants and one other person) who paid for the making of all ACORN videos.

This Interrogatory is overbroad and seeks disclosure of information not relevant to any claim or defense. The Court simply cannot discern how the disclosure of expenses incurred, even if limited to the incident alleged in the complaint, informs any aspect of the asserted cause of action. If Plaintiff wishes to learn whether other persons paid for expenses incurred by Defendant in connection with the planning and execution of the allegedly illegal recording of Plaintiff, that is the question he should ask. No further response is required.

Interrogatory #10

This Interrogatory requires Defendant to disclose any payments made to Defendant by Andrew Brietbart or any related person or entity. Defendant objects on grounds of overbreadth and relevance. Plaintiff asserts that a website controlled by Mr. Breitbart broadcast the interview that is the subject of this complaint.

The Court believes that it may be relevant that Defendant was paid for the video of Plaintiff. Such a payment may inform the intent of the Defendant in engaging in the alleged illegal activity and Plaintiff must prove that the actions were intentional. See California Penal Code ยง 632. The reason that Plaintiff has limited his inquiry to one person is less than clear but the Court will ORDER Defendant to respond by ...

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