UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 2, 2012
TARLA MAKAEFF, ET AL.
TRUMP UNIVERSITY, LLC , ET AL. DEFENDANTS.
The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge
ORDER ON DISCOVERY ISSUES
Rather than comply with the Court's Chambers Rules on the informal dispute resolution process or the Civil Local Rules on Applications for Reconsideration, the parties sent e-mail communications directly to the Court's research attorney without advance notice. After some admonishments below, the Court rules on the issues presented in the e-mails.
On January 6, 2012, without first contacting the Court by telephone as required by Chambers Rules, Defendants submitted a 13-page letter-brief on various written discovery disputes. This violated the Court's Chambers Rules in more than one way. However, given the nature and number of disputes, the Court elected to overlook Defendants' transgression and accepted the brief. Plaintiffs' response brief included additional disputes that were not included in Defendants' brief. An Order on these disputes issued on February 13, 2012. (Doc. No. 93.)
On February 22, 2012, counsel for Defendants sent an e-mail directly to the Court's research attorney and asked for an extension of time to comply with a portion of the February 13, 2012, Order. Although improper and violative of the Court's Chambers Rules' provision on communicating with chambers, the Court again elected to overlook the transgression because the e-mail contained no legal arguments and was essentially a written version of information counsel would have conveyed via telephone.
That same day, Plaintiffs' counsel sent a response e-mail to the Court's research attorney. In addition to responding to Defendants' e-mail, Plaintiffs sought reconsideration of portions of the February 13, 2012, Order, made arguments, and cited legal authorities to that end. This violated both the Court's Chambers Rules and Civil Local Rules. Two additional e-mails followed before the Court had a chance to respond and ask the parties to cease.
In the interest of efficiency, the Court again elects to overlook the failure to comply with the rules and the violations of protocol. However, should the parties again fail to comply, the Court will summarily reject all future briefing, which may result in the dispute not being heard if the time for bringing the dispute to the Court's attention has passed.
Furthermore, through its recent dealings with the parties, the Court has noticed a tendency to take liberties with presenting case law and facts in a manner that favors them, but which may not be a faithful reading of the case, does not recognize distinctions that set cases apart from theirs, or ignores the outcome of the case or other contrary reasoning in a court's opinion. As a general matter, not accurately characterizing a case, overstating the congruity of a case with yours, and citing a select passage but failing to recognize that the remaining discussion or the outcome militate against one's argument are generally considered improper or poor advocacy. Indeed, as one jurist advised long ago:
"Nothing, perhaps so detracts from the force and persuasiveness of an argument as for the lawyer to claim more than he is reasonably entitled to claim. Do not 'stretch' cases cited and relied upon too far, making them appear to cover something to your benefit they do not cover. Do not try to dodge or minimize unduly the facts which are against you. . . . ."
Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 13 (2008) (quoting Hon. Wiley B. Rutledge). The Court is dismayed that the parties appear to advocate polarized positions based on skewed, inaccurate, or incomplete interpretations and representations. The Court cautions the attorneys and their clients to take better care in the future when they interpret case law and advocate their position in a manner that is faithful to the authority cited. Rule 11 sanctions always remain an option for the Court if this behavior continues. With these admonitions, the Court now continues to the disputes at issue.
A. Request For Extension of Time to Respond to RFP No. 11
By stipulation between the parties, Defendants' request for extension of time to respond to Plaintiff's RFP No. 11 is granted. Defendants shall respond no later than March 13, 2012.
C. Financial Privacy and Defendants' Redaction of Contracts
Defendants provided a list of putative class members, identified the course each took, and provided a separate price list for each course. Plaintiffs object only that Defendants redacted the course costs on the individual contracts they produced. Defendants shall submit additional briefing on the propriety of the redaction of the purchase amounts in the contracts, especially in light of the fact that it appears each redacted purchase amount can be ascertained by cross-referencing the two lists that together identify each student, the course he or she purchased, and the price of each course.
Keeping in mind the admonitions above, if Defendants choose to continue to defend the redaction of the contracts on the basis of a privacy right, the redacted information very well better be the kind of information the privacy doctrine protects and that they do not assert it simply because the redacted information simply contains numbers and a dollar sign (unless of course, a good faith reading of the doctrine actually protects numbers and dollar signs alone).
Other than the above, the Court is satisfied that Defendants have produced sufficient information to allow Plaintiffs to calculate damages.
D. Communications With Putative Class Members
Plaintiffs seek the Court's reconsideration of its ruling on Plaintiffs' response to Defendants' RFP No. 15. Specifically, rather than being compelled to produce all of Plaintiffs' counsel's communications with putative class members for in camera review, Plaintiffs seek to produce either a privilege log or declaration.
The Court is persuaded by some of Plaintiffs' cases. Rather than produce documents for in camera review, Plaintiffs shall produce a privilege log and declaration(s) to meet their burden to establish "facts necessary to support a prima facie claim of privilege . . . ." Costco Wholesale Corp. v. Superior Court, 219 P.3d 736, 741 (Cal. 2009). When doing so, Plaintiffs should be mindful to fully discuss the dominant purpose of the subject communication(s) as well the participants' contemplated relationship. See generally Taylor v. Waddell & Reed, Inc., 2011 U.S. Dist. LEXIS 54109 (S.D. Cal. May 20, 2011). In other words, Plaintiffs need show more than the mere fact that counsel simply sent general letters or e-mails to a putative class member because, as in Taylor, the pivotal question is the nature of the relationship as well as what counsel and the putative class members contemplated at the time of the communication.
Defendants' citation to In re McKesson HBOC, Inc. Secs. Litig., 126 F. Supp. 2d 1239 (N.D. Cal. 2000), is unhelpful. The issue before that court was whether opposing counsel was barred by ethics rules from communicating with putative class members. The court's conclusion that putative class member were not "represented" was in the context of a professional ethics rule that prohibited communication with "represented" parties. Id. at 1245. In other words, the court analyzed a very specific word used in a specific ethics rule. Id. (citing Atari, Inc. v. Superior Court, 212 Cal. Rptr. 773, 776 (Cal. Ct. App. 1985) (citing former California Rule of Professional Conduct 7-103)). The Court declines to extend the reasoning or conclusion in McKesson to the attorney-client privilege context at issue here. Defendants certainly have not provided the Court any reason why McKesson and its conclusion apply in this context.
The parties shall proceed in accordance with this Order.
IT IS SO ORDERED.
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