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Juan Carlos Vera v. James O'keefe Iii and Hannah Giles

March 15, 2012


The opinion of the court was delivered by: M. James LorenzUnited States District Court Judge


On September 15, 2011, the parties jointly moved for determination discoveries disputes that had occurred in this action. Plaintiff had served both defendants with request for production of documents, interrogatories, and requests for admissions. The defendants refused to answer certain of the requests and refused to provide some documents. In their joint motion, the parties set forth their positions and no further briefing was filed. On September 23, 2011, the magistrate judge issued an Order.

Plaintiff objects to portions of the magistrate judge's order that denied in part his motion to compel certain discovery requests, and defendant O'Keefe objects to two portions of the magistrate judge's Order of September 23, 2011. [doc. #43] The objections have been fully briefed and are considered on the papers submitted.


A party may object to a non-dispositive pretrial order of a magistrate judge within fourteen days after service of the order. See FED. R. CIV. P. 72(a). The magistrate judge's order will be upheld unless it is "clearly erroneous or contrary to law." Id.; 28 U.S.C. § 636(b)(1)(A). The "clearly erroneous" standard applies to factual findings and discretionary decisions made in connection with non-dispositive pretrial discovery matters. F.D.I.C. v. Fid. & Deposit Co. of

, 196 F.R.D. 375, 378 (S.D. Cal. 2000); Joiner v. Hercules, Inc., 169 F.R.D. 695, 697 (S.D. Ga. 1996) (reviewing magistrate judge's order addressing attorney-client issues in discovery for clear error). Review under this standard is "significantly deferential, requiring a definite and firm conviction that a mistake has been committed." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. of S. Cal., 508 U.S. 602, 623 (1993) (internal quotation marks omitted).

On the other hand, the "contrary to law" standard permits independent review of purely legal determinations by a magistrate judge. See, e.g., Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992) ("the phrase 'contrary to law' indicates plenary review as to matters of law."); Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff'd, 19 F.3d 1432 (6th Cir. 1994); 12 Charles A. Wright, et al., FEDERAL PRACTICE AND PROCEDURE § 3069 (2d ed., 2010 update).

"Thus, [the district court] must exercise its independent judgment with respect to a magistrate judge's legal conclusions." Gandee, 785 F. Supp. at 686. "A decision is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules of procedure." United States v. Cathcart, No. C 07--4762 PJH, 2009 WL 1764642, at *2 (N.D. Cal. June 18, 2009).


The following facts are set forth in the Complaint. Plaintiff was employed by ACORN (Association of Community Organizations for Reform Now), in its National City, California office. On August 18, 2009, defendants O'Keefe and Giles visited this ACORN office. Plaintiff alleges that O'Keefe and Giles conspired to secretly video and audio tape Vera at the ACORN office. O'Keefe and Giles are alleged to have asked Vera if their conversation would be confidential and Vera indicated that it would be.

The Complaint alleges a sole cause of action against both defendants: violation of California Invasion of Privacy Act, Penal Code § 632, eavesdropping on or recording confidential communications. The statute makes it unlawful to record the oral communication of a person who has not consented to being recorded, where the person has an objectively reasonable expectation that the communication is not being overheard or recorded. "An actionable violation of section 632 occurs the moment the surreptitious recording is made, whether it is disclosed or not." Lieberman v. KCOP Television, Inc., 110 Cal. App.4th 156, 166 (Cal. Ct. App. 2003) (citing Friddle v. Epstein, 16 Cal. App. 4th 1649, 1660-1661 (1993).

The Court notes that the Complaint names Doe defendants but no actions are alleged to have been engaged in by the Doe defendants.

. Plaintiff's Objections

Plaintiff Vera contends that the magistrate judge applied the wrong legal standard, confused the issue of relevance at trial with discoverability; and applied "an antedivuvian conception of the proper scope of the discovery process," with respect to an interrogatory ...

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