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United States v. Real Property and Improvements Located at 2366 San Pablo Avenue, Berkeley

United States District Court, N.D. California

October 17, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
REAL PROPERTY AND IMPROVEMENTS LOCATED AT 2366 SAN PABLO AVENUE, BERKELEY, CALIFORNIA, Defendant.

DISCOVERY ORDER Re: Dkt. No. 155

MARIA-ELENA JAMES, Magistrate Judge.

INTRODUCTION

On October 10, 2014, the parties in this action filed a joint discovery letter regarding a dispute over Requests for Production served by Plaintiff United States of America ("the Government") on Claimant Berkeley Patients Group ("BPG"). Jt. Ltr., Dkt. No. 155. After considering the parties' arguments and controlling authorities, the Court GRANTS IN PART AND DENIES IN PART the Government's Motion to Compel for the reasons set forth below.

BACKGROUND

This is an in rem action for forfeiture of real property pursuant to 21 U.S.C. ยง 881(a)(7), brought by the Government against the defendant real property located at 2366 San Pablo Avenue, in Berkeley, California (the "Property"), on May 2, 2013. Compl., Dkt. No.1. BPG is a licensed medical cannabis dispensary that has operated in the City of Berkeley since 1999. Jt. Ltr. at 1. BPG currently operates a medical cannabis dispensary at the Property. Id.

On February 18, 2014, BPG responded to the Government's Requests for Production, Set One ("RFPs"). Jt. Ltr., Ex. 2. On October 10, 2014, the parties filed the present discovery letter, through which the Government seeks to compel BPG to provide further responses to its RFPs.

DISCUSSION

BPG raises objections to each of the Government's nine RFPs. The Court shall address each RFP in turn.

1. RFP 1 - California State Board of Equalization Tax Documents

The Government's first RFP seeks documents relating to BPG and the California State Board of Equalization from January 1, 1999 to the present. Jt. Ltr., Ex. 2 at 3. BPG objects on the grounds of taxpayer privilege, privacy, the public policy against disclosure of tax documents, and the Fifth Amendment. Id. at 4. This is not the first time this issue has come before the Court in this case. On January 13, 2014, the Court held that the Government was not entitled to seek production of these documents because it had not yet propounded any written discovery in this case, and therefore had not utilized and exhausted less intrusive discovery methods as required before seeking production of tax returns. Dkt. No. 75 at 2. On June 6, 2014, the Court held that the Government was "again seeking tax documents relating to BPG without first exhausting other available discovery mechanisms to obtain the information it seeks in the tax records." Dkt. No. 124 at 4. The Court made this ruling without prejudice to the Government re-serving its subpoena seeking these records at a later time, provided it could not obtain the necessary "information from BPG through an interrogatory requesting BPG's total and projected sales figures for the relevant time periods." Id. According to BPG, the Government has thus far chosen not to propound this interrogatory. Jt. Ltr. at 4. Accordingly, the Court finds that the Government is, once again, seeking these tax documents without first exhausting other available discovery avenues and therefore sustains BPG's objection based upon the established public policy protecting tax records from unnecessary disclosure.

2. RFP 2 - Lease and Rental Documents

BFG objects to this RFP on work product, attorney-client privilege, and Fifth Amendment grounds. Id., Ex. 2 at 4.

The work product doctrine is set forth in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which protects from discovery materials containing the mental impressions, conclusions, legal opinions, or legal theories of a party's attorney. Fed.R.Civ.P. 26(b)(3); In re Grand Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004). "The work product doctrine protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation." United States v. Richey, 632 F.3d 559, 567 (9th Cir. 2011); Hawker v. BancInsurance, Inc., 2013 WL 6843088, at *6 (E.D. Cal. Dec. 27, 2013). However, the work product doctrine typically "does not apply to information collected or communications made in the normal course of business." Kelly v. City of San Jose, 114 F.R.D. 653, 659 (citing Hickman v. Taylor, 329 U.S. 495 (1947)). The party asserting work-product protection over material bears the burden of establishing the applicability of the doctrine. Skynet Elec. Co. v. Flextronics Int'l, Ltd., 2013 WL 6623874, at *2 (N.D. Cal. Dec. 16, 2013).

The attorney-client privilege protects from discovery "confidential communications between attorneys and clients, which are made for the purpose of giving legal advice." United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citation omitted). The privilege attaches when "(1) legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the ...


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