United States District Court, S.D. California
ORDER DETERMINING JOINT MOTION FOR DISCOVERY DISPUTE
NO. 2 AND DENYING PLAINTIFF’S MOTION FOR CONTEMPT [Dkt.
Nita L. Stormes United States Magistrate Judge
Bof I Federal Bank (Bof I) filed an action against its former
employee, defendant Charles Matthew Erhart, for federal
computer fraud and various state claims based on his alleged
theft and dissemination of Bof I’s confidential,
privileged and proprietary information. Bof I and third
party Carol Gillam-counsel of record for Erhart-filed a joint
discovery motion in April 2016 to determine the propriety of
discovery requests sent to Ms. Gillam through a Rule 45
subpoena. The court issued an order on April 26, 2016
compelling Ms. Gillam to produce all non-privileged,
responsive documents, and to produce a privilege log.
I complains that Ms. Gillam is in contempt of that order
because she is withholding documents protected by a purported
law enforcement privilege and on other grounds. For the
following reasons, the court DENIES Bof I’s motion for
Joint Discovery Motion No. 1, Bof I sought documents showing
Ms. Gillam’s own communications with third parties
concerning Bof I. While the subpoena sought all
communications with third parties, the briefing focused on
only Ms. Gillam’s communications with the media, and
did not mention her communications with law enforcement
agencies. This court found the documents relevant and
overruled Ms. Gillam’s objections as to vagueness,
ambiguity, breadth, undue burden and procedural defect, and
ordered her to produce them by May 10, 2016. But it allowed
Ms. Gillam to produce a privilege log for any documents over
which she claimed work product protection. See Apr.
26 Order, pp. 6-8.
reviewed Ms. Gillam’s May 10 production and believed it
was incomplete. The parties were ultimately able to meet and
confer on June 21, 2016 and resolved most issues. Also,
albeit late, Ms. Gillam provided a privilege log to Bof I.
The primary issue here is whether Ms. Gillam’s
communications with law enforcement agencies are privileged.
Gillam asserts that the relevant legal standard is
discoverability under Rule 26(b) and Rule 45(d). But that
standard was relevant for the original discovery order, and
not for this motion for contempt.
contempt proceeding, “The court… may hold in
contempt a person who, having been served, fails without
adequate excuse to obey the subpoena or an order related to
it.” Fed.R.Civ.P. 45(g). “The party moving for
contempt has the burden to establish by clear and convincing
evidence that the contemnor has violated a clear and specific
court order.” Forsythe v. Brown, 281 F.R.D.
577, 587 (D. Nev. 2012) (citation omitted). Once the moving
party meets its clear and convincing evidence burden, the
burden shifts to the contemnor to show that “she took
every reasonable step to comply and to explain why compliance
was not possible.” Id. To assess whether every
reasonable step has been taken, courts can consider
“(1) a history of noncompliance and (2) failure to
comply despite the pendency of a contempt motion.”
Id. (internal citation and quotations omitted).
Law Enforcement Privilege.
initial response to the subpoena, Ms. Gillam generally
objected to the requests on the basis of an unidentified
privilege and work product doctrine. She did not produce a
privilege log. The parties did not specifically litigate any
privilege issue in the underlying motion because Ms. Gillam
did not specifically assert or argue one. Instead, she argued
for work product protection. But now-for the first time-Ms.
Gillam asserts a “law enforcement privilege.” She
argues that her communications with federal regulators in her
capacity as an attorney for a whistleblower are privileged
and constitute attorney work product.
this court considered the underlying discovery motion and
ordered her to produce documents, Ms. Gillam asserted a
“law enforcement privilege” as to her
communications with the Securities and Exchange Commission
(SEC) and Office of Comptroller of Currency (OCC). Because
she never asserted this objection in the underlying discovery
dispute, though, the court overrules it as waived.
Richmark Corp. v. Timber Falling Consultants, 959
F.2d 1468, 1473 (9th Cir. 1992); see Fed.R.Civ.Proc.
45(d)(3)(A)(iii) (stating that privilege can be waived in
response to subpoenas).
even if the court were to consider this privilege, it would
still overrule it. According to the Ninth Circuit,
“[T]he federal privilege applicable to the government
interest in preserving confidentiality of law enforcement
records has various names, ” including “the
official information privilege, ” the “law
enforcement privilege, ” and “executive
privilege.” Deocampo v. City of Vallejo, 2007
U.S. Dist. LEXIS 43744, at *13-14 (E.D. Cal. June 1, 2007);
Hayslett v. City of San Diego, 2014 U.S. Dist. LEXIS
37738, at *5 (S.D. Cal. Mar. 21, 2014). It serves a specific
Although the Ninth Circuit has only mentioned the law
enforcement privilege in passing . . . [t]he Second Circuit
has explained that the law enforcement privilege is designed
“to prevent disclosure of law enforcement techniques
and procedures, to preserve the confidentiality of sources,
to protect witness and law enforcement personnel, to
safeguard the privacy of individuals ...