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Gallegos v. Roman Catholic Archbishop of San Francisco

United States District Court, N.D. California, San Francisco Division

February 27, 2017

MATTHEW GALLEGOS, Plaintiffs,
v.
ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO & DOES 1-5, Defendants. FRANK OROSS AND WILLIAM WATTERS, Plaintiffs,
v.
THE ROMAN CATHOLIC ARCHBISHOP OF SAN FRANCISCO, Defendants.

          ORDER REGARDING DISCOVERY DISPUTES, [RE: ECF NOS. 56 AND 57], [RE: ECF NOS. 46, 47, AND 48]

          LAUREL BEELER United States Magistrate Judge.

         The parties filed three letters with their discovery disputes. The court finds that it can decide the disputes without oral argument under Civil Local Rule 7-1(b) and rules as follows.

         1. First Letter - Data From High-School Principal

         The plaintiffs must use a Rule 45 third-party subpoena. Whatever its relative shortcomings. Mr. Anastasio is not a party - not literally and not by dint of having attended the actual defendant's deposition. Nor does the defendant ''control'' his personal devices. The litigation-hold letter is standard. Neither it nor anything else before the court suggests that the defendant has the ''legal right to obtain on demand'' - i.e., that it ''controls'' - information from Mr. Anastasio's personal devices. See W. Schwarzer et al., Fed. Civil Procedure Before Trial, ¶¶ 11:1826-1827.1 (2016). The burden is on the party seeking production: in this case, the plaintiffs. And the plaintiffs have not met their burden.

         2. Second Letter - Meetings With Lawyers; Joint-Prosecution Privilege; Prior Conduct

         This letter raises three issues - all of these being questions to which the plaintiffs objected and were instructed not to answer:

(1) Must the plaintiffs reveal the ''dates and duration'' of meetings with their attorneys?
(2) Does the joint-prosecution privilege shield from discovery communications that plaintiff Gallegos had with his lawyer in the presence of plaintiffs Oross and Watters?
(3) Must plaintiff Gallegos reveal his ''prior sexual conduct'' - meaning, specifically, whether he, the other plaintiffs, and Mr. Anastasio shared pornographic images ''in the workplace'' on occasions other than the one that triggered this lawsuit?

         2.1 Dates and Durations of Meetings with Attorneys

         This material is not attorney-client privileged and it is not attorney work product. The defendant is correct in those things. But neither has the defendant shown how it is ''relevant to any party's claim or defense.'' See Fed. R. Civ. P. 26(b)(1). The court sustains the plaintiffs' objection to answering questions seeking this information.

         2.2 Joint-Prosecution Privilege

         The defendant essentially complains that the plaintiffs have not made an adequate showing that the joint-prosecution or ''common interest'' privilege shields the attorney-client conversation that Mr. Gallegos and his lawyer had in the present of the other plaintiffs. The defendant asks that the plaintiff be made to elaborate a showing under the governing test for this rather garden-variety protection. The defendant complains in this vein that no express joint-prosecution agreement has been identified or produced.

         The plaintiff gets the better of this particular dispute. Its point is that these cases have been consolidated for discovery so that the common-interest privilege almost certainly applies. It correctly says that, where parties even ''potentially . . . have common interests in litigation, '' a joint-defense agreement ''may be implied from conduct and situation, '' and that ''it is ...


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