United States District Court, N.D. California, San Francisco Division
ORDER REGARDING DISCOVERY DISPUTES, [RE: ECF NOS. 56
AND 57], [RE: ECF NOS. 46, 47, AND 48]
BEELER United States Magistrate Judge.
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.
First Letter - Data From High-School Principal
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.
Second Letter - Meetings With Lawyers; Joint-Prosecution
Privilege; Prior Conduct
letter raises three issues - all of these being questions to
which the plaintiffs objected and were instructed not to
(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?
Dates and Durations of Meetings with Attorneys
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.
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.
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 ...