United States District Court, N.D. California
ORDER REGARDING SIXTH AND SEVENTH DISCOVERY LETTERS
AND MOTION TO STRIKE Re: DKT. NOS. 205, 206, 207
A. WESTMORE United States Magistrate Judge
presiding judge aptly observed, "[t]he parties in this
case have been continually unable to resolve their many
discovery disputes amongst themselves." (Dkt. No. 218 at
1.) Currently pending before the Court are Plaintiff's
"Sixth" and "Seventh" discovery letters,
and Defendants' motion to strike the discovery letters.
(Dkt. Nos. 205-207.) For the reasons stated below, the Court
DENIES the relief sought in Plaintiff's sixth and seventh
discovery letters, and DENIES Defendants' motion to
strike as moot.
March 8, 2017, the parties filed letters discussing a dispute
over meeting and conferring regarding their discovery
disputes. (Dkt. Nos. 187, 188.) In light of the Court's
finding that "it has become clear . . . that the parties
are incapable of meeting and conferring, " the Court
ordered the parties to each file a letter "discussing
all outstanding discovery disputes that the
parties desire the Court to resolve" by March 14, 2017.
(Dkt. No. 189 (original emphasis).) The Court also set a
discovery hearing for March 21, 2017 to address the issues
raised in the required letters. (Id.)
March 14, 2017, Defendants filed their letter, but Plaintiff
did not. (See Dkt. No. 190.) Accordingly, on March
15, 2017, the Court deemed all matters not raised in the
required letters to be waived, and vacated the March 21, 2017
discovery hearing. (Dkt. No. 191 at 1-2.) In place of the
discovery hearing, the Court ordered the parties to attend an
in-person meet and confer at the Oakland Courthouse.
(Id. at 2.) On March 20, 2017, Plaintiff filed a
letter raising other discovery issues, and asking to be
relieved from the in-person meet and confer requirement.
(Dkt. No. 194.) That same day, the Court denied
Plaintiff's request for relief from the in-person meet
and confer requirement. (Dkt. No. 195.)
March 21, 2017, the parties conducted their in-person meet
and confer, which lasted over four hours and was supervised
by the undersigned. (Dkt. No. 196.) The parties agreed to
certain deposition deadlines, and Plaintiff agreed to produce
past-due discovery responses by March 31, 2017.
March 28, 2017, Plaintiff filed a motion for relief from the
Court's March 15, 2017 order, arguing that the Court had
erred in finding that Plaintiff had waived any outstanding
discovery disputes not raised in the letters that were due on
March 14, 2017. (Dkt. Nos. 200, 201.) On April 25, 2017, the
presiding judge denied Plaintiff's motion for relief,
finding that Plaintiff had failed to submit the required
letter by the deadline set by the undersigned, and that
"[n]o law requires [the undersigned] to provide
additional accommodation to a party who had failed to comply
with the terms of her order." (Dkt. No. 218.)
April 7, 2017, Plaintiff filed the sixth and seventh
discovery letters regarding Defendants' interrogatories
and electronically stored information. (Dkt. Nos. 205, 206.)
That same day, Defendants filed a motion to strike the
discovery letters, arguing that Plaintiff had waived the
discovery issues per the Court's March 15, 2017 order,
and that many of the issues raised were moot in light of the
depositions taken since the letters were prepared in February
and early March 2017. (Dkt. No. 207.) On April 21, 2017,
Plaintiff filed a response to Defendants' motion to
strike. (Dkt. No. 215.) On April 26, 2017, Defendant filed
their reply. (Dkt. No. 219.)
sixth discovery letter concerns Defendants' responses to
special interrogatories that were propounded on May 22, 2015.
(Dkt. No. 206.) The Court finds that Plaintiff has waived
these discovery disputes. First, on April 14, 2016, the Court
held a telephonic discovery conference with the parties,
after which the Court required that the "[j]oint letter
re: remaining disputes to be filed by May 18, 2016."
(Dkt. No. 99.) Plaintiff did not, however, raise any issues
regarding the special interrogatories in the June 11,
joint letter; instead, Plaintiff focused solely on requests
for production. (See Dkt. No. 107 at 8-17.) Because
Plaintiff failed to raise the special interrogatories in the
June 11, 2016 joint letter, Plaintiff waived these disputes.
Second, even if Plaintiff had not waived these issues after
failing to raise it in the June 11, 2016 letter, Plaintiff
waived these disputes when he failed to submit a letter on
March 14, 2017, contrary to the Court's March 8, 2017
order requiring that the parties submit letters
"discussing all outstanding discovery
disputes that the parties desire the Court to resolve."
(Dkt. No. 189 at 1.) The Court deemed Plaintiff's failure
to submit the letter a waiver of his outstanding discovery
disputes, and the presiding judge affirmed the Court's
order on April 25, 2017. (Dkt. Nos. 191, 218.) Because
Plaintiff has waived his disputes over the May 22, 2015
special interrogatories, the Court DENIES Plaintiff's
request that the Court require Defendants to respond to these
seventh discovery letter concerns a voicemail that Plaintiff
requested from Defendants on October 29, 2016. (Dkt. No. 205
at 2.) As with Plaintiff's sixth discovery letter, the
Court finds that Plaintiff also waived this discovery dispute
when he failed to submit a letter on March 14, 2017.
(See Dkt. No. 191.) Furthermore, Defendants have
stated that the voicemail was deleted "[w]eeks before
Plaintiff's termination and months before any
preservation duty arose . . . ." (Dkt. No. 205 at 3.)
Plaintiff, in turn, suggests that Defendants do in fact have
the voicemail and are simply failing to produce it.
(Id. at 2-3.) Plaintiff does not, however, provide
any evidence that Defendants have the
voicemail. Defendants cannot be compelled to produce
a voicemail that they no longer have. Thus, even if Plaintiff
had not waived the issue -- which he has -- Plaintiff would
still not be entitled to production of the voicemail.
Plaintiff is also not entitled to sanctions, as Plaintiff has
not shown that Defendants were on notice at the time the
voicemail was destroyed that it was potentially relevant to a
lawsuit, particularly where the voicemail was deleted prior
to Plaintiffs termination and before there was any apparent
threat of litigation. See Akiona v. United States,
938 F.2d 158, 161 (9th Cir. 1991) ("A party should only
be penalized for destroying documents if it was wrong to do
so, and that requires, at a minimum, some notice that the
documents are potentially relevant"); Sanchez v.
Wal-Mart Stores, Inc., No. 2:06-CV-2573 JAM KJM, 2008 WL
3272101, at *5 (E.D. Cal. Aug. 6, 2008) (declining to issue
sanctions where there was no evidence that the documents were
destroyed when the plaintiff "was on notice that they
had potential relevance to this litigation").
Accordingly, the Court DENIES Plaintiffs requests that
Defendants be required to turn over the voicemail, that
Defendants issue an affidavit or declaration describing the
search process, or the issuance of sanctions for the
destruction of the voicemail.
the Court denies the relief sought by Plaintiff in the joint
discovery letters, the Court DENIES Defendants' motion to
strike the letters as moot.
reasons stated above, the Court DENIES the relief sought by
Plaintiff in the sixth and seventh discovery letters, and