United States District Court, N.D. California, San Jose Division
ORDER RE DISCOVERY DISPUTE RE PRODUCTION OF SABOT
CONSULTING REPORT RE: DKT. NO. 45
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE
Leopoldo Manzo, Jr. sued defendants County of Santa Clara
(“the County”) and several individual corrections
officers for constitutional violations and violations of
federal and state law relating to Mr. Manzo, Jr.'s
detention in jails operated by the County. The parties
dispute whether the County should be required to produce a
report prepared by Sabot Consulting in connection with
settlement negotiations in another lawsuit, describing the
facilities, programs, policies, procedures, and practices of
three Santa Clara County jails with respect to access by
mobility-disabled inmates (“the Sabot Report”).
The parties jointly briefed the dispute to the Court, and the
County submitted a copy of the Sabot Report to the Court for
in camera review. Dkt. Nos. 45, 46. The Court held a
hearing on the matter on July 2, 2019. Dkt. No. 47.
Court grants Mr. Manzo, Jr.'s motion to compel production
of the Sabot Report.
Manzo, Jr. was detained between December 2014 and December
2016 in the Santa Clara County Main Jail. Dkt. No. 1 ¶
23. In his complaint, Mr. Manzo, Jr. asserts claims for
violation of his constitutional right to be free from cruel
and unusual punishment, including excessive force; disability
discrimination and failure to accommodate under the Americans
with Disabilities Act (“ADA”) and the
Rehabilitation Act; and violations of state law. Id.
to the parties' joint submission, an independent
consulting firm prepared the Sabot Report at the joint
request of the parties to Cole v. County of Santa
Clara, No. 16-cv-06594-LHK (N.D. Cal.) in connection
with pre-lawsuit settlement discussions involving a putative
class of disabled prisoners in Santa Clara County jails. The
Sabot Report describes the consultant's review,
evaluation, and recommendations regarding the facilities,
programs, policies, procedures, and practices of three Santa
Clara County jails with respect to access by
mobility-disabled inmates. Apparently, the Cole
parties agreed to treat the report as confidential
settlement-related material for as long as their settlement
negotiations continued prior to a lawsuit being filed. Dkt.
No. 45 at 2, 5. Mr. Manzo, Jr. quotes from a purported
agreement between the Cole parties (which neither
party submitted to the Court) that if the Cole parties failed
to settle before a suit was filed, “the Expert's
assessment and report will no longer be treated as
confidential settlement communications and may be used in a
court of law, subject to a protective order and/or redaction
as appropriate.” Id. at 2-3. Mr. Manzo, Jr.
says that the settlement negotiations failed, and the Cole
lawsuit was filed on November 14, 2016. Id. at 3.
The County does not dispute Mr. Manzo, Jr.'s
characterization of the Cole parties' agreement, except
to say that the parties continued to negotiate even after the
lawsuit was filed and continued to treat the Sabot Report as
confidential. Id. at 5. Mr. Manzo, Jr. disputes that
the Cole parties have kept the report confidential, observing
that the Cole plaintiffs filed described at length many of
the report's findings in the complaint they filed on the
public docket. Id. at 3 (citing Cole v. County
of Santa Clara, No. 16-cv-06594-LHK, Dkt. No. 1 at
¶¶ 64-100, 127 (N.D. Cal. Nov. 14, 2016).
Manzo, Jr. moves to compel production of the Sabot Report on
the ground that it contains information relevant to the
claims and defenses in this case. In particular, he argues
that the Sabot Report describes the County's policies and
practices with respect to ADA requirements during the period
of his detention. Dkt. No. 45 at 1. Mr. Manzo, Jr. says that
the jails have been “modified significantly”
since he left, and that the report therefore includes
relevant information that is no longer discoverable by other
means. Id. He also says that the report describes
potential sources of additional discovery relevant to his
claims in this case. Id. at 3.
County opposes production of the report on several grounds.
First, the County says that the Sabot Report is not
responsive to any pending request for documents. Id.
at 6. This argument is not well-taken. The report, which
includes a description and evaluation of the County's
policies and procedures concerning compliance with the ADA,
is responsive to Mr. Manzo's Request for Production No. 4
(“All DOCUMENTS of any kind EVIDENCING the policies
and/or procedures of COUNTY CONCERNING jail ADA compliance,
include what, as of 2010, was policy No. 13.11.”). In
any event, this particular argument appears to have been
mooted by Mr. Manzo, Jr.'s service of a document request
specifically asking for the Sabot Report. Id. at 4,
the County argues that the Sabot Report is both inadmissible
and irrelevant. The dispute before the Court raises only the
question of whether the County must produce the Sabot Report,
and not whether the report itself is admissible at trial for
any purpose. See Fed.R.Civ.P. 26(b)(1)
(“Information within this scope of discovery need not
be admissible in evidence to be discoverable.”).
Accordingly, the Court considers only whether the report is
discoverable-i.e., nonprivileged matter that is relevant to a
claim or defense and proportional to the needs of the case.
Fed.R.Civ.P. 26(b)(1). On the issue of relevance, the County
essentially argues that the report is not relevant because
Mr. Manzo, Jr.'s claims lack merit. Dkt. No. 45 at 6-7.
in evaluating whether discovery material is relevant to a
claim or defense, the Court does not assess the ultimate
merits of the claim or defense, but only whether the material
tends to make the existence of any fact that is of
consequence to the determination of the claim more or less
probable. See Fed.R.Evid. 401. Here, the complaint
pleads both constitutional violations and violations of the
ADA and Rehabilitation Act, as well as state law claims. Dkt.
No. 1 ¶¶ 111-148. It includes allegations
concerning the County's alleged policies, practices, and
procedures relating to the treatment of inmates with mental
and physical disabilities in support of these claims.
Id. The Sabot Report contains information regarding
the County's facilities, programs, policies, procedures,
and practices regarding treatment of mobility-disabled
inmates as of 2015. The report discusses some of the same
access issues and practices to which Mr. Manzo, Jr. refers in
his complaint. Mr. Manzo, Jr. was housed in the jail
facilities that the report discusses at the time the report
was prepared, and he also has a disability that limits his
mobility. The Court concludes that Mr. Manzo, Jr. has
demonstrated that the report contains material that is
relevant to his claims.
defendants argue that because the Sabot Report was prepared
in connection with settlement negotiations in another matter,
the report is either privileged or subject to production only
upon a heightened showing of need. Dkt. No. 45 at 7. The
Court considers each of these arguments separately.
parties agree that federal law governs the question of
whether the Sabot Report is privileged from disclosure to Mr.
Manzo, Jr. Federal Rule of Evidence 408 governs the
admissibility of evidence of conduct or statements
made during settlement negotiations. It provides that such
evidence is not admissible when offered to prove liability,
but may be admitted for other purposes. Fed.R.Evid. 408;
Rhoades v. Avon Products, Inc., 504 F.3d 1151, 1161
(9th Cir. 2007). Rule 408 does not address the
discoverability of settlement-related materials, and the
Ninth Circuit has not found a federal privilege for
settlement communications. See Rhoades, 504 F.3d at
1162 (holding that “statements made in settlement
negotiations are only excludable under the circumstances
protected by the Rule”). Several district courts in the
Ninth Circuit have observed that an absolute privilege
against discovery of such materials would be inconsistent
with both Rule 408 and Federal Rule of Civil Procedure 26(b).
See Alfaro v. City of San Diego, No.
3:17-cv-00046-H-KSC, 2018 WL 4562240, at *5-6 (S.D. Cal.
Sept. 21, 2018); Williams v. Bridgeport Music, Inc.,
No. CV 13-6004-JAK (AGRx), 2014 WL 12498232, at *2 (C.D. Cal.
July 10, 2014) (collecting cases); Vondersaar v.
Starbucks Corp., No. C 13-80061 SI, 2013 WL 1915746, at
*3 (N.D. Cal. May 8, 2013) (finding no federal privilege
preventing the discovery of settlement communications);
Matsushita Elec. Indus. Co. v. Mediatek, Inc., No.
C-05-3148 MMC (JCS), 2007 WL 963975, at *2-3 (N.D. Cal. Mar.
30, 2007) (same). Even if a settlement privilege existed, the
County has not shown that the Sabot Report would qualify for
protection. The report does not reflect any settlement
communications between the Cole parties, and while it does
include recommendations for changes to the County's jail
facilities, policies, practices, and programs, these are the
recommendations of an independent consultant and not offers
of compromise or negotiating positions of any party. The
County may not immunize from discovery a report describing
the facilities, programs, policies, procedures, and practices
of its jails simply because the report was considered by the
Cole parties in their settlement negotiations.
See Williams, 2014 WL 12498232 at *2 (observing that
a party cannot immunize information from discovery by
disclosing it in settlement discussions). The Court concludes
that no federal privilege protects the Sabot Report from
disclosure to Mr. Manzo, Jr. as part of discovery in this
whether the Sabot Report is subject to production only upon a
heightened showing of need, the County argues that the Ninth
Circuit “has approved applying heightened
requirements” to requests for production of
“settlement materials, ” citing Lobatz v.
U.S. West Cellular of California, Inc., 222 F.3d 1142
(9th Cir. 2000). However, Lobatz does little to
inform the resolution of this discovery dispute. That case
considered a request by a member of a plaintiff class for
discovery of settlement negotiations between the parties so
that she could challenge the fairness of the settlement