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Laurino v. United States

United States District Court, E.D. California

November 29, 2019

MARICELA LAURINO, et al., Plaintiffs,
v.
UNITED STATES, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO COMPEL DISCOVERY RESPONSES (ECF NOS. 29, 30)

         I. INTRODUCTION

         Currently before the Court is the United States' (“Defendant”) motion to compel responses to interrogatories and requests for production filed on November 6, 2019. (ECF No. 29.)[1] The Court found the motion suitable for decision without oral argument and the hearing on the motion has been vacated. Having considered the joint statement regarding the discovery dispute, the exhibits attached thereto, as well as the Court's file, the Court issues the following order granting the motion to compel discovery responses.

         II. BACKGROUND

         This is a consolidated action in which Plaintiffs are pursuing claims alleging the wrongful death of their father, Manuel Jurado, Sr. (the “Decedent”), who died after a motor vehicle accident involving a United States Postal Service vehicle. (J.S. at 1-2.) Plaintiffs Maricela Laurino, [2] Yvette Jurado, Vivian Jurado, and Irma Jurado (the “Laurino Plaintiffs”) filed the above entitled action on May 9, 2018. (J.S. at 2; ECF Nos. 1, 2.) Plaintiffs Patricia Jurado, Manuel Jurado, Jr., and Joel Jurado (the “Jurado Plaintiffs”) filed case number 1:18-cv-00739-LJO-SAB, which was consolidated with this action on July 16, 2018. (J.S. at 2; ECF No. 10.) The Jurado Plaintiffs are the Decedent's children from his first marriage, while the Laurino Plaintiffs are the Decedent's children from his second marriage. (J.S. at 2.)

         During depositions of the Laurino Plaintiffs, a question arose as to the identity of the individual who wrote and signed two handwritten documents: a letter dated July 25, 2015 (the “July 25 Letter”) and a letter dated May 21, 2016 (the “May 21 Letter”). (Id.) Following the depositions, on September 27, 2019, Defendant filed a motion to modify the scheduling order to permit additional discovery on the issue pertaining to the author of these documents. (ECF No. 22.) On October 8, 2019, the Court granted the motion to modify the scheduling order. (ECF No. 28.) As discussed in the Court's order, the two documents were produced on January 16, 2019, in response to Defendant's discovery demanding any writings purporting to be the Decedent's will. (Id. at 3.) The May 21 Letter was admitted to probate as the will of the Decedent. (Id.) Both the July 25 Letter and the May 21 Letter have a handwritten signature of “Manuel Jurado” at the end of each letter. (Id.) The May 21 Letter contains numerous statements portraying the Decedent's relationship with the Jurado Plaintiffs in a negative light. (Id.) During the September 2019 depositions, the Laurino Plaintiffs testified that the handwriting and the signature on the May 21 Letter belonged to the Decedent in this action. (Id.) However, two Jurado Plaintiffs testified the handwriting and signature on the May 21 Letter did not belong to their father. (Id.)

         As to the current discovery dispute, on September 26, 2019, Defendant served two identical interrogatories on each of the Laurino Plaintiffs which sought information concerning the July 25 Letter and the May 21 Letter. (J.S. at 2.) While Defendant originally moved to compel further responses to these interrogatories (ECF No. 29), the Laurino Plaintiffs have invoked their Fifth Amendment privilege against self-incrimination with respect to these two interrogatories, and Defendant now states that it is not moving to compel further responses to these interrogatories at this time and is withdrawing the motion to compel such responses to these interrogatories without prejudice. (J.S. at 2.)

         On September 26, 2019, Defendant also served eight requests for production (“RFP”) on the Laurino Plaintiffs. (Id.; Ex. 1, ECF No. 30-1 at 2-5.) These RFP requested inspection of the July 25 Letter and the May 21 Letter and any notebooks that had previously contained the letters, production of documents containing or reflecting the handwriting and signature of the Decedent, production of the Decedent's bank and financial records, and the original and any copies of any current or previous will of the Decedent. (Id.)

         On October 17, 2019, Defendant served an additional eleven RFP on the Laurino Plaintiffs. (J.S. at 2; Ex. 2, ECF No. 30-2 at 2-5.) These requests sought handwriting and signature samples from each of the Laurino Plaintiffs, production of any documents produced to or inspected by any other party in this litigation or the related state probate litigation, and documents produced by any other party in the state probate litigation. (J.S. at 2-3.)

         The Laurino Plaintiffs responded to each of these interrogatories and requests for production with various objections, including an assertion of their Fifth Amendment privilege against self-incrimination. (Id.) On November 13, 2019, counsel for Defendant and counsel for the Laurino Plaintiffs met and conferred via telephone to discuss the objections to the discovery requests, and the parties were unable to resolve the dispute and it is these requests for production of documents that are currently the subject of the dispute that is before the Court. (J.S. at 3.)

         III. LEGAL STANDARD

         A. Motion to Compel Discovery

         Rule 26 provides that a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). Information need not be admissible in evidence to be discoverable. Id. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed.R.Evid. 401.

         Rule 34 of the Federal Rule of Civil Procedure provides that a party may serve upon any other party a request for production of any tangible thing within the party's possession, custody, and control that is within the scope of Rule 26. Fed.R.Civ.P. 34(a)(1)(B). The party receiving the request has thirty days in which to respond. Fed.R.Civ.P. 34(b)(2). A party may move for an order compelling production where the opposing party fails to produce documents as requested under Rule 34. Fed.R.Civ.P. 37(a)(3(B)(iv).

         Motions to compel are governed by Federal Rule of Civil Procedure 37, which states, in pertinent part:

(a) Motion for an Order Compelling Disclosure or Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

Fed. R. Civ. P. 37. Rule 37 states that “an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” Fed.R.Civ.P. 37(a)(4).

         If a motion to compel discovery is granted, Rule 37(a)(5)(A) requires a court to order the “party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees” unless: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(A). If the motion is denied, the court must “require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees, ” however the court “must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(B). Where the motion is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 37(a)(5)(C).

         B. Fifth Amendment Privilege Against Self-Incrimination

         The primary objections to the discovery involved in this dispute are grounded in the Fifth Amendment privilege against self-incrimination. The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. The privilege against self-incrimination “protects a person only against being incriminated by his own compelled testimonial communications.” Doe v. United States, 487 U.S. 201, 207 (1988) (quoting Fisher v. United States, 425 U.S. 391, 409 (1976)). “To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 189 (2004). “The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951). The privilege may be asserted in any proceeding, whether civil, criminal, administrative, judicial, investigatory, or adjudicatory, in which the witness believes the information could reasonably be used in a subsequent state or federal criminal proceeding. United States v. Balsys, 524 U.S. 666, 672 (1998) (citing Kastigar v. United States, 406 U.S. 441, 444-445 (1972)).

         Of significance to the instant matter, the Supreme Court has expressly held and reaffirmed that providing a handwriting sample is not a testimonial act protected under the Fifth Amendment privilege. Gilbert v. California, 388 U.S. 263, 266-67 (1967); Fisher, 425 U.S. at 408; In re Grand Jury Proceedings, 40 F.3d 959, 962 (9th Cir. 1994) (recognizing that providing a handwriting sample is not a testimonial act protected under the Fifth Amendment). Further, the privilege only protects the contents of documents created by the privilege holder under some method of compulsion, and not the content of documents voluntarily prepared. Where the preparation of the document “is voluntary, no compulsion is present, ” and a “subpoena that demands production of documents ‘does not compel oral testimony; nor would it ordinarily compel the [responding party] to restate, repeat, or affirm the truth of the contents of the documents sought.' ” Doe, 465 U.S. at 610 (quoting Fisher, 425 U.S. at 409; see also Fisher, 425 U.S. at 410 n.11 (“In the case of a documentary subpoena the only thing compelled is the act of producing the document and the compelled act is the same as the one performed when a chattel or document not authored by the producer is demanded.”); Baltimore City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 554 (1990) (“When the government demands that an item be produced, the only thing compelled is the act of producing the [item].”) (citations and quotations omitted) (alteration in original). Thus, documents sought that were not prepared by the witness claiming the privilege are generally not protected by the Fifth Amendment as they would not require compelled testimony, nor require affirmation of the truth of the contents:

Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications. The accountant's workpapers are not the taxpayer's. They were not prepared by the taxpayer, and they contain no testimonial declarations by him. Furthermore, as far as this record demonstrates, the preparation of all of the papers sought in these cases was wholly voluntary, and they cannot be said to contain compelled testimonial evidence, either of the taxpayers or of anyone else. The taxpayer cannot avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else.

Fisher, 425 U.S. at 409-10 (1976) (internal citations and footnotes omitted).

         1. The Act of Production may be a Testimonial Act Subject to Privilege

         “The Fifth Amendment's protection may nonetheless be implicated because the act of complying with the government's demand testifies to the existence, possession, or authenticity of the things produced . . . [b]ut a person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded.” Baltimore City, 493 U.S. at 555 (citations omitted). Whether this act of complying with a demand for production implicates the Fifth Amendment because of the testimonial aspects of production is a fact-dependent inquiry, as recognized and discussed in Fisher:

The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer. It also would indicate the taxpayer's belief that the papers are those described in the subpoena. The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both “testimonial” and “incriminating” for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof. In light of the records now before us, we are confident that however incriminating the contents of the accountant's workpapers might be, the act of producing them the only thing which the taxpayer is compelled to do would not itself involve testimonial self-incrimination.
It is doubtful that implicitly admitting the existence and possession of the papers rises to the level of testimony within the protection of the Fifth Amendment. The papers belong to the accountant, were prepared by him, and are the kind usually prepared by an accountant working on the tax returns of his client. Surely the Government is in no way relying on the “truth-telling” of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers. Under these circumstances by enforcement of the summons “no constitutional rights are touched. The question is not of testimony but of surrender.”
When an accused is required to submit a handwriting exemplar he admits his ability to write and impliedly asserts that the exemplar is his writing. But in common experience, the first would be a near truism and the latter self-evident. In any event, although the exemplar may be incriminating to the accused and although he is compelled to furnish it, his Fifth Amendment privilege is not violated because nothing he has said or done is deemed to be sufficiently testimonial for purposes of the privilege. This Court has also time and again allowed subpoenas against the custodian of corporate documents or those belonging to other collective entities such as unions and partnerships and those of bankrupt businesses over claims that the documents will incriminate the custodian despite the fact that producing the documents tacitly admits their existence and their location in the hands of their possessor. The existence and possession or control of the subpoenaed documents being no more in issue here than in the above cases, the summons is equally enforceable.
Moreover, assuming that these aspects of producing the accountant's papers have some minimal testimonial significance, surely it is not illegal to seek accounting help in connection with one's tax returns or for the accountant to prepare workpapers and deliver them to the taxpayer. At this juncture, we are quite unprepared to hold that either the fact of existence of the papers or of their possession by the taxpayer poses any realistic threat of incrimination to the taxpayer.
As for the possibility that responding to the subpoena would authenticate the workpapers, production would express nothing more than the tax payer's belief that the papers are those described in the subpoena. The taxpayer would be no more competent to authenticate the accountant's workpapers or reports by producing them than he would be to authenticate them if testifying orally. The taxpayer did not prepare the papers and could not vouch for their accuracy. The documents would not be admissible in evidence against the taxpayer without authenticating testimony. Without more, responding to the subpoena in the circumstances before us would not appear to represent a substantial threat of self-incrimination . . . Whether the Fifth Amendment would shield the taxpayer from producing his own tax records in his possession is a question not involved here; for the papers demanded here are not his “private papers, ”. We do hold that compliance with a summons directing the taxpayer to produce the accountant's documents involved in these cases would involve no incriminating testimony within the protection of the Fifth Amendment.

Fisher, 425 U.S. at 410-14 (internal citations and footnotes omitted).

         As discussed in Fisher, when the “existence and location” of the documents is a “foregone conclusion, ” and the responding party “adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers, ” there will be no Fifth Amendment protection as “[t]he question is not of testimony but of surrender.” Id. at 411 (citation omitted). The existence and location may be considered a foregone conclusion where the requesting party can establish with “reasonable particularity” that the documents exist and the responding party possesses them, however “actual knowledge of the existence and location of each and every responsive document” is not required. In re Grand Jury Subpoena, Dated Apr. 18, 2003, 383 F.3d 905, 910 (9th Cir. 2004).

         Further, “it is the government's knowledge of the existence and possession of the actual documents, not the information contained therein, that is central to the foregone conclusion inquiry.” Id. Generalized knowledge, such as assumptions that a particular employee will have documents because of the position within the company will not typically satisfy the standard. Id. at 911 (“The argument that a salesman such as Doe will always possess business records describing or memorializing meetings or prices does not establish the reasonably particular knowledge required.”). Additionally, broadly worded subpoenas may “exceed[] the government's knowledge about the actual documents” and must be drafted more “narrowly to identify the documents that it could establish with reasonable particularity.” Id.; see also United States v. Hubbell, 530 U.S. 27, 34-38, (2000) (“It is apparent from the text of the subpoena itself that the prosecutor needed respondent's assistance both to identify potential sources of information and to produce those sources.”). The Supreme Court's discussion in Hubbell provides a useful discussion of these issues:

More relevant to this case is the settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not “compelled” within the meaning of the privilege. Our decision in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), dealt with summonses issued by the Internal Revenue Service (IRS) seeking working papers used in the preparation of tax returns. Because the papers had been voluntarily prepared prior to the issuance of the summonses, they could not be “said to contain compelled testimonial evidence, either of the taxpayers or of anyone else.” Accordingly, the taxpayer could not “avoid compliance with the subpoena merely by asserting that the item of evidence which he is required to produce contains incriminating writing, whether his own or that of someone else.” It is clear, therefore, that respondent Hubbell could not avoid compliance with the subpoena served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself.
On the other hand, we have also made it clear that the act of producing documents in response to a subpoena may have a compelled testimonial aspect. We have held that “the act of production” itself may implicitly communicate “statements of fact.” By “producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.” Moreover, as was true in this case, when the custodian of documents responds to a subpoena, he may be compelled to take the witness stand and answer questions designed to determine whether he has produced everything demanded by the subpoena. The answers to those questions, as well as the act of production itself, may certainly communicate information about the existence, custody, and authenticity of the documents. Whether the constitutional privilege protects the answers to such questions, or protects the act of production itself, is a question that is distinct from the question whether the unprotected contents of the documents themselves are incriminating.

Hubbell, 530 U.S. at 34-38 (internal citations and footnotes omitted). The Court found there to be compelled testimony inherent in the production of the documents, as “[i]t [was] apparent from the text of the subpoena itself that the prosecutor needed respondent's assistance both to identify potential sources of information and to produce those sources, ” and “[g]iven the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions.” Id. at 41. The Court noted that “[t]he assembly of literally hundreds of pages of material in response to a request for ‘any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to' an individual or members of his family during a 3-year period . . . [was] the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.” Id. at 41-42. The Court stated that compliance with the subpoena required the party to make “extensive use of ‘the contents of his own mind' in identifying the hundreds of documents responsive to the requests in the subpoena.” Id. at 43. “The assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” Id. (citing Doe, 487 U.S. at 210 n.9). The Court held that “[i]n sum, we have no doubt that the constitutional privilege against self-incrimination protects the target of a grand jury investigation from being compelled to ...


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