Padre v. MVM, Inc.

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 PADRE and JUNIOR, on behalf of Case No.: 3:24-cv-01265-DMS-AHG themselves and all others similarly 13 TENTATIVE ORDER REGARDING situated, PLAINTIFFS’ EX PARTE MOTION 14 Plaintiffs, TO COMPEL 15 v. [ECF No. 70] 16 MVM, INC., 17 Defendant. 18 19 Before the Court is Plaintiffs Padre1 and Junior’s (collectively, “Plaintiffs”) 20 Ex Parte2 Motion to Compel. ECF No. 70. Defendant MVM, Inc. (“Defendant”) and the 21 government oppose Plaintiffs’ motion. ECF Nos. 73, 74. Upon due consideration of the 22 papers submitted, the Court TENTATIVELY GRANTS the Motion. The Court SETS an 23 24 25 1 Padre and Junior are aliases. See ECF No. 41 (order granting Plaintiffs’ motion to proceed under pseudonyms). 26 27 2 Though the Court generally requires joint motions (see Chmb.R. at 2), the Court excused the parties from this requirement regarding the instant dispute. Email from Chambers 28 1 in-person hearing on the Motion to Compel for July 31, 2025 at 1:30 p.m. before the 2 Honorable Allison H. Goddard in Courtroom 2C3 of the Edward J. Schwartz U.S. 3 Courthouse, 221 West Broadway, San Diego, California 92101. 4 Based on the Court’s review of the other objections in Defendant’s discovery 5 responses, the Court SETS an informal Discovery Conference for July 28, 2025 at 6 9:30 a.m. before the Honorable Allison H. Goddard via videoconference to address these 7 objections.4 Lead counsel for the parties must attend the videoconference, as well as any 8 attorney who has been involved in meet and confer efforts. The Court incorporates the 9 videoconference procedures set forth in its previous orders. See ECF No. 34 at ¶¶ E–F. 10 I. BACKGROUND 11 Plaintiffs filed this action on July 23, 2024, on behalf of themselves and a class of 12 similarly situated people, alleging that Defendant violated Plaintiffs’ constitutional rights 13 and various laws by providing services under a contract with the Department of Homeland 14 Security (“DHS”) to facilitate transportation of unaccompanied alien children held in U.S. 15 16 3 Any change in courtroom with be communicated with the parties in advance of the 17 hearing. 18 4 To facilitate the Discovery Conference, the Court orders the parties to email (not file) a 19 Joint Discovery Chart to the Court by July 24, 2025. This Joint Discovery Chart shall be one document containing a table in the following format: 20 Discovery Exact language of Plaintiff’s Exact language of Defendant’s [leave 21 request discovery request as served. response as served. blank] 22 number (and set, if 23 applicable) 24 [leave blank] 25 No argument should be made beyond the exact language of the requests and responses. The 26 parties shall email the chart (to efile_goddard@casd.uscourts.gov) as a Word Document. 27 In the same email as the Joint Chart, the parties must include a list of the names and email addresses of all discovery conference attendees. Court staff will thereafter send the Zoom 28 1 Immigrations and Customs Enforcement (“ICE”) custody as part of the family separation 2 policy in place during the first Trump Administration. ECF No. 1. After the district judge 3 ruled on Defendant’s Motion to Dismiss, the Court scheduled a Case Management 4 Conference (“CMC”). ECF No. 57 at 2. In the Joint Case Management Statement submitted 5 in advance of the CMC, the parties represented to the Court that they met and conferred 6 pursuant to Rule 26(f), reviewed the items of the Court’s Rule 26 Checklist, and exchanged 7 initial disclosures. ECF No. 60 at 2, 9–10. 8 At the CMC on April 11, 2025, the parties did not raise any anticipated discovery 9 disputes. The Court issued a Scheduling Order setting deadlines of August 6, 2025, for 10 completion of class discovery, and September 10, 2025, for filing Plaintiffs’ class 11 certification motion. ECF No. 63 at 2. As discussed during the CMC, the parties filed their 12 stipulated Protective Order and ESI Protocol on April 25, 2025, and June 4, 2025, 13 respectively. ECF Nos. 65, 67; see ECF Nos. 66, 68. 14 On May 7, 2025, Plaintiffs served their first set of discovery requests on Defendant, 15 which appears to have included both requests for production and interrogatories. ECF 16 No. 70-2 at 2, 5; see ECF No. 73-1 at 6–25. The parties negotiated an extension for 17 Defendant’s responses conditioned upon Defendant producing its “organizational charts 18 and contracts … by the original deadline.” ECF No. 70-2 at 2. When Defendant produced 19 the contracts on June 6, 2025, Defendant’s counsel informed Plaintiffs for the first time of 20 its position that it cannot produce any information regarding its work under its contract 21 with the government in this litigation. Id. at 3–4. Defendant explained that the categories 22 of documents sought “directly implicate” the confidentiality restrictions in their contract 23 with DHS. Id. at 3. Defendant made no mention of any obligation to comply with Touhy 24 regulations. 25 The same day, on June 6, 2025, Defendant’s counsel emailed the government’s 26 contracting officer regarding Plaintiffs’ discovery requests. ECF No. 73-1 at 2; ECF No. 27 73-1 at 27 (email to government contracting officer Ian Somppi, noting that, “[a]s the 28 categories of documents that MVM has been asked to produce in this case directly 1 implicate these contractual confidentiality obligations, MVM would like to determine 2 whether the government intends to assert its contractual rights with respect to MVM’s 3 confidentiality obligations under the UAC Contracts or to permit MVM to make the 4 requested productions.”). Defendant spoke with the government’s counsel and sent 5 Plaintiffs’ requests for production to the government on June 17, 2025. ECF No. 73-1 at 6 2–3. During this conversation, the government “explicitly informed MVM that it will not 7 permit the production of the documents plaintiffs seek.” ECF No. 73 at 5. Defendant told 8 Plaintiffs on June 18, 2025, “that MVM had been advised that the government ‘will not 9 waive their rights or permit the requested production in this case’ and that MVM’s 10 forthcoming ‘objections and responses [] will include language to that effect.’” ECF 11 No. 70-2 at 4. 12 Defendant responded to Plaintiffs’ discovery requests largely by objecting to them. 13 See, e.g., ECF No. 70-3 at 9. Defendant’s discovery responses do not mention any alleged 14 failure to comply with Touhy regulations. The instant motion to compel is focused, at the 15 Court’s direction, on Defendant’s objections based on the confidentiality clause in its 16 contract with the government.5 Plaintiffs filed the instant motion on June 27, 2025. ECF 17 No. 70. Defendant filed its opposition on July 1, 2025, (ECF No. 73), and the government 18 filed its opposition on July 8, 2025, (ECF No. 74). 19 II. PARTIES’ POSITIONS 20 Plaintiffs seek an order compelling Defendant to provide substantive responses to 21 their discovery requests. ECF No. 70. Plaintiffs’ motion focuses on case law holding that 22 contractual confidentiality clauses do not preclude an exchange of information in discovery 23 because they can be addressed through appropriate protective orders. Plaintiffs do not 24 address Defendant and the government’s arguments regarding the need to comply with 25 Touhy regulations because it appears to the Court that neither Defendant nor the 26 27 5 The Court will set a separate informal discovery conference to address Defendant’s other 28 1 government ever raised that issue with Plaintiffs before Defendant’s opposition to this 2 motion. 3 Defendant opposes Plaintiffs’ request. ECF No. 73. Defendant argues that 4 “substantially all of plaintiffs’ discovery requests seek ICE’s information and ICE’s 5 documents.” Id. at 8. As such, Defendant argues that “as a contractor acting on behalf of 6 the federal government, MVM’s potential disclosure of information pertaining to UACs or 7 ICE operations, would not only materially breach its contract with ICE, but would also 8 violate DHS’ internal Touhy regulations regarding disclosure of agency information.” Id. 9 Defendant contends that it is “prohibited from complying with plaintiffs’ requests unless 10 and until plaintiffs comply with DHS’ Touhy regulations in submitting their request to ICE, 11 and ICE authorizes MVM’s disclosure to plaintiffs.” Id. Defendant claims that Plaintiffs’ 12 failure to comply with this threshold issue requires the Court to deny the motion. Id. at 11. 13 The government also opposes Plaintiffs’ request. ECF No. 74. The government 14 argues that Plaintiffs’ motion should be denied because Plaintiffs “made no attempt to 15 comply with the Touhy process.” Id. at 2. The government contends that “[f]ailure to 16 engage in the Touhy process renders a discovery request unenforceable.” Id. at 3. 17 III. THE GOVERNMENT HAS RECEIVED ALL THE NOTICE REQUIRED 18 UNDER THE TOUHY REGULATIONS REGARDING PLAINTIFFS’ 19 DISCOVERY REQUESTS 20 The Federal Housekeeping Statute, 8 U.S.C. § 301, authorizes federal agencies to 21 issue regulations governing agency information. A 1958 amendment to the statute, 22 however, limits this authorization by clarifying that the statute “does not authorize 23 withholding information from the public or limiting the availability of records to the 24 public.” 8 U.S.C. § 301. This amendment “was the product of congressional concern that 25 agencies were invoking § 301 as a source of authority to withhold information from the 26 public.” Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979). 27 Regulations that are promulgated pursuant to § 301 are often referred to as “Touhy” 28 regulations following the Supreme Court’s decision in United States ex rel. Touhy v. 1 Ragen, 340 U.S. 462 (1951). DHS has promulgated Touhy regulations at 6 C.F.R. 2 §§ 5.41–5.49. Section 5.41(a) specifies that these regulations set forth the procedures that 3 should be followed with respect to demands directed to DHS “or to any Department 4 employee or former employee in connection with federal or state litigation arising out of 5 or involving the performance of official activities of the Department.” Section 5.41(b) 6 includes “contractors” within the definition of “employee” for the purpose of the 7 regulations. Section 5.43(a) states that only the Office of General Counsel is authorized to 8 accept service of “demands or requests to the Secretary[] … or its employees,” for 9 information that “any Department employee acquired in the course and scope of the 10 performance of his official duties.” If a demand for information is served upon an 11 “employee” instead of the Office of General Counsel, however, sections 5.43(b) and (c) 12 require the employee to “immediately forward a copy” of the demand to the Office of 13 General Counsel. Section 5.44 prohibits an employee from producing any information in 14 response to the demand without the authorization of the Office of General Counsel. With 15 respect to the contents of the demand, section 5.45(a) states that it should “set forth in 16 writing, and with as much specificity as possible, the nature and relevance of the official 17 information sought,” but does not otherwise require any specific format for the demand. 18 Under these regulations, as a DHS contractor, Defendant bears as much 19 responsibility as Plaintiffs to provide Plaintiffs’ discovery requests to DHS. See 6 C.F.R. 20 § 5.43(b), (c). Defendants fulfilled this obligation on June 17, 2025, when they provided 21 the requests to counsel for the government. ECF No. 73-1 at 2. The government’s 22 contention that Plaintiffs have not complied with the regulations rings hollow. Not only 23 has the government received the requests; it has told Defendant “explicitly” that it will not 24 allow production of information in response to the requests. ECF No. 73 at 5. A reasonable 25 reading of Plaintiffs’ discovery requests makes clear that Plaintiffs are seeking information 26 related to the contractual relationship between Defendant and DHS. ECF No. 73-1 at 6– 27 22; ECF No. 70-2 at 5. It is difficult to understand how Plaintiffs could be more specific 28 in their requests, given that they are outside this contractual relationship. 1 For these reasons, the Court tentatively finds that the requirements of the Touhy 2 regulations have been met. 3 IV. THE GOVERNMENT’S OBJECTIONS TO PRODUCTION CAN BE 4 ADDRESSED THROUGH A PROTECTIVE ORDER 5 Defendant contends that since the government has refused to allow production of 6 information, Plaintiffs’ only recourse is to file a separate action under the Administrative 7 Procedures Act (“APA”) against the government. ECF No. 73 at 13 (“If the government 8 continues with the position it has represented to MVM’s counsel (i.e., that it will not 9 consent to the production of the documents plaintiffs seek from MVM), plaintiffs must 10 pursue review of that final agency decision through a separate APA claim against the 11 government, before production can be compelled.”). This misstates the law. In Exxon 12 Shipping Co. v. Dep’t of Interior, 34 F.3d 774 (9th Cir. 1994), the Ninth Circuit held that 13 courts should assess a government agency’s refusal to submit to discovery based on Touhy 14 regulations according to the Federal Rules of Civil Procedure, rather than through a 15 separate APA action. 34 F.3d at 779 (“The Federal Rules of Civil Procedure explicitly 16 provide for limitations on discovery in cases such as this … [and] give ample discretion to 17 district courts to quash or modify subpoenas causing ‘undue burden’.”). The Ninth 18 Circuit’s express guidance is that “district courts should apply the federal rules of discovery 19 when deciding on discovery request made against government agencies, whether or not the 20 United States is a party to the underlying action.” Id. at 780. 21 Adhering to this precedent, the Court will assess Defendant and the government’s 22 confidentiality objections under the Federal Rules of Civil Procedure. Where a party 23 objects to production on the grounds that the discovery requests seek information that is 24 confidential or proprietary, a court can fashion a protective order under Fed. R. Civ. P. 25 26(c) to address those concerns. This is true even for production of personal information 26 regarding the immigration files of putative class members. Rodriguez v. Robbins, No. CV- 27 07-3239-TJH-RNBx, 2012 WL 12953870, at *2–*4 (C.D. Cal. May 3, 2012). Indeed, in a 28 related case focused on the Trump Administration’s family separation policy, Ms. L v. ICE, 1 No. 18-cv-428-DMS-AHG (S.D. Cal.), the government entered a protective order with the 2 plaintiffs. The class certified in Ms. L overlaps significantly with the proposed class in this 3 action. It is the Court’s understanding that the government entered into the protective order 4 in Ms. L voluntarily, through a stipulation submitted to the Court (see Ms. L, ECF No. 90), 5 and that discovery proceeded in Ms. L, including the exchange of confidential information 6 about class members, pursuant to the protective order. The Court sees no reason why a 7 similar procedure could not be employed in this action. 8 The parties have already entered a stipulated protective order in this case. ECF 9 No. 66. If the parties contend that this protective order should be modified to allow 10 production in light of this tentative order, they should address that issue in the supplemental 11 briefing to be submitted before the hearing on this motion. 12 For these reasons, the Court tentatively finds that any concerns regarding the 13 confidentiality of information to be produced in response to Plaintiffs’ discovery requests 14 can be addressed through a protective order. 15 V. CONCLUSION 16 As set forth above, Plaintiffs’ ex parte Motion to Compel is TENTATIVELY 17 GRANTED. ECF No. 70. The Court ORDERS as follows: 18 1. The parties and the government may file supplemental briefs in support or in 19 opposition to this tentative order no later than July 25, 2025. Supplemental briefs are 20 limited to ten (10) pages. 21 2. The Court will hold an in-person hearing on the motion on July 31, 2025 at 22 1:30 p.m. before the Honorable Allison H. Goddard in Courtroom 2C of the 23 Edward J. Schwartz U.S. Courthouse, 221 West Broadway, San Diego, California 92101. 24 3. The deadlines for complete of class certification discovery and filing the 25 motion for class certification are VACATED. See ECF No. 63. The Court expects to reset 26 these dates at the July 31, 2025, hearing. 27 / / 28 / / 1 4. Defendant must serve a copy of this Order on counsel for the government, and 2 || must file a Proof of Service in this action, no later than July 18, 2025. 3 IT IS SO ORDERED. 4 ||Dated: July 17, 2025 Morn H. Honorable Allison H. Goddard 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28