Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERIC TALLAKSEN, Case No.: 25-cv-1073-W-DDL 12 Plaintiff, ORDER RE EXPENSES UNDER 13 v. FED. R. CIV. P. 37(a)(5)(A)

14 ALEXANDER SMITH; ESTEBAN HERNANDEZ, 15 Defendants. 16 17 I. 18 INTRODUCTION 19 On April 30, 2026, the Court granted Plaintiff’s motions to compel the production 20 of documents and to compel Defendant Smith to answer deposition questions that he was 21 instructed not to answer on privilege grounds. Dkt. No. 46. This Order addresses 22 Plaintiff’s request for payment of attorney’s fees incurred bringing the motions to compel. 23 See Fed. R. Civ. P. 37(a)(5). 24 II. 25 DISCUSSION 26 Where a motion to compel discovery is granted, “the court must, after giving an 27 opportunity to be heard, require the party or deponent whose conduct necessitated the 28 1 expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 2 37(a)(5)(A). However, the court must not order such payment where the movant failed to 3 make a good faith effort to obtain the discovery before filing the motion, the opposing 4 party’s objection was substantially justified, or “other circumstances make an award of 5 expenses unjust.” Id. A position is substantially justified when “the parties had a genuine 6 dispute on matters on which reasonable people could differ as to the appropriate outcome.” 7 Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. Nev. 2016) (citing Pierce v. 8 Underwood, 487 U.S. 552, 565 (1988)). “The party facing an award of expenses bears the 9 burden of establishing substantial justification.” Eisenberg v. Marriott Int’l, Inc., No. 2:25- 10 CV-00208-RFB-NJK, 2026 WL 772447, at *3 (D. Nev. Mar. 18, 2026). 11 At issue here is whether Defendant Smith was substantially justified in (1) declining 12 to produce two “memoranda of direction” in response to Plaintiff’s request for production 13 (“RFP”) seeking “disciplinary records” and (2) invoking the attorney-client privilege in 14 response to deposition questions regarding his written discovery responses. The Court 15 concludes Defendant Smith has demonstrated substantial justification for his response to 16 Plaintiff’s request for production seeking disciplinary records but not with respect to his 17 invocation of the attorney-client privilege. 18 A. Failure to Produce Memoranda of Direction 19 Plaintiff’s Request for Production No. 18 sought “[a]ll your disciplinary records.” 20 Dkt. No. 41-1 at 3. Defendant Smith responded by objecting and then asserting he did not 21 possess responsive documents. Id. at 4. However, Defendant Smith subsequently testified 22 that he had been disciplined for violating “various policies.” Dkt. No. 41 at 5. Those 23 events are reflected in three “memorandum of direction” documents dated August 29, 24 2023, July 6, 2024 and July 26, 2024, that the Court reviewed in camera. These 25 memoranda describe patrol car crashes and an incident involving an encounter with a 26 civilian, direct Defendant Smith to undergo remedial training and warn that similar conduct 27 may result in “Adverse Action” against him. 28 / / / 1 In response to Plaintiff’s motion to compel production of the memoranda of 2 direction, defense counsel argued that the memoranda are not disciplinary records – and 3 thus not within the scope of Plaintiff’s RFP No. 18 – because they are “remedial or 4 counseling in nature” and are not appealable to the California State Personnel Board. Dkt. 5 No. 42 at 2-3. “[T]he language of discovery requests should not be read or interpreted in 6 an artificially restrictive or hyper-technical manner to avoid disclosure of information fairly 7 covered by the discovery request.” O.H. v. Secret Harbor, No. 2:23-CV-60, 2024 WL 8 310281, at *3 (W.D. Wash. Jan. 26, 2024) (citing Fed. R. Civ. P. 37, Advisory Committee 9 Note (1993 Amendments)). Defense counsel’s argument that the memoranda of direction 10 do not constitute disciplinary records toes the line of an artificially restrictive or hyper- 11 technical reading of Plaintiff’s request for disciplinary records. Indeed, Defendant Smith’s 12 deposition testimony reflects his common sense understanding that he was disciplined for 13 the events reflected in the memoranda. 14 The better practice would have been for defense counsel to acknowledge the 15 existence of the memoranda to Plaintiff’s counsel and articulate the position taken in the 16 motion that the memoranda did not constitute disciplinary records. At least then Plaintiff’s 17 counsel would not have learned about the memoranda for the first time at Defendant 18 Smith’s deposition. However, having considered defense counsel’s justification for taking 19 the position that memoranda of direction do not constitute “disciplinary records,” the Court 20 finds Defendant Smith’s discovery response was substantially justified. 21 B. Invocation of Attorney-Client Privilege 22 Defendant Smith has not established that his counsel’s assertions of attorney-client 23 privilege in response to deposition questions about responses to Requests for Admission 24 and Requests for Production were substantially justified. As explained at the motion 25 hearing and in the April 30 Order, the deposition questions did not require Defendant Smith 26 to divulge confidential attorney-client information. For example, when Plaintiff’s counsel 27 asked Defendant Smith whether he had reviewed the documents produced in response to 28 RFP No. 5, defense counsel asserted a blanket objection and instruction not to answer: “I’m 1 invoking the attorney-client privilege for this entire line of questioning.” Dkt. 41-3 at 73- 2 75. But asking Defendant Smith about the documents he reviewed did not, on its face, 3 require him to divulge privileged communications with his counsel. And by asserting the 4 privilege as to the entire line of questioning, defense counsel prevented Plaintiff from 5 asking questions seeking non-privileged information. 6 In response to Plaintiff’s motion to compel, Defendant Smith argued that he properly 7 declined to answer deposition questions because his written discovery responses “were 8 prepared by counsel in consultation with Ofc. Smith” and “[t]o inquire into Ofc. Smith’s 9 state of mind when he verified the RFAs, RFP no. 5, and amended RFP no. 17 would 10 consequently reveal substance and nature of communications between attorney and client.” 11 Dkt. No. 43 at 5. This argument is inconsistent with the precept that the attorney-client 12 privilege does not “create a broad zone of silence over the subject matter of the [attorney- 13 client] communication.” Murdoch v. Castro, 609 F.3d 983, 995 (9th Cir. 2010). The 14 privilege “only protects disclosure of communications; it does not protect disclosure of the 15 underlying facts by those who communicated with the attorney.” Admiral Ins. Co. v. U.S. 16 Dist. Ct., 881 F.2d 1486, 1493 (9th Cir. 1989). Thus, the facts underlying confidential 17 attorney-client communications are the proper subject of discovery, “so long as the 18 underlying facts can be proven without resort to the privileged materials.” Murdoch, 609 19 F.3d at 995. Defendant’s argument that counsel’s participation in the drafting of discovery 20 responses thereby precluded Plaintiff’s counsel from asking any deposition questions about 21 those discovery responses is inconsistent with the longstanding rule that the attorney-client 22 privilege protects communications, not underlying facts. 23 The Court concludes Defendant Smith has not established that his refusal to answer 24 deposition questions on privilege grounds was substantially justified and that Rule 25 37(a)(5)(A) requires payment of Plaintiff’s expenses in bringing the motion to compel. 26 Given that Defendant Smith followed his counsel’s instruction not to answer the questions 27 and that counsel sought guidance from his chain of command in the Attorney General’s 28 1 || Office with respect to the objections, the Court finds that the Attorney General’s Office 2 ||should be responsible for the payment, not Defendant Smith. 3 II. 4 CONCLUSION 5 For the foregoing reasons, the Court ORDERS as follows: 6 1. Pursuant to Rule 37(a)(5)(A), the Attorney General’s Office must pay 7 || Plaintiff's reasonable expenses incurred in moving to compel Defendant Smith to answer 8 || deposition questions. 9 2. By not later than May 19, 2026, Plaintiff's counsel must file a declaration 10 ||setting forth the attorney’s fees and costs incurred in bringing the motion to compel 11 |}answers to deposition questions (but not the motion to compel production of the 12 ||memoranda of direction). 13 3. By not later than May 27, 2026, defense counsel must file any response to 14 || Plaintiff's counsel’s declaration. 15 16 IT ISSO ORDERED. 17 || Dated: May 12, 2026 _— Tb hohe A 20 United States Magistrate Judge 21 22 23 24 25 26 27 28