Tattersalls LTD. v. Wiener

Opinion

2 fF 6; 18209 «COC; Lo 3 CLERK US DISTRICT COURT 5 6 7 8 UNITED STATES DISTRICT COURT 9 |; . SOUTHERN DISTRICT OF CALIFORNIA 10 11 || TATTERSALLS, LTD., Case No.: 17cv1125-BTM(KSC) Plainttt, ORDER RE JOINT MOTIONS FOR 13 V. DETERMINATION OF DISCOVERY 14 || GERALD WIENER, et al., DISPUTES [Doc. Nos. 80 and 81.] 15 Defendants. 16 || 17 Before the Court are two Joint Motions for Determination of Discovery Dispute. 18 {| [Doc. Nos. 80 and 81.] In these Joint Motions, plaintiff seeks an order compelling 19 || defendants to revise and expand the initial disclosures they made pursuant to Federal 20 of Civil Procedure 26(a)(1)(A)(i) and (ii). Defendants contend they have fully 21 || complied with the initial disclosure requirements. Copies of defendants’ initial 22 || disclosures were provided to the Court as exhibits to the Joint Motions. [Doc. No. 80-2, 23 pp. 19-24; Doc, 81-1, at pp. 33-46.] 24 Initial Disclosures/Descrip tion of Documents That May Be Used to Support 25 || Claims or Defenses [Doc. No. 86]. Plaintiff argues that defendants’ initial disclosures 26 || are incomplete because they did not produce a single document. [Doc. No. 80, at p. 6.] 27 || In addition, plaintiff contends that defendants’ initial disclosures are incomplete because 28 they should have identified additional documents based on the allegations in plaintiffs 1 |}Complaint that allege defendants were acting as partners in “multiple year of 2 ||transactions.” [Doc. No. 80, at pp. 7-8.] Plaintiff also argues that defendants must make 3 separate disclosures for each defendant. [Doc. No. 80, at p. 6.] 4 Defendants contend they have fully complied with the initial disclosure 5 ||requirements and are not required to identify the documents “that plaintiff thinks they 6 || should.” [Doc. No. 80, at p. 12.] Defendants have also explained that the responses are 7 |\the same as each defendant, so it is not necessary for them to provide separate 8 disclosures. [Doc. No. 80, at p. 9-11.] 9 Having reviewed defendants’ initial disclosures and the parties’ arguments, the 10 || Court finds that defendants have complied with the requirements set forth in Federal Rule 11 Civil Procedure 26(a){1)(A)(ii). As required by Federal Rule of Civil Procedure 12 |) 26(a){1)(A)Gi), defendants’ initial disclosures include “a description by category and 13 ||location” of documents they “may” use to support their claims and/or defenses and the 14 || location of the documents. [Doc. No. 80-2, at pp. 19-24.] Rule 26(a)(1)(A)(ii) does not 15 |}mandate that defendants produce documents. To the extent plaintiff secks copies of 16 ||documents listed in defendants’ initial disclosures or seeks disclosure of additional 17 documents and information from defendants, it must do so’ by serving defendants with 18 || discovery requests as provided in Federal Rules of Civil Procedure 30, 33, 34, and 36. If 19 || plaintiff seeks documents from a third party, it must, of course, serve those parties with a 20 || subpoena pursuant to Federal Rule of Civil Procedure 45. To the extent defendants’ 21 ||initial disclosures and/or responses to any discovery requests are the same for more than 22 defendant, it is not necessary for them to serve plaintiff with separate disclosures or 23 responses for each defendant so long as the response clearly states that it is being 24 || submitted on behalf of multiple defendants. 25 Accordingly, plaintiff's request for an order compelling defendants to make 26 || additional initial disclosures under Rule 26(a)(1){A)(ii) is DENIED. [Doc. No. 80.] 27 Initial Disclosures/Witnesses [Doc. No. 81]. As required under Federal Rule of 28 || Civil Procedure 26(a)(1)(A)(i), defendants’ initial disclosures include a list of witnesses 1 believe are “likely to have discoverable information.” Fed.R.Civ.P. 26(a)(1)(A).. 2 ||[Doc. No. 81-1, at pp. 35-41.] According to plaintiff, four of the witnesses identified by 3 defendants are attorneys who have worked for one or more of the defendants. [Doc. No. at p. 6.] For example, defendants identified attorney Nicholas Klein, and provided his 5 address and telephone number, and a general description of subject areas where he has 6 || knowledge relevant to the case. The description identifies Mr. Klein as “outside counsel” 7 ||to defendant Finance California. [Doc. No. 81-1, □□ p. 39.] 8 Because defendants have identified attorneys as potential witnesses, plaintiff 9 |{contends defendants must identify “the holder of the attorney-client privilege,” provide a 10 || privilege log, or waive the privilege. [Doc. No. 81, at pp. 7-9.] Plaintiff believes I] || defendants are listing individual lawyers as defense witnesses to preclude plaintiff from 12 obtaining discovery. [Doc. No. 81, at p. 7.] 13 Defendants contend they have fulfilled their initial disclosure obligations under 14 || Federal Rule of Civil Procedure 26(a)(1)(A)(i), and the attorney-client privilege is not an [5 at this stage of the proceeding. Defendants are correct. Plaintiff's request for an 16 || order compelling defendants to further address the attorney-client privilege, provide a 17 || privilege log, and/or waive the privilege is premature. 18 “The claim of privilege must be made and sustained on a question-by-question or 19 || document-by-document basis; a blanket claim of privilege is unacceptable.” United 20 || States v. Christensen, 828 F.3d 763, 803 (9th Cir. 2015). At the time of initial 21 || disclosures, it is enough for defendants to state that these attorneys may have 22 ||“discoverable information” but to also indicate there may be some documents or 23 information they would not be able to disclose based on the attorney-client privilege. 24 || Later, if these attorneys withhold documents or information in response to document 25 ||requests or deposition questions based on the attorney-client privilege, it would be time 26 |) for them to “expressly make the claim” on behalf of the holder of the privilege, and, if 27 ||documents are withheld, provide plaintiff with a privilege log. See Fed.R.Civ.P 28 ||26(b\(5\A)D&(ii). og ] Plaintiff also argues that defendants must provide separate initial disclosures of 2 || witnesses for each defendant. [Doc. No. 81, at p. 10.] Defendants have explained that the 3 || witness disclosures are the same for both responding defendants, and joint disclosures are 4 | appropriate for related parties. [Doc. No. 81, at pp. 25-26.| Defendants are correct. Once 5 ||again, to the extent defendants’ initial disclosures and/or responses to any discovery 6 requests are the same for more than one defendant, it is not necessary for them to serve 7 || plaintiff with separate disclosures or responses for each defendant so long as the response 8 |/clearly states that it is being submitted on behalf of multiple defendants. 9 Accordingly, plaintiff's request for an order compelling defendants to make 10 |! additional initial disclosures under Rule 26(a)(1 )(A)(ii) to specifically address issues 11 || concerning the attorney-client privilege is DENIED. [Doc. No. 81.] 12 To the extent the parties have any further discovery disputes they are unable to 13 || resolve after they have met and conferred in good faith concerning all disputed issues, 14 must jointly contact the Court at (619) 446-3964 before filing a motion. 15 IT IS SO ORDERED. □ 16 || Dated: October Lh 2019 Uy, Me: 17 WM: = ig Hon, Karén 8. Crawford United States Magistrate Judge 19 20 21 22 23 24 25 26 □ 27 28