O. L. v. City of El Monte, et al. Case No. 2:20-cv-00797-RGK (JDE) United States District Court, C.D. California Filed October 30, 2020 Counsel Maria Barr, Deputy Clerk, Attorneys Present for Plaintiff: n/a n/a, Court Reporter / Recorder, Attorneys Present for Defendants: n/a Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order Denying Plaintiff's Ex Parte Application to Stay [Dkt. 99] and Motion to Amend Scheduling Order [Dkt. 98] and Granting Plaintiff's Motion for Protective Order [Dkt. 97] in Part I. INTRODUCTION *1 On January 27, 2020 Plaintiff O.L. (“Plaintiff”), proceeding pro se, filed the instant action alleging thirteen claims, including alleged civil rights violations pursuant to 42 U.S.C. § 1983. Dkt. 1. On January 29, 2020, the Honorable R. Gary Klausner, United States District Judge, denied Plaintiff's request to proceed anonymously in this action. Dkt. 10. On February 28, 2020, Judge Klausner granted Plaintiff's request to proceed in the action using her initials rather than her full name. Dkt. 27. On March 19, 2020, Plaintiff filed the operative Second Amended Complaint, using only her initials as an identifier. Dkt. 40 (“SAC”). The Court granted in large part a motion to dismiss the SAC, dismissing all claims except a single Section 1983 claim based upon an alleged Fourth Amendment violation against Defendants Lilian Lara and Richard Ruiz (“Defendants”). Dkt. 72. Defendants answered the SAC on August 14, 2020. Dkt. 80. On August 17, 2020, the Court issued a Case Management and Scheduling Order, setting, among other things, a discovery cutoff date of February 15, 2021, and encouraging the parties to serve discovery requests promptly. Dkt. 81 at 2. On October 19, 2020, Plaintiff filed a Motion for Order Governing Confidential Information and Tangible Things, set for hearing on November 19, 2020 (Dkt. 97, “Motion for Protective Order”), with supporting evidence, requesting entry of a protective order based upon this Court's form protective order and seeking sanctions based upon Defendants' refusal to stipulate to such an order. Also on October 19, 2020, Plaintiff filed a Motion to Amend Scheduling Order, set for hearing on November 19, 2020 (Dkt. 98, “Motion to Amend”), with supporting evidence, asserting the County of Los Angeles has improperly failed to respond to discovery and asserting “new and suspicious information calls for further investigation,” which, among other things, Plaintiff asserts justify an unspecified amendment to the existing Scheduling Order. Separately, also on October 19, 2020, Plaintiff filed an Ex Parte Application to Stay a Pending Deposition (Dkt. 99 (“Stay Application”)), with supporting evidence, by which Plaintiff seeks: (1) to stay her deposition, noticed by Defendants on September 28, 2020 to take place on November 5, 2020; (2) to limit the length and topics covered at the deposition; (3) a protective order directing that she need not produce certain categories of documents requested by Defendants; and (4) an award of sanctions against Defendants. Plaintiff argues that certain categories of documents sought by Defendants are variously not relevant, not proportional to the needs of the case, are vague, compound, oppressive, unduly burdensome and harassing, violative of Plaintiff's and a third party's right to privacy. Id. at 2-7. Plaintiff claims the 38 days' notice prevented her from seeking a protective order on regular notice. Id. at 8. On October 21, 2020, Defendants filed an opposition to the Stay Application (Dkt. 101) that included a declaration and more than 140 pages of exhibits (Dkt. 101-1) that were placed under seal, with a redacted version added to the docket (Dkt. 106) containing one additional redaction added to one page in response to Plaintiff's Ex Parte Application for Contempt against Defendants (Dkt. 102), an application that was otherwise denied. See Dkt. 104. On October 22, 2020, Plaintiff filed a “reply” in support of the Stay Application. Dkt. 103. *2 On October 29, 2020, Defendants filed oppositions to the Motion for Protective Order (Dkt. 110) and Motion to Amend (Dkt. 109), each with supporting evidence. In opposing the Motion for Protective Order, Defendants argue Plaintiff has not shown good cause, she has already been granted approval to proceed using her initials, and argues Plaintiff “fails to specify what precise documents and tangible things she seeks to protect” from public disclosure. Dkt. 110 at 6. In opposing the Motion to Amend, Defendants argue Plaintiff has not specified what dates she seeks to have continued and has not demonstrated good cause. Dkt. 109 at 2-3. On October 29, 2020, Plaintiff filed a Reply (Dkt. 111), with supporting evidence, in support of the Motion to Amend, asserting that alleged discovery delays by Defendants, possible future discovery responses from third parties, among other things, “might require a longer schedule.” Dkt. 11 at 2-3. The Stay Application and Motion to Amend are now fully briefed. The Court finds that it may appropriate rule on the Motion for Protective Order based on the current record. The Court also finds all three pending matters may appropriately be decided without further briefing or argument. The Court now rules as follows. II. RELEVANT LAW A. Scope of Discovery and Burdens of Persuasion for Protective Orders “Parties 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. (singularly, “Rule”) 26(b)(1). Relevance under Rule 26(b)(1) is defined broadly. See Snipes v. United States, 334 F.R.D. 548, 550 (N.D. Cal. 2020); V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019), aff'd sub nom. V5 Techs., LLC v. Switch, LTD., 2020 WL 1042515 (D. Nev. Mar. 3, 2020) (noting that relevance for discovery purposes remains broad even after the 2015 amendments of the Federal Rules of Civil Procedure). Moreover, “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Rule 26(b)(1). “Generally, the purpose of discovery is to remove surprise from trial preparation so the parties can obtain evidence necessary to evaluate and resolve their dispute.” Duran v. Cisco Sys., Inc., 258 F.R.D. 375, 378 (C.D. Cal. 2009) (citations omitted). District courts have broad discretion in determining relevancy for discovery purposes. Mfg. Automation & Software Sys., Inc. v. Hughes, 2017 WL 5641120, at *3 (C.D. Cal. Sept. 21, 2017) (citing Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir. 2005)). A person from or about whom discovery is sought may move for a protective order limiting or even forbidding discovery “for good cause” to protect the moving party from annoyance, embarrassment, oppression or undue burden or expense. Rule 26(c)(1). A party seeking a protective order has a “heavy burden” of showing why discovery should be limited. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning do not satisfy the Rule 26(c) test.” Gerard v. John Paul Mitchell Sys., 2016 WL 7638190, at *1 (C.D. Cal. July 5, 2016) (quoting Beckman Indus. Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship, 519 F.2d at 429); see also Louisiana Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012) (“the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence”). “[G]eneral or boilerplate objections such as ‘overly burdensome and harassing’ are improper—especially when a party fails to submit any evidentiary declarations supporting such objections.” A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996)). B. Scheduling Orders *3 A request to modify a scheduling order must be supported by a showing of good cause. See Fed. R. Civ. P. 16(b)(4) (scheduling order “may be modified only for good cause ...”). The good cause standard primarily considers the diligence of the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). C. Ex Parte Applications Ex parte applications, by which moving parties seek “to go to the head of the line in front of all other litigants and receive special treatment,” are “rarely justified.” Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490, 492 (C.D. Cal. 1995). To justify such rare, special relief, the moving party must, at a minimum, show: (1) its “cause will be irreparably prejudiced if the underlying motion is heard according to regular noticed motion procedures”; and (2) “the moving party is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Id. at 492; see also C.D. Cal. Local Civil Rule 37-3 (for a discovery motion to be heard on an ex parte basis, the moving party must show “irreparable injury or prejudice not attributable to the lack of diligence of the moving party”). These requirements are necessary because ex parte applications “are inherently unfair” as the parties' opportunities to prepare “are grossly unbalanced.” Mission Power, 883 F. Supp. at 490. III. DISCUSSION A. A Confidentiality Protective Order is Warranted The Court finds, based on Plaintiff's showing and the prior Order of Judge Klausner, that there is good cause for a Confidentiality Protective Order governing the handling of confidential discovery materials here under the applicable authorities due to the sensitive nature of the allegations, the nature of medical records and information sought by Defendants, as well the potential that information regarding a law enforcement investigation that did not result in criminal charges may be subject to discovery. To the extent Defendants argue that Plaintiff has not “specif[ied] what precise documents and tangible things she seeks to protect,” a party need not identify, in advance, each and every document subject to a protective order in order to seek a protective order. Rather, a party must show good cause. Plaintiff has done so. The Court will enter such a protective order by separate order. The protective order will caution the parties not to use blanket confidentiality designations. A party objecting to confidentiality designation will have a process to challenge those designations under Local Rule 37. A party found to have improperly over-designated documents, or a party found to have made an improper and unsuccessful challenge to a designation, may be subject to monetary sanctions. For the foregoing reasons, the Motion for Protective Order (Dkt. 97) is GRANTED and a separate protective order will be issued. B. Plaintiff Has Not Shown Good Cause to Modify the Scheduling Order In the Motion to Amend, Plaintiff complains that the County of Los Angeles has not responded to discovery and separately asserts that new, “suspicious” information calls for further investigation by Plaintiff. In the Reply in support of the Motion to Amend, Plaintiff adds claims that she intends to take depositions in January 2021, has been unable to but intends file a motions to compel, will seek to have a document examiner examine one record and will seek third party discovery, which, including Defendants' alleged intransigence, “might require a longer schedule.” Dkt. 111 at 2. Plaintiff's use of the word “might” demonstrates the absence of good cause here. A request to modify the Scheduling Order requires more than speculation. It requires a showing of good cause. See Rule 16(b)(4). Here, Plaintiff has described an intent to take Defendants' depositions, file three motions to compel, retain an expert, and seek third-party discovery. Plaintiff offers no reason why she cannot complete such tasks in the more than three and one half months until the February 15, 2020 discovery cutoff. Plaintiff has not met her burden to show good cause to modify the Scheduling Order. *4 As Plaintiff has not shown good cause, the Motion to Amend (Dkt. 98) is DENIED. C. Plaintiff Is Not Entitled to Ex Parte Relief as to the Stay Application As noted, to justify ex parte relief, Plaintiff must show: (1) her cause would be irreparably harmed if regularly noticed procedures were followed; and (2) she was not at fault in creating the crisis or the crisis resulted from excusable neglect. Plaintiff has not met the first prong because, as discussed in Section III(D), below, Plaintiff is not entitled to the relief she seeks. As to the second prong, although Plaintiff asserts she could not have sought relief earlier, the facts belie that assertion. The deposition notice at issue was served on September 28, 2020 and provided Plaintiff 38 days' notice before the November 5, 2020 deposition. The issues about which Plaintiff complains—the scope of documents sought, the subjects to be inquired of, and the length of the deposition—have been known to Plaintiff since she received the deposition notice. She had sufficient time to proceed under Local Rule 37 to meet and confer regarding the issues and proceed under the joint stipulation procedure to present the matter for hearing on regular notice—or to seek to shorten notice on a fully-briefed motion supported by a joint stipulation. Yet Plaintiff apparently did not commence the meet and confer process until October 12, 2020, more than two weeks after the deposition notice was served. Dkt. 99 at 8. Neither Defendants' asserted unwillingness to stipulate to a protective order nor the scope of their document requests prevented Plaintiff from acting with diligence. Plaintiff has not met her burden to show that the “crisis” is not of her own making or was the result of excusable neglect. For that reason, ex parte relief is not warranted here and the Application to Stay (Dkt. 99) is DENIED on that basis. D. Plaintiff Is Not Entitled to the Relief She Seeks by the Application to Stay In addition, as noted, the second prong Plaintiff must meet to justify ex parte relief considers whether Plaintiff would suffer irreparable prejudice if she were required to proceed using a regularly noticed motion. Here, Plaintiff would suffer no prejudice if she proceeded by a regularly noticed motion because she has not met the burden for substantive relief she seeks. Plaintiff's requests to limit the deposition to one hour and to limit the topics to be inquired of at the deposition in unspecified ways are not supported by good cause. To the extent Plaintiff seeks to limit the deposition to one hour, Rule 30(d)(1) contains a presumptive limitation of seven hours for a deposition. Here, Plaintiff has she has shown no evidentiary basis why such a severe limitation, to one hour, is warranted here. To the extent Plaintiff asks the Court to limit the topics to be covered at the deposition, without specifying those limits, Plaintiff again has not shown good cause. Rule 26(b)(1) defines relevance for discovery purposes broadly. Plaintiff has made no showing for the Court to limit the topics of inquiry at her deposition in advance. Plaintiff has not me her burden to justify a protective order to limit the deposition to less than seven hours or by topic. As a result, in this regard, the Application to Stay is substantively not supported by good cause, and its denial will not cause prejudice to Plaintiff. *5 Plaintiff's purported objections to the requests for production of documents accompanying the deposition notice are not supported. First, as noted above, ex parte relief on this issue is not warranted as Plaintiff had sufficient time to file a motion a protective order under Rule 37 or seek an order shortening time for hearing such a motion. Second, the objections are not well-taken. The Court has reviewed the requests for production and finds that they seek relevant materials and are proportional to the needs of the case. Thus, Plaintiff bears to the burden to justify her objections with proper evidence and argument, a “heavy” burden when seeking a protective order under Rule 26(c)(1). See Blankenship, 519 F.2d at 429; DIRECTV, Inc., 209 F.R.D. at 458; Louisiana Pac. Corp., 285 F.R.D. at 485; A. Farber & Partners, Inc., 234 F.R.D. at 188. To the extent Plaintiff objects that the requests seek documents “equally available to” Defendants, see Dkt. 99 at 6, “[a]n objection that documents are equally available to the requesting party is inappropriate.” Miller v. White, 2020 WL 4001624, at *6 (C.D. Cal. May 27, 2020). To the extent Plaintiff asserts general objections, without evidentiary support, such as overbreadth, undue burden, oppressive, vague, compound, etc., such objections are overruled as unsupported. See A. Farber & Partners, Inc., 234 F.R.D. at 188 (noting “general or boilerplate objections such as ‘overly burdensome and harassing’ are improper—especially when a party fails to submit any evidentiary declarations supporting such objections”); Advanced Visual Image Design, LLC v. Exist, Inc., 2015 WL 4934178, at *6 (C.D. Cal. Aug. 18, 2015) (noting that a party responding to discovery should use common sense and attribute ordinary definitions to terms in discovery requests ); Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 618-19 (D. Colo. 2007) (finding parties have an “obligation to construe ... discovery requests in a reasonable manner.”); King-Hardy v. Bloomfield Bd. of Educ., 2002 WL 32506294, at *5 (D. Conn. Dec. 8, 2002) (finding the responding party must give discovery requests a reasonable construction, rather than strain to find ambiguity); McCoo v. Denny's Inc., 192 F.R.D. 675, 694 (D. Kan. 2000) (“A party responding to discovery requests should exercise reason and common sense to attribute ordinary definitions to terms and phrases utilized ....” (internal quotation marks omitted)). To the extent Plaintiff asserts objections based on her or third-party privacy rights, the right privacy in discovery is not absolute; rather it is subject to a balancing of needs. A. Farber & Partners, Inc., 234 F.R.D. at 191. “To evaluate whether privacy interests should prevail over the interest in fully discovering a case, the court must balance the party's need for the information against the individual's privacy rights.” Marshall v. Galvanoni, 2019 WL 2491524, at *2 (E.D. Cal. June 14, 2019). In conducting this balancing test, courts consider the following factors: “ ‘(1) the type of information requested, (2) the potential for harm in any subsequent non-consensual disclosure, (3) the adequacy of safeguards to prevent unauthorized disclosure, (4) the degree of need for access, and (5) whether there is an express statutory mandate, articulated public policy,’ or other public interest favoring access.” Garcia v. Capistrano Unified Sch. Dist., 2019 WL 6332242, at *3 (C.D. Cal. June 18, 2019), at *3 (quoting Seaton v. Mayberg, 610 F.3d 530, 539 (9th Cir. 2010)). Here, Plaintiff alleges: “As a proximate and foreseeable result of Defendants' violations of Plaintiff's Fourth Amendment rights, Plaintiff has suffered, is suffering, and will continue to suffer injuries, including but not limited to continued invasion of privacy, humiliation, emotional distress, anxiety, depression, stigma, and embarrassment.” SAC, ¶ 176. Plaintiff has placed her “injuries” allegedly caused by Defendant's alleged conduct, including emotional distress, anxiety, and depression, at issue. Those conditions and their potential causes, including alternate potential causes, are appropriate subjects of discovery. Further, as set forth above, the Court has granted Plaintiff's Motion for Protective Order, by which information provided in discovery, if properly designated as confidential, is subject to significant safeguards from unauthorized disclosure. The Court finds, based on the record before it, that on balance, discovery of the allegedly private information is warranted, subject to the confidentiality protective order limiting disclosure. As Plaintiff's objections are all overruled, Plaintiff has not met her “heavy” burden to obtain a protective order. As she is not entitled to a protective order based on her objections, she has not shown that she would be prejudiced by proceeding on regular notice and is thus not entitled to ex parte relief. Lastly, as Plaintiff is not entitled to any of the relief she requests in the Application to Stay, a stay of the deposition is not warranted. Plaintiff is not entitled to any of the relief she seeks in the Application to Stay. As such, she has not shown that she would be irreparably prejudiced if required to proceed by way of a noticed motion. For that reason, and for the reasons explained in Section III(C), above, Plaintiff has not met her burden as to either of the Mission Power prongs for ex parte relief. As a result, the Application to Stay (Dkt. 99) is DENIED. IV. CONCLUSION For the foregoing reasons, Plaintiff's Application to Stay (Dkt. 99) and Motion to Amend (Dkt. 98) are DENIED and Plaintiff's Motion for Protective Order [Dkt. 97] is GRANTED, in part, with a separate confidentiality protective order to be issued. As Defendants prevailed on two of the three disputed matters discussed herein, and as the protective order entered by the Court is not the same as the protective order requested by Plaintiff, the Court finds that under the circumstances here, the ends of justice would not be served by an award of sanctions and denies each of Plaintiff's requests for sanctions. IT IS SO ORDERED. Initials of Clerk: mba