O. L. v. City of El Monte, et al Case No. 2:20-cv-00797-RGK (JDEx) United States District Court, C.D. California Filed February 16, 2021 Counsel O. L., El Monte, CA, Pro Se. Colin E. Barr, Terence Joseph Gallagher, Olivarez Madruga Lemieux O'Neill LLP, Los Angeles, CA, for City of El Monte, David Reynoso, Martha Tate, Michael Buckhannon. Erin Renee Dunkerly, Tomas A. Guterres, Collins and Collins LLP, Pasadena, CA, Amanda G Papac, Jackson Lewis P.C., Los Angeles, CA, for County of Los Angeles, Alex Villanueva, Liliana Jara, Richard Ruiz, Jackie Lacey, Peter Cagney, Karen Thorp, June Chung. Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order re Motion to Compel [Dkt. 146] *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 March 19, 2020, Plaintiff filed the operative Second Amended Complaint. Dkt. 40 (“SAC”). The Court granted in large part motions to dismiss the SAC, dismissing or staying all claims except a single Section 1983 claim based upon an alleged Fourth Amendment violation against Defendants Lilian Jara (“Jara”) and Richard Ruiz (“Ruiz”) (collectively, “Defendants”). Dkt. 72. Defendants answered the SAC on August 14, 2020. Dkt. 80. On January 11, 2021, the Court denied in large part five discovery motions filed by Plaintiff, among other rulings. See Dkt. 145 (“Order”) (denying Dkt. 117, 118, 130, 132, 138) One of those motions was a Motion to Compel Compliance with a Subpoena Directed to Nonparty County of Los Angeles (the “County”) (Dkt. 132, “Plaintiff's Third Motion to Compel”), which was denied in its entirety. See Order at 31-33. The next day, on January 12, 2021, Plaintiff filed a Motion to Compel the County to Comply with a Subpoena (Dkt. 146, “Plaintiff's Fourth Motion to Compel”) set for hearing on February 4, 2021, with two separate documents titled in part “Joint Stipulation” (see Dkt. 148, 149) and two sets of evidence (Dkt. 148-1 to 148-2, 149-1 to 149-2). Plaintiff provided no explanation why two different documents titled Joint Stipulation were filed in support of a single discovery motion, only one of which is signed by counsel for the County. Compare Dkt. 148 at 21 (reflecting an electronic signature of Plaintiff only) with Dkt. 149 at 21 (reflecting electronic signatures of Plaintiff and counsel for the County). The Court will rely only on the version of the Joint Stipulation (Dkt. 149) signed on behalf of both parties to the dispute. Plaintiff filed an ex parte application to shorten time for hearing on Plaintiff's Fourth Motion to Compel that was denied on January 12, 2021. See Dkt. 147, 150. After no party filed a timely supplemental memorandum, the Court vacated the hearing on Plaintiff's Fourth Motion to Compel, finding it may properly be decided without oral argument. Dkt, 178. The Court now rules as follows. II. RELEVANT LAW A. Relevance for Discovery Purposes “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. (“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). *2 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)). B. Rule 45 Subpoenas Under Rule 45, a party may serve a subpoena commanding a nonparty to produce and permit inspection of documents. Rule 45(a)(1)(iii). Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 299 F.R.D. 638, 642 (E.D. Cal. 2014). A party serving a subpoena on a nonparty “must take reasonable steps to avoid imposing undue burden or expense” on the subpoenaed nonparty, and the Court “must enforce this duty.” Rule 45(d)(1). A nonparty recipient of a Rule 45 subpoena calling for the production of documents may serve objections to a request for production of documents contained in a Rule 45 subpoena within 14 days of service of the subpoena or by the date for production set in the subpoena, whichever is earlier. Rule 45(d)(2)(B). C. Motions to Compel Further Responses to Discovery If a nonparty responding to a subpoena calling for the production of documents serves objections, the party who served the subpoena may move for an order compelling the subpoenaed party to produce records, but any order on the issue “must [the nonparty] from significant expense resulting from compliance.” Rule 45(d)(2)(B)(i), (ii). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance.” United States v. McGraw–Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations and internal quotation marks omitted)). Once the minimal showing of relevance is made, “[t]he 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); see also Hsingching Hsu v. Puma Biotechnology, Inc., 2018 WL 4951918, at *4 (C.D. Cal. June 27, 2018) (“The party opposing discovery is ‘required to carry a heavy burden of showing’ why discovery should be denied.” (quoting Reece v. Basi, 2014 WL 2565986, at *2 (E.D. Cal. June 6, 2014)); Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 1998). III. DISCUSSION In Request No. 1, Plaintiff seeks: “Any and all unredacted documents and ESI including, but not limited to, police reports, case reports, unedited audio/video recording, internal reports, incident reports, supplemental reports, logs, investigative reports (internal or otherwise), correspondence, notes, memoranda, written summaries of interviews of any person, evidence, photographs regarding or relating to Case #019-07341-0563-021 (Name of suspect: [Name]).” Dkt. 149 at 5. The County asserted various objections, including relevance, undue burden and expense. Id. Plaintiff sets forth her purported reasons why the documents requested are relevant and purports to counter some of the County's other objections. Id. at 3, 5-6. Having carefully considered Plaintiff's proffer of relevance, noting the standards set forth in and Rule 45(d)(1) and the limited nature of the current issues remaining in the case relating to the scope of any consent provided by Plaintiff regarding the search/seizure of her cellular telephone and any alleged damages caused thereby, the Court finds that Request No. 1 imposes burdens on a non-party disproportionate to the needs of the case, taking into account the Rule 26(b)(1) factors and the Court's affirmative obligation to enforce a subpoenaing party's duty to take reasonable steps to avoid an undue burden or expense upon a non-party in connection with a Rule 45 subpoena. *3 In Request No. 2, Plaintiff seeks: “Any and all documents showing the possession and/or transfer of Plaintiff's electronic data (in any format) retrieved from her smartphone, by any means including but not limited to forensic examination, to any other person or entity, including but not limited to officer, agents, or employees of the Los Angeles Sheriff's Department and/or the LA County District Attorney's Office, including any documentation and communications, in any format, showing such possession or transfer.” Dkt. 149 at 9. The County asserts various objections and then identifies, subject to those objections, documents previously produced by the County in response to an earlier subpoena served by Plaintiff. Id. Plaintiff sets forth her purported reasons why the documents requested are relevant, purports to counter some of the County's other objections, and asserts that the County's response fails to state whether any responsive documents were withheld, suggesting that the documents identified in the response are not the complete universe of responsive records. Id. at 3, 9-10. In response, the County reiterates what it states was explained during the meet and confer process, that it has not withheld any responsive documents. Id. at 10-11. To the extent Plaintiff does not believe the County's representations, such lack of belief, absent some sufficient further showing that Plaintiff has not made here, is not sufficient for the Court to order a further response. See Grossman v. Directors Guild of Am., Inc., 2018 WL 5914242, at *5 (C.D. Cal. Aug. 22, 2018) (citing Unilin Beheer B.V. v. NSL Trading Corp., 2015 WL 12698382, at *5 (C.D. Cal. Feb. 27, 2015) (“A plaintiff's mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel.”) (citations omitted)); Ogden v. Bumble Bee Foods, LLC, 292 F.R.D. 620, 628 (N.D. Cal. 2013) (“Absent evidence that [the defendant] is withholding documents in its possession, the court cannot issue an order compelling [the defendant] to produce documents it states it does not have.”). The Court finds the County has sufficiently responded and produced records in response to Request No. 2. In Request No. 3, Plaintiff seeks: “Entry and Search Waiver executed by Plaintiff and LILIANA JARA on July 2, 2019 in the form of tiff (at least 800 pixels per inch, 24 bit color RGB).” Dkt. 149 at 12. The County objects to the request stating Jara already produced the document at issue, although not in the format demanded, and responds that it is unable to comply with the request because the document does not exist in the format requested. Id. Thus, the County has asserted the document does not exist in the format sought. Absent a contrary agreement by the parties, a party responding to a request for production under Rule 34(b)(2) is not required to create a new document, using a different electronic format than the format in which it is maintained. Rule 45(d)(1)'s mandate that a propounding party take reasonable steps to avoid an undue burden or expense be imposed on a non-party cannot be read to impose a burden that does not exist between parties under Rule 34. The County has produced the document at issue and has stated it does not possess the document in the format Plaintiff requests. The Court finds the County has sufficiently responded response to Request No. 3. In Request No. 4, Plaintiff seeks: “A blank LASD Electronic Device Search Waiver (Form #SH-R-410ED).” Dkt. 149 at 14. The County objects to the request arguing it is duplicate of a Request No. 4 previously propounded upon the County and seeks irrelevant information, and then refers to a document Bates-numbered COLA 58 previously produced. Id. Plaintiff asserts the County did not state whether any responsive documents are being withheld and argues the request is not duplicative as the form previously produced, COLA 58, has a different Form Number than the one requested in Request No. 4. Id. at 14-15. The County argues the request is burdensome and harassing and argues Plaintiff has not met her burden to show an incorrect document was produced. Id. at 15-16. Id. The Court has reviewed the prior Request No. 4 from Plaintiff's prior motion to compel filed against the County and agrees with Plaintiff that the two requests are facially different. Compare Dkt. 133 at 19 with Dkt. 149 at 14. That the County produced a document responsive to the prior Request No. 4 does not make the same document responsive to the instant Request No. 4. To the extent the County's claims of undue burden and expenses are based on the fact that the request does not specify an operative date, that can be remedied by limiting the request to the version of the form in effect on July 2, 2019. The Court therefore overrules the County's objections as to Request No. 4 and orders the County to produce a blank Form No. SH-R-410ED that was in effect on July 2, 2019 or state that no such document exists within 10 days. *4 In Request No. 5, Plaintiff seeks: “A blank LASD Receipt for Property (Form #SH-AD-19).” Dkt. 149 at 16. The County objects to the request as overly broad and burdensome as it does not specify a time and argues it seeks irrelevant documents based on the issues currently remaining in the case. Id. at 17. To the extent the County's claims of undue burden and expenses are based on the fact that the request does not specify an operative date, that can be remedied by limiting the request to the version of the form in effect on July 2, 2019. The Court therefore overrules the County's objections as to Request No. 5 and orders the County to produce a blank Form No. SH-AD-19 that was in effect on July 2, 2019 or state that no such document exists within 10 days. In Request No. 6, Plaintiff seeks: “LASD Manual of Policy and Procedures Chapter 4 - Property and Evidence Procedures.” Dkt. 149 at 19. The County asserted various objections, including relevance, undue burden and overbreadth. Id. Plaintiff purports to limit the request to documents in effect in 2019, sets forth her purported reasons why the documents requested are relevant and purports to counter some of the County's other objections. Id. at 3, 19-20. The County notes Plaintiff refused to limit the time period during the meet and confer process and argues the limitation still does not address the County's overbreadth concerns. Id. at 20. As an initial matter, the Court notes there are no Monell claims remaining in the action. Further, the scope of the records sought, a chapter of procedures governing “Property and Evidence Procedures” that is not limited in any way to the specific issues in this case and would presumably relate to matters as far reaching as crime scene procedures, DNA collection procedures, special handling procedures for seizures of weapons, narcotics, and cash, etc. Having carefully considered Plaintiff's proffer of relevance, noting the standards set forth in and Rule 45(d)(1) and the limited nature of the current issues remaining in the case relating to the scope of any consent provided by Plaintiff regarding the search/seizure of her cellular telephone and any alleged damages caused thereby, the Court finds that Request No. 6 seeks a broad expanse of records that have nothing to do with the issues remaining in the case and imposes burdens on a non-party disproportionate to the needs of the case, taking into account the Rule 26(b)(1) factors and the Court's affirmative obligation to enforce a subpoenaing party's duty to take reasonable steps to avoid an undue burden or expense upon a non-party in connection with a Rule 45 subpoena. IV. CONCLUSION AND ORDER For the foregoing reasons, Plaintiff's Fourth Motion to Compel (Dkt. 146) is DENIED in its entirety except as to Request Nos. 4 and 5, as to which the County is ORDERED to, within 10 days from the date of this Order, produce to Plaintiff a blank Form No. SH-R-410ED and a blank Form No. SH-AD-19 that were in effect as of July 2, 2019 or serve a written statement upon Plaintiff that no such document(s) exists. IT IS SO ORDERED. Initials of Clerk: mba