Lamya Brewster v. City of Los Angeles, et al Case No. EDCV 14-2257 JGB (SPx) United States District Court, C.D. California Filed July 03, 2024 Counsel Barrett S. Litt, McLane Bednarski and Litt LLP, Pasadena, CA, Donald Webster Cook, Donald W. Cook Attorney at Law, Los Angeles, CA, John Clay Washington, Schonbrun Seplow Harris Hoffman and Zeldes LLP, Los Angeles, CA, Paul L. Hoffman, Schonbrun Seplow Harris Hoffman and Zeldes LLP, Hermosa Beach, CA, for Plaintiff Adena Michelle Hopenstand, Gabriel Seth Dermer, Joseph S Persoff, Los Angeles City Attorney's Office, Los Angeles, CA, Agnes Patricia Ursea, Best Best and Krieger LLP, Los Angeles, CA, for Defendants Chief Charlie Beck, City of Los Angeles, Los Angeles Police Department, Chief Charlie Beck. Bernal, Jesus G., United States District Judge Proceedings: Order (1) DENYING Plaintiffs' Motion for Review of Magistrate Judge's May 21, 2024 Discovery Order (Dkt. No. 345); and (2) VACATING the July 8, 2024 Hearing (IN CHAMBERS) *1 Before the Court is Plaintiffs' motion for review of Magistrate Judge Sheri Pym's May 21, 2024 discovery order. (“Motion,” Dkt. No. 345.) The Court determines the Motion is appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of and in opposition to the Motion, the Court DENIES the Motion. The hearing scheduled for July 8, 2024 is VACATED. I. BACKGROUND Since the parties are familiar with this case's extensive procedural history, the Court provides only the background necessary to understand the Motion. This is a class action lawsuit brought by Plaintiffs Lamya Brewster, Elias Arizmendi, and Julian Vigil (collectively, “Plaintiffs”) against Defendants City of Los Angeles and Los Angeles Police Department (jointly, “Defendants”) for wrongfully impounding class members' vehicles between November 2012 and June 2017. (See Dkt. No. 344 at 2.) On May 9, 2023, this Court granted summary judgment in Plaintiffs' favor. (“MSJ Order,” Dkt. No. 314.) Plaintiffs now seek to identify the approximately 35,000 class members so that a damages judgment can be entered. (See Dkt. No. 330.) On August 15, 2023, Plaintiffs served non-party California Department of Motor Vehicles (“DMV”) with a subpoena seeking class members' names and addresses. (Dkt. No. 330-1 at 30.) Specifically, Plaintiffs provided DMV with three data files of class members' vehicles (identified by VIN and/or license plate number) and requested the names and addresses of those vehicles' registered owners. (Id.) On November 17, 2023, Plaintiffs served another subpoena on DMV, requesting the driver's license or identification (“DL/ID”) numbers of the same vehicles' registered owners. (Id.) Plaintiffs sought to run the owners' DL/ID numbers against one of DMV's databases, the DL database, to obtain class members' current addresses as reflected in DMV records. (Id.) The DMV agreed to produce the data sought, subject to a protective order and Plaintiffs' payment of the associated costs. (Id.) In November 2023, DMV provided Plaintiffs access to another of its databases, the vehicle registration (“VR”) database, by giving Plaintiffs a “commercial requestor account,” with which they could use DMV's “pre-programmed non-urgent overnight batch processing mode” to obtain the data. (See id. at 30-31.) Users of the batch process upload formatted files with one or more vehicle records identifying the vehicle by either license plate number or VIN. (Id.) The users then receive an output file containing registered owner names and addresses for the requested vehicles. (Id.) Plaintiffs have used their commercial requestor account to access the VR database but have been unable to obtain ownership data for all 35,000 class members. (Id.) On February 16, 2024, Plaintiffs filed a motion to compel DMV to produce computer data in response to Plaintiffs' subpoena. (“MTC,” Dkt. No. 330.) The parties filed a joint stipulation with the MTC, setting forth their positions. (“JS,” Dkt. No. 330-1.) In support of their position, Plaintiffs filed: the declaration of attorney Donald W. Cook (“Donald Decl.,” Dkt. No. 330-1) with attached exhibits (“Donald Exs. A-R,” Dkt. No. 330-1); and the declaration of data analyst Dwight W. Cook (“Dwight Decl.,” Dkt. No. 330-1). In support of its position, DMV filed: the declaration of attorney Lorinda D. Franco (“Franco Decl.,” Dkt. No. 330-1) with attached exhibits (“Franco Exs. 1-12,” Dkt. No. 330-1); and the declaration of DMV manager William Carino (“Carino Decl.,” Dkt. No. 330-1). In the MTC, Plaintiffs argued that the batch process is inadequate to access the information they need because: (1) it will not return historical ownership data for vehicles that have been disposed of as junk or can otherwise no longer be titled; and (2) the batch process cannot return a registered owner's DL/ID number. (See MTC; Dkt. No. 344 at 4.) Plaintiffs sought to compel DMV to write a program capable of retrieving the data Plaintiffs request. (See MTC; Dkt. No. 344 at 4.) *2 On February 27, 2024, DMV filed a supplemental memorandum opposing the MTC. (“DMV Supp. Mem.,” Dkt. No. 331.) In support of the DMV Supp. Mem., DMV filed: the declaration of DMV database administrator Kim A. Rodriguez (“Rodriguez Decl.,” Dkt. No. 331-1); and the supplemental declaration of attorney Lorinda D. Franco (“Franco Supp. Decl.,” Dkt. No. 331-2). On February 27, 2024, Plaintiffs also filed a supplemental memorandum in support of the MTC. (“Pl. Supp. Mem.,” Dkt. No. 332.) On March 15, 2024, after holding a hearing on the MTC, Magistrate Judge Sheri Pym ordered the parties to submit additional memoranda and evidence. (Dkt. No. 341.) On March 29, 2024, Plaintiffs filed their supplemental briefing. (“Pl. Supp. Mem. 2,” Dkt. No 343.) In support of the Pl. Supp. Mem. 2, Plaintiffs filed the supplemental declaration of data analyst Dwight W. Cook. (“Dwight Supp. Decl.,” Dkt. No. 343.) Also on March 29, 2024, DMV filed their supplemental briefing. (“DMV Supp. Mem. 2,” Dkt. No. 342.) In support of the DMV Supp. Mem. 2, DMV filed: the supplemental declaration of DMV database administrator Kim A. Rodriguez (“Rodriguez Supp. Decl.,” Dkt. No. 342-1); the declaration of DMV branch chief Paul Yim (“Yim Decl.,” Dkt. No. 342-2); the declaration of DMV manager Mark Daniel Keskeny (“Keskeny Decl.,” Dkt. No. 342-3); the supplemental declaration of DMV manager William Carino (“Carino Supp. Decl.,” Dkt. No. 342-4); and the second supplemental declaration of attorney Lorinda D. Franco (“Franco Supp. Decl. 2,” Dkt. No. 342-5). On May 21, 2024, Judge Pym granted-in-part and denied-in-part the MTC. (“MJ Order,” Dkt. No. 344.) Judge Pym ordered the DMV to create and run a file pass program to access and produce ownership data for vehicles that can no longer be titled. (Id. at 4-6.) However, Judge Pym denied Plaintiffs' MTC as to DL/ID numbers, holding that the court did “not find that an order compelling DMV to retrieve DL/ID numbers via a file pass or R60 inquiries is warranted.” (Id. at 6-8.) On June 4, 2024, Plaintiffs filed this Motion. (Motion.) In support of the Motion, Plaintiffs filed the declaration of attorney Donald W. Cook. (“Donald Motion Decl.,” Dkt. No. 345.) Plaintiffs request that the Court reverse the MJ Order “to the extent it denied production of the DL/ID numbers” and ask that the Court order DMV to produce the data. (Id. at 5, 14.) On June 17, 2024, DMV opposed the Motion. (“Opposition,” Dkt. No. 348.) In support of the Opposition, DMV filed the declaration of attorney Lorinda D. Franco (“Franco Opp. Decl.,” Dkt. No. 348-1) with attached exhibits (“Franco Opp. Exs. 1-2,” Dkt. No. 348-1). On June 24, 2024, Plaintiffs replied. (“Reply,” Dkt. No. 349.) In support of the Reply, Plaintiffs filed the declaration of data analyst Dwight W. Cook. (“Dwight Reply Decl.,” Dkt. No. 349-1.) II. LEGAL STANDARD A district court has authority to modify or vacate a magistrate judge's pretrial order where it has been shown that the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). The clearly erroneous standard applies to factual determinations and discretionary decisions, while legal conclusions are reviewed to determine whether they are contrary to law. Perry v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). Generally, parties may obtain discovery “that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). In class actions, parties may obtain discovery in aid of the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”).[1] Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 354 (1978); see also Perez v. DirecTv Grp. Holdings, LLC, 2020 WL 3124353, at *2 (C.D. Cal. May 14, 2020). On a motion to compel discovery, the moving party carries the “initial burden of demonstrating relevance.” United States v. McGraw-Hill Cos., Inc., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014). Once relevance has been established, the burden then shifts to the non-moving party to show that discovery should be disallowed and to support its objections with evidence. Id. *3 Under Rule 45, a party may serve a subpoena commanding a nonparty to produce documents. See Rule 45(a). The scope of discovery allowed under Rule 45 is the same as allowed under Rule 26. Miller v. Ghirardelli Chocolate Co., 2013 WL 6774072, at *2 (N.D. Cal. Dec. 20, 2013). However, “non-parties should not be burdened in discovery to the same extent as the litigants themselves” and “[r]equests to nonparties should be narrowly drawn to meet specific needs for information.” Khan v. Rogers, 2018 WL 5849010, at *4 (N.D. Cal. Nov. 6, 2018) (citations omitted). The party issuing the subpoena must demonstrate that “the information sought is relevant and material to the allegations and claims at issue in the proceedings.” Id. “Where discovery is sought from a non-party, the Court should be particularly sensitive to weighing the probative value of the information sought against the burden of the production on the nonparty.” Wi-Lan Inc. v. Research in Motion Corp., 2010 WL 2998850, at *3 (S.D. Cal. July 28, 2010). III. DISCUSSION Plaintiffs contend that Judge Pym erroneously denied their request to compel DMV to produce class members' DL/ID numbers if recorded in the VR database. (See Motion at 5.) They argue that the DL/ID numbers are important for class member identification because they are seeking the current addresses of people whose vehicles Defendants impounded years ago. (Id. at 5.) Pursuant to the subpoena and MJ Order, Plaintiffs will receive names and addresses for class members whose vehicles were impounded in the past, including vehicles which can no longer be titled. (See id. at 5-6; MJ Order at 4-6; JS at 30-31.) However, Plaintiffs assert, some of the addresses are no longer current and many people share a similar name with class members—as such, using names and past addresses is an inefficient method of identifying class members. (See Motion at 5-6.) Because a DL/ID number is a unique identifier, Plaintiffs believe they can run DL/ID numbers in DMV's DL/ID database to find class members' names and current addresses. (See id.) Plaintiffs argue that the MJ Order erred for three reasons: (1) it improperly considered that not all class member records in the VR database include a DL/ID number; (2) it wrongly presumed that DL/ID numbers are not available if a vehicle was transferred; and (3) it ignored that specialized programming can be written at Plaintiffs' expense to retrieve the desired data. (See Motion at 7-8.) The Court addresses these arguments below. A. Standard of Review As a threshold matter, the Court considers the standard of review it must apply. In their Reply, Plaintiffs argue for the first time that the standard of review of the MJ Order is de novo, rather than clear error. (See Reply at 8.) The Court disagrees. First, Plaintiffs are not permitted to raise a new argument in their Reply, especially after they explicitly (and correctly) state in the Motion that the standard of review under Rule 72(a) is clear error. See United States ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”). (See Motion at 5.) Second, Plaintiffs are incorrect in their assertion that this is not a discovery matter because Rule 23(d) controls. (See Reply at 8.) Though Rule 23(d) allows the Court to issue orders related to class notice, Rule 26(b) governs discovery “in aid of the requirements of Rule 23.” See Mier v. CVS Health, 2021 WL 6102518, at *1 (C.D. Cal. Oct. 12, 2021). As such, Plaintiffs' MTC is a discovery matter. Finally, Plaintiffs' reliance on Oppenheimer in their argument for a de novo standard under Rule 23(d) is misplaced. Oppenheimer Fund, Inc., 437 U.S. at 356. In Oppenheimer, the Supreme Court held that “Rule 23(d) ... authorizes a district court in appropriate circumstances to require a defendant's cooperation in identifying the class members to whom notice must be sent.” 437 U.S. at 355 (emphasis added). It is doubtful whether the Court may order a non-party, as opposed to a defendant, to produce class member information under Rule 23(d). See Brewster v. City of Los Angeles, 2019 WL 6620505, at *4 (C.D. Cal. Sept. 5, 2019). Moreover, unlike this case, Oppenheimer did not involve a review of a magistrate judge's existing order. See Oppenheimer, 437 U.S. at 356. It is well-established that a district court has authority to modify or vacate a magistrate judge's order only when the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). *4 Accordingly, the Court reviews the MJ Order for clear error. B. Review of MJ Order Judge Pym denied the MTC as to the DL/ID numbers because “the likely benefit of ordering DMV to create and run a file pass or run R60 inquiries for each individual vehicle is outweighed by the substantial burdens such an order would impose.” (MJ Order at 8.) First, the MJ Order stated that applications for vehicle registration or transfer do not require a DL/ID number—as such, only a subset of entries in the VR database will have a DL/ID number that is available to pull. (See MJ Order at 7.) Plaintiffs argue that this point should have been given no weight, because if “any significant percentage of vehicle owners provided a DL/ID number when titling their vehicle ... that will greatly increase the probability that for those class members Plaintiffs can obtain current contact information.” (Motion at 7.) But Plaintiffs misunderstand the Rule 26(b) and Rule 45 standards. Under both standards, the Court must weigh the probative value of the information sought against the burden of production, and the Court must be especially sensitive to the burden of production on nonparties. Wi-Lan Inc., 2010 WL 2998850, at *3 (“Where discovery is sought from a non-party, the Court should be particularly sensitive to weighing the probative value of the information sought against the burden of the production on the nonparty.”); Fed. R. Civ. P. 26(b)(1) (parties may obtain discovery “that is relevant to any party's claim or defense and proportional to the needs of the case”) (emphasis added). Here, Judge Pym properly weighed the value and burden of producing the DL/ID numbers, finding that the probative value of production was diminished because only a subset of registrations include a DL/ID number. Second, Plaintiffs argue that the MJ Order wrongly presumed that DL/ID numbers are not available in the VR database if a vehicle has been transferred. (Motion at 8.) This point goes further to the probative value of producing the DL/ID numbers. The MJ Order relied upon a declaration of DMV manager William Carino, who attested that “[o]nce the vehicle has been transferred, the prior owner's DL/ID number is no longer stored in the VR database.” (Carino Supp. Decl. ¶ 2.) (MJ Order at 7.) Plaintiffs contend that Judge Pym did not consider the opinion of their programming expert, Dwight W. Cook, who attested that Mr. Carino's claim that the DL/ID data was no longer available was “likely to be false.” (Motion at 10; Dwight Supp. Decl. ¶ 8.) It appears that Judge Pym weighed the testimony of Mr. Carino, who has personal knowledge of and assists with the administration of the VR database, over the testimony of outside expert Mr. Cook, who stated that Mr. Carino's opinion was “likely to be false.” (See Carino Decl. ¶ 1 (emphasis added).) Given the clear testimony presented by DMV in Mr. Carino's declaration, the Court finds that Judge Pym made a reasonable factual determination that DL/ID numbers are not stored in the VR database after vehicle transfers. Such a factual determination is not clearly erroneous and lessens the probative value of ordering DMV to produce DL/ID numbers. See ExxonMobil Oil Corporation v. Southern California Edison Co., 2014 WL 12629698, at *2 (C.D. Cal. Apr. 3, 2014) (“The magistrate judge's factual determinations are affirmed absent clear error.”). *5 Finally, Plaintiffs argue that the MJ Order ignored programmers' testimony that DL/ID numbers could be produced with a specially written program, instead of the file pass or R60 inquiries the MJ Order considered. (See Motion at 8-9; MJ Order at 6-8.) The MJ Order found that the burden of running the file pass and R60 inquiry methods outweighed the benefit, because there is “no guarantee” the DL/ID numbers sought by the file pass are verified or available in the database, and because the R60 inquiry “must be performed for one individual vehicle at a time.” (MJ Order at 7-8.) Plaintiffs now contend that MJ Order ignores a third possible method—the specialized program. (See Motion at 8-9.) But Plaintiffs do not explain how the specialized program would address concerns that some, potentially significant, number of DL/ID numbers are not available in the database to begin with, as vehicle owners may not have provided them upon registration. (See MJ Order at 7-8.) In fact, Plaintiffs concede that the specialized program can retrieve the data, but only “assuming it is recorded in the VR database.” (See Motion at 8 (emphasis added).) Plaintiffs' argument about the specialized program ignores the crux of the MJ Order and of Rules 26(b) and 45—that the burden of developing a program would outweigh the potential, limited benefit. Moreover, though Plaintiffs assert that the specialized program can be written at Plaintiffs' expense, they ignore the various other burdens on nonparty DMV that accompany such an undertaking. (See Motion at 8.) Plaintiffs request that DMV be ordered to find, hire, and presumably supervise a qualified programmer to write a specialized program. (See id. at 12.) DMV would also presumably spend time working with the programmer and Plaintiffs' counsel to ensure the program returns the data requested—something which DMV employees have already spent a significant amount of time doing. (See Carino Decl. ¶ 2.) Given the limitations of the VR database as to DL/ID numbers and the Court's sensitivity to the burden of production on nonparties, the Court finds that the MJ Order was not clearly erroneous in holding that the burden of producing the DL/ID numbers outweighs the benefit. C. Payment of Costs At the end of its Opposition, DMV requests that the Court order Plaintiffs to pay the costs for the development of the file pass program Judge Pym did order—namely, the program to access and produce ownership data for vehicles that can no longer be titled. (Opposition at 7; MJ Order at 4-6.) This request is unrelated to the issue at hand, which deals solely with Judge Pym's denial of the MTC as to DL/ID numbers. (See Motion.) Moreover, the question of whether to shift costs is a discovery matter properly noticed before the magistrate judge. See Fed. R. Civ. P. 45(d)(2)(B)(ii). (See “Standing Order,” Dkt. No. 12 at 3-4.) Accordingly, the Court does not consider DMV's request. IV. CONCLUSION For the foregoing reasons, Plaintiffs' Motion is DENIED. The hearing scheduled for July 8, 2024 is VACATED. IT IS SO ORDERED. Footnotes [1] All subsequent references to “Rule” refer to the Federal Rules of Civil Procedure, unless otherwise noted.