1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOWARD JONES INVESTMENTS, No. 2:15-cv-954 DAD-SCR LLC, et al., 12 Plaintiffs, 13 ORDER GRANTING IN PART AND v. DENYING IN PART PLAINTIFF’S MOTION 14 TO COMPEL CITY OF SACRAMENTO, et al., 15 Respondents. 16 17 18 INTRODUCTION 19 In this action, Plaintiffs challenge nuisance abatement actions taken by the Sacramento 20 Police Department that resulted in allegedly unconstitutional evictions. ECF No. 73 (Second 21 Amended Complaint). Plaintiff Howard Jones Investments, LLC (“HJI”), now moves to compel 22 on requests for production (“RFP”), requests for admission (“RFA”), and interrogatories. ECF 23 No. 89. The contested discovery primarily concerns a training video that cannot be located by 24 Defendants, Defendants’ discovery-related retention practices, and training and oversight 25 concerning nuisance-related evictions. The parties filed a joint statement on this discovery 26 dispute pursuant to Local Rule 251 (ECF No. 90) and the Court heard oral argument on October 27 17, 2024. At the hearing, the Court indicated its ruling on the record as to each disputed RFP, 28 RFA, and interrogatory. For the reasons stated at the hearing, and as further explained below, the 1 Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion (ECF No. 89). 2 DEFENDANTS’ OBJECTIONS 3 Defendants raise two broader objections that the Court first addresses. Defendants object 4 to all discovery sought by Plaintiff HJI on standing grounds, arguing that HJI dissolved as a 5 corporate entity in 2018, is therefore no longer a party to this litigation, and thus lacks standing to 6 compel further discovery. HJI counters that it was later reconstituted under a different name and 7 continues to have a stake in this litigation. Defendants are effectively asking the undersigned to 8 rule on a merits issue of great consequence, and to do so on a thin factual record. Defendants cite 9 no authority for the proposition that a standing determination may be adjudicated through a 10 discovery dispute, and there appears to be none. See Kimble v. Specialized Loan Servicing LLC, 11 No. 16-cv-2519-GPC (BLM), 2018 WL 1693197, at *4 (S.D. Cal. April 6, 2018) (“Defendant 12 provides no legal authority for its position that a standing objection relieves Defendant of its 13 discovery obligations. As Plaintiffs point out, Defendant's ‘merits objections do not relieve it of 14 its burden to produce relevant, discoverable materials—particularly where discovery has not been 15 stayed.’”). Defendants cannot refuse to answer discovery due to a standing objection. 16 Defendants also object that several of Plaintiff’s discovery requests were resolved in an 17 earlier action to enforce the California Public Records Act (“PRA”) and are therefore res 18 judicata. However, Defendants do not provide a meaningful factual or legal basis for finding 19 collateral estoppel applies, instead merely claiming that the plaintiff in the PRA action was in 20 privity with HJI and that the PRA action involved the same documents that Plaintiff seeks here.1 21 Defendants do not identify precisely which documents that Plaintiff now seeks to compel were

22 1 Under Federal Rule of Civil Procedure 34(a)(1), a party may request production of relevant 23 documents within the other party’s “possession, custody, or control.” If Defendants have responsive documents, it is inappropriate to object merely because they could also be obtained 24 through a public records request. See Williams v. Lawson, 2023 WL 4642823 (W.D. Wash. 2023) (granting motion to compel and stating: “The Assistant Attorney General should no longer lodge 25 objections on the grounds that [plaintiff] has equal access to information that he would otherwise 26 have to obtain through a public records request.”). While the Court would “not [] compel[]” Defendants “to produce documents that are equally available to plaintiff,” Valenzuela v. Smith, 27 No. 04-cv-0900 FCD DAD P2006 WL 403842 at *2 (E.D. Cal. 2006), Defendants did not make a record of what documents were already produced in the PRA litigation compared to the records 28 that might be disclosed after a reasonable search by Defendants in this litigation. 1 previously produced in the PRA action. Nor do Defendants explain exactly what the state court’s 2 final judgment was as to each disputed category of information in that PRA action. 3 To the extent Defendants Having dispensed with Defendants’ most pervasive objections, 4 the Court proceeds to note its rulings on the particular disputes.

5 DEFENDANTS MUST MAKE A REASONABLE INQUIRY BEFORE

RESPONDING TO DISCOVERY

6 7 As a threshold matter, the Court is troubled by the apparent failure of counsel for 8 Defendants to seek the assistance of any of Defendant City of Sacramento’s personnel in 9 responding to the RFAs. In response to an interrogatory requesting the identification of “all 10 CITY personnel who assisted in responding to the concurrently served Requests for Admission,” 11 Defendants responded “None.” ECF No. 90 at 15-16. Federal Rule of Civil Procedure 36 12 requires a party make reasonable inquiry in answering a request for admission. See FDIC v. 13 Halpern, 271 F.R.D. 191, 194 (D. Nev. 2010) (“Such reasonable inquiry includes an investigation 14 and inquiry of employees, agents, and others, who conceivably, but in realistic terms, may have 15 information which may lead to or furnish the necessary and appropriate response.”) (quotation 16 omitted). A failure to make reasonable inquiry may lead to the court compelling an amended 17 answer or even ordering a matter admitted. See Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 18 1242, 1247 (9th Cir. 1981) (“We hold, therefore, that a response which fails to admit or deny a 19 proper request for admission does not comply with the requirements of Rule 36(a) if the 20 answering party has not, in fact, made ‘reasonable inquiry[.]’”). In complying with this Order, 21 counsel must make a reasonable inquiry as to each RFA to which an amended response is 22 required. 23 RULINGS ON CONTESTED REQUESTS AND INTERROGATORIES 24 RFP 1: Motion to compel denied. Defendants have represented in multiple ways that the 25 training video cannot be located. The Court will not order Defendants to produce something they 26 cannot locate. 27 RFP 2: Motion to compel granted. Litigation retention letters are ordinarily entitled to 28 attorney work product protection. See In re 3M Combat Arms Earplug Products Liability 1 Litigation, Case No. 3:19-md-2885, 2020 U.S. Dist. LEXIS 48461 (N.D. Fla. Mar. 20, 2020) 2 (“The prevailing view is that litigation hold notices are discoverable only if there is a preliminary 3 showing of spoliation.”). Here Plaintiff has shown that spoliation may have occurred as to the 4 video and at least some retention-related discovery is accordingly warranted. 5 RFP 4: Motion to compel granted. Defendants are ordered to conduct a reasonable search 6 as to any responsive documents and disclose any such documents that are not privileged. 7 RFAs 1 and 2: Motion to compel granted. This RFA seeks to authenticate and lay the 8 foundation for documents previously produced pursuant to a PRA request. These are routine 9 RFAs that will streamline further litigation and trial. 10 RFA 4: Motion to compel granted. Defendants’ amended response, which references only 11 documents already in Plaintiff’s possession, suggests that Defendants did not conduct a 12 reasonable inquiry before responding. Defendants shall conduct that reasonable inquiry and serve 13 an amended response. 14 RFA 7: Motion to compel granted. Defendants admit only they are “not in possession” of 15 the video. Defendants shall conduct a reasonable inquiry and serve an amended response that 16 either admits that they did not preserve the video or denies that they did not preserve the video, in 17 which case they should also explain that denial. 18 RFA 9: Motion to compel denied. Defendants’ amended response is sufficient. 19 RFA 10: Motion to compel granted. Defendants response does not reasonably address the 20 subject of the RFA. 21 RFA 11: Motion to compel denied. Defendants’ response is sufficient. 22 RFA 30: Motion to compel denied. Defendants’ response is sufficient. 23 RFA 33: Motion to compel denied. Defendants’ response, which is premised on their 24 denial of any “require[d]” evictions, is sufficient. 25 RFA 34: Motion to compel granted. Unlike RFA 33, Defendants do not reasonably 26 respond to subject matter of the RFA and deny only a pattern and practice, which impermissibly 27 narrows the48 RFA. 28 RFA 41: Motion to compel denied. Defendants’ response is sufficient. 1 RFA 48: Motion to compel denied. Defendants’ amended response is sufficient. 2 RFA 49: Motion to compel denied. Defendants’ response and amended response are 3 || sufficient. 4 Interrogatories 12-13 and 17: Motion to compel granted. Defendants’ objections 5 || concerning state protections for law enforcement personnel records do not apply in federal court 6 || discovery disputes, and at most involve some additional balancing. In any event, answers to these 7 || interrogatories would not reveal information concerning law enforcement personnel records that 8 || is protected from disclosure under state law. 9 Interrogatory 18: Motion to compel granted. In addition to the reason that applies to 10 | Interrogatories 12-13 and 17, answers to this interrogatory would not reveal the contents of 11 | settlement discussions and is not protected under the mediation privilege or Federal Rule of 12 | Evidence 408. 13 Interrogatory 19: Motion to compel granted. 14 Interrogatories 24-25: Motion to compel granted for the same reasons that RFP 2 is 15 | granted. 16 CONCLUSION 17 Plaintiff's Motion to Compel (ECF No. 89) is GRANTED IN PART and DENIED IN 18 | PART as set forth herein. Defendants shall comply with this Order by no later than November 19 | 12, 2024. 20 || Dated: October 21, 2024 21 mh 22 SEAN C. RIORDAN

UNITED STATES MAGISTRATE JUDGE

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