DAVID C. NYE, Chief District Judge.
Pending before the Court is Plaintiff Steve Tanner's Motion requesting ECF Notifications (Dkt. 41) and Motion to Compel (Dkt. 42). Having reviewed the record and briefs, the Court finds that the facts and legal arguments are adequately presented. Accordingly, in the interest of avoiding further delay, and because the Court finds that the decisional process would not be significantly aided by oral argument, the Court will decide the Motion without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
Idaho Fish and Game ("IFG"), a government agency, utilizes wildlife check stations to manage Idaho's wildlife resources. At these wildlife check stations, IFG officers stop all vehicles passing through and inquire if the driver and/or passengers have been hunting, fishing, or trapping. If the answer is no, the officers ask no further questions and the vehicle proceeds on its way. These stops are rarely longer than a few seconds. If the answer is yes, the officers spend a few minutes collecting data, receiving public input, and, if necessary, enforcing state laws that pertain to the management and conservation of wildlife resources.
In the early evening of November 18, 2017, Tanner was traveling southbound on Meadow Creek Road, located in Boundary County. At that time, Defendants Lucas Swanson, Josh Stanley, and Brian Johnson, employees of IFG, were operating a wildlife check station on Meadow Creek Road. As Tanner arrived at this station, he proceeded around it without stopping. Defendants Swanson and Stanley pursued Tanner in their patrol vehicle and arrested him for failing to stop at the check station.
"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." Fed. R. Civ. P. 26(b)(1). If a party served with discovery fails to adequately respond, the serving party may file a motion to compel pursuant to Federal Rule of Civil Procedure 37(a). A court has broad discretion in deciding whether to compel discovery. Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1211 (9th Cir. 2002).
As an initial matter, Tanner requests Notice of Electronic Filings ("NEF") and the ability to e-file documents.
Typically, the Court does not send NEF to pro se parties, neither does it allow pro se parties to e-file documents.
The Court now turns to Tanner's Motion to Compel. In this motion, Tanner makes several arguments regarding a variety of IFG's responses. The Court will address each in the order Tanner argues them.
In this discovery request, Tanner seeks to establish Swanson as the person who created certain audio recordings. Swanson admitted that the conversations were recorded but does not admit whether he was the one who recorded any of them. In Tanner's opinion, this response is inadequate, and the Court should deem it as admitted.
The Court understands Swanson's error, but determines that the response was inadequate as it does not directly answer Tanner's request. Thus, the portion of Tanner's motion that relates to Swanson's Response to Request for Admission No. 45 is GRANTED in PART and DENIED in PART. The Court will not order that the matter is admitted but elects instead to order an amended answer. Fed. R. Civ. P. 36(a)(6). Swanson is hereby ordered to amend his response and must admit or deny whether he recorded the incident at Three Mile Gas Station.
In this request, Tanner seeks all documents as to the time, date, and location of all IFG game check stations that were classified as an "ALL traffic stop" from September 25, 2013 to May 1, 2019.
Tanner acknowledges that Schriever has provided these documents but makes two separate arguments against them. First, Tanner believes that Schriever's objections are improper because the breadth and the proportionality of his request are appropriate. Second, Tanner feels that the responses are lacking and seeks independent certification that Schriever has complied with his discovery request. Considering how Tanner uses these arguments throughout his motion, the Court will analyze them separately here.
Both the Court and Tanner view this case as one dealing primarily with Tanner's rights under the Fourth Amendment.
For example, in one of Tanner's requests he seeks IFG's policies regarding the wildlife check stations from 1975 to the present day. Though this request will lead to more facts, Tanner's success in this case does not rely on what IFG's policies were nearly forty-five years ago. The issue here is not how many times IFG may have violated Idahoans' rights over the past forty-five years, but if IFG's practice of stopping non-sportsmen violated constitutional rights at all. Whether IFG utilized 10,000 checkpoints or one, Tanner must show that when he was stopped his constitutional rights were violated. Tanner does not allege—nor could he—that IFG stopped him at every one of these checkpoints from September 25, 2013 to May 1, 2019. By including large year ranges or asking for "all" documents, of which very few, if any, are relevant to himself, Tanner runs the risk of pushing his requests outside the scope of discovery.
Similarly, Tanner's repeated insistence on independent verification that IFG has complied with his discovery requests is unnecessary. Throughout his motion, Tanner continually questions the scrupulousness of IFG's searches and disclosures. He relies on language in a D.C. Circuit case to support his position: "It is elementary that an agency responding to a [Freedom Of Information Act] request must conduct a search reasonably calculated to uncover all relevant documents, and, if challenged, must demonstrate beyond material doubt that the search was reasonable." Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (internal quotations omitted). As additional authority, Tanner also relies on the Court's Discovery Plan where the Court ordered each party to "identify an ESI Liaison who is responsible for and knowledgeable about (or has access to a person knowledgeable about), that party's ESI." Dkt. 39, at 7. He points out that IFG has not identified an ESI Liaison as required, and IFG admits they have not.
This is an opportune time for the Court to pause its analysis and remind both parties that the Court expects all parties, whether represented or not, to comply with its orders. As IFG does not dispute that they have not identified an ESI Liaison, the Court hereby orders IFG to identify an ESI Liaison consistent with the Discovery Plan.
Tying this order back to Tanner's argument, requiring IFG to identify an ESI Liaison is not the same as requiring IFG to employ a certified ESI forensic examiner. Tanner urges that the only way to be satisfied with IFG's responses is if a certified ESI forensic specialist searches all computers, cell phones, and other electronic devices in IFG's possession. That is simply not how discovery works. Though it is understandable why Tanner may feel IFG is withholding information, after reviewing the briefs and the record, nothing the Court is aware of causes it concern over the way IFG has responded to Tanner's discovery requests. Objections of the type Defendants make here are common in litigation. The mere presence of an objection to a discovery request does not trigger a need to examine the objecting party's ability to respond to the request.
As such, the Court at this time will not require any sort of independent certification regarding the discovery that the parties have already completed. Furthermore, the Truitt case Tanner relies on deals with requests under the Freedom of Information Act, not litigation discovery requests. The Court declines to adopt a baseline standard requiring parties, when challenged, to demonstrate beyond material doubt that the search was reasonable with regard to litigation discovery requests.
Returning now to this specific request, the Court concludes that Schriever's responses were appropriate. After making a common objection to the discovery request— which the Court concludes is applicable—Schriever responded by providing Tanner with the information he requested. Rather than producing all documents as to the time, date, and location related to each of the dozens of IFG check stations, Schriever compiled a list of check stations, including the date and location of each station, as well as whether or not the check station was an "all traffic stop."
To summarize, the Court concludes Schriever's responses to the relevant requests were proper. Additionally, the Court declines Tanner's request for some type of certification that Schriever and IFG have truly sent all the documents in their possession. As such, the portion of Tanner's motion that relates to Schriever's Responses to Requests for Production 25 and 26 is DENIED.
Here, each of the requests generally seek the same information. Likewise, each of the corresponding objections is similarly based. In these requests, Tanner seeks documents, emails, notes, and related types of communication that reference himself or any pseudonym
As the Court has already discussed the proportionality of the case and the need for ESI or other verification, it suffices here to say that the Court again finds the request is disproportional to the needs of the case and that there is no need for any type of verification. In addition, the Court agrees with Schriever and Moore that this request is vague. It is one thing to request a party to search for every email or document that includes a person's name—proportionality objections aside—but it is completely different to further require that party to guess as to any pseudonym or nickname that person has and search for that as well. Neither Schriever nor Moore could determine every pseudonym that has been used to describe Tanner or his arrest at the Meadow Creek game check station. Instead, they used every term suggested by Tanner. The Court concludes that this action was appropriate.
Schriever and Moore also objected based on the attorney-client privilege. Notwithstanding, they provided Tanner with the information he requested. This leaves the Court uncertain as to whether Schriever and Moore withheld certain documents based on the privilege or disclosed everything they found regardless of the privilege.
With that in mind, the Court requires Schriever and Moore to disclose to Tanner whether any of the documents or emails from this request were kept on the basis of the attorney-client privilege. If they did not withhold any documents based on this privilege, then they need not take any further action. If either Schriever and/or Moore did withhold documents based on this privilege, however, then they must appropriately document them on a privilege log and disclose it in compliance with Federal Rule of Civil Procedure 26(b)(5)(A) and this Court's Discovery Plan.
In sum, Tanner's request is vague and disproportional to the needs of the case. Schriever and Moore's response was appropriate to the request, but they must disclose whether any of the documents or emails they obtained in their search were withheld based on the attorney-client privilege and must further document those on a privilege log, if applicable. Thus, the portion of Tanner's motion that relates to Schriever's Response to Request for Production 1 and 2, Interrogatories 1 and 2, and Moore's Response to Request for Production 1 and 2 is GRANTED in PART and DENIED in PART.
Here Tanner seeks the IFG check station policies for each corresponding year from 1975 to the present day. Schriever believes that this request is ambiguous and disproportionate to the needs of the case. Just as with the other requests, though, Schriever searched for and produced documents anyway. He produced policies from the year 2000 to the present day but claims that he could not locate any policies from 1975-2000.
Tanner makes the same objections to Schriever's response here—that the documents produced are insufficient and someone needs to verify that Schriever searched and provided everything. The Court, incorporating its reasoning from above, finds that this request is overbroad and disproportionate to the needs of the case. Additionally, there is no need for verification that Schriever really did perform a reasonable search. Thus, portion of Tanner's motion that relates to Schriever's Responses to Request for Production 37-40 is DENIED.
In this request Tanner seeks copies of Swanson, Stanley, and Johnson's respective daily enforcement logs on various dates in November 2010, November 2014, and November 2017. These defendants responded by providing documents that appear to be daily enforcement logs for the corresponding dates. Tanner takes issue with the word "summary" that appears at the top of some of the pages, believing that this word indicates missing information and that these defendants are withholding something.
The Court does not share Tanner's belief regarding any withholding but does share his concern that there might be information missing. As counsel for these defendants did not respond to Tanner's arguments here, the Court does not know whether the documents provided are in fact daily enforcement logs or if they are summaries of them. Thus, the portion of Tanner's motion that relates to Swanson, Stanley, and Johnson's daily enforcement logs is GRANTED in PART and DENIED in PART. These defendants must supplement their responses by disclosing to Tanner whether or not the provided documents were their respective daily enforcement logs or just summaries. If the latter, defendants must also provide their actual daily enforcement logs for those dates. If defendants no longer have the relevant daily enforcement logs, they must explain why they are unable to produce the logs.
Tanner requested Stanley and Johnson to admit that Meadow Creek Road is a twenty-four foot wide paved roadway with shoulders. Stanley admitted that he has not measured the width of the roadway, but that it appears to be twenty-four feet wide at the location the defendants operated game check stop in question. Johnson denies the request because he does not know the width of the road.
The Court agrees with Stanley and Johnson that these responses are more than fair. For whatever reason, Tanner seeks to establish that Meadow Creek Road is twenty-four feet wide, paved, and has shoulders. Tanner does not, however, specify any point on Meadow Creek Road for measurement. Neither Stanley nor Johnson know the width of the road, which is what they stated in their responses. Notwithstanding, Stanley admits that the road appears to be twenty-four feet wide at the location where they stopped Tanner. For all intents and purposes, this seems to meet the substance of Tanner's request.
If, on the other hand, Tanner is requesting to know the width of Meadow Creek Road in its entirety, the Court finds that it would be unreasonable to require Stanley and Johnson to measure the width of Meadow Creek Road, a road that runs for nearly 25 miles through Kootenai National Forest, in its entirety. Thus, the portion of Tanner's motion that relates to Stanley and Johnson's Responses to Requests for Admission concerning the width Meadow Creek Road is DENIED.
Tanner requests Schriever to admit to certain legal interpretations of Idaho Code section 36-1201. For example, Request for Admission 9 states "Admit that Idaho Code 36-1201 (EXHIBIT X) only requires fishermen, hunters, and trappers to stop at game check stations."
It appears that Tanner wants the Court to require Schriever to admit or deny free from any objections. The Court will not indulge. Notwithstanding Schriever's objections, he denied Tanner's request for admission. Unless Schriever makes a renewed objection at some later point, he is bound to that answer. The Court finds there is no need at this point— substantively or procedurally—to require Schriever to forgo his objections. Thus, the portion of Tanner's motion that relates to Schriever's Response to Request for Admission 9-14 is DENIED.
Lastly, Tanner propounded more discovery requests on Schriever to which Schriever has not yet responded.
Though Schriever's response to Tanner's motion implies he will be objecting to Tanner's third and fourth requests for documents, that issue is not properly before the Court now. It would be premature for the Court to rule on the sufficiency of Schriever's response when the Court does not know what Schriever's response will be.
The parties may, though, use the remainder of this decision as guidance for any future discovery disputes. Though an analysis of the sufficiency of any discovery request and its accompanying response is unique and fact-driven, the analysis contained in this order is applicable to all discovery requests in this case. Should the parties again disagree over the proportionality of a request or the need for independent verification, they should refer to this decision before involving the Court.
IT IS HEREBY ORDERED THAT:
