STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jeffrey P. Perrotte is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff's motion to quash subpoenas and request for a protective order, and motion to compel, filed on March 30, 2018, respectively. Defendant filed an opposition on April 20, 2018, and Plaintiff filed a reply on May 16, 2018. (ECF No. 133, 147.)
This case has a rather lengthy procedural history given the length of time for service of process and challenges thereto and the numerous filing by Plaintiff in this action. Plaintiff filed the action on January 7, 2015. On April 13, 2015, the Court screened Plaintiff's complaint and found that Plaintiff stated a cognizable retaliation claim against Defendants Cindy Hebron, Stacey Johnson, and Jean LeFlore, and a cognizable claim for cruel and unusual punishment against Defendants Johnson and LeFlore. (ECF No. 8.) Plaintiff was granted the opportunity to file an amended complaint or notify the Court of his intent to proceed on the claims found to be cognizable. (
On May 4, 2016, Defendant Hebron filed an answer to the complaint.
On August 4, 2016, Defendant Hebron filed a motion for summary judgment for failure to exhaust the administrative remedies. (ECF No. 45.)
On January 18, 2017, the undersigned issued Findings and Recommendations recommending that Defendant Hebron's motion for summary judgment for Plaintiff's failure to exhaust the administrative remedies be granted, and the claims against Hebron be dismissed, without prejudice. (ECF No. 70.) On February 28, 2017, the Findings and Recommendations were adopted in full and the claim against Defendant Hebron was dismissed, without prejudice. (ECF No. 77.)
On February 6, 2017, Defendants LeFlore and Johnson filed an answer to the complaint. (ECF Nos. 73, 74.) On February 7, 2017, the Court issued the discovery and scheduling order. (ECF No. 76.)
On October 12, 2017, Defendants LeFlore and Johnson filed a motion for summary judgment for failure to exhaust the administrative remedies. (ECF No. 99.) Plaintiff filed an opposition on December 28, 2017, and Defendants filed a reply on January 4, 2018. (ECF Nos. 114, 115, 117, 118, 119.)
As previously stated on March 30, 2018, Plaintiff filed a motion to quash subpoenas and request for a protective order. (ECF No. 128.) On this same date, Plaintiff also filed a motion to compel discovery. (ECF No. 129.)
On April 20, 2018, Plaintiff filed a request for issuance of subpoenas, motion for sanctions, and motion to invoke his privilege under the Fifth Amendment. (ECF Nos. 130, 131, 132.)
On May 4, 2018, Plaintiff filed a second request for issuance of subpoenas. (ECF No. 141.)
On May 21, 2018, Plaintiff filed a second motion for protective order and third request issuance of subpoenas. (ECF No. 148.) Defendant filed an opposition on June 8, 2018. (ECF No. 149.)
On July 10, 2018, the undersigned issued Findings and Recommendations recommending that Defendants' exhaustion-related motion for summary judgment be granted and this action proceed only on Plaintiff's retaliation claim against Defendant Johnson for placement of a false CDCR Form 129-B in his central file and placement in the A.S.U., and all other claims and Defendants be dismissed, without prejudice. (ECF No. 157.) The Findings and Recommendations were adopted in full on September 24, 2018. (ECF No. 161.)
On October 15, 2018, Plaintiff filed supplemental objections and a motion to alter the judgment. (ECF No. 167.) Defendant filed an opposition on November 5, 2018. (ECF No. 168.)
On November 27, 2018, Plaintiff's supplemental objections were overruled and his motion to alter the judgment was denied. (ECF No. 169.)
"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). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401.
"On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond [certain] geographical limits . . .; (iii) requires disclosure of privileged or often protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden." Fed. R. Civ. P. 45(d)(3)(A). Further a court may quash or modify a subpoena requiring the disclosures of a trade secret or other confidential commercial information. Fed. R. Civ. P. 45(d)(3)(B)(i).
While irrelevance is not within the list of reasons enumerated to quash a subpoena, it is well settled that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b) and 34.
Defendant submits that Plaintiff is seeking compensatory damages for lost wages because Defendant Johnson caused him to be incarcerated for three years longer than he should have been, and he claims entitlement to lost wages equal to his actual earnings post-release. (Compl. at ¶¶ 84, 89, ECF No. 1; MTQ, ECF No. 128 at 14:5-11.)
On August 28, 2013, Governor Edmund G. Brown, Jr. reversed the parole board's prior grant of parole to Plaintiff. (Declaration of Joel A. Morgan ("Morgan Decl."), ECF No. 134 at ¶ 2, Ex. 1 (August 28, 2013 Revocation of Parole by Governor Edmund G. Brown, Jr.).) As a result, Plaintiff remained incarcerated until February 10, 2015. (MTQ, ECF No. 128 at 7:18-18.) Plaintiff contends that Defendant Johnson is responsible for his additional information. (Compl. at ¶¶ 84, 89, ECF No. 1; MTQ, ECF No. 128 at 14:5-11.)
At issue are three document production subpoenas Defendant issued to Plaintiff's post-release employers seeking compensation information.
Defendant submits that after Plaintiff was paroled, he was employed by a nonprofit organization called Alternatives to Violence and a company called International Services, Inc. ("ISI"). (MTQ, ECF No. 128 at 9:21; 11:16-18; 18:13-15.) Plaintiff has informally produced W2's, but has objected to Defendant's interrogatories and requests for production that seek information regarding Plaintiff's employment, including compensation and work-related travel. (Morgan Decl., ¶ 3, Ex. 2; Responses to Written Discovery.) Defendant served the following three subpoenas: (1) ISI, dated March 7, 2018, seeking "All documents, files, and records regarding your employment of, and compensation to, Jeffrey Perrotte (DOB 7/30/63) from 2015-2017, including, but not limited to, employment and termination agreements, commission/bonus statements, tax forms, travel reimbursements, and records of any business travel for ISI;
Defendant argues that one purpose of the subpoenas is to ascertain if Plaintiff's post-release employment was lawfully undertaken. On December 11, 2016, Plaintiff was reincarcerated for violating his parole. (Morgan Decl., Ex. 3 at 3:9-22; 81:8-22, ECF No. 134.) In relevant part, Plaintiff was found to have violated his parole by being more than 50 miles from his residence without authorization from his parole officer. (
Defendant also seeks evidence that Plaintiff claims was submitted through his website by way of subpoenas to the following entities responsive for the creation and management of that website: (1) Luxury Media Marketing, dated March 2, 2018, seeking "All physical and electronic documents, files, and records in your possession, custody, or control regarding Jeffrey Perrotte and/or
Defendants have not received any objections from the third parties to whom the subpoenas were directed. (Morgan Decl. ¶ 5.)
By seeking compensatory damages arising from Plaintiff's continued incarceration, Plaintiff has put his post-release earnings directly at issue. Plaintiff has produced his post-release W2s, but Defendants are entitled to independently confirm it.
Defendant argues that in his complaint, Plaintiff alleges that "[o]n April 14, 2011, former Warden House Provider, Sue Rudd, emailed Plaintiff's website detailing retaliatory actions by Defendants' Johnson and Leflore [sic] against Plaintiff for engaging in protected conduct." (Compl. at ¶ 47, ECF No. 1.)
In his reply, Plaintiff argues that the request is overbroad and includes electronic communications that are privileged. Plaintiff further indicates that he will turn over the email from Sue Rudd when he is released and can locate it. (Reply at 12-13, ECF No. 147.)
Defendant's subpoenas addressed to Luxury Media Marketing and Jim Cook Designs are overboard and seek information that does not appear relevant. While the Sue Rudd email may be relevant, the subpoena includes information well beyond. Accordingly, Plaintiff's motion to quash the subpoenas addressed to Luxury Media Marketing and Jim Cook Designs is granted as to information sought beyond the email by Sue Rudd.
The Court is vested with broad discretion to manage discovery.
Plaintiff has failed to establish good cause. The mere fact that Plaintiff contends the documents sought are not relevant or that Plaintiff would not like them disclosed, does not demonstrate good cause. Although Plaintiff claims that he was "humiliated" by Defendant's subpoena to ISI, Defendant correctly points out that the company already knew of Plaintiff's criminal history, and participated in Plaintiff's parole board hearings. (MTQ, Ex. B-1, ECF No. 128.) Given the relevancy of the information sought, and the lack of showing of prejudice to Plaintiff, there is no basis for issuance of a protective order.
As previously stated, on April 20, 2018, Plaintiff filed a motion to invoke the privilege under the Fifth Amendment of the United States Constitution, in support of his motion to quash. (ECF No. 132.) Plaintiff seeks to invoke the Fifth Amendment to quash the subpoenas directed to post-release employers.
The Fifth Amendment states that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend V. The Fifth Amendment privilege applies only to self-incrimination.
In his motion for sanctions, filed April 20, 2018, Plaintiff seeks defense counsel, Alec Boyd, to pay him $750.00 and reimburse Plaintiff's employer for actual costs related to the subpoenas issued by Defendants which were intended to threaten, intimidate and harass Plaintiff. Plaintiff also contends that on April 13, 2018, Mr. Boyd "threatened" Plaintiff in an attempt to get him to agree to settle the case for $12,000.00.
Plaintiff submits that on April 11, 2018, Plaintiff's wife, Michelle Churis, was contacted by attorney Joel Morgan from the law firm of Clyde & Co., who asked for Plaintiff to call the firm to discuss the case. On April 14, 2018, Plaintiff called Mr. Morgan and he was placed on speaker phone to converse with Mr. Boyd. Plaintiff contends that Mr. Boyd threatened that if he did not accept the settlement offer, Plaintiff would suffer additional problems with parole and not get out of prison.
Defendant submits the following:
(Opp'n, ECF NO. 142 at 7:1-8:14.) (citations omitted).
Based on the declaration by Plaintiff and his wife, Michelle Churis, there is insufficient factual information to support the argument that he was threatened by Mr. Boyd to settle case, particularly given that Plaintiff denied the settlement offer and offered two counter offers. (Boyd Decl. ¶ 12; Morgan Decl. ¶ 10; Lyon Decl. ¶¶ 23, 27, ECF Nos. 143, 144, 145.) Accordingly, there is no basis to impose sanctions, for the reasons explained above. Accordingly, Plaintiff's motion for sanctions is denied.
In his motion, filed on May 21, 2018, Plaintiff seeks a protective order, an extension of time to file a second reply to Defendant's opposition to his motion for sanctions, and to strike the declaration of Reed Lyon. (ECF No. 148.)
With regard to Plaintiff's request for an extension of time to file a second reply to Defendant's opposition to his April 20, 2018 motion for sanctions, it is denied. Plaintiff is advised that parties do not have the right to file surreplies and motions are deemed submitted when the time a reply is filed or the time to do has expired. Local Rule 230(l). The Court generally views motions for leave to file a surreply with disfavor.
Plaintiff seeks a protective order for every prison generated and county jail generated telephone call that Defendants may attempt based on privacy concerns.
The Court is vested with broad discretion to manage discovery
Plaintiff has not established good cause for issuance of a protective order. As Defendant submits, during the April 13, 2018, telephone call the parties were repeatedly advised that the call was subject to being record and/or monitored. (Lyon Supp. Decl. ¶ 7, ECF No. 150.) Indeed, Plaintiff acknowledges that the calls were monitored and/or recorded in his motion. (ECF No. 148 at 2:11-3:1, 4:9-14.) Plaintiff cannot invoke the confidential martial communication privilege because his telephone communications during his incarceration are not confidential.
Plaintiff seeks to strike the declaration of Reed Lyon submitted in support of Defendant's opposition to Plaintiff's motion for sanctions. (ECF No. 145.)
As set forth in Mr. Lyon's declaration, he was present for the April 13, 2018 telephone call with Plaintiff. (Lyon Supp. Decl. ¶ 2; Morgan Decl., ECF No. 144, ¶ 3; Boyd Decl., ECF No. 143, ¶ 3; Lyon Decl., ECF No. 145, ¶ 2.) Although Mr. Lyon did not introduce himself on the telephone call, does not render his declaration untruthful or invalid. Plaintiff's unsubstantiated belief that Mr. Lyon was not present on the call is also insufficient to strike his declaration. Accordingly, Plaintiff's motion to strike the declaration of Reed Lyon is denied.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's motion to quash the subpoenas is GRANTED IN PART as explained above;
2. Plaintiff's motion for a protective order is denied;
3. Plaintiff's request to invoke the Fifth Amendment right against self-incrimination is denied;
5. Plaintiff's motion for an extension of time to file a second reply is denied;
6. Plaintiff's motion for a protective order is denied; and
7. Plaintiff's request to strike the declaration of Reed Lyon is denied.
