Opinion
No. CIV S-03-2591 FCD EFB.
November 19, 2007
ORDER
This case was before the undersigned on November 14, 2007, for hearing on defendants' motion for a protective order. George Acero appeared as defense counsel and Whitney Huston and Monique Olivier appeared as plaintiffs' counsel. Having considered all submitted papers and oral argument, and for the reasons stated at the hearing and as set forth below, defendants' motion is denied.
This action is proceeding on the complaint filed on December 18, 2003. Plaintiffs' claims have been limited by the recent ruling of Judge Frank C. Damrell, Jr. on defendants' motion for judgment on the pleadings. The remaining claims involve plaintiffs' claims under Title IX for ineffective accommodation and emotional distress. Plaintiffs are former female students at the University of California, Davis, who participated in, or planned to participate in, the University's intercollegiate wrestling program. However, actions by the University and its staff later limited wrestling opportunities for women, which gave rise to the present action.
After initiating this action, the parties determined that it was closely related to another action then pending against the University, i.e., Burch v. Board of Regents of the Univ. of Davis, Case No. 2:04-cv-0038 WBS GGH (" Burch"). Because counsel believed the factual and legal issues in both cases were very similar, they agreed to conduct parallel discovery in both actions. Although the cases were never formally designated as related under the Local Rules for purposes of assignment to the same judge, the court-endorsed stipulations by the parties effectively merged discovery in the two cases. More specifically, the parties agreed that they could use documents produced in one case to prosecute or defend either case. This stipulation was approved and entered as an order both by Judge Damrell in this case on October 12, 2004, and by Magistrate Judge Gregory G. Hollows in the Burch case on June 15, 2004.
The order endorsed by Judge Damrell in this case was filed in the Burch case, and appears in the docket as document no. 32.
That stipulated, court-endorsed order provides that the parties
believe that the factual and legal issues in Mansourian v. Regents of the University of California, et al., (E.D. Cal. Case No. Civ. S-03-2591 FCD/PAN) and Burch v. Regents of the University of California, et al., (E.D. Cal. Case No. Civ. S-04-038 WBS/GGH) overlap. The parties also believe that the discovery in the two cases will overlap. Accordingly, . . . the parties, through their counsel hereby stipulate and agree that . . . the parties may use documents produced in one case to prosecute or defend either case, subject to the Federal Rules of Evidence.See Stipulation and Order, Doc. no. 32 in Burch, (as endorsed by Judge Damrell) (emphasis added).
During the Burch case, defendants were ordered by Judge William B. Shubb to produce several documents that they argued were privileged. Judge Shubb then granted in part defendants' motion to reconsider that order, and agreed to conduct an in camera review of the purportedly privileged documents. Upon conducting that review and after considering the briefing by both parties, Judge Shubb ultimately determined that the defendants had waived any privileges as to those documents, and again ordered their production. In making this determination, he relied on the Ninth Circuit's holding in Burlington Northern Santa Fe Rwy. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005), cert. denied, 546 U.S. 939 (2005), and concluded that defendants had waived all privileges given their long, six-month delay in producing a privilege log. Defendants' petition to the Ninth Circuit for relief from the order was denied. The defendants subsequently produced the documents, but did so pursuant to a stipulated protective order governing the terms of production and use of the documents. That order specifically provided that the documents "shall be used only for the purpose of the prosecution, defense, or settlement of this (" Burch") action and the related action for which discovery is merged, Mansourian v. Regents, 03-2591 FCD PAN." The language could hardly be clearer in its contemplation that the documents shall be used in this action.
In Burlington Northern, the Ninth Circuit set forth guidelines for determining waiver where the party asserting a privilege fails to timely produce a privilege log pursuant to Fed.R.Civ.P. 26(b)(5). Burlington Northern, 408 F.3d at 1149. In that case, the Court found waiver where the withholding party was a sophisticated corporation that did not provide a privilege log until five months after its initial responses to discovery requests were due. Id., at 1149-50.
This brings us to the present dispute, where defendants now attempt to re-assert the same privileges as to those very documents ultimately produced in Burch, and to withhold them from use in this action. In essence, defendants ask this court to reverse or disregard Judge Shubb's order regarding waiver of the asserted privileges, and to vacate the subsequent protective order reaffirming the parties' agreement that discovery documents in the other case may be used in this case. Defendants cite to a number of cases to support their argument that they may reclaim the privilege based on the involuntary nature of the production. In particular, defendants rely on Transamerica Computer Co. v. IBM Corp., 573 F.2d 646 (9th Cir. 1978). The cases they rely on address the accidental or inadvertent disclosure or production of privileged documents. They have no application here.
In Transamerica Computer the Ninth Circuit reviewed the district court's order requiring accelerated production of over 17 million documents, which resulted in the advertent disclosure of privileged documents. The Court wrote that "under the specific circumstances of the accelerated discovery proceedings . . ., [the producing party's] inadvertent document . . . of some privileged documents does not constitute a waiver . . ., for that production was made without adequate opportunity to claim the privilege." Id., at 651. The court's conclusion regarding waiver was contingent upon the producing party's lack of an adequate opportunity to claim it. Id., at 652.
Here, the documents were not accidentally released. They were produced pursuant to a court order after the defendants litigated and lost a disputed discovery motion seeking the production of the documents. Moreover, unlike the party in Transamerica Computer, defendants here, in the context of the Burch case proceedings, had numerous opportunities to assert privilege as to the contested documents. Specifically, defendants had previously identified the purportedly privileged documents but withheld them for months without producing a privilege log. They were ordered to produce them, but obtained reconsideration of that order. When, upon further review, production was again ordered defendants had the opportunity to appeal to the Ninth Circuit. Moreover, the district judge in Burch allowed defendants to produce the documents pursuant to a protective order defendants themselves helped fashion, and which explicitly contemplated use of the documents in this case.
Defendants' attempt to liken these circumstances to the inadvertent disclosure that occurred in Transamerica is unavailing. Defendants shall be bound by the terms of the previously entered protective orders in this action and in the Burch.
Accordingly, defendants' motion for a protective order deeming the documents unusable in this litigation is denied.
SO ORDERED.