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Ortega v. New Mexico Legal Aid, Inc.

United States District Court, D. New Mexico

November 14, 2019

MINA ORTEGA, Plaintiff,
v.
NEW MEXICO LEGAL AID, INC. et al., Defendants.

          ORDER ON DISCOVERY MOTIONS

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the following discovery motions: (1) New Mexico Legal Aid's Motion for a Protective Order (Doc. 103) (“Motion for Protective Order”), filed July 23, 2019; (2) Plaintiff's Motion to Compel Responses to Plaintiff's Discovery Requests to Union (Doc. 120) (“Motion to Compel Union”), filed August 20, 2019; (3) Plaintiff's Motion to Compel Responses to Plaintiff's Discovery Requests to NMLA (Doc. 121) (“Motion to Compel NMLA”), filed August 26, 2019; and, (4) Plaintiff's Motion to Shorten Time for Deposition or Alternatively for Extension of Time to Take Depositions (Doc. 160) (“Motion for Extension”), filed October 21, 2019.

         The Court, having reviewed the pleadings, the record, and the relevant law, having heard the arguments of Plaintiff and defense counsel at a hearing on November 7, 2019 (Doc. 172), and for the reasons stated on the record at the hearing and further described in this Order, FINDS that Plaintiff's Motion to Compel Union, Plaintiff's Motion to Compel NMLA, and NMLA's Motion for Protective Order are each well-taken in part and should be GRANTED IN PART and DENIED IN PART as set forth below. The Court further FINDS that Plaintiff's Motion for Extension should be GRANTED IN PART, TAKEN UNDER ADVISEMENT IN PART, and DENIED IN PART.

         Pursuant to Federal Rule of Civil Procedure 33, a party may serve on any other party interrogatories “relat[ing] to any matter that may be inquired into under Rule 26(b).” Fed.R.Civ.P. 33(a)(2). Similarly, a party may request that any other party produce designated documents or electronically stored information (“ESI”) in the other party's possession, custody, or control that concern any matter within the scope of Rule 26(b). Fed.R.Civ.P. 34(a). Rule 26(b), in turn, permits a party to “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). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

         Factors the Court should consider in determining whether discovery is “proportional to the needs of the case” include:

the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Id. “The court's responsibility, using all the information provided by the parties, is to consider these . . . factors in reaching a case-specific determination of the appropriate scope of discovery.” Fed.R.Civ.P. 26(b)(1), 2015 Amendment, Advisory Committee Notes.

         1. Plaintiff's Motion to Compel Union (Doc. 120)

         In light of the foregoing standards, the Court GRANTS Plaintiff's Motion to Compel Union in the following respects:

         a. In her Requests for Production Nos. 1 and 2 to the Union, Plaintiff seeks documents in the possession, custody, or control of Defendant Siempre Unidos en Progreso, a unit of National Organization of Legal Service Workers/UAW Local 2320 International United Auto Workers, AFL-CIO (“Union”) regarding her union grievances, including documents regarding the 2014-2016 mediation and arbitration proceedings regarding her discharge. However, Plaintiff sought to exclude from production “[c]onfidential documents or materials, ” which she defined as

documents . . . concerning private and confidential conversations by and between the Union (as representative of the grievant) and Plaintiff (as the grievant) in the nature of “attorney-client privilege” which are not intended for the ears of the adverse party - NMLA, the employer, including its director, former director, and its staff, whether managerial or supervisory staff, and non-managerial or non-supervisory staff.

(Doc. 120 at 16.) The Union objected to Plaintiff's attempted exclusion of confidential documents and materials on the grounds that her definition was ambiguous and overbroad and Plaintiff seeks an order striking the Union's objection.

         The Court agrees with the Union's objection and will deny Plaintiff's motion asking that it be stricken. Plaintiff's definition of confidential documents and material is not limited to privileged attorney-client communications. Rather, it is vague, confusing, and overbroad in scope and places a burden on Union counsel to guess at what might fit within it. Plaintiff's briefing has failed to alleviate this guessing game or to establish any basis for broadly claiming an attorney-client privilege for all private or confidential communications between her and Union representatives, whether attorneys or not, that she intended to keep from “the ears of the adverse party” at the time of the communication. Nor does her definition seek to exclude only attorney-client communications made for the purpose of facilitating the provision of professional legal services to her. To the extent that Plaintiff has a valid claim of attorney-client privilege covering some communications between her, as a client, and Union representatives who are attorneys, that were made for the purpose of facilitating the provision of professional legal services to her, and that the Union has produced or does produce to her and New Mexico Legal Aid, Inc. (“NMLA”) in response to Requests Nos. 1 and/or 2, Plaintiff may file a motion seeking a protective order demonstrating both that a valid attorney-client privilege applies and that she has not waived the privilege by placing those communications directly at issue in this case.

         However, the record reflects that the Union has not produced all of the discoverable documents responsive to Requests Nos. 1 and 2 that should be in its possession, custody, or control. Thus, the Court grants Plaintiff's Motion to Compel Union to the extent that the Union is hereby ordered to (i) determine what documents regarding the 2014-2016 mediation and arbitration proceedings it has in its possession, custody, or control, where it has stored them, and what steps it has taken to ensure that it has produced them to Plaintiff, and (ii) supplement its discovery responses with one or more declarations describing its findings on these points, as well as any additional responsive, discoverable documents it has been able to locate, by Friday, November 15, 2019. As with all parties, the Union has a continuing duty to supplement its responses pursuant to Rule 26(e).

         In addition, for the reasons discussed on the record at the November 7, 2019 hearing, NMLA is ordered to forward to Plaintiff, in the form and manner most convenient to NMLA's counsel, the e-mail NMLA's counsel sent to the Union with NMLA's 200-page arbitration motion to dismiss and exhibits attached.

         b. In her motion, Plaintiff also challenges the Union's general objections and conditions. As a rule,

[a] general objection to a request for production which does not identify the documents to be withheld but states, for example, merely that the responding party objects to the production of privileged documents is entirely inadequate. A response to requests for production must clearly set forth the specifics of the objection and how that objection relates to the documents being demanded. The burden is ...

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