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Local Rules of Civil Procedure

LR 26 - Discovery

(See Fed. R. Civ. P. 26)

LR 26-1 Initial Conference of Counsel for Discovery Planning (See Fed. R. Civ. P. 26(f))

Unless exempted under Fed. R. Civ. P. 26(a)(1)(B) or otherwise ordered by the Court:

  1. The parties must hold a Fed. R. Civ. P. 26(f) initial conference of counsel for discovery planning within 30 days after a defendant files a responsive pleading or a motion under Fed. R. Civ. P. 12.
  2. Electronically Stored Information (ESI). The parties must confer and be prepared to discuss the following during the initial discovery conference:
    1. Storage and Format of ESI: The hardware and software systems each party uses to create and maintain ESI for the purpose of understanding how the ESI has been or can be created, preserved, retrieved, and produced.
    2. ESI Liaison: The identity of a person or persons with the ability to facilitate the preservation, retrieval, and production of each party's ESI throughout the course of the litigation. This liaison may be a party in the action and must be available to participate in any discovery motion hearing involving ESI.
    3. Preservation of ESI: The steps to ensure that discoverable ESI is not deleted, altered, or otherwise made inaccessible, such as sending litigation-hold notices to custodians and suspending or amending routine document-retention policies. Parties are to inform the court about steps that have been or will be taken to protect ESI under this rule. Parties should also be prepared to discuss whether the burden of taking certain preservation steps is not proportional to the needs of the case underFed. R. Civ. P. 26(b)(1).
    4. Scope of Discovery of ESI: Anticipated scope of discoverable ESI and search protocols for retrieving ESI, including consideration of how the proposed scope and search protocols are proportional to the needs of the case under Fed. R. Civ. P. 26(b)(1). Search protocols may include methods to filter or limit the data, such as the application of search terms, date ranges, predictive coding, or other methods of technology-assisted review. In addition, parties must discuss the possibility and feasibility of eliminating duplicative ESI and whether removing the duplicative ESI will occur within a particular custodian's data set or across all data sets.
    5. Requesting ESI: Methods for requesting and searching for responsive ESI, including:
      1. Whether the parties will rely on descriptions of requested documents typically used in paper-document discovery;
      2. Whether a more collaborative process of developing search terms and custodians would better suit the needs of the parties; or
      3. Whether some other method, such as technology-assisted review, may be the most appropriate and least expensive method under each party's circumstances.
    6. Production Format of ESI: Identification of each party's preferences for the format of any ESI, including:
      1. Whether the party intends to request the ESI in its originally created (native) format or some other reasonably usable format;
      2. The effect the requested format will have on the preservation of any metadata identified by the requesting party;
      3. What metadata, if any, the parties intend to request;
      4. Whether producing it would impose unreasonable burdens in light of the needs of the case, and
      5. Whether the metadata is privileged.
    7. Preservation of Privilege: Recognizing that the production of ESI presents special perils and difficulties in preventing the accidental disclosure of privileged information, agreements comporting with Fed. R. Evid. 502, including:
      1. Whether to enter into "claw back" or "quick peek" agreements that specify how privilege should be asserted for ESI;
      2. Procedures for producing ESI that have not been reviewed for privileged information without waiving any assertion of privilege; and
      3. Procedures for presenting any assertion of privilege for any inadvertently disclosed ESI.

LR 26-2 Initial Disclosures (See Fed. R. Civ. P. 26(a)(1))

Unless otherwise ordered by the Court, parties who agree to forgo the disclosures required by Fed. R. Civ. P. 26(a)(1) can do so using the form issued at the time of filing. (See Fed. R. Civ. P. 26(a)(1) and "Discovery Agreement" form.)

LR 26-3 Discovery Motions (See Fed. R. Civ. P. 26 and LR 37)

(a) Document Title (See LR 10-2)

The document title must substantially comply with the following format:

Example 1 PLAINTIFF JOHN SMITH'S MOTION TO COMPEL
Example 2 DEFENDANT ABC CORPORATION'S RESPONSE TO PLAINTIFF JOHN SMITH'S MOTION TO COMPEL PRODUCTION

(b) Word-Count or Page Limits

Without prior Court approval, memorandum may not exceed 10 pages, exclusive of exhibits, unless the memorandum complies with LR 26-3(b)(1) and (2):

  1. Without prior Court approval, the memorandum may not exceed 3,000 words, or in the alternative, ten pages. If the document exceeds the page limit, the party must certify compliance with the word-count limit. This limitation includes headings, footnotes and quotations, but excludes the caption, signature block, exhibits, and any certificates of counsel.
  2. Certificate of Compliance: As required by these rules, the party must file a Certificate of Compliance as to the word-count limit as provided in LR 7-2(b).

(c) No Replies

Unless otherwise directed by the Court, a movant may not file a reply supporting a discovery motion.

(d) Motions to Compel (See LR 37)

(e) Calendaring (See LR 7-1(d) and LR 7-1(e)(4))

(f) Resolving Discovery Disputes by Conference with the Court

Parties encountering a discovery problem may telephone the assigned judge to set up a telephone conference to help resolve the issue(s). If the assigned judge is unavailable, the Court will attempt to have the telephone conference handled by another judge.

(g) Certification of Conferral

The Court will deny any discovery motion that does not contain the certification required by LR 7-1(a).

Practice Tip
If the judge included a requirement under Fed. R. Civ. P. 16(b)(3)(B)(v) to require a court conference before filing a motion to compel, the moving party must request this conference with the Court by contacting the judge's courtroom deputy.

LR 26-4 Motions for Protective Orders (See Fed. R. Civ. P. 26(c))

(a) Standards for Issuance of Protective Orders

A party or person asserting there is good cause for the Court to make an order that would limit access to discovery materials not filed with the Court, or would authorize a party or person to file any materials with the Court under seal, must show with respect to each particular material or category of materials that specific prejudice or harm will result if no order is granted. The showing must be sufficiently detailed to permit the Court in its good cause examination to identify specific factors supporting entry of the order sought. Where the order sought would authorize a party to file materials under seal, the showing also must articulate why, as an alternative to filing under seal, the information sought to be protected could not be redacted. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the requirements of this rule. The showing must be made even if the other party stipulates to the entry of the order.

(b) Proposed Protective Orders

Proposed protective orders must include language that:

  1. Instructs the clerk whether the parties through their counsel are to have remote, electronic access to the documents pursuant to the protective order.
  2. Identifies by name the parties authorized to have remote, electronic access to the documents.

(c) Filing Documents Pursuant to an Existing Protective Order

When a previous court order authorizes the filing of a document or other materials under seal pursuant to a protective order, Registered Users are required to file electronically the document in the manner and process described in the CM/ECF User Manual available on the Court's website. Remote, electronic access to the documents  is allowed in a manner that is consistent with the terms of the protective order, or as otherwise ordered by the Court. The CM/ECF User Manual describes how Registered Users may access these documents electronically.   LR 5-10 requires the filing party to provide a judge's copy of any qualifying electronically filed document.  (See LR 3-7 for documents sealed by an order other than a protective order.)

Practice Tip

Issues related to protective orders are handled under Fed. R. Civ. P. 26(c). Relevant case law includes Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122 (9th Cir. 2003), Kamakana v. United States, 447 F.3d 1172 (9th Cir. 2006), and Phillips v. Byrd, 307 F.3d 1206 (9th Cir. 2002). Parties may amend or supplement the form order as necessary to meet the specific needs of their case, e.g., to address issues regarding the Privacy Act, 5 U.S.C. Sec. 552a. (See form "Forms of Protective Order.")

Two forms of proposed Protective Orders are available on the Court's website on the For Attorneys page, under the Forms tab, and the Forms for Civil Cases menu. The forms of proposed Protective Orders exempt a party from the duty to stamp each page of confidential material with a confidentiality designation when it is not practical to do so. This exemption is intended to provide some flexibility for designating material that cannot be stamped, such as electronically stored information. It will rarely, if ever, apply to traditional paper documents.

LR 26-5 Waiver of Objections

(a) Objections Must be Timely

Failure to object to a discovery request within the time permitted by the Federal Rules of Civil Procedure, or within the time to which the parties have agreed, constitutes a waiver of any objection.

(b) Description Within Reasonable Time

By making a timely objection, a party may preserve its privilege or its protection against production of attorney work product or trial preparation material without simultaneously providing a "privilege log" or a description of the claims of privilege or work product required by Fed. R. Civ. P. 26(b)(5). However, such a "privilege log" or description of the claims of privilege or work product required by Fed. R. Civ. P. 26(b)(5) must be provided within a reasonable time after service of timely objections to a discovery request.

LR 26-6 E-Discovery in Patent Cases (See LR 10-4)

The  Model Order Regarding E-Discovery in Patent Cases governs in all cases in which a claim of patent infringement is asserted. The Court may enter a specific order adopting the Model Order verbatim or tailored for a specific case. Absent a specific order, the Model Order applies in patent cases. The Model Order is available on the Court's website at ord.uscourts.gov.

LR 26-7 Initial Discovery Protocols for Employment Cases Alleging Adverse Action

(a) Introduction and Definitions

  1. Scope: Except for good cause shown, the Initial Discovery Protocols set forth below apply to all employment cases that challenge one or more actions alleged to be adverse except:
    1. Class actions; and
    2. Cases in which the allegations involve only the following:
      1. Discrimination in hiring;
      2. Harassment/hostile work environment;
      3. Violations of wage and hour laws under the Fair Labor Standards Act (FLSA);
      4. Failure to provide reasonable accommodations under the Americans with Disabilities Act (ADA);
      5. Violations of the Family Medical Leave Act (FMLA); and
      6. Violations of the Employee Retirement Income Security Act (ERISA).
  2. Interaction with Federal Rules of Civil Procedure: The Initial Discovery Protocols do not preclude or modify the rights of any party to discovery as provided by the Federal Rules of Civil Procedure or other applicable local rules, but they supersede the parties’ obligations to make initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1).
  3. Definitions: The following definitions apply:
    1. Concerning: The term "concerning" means referring to, describing, evidencing, or constituting.
    2. Document: The terms "document" and "documents" are synonymous in meaning and equal in scope to the terms "documents" and "electronically stored information" as used in Fed. R. Civ. P. 34(a).
    3. Identify (Documents): When referring to documents, to "identify" means either to produce the document or to give, to the extent known: (i) the type of document; (ii) the general subject of the document; (iii) the date of the document; (iv) the author(s), according to the document; and (v) the person(s) to whom, according to the document, the document (or a copy) was to have been sent.
    4. Identify (Persons): When referring to natural persons, to "identify" means to give the person’s: (i) full name; (ii) present or last known address and telephone number; (iii) present or last known place of employment; (iv) present or last known job title; and (v) relationship, if any, to plaintiff or defendant. Once a person has been identified in accordance with this subparagraph, only the name of that person need be listed in response to subsequent discovery requesting the identification of that person.
  4. Instructions:
    1. For this Initial Discovery, the relevant time period begins three years before the date of the adverse action unless otherwise specified.
    2. This Initial Discovery is not subject to objections except on the grounds set forth in Fed. R. Civ. P. 26(b)(2)(B).
    3. If a responding party provides a partial or incomplete answer or production, that party must state the reason the answer or production is partial or incomplete.
    4. This Initial Discovery is subject to Fed. R. Civ. P. 26(e) regarding supplementation and Fed. R. Civ. P. 26(g) regarding certification of responses.
    5. This Initial Discovery is subject to Fed. R. Civ. P. 34(b)(2)(E) regarding form of production.

(b) Production by Plaintiff

  1. Timing: Plaintiff must provide Initial Discovery to defendant within 30 days after such defendant has submitted a responsive pleading or motion.
  2. Documents plaintiff must produce to defendant:
    1. All communications concerning the factual allegations or claims at issue in this lawsuit between plaintiff and defendant.
    2. Claims, lawsuits, administrative charges, and complaints by plaintiff that rely on any of the same factual allegations or claims as those at issue in this lawsuit.
    3. Documents concerning the formation and termination, if any, of the employment relationship at issue in this lawsuit, irrespective of the relevant time period.
    4. Documents concerning the terms and conditions of the employment relationship at issue in this lawsuit.
    5. Diary, journal, and calendar entries maintained by plaintiff concerning the factual allegations or claims at issue in this lawsuit.
    6. Plaintiff’s current resume(s).
    7. Documents in the possession of plaintiff or plaintiff’s agent concerning claims for unemployment benefits.
    8. Documents concerning: (i) communications with potential employers; (ii) job search efforts; and (iii) offer(s) of employment, job description(s), and income and benefits of subsequent employment. Defendant must not contact or subpoena a prospective or current employer to discover information about plaintiff’s claims without first giving plaintiff 30 days’ notice and an opportunity to file a motion for a protective order or a motion to quash such subpoena. If such a motion is filed, defendant will not initiate such contact or serve such subpoena until the motion is ruled upon.
    9. Documents concerning the termination of any subsequent employment.
    10. Any other document(s) on which plaintiff relies to support plaintiff’s claims.
  3. Information plaintiff must produce to defendant:
    1. Identify persons plaintiff believes have knowledge of the facts concerning the claims or defenses at issue in this lawsuit and a brief description of that knowledge.
    2. Describe the categories of damages plaintiff claims.
    3. State whether plaintiff has applied for disability benefits and/or social security disability benefits after the adverse action, whether any application has been granted, and the nature of the award, if any. Identify any document concerning any such application.

(c) Production by Defendant

  1. Timing: Defendant must provide Initial Discovery within 30 days after such defendant has submitted a responsive pleading or motion. When the United States Government is a defendant, it shall provide Initial Discovery within 60 days after it has submitted a responsive pleading or motion.
  2. Documents defendant must produce to plaintiff:
    1. All communications concerning the factual allegations or claims at issue in this lawsuit among or between:
      1. Plaintiff and defendant;
      2. Plaintiff’s manager(s), supervisor(s), and defendant’s human resources representative(s).
    2. Responses to claims, lawsuits, administrative charges, and complaints by plaintiff that rely on any of the same factual allegations or claims as those at issue in the lawsuit.
    3. Documents concerning the formation and termination, if any, of the employment relationship at issue in this lawsuit, irrespective of the relevant time period.
    4. Plaintiff’s personnel file, in any form, maintained by defendant, including files concerning plaintiff maintained by plaintiff’s supervisor(s), manager(s), or defendant’s human resources representative(s), irrespective of the relevant time period.
    5. Plaintiff’s performance evaluations and formal discipline.
    6. Documents relied on to make the employment decision(s) at issue in this lawsuit.
    7. Workplace policies or guidelines relevant to the adverse action in effect at the time of the adverse action. Depending on the case, those may include policies or guidelines that address: discipline, termination of employment; promotion; discrimination; performance reviews or evaluations; misconduct; retaliation; and the nature of the employment relationship.
    8. The table of contents and index of any employee handbook, code of conduct, or policies and procedures manual in effect at the time of the adverse action.
    9. Job description(s) for the position(s) plaintiff held.
    10. Documents showing plaintiff’s compensation and benefits. Those normally include retirement plan benefits, fringe benefits, employee benefit summary plan descriptions, and summaries of compensation.
    11. Agreements between plaintiff and defendant to waive jury trial rights or to arbitrate disputes.
    12. Documents concerning investigation(s) of any complaint(s) about plaintiff or made by plaintiff, if relevant to plaintiff’s factual allegations or claims at issue in this lawsuit and not otherwise privileged.
    13. Documents in the possession of defendant and/or defendant’s agent(s) concerning claims for unemployment benefits unless production is prohibited by applicable law.
    14. Any other document(s) on which defendant relies to support the defenses, affirmative defenses, and counterclaims, including any other document(s) describing the reasons for the adverse action.
  3. Information defendant must produce to plaintiff:
    1. Identify plaintiff’s supervisor(s) and manager(s).
    2. Identify persons known to defendant who were involved in making the decision to take the adverse action.
    3. Identify persons defendant believes have knowledge of the facts concerning the claims or defenses at issue in this lawsuit, and a brief description of that knowledge.
    4. State whether plaintiff has applied for disability benefits and/or social security disability benefits after the adverse action. State whether defendant has provided information to any third party concerning any application by plaintiff for disability benefits and/or social security disability benefits after the adverse action and identify any documents concerning any such application or any such information provided.

LR 26-8 Expert Witnesses

Practice Tip

Use care when dealing with hybrid fact and expert witnesses, and in deciding whether to make the disclosures required by Fed. R. Civ. P. 26(a)(2)(B) for "reporting experts" or the more limited disclosures required by Fed. R. Civ. P. 26(a)(2)(C) for "non-reporting experts."    

In deciding whether a written report is required, the cases often examine how the witness's opinion was formed. For example, factors can include whether a treating physician formed her opinions during the course of treatment, whether she reviewed information provided by an attorney that had not been reviewed during the course of treatment, or whether the opinions went beyond the usual scope of a treating physician's testimony. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819-20, 826 (9th Cir. 2011).    

One opinion in this District, under the facts of that case, stated that when experts are designated as non-reporting experts, the designation "serves to waive all applicable privileges and protections for items they considered that relate to the topic of their testimony," i.e., "the subject of their expert opinions." Pacificorp v. N.W. Pipeline GP, 879 F. Supp.2d 1171, 1213-14 (D. Or. 2012) (the opinion describes the witnesses as "non-retained experts"). Another court in the Ninth Circuit "decline[d] to hold that designating an individual as a non-reporting expert witness waives otherwise applicable privileges and protections in all cases, or even for all cases involving non-reporting employee expert witnesses," but the court did find a waiver in that "particular factual scenario." United States v. Sierra Pac. Indus., No. CIV S–09–2445 KJM EFB, 2011 WL 2119078, at *10 (E.D. Cal. May 26, 2011).

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