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Milke v. City of Phoenix

United States District Court, D. Arizona

October 11, 2019

Debra Jean Milke, Plaintiff,
v.
City of Phoenix, et al., Defendants.

          ORDER

          HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT JUDGE

         On September 20, 2019, the Court resolved numerous discovery disputes, including disputes involving Plaintiff's and habeas counsel's emails. (Doc. 583). Shortly after that Order, Plaintiff sought clarification as well as an extension of time to produce documents. (Doc. 584). Defendants oppose that motion, claiming there is no need for clarification. Having reviewed the motion and response, the Court will provide clarification and grant an extension of time.

         A. Plaintiff's Emails

         The Court ordered Plaintiff to “produce all of her non-privileged emails.” (Doc. 583 at 4). Plaintiff seeks clarification whether she must produce “every single non-privileged email Plaintiff has in her possession, custody, or control, that she has ever sent or received (including all spam emails), or whether [she must produce only] non-privileged emails responsive to the City's RFP #4.” (Doc. 584 at 2-3). Neither option is correct.

         The Court's Order contained no mention of limiting Plaintiff's email production to RFP #4 and there is no basis to read that limitation into the Court's order. In fact, Plaintiff's reference to RFP #4 raises concerns about her prior discovery responses.[1] At this point, Plaintiff should have already produced all of her emails that were responsive to RFP #4. But in any event, the Court's Order was not intended to require Plaintiff to produce every single non-privileged email, including spam emails. Rather, Plaintiff must produce every non-privileged email that is relevant to the claims or defenses in this case. This means Plaintiff need not produce “vet appointment reminders” or “spam emails.” (Doc. 584 at 2). But she might need to produce “bank and credit card notifications and statements” given that Plaintiff's financial situation could be relevant to her damages. (Doc. 584 at 2).

         B. Habeas Counsel's Emails

         In ruling which of habeas counsel's email Plaintiff should produce, the Court explained that Defendant's position was that Plaintiff should “review all of Michael Kimerer and Lori Voepel's emails that include the word ‘Milke' and either produce each email or list each email on a privilege log.” (Doc. 583 at 2). The Court agreed and ordered Plaintiff “to produce all non-privileged responsive emails and produce a privilege log regarding any withheld emails.” Plaintiff seeks clarification whether she must produce all of Mr. Kimerer's emails relating to the civil case (containing the word “Milke”) which are not privileged, and to privilege log (and produce for in camera inspection)

all of Mr. Kimerer's emails (containing the word “Milke”) relating to the civil case that are privileged, such as emails with his staff or co-counsel
or
all of Mr. Kimerer's non-privileged emails containing the word “Milke” only with respect to his involvement in the habeas/retrial proceedings (and privilege logging and in camera inspection of any privileged emails from his involvement in the habeas/retrial proceedings).

(Doc. 584 at 3-4). Perhaps unintentionally, the two options proposed by Plaintiff are not accurate. The Court interprets Plaintiff as seeking guidance on whether to produce Mr. Kimerer's non-privileged emails from the habeas/retrial proceedings and the present civil case or only emails from the habeas/retrial proceedings.[2] Plaintiff must produce Mr. Kimerer's non-privileged emails from the habeas/retrial proceedings and the present civil case.

         Plaintiff also seeks clarification whether she must log and produce emails that contain the word “Milke” but are “not about the Milke case at all.” (Doc. 584 at 4). No, Plaintiff need not produce those emails.

         Finally, Plaintiff's counsel contacted the Court regarding the form in which to submit documents for in camera review. Those documents may be submitted in electronic form. The Court understands the documents at issue will be voluminous. While the Court will have possession of the documents, it will not review them until, based on the privilege log, Defendants identify documents where there are genuine questions regarding the documents' status as privileged.

         C. Extension of Time and Resetting of Deadline ...


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