United States District Court, D. Arizona
HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT
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.
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.
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. 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).
Habeas Counsel's Emails
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
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. Plaintiff must produce Mr. Kimerer's
non-privileged emails from the habeas/retrial proceedings and
the present civil case.
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.
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
Extension of Time and Resetting of Deadline ...