United States District Court, W.D. Washington, Seattle
ORDER REGARDING DISCOVERY DISPUTE
L. ROBART, UNITED STATES DISTRICT JUDGE
10, 2018, pursuant to Local Rule LCR 7(i), the court
conducted a telephonic hearing concerning a discovery dispute
between Plaintiffs Jane Does 1-10 and John Does 1-10
(collectively, “Doe Plaintiffs”) and Defendant
David Daleiden. Prior to the telephonic hearing, the parties
filed short letters with the court describing their dispute.
(See Doe Ltr. (Dkt. # 178); Daleiden Ltr. (Dkt. #
179)); see Local Rules W.D. Wash. LCR 7(i).
Specifically, Doe Plaintiffs seek a protective order
regarding certain written discovery requests that Mr.
Daleiden served upon them. (See Doe Ltr.) Mr.
Daleiden opposes Doe Plaintiffs' request for a protective
order and seeks to compel responses to his written discovery
requests. (See Daleiden Ltr.) Defendant University
of Washington (“UW”) takes no position on the
discovery dispute between Doe Plaintiffs and Mr. Daleiden.
(UW Ltr. (Dkt. # 177).) The court has reviewed the
parties' written materials related to this dispute and
heard the argument of counsel. Being fully advised, the court
GRANTS in part and DENIES in part Doe Plaintiffs' request
for a protective order, but without prejudice to Mr. Daleiden
raising the issue again after his present appeal to the Ninth
first interrogatory, Mr. Daleiden asks Doe Plaintiffs to
“[i]dentify all Plaintiffs.” (Daleiden Ltr. Ex. 1
(Dkt. # 179-1) at 4.) In his second interrogatory, he seeks
“the information redacted and not disclosed in the
requested documents that qualifies as ‘personally
identifying information or information from which [that]
person's identity could be derived with reasonable
certainty.” (Id.) Mr. Daleiden propounds
several other interrogatories and also requests the
production of various documents. (See Id. at 4-5;
Id., Ex. 2 (attaching requests for production).) Doe
Plaintiffs object that Mr. “Daleiden improperly tries
to use civil discovery to circumvent the [court's]
reissued preliminary injunction.” (Doe Ltr. at 1
(citing Reissued PI (Dkt. # 130)).) They also object that the
discovery is not relevant or proportional to the needs of the
case under Federal Rule of Civil Procedure 26(b)(1). (See
id.) The court now considers the parties' dispute.
court first addresses a preliminary jurisdictional issue. On
January 2, 2018, Mr. Daleiden appealed the court's
reissued preliminary injunction. (See 2d Not. of
App. (Dkt. # 147); Reissued PI.) A notice of appeal generally
“confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects
of the case involved in the appeal.” Griggs v.
Provident Consumer Disc., Co., 459 U.S. 56, 58 (1982)
(per curiam). However, “an appeal of an interlocutory
order does not ordinarily deprive the district court of
jurisdiction except with regard to the matters that are the
subject of the appeal.” Britton v. Co-op Banking
Grp., 916 F.2d 1405, 1412 (9th Cir. 1990); see
also Fed. R. Civ. P. 62(a)(1). Accordingly, the Ninth
Circuit's jurisdiction under 28 U.S.C. § 1292(a)(1),
which permits appeals from preliminary injunctions,
“extends only to matters inextricably bound up with the
injunctive order from which the appeal is taken.”
Paige v. State of Cal., 102 F.3d 1035, 1039 (9th
Cir. 1996) (internal citations and quotation marks omitted).
court ordered Doe Plaintiffs to respond to Interrogatory Nos.
1 and 2, Mr. Daleiden would receive through discovery the
material and information that he is prohibited from receiving
by virtue of the court's reissued preliminary injunction.
This fact binds the issues in this discovery dispute
inextricably with the issues on appeal. Indeed, if the court
ordered Doe Plaintiffs to respond to Mr. Daleiden's
discovery requests, such an order would unduly alter the
status of the core question before the appellate panel and,
therefore, exceeds the jurisdictional authority of this court
while the appeal is pending. See KPMG LLP v. Kanam,
No. 3:15-CV-00129-SLG, 2016 WL 7494262, at *2 (D. Alaska Jan.
4, 2016) (declining to rule on a motion for a permanent
injunction because doing so “would unduly alter the
status of the case on appeal and exceeds the jurisdictional
authority of the district court pending the interlocutory
appeal, as it would change the core question before the
court, therefore, grants Doe Plaintiffs' request for a
protective order with respect to Interrogatory No. 1 because
that interrogatory seeks the identity of “all
Plaintiffs” and the disclosure of this information is
not allowed under the reissued preliminary injunction.
(See Reissued PI at 44-45.) The court also grants a
protective order to Doe Plaintiffs concerning Interrogatory
No. 2 to the extent the interrogatory requests the disclosure
of information that the reissued preliminary injunction
prohibits.(See id.) In his letter to the
court, however, Mr. Daleiden represents that, in
Interrogatory No. 2, he “does not request the
information [that was] redacted” pursuant to the
preliminary injunction, but rather only the “sort of
information [that] has been redacted (e.g., ‘office
phone number,' ‘email address,' etc.)”
from the documents at issue in this case. (Daleiden Ltr. at
2.) Accordingly, the court orders Doe Plaintiffs to provide
Mr. Daleiden with the “type of information” that
has been redacted but not the actual redactions
themselves. (See id.) In addition, Doe
Plaintiffs' response to Interrogatory No. 2 or any other
interrogatory must be in pseudonymous form consistent with
the reissued preliminary injunction.
to the remaining discovery requests, the court notes that Mr.
Daleiden's discovery requests are not limited to Doe
Plaintiffs pseudonymously identified in the complaint or in
declarations filed with the court, but rather extend to all
absent class members. (See Daleiden Ltr. Ex. 1 at 2
(“The term ‘all Plaintiffs' means Does plus
all unnamed class members.”).) Discovery of absent
class members is disfavored and Mr. Daleiden has not made any
showing warranting such discovery here. See In re Wash.
Mut. Mortg. Backed Sec. Litig., No. C09-37 MJP, 2011 WL
1789975, at *1 (W.D. Wash. May 9, 2011). Accordingly, the
court also grants Doe Plaintiffs' motion for protective
order to the extent that Mr. Daleiden's discovery
requests seek discovery from absent class members. The court
thus requires Doe Plaintiffs to respond to Mr. Daleiden's
discovery requests on their own behalf and not for all absent
class members. See supra n.2. If appropriate, the
court will revisit this ruling after Mr. Daleiden's
appeal is complete upon the motion of any party. See
Id. (recognizing that “discovery from absent class
members is generally disfavored and will therefore not be
permitted unless (1) the defendant demonstrates a clear need
for the information for trial of those aspects pertinent to
the class claims, (2) the court is satisfied that the
discovery requests are narrowly tailored to their purpose,
and (3) the discovery is not intended to, and will not,
impose undue burdens on the absent class members”)
(internal quotation marks omitted).
with respect to Mr. Daleiden's remaining Interrogatory
Nos. 3-7 and requests for the production of documents, the
court requires Doe Plaintiffs to respond, but only for
themselves in pseudonymous form. Further, any documents that
Doe Plaintiffs produce in response to Mr. Daleiden's
requests for production shall be redacted in the same manner
as the court directed in its reissued preliminary injunction.
(See Reissued PI at 44-45; see also 2/26/18
Order (Dkt. # 155) at 5 (clarifying certain aspects of the
Reissued PI).) If appropriate and on the motion of any party,
the court will revisit this ruling after Mr. Daleiden's
appeal is complete.
described herein, the court GRANTS in part and DENIES in part
the protective order Doe Plaintiffs' request with respect
to Mr. Daleiden's written ...