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Risinger v. Soc LLC

United States District Court, D. Nevada

April 4, 2019

KARL E. RISINGER, Plaintiff,
SOC LLC, et al., Defendants.



         I. SUMMARY

         This is a class action involving a dispute over the terms of employment for armed guards hired to work in Iraq. Before the Court are Defendants SOC LLC; SOC-SMG, Inc.; and Day & Zimmermann, Inc.'s (collectively, “Defendants”) objection (ECF No. 316) to an order issued by Magistrate Judge Peggy A. Leen (ECF Nos. 315 (minutes), 317 (transcript)). The Court has reviewed Plaintiff Karl E. Risinger's response (ECF No. 318). For the following reasons, the Court overrules Defendants' objection.


         Plaintiff plans to use the results of a survey to prove the class's damages at trial. (ECF No. 281 at 4.) The survey essentially asked respondents to estimate how often they worked more than six twelve-hour days per week. (See ECF No. 268-7 at 7-8.) In an earlier motion, Defendants sought to exclude the survey results under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). (ECF No. 268 at 2.) The Court did not exclude the survey results altogether but did preclude Plaintiff's expert from extrapolating the survey results to the entire class. (ECF No. 281 at 12.) Defendants once again seek to exclude the survey results, this time based on an alleged discovery violation. (ECF No. 316 at 17.)

         As part of damages discovery, [1] Defendants requested production of (1) “all documents that relate to or support the statements in the signed declarations” that Plaintiff relied on in moving to certify the class; and (2) “all communications from any Class member concerning the hours any Class member worked while employed in Iraq for SOC.” (Id. at 6 (citing ECF No. 244-2 at 5-6).) In response, Plaintiff's counsel produced a Facebook message thread between Plaintiff and various class members that was partially redacted. (See generally ECF No. 244-19.) Plaintiff did not produce any emails between himself and class members. (ECF No. 253 at 7.)

         Defendants moved to compel production of the Facebook messages without redactions (ECF No. 244 at 2), and Plaintiff opposed on the basis of attorney-client privilege. (ECF No. 253 at 7.) Plaintiff argued that the Facebook messages were properly redacted because they were copied and pasted from emails class counsel sent to Plaintiff. (See id.; see also ECF No. 266 at 41.) Defendants also moved to compel production of emails between Plaintiff and class members. (ECF No. 244 at 2.) Plaintiff's counsel responded that Plaintiff was unable to locate any emails. (ECF No. 253 at 20-22.) The Magistrate Judge ordered Plaintiff to make his computer available for forensic examination. (ECF No. 266 at 42-43.)

         A forensics vendor collected thousands of documents from Plaintiff's computer based on a protocol the parties developed, and Plaintiff produced 155 of them as responsive. (ECF No. 316 at 8; see also ECF No. 310-7 (production email from class counsel).) The Facebook thread that was produced earlier was produced again-this time with fewer redactions. (Compare ECF No. 244-19 (“April Production”) with ECF No. 310-8 (“October Production”).) Defendants essentially contend that the messages show a class member-Chris Hedberg-was coached to inflate his survey responses. (ECF No. 316 at 11.)

         Defendants moved for sanctions, requesting preclusion of the survey at trial or reopening of relevant depositions, and monetary sanctions. (Id. at 8.) The Magistrate Judge denied Defendants' requested form of relief but ordered Plaintiff to pay half of the forensic vendor's fees and to produce 1, 206 emails. (ECF No. 317 at 29-30.) The Magistrate Judge did not sanction Plaintiff for redacting the Facebook messages because “on balance . . . what the plaintiff didn't produce is more helpful to the plaintiff than it is to the defense.” (Id. at 29.) The Magistrate Judge found that the Facebook messages “do not suggest . . . manipulation by the plaintiff or willful withholding.” (Id.)


         Magistrate judges are authorized to resolve pretrial matters subject to district court review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case pursuant to LR IB 1-3, where it has been shown that the magistrate judge's ruling is clearly erroneous or contrary to law.”). “This subsection . . . also enable[s] the court to delegate some of the more administrative functions to a magistrate, such as . . . assistance in the preparation of plans to achieve prompt disposition of cases in the court.” Gomez v. United States, 490 U.S. 858, 869 (1989). “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (quotation omitted). A magistrate's pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not subject to de novo review, and the reviewing court “may not simply substitute its judgment for that of the deciding court.” Grimes v. City & County of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991).


         The Magistrate Judge did not clearly err in finding that class counsel lacked bad faith. The messages that were redacted in the April Production but produced in the October Production do not suggest that class counsel manipulated or willfully withheld information harmful to Plaintiff's case.

         In one set of previously redacted messages, the class members were attempting to determine whether an attorney who contacted a particular class member-Jose Villa- represented Defendants or Plaintiff. (See ECF No. 310-8 at 10.) Risinger noted that he could not confirm “if this is our side or theirs” because “Gizer's office says he is out on trial at the moment.” (Id.) Villa responded that the attorney claimed to represent Plaintiff. (Id.) Risinger then requested that the class members refrain from talking to any attorneys until they spoke with class counsel: “Okay, here's the deal . . . these subpoena's [are] coming from SOC's lawyers! DO NOT talk to anyone until our lawyers reach out to you and prepare you for the deposition.” (Id.) A few days later, Risinger reiterated that point: “Notices went out from our side to opt-in. Their side has been sending out subpoenas for depositions. Don't do the depo until you have been contacted by our side prior to the deposition. ...

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