The Santa Monica Malibu Unified School District is Attempting to Intimidate Witness’ Through Motions To Compel and Filing False and Malicious Vandalism Charges Against Parents of Malibu Schools

PARENTS VINDICATED FROM DISTRICT’S FALSE CLAIMS:

District Attorney Determines No Crime in Sampling Toxic Caulk

The Santa Monica-Malibu Unified School District’s latest attempt to intimidate their critics and suppress evidence of widespread PCB contamination at Malibu schools failed when the Los Angeles District Attorney’s office rejected SMMUSD’s criminal complaint against parents who allegedly took small samples of building materials to test for toxic chemicals to protect their children.

A November 25, 2015 letter from L.A. County District Attorney Jackie Lacey stated the office has formally declined to file charges. A follow-up email from the D.A.’s office clarified that no evidence of vandalism had been found on the campus of either Juan Cabrillo Elementary School or Malibu High (Malibu Schools). The D.A.’s email recognized that taking samples was merely “attempting to determine how many PCBs were in the molding” and not an intent to destroy. The email also stated the extent of damage did not appear to meet the required $400 threshold for a felony charge, directly conflicting with the district’s claims of tens of thousands of dollars in damages.

“Despite the district’s best attempt to cause harm to me and the organization, truth and justice prevailed,” said Jennifer deNicola, President of America Unites for Kids, who was named in the investigation. “The district’s actions were malicious from the start as they knew that no vandalism had occurred. For ten days before contacting the police, Lyon, Lieberman, Maez and the Pillsbury lawyers orchestrated a legal strategy to attempt to suppress new evidence of PCB contamination from the Federal Court. These 31 new tests prove the district is in clear violation of Federal law and more importantly putting kids at risk. This latest act by the district –knowingly filing a false police report to put innocent people in jail– in addition to the $7 million they have spent remind us all how far they are willing to go to continue to hide the widespread PCB contamination from parents and teachers.”

On October 28th, 2015, district officials filed a complaint to the Lost Hills Sheriff Department that parents had committed trespassing and vandalism when allegedly taking samples of 62-year old caulking—samples the size of toothpicks–presumed and then confirmed to contain toxic PCBs in violation of Federal law. Based on documents recently filed in Federal court, the district waited to report this purported crime of vandalism for ten days and only after the district’s law firm, Pillsbury, interviewed teachers themselves, a practice that can influence a witness. The District initially reported “damages” in the amount of $1500, but then continued to press the Sherriff and steadily increased the amount to more than $100,000, raising this issue into the category of a serious felony, yet the Los Angeles District Attorney’s email stated they could not substantiate even $400.

PCBs (polychlorinated biphenyls) are a Class I carcinogen used in school building materials between 1950 and 1979 and initially found at the Malibu Schools in 2009. They were banned by Congress in 1976 because of their substantial risk to human health. Since 2004, 180 Countries have ratified the Stockholm Convention to eliminate PCBs from use. PCBs have been associated with a long list of human ailments and are especially harmful to children, including cancer, thyroid dysfunction, diabetes, autism, lower IQ and disruption of the neurological, endocrine, reproductive and immune systems.

In March 2015, America Unites for Kids and PEER filed legal action against SMMUSD for violation of the Toxic Substance Control Act which requires all building materials with PCBs in excess of 50 parts per million to be removed and disposed of as hazardous waste. Last month, America Unites provided U.S. Rep. Ted Lieu (D-CA) with 31 more PCB results from Malibu schools showing violations of Federal law. Trial is set for May 17, 2016.

“This latest action by the school district and their corporate lawyers aims to intimidate parents on a national level and silence concerns that their own kids might be sitting in toxic classrooms. But like the story of David and Goliath, Goliath has failed,” said deNicola. “Parents who seek the truth to protect their children should never be threatened or intimidated by a school district.”

Current Illness at Malibu Schools with Widespread PCB Contamination

• 6 teachers with thyroid cancer;

• 4 alumni (28-year-old)with thyroid cancer;

• 1 current student with thyroid disease, possible thyroid cancer

• 25 teachers with thyroid disease (including 14 of 30 Malibu Middle School teachers);

• 9 alumni in their 20s with thyroid disease;

• 1 alumni (22-year-old) with environmentally induced melanoma;

• 2 current teachers with environmentally induced melanoma;

• 1 teacher hospitalized from an environmentally-induced rash;

• 1 current student with an environmentally-induced rash

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4844-1434-4748.v1

JOINT STIPULATION RE DEFS’ MOTION TO COMPEL
FURTHER RESPONSES IN DISCOVERY
Case No. 2:15-CV-02124
PILLSBURY WINTHROP SHAW PITTMAN LLP
MARK E. ELLIOTT (SBN 157759)
mark.elliott@pillsburylaw.com
JULIA E. STEIN (SBN 269518)
julia.stein@pillsburylaw.com
CAROLINE L. PLANT (SBN 247358)
corrie.plant@pillsburylaw.com
725 South Figueroa Street, Suite 2800
Los Angeles, CA 90017-5406
Telephone: (213) 488-7100
Facsimile No.: (213) 629-1033

Attorneys for Defendants
SANDRA LYON, ET AL.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

AMERICA UNITES FOR KIDS, et
al.,

Plaintiffs,

vs.

SANDRA LYON, et al.,

Defendants.

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No. 2:15-CV-02124
DISCOVERY MATTER

JOINT STIPULATION
REGARDING DEFENDANTS’
MOTION TO COMPEL
FURTHER RESPONSES IN
DISCOVERY

Hearing Date: Jan. 11, 2016
Time: 10:00 am
Place: 255 East Temple Street
Dept. 690
Judge: Wistrich

Complaint Filed: Mar. 23, 2015
Discovery Cutoff: Mar. 7, 2016
Pretrial Conf.: Apr. 15, 2016
Trial Date: May 17, 2016

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Case No. 2:15-CV-02124
TABLE OF CONTENTS

Page
I. DEFENDANTS’ INTRODUCTORY STATEMENT ………………………. 2
A. Discovery Regarding Plaintiffs’ “Independent Tests” ……………… 2
1. Relevancy …………………………………………………………………. 2
2. Vagueness, Ambiguity, Overbreadth,
Oppressiveness, and Undue Burden …………………………….. 2
3. Attorney-Client, Attorney Work Product, and
Common Interest Privileges ……………………………………….. 2
4. First Amendment ………………………………………………………. 3
B. Communications Regarding PCBs at Other Schools. ………………. 3
C. Discovery Regarding PEER’s Standing. ………………………………… 4
II. PLAINTIFFS’ INTRODUCTORY STATEMENT. …………………………. 5
A. The Identities Of Individuals Who Took The Independent
Samples ……………………………………………………………………………. 5
B. Communications Regarding PCBs At Other Schools ……………… 7
C. Identities Of Peer’s Trial Witnesses …………………………………….. 7
III. DISCOVERY TO AU REGARDING THE INDEPENDENT
SAMPLING AT THE MALIBU SCHOOLS. …………………………………. 7
A. INTERROGATORIES TO AU REGARDING THE
INDEPENDENT SAMPLING AT THE MALIBU
SCHOOLS. ………………………………………………………………………… 8
1. INTERROGATORY NO. 3………………………………………… 8
a. INTERROGATORY NO. 3. ……………………………… 8
b. RESPONSE TO INTERROGATORY NO. 3. ……… 8
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 3. ……….. 8
d. AU’s CONTENTIONS REGARDING
INTERROGATORY NO. 3. ……………………………. 10
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Case No. 2:15-CV-02124
2. INTERROGATORY NO. 4………………………………………. 15
a. INTERROGATORY NO. 4. ……………………………. 15
b. RESPONSE TO INTERROGATORY NO. 4. ……. 15
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 4. …….. 15
d. AU’S CONTENTIONS REGARDING
INTERROGATORY NO. 4. ……………………………. 18
3. INTERROGATORY NO. 5………………………………………. 22
a. INTERROGATORY NO. 5. ……………………………. 22
b. RESPONSE TO INTERROGATORY NO. 5. ……. 22
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 5. ……… 22
d. AU’S CONTENTIONS REGARDING
INTERROGATORY NO.5. …………………………….. 24
4. INTERROGATORY NO. 6………………………………………. 28
a. INTERROGATORY NO. 6. ……………………………. 28
b. RESPONSE TO INTERROGATORY NO. 6. ……. 28
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 6. ……… 29
d. AU’S CONTENTIONS REGARDING
INTERROGATORY NO. 6. ……………………………. 31
5. INTERROGATORY NO. 8………………………………………. 35
a. INTERROGATORY NO. 8. ……………………………. 35
b. RESPONSE TO INTERROGATORY NO. 8. ……. 35
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 8. ……… 35
d. AU’S CONTENTIONS REGARDING
INTERROGATORY NO. 8 …………………………….. 37
6. INTERROGATORY NO. 9………………………………………. 39
a. INTERROGATORY NO. 9. ……………………………. 39
b. RESPONSE TO INTERROGATORY NO. 9. ……. 39
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 9. ……… 40
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Case No. 2:15-CV-02124
d. AU’S CONTENTIONS REGARDING
INTERROGATORY NO. 9. ……………………………. 41
B. REQUESTS FOR PRODUCTION TO AU REGARDING
THE INDEPENDENT SAMPLING AT THE MALIBU
SCHOOLS ……………………………………………………………………….. 43
1. REQUEST FOR PRODUCTION NO. 5. ……………………. 44
a. REQUEST FOR PRODUCTION NO. 5……………. 44
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 5. …………………………………… 44
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 5. ……………………………… 44
d. AU’S CONTENTIONS REGARDING RFP
NO. 5. …………………………………………………………… 52
2. REQUEST FOR PRODUCTION NO. 15. ………………….. 55
a. REQUEST FOR PRODUCTION NO. 15. ………… 55
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 15. …………………………………. 55
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 15. ……………………………. 56
d. AU’S CONTENTIONS REGARDING RFP
NO. 15. …………………………………………………………. 63
3. REQUEST FOR PRODUCTION NO. 17. ………………….. 67
a. REQUEST FOR PRODUCTION NO. 17. ………… 67
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 17. …………………………………. 67
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 17. ……………………………. 67
d. AU’S CONTENTIONS REGARDING RFP
NO. 17. …………………………………………………………. 75
4. REQUEST FOR PRODUCTION NO. 19. ………………….. 77
a. REQUEST FOR PRODUCTION NO. 19. ………… 77
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 19. …………………………………. 77
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c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 19. ……………………………. 77
d. AU’S CONTENTIONS REGARDING RFP
NO. 19. …………………………………………………………. 85
C. INTERROGATORIES TO PEER REGARDING
INDEPENDENT SAMPLING. ………………………………………….. 89
1. INTERROGATORY NO. 1………………………………………. 89
a. INTERROGATORY NO. 1. ……………………………. 89
b. RESPONSE TO INTERROGATORY NO. 1. ……. 89
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 1. ……… 89
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 1. ……………………………. 91
2. INTERROGATORY NO. 2………………………………………. 89
a. INTERROGATORY NO. 2. ……………………………. 96
b. RESPONSE TO INTERROGATORY NO. 2. ……. 96
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 2. ……… 96
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 2. ……………………………. 99
3. INTERROGATORY NO. 3…………………………………….. 104
a. INTERROGATORY NO. 3. ………………………….. 104
b. RESPONSE TO INTERROGATORY NO. 3. ….. 104
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 3. ……. 104
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 3. ………………………….. 106
4. INTERROGATORY NO. 4…………………………………….. 111
a. INTERROGATORY NO. 4. ………………………….. 111
b. RESPONSE TO INTERROGATORY NO. 4. ….. 111
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 4. ……. 112
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 4. ………………………….. 114
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5. INTERROGATORY NO. 6…………………………………….. 119
a. INTERROGATORY NO. 6. ………………………….. 119
b. RESPONSE TO INTERROGATORY NO. 6. ….. 119
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 6. ……. 119
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 6. ………………………….. 120
6. INTERROGATORY NO. 7…………………………………….. 123
a. INTERROGATORY NO. 7. ………………………….. 123
b. RESPONSE TO INTERROGATORY NO. 7. ….. 123
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 7. ……. 123
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 7. ………………………….. 124
D. REQUESTS FOR PRODUCTION TO PEER
REGARDING INDEPENDENT SAMPLING ……………………. 127
1. REQUEST FOR PRODUCTION NO. 6. ………………….. 127
a. REQUEST FOR PRODUCTION NO. 6………….. 127
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 6. …………………………………. 128
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 6. ……………………………. 128
d. PEER’S CONTENTIONS REGARDING
RFP NO. 6 …………………………………………………… 135
2. REQUEST FOR PRODUCTION NO. 8. ………………….. 140
a. REQUEST FOR PRODUCTION NO. 8………….. 140
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 8. …………………………………. 140
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 8. ……………………………. 141
d. PEER’S CONTENTIONS REGARDING
RFP NO. 8. ………………………………………………….. 148
3. REQUEST FOR PRODUCTION NO. 21. ………………… 140
Case 2:15-cv-02124-PA-AJW Document 73 Filed 12/21/15 Page 6 of 267 Page ID #:2454
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Case No. 2:15-CV-02124
a. REQUEST FOR PRODUCTION NO. 21. ………. 155
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 21. ……………………………….. 155
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 21. ………………………….. 155
d. PEER’S CONTENTIONS REGARDING
RFP NO. 21. ………………………………………………… 163
4. REQUEST FOR PRODUCTION NO. 22. ………………… 168
a. REQUEST FOR PRODUCTION NO. 22. ………. 168
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 22. ……………………………….. 168
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 22. ………………………….. 168
d. PEER’S CONTENTIONS REGARDING
RFP NO. 22. ………………………………………………… 176
5. REQUEST FOR PRODUCTION NO. 24. ………………… 182
a. REQUEST FOR PRODUCTION NO. 24 ……….. 182
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 24. ……………………………….. 182
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 24. ………………………….. 183
d. PEER’S CONTENTIONS REGARDING
RFP NO. 24. ………………………………………………… 190
6. REQUEST FOR PRODUCTION NO. 26. ………………… 192
a. REQUEST FOR PRODUCTION NO. 26. ………. 192
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 26. ……………………………….. 192
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 26. ………………………….. 193
d. PEER’S CONTENTIONS REGARDING
RFP NO. 26. ………………………………………………… 200
7. REQUEST FOR PRODUCTION NO. 27. ……………….. 205
a. REQUEST FOR PRODUCTION NO. 27 ……….. 205
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 27. ……………………………….. 205
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FURTHER RESPONSES IN DISCOVERY
Case No. 2:15-CV-02124
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 27. ………………………….. 206
d. PEER’S CONTENTIONS REGARDING
RFP NO. 27. ………………………………………………… 213
IV. DISCOVERY TO PLAINTIFFS REGARDING PCBS AT OTHER
SCHOOLS IN THE UNITED STATES ……………………………………… 220
A. REQUEST FOR PRODUCTION TO AU REGARDING
PCBS AT OTHER SCHOOLS …………………………………………. 220
1. REQUEST FOR PRODUCTION NO. 11. ………………… 220
a. REQUEST FOR PRODUCTION NO. 11. ………. 220
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 11. ……………………………….. 220
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 11. ………………………….. 220
d. AU’S CONTENTIONS REGARDING RFP
NO. 11 ………………………………………………………… 227
B. REQUEST FOR PRODUCTION TO PEER
REGARDING PCBS AT OTHER SCHOOLS …………………… 231
1. REQUEST FOR PRODUCTION NO. 17. ………………… 231
a. REQUEST FOR PRODUCTION NO. 17. ………. 231
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 17. ……………………………….. 231
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 17. ………………………….. 232
d. PEER’S CONTENTIONS REGARDING
RFP NO. 17. ………………………………………………… 238
V. DISCOVERY REQUESTS TO PEER REGARDING STANDING . 243
A. INTERROGATORY TO PEER REGARDING
STANDING …………………………………………………………………… 243
1. INTERROGATORY NO. 8…………………………………….. 243
a. INTERROGATORY NO. 8 …………………………… 243
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Case No. 2:15-CV-02124
b. RESPONSE TO INTERROGATORY NO.
8. ………………………………………………………………… 243
c. DEFENDANTS’ CONTENTIONS
REGARDING INTERROGATORY NO. 8. ……. 243
d. PEER’S CONTENTIONS REGARDING
INTERROGATORY NO. 8. ………………………….. 245
B. REQUESTS FOR PRODUCTION TO PEER
REGARDING STANDING ……………………………………………… 246
1. REQUEST FOR PRODUCTION NO. 41. ………………… 246
a. REQUEST FOR PRODUCTION NO. 41 ……….. 246
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 41. ……………………………….. 246
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 41. ………………………….. 246
d. PEER’S CONTENTIONS REGARDING
RFP NO. 41. ………………………………………………… 250
2. REQUEST FOR PRODUCTION NO. 42. ………………… 253
a. REQUEST FOR PRODUCTION NO. 42 ……….. 253
b. RESPONSE TO REQUEST FOR
PRODUCTION NO. 42. ……………………………….. 253
c. DEFENDANTS’ CONTENTIONS
REGARDING RFP NO. 42. ………………………….. 253
d. PEER’S CONTENTIONS REGARDING
RFP NO. 42. ………………………………………………… 257

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4844-1434-4748.v1
JOINT STIPULATION RE D’S MOTION TO COMPEL
FURTHER RESPONSES IN DISCOVERY
Case No. 2:15-CV-02124
Pursuant to Rule 37 of the Federal Rules of Civil Procedure and Local Rule
37-2 of the Central District of California, Defendants (“SMMUSD” or
“Defendants”) and Plaintiffs America Unites for Kids (“AU”) and Public
Employees for Environmental Responsibility (“PEER”) (collectively, “Plaintiffs”),
respectfully submit this Joint Stipulation regarding Defendants’ motion to compel
further responses to the following discovery requests served by Defendants:1
• Interrogatories No. 3, 4, 5, 6, 8, and 9 of Defendants’ First Set of
Interrogatories to AU;
• Interrogatories No. 1, 2, 3, 4, 6, 7, and 8 of Defendants’ First Set of
Interrogatories to PEER;
• Requests No. 5, 11, 15, 17, and 19 of Defendants’ First Set of Requests for
Production of Documents (“Requests” or “RFPs”) to AU; and
• Requests No. 6, 8, 17, 21, 22, 24, 26, 27, and 41, and 42 of Defendants’
First Set of Requests for Production of Documents (“Requests” or “RFPs”)
to PEER.
In accordance with Local Rule 37-1, on November 23, 2015, Defendants
served a meet and confer letter on counsel for America Unites which identified each
issue and discovery request in dispute, and stated Defendants’ position briefly with
respect to each request. (A true and correct copy of this correspondence is attached
as Exhibit B to the Declaration of Caroline L. Plant (“Decl. Plant”), which is being
filed concurrently herewith). On November 25, 2015, in accordance with Local
Rule 37-1, Defendants served a meet and confer letter on counsel for PEER which
identified each issue and discovery request in dispute, and stated Defendants’
position briefly with respect to each request. See Decl. Plant, Ex. C.

1 Pursuant to Local Rules 37-2 and 7-7, a copy of the Scheduling Order (ECF No.
61) is attached as Exhibit A to the Declaration of Caroline Plant filed concurrently
herewith.
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Case No. 2:15-CV-02124
On November 30, 2015, and again on December 3, 2015, counsel for the
parties met and conferred telephonically in good faith to resolve this dispute, but
were unable to do so. Decl. Plant ¶ 5.
I. DEFENDANTS’ INTRODUCTORY STATEMENT
A. DISCOVERY REGARDING PLAINTIFFS’ “INDEPENDENT TESTS.”
Plaintiffs’ complaint asserts one cause of action against Defendants, violation
of the Toxic Substances Control Act (15 U.S.C. §§ 2601–2692) (“TSCA”) based on
the presence of PCBs in caulk and building materials at Malibu High School,
Middle School, and Juan Cabrillo Elementary School (“Malibu Schools”). See Decl
Plant, Ex. D; ¶ 2. This claim is premised in part on three sets of “Independent
Tests” conducted by Plaintiffs. See Id.; ¶¶ 80, 103, 109. In discovery, Defendants
seek the identity of the individuals who conducted this independent testing, as well
as documents that identify those individuals. In response, Plaintiffs assert only the
following inappropriate objections:
1. Relevancy. The identity of the individuals who conducted the independent
sampling is relevant to both Plaintiffs’ claim and Defendants’ defenses.
Specifically, this information is necessary so that Defendants can assess the
reliability of the data upon which Plaintiffs rely, investigate the chain of custody for
the samples, and obtain additional information regarding the sampling procedure
used by these individuals. Plaintiffs are the sole party with access to this
information and there is no burden on Plaintiffs in its production.
2. Vagueness, Ambiguity, Overbreadth, Oppressiveness, and Undue
Burden. Plaintiffs assert these boilerplate objections without any showing that
Defendants’ requests are vague, ambiguous, overbroad, oppressive or unduly
burdensome. Accordingly, these objections are without merit. Bible v. Rio Props.,
Inc., 246 F.R.D. 614 , 619 (C.D. Cal. 2007).
3. Attorney-Client, Attorney Work Product, and Common Interest
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Privileges. Similarly, Plaintiffs assert boilerplate objections and make no showing
that any materials regarding Plaintiffs’ “Independent Tests” are protected by any
privilege. “The attorney-client privilege protects confidential communications
between attorneys and clients, which are made for the purpose of giving legal
advice.” United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The work
product doctrine protects materials “prepared by a party or his representative in
anticipation of litigation.” Richey 632 F. 3d at 567. And the common interest
doctrine is relevant only if the communication at issue is privileged in the first
place. Nidec Corp. v. Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007).
Accordingly, this material cannot be withheld based on any privilege.
4. First Amendment. A valid objection on First Amendment grounds requires
that Plaintiffs make a prima facie showing that disclosure of these materials
requested would lead to “(1) harassment, membership withdrawal, or
discouragement of new members, or (2) other consequences which objectively
suggest an impact on, or ‘chilling’ of, the members’ associational rights” under the
First Amendment. Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346,
350 (9th Cir. 1988). Plaintiffs have made no such showing here.
B. COMMUNICATIONS REGARDING PCBS AT OTHER SCHOOLS.
Plaintiffs assert the same unsupported objections to Defendants’ requests for
communications regarding PCBs at other schools as those discussed above. In their
press releases and blog posts, Plaintiffs’ frequently draw comparisons between the
PCB remediation conducted at the Malibu Schools and that which has been
conducted by other schools. Decl. Plant, Ex. E-G. This information may be used as
part of Plaintiffs’ claims against Defendants at trial and accordingly is entirely
relevant. Further, Plaintiffs have made no showing that this request is overbroad,
oppressive, vague, ambiguous, unduly burdensome, or protected by any privilege.
Finally, Plaintiffs have not made any showing that disclosure of these materials
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would lead to “harassment, membership withdrawal, or discouragement of new
members,” or that it would result in other consequences that could “chill” members’
associational rights under the First Amendment. Accordingly, Plaintiffs must
produce the requested materials.
C. DISCOVERY REGARDING PEER’S STANDING.
Finally, PEER objects to all discovery that seeks identification of those
witnesses it will rely on to establish its standing on the ground that this information
is protected by the attorney work product privilege. To have standing, a plaintiff
must show (1) it has suffered an “injury in fact” that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citing Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 342 (1977)).
An association only has standing to bring suit on behalf of members where: (a) its
members would otherwise have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in
the lawsuit. Id. An association’s standing is subject to challenge in every phase of
litigation and the burden of proving standing rests on PEER.
Further, the identity of witnesses is not protected as work product. The
Federal Rules of Civil Procedure specifically require the exchange of witness
information by the parties, including “the identity and location of persons who know
of any discoverable matter.” Fed. R. Civ. P. 26(b) (1). Defendants are entitled to
take discovery regarding the injury allegedly suffered by PEER’s members. It
cannot take such discovery without the disclosure of the identities of the relevant
witnesses.
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PEER should be compelled to identify these witnesses and nonprivileged
supporting materials upon which they intend to rely.
II. PLAINTIFFS’ INTRODUCTORY STATEMENT
Plaintiffs, two non-profit organizations, filed this citizen’s suit to restrain
clear violations of the TSCA at the Malibu Schools, which are part of the Santa
Monica-Malibu Unified School District (the “District”). Defendants are
administrators and members of the District’s Board of Education.
As set forth in Plaintiffs’ First Amended Complaint (“FAC”), the Malibu
Schools are contaminated with polychlorinated biphenyls (“PCBs”), a highly-toxic
substance which causes cancers and numerous other serious diseases. (Plant Decl.
Ex. D., at ¶¶ 41-49) TSCA and the regulations thereunder prohibit the use of
materials containing PCBs at concentrations of 50 parts per million (“ppm”) or
greater. (Id. at ¶¶ 12-22) TSCA imposes a near-total ban on PCBs because of the
“extreme threat PCBs pose to human health and the environment.” United States v.
Commonwealth Edison Co., 620 F. Supp. 1404, 1408 (N.D. Ill. 1985).
The Court should deny Defendants’ motion to compel for the following
reasons.
A. The Identities Of Individuals Who Took The Independent Samples
Much of Defendants’ motion is directed at interrogatory and document
requests which seek the identities of the individuals who took the samples of caulk
at the Malibu Schools that were the subject of three sets of “Independent Tests” that
Plaintiff AU conducted prior to the filing of this action. These tests showed illegal
levels of PCB contamination in 13 different rooms at the Malibu Schools. (Plant
Decl. Ex. D., at ¶¶ 83, 103 and 109) On March 23, 2015 – – the day this action was
filed – – the District publicly disclosed the results of its “verification” testing; those
results confirmed the reliability of the “Independent Tests.” The District’s
consultants took 24 samples from 10 rooms and in each case, illegal levels of caulk-
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-up to 11,000 times the regulatory limit–were found. (Id. at ¶¶128-29) The District
contends that it has remediated illegal caulk in 10 of the 13 rooms which the
Independent Tests showed violated TSCA.
Defendants argue that they need to know the identities of the individuals who
took the samples that were used in the Independent Tests so that they can assess the
reliability of the data upon which Plaintiffs rely. Defendants’ motion is without
merit because the requested information is not relevant.
First, Plaintiffs are not relying on the Independent Tests of the caulk in the 10
rooms that Defendants claim to have remediated. Second, Plaintiffs do not need to
know the identity of the persons taking the samples to assess the reliability of the
Independent Tests of the caulk in the three rooms on which Plaintiffs continue to
rely.2 Defendants’ own verification testing has demonstrated that the results of the
Independent Tests are reliable. In any case, the EPA-certified laboratory reports
that Plaintiffs have provided to Defendants has all the information that Defendants
would need to assess the reliability of the data.
Moreover, requiring Plaintiffs to disclose the identities of the individuals who
took the samples would place an undue burden on them and chill the exercise of
their First Amendment rights. Defendants have already filed a false and malicious
criminal complaint against the president of Plaintiff AU and her husband, alleging
that they committed felony acts of trespassing and vandalism by collecting samples.
(See Declaration of Jennifer DeNicola filed in this action (Dkt. 70-1), ¶¶2-3 and
Exs. A and E thereto. The DeNicola declaration is attached as Exhibit A to the
accompanying Declaration of Charles Avrith (“Avrith Decl.”). Although the
District Attorney has declined to file charges, Plaintiffs are rightfully concerned that

2 The three rooms are: (1) Room 722 (First Set of Independent Tests); (2) Room 205
(Second Set of Independent Tests; and JCES Office (Third Set of Independent
Tests). (See Plant Decl. Ex. D, ¶¶82, 103 and 109)
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if they disclose the names of the individuals in question, Defendants will file similar
charges or otherwise take retaliatory action against the samplers.
B. Communications Regarding PCBs At Other Schools
Defendants are seeking communications “by and between” Plaintiffs, their
members and third parties concerning PCBs at other schools. However, the issue in
this case is whether the Malibu Schools violate TSCA, not what Plaintiffs, their
members or third parties may have said about PCBs at other schools. Although
what happened at other schools in terms of PCB contamination or remediation may
prove to be relevant in this case, Defendants have not demonstrated the relevancy of
what Plaintiffs, their members or third parties may have said about what happened
with PCBs at other schools.
Furthermore, to the extent that Defendants are seeking communications
between Plaintiffs AU and PEER concerning PCBs at other schools, their requests
seeks documents protected by the attorney-client and common interest privileges.
The request also violates the Plaintiffs’ First Amendment rights of association.
C. Identities Of PEER’s Trial Witnesses
Defendants’ motion also seeks to compel the identities of PEER’s trial
witnesses. That information is privileged work product.
III. DISCOVERY TO AU REGARDING THE INDEPENDENT
SAMPLING AT THE MALIBU SCHOOLS.
Defendants move to compel further responses to the following discovery
requests which seek information regarding the identities of individuals who
obtained the “Independent Tests.” Defendants’ Interrogatories 3, 4, 5, and 6 to AU
seek the identities of all persons who obtained or collected the “Independent Tests”
and other sample testing conducted by Plaintiffs. Interrogatories 8 and 9 seek the
identities of the person or persons that authored or created the BC Labs and
Eurofins Keys.
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A. INTERROGATORIES TO AU REGARDING THE INDEPENDENT
SAMPLING AT THE MALIBU SCHOOLS.
1. INTERROGATORY NO. 3.
a. INTERROGATORY NO. 3.
IDENTIFY all PERSONS who have taken SAMPLES at the MALIBU
SCHOOLS.
b. RESPONSE TO INTERROGATORY NO. 3.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY
NO. 3.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
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Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).3
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the

3 The Rule quoted here is the amended version of Rule 26(b)(1), which became
effective December 1, 2015.
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sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs “Independent
Tests.”
d. AU’S CONTENTIONS REGARDING INTERROGATORY NO. 3.
This interrogatory seeks the identity of individuals who took samples of
building materials at the Malibu Schools. Defendants have not shown that the
requested information is relevant. As discussed below, the information is not
necessary for resolution of any of the issues in this case. Moreover, the burden of
providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who took samples of
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caulk at the Malibu Schools is relevant because Plaintiffs are purportedly relying on
“Independent Tests” of caulk samples in 13 rooms that Plaintiff AU conducted prior
to the filing of this action. However, as discussed above, Plaintiffs are not relying
on the Independent Tests in 10 of the 13 rooms. There is no possible reason why
Defendants would need to know the identities of the persons who took samples for
tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,
attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any
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purpose with respect to any of the 10 rooms that Defendants claim to have
remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the three rooms for which Plaintiffs continue to rely on
the Independent Tests, Defendants do not need to know the identities of the person
who took the samples. Although Defendants conclusorily contend they need this
information to assess the reliability of the testing data, they do not explain why that
is the case. The test data is a product of a lab analysis of the samples. There is
nothing that the sampler can do to affect the reliability of the data derived from the
lab analysis.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples are needed so that they can “determine the locations and extent of these
additional samples.”
However, at this point Defendants have not propounded any discovery
requests related to this later sampling, the discovery requests at issue being limited
by their terms to the three sets of independent tests. Also, Plaintiffs have not even
attempted to use any such additional testing in the case. Moreover, Defendants do
not explain why they need to know the “extent” of the sample. The “extent” of the
sample is not relevant to determine a TSCA violation. Furthermore, Defendants do
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not need to know the identities of the persons taking the samples to determine the
“locations” of the samples. The location of the sampling is shown on the lab reports
which Defendants already have. The exact location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
In any case, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
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present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
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carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
2. INTERROGATORY NO. 4.
a. INTERROGATORY NO. 4.
IDENTIFY all PERSONS who obtained or collected the “First Set of
Independent Tests,” referred to at paragraph 80 of the FAC, at the MALIBU
SCHOOLS.
b. RESPONSE TO INTERROGATORY NO. 4.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY
NO. 4.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
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establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
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relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
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d. AU’S CONTENTIONS REGARDING INTERROGATORY NO. 4.
This interrogatory seeks the identity of individuals who took the samples used
in the First Set of Independent Tests. Defendants have not shown that the requested
information is relevant. As discussed below, the information is not necessary for
resolution of any of the issues in this case. Moreover, the burden of providing it
outweighs any possible relevance.
Defendants contend that the identities of the individuals who took the samples
is relevant because Plaintiffs are purportedly relying on the First Set of Independent
Tests that Plaintiff AU conducted prior to the filing of this action. However, as
discussed above, Plaintiffs are not relying on the results of the First Set of
Independent Tests in two of the three rooms tested.4 There is no possible reason
why Defendants would need to know the identities of the persons who took samples
for tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,

4 Plaintiffs are relying on the Independent Test in Room 722.
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attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any
purpose with respect to any of the rooms that Defendants claim to have remediated.
Thus, there is nothing for Defendants to confirm.
Even with respect to the one room (Room 722) for which Plaintiffs continue
to rely on the First Set of Independent Tests, Defendants do not need to know the
identities of the person who took the samples. Although Defendants conclusorily
contend they need this information to assess the reliability of the testing data, they
do not explain why that is the case. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from the lab analysis.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
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information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
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confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
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the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
3. INTERROGATORY NO. 5.
a. INTERROGATORY NO. 5.
IDENTIFY all PERSONS who obtained or collected the “Second Set of
Independent Tests,” referred to at paragraph 103 of the FAC.
b. RESPONSE TO INTERROGATORY NO. 5.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
5.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
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Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
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action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
d. AU’S CONTENTIONS REGARDING INTERROGATORY NO.5.
This interrogatory seeks the identity of individuals who took the samples used
in the Second Set of Independent Tests. Defendants have not shown that the
requested information is relevant. As discussed below, the information is not
necessary for resolution of any of the issues in this case. Moreover, the burden of
providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who took the samples
is relevant because Plaintiffs are purportedly relying on the Second Set of
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Independent Tests. However, as discussed above, Plaintiffs are not relying on the
results of the Second Set of Independent Tests in three of the four rooms tested.5
There is no possible reason why Defendants would need to know the identities of
the persons who took samples for tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,
attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any

5 Plaintiffs are relying on the Independent Test in Room 205.
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purpose with respect to any of the rooms that Defendants claim to have remediated.
Thus, there is nothing for Defendants to confirm.
Even with respect to the one room (Room 205) for which Plaintiffs continue
to rely on the Second Set of Independent Tests, Defendants do not need to know the
identities of the person who took the samples. Although Defendants conclusorily
contend they need this information to assess the reliability of the testing data, they
do not explain why that is the case. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from the lab analysis.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
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legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
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evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
4. INTERROGATORY NO. 6.
a. INTERROGATORY NO. 6.
IDENTIFY all PERSONS who obtained or collected the “Third Set of
Independent Tests,” referred to at paragraph 109 of the FAC.
b. RESPONSE TO INTERROGATORY NO. 6.
Plaintiffs objects to this interrogatory on the ground that it seeks information
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that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
6.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
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objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
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Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection with Plaintiffs’ “Independent
Tests.”
d. AU’S CONTENTIONS REGARDING INTERROGATORY NO. 6.
This interrogatory seeks the identity of individuals who took samples used in
the Third Set of Independent Tests. Defendants have not shown that the requested
information is relevant. As discussed below, the information is not necessary for
resolution of any of the issues in this case. Moreover, the burden of providing it
outweighs any possible relevance.
Defendants contend that the identities of the individuals who took the samples
is relevant because Plaintiffs are purportedly relying on the Third Set of
Independent Tests that Plaintiff AU conducted prior to the filing of this action.
However, as discussed above, Plaintiffs are not relying on the Third Set of
Independent Tests in five of the six rooms tested.6 There is no possible reason why
Defendants would need to know the identities of the persons who took samples for
tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as

6 Plaintiffs are relying on the Independent Test in the JCES office.
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Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,
attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any
purpose with respect to any of the rooms that Defendants claim to have remediated.
Thus, there is nothing for Defendants to confirm.
Even with respect to the one room (JCES office) for which Plaintiffs continue
to rely on the Third Set of Independent Tests, Defendants do not need to know the
identities of the person who took the samples. Although Defendants conclusorily
contend they need this information to assess the reliability of the testing data, they
do not explain why that is the case. The test data is a product of a lab analysis of the
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samples. There is nothing that the sampler can do to affect the reliability of the data
derived from the lab analysis.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
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“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
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“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
5. INTERROGATORY NO. 8.
a. INTERROGATORY NO. 8.
IDENTIFY the PERSON or PERSONS that authored or created the BC
LABS KEY.
b. RESPONSE TO INTERROGATORY NO. 8.
Plaintiffs objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
8.
The “BC Labs Key” refers to the “Key to BC Laboratories, Inc [sic] Report.”
This key, which was created by Plaintiffs, purportedly shows the locations from
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which independent sampling was taken. A true and correct copy of the “BC Labs
Key” is attached to the Declaration of Caroline L. Plant as Exhibit J.
Relevancy is not a valid objection to this Interrogatory. Under Rule 26(b)(1),
parties may obtain discovery regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identity of the author of this key is certainly relevant, because the author
possesses discoverable information that will assist Defendants in identifying the
specific locations where independent testing occurred and establish a chain of
custody. One of Defendants’ defenses is that the samples, which form the basis of
Plaintiffs’ TSCA lawsuit, have been remediated, and accordingly, Plaintiffs’ claims
are moot. Defendants are entitled to take discovery, including depositions, of the
individuals to confirm the specific locations from which the samples were obtained.
Further, Defendants are entitled to this information so that they can examine the
chain of custody for the samples, and assess the reliability of the sampling data on
which Plaintiffs’ TSCA claim is founded.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
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For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who authored the BC Labs Key.
d. AU’S CONTENTIONS REGARDING INTERROGATORY NO. 8
This interrogatory seeks the identity of the individuals who created the “BC
Labs key,” which shows the locations from which independent sampling was taken.
Defendants have not shown that the requested information is relevant. As discussed
below, the information is not necessary for resolution of any of the issues in this
case. Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who created the key
is relevant because the “author possesses discoverable information that will assist
Defendants in identifying the specific locations where independent testing occurred
and establish a chain of custody.” However, as discussed above, Plaintiffs are not
relying on the Independent Tests in 10 of the 13 rooms. There is no possible reason
why Defendants would need to know this information for tests on which Plaintiffs
are not relying.
Moreover, with respect to the Independent Tests on which Plaintiffs continue
to rely, the location of the sampling is shown on the lab reports which Defendants
already have. The exact location of the sampling is irrelevant. Defendants’
obligation to remediate is not limited to the exact square inch where a sample was
taken. The lab reports also contain whatever chain of custody information
Defendants need.
Furthermore, the potential for harm to Plaintiffs or the persons creating the
key by disclosure of the requested information greatly outweighs any possible
benefit of disclosure. As discussed above, Defendants have already filed a
malicious criminal complaint for trespassing and vandalism against individuals who
allegedly took samples. Although the District Attorney declined to file any charges,
Plaintiffs are legitimately concerned that Defendants will use the requested
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information to initiate similar charges against the samplers or otherwise retaliate
against them.
Forced disclosure of the identities of those who created the key would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
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evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the persons creating the key.
6. INTERROGATORY NO. 9.
a. INTERROGATORY NO. 9.
IDENTIFY the PERSON or PERSONS that authored or created the
EUROFINS KEY.
b. RESPONSE TO INTERROGATORY NO. 9.
Plaintiffs objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
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action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
9.
The “EUROFINS KEY” refers to the key to Work Order 14-08-1493. This
key, which was created by Plaintiffs, purportedly shows the locations from which
sampling was taken. A true and correct copy of the “Eurofins Key” is attached to
the Declaration of Caroline L. Plant as Exhibit K.
Relevancy is not a valid objection to this Interrogatory. Under Rule 26(b)(1),
parties may obtain discovery regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identity of the author of this key is certainly relevant, because the author
possesses discoverable information that will assist Defendants in identifying the
specific locations where independent testing occurred and establish a chain of
custody. One of Defendants’ defenses is that the samples, which form the basis of
Plaintiffs’ TSCA lawsuit, have been remediated, and accordingly, Plaintiffs’ claims
are moot. Defendants are entitled to take discovery, including depositions, of the
individuals to confirm the specific locations from which the samples were obtained.
Further, Defendants are entitled to this information so that they can examine the
chain of custody for the samples, and assess the reliability of the sampling data on
which Plaintiffs’ TSCA claim is founded.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
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Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who authored the Eurofins Key.
d. AU’S CONTENTIONS REGARDING INTERROGATORY NO. 9.
This interrogatory seeks the identity of the individuals who created the
“Eurofins key,” which shows the locations from which independent sampling was
taken. Defendants have not shown that the requested information is relevant. As
discussed below, the information is not necessary for resolution of any of the issues
in this case. Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who created the key
is relevant because the “author possesses discoverable information that will assist
Defendants in identifying the specific locations where independent testing occurred
and establish a chain of custody.” However, as discussed above, Plaintiffs are not
relying on the Independent Tests in 10 of the 13 rooms. There is no possible reason
why Defendants would need to know this information for tests on which Plaintiffs
are not relying.
Moreover, with respect to the Independent Tests on which Plaintiffs continue
to rely, the location of the sampling is shown on the lab reports which Defendants
already have. The exact location of the sampling is irrelevant. Defendants’
obligation to remediate is not limited to the exact square inch where a sample was
taken. The lab reports also contain whatever chain of custody information
Defendants need.
Furthermore, the potential for harm to Plaintiffs or the persons creating the
key by disclosure of the requested information greatly outweighs any possible
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benefit of disclosure. As discussed above, Defendants have already filed a
malicious criminal complaint for trespassing and vandalism against individuals who
allegedly took samples. Although the District Attorney declined to file any charges,
Plaintiffs are legitimately concerned that Defendants will use the requested
information to initiate similar charges against the samplers or otherwise retaliate
against them.
Forced disclosure of the identities of those who created the key would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
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them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the persons creating the key.
B. REQUESTS FOR PRODUCTION TO AU REGARDING THE
INDEPENDENT SAMPLING AT THE MALIBU SCHOOLS
Defendants’ Requests for Production 5, 15, 17, and 19 to AU seek the
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identities of all persons who obtained or collected the “Independent Tests” and other
information regarding sample testing conducted by Plaintiffs.
1. REQUEST FOR PRODUCTION NO. 5.
a. REQUEST FOR PRODUCTION NO. 5
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the “First Set of Independent Tests,” referred to at paragraph 80 of the
FAC, at the MALIBU SCHOOLS.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 5.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 5.
i. Relevancy Is Not a Valid Objection to RFP No.5.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
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Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
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depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections.
Plaintiff’s objection that that this Request is vague, ambiguous and overbroad
is unfounded. “The party who resists discovery has the burden to show discovery
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should not be allowed, and has the burden of clarifying, explaining, and supporting
its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D. Cal. 2007) (citing
Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975) and Keith H. v.
Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal. 2005)). There is
no merit to “general or boilerplate objections such as ‘overly broad’ [or] ‘vague and
ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber & Partners, Inc. v. Garber, 234
F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested documents identifying those
individuals who obtained or collected samples in the “Independent Tests” referred
to in Plaintiffs’ very own FAC. Plaintiff need only produce those documents that
identify samplers or others in the chain of custody for these tests. Without further
explanation, Plaintiff’s objection is without merit, and Plaintiff should produce
documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
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confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v. Inv.
Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While the
privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
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Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
documents identifying those who obtained or collected samples in Plaintiffs’
independent testing bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request information sought, because
the data from the “Independent Tests” will surely be used against Defendants in this
litigation, and Defendants must be afforded the opportunity to confront the validity
and reliability of the data. This necessarily entails a complete knowledge of the
chain of custody, which can only be discovered through documents identifying
those involved in the testing process. Plaintiffs have not met the burden of
demonstrating the applicability of the work product doctrine, so their objection on
this basis is not appropriate. Accordingly, Plaintiffs may not refuse to produce
documents in response to Defendants’ Requests on the basis of attorney-client
privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
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ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith v. Davis, 161 F.R.D.
687, 692 (C.D. Cal. 1995). For this reason, the common interest doctrine comes
into play only if the communication at issue is privileged in the first place. Nidec
Corp, 249 F.R.D. at 578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
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of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because AU is publicly vocal about its
activities and its membership, listing members of its Advisory Board and
Leadership Team on its website. See Decl. Plant, Exs. L.M. In particular, Plaintiff
frequently publicizes its activities with regard to the subject matter of this very case
on its website. See Decl. Plant, Ex. E; Ex. F; Ex. G. The information sought in the
above Request relates only to those individuals who obtained or collected data for
the “Independent Tests” that form the basis for this lawsuit, and to communications
regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in AU to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
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is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. AU’S CONTENTIONS REGARDING RFP NO. 5.
This request seeks documents concerning the identities of the individuals who
took samples used in the First Set of Independent Tests. Defendants have not
shown that the requested information is relevant. As discussed below, the
information is not necessary for resolution of any of the issues in this case.
Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who took samples of
caulk at the Malibu Schools is relevant because Plaintiffs are purportedly relying on
the First Set of Independent Tests. However, as discussed above, Plaintiffs are not
relying on the First Set of Independent Tests in two of the three rooms tested. There
is no possible reason why Defendants would need to know the identities of the
persons who took samples for tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,
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attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any
purpose with respect to any of the rooms that Defendants claim to have remediated.
Thus, there is nothing for Defendants to confirm.
Even with respect to the one room (Room 722) for which Plaintiffs continue
to rely on the First Set of Independent Tests, Defendants do not need to know the
identities of the person who took the samples. Although Defendants conclusorily
contend they need this information to assess the reliability of the testing data, they
do not explain why that is the case. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from the lab analysis.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
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information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987). Plaintiffs have made a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir.
2010) (quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir.
1983) (per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
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evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
Finally, documents concerning the identities of samplers which constitute
attorney-client communications or attorney work product are privileged. To the
extent that any such documents are relevant, Plaintiffs will list them on a privilege
log.
2. REQUEST FOR PRODUCTION NO. 15.
a. REQUEST FOR PRODUCTION NO. 15.
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the “Second Set of Independent Tests,” referred to at paragraph 103 of
the FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 15.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
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it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 15.
i. Relevancy Is Not a Valid Objection to RFP No. 15.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
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testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
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Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 15.
Plaintiff’s objection that Requests for Production No. 15 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
AU has not met its burden of demonstrating that discovery of the information
sought in this Request should not be allowed, because it has not supported or
explained its objections on the basis of the requests being vague, ambiguous, or
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overbroad. Defendants have requested documents identifying those individuals who
obtained or collected samples in the “Independent Tests” referred to in Plaintiffs’
very own FAC. Plaintiff need only look for documents that identify samplers or
others in the chain of custody for these tests. Without further explanation,
Plaintiff’s objection is without merit, and Plaintiff should produce documents in
response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 15.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
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correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information sought in Defendants’
Requests. For example, Plaintiffs have not demonstrated how documents
identifying those who obtained or collected samples in Plaintiffs’ independent
testing bears any relation to Plaintiffs’ efforts in preparation for trial. Furthermore,
Defendants have good cause to request information sought, because the data from
the “Independent Tests” will surely be used against Defendants in this litigation, and
Defendants must be afforded the opportunity to confront the validity and reliability
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of the data. This necessarily entails a complete knowledge of the chain of custody,
which can only be discovered through documents identifying those involved in the
testing process. Plaintiffs have not met the burden of demonstrating the
applicability of the work product doctrine, so their objection on this basis is not
appropriate. Accordingly, Plaintiffs may not refuse to produce documents in
response to Defendants’ Requests on the basis of attorney-client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
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documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection to RFP No. 15.
Plaintiff objects to RFP No. 15 on the ground that this Request violates the
First Amendment rights of association of Plaintiff and its members. A party
objecting on the basis of a First Amendment privilege must satisfy a two-part test.
The objecting party must first make a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th
Cir. 2010) (quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346,
349-50 (9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request
is enforced, there will be “(1) harassment, membership withdrawal, or
discouragement of new members, or (2) other consequences which objectively
suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Brock,
860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
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are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ RFP, because AU is publicly vocal about its activities and its
membership, listing members of its Advisory Board and Leadership Team on its
website. See Decl. Plant, Ex. L, M. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. See Decl.
Plant, Ex. E; Ex. F; Ex. G. The information sought in the above Request relates
only to those individuals who obtained or collected data for the “Independent Tests”
that form the basis for this lawsuit, and to communications regarding PCBs, the
subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in America Unites to remain private
could be redacted so as to balance any associational issues with the Court’s strong
interest in ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire
case is premised on data from the “Independent Tests” referenced in Plaintiffs’
FAC, and it is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. AU’S CONTENTIONS REGARDING RFP NO. 15.
This request seeks documents concerning the samples used in the Second Set
of Independent Tests. Defendants have not shown that the requested information is
relevant. As discussed below, the information is not necessary for resolution of any
of the issues in this case. Moreover, the burden of providing it outweighs any
possible relevance.
Defendants contend that the identities of the individuals who took samples of
caulk at the Malibu Schools is relevant because Plaintiffs are purportedly relying on
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the Second Set of Independent Tests. However, as discussed above, Plaintiffs are
not relying on the Second Set of Independent Tests in three of the four rooms tested.
There is no possible reason why Defendants would need to know the identities of
the persons who took samples for tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,
attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any
purpose with respect to any of the rooms that Defendants claim to have remediated.
Thus, there is nothing for Defendants to confirm.
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Even with respect to the one room (Room 205) for which Plaintiffs continue
to rely on the Second Set of Independent Tests, Defendants do not need to know the
identities of the person who took the samples. Although Defendants conclusorily
contend they need this information to assess the reliability of the testing data, they
do not explain why that is the case. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from the lab analysis.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
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Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987). Plaintiffs have made a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir.
2010) (quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir.
1983) (per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
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reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
Finally, documents concerning the identities of samplers which constitute
attorney-client communications or attorney work product are privileged. To the
extent that any such documents are relevant, Plaintiffs will list them on a privilege
log.
3. REQUEST FOR PRODUCTION NO. 17.
a. REQUEST FOR PRODUCTION NO. 17.
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
OR COLLECTED THE PIECE OF CAULK REFERRED TO AT PARAGRAPH
104 OF THE FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 17.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 17.
i. Relevancy Is Not a Valid Objection to RFP No. 17.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
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the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
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The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
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For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 17.
Plaintiff’s objection that Requests for Production No. 17 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
AU has not met its burden of demonstrating that discovery of the information
sought in this Request should not be allowed, because it has not supported or
explained its objections on the basis of the requests being vague, ambiguous, or
overbroad. Defendants have requested documents identifying those individuals who
obtained or collected samples in the independent sampling referred to in Plaintiffs’
very own FAC. Plaintiff need only look for documents that identify samplers or
others in the chain of custody for these tests. Without further explanation,
Plaintiff’s objection is without merit, and Plaintiff should produce documents in
response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 17.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
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attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
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materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information sought in Defendants’
Requests. For example, Plaintiffs have not demonstrated how documents
identifying those who obtained or collected samples in Plaintiffs’ independent
testing bears any relation to Plaintiffs’ efforts in preparation for trial. Furthermore,
Defendants have good cause to request information sought, because the data from
the “Independent Tests” will surely be used against Defendants in this litigation, and
Defendants must be afforded the opportunity to confront the validity and reliability
of the data. This necessarily entails a complete knowledge of the chain of custody,
which can only be discovered through documents identifying those involved in the
testing process. Plaintiffs have not met the burden of demonstrating the
applicability of the work product doctrine, so their objection on this basis is not
appropriate. Accordingly, Plaintiffs may not refuse to produce documents in
response to Defendants’ Requests on the basis of attorney-client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
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Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection to RFP No. 17.
Plaintiff objects to RFP No. 17 on the ground that this Request violates the
First Amendment rights of association of Plaintiff and its members. A party
objecting on the basis of a First Amendment privilege must satisfy a two-part test.
The objecting party must first make a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th
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Cir. 2010) (quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346,
349-50 (9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request
is enforced, there will be “(1) harassment, membership withdrawal, or
discouragement of new members, or (2) other consequences which objectively
suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Brock,
860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ RFP, because AU is publicly vocal about its activities and its
membership, listing members of its Advisory Board and Leadership Team on its
website. See Decl. Plant, Exs. L, M. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. See Decl.
Plant, Ex. E; Ex. F; Ex. G. The information sought in the above Request relates
only to those individuals who obtained or collected data for the “Independent Tests”
that form the basis for this lawsuit, and to communications regarding PCBs, the
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subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in America Unites to remain private
could be redacted so as to balance any associational issues with the Court’s strong
interest in ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire
case is premised on data from the “Independent Tests” referenced in Plaintiffs’
FAC, and it is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. AU’S CONTENTIONS REGARDING RFP NO. 17.
This request seeks the identity of the individuals who obtained or collected
the piece of caulk referred to at paragraph 104 of the FAC. Defendants have not
shown that the requested information is relevant. As discussed below, the
information is not necessary for resolution of any of the issues in this case.
Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who obtained or
collected the piece of caulk is relevant because Plaintiffs are purportedly relying on
the “Independent Tests” of caulk samples in 13 rooms that Plaintiff AU conducted
prior to the filing of this action. However, the piece of caulk in question was not
tied to any particular room and Plaintiffs are not relying on the testing of it. There
is no possible reason why Defendants would need to know the identities of the
persons who took samples for tests on which Plaintiffs are not relying.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
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legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987). Plaintiffs have made a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir.
2010) (quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir.
1983) (per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
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First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
Finally, documents concerning the identities of samplers which constitute
attorney-client communications or attorney work product are privileged. To the
extent that any such documents are relevant, Plaintiffs will list them on a privilege
log.
4. REQUEST FOR PRODUCTION NO. 19.
a. REQUEST FOR PRODUCTION NO. 19.
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the “Third Set of Independent Tests,” referred to at paragraph 109 of
the FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 19.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 19.
i. Relevancy Is Not a Valid Objection to RFP No. 19.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
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the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

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Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
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individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 19.
Plaintiff’s objection that Requests for Production No. 19 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
AU has not met its burden of demonstrating that discovery of the information
sought in this Request should not be allowed, because it has not supported or
explained its objections on the basis of the requests being vague, ambiguous, or
overbroad. Defendants have requested documents identifying those individuals who
obtained or collected samples in the “Independent Tests” referred to in Plaintiffs’
very own FAC. Plaintiff need only look for documents that identify samplers or
others in the chain of custody for these tests. Without further explanation,
Plaintiff’s objection is without merit, and Plaintiff should produce documents in
response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 19.
(a) Attorney-Client Privilege.
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“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
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(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information sought in Defendants’
Requests. For example, Plaintiffs have not demonstrated how documents
identifying those who obtained or collected samples in Plaintiffs’ independent
testing bears any relation to Plaintiffs’ efforts in preparation for trial. Furthermore,
Defendants have good cause to request information sought, because the data from
the “Independent Tests” will surely be used against Defendants in this litigation, and
Defendants must be afforded the opportunity to confront the validity and reliability
of the data. This necessarily entails a complete knowledge of the chain of custody,
which can only be discovered through documents identifying those involved in the
testing process. Plaintiffs have not met the burden of demonstrating the
applicability of the work product doctrine, so their objection on this basis is not
appropriate. Accordingly, Plaintiffs may not refuse to produce documents in
response to Defendants’ Requests on the basis of attorney-client privilege.
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(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith v. Davis, 161 F.R.D. at
692. For this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection to RFP No. 19.
Plaintiff objects to RFP No. 19 on the ground that this Request violates the
First Amendment rights of association of Plaintiff and its members. A party
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objecting on the basis of a First Amendment privilege must satisfy a two-part test.
The objecting party must first make a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th
Cir. 2010) (quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346,
349-50 (9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request
is enforced, there will be “(1) harassment, membership withdrawal, or
discouragement of new members, or (2) other consequences which objectively
suggest an impact on, or ‘chilling’ of, the members’ associational rights.” Brock,
860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ RFP, because AU is publicly vocal about its activities and its
membership, listing members of its Advisory Board and Leadership Team on its
website. See Decl. Plant, Exs. L, M. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. See Decl.
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Plant, Ex. E; Ex. F; Ex. G. The information sought in the above Request relates
only to those individuals who obtained or collected data for the “Independent Tests”
that form the basis for this lawsuit, and to communications regarding PCBs, the
subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in America Unites to remain private
could be redacted so as to balance any associational issues with the Court’s strong
interest in ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire
case is premised on data from the “Independent Tests” referenced in Plaintiffs’
FAC, and it is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. AU’S CONTENTIONS REGARDING RFP NO. 19.
This request seeks documents concerning the identity of the individuals who
took samples used in the Third Set of Independent Tests. Defendants have not
shown that the requested information is relevant. As discussed below, the
information is not necessary for resolution of any of the issues in this case.
Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who took samples of
caulk at the Malibu Schools is relevant because Plaintiffs are purportedly relying on
the Third Set of Independent Tests. However, as discussed above, Plaintiffs are not
relying on the Third Set of Independent Tests in five of the six rooms tested. There
is no possible reason why Defendants would need to know the identities of the
persons who took samples for tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
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information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (Plant Decl.
Ex. D., ¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. (See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2,
attached at Avrith Decl. Ex. 2) (“Plaintiffs now move for a preliminary injunction
requiring Defendants to immediately cease use of the other 10 rooms that
Defendants’ own testing has shown to have illegal levels of PCBs in caulk ….”)
(emphasis added).
Defendants also contend that they need to confirm the specific locations from
which the samples were obtained, so they can prepare their defenses that those areas
from which the samples were taken have been remediated. This contention is
equally without merit. Plaintiffs are not relying on the Independent Tests for any
purpose with respect to any of the rooms that Defendants claim to have remediated.
Thus, there is nothing for Defendants to confirm.
Even with respect to the one room (JCES office) for which Plaintiffs continue
to rely on the Third Set of Independent Tests, Defendants do not need to know the
identities of the person who took the samples. Although Defendants conclusorily
contend they need this information to assess the reliability of the testing data, they
do not explain why that is the case. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from the lab analysis.
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In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms in which the Defendants did not test should be any less
reliable than the other 10 rooms where Defendants’ verification testing has
confirmed the accuracy of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to ten rooms sampled in the Independent Tests. Thus,
information which could lead to admissible evidence about whether or not there are
TSCA violations in these rooms can be obtained without revealing the persons who
took the independent samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987). Plaintiffs have made a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir.
2010) (quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir.
1983) (per curiam)). Disclosure of the identities of the samplers would severely
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discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. Denicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
Finally, documents concerning the identities of samplers which constitute
attorney-client communications or attorney work product are privileged. To the
extent that any such documents are relevant, Plaintiffs will list them on a privilege
log.
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C. INTERROGATORIES TO PEER REGARDING INDEPENDENT
SAMPLING.
Defendants’ Interrogatories 1, 2, 3, and 4 to PEER seek the identities of all
persons who obtained or collected the “Independent Tests” and other sample testing
conducted by Plaintiffs. Interrogatories 6 and 7 seek the identities of the person or
persons that authored or created the BC Labs and Eurofins Keys.
1. INTERROGATORY NO. 1
a. INTERROGATORY NO. 1.
IDENTIFY all PERSONS who have taken SAMPLES at the MALIBU
SCHOOLS.
b. RESPONSE TO INTERROGATORY NO. 1.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
1.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
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on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
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defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ independent
sampling.
d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 1.
This interrogatory seeks the identity of individuals who took samples at the
Malibu Schools. Defendants have not shown that the requested information is
relevant. As discussed below, the information is not necessary for resolution of any
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of the issues in this case. Moreover, the burden of providing it outweighs any
possible relevance.
As discussed above, Defendants contend that the identities of the individuals
who took samples of caulk at the Malibu Schools is relevant because Plaintiffs are
purportedly relying on “Independent Tests” of caulk samples in 13 rooms that
Plaintiffs conducted prior to the filing of this action. However, as also discussed
above, Plaintiffs are not relying on the Independent Tests in 10 of the 13 rooms.
There is no possible reason why Defendants would need to know the identities of
the persons who took samples for tests on which Plaintiffs are not relying.
Defendants argue that the identities of the samplers for the tests Plaintiffs are
not relying on is still relevant because the FAC refers to them. However, as
Plaintiffs’ counsel has explained to Defendants’ counsel, the FAC included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu Schools. The FAC also recites
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in 10 rooms. (¶¶ 127-29)
Defendants also contend that Plaintiffs’ motion for preliminary injunction
relied on the Independent Tests. Defendants are wrong. Plaintiffs’ motion only
sought an injunction with respect to the room where Defendants’ own testing had
shown illegal levels of PCBs. See, e.g., Plaintiffs’ Memorandum of Points and
Authorities in Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2
(“Plaintiffs now move for a preliminary injunction requiring Defendants to
immediately cease use of the other 10 rooms that Defendants’ own testing has
shown to have illegal levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
those areas from which the samples were taken have been remediated.” This
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contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the three rooms for which Plaintiffs continue to rely on
the Independent Tests, Defendants do not need to know the identities of the person
who took the samples. Although Defendants conclusorily contend they need this
information to assess the reliability of the testing data, they do not explain why that
is the case. Defendants’ reports of its own testing do not state the name of the
individuals who took the samples. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from a sample.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, at this point Plaintiffs have not even attempted to use any such
additional testing in the case. Moreover, Defendants do not explain why they need
to know the “extent” of the sample. The “extent” of the sample is not relevant to
determine a TSCA violation. Moreover, Defendants do not need to know the
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identities of the persons taking the samples to determine the “locations” of the
samples. The location of the sampling is shown on the lab reports which
Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the Independent Tests. Thus, information which could
lead to admissible evidence about whether or not there are TSCA violations in this
room can be obtained without revealing the persons who took the independent
samples.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
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allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
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Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
2. INTERROGATORY NO. 2.
a. INTERROGATORY NO. 2.
IDENTIFY all PERSONS who obtained or collected the “First Set of
Independent Tests,” referred to at paragraph 80 of the FAC, at the MALIBU
SCHOOLS.
b. RESPONSE TO INTERROGATORY NO. 2.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
2.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
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establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
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relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
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d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 2.
This interrogatory seeks the identity of individuals who took samples for the
First Set of Independent Tests at the Malibu Schools. Defendants have not shown
that the requested information is relevant. As discussed below, the information is
not necessary for resolution of any of the issues in this case. Moreover, the burden
of providing it outweighs any possible relevance.
Information regarding the “First Set of Independent Tests” is not relevant to
the matters at issue in this lawsuit because Defendants have verified through their
own testing that two out of the three rooms in the “First Set of Independent Tests”
were in violation of TSCA, the matter which Plaintiffs are seeking to prove in this
lawsuit. Although Defendants argue that Plaintiffs relied on this independent
testing in their Amended Complaint, in fact Plaintiffs’ Amended Complaint
included information about the independent testing primarily for informational
purposes and to describe the chronology of events at the Malibu School. Plaintiffs
also recited that Defendants had verified the independent test results and found
TSCA violations in every single one of 24 verification samples they took in ten
rooms, FAC ¶¶ 127-129, confirming the appropriateness of the methodology and
accuracy of the analysis of the independent testing generally, and making it
unnecessary to rely on the independent testing to prove Plaintiffs’ case at the least
with regard to the verified rooms and the buildings in which they are located. There
is no possible reason why Defendants would need to know the identities of the
persons who took samples for tests on which Plaintiffs are not relying. From the
First Set of Independent Tests, Plaintiffs would possibly introduce evidence only
with regard to the test results regarding MHS Room 722, a physical education
faculty office in which Defendants did not conduct verification testing or
remediation.
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Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. See, e.g., Plaintiffs’ Memorandum of Points and Authorities in
Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2 (“Plaintiffs
now move for a preliminary injunction requiring Defendants to immediately cease
use of the other 10 rooms that Defendants’ own testing has shown to have illegal
levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
those areas from which the samples were taken have been remediated.” This
contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the one room for which Plaintiffs continue to rely on the
First Set of Independent Tests, Defendants do not need to know the identities of the
person who took the samples. With regard to Room 722, Plaintiffs have produced
the laboratory reports, and a “key” supplying additional information on the location
of samples. Although Defendants conclusorily contend they need the identity of
the samplers to assess the reliability of the testing data, they do not explain why that
is the case. Defendants’ reports of its own testing do not state the name of the
individuals who took the samples. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from a sample.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
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from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the other Independent Tests. Thus, information which
could lead to admissible evidence about whether or not there are TSCA violations in
this room can be obtained without revealing the persons who took the independent
samples.
Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, this interrogatory only relates to the First Set of Independent Tests
and therefore the identity of the samples for different tests would not be responsive.
In addition, at this point Plaintiffs have not even attempted to use any such
additional testing in the case. Moreover, Defendants do not explain why they need
to know the “extent” of the sample. The “extent” of the sample is not relevant to
determine a TSCA violation. Moreover, Defendants do not need to know the
identities of the persons taking the samples to determine the “locations” of the
samples. The location of the sampling is shown on the lab reports which
Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
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Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiff’s ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
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allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
See Declarations of Paula Dinerstein and Jennifer DeNicola appended hereto.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
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3. INTERROGATORY NO. 3.
a. INTERROGATORY NO. 3.
IDENTIFY all PERSONS who obtained or collected the “Second Set of
Independent Tests,” referred to at paragraph 103 of the FAC.
b. RESPONSE TO INTERROGATORY NO. 3.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
3.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
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that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
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Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 3.
This interrogatory seeks the identity of individuals who took samples for the
Second Set of Independent Tests at the Malibu Schools. Defendants have not
shown that the requested information is relevant. As discussed below, the
information is not necessary for resolution of any of the issues in this case.
Moreover, the burden of providing it outweighs any possible relevance.
Information regarding the “Second Set of Independent Tests” is not relevant
to the matters at issue in this lawsuit because Defendants have verified through their
own testing that three out of the four rooms in the “Second Set of Independent
Tests” were in violation of TSCA, the matter which Plaintiffs are seeking to prove
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in this lawsuit. Although Defendants argue that Plaintiffs relied on this
independent testing in their Amended Complaint, in fact Plaintiffs’ Amended
Complaint included information about the independent testing primarily for
informational purposes and to describe the chronology of events at the Malibu
School. Plaintiffs also recited that Defendants had verified the independent test
results and found TSCA violations in every single one of 24 verification samples
they took in ten rooms, FAC ¶¶ 127-129, confirming the appropriateness of the
methodology and accuracy of the analysis of the independent testing generally, and
making it unnecessary to rely on the independent testing to prove Plaintiffs’ case at
the least with regard to the verified rooms and the buildings in which they are
located. There is no possible reason why Defendants would need to know the
identities of the persons who took samples for tests on which Plaintiffs are not
relying. From the Second Set of Independent Tests, Plaintiffs would possibly
introduce evidence only with regard to the test results regarding MHS Room 205, a
French language classroom in which Defendants did not conduct verification testing
or remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. See, e.g., Plaintiffs’ Memorandum of Points and Authorities in
Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2 (“Plaintiffs
now move for a preliminary injunction requiring Defendants to immediately cease
use of the other 10 rooms that Defendants’ own testing has shown to have illegal
levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
those areas from which the samples were taken have been remediated.” This
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contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the one room for which Plaintiffs continue to rely on the
Second Set of Independent Tests, Defendants do not need to know the identities of
the person who took the samples. With regard to Room 205, Plaintiffs have
produced the laboratory reports, and a “key” supplying additional information on
the location of samples. Although Defendants conclusorily contend they need the
identity of the samplers to assess the reliability of the testing data, they do not
explain why that is the case. Defendants’ reports of its own testing do not state the
name of the individuals who took the samples. The test data is a product of a lab
analysis of the samples. There is nothing that the sampler can do to affect the
reliability of the data derived from a sample.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the other Independent Tests. Thus, information which
could lead to admissible evidence about whether or not there are TSCA violations in
this room can be obtained without revealing the persons who took the independent
samples.
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Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, this interrogatory only relates to the Second Set of Independent
Tests and therefore the identity of the samples for different tests would not be
responsive. In addition, at this point Plaintiffs have not even attempted to use any
such additional testing in the case. Moreover, Defendants do not explain why they
need to know the “extent” of the sample. The “extent” of the sample is not relevant
to determine a TSCA violation. Moreover, Defendants do not need to know the
identities of the persons taking the samples to determine the “locations” of the
samples. The location of the sampling is shown on the lab reports which
Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiff’s ability to fulfill their mission of advocating for remediation of
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environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
See Declarations of Paula Dinerstein and Jennifer DeNicola appended hereto.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
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Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
4. INTERROGATORY NO. 4.
a. INTERROGATORY NO. 4.
IDENTIFY all PERSONS who obtained or collected the “Third Set of
Independent Tests,” referred to at paragraph 109 of the FAC.
b. RESPONSE TO INTERROGATORY NO. 4.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
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c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
4.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
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[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
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with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 4.
This interrogatory seeks the identity of individuals who took samples for the
Third Set of Independent Tests at the Malibu Schools. Defendants have not shown
that the requested information is relevant. As discussed below, the information is
not necessary for resolution of any of the issues in this case. Moreover, the burden
of providing it outweighs any possible relevance. Information regarding the “Third
Set of Independent Tests” is not relevant to the matters at issue in this lawsuit
because Defendants have verified through their own testing that four out of the five
rooms in the “Third Set of Independent Tests” were in violation of TSCA, the
matter which Plaintiffs are seeking to prove in this lawsuit.
Although Defendants argue that Plaintiffs relied on this independent testing in
their Amended Complaint, in fact Plaintiffs’ Amended Complaint included
information about the independent testing primarily for informational purposes and
to describe the chronology of events at the Malibu School. Plaintiffs also recited
that Defendants had verified the independent test results and found TSCA violations
in every single one of 24 verification samples they took in ten rooms, FAC ¶¶ 127-
129, confirming the appropriateness of the methodology and accuracy of the
analysis of the independent testing generally, and making it unnecessary to rely on
the independent testing to prove Plaintiffs’ case at the least with regard to the
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verified rooms and the buildings in which they are located. There is no possible
reason why Defendants would need to know the identities of the persons who took
samples for tests on which Plaintiffs are not relying. From the Third Set of
Independent Tests, Plaintiffs would possibly introduce evidence only with regard to
the test results regarding a JCES office next to the teacher’s lounge, which includes
the principal’s office, in which Defendants did not conduct verification testing or
remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. See, e.g., Plaintiffs’ Memorandum of Points and Authorities in
Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2 (“Plaintiffs
now move for a preliminary injunction requiring Defendants to immediately cease
use of the other 10 rooms that Defendants’ own testing has shown to have illegal
levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
those areas from which the samples were taken have been remediated.” This
contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the one room for which Plaintiffs continue to rely on the
Third Set of Independent Tests, Defendants do not need to know the identities of the
person who took the samples. With regard to the JCES Office, Plaintiffs have
produced the laboratory reports. Although Defendants conclusorily contend they
need the identity of the samplers to assess the reliability of the testing data, they do
not explain why that is the case. Defendants’ reports of its own testing do not state
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the name of the individuals who took the samples. The test data is a product of a lab
analysis of the samples. There is nothing that the sampler can do to affect the
reliability of the data derived from a sample.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the other Independent Tests. Thus, information which
could lead to admissible evidence about whether or not there are TSCA violations in
this room can be obtained without revealing the persons who took the independent
samples.
Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, this interrogatory only relates to the Third Set of Independent Tests
and therefore the identity of the samples for different tests would not be responsive.
In addition, at this point Plaintiffs have not even attempted to use any such
additional testing in the case. Moreover, Defendants do not explain why they need
to know the “extent” of the sample. The “extent” of the sample is not relevant to
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determine a TSCA violation. Moreover, Defendants do not need to know the
identities of the persons taking the samples to determine the “locations” of the
samples. The location of the sampling is shown on the lab reports which
Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiff’s ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
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discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
See Declarations of Paula Dinerstein and Jennifer DeNicola appended hereto.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
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reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
5. INTERROGATORY NO. 6.
a. INTERROGATORY NO. 6.
IDENTIFY the PERSON or PERSONS that authored or created the BC
LABS KEY.
b. RESPONSE TO INTERROGATORY NO. 6.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
6.
The “BC Labs Key” refers to the “Key to BC Laboratories, Inc [sic] Report.”
This key, which was created by Plaintiffs, purportedly shows the locations from
which independent sampling was taken. A true and correct copy of the “BC Labs
Key” is attached to the Declaration of Caroline L. Plant as Exhibit J.
Relevancy is not a valid objection to this Interrogatory. Under Rule 26(b)(1),
parties may obtain discovery regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
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The identity of the author of this key is certainly relevant, because the author
possesses discoverable information that will assist Defendants in identifying the
specific locations where independent testing occurred and establish a chain of
custody. One of Defendants’ defenses is that the samples, which form the basis of
Plaintiffs’ TSCA lawsuit, have been remediated, and accordingly, Plaintiffs’ claims
are moot. Defendants are entitled to take discovery, including depositions, of the
individuals to confirm the specific locations from which the samples were obtained.
Further, Defendants are entitled to this information so that they can examine the
chain of custody for the samples, and assess the reliability of the sampling data on
which Plaintiffs’ TSCA claim is founded.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who authored the BC Labs Key.
d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 6.
This interrogatory seeks the identity of the individuals who created the “BC
Labs key,” which shows the locations from which independent sampling was taken.
Defendants have not shown that the requested information is relevant. As discussed
below, the information is not necessary for resolution of any of the issues in this
case. Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who created the key
is relevant because the “author possesses discoverable information that will assist
Defendants in identifying the specific locations where independent testing occurred
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and establish a chain of custody.” However, as discussed above, Plaintiffs are not
relying on the Independent Tests in 10 of the 13 rooms. There is no possible reason
why Defendants would need to know this information for tests on which Plaintiffs
are not relying.
Moreover, with respect to the Independent Tests on which Plaintiffs continue
to rely, the location of the sampling is shown on the lab reports which Defendants
already have. The exact location of the sampling is irrelevant. Defendants’
obligation to remediate is not limited to the exact square inch where a sample was
taken. The lab reports also contain whatever chain of custody information
Defendants need.
Furthermore, the potential for harm to Plaintiffs or the persons creating the
key by disclosure of the requested information greatly outweighs any possible
benefit of disclosure. As discussed above, Defendants have already filed a
malicious criminal complaint for trespassing and vandalism against individuals who
allegedly took samples. Although the District Attorney declined to file any charges,
Plaintiffs are legitimately concerned that Defendants will use the requested
information to initiate similar charges against the samplers or otherwise retaliate
against them.
Forced disclosure of the identities of those who created the key would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
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claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the persons who created the key (and
therefore either were the samplers or obtained the information about the locations
from the samplers) would severely discourage Plaintiffs’ ability to gather evidence
of environmental violations because Plaintiffs would be unable to protect the
samplers’ confidentiality, and thus lose the confidence of their informants, thereby
severely hampering Plaintiffs’ organizational missions. It could also result in
harassment of individuals who took the samples. Defendants have already filed a
false criminal complaint against the President of America Unites, Ms. DeNicola,
and her husband, seeking to subject them to felony charges punishable by fines and
imprisonment, for allegedly taking caulk samples. It is difficult to imagine a more
“chilling” action against those who advocate for PCB testing and remediation at the
Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
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Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the persons creating the key.
6. INTERROGATORY NO. 7.
a. INTERROGATORY NO. 7.
IDENTIFY the PERSON or PERSONS that authored or created the
EUROFINS KEY.
b. RESPONSE TO INTERROGATORY NO. 7.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is not relevant to the party’s claims or defenses or the subject matter of this
action.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
7.
The “EUROFINS KEY” refers to the key to Work Order 14-08-1493. This
key, which was created by Plaintiffs, purportedly shows the locations from which
sampling was taken. A true and correct copy of the “Eurofins Key” is attached to
the Declaration of Caroline L. Plant as Exhibit K.
Relevancy is not a valid objection to this Interrogatory. Under Rule 26(b)(1),
parties may obtain discovery regarding:
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[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identity of the author of this key is certainly relevant, because the author
possesses discoverable information that will assist Defendants in identifying the
specific locations where independent testing occurred and establish a chain of
custody. One of Defendants’ defenses is that the samples, which form the basis of
Plaintiffs’ TSCA lawsuit, have been remediated, and accordingly, Plaintiffs’ claims
are moot. Defendants are entitled to take discovery, including depositions, of the
individuals to confirm the specific locations from which the samples were obtained.
Further, Defendants are entitled to this information so that they can examine the
chain of custody for the samples, and assess the reliability of the sampling data on
which Plaintiffs’ TSCA claim is founded.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who authored the Eurofins Key.
d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 7.
This interrogatory seeks the identity of the individuals who created the
“Eurofins key,” which shows the locations from which independent sampling was
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taken. Defendants have not shown that the requested information is relevant. As
discussed below, the information is not necessary for resolution of any of the issues
in this case. Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who created the key
is relevant because the “author possesses discoverable information that will assist
Defendants in identifying the specific locations where independent testing occurred
and establish a chain of custody.” However, as discussed above, Plaintiffs are not
relying on the Independent Tests in 10 of the 13 rooms. There is no possible reason
why Defendants would need to know this information for tests on which Plaintiffs
are not relying.
Moreover, with respect to the Independent Tests on which Plaintiffs continue
to rely, the location of the sampling is shown on the lab reports which Defendants
already have. The exact location of the sampling is irrelevant. Defendants’
obligation to remediate is not limited to the exact square inch where a sample was
taken. The lab reports also contain whatever chain of custody information
Defendants need.
Furthermore, the potential for harm to Plaintiffs or the persons creating the
key by disclosure of the requested information greatly outweighs any possible
benefit of disclosure. As discussed above, Defendants have already filed a
malicious criminal complaint for trespassing and vandalism against individuals who
allegedly took samples. Although the District Attorney declined to file any charges,
Plaintiffs are legitimately concerned that Defendants will use the requested
information to initiate similar charges against the samplers or otherwise retaliate
against them.
Forced disclosure of the identities of those who created the key (and therefore
either were the samplers or obtained information from the samplers) would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
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environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“[I]f the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her, especially
the identity of those she represents, GAP will lose the confidence of
some of its whistleblower informants and its efforts to gather and
present safety allegations will suffer. This is the harm that GAP
claims, and it is cognizable under the [First Amendment] right to
association.”
Plaintiffs have made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. DeNicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
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Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the persons creating the key.
D. REQUESTS FOR PRODUCTION TO PEER REGARDING
INDEPENDENT SAMPLING
Requests for Production No. 6, 8, 21, 22, 24, 26, and 27 seek information
regarding the “Independent Tests” referred to in Plaintiffs’ FAC.
1. REQUEST FOR PRODUCTION NO. 6.
a. REQUEST FOR PRODUCTION NO. 6.
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the “First Set of Independent Tests,” referred to at paragraph 80 of the
FAC, at the MALIBU SCHOOLS.
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b. RESPONSE TO REQUEST FOR PRODUCTION NO. 6.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 6.
i. Relevancy Is Not a Valid Objection to RFP No.6.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D; ¶ 32, H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
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Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
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action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections.
Plaintiff’s objection that that this Request is vague, ambiguous and overbroad
is unfounded. “The party who resists discovery has the burden to show discovery
should not be allowed, and has the burden of clarifying, explaining, and supporting
its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D. Cal. 2007) (citing
Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975) and Keith H. v.
Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal. 2005)). There is
no merit to “general or boilerplate objections such as ‘overly broad’ [or] ‘vague and
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ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber & Partners, Inc. v. Garber, 234
F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested documents identifying those
individuals who obtained or collected samples in the “Independent Tests” referred
to in Plaintiffs’ very own FAC. Plaintiff need only produce those documents that
identify samplers or others in the chain of custody for these tests. Without further
explanation, Plaintiff’s objection is without merit, and Plaintiff should produce
documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
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the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
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documents identifying those who obtained or collected samples in Plaintiffs’
independent testing bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request information sought, because
the data from the “Independent Tests” will surely be used against Defendants in this
litigation, and Defendants must be afforded the opportunity to confront the validity
and reliability of the data. This necessarily entails a complete knowledge of the
chain of custody, which can only be discovered through documents identifying
those involved in the testing process. Plaintiffs have not met the burden of
demonstrating the applicability of the work product doctrine, so their objection on
this basis is not appropriate. Accordingly, Plaintiffs may not refuse to produce
documents in response to Defendants’ Requests on the basis of attorney-client
privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith v. Davis, 161 F.R.D. at
692. For this reason, the common interest doctrine comes into play only if the
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communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
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nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Exs. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING REQUEST FOR PRODUCTION
NO. 6
This request for production seeks documents which identify the individuals
who took samples for the First Set of Independent Tests at the Malibu Schools.
Defendants have not shown that the requested information is relevant. As discussed
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below, the information is not necessary for resolution of any of the issues in this
case. Moreover, the burden of providing it outweighs any possible relevance.
Information regarding the “First Set of Independent Tests” is not relevant to
the matters at issue in this lawsuit because Defendants have verified through their
own testing that two out of the three rooms in the “First Set of Independent Tests”
were in violation of TSCA, the matter which Plaintiffs are seeking to prove in this
lawsuit. Although Defendants argue that Plaintiffs relied on this independent
testing in their Amended Complaint, in fact Plaintiffs’ Amended Complaint
included information about the independent testing primarily for informational
purposes and to describe the chronology of events at the Malibu School. Plaintiffs
also recited that Defendants had verified the independent test results and found
TSCA violations in every single one of 24 verification samples they took in ten
rooms, FAC ¶¶ 127-129, confirming the appropriateness of the methodology and
accuracy of the analysis of the independent testing generally, and making it
unnecessary to rely on the independent testing to prove Plaintiffs’ case at the least
with regard to the verified rooms and the buildings in which they are located. There
is no possible reason why Defendants would need to know the identities of the
persons who took samples for tests on which Plaintiffs are not relying. From the
First Set of Independent Tests, Plaintiffs would possibly introduce evidence only
with regard to the test results regarding MHS Room 722, a physical education
faculty office in which Defendants did not conduct verification testing or
remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. See, e.g., Plaintiffs’ Memorandum of Points and Authorities in
Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2 (“Plaintiffs
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now move for a preliminary injunction requiring Defendants to immediately cease
use of the other 10 rooms that Defendants’ own testing has shown to have illegal
levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
those areas from which the samples were taken have been remediated.” This
contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the one room for which Plaintiffs continue to rely on the
First Set of Independent Tests, Defendants do not need to know the identities of the
person who took the samples. With regard to Room 722, Plaintiffs have produced
the laboratory reports, and a “key” supplying additional information on the location
of samples. Although Defendants conclusorily contend they need the identity of
the samplers to assess the reliability of the testing data, they do not explain why that
is the case. Defendants’ reports of its own testing do not state the name of the
individuals who took the samples. The test data is a product of a lab analysis of the
samples. There is nothing that the sampler can do to affect the reliability of the data
derived from a sample.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
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Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the other Independent Tests. Thus, information which
could lead to admissible evidence about whether or not there are TSCA violations in
this room can be obtained without revealing the persons who took the independent
samples.
Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, this document request only relates to the First Set of Independent
Tests and therefore the identity of the samples for different tests would not be
responsive. In addition, at this point Plaintiffs have not even attempted to use any
such additional testing in the case. Moreover, Defendants do not explain why they
need to know the “extent” of the sample. The “extent” of the sample is not relevant
to determine a TSCA violation. Moreover, Defendants do not need to know the
identities of the persons taking the samples to determine the “locations” of the
samples. The location of the sampling is shown on the lab reports which
Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
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Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiff’s ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
See Declarations of Paula Dinerstein and Jennifer DeNicola appended hereto.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
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information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
2. REQUEST FOR PRODUCTION NO. 8.
a. REQUEST FOR PRODUCTION NO. 8.
All COMMUNICATIONS by and between PEER and AMERICA UNITES
regarding the “First Set of Independent Tests,” referred to at paragraph 80 of the
FAC.

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b. RESPONSE TO REQUEST FOR PRODUCTION NO. 8.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 8.
i. Relevancy Is Not a Valid Objection to RFP No. 8.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. B; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
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Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for further information regarding this
sampling, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
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Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, non-privileged communications between Plaintiffs related to the
“Independent Testing” are relevant and should be produced. Communications
regarding the independent sampling will provide additional information regarding
the location from which sampling was taken, will identity witnesses, and will
provide additional information relevant to Defendants defenses in this
matter. Further, Plaintiffs have provided no valid grounds on which these
communications should withheld. Any communications which Plaintiffs deem to be
privileged can be withheld or redacted as appropriate.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 8.
Plaintiff’s objection that Requests for Production No. 8 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
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broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested communications identifying
those individuals who obtained or collected samples in the “Independent Tests”
referred to in Plaintiffs’ very own FAC. Plaintiff need only look for
communications and documents that identify samplers or others in the chain of
custody for these tests. Without further explanation, Plaintiff’s objection is without
merit, and Plaintiff should produce documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 8.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
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the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Communications regarding Plaintiffs’ “Independent Tests” are not protected
by the attorney-client privilege to the extent that they include communications
regarding the data, methodology, or chain of custody of these tests and
correspondences including information from the environmental testing entities
engaged in the testing process. Defendants’ request is not asking for
communications between Plaintiffs and their counsel. Plaintiffs have failed to
indicate in their responses which communications they believe to be protected by
the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly,
Plaintiffs may not refuse to produce documents in response to Defendants’ Requests
on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
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correspondences between the Plaintiffs regarding the “Independent Tests” referred
to in the FAC bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request the information sought,
because the data from the “Independent Tests” will surely be used against
Defendants in this litigation, and Defendants must be afforded the opportunity to
confront the validity and reliability of the data. This necessarily entails a complete
knowledge of the chain of custody, which can only be discovered through
documents identifying those involved in the testing process. Plaintiffs have not met
the burden of demonstrating the applicability of the work product doctrine, so their
objection on this basis is not appropriate. Accordingly, Plaintiffs may not refuse to
produce documents in response to Defendants’ Requests on the basis of attorney-
client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith v. Davis, 161 F.R.D. at
692. For this reason, the common interest doctrine comes into play only if the
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communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the
communications requested would lead to “harassment, membership withdrawal, or
discouragement of new members,” or that it would result in other consequences that
could “chill” members’ associational rights. The Request for communications
regarding the “Independent Tests” calls for communications regarding the chain of
custody documents and documents prepared for Plaintiffs by environmental testing
companies. The Request propounded by Defendants is not seeking personal
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information, does nothing to harass members of Plaintiff organizations, and would
not have a deterrent effect on membership. Moreover, the materials requested by
Defendants are necessary so that Defendants can defend themselves in this
litigation, and fairness justifies their production. Defendants will not be afforded a
fair discovery if they are precluded from accessing information regarding the
independent testing data acquired by Plaintiffs, which will surely be used against
Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Ex. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 8.
Relevance
Information regarding the “First Set of Independent Tests” is not relevant to
the matters at issue in this lawsuit because Defendants have verified through their
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own testing that two out of the three rooms in the “First Set of Independent Tests”
were in violation of TSCA, the matter which Plaintiffs are seeking to prove in this
lawsuit. Although Defendants argue that Plaintiffs relied on this independent
testing in their Amended Complaint, in fact Plaintiffs’ Amended Complaint
included information about the independent testing primarily for informational
purposes and to describe the chronology of events at the Malibu School. Plaintiffs
also recited that Defendants had verified the independent test results and found
TSCA violations in every single one of 24 verification samples they took in ten
rooms, FAC ¶¶ 127-129, confirming the appropriateness of the methodology and
accuracy of the analysis of the independent testing generally, and making it
unnecessary to rely on the independent testing to prove Plaintiffs’ case at the least
with regard to the verified rooms and the buildings in which they are located. From
the First Set of Independent Tests, Plaintiffs would possibly introduce evidence only
with regard to the test results regarding MHS Room 722, a physical education
faculty office in which Defendants did not conduct verification testing or
remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. Dkt. 14 at p. 18.
With regard to Room 722, Plaintiffs have produced the laboratory reports,
and a “key” supplying additional information on the location of samples.
Defendants have supplied no valid reason that they need more than this, or how the
request for communications between PEER and America Unites about the First Set
of Independent Tests is reasonably calculated to lead to the discovery of admissible
evidence. Defendants’ claim that they need more information on the exact location
of the sampling to prepare their defense of mootness because that area had been
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remediated is not applicable here because Defendants have not claimed to have
remediated this room.
As for using these communications to attempt to identify the samplers, this is
an effort to harass those individuals, as explained above and below. If Defendants
wish to challenge the reliability of the independent tests for the one room in the First
Set of Independent Tests which it did not verify with its own testing, it may rely on
the chain of custody and other information in the laboratory report and on the
information it receives from its subpoenas to the laboratories. Since the issue in the
case is not actually whether the independent tests are accurate, but whether or not
there are TSCA violations in the room, Defendants could determine this fact, as they
did with regard to the other independent tests, by analyzing their own verification
samples. Thus, any information which could lead to admissible evidence about
whether or not there are TSCA violations in this room can be obtained without
revealing the persons who took the independent samples and subjecting them to
possible harassment and attempts at criminal prosecution.
Vagueness, Ambiguity, and Overbreadth
This request is vague, ambiguous and overbroad because it pertains to all
communications “by and between” PEER and America Unites regarding the First
Set of Independent Tests. There is no limitation as to subject matter of
communications other than the topic of the independent tests, or of who is involved
in the communications. In addition, it is not clear what is meant by “by and
between PEER and America Unites,” i.e. whether the requests encompass all
communications by either PEER or America Unites to anyone about these tests.
Defendants claim that “Plaintiff need only look for communications and documents
that identify samplers or others in the chain of custody for those tests.” However,
by its terms, the request is far broader, vaguer and more ambiguous than that.
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Attorney-Client, Attorney Work Product and Common Interest
Communication Privileges
Defendants state that they are not asking for communications between
Plaintiffs and their counsel. However, all communications between America Unites
and PEER regarding the independent tests would involve PEER counsel, as no one
else at PEER communicated with America Unites about these matters. PEER and
America Unites are jointly pursuing this case, and therefore communications with
either PEER or America Unites counsel (America Unites counsel is also PEER
counsel) would be privileged pursuant to the attorney-client privilege and common
interest doctrine. Therefore, all the communications sought in this request would be
privileged.
If this request is seeking communications by PEER to anyone regarding the
First Set of Independent Tests, PEER considers that all persons who contact PEER
are seeking legal advice or assistance, and therefore their communications are
attorney-client privileged. (See PEER webpage, Ex. 1 to Dinerstein Declaration.)
PEER has already provided all non-privileged communications responsive to this
request in its possession in its discovery production – i.e. communications with the
general public, the media, and government officials.
First Amendment Privilege
PEER is a whistleblower organization which promises confidentiality to all
those who contact it concerning environmental issues and government wrongdoing.
Confidentiality is promised with regard to the content of the communication and not
only the identity of the person. (See PEER webpage, Ex. 1 to Dinerstein
Declaration.) This promise of confidentiality applies to all of those who have
contacted PEER about the PCBs in the Malibu Schools, whether or not they are
associated with America Unites. If PEER were to disclose communications with
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those persons in discovery, it would greatly inhibit PEER’s ability to function as an
organization where people may raise issues in confidence.7
In a case involving another whistleblower organization, the Government
Accountability Project (GAP), in which a subpoena seeking information about its
informants was quashed, the court stated:
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the right to association.”
United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987).
The same would hold for PEER, which has thus made a “prima facie showing
of arguable first amendment infringement.” Perry v. Schwarzenegger, 591 F.3d
1126, 1140 (9th Cir. 2010) (quoting United States v. Trader’s State Bank, 695 F.2d
1132, 1133 (9th Cir. 1983) (per curiam)). Disclosure of communications between
members of the public and PEER is likely to result in discouraging such
communications because PEER is unable to protect their confidentiality, thereby
severely hampering PEER’s organizational mission. It could also result in

7 Defendants claim that PEER is “publicly vocal about its activities and its
membership, listing members of its Board and DC Staff on its website.” Although
PEER may be publicly vocal about its activities, and does list the members of its
Board and staff on its website, revealing the identity of PEER’s employees and
Board is an entirely different matter from revealing the identities of or the content
of communications with those who contact PEER in confidence. PEER does not
reveal its membership list to anyone. While certain members may choose to
reveal their membership in PEER or their communications with PEER, PEER has
promised them confidentiality and would never reveal their identities or the
contents of their communications without their permission. No such permission
has been given here.
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harassment of individuals who are parties to these communications. Defendants
have already filed a false criminal complaint against the President of America
Unites, Ms. DeNicola, and her husband, seeking to subject them to felony charges
punishable by fines and imprisonment, for allegedly taking caulk samples. It is
difficult to imagine a more “chilling” action against those who advocate for PCB
testing and remediation at the Malibu Schools.
It is more than understandable that persons who communicate with PEER on
this subject would not want their communications disclosed. In fact, given the
marginal, if any, relevance to this litigation of the communications sought here, one
cannot help but suspect that this discovery is being sought for the purpose of
harassing people who have communicated with PEER about PCBs at the Malibu
Schools. It should also be noted that teachers and other staff who are employees of
Defendants, on whose behalf PEER advocates, are even more vulnerable to
harassment and retaliation than parents at the school such as Mr. and Ms. DeNicola,
since they depend on the Defendants for their employment and all of the conditions
of that employment.
Defendants suggest that “names and email addresses of those members who
would like their membership in PEER to remain private could be redacted …”.
However, while persons who communicate with PEER certainly have First
Amendment protection against revealing the fact of their membership and their
personal contact information, NAACP v. State of Alabama, 357 U.S. 449 (1958), the
First Amendment also protects the confidentiality of the fact that they have
communicated with PEER, whether or not they are members of PEER, and protects
the content of their communications. The Ninth Circuit in Perry ordered protection
of communications, not the identities of members, emphasizing that:
“The First Amendment privilege, however, has never been limited to
the disclosure of identities of rank-and-file members. … The existence
of a prima facie case turns not on the type of information sought, but
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on whether disclosure of the information will have a deterrent effect on
the exercise of protected activities.”
591 F.3d at 1162 (citations omitted).
In addition, given the relatively small size of the community at the Malibu
Schools, it is likely that the identity of those communicating could be deduced from
the content of the communication even if names are redacted.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government . . . [to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest . . . [and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation — a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. Moreover, there are other means of
acquiring the desired information – whether or not there are TSCA violations in the
locations of the First Set of Independent Tests – namely, by examining the
laboratory reports and the information provided in accordance with Defendants’
subpoenas to the laboratories, or by conducting verification testing, without
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requiring PEER to disclose its communications with its members, supporters and
others who have contacted PEER concerning PCBs at the Malibu Schools.
Again, PEER has already provided all non-privileged communications
responsive to this request in its possession in its discovery production – i.e.
communications with the general public, the media, and government officials.
3. REQUEST FOR PRODUCTION NO. 21.
a. REQUEST FOR PRODUCTION NO. 21.
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the “Second Set of Independent Tests,” referred to at paragraph 103 of
The FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 21.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 21.
i. Relevancy Is Not a Valid Objection to RFP No. 21.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
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establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
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relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
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ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 21.
Plaintiff’s objection that Requests for Production No. 21 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested documents identifying those
individuals who obtained or collected samples in the “Independent Tests” referred
to in Plaintiffs’ very own FAC. Plaintiff need only look for documents that identify
samplers or others in the chain of custody for these tests. Without further
explanation, Plaintiff’s objection is without merit, and Plaintiff should produce
documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 21.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
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and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
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The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
documents identifying those who obtained or collected samples in Plaintiffs’
independent testing bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request information sought, because
the data from the “Independent Tests” will surely be used against Defendants in this
litigation, and Defendants must be afforded the opportunity to confront the validity
and reliability of the data. This necessarily entails a complete knowledge of the
chain of custody, which can only be discovered through documents identifying
those involved in the testing process. Plaintiffs have not met the burden of
demonstrating the applicability of the work product doctrine, so their objection on
this basis is not appropriate. Accordingly, Plaintiffs may not refuse to produce
documents in response to Defendants’ Requests on the basis of attorney-client
privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
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common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith v. Davis, 161 F.R.D. at
692. For this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
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of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Ex. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
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ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 21.
This request for production seeks documents identifying the individuals who
obtained or collected the Second Set of Independent Tests. Defendants have not
shown that the requested information is relevant. As discussed below, the
information is not necessary for resolution of any of the issues in this case.
Moreover, the burden of providing it outweighs any possible relevance.
Information regarding the “Second Set of Independent Tests” is not relevant
to the matters at issue in this lawsuit because Defendants have verified through their
own testing that three out of the four rooms in the “Second Set of Independent
Tests” were in violation of TSCA, the matter which Plaintiffs are seeking to prove
in this lawsuit. Although Defendants argue that Plaintiffs relied on this
independent testing in their Amended Complaint, in fact Plaintiffs’ Amended
Complaint included information about the independent testing primarily for
informational purposes and to describe the chronology of events at the Malibu
School. Plaintiffs also recited that Defendants had verified the independent test
results and found TSCA violations in every single one of 24 verification samples
they took in ten rooms, FAC ¶¶ 127-129, confirming the appropriateness of the
methodology and accuracy of the analysis of the independent testing generally, and
making it unnecessary to rely on the independent testing to prove Plaintiffs’ case at
the least with regard to the verified rooms and the buildings in which they are
located. There is no possible reason why Defendants would need to know the
identities of the persons who took samples for tests on which Plaintiffs are not
relying. From the Second Set of Independent Tests, Plaintiffs would possibly
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introduce evidence only with regard to the test results regarding MHS Room 205, a
French language classroom in which Defendants did not conduct verification testing
or remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. See, e.g., Plaintiffs’ Memorandum of Points and Authorities in
Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2 (“Plaintiffs
now move for a preliminary injunction requiring Defendants to immediately cease
use of the other 10 rooms that Defendants’ own testing has shown to have illegal
levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
those areas from which the samples were taken have been remediated.” This
contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the one room for which Plaintiffs continue to rely on the
Second Set of Independent Tests, Defendants do not need to know the identities of
the person who took the samples. With regard to Room 205, Plaintiffs have
produced the laboratory reports, and a “key” supplying additional information on
the location of samples. Although Defendants conclusorily contend they need the
identity of the samplers to assess the reliability of the testing data, they do not
explain why that is the case. Defendants’ reports of its own testing do not state the
name of the individuals who took the samples. The test data is a product of a lab
analysis of the samples. There is nothing that the sampler can do to affect the
reliability of the data derived from a sample.
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In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the other Independent Tests. Thus, information which
could lead to admissible evidence about whether or not there are TSCA violations in
this room can be obtained without revealing the persons who took the independent
samples.
Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, this document request only relates to the Second Set of
Independent Tests and therefore the identity of the samplers for different tests would
not be responsive. In addition, at this point Plaintiffs have not even attempted to use
any such additional testing in the case. Moreover, Defendants do not explain why
they need to know the “extent” of the sample. The “extent” of the sample is not
relevant to determine a TSCA violation. Moreover, Defendants do not need to
know the identities of the persons taking the samples to determine the “locations” of
the samples. The location of the sampling is shown on the lab reports which
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Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiff’s ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
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individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
See Declarations of Paula Dinerstein and Jennifer DeNicola appended hereto.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
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contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
4. REQUEST FOR PRODUCTION NO. 22.
a. REQUEST FOR PRODUCTION NO. 22.
All COMMUNICATIONS by and between PEER and AMERICA UNITES,
regarding the “Second Set of Independent Tests,” referred to at paragraph 103 of the
FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 22.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 22.
i. Relevancy Is Not a Valid Objection to RFP No. 22.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
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Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
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depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, non-privileged communications between Plaintiffs related to the
“Independent Testing” are relevant and should be produced. Communications
regarding the independent sampling will provide additional information regarding
the location from which sampling was taken, will identity witnesses, and will
provide additional information relevant to Defendants defenses in this
matter. Further, Plaintiffs have provided no valid grounds on which these
communications should withheld. Any communications which Plaintiffs deem to be
privileged can be withheld or redacted as appropriate.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
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ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 22.
Plaintiff’s objection that Requests for Production No. 22 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested communications identifying
those individuals who obtained or collected samples in the “Independent Tests”
referred to in Plaintiffs’ very own FAC. Plaintiff need only look for
communications and documents that identify samplers or others in the chain of
custody for these tests. Without further explanation, Plaintiff’s objection is without
merit, and Plaintiff should produce documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 22.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
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and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Communications regarding Plaintiffs’ “Independent Tests” are not protected
by the attorney-client privilege to the extent that they include communications
regarding the data, methodology, or chain of custody of these tests and
correspondences including information from the environmental testing entities
engaged in the testing process. Defendants’ request is not asking for
communications between Plaintiffs and their counsel. Plaintiffs have failed to
indicate in their responses which communications they believe to be protected by
the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly,
Plaintiffs may not refuse to produce documents in response to Defendants’ Requests
on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
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The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
correspondences between the Plaintiffs regarding the “Independent Tests” referred
to in the FAC bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request the information sought,
because the data from the “Independent Tests” will surely be used against
Defendants in this litigation, and Defendants must be afforded the opportunity to
confront the validity and reliability of the data. This necessarily entails a complete
knowledge of the chain of custody, which can only be discovered through
documents identifying those involved in the testing process. Plaintiffs have not met
the burden of demonstrating the applicability of the work product doctrine, so their
objection on this basis is not appropriate. Accordingly, Plaintiffs may not refuse to
produce documents in response to Defendants’ Requests on the basis of attorney-
client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
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common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
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of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the
communications requested would lead to “harassment, membership withdrawal, or
discouragement of new members,” or that it would result in other consequences that
could “chill” members’ associational rights. The Request for communications
regarding the “Independent Tests” calls for communications regarding the chain of
custody documents and documents prepared for Plaintiffs by environmental testing
companies. The Request propounded by Defendants is not seeking personal
information, does nothing to harass members of Plaintiff organizations, and would
not have a deterrent effect on membership. Moreover, the materials requested by
Defendants are necessary so that Defendants can defend themselves in this
litigation, and fairness justifies their production. Defendants will not be afforded a
fair discovery if they are precluded from accessing information regarding the
independent testing data acquired by Plaintiffs, which will surely be used against
Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Exs. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
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redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 22.
Relevance
Information regarding the “Second Set of Independent Tests” is not relevant
to the matters at issue in this lawsuit because Defendants have verified through their
own testing that three out of the four rooms in the “Second Set of Independent
Tests” were in violation of TSCA, the matter which Plaintiffs are seeking to prove
in this lawsuit. Although Defendants argue that Plaintiffs relied on this independent
testing in their Amended Complaint, in fact Plaintiffs’ Amended Complaint
included information about the independent testing primarily for informational
purposes and to describe the chronology of events at the Malibu School. Plaintiffs
also recited that Defendants had verified the independent test results and found
TSCA violations in every single one of 24 verification samples they took in ten
rooms, FAC ¶¶ 127-129, confirming the appropriateness of the methodology and
accuracy of the analysis of the independent testing generally, and making it
unnecessary to rely on the independent testing to prove Plaintiffs’ case at the least
with regard to the verified rooms and the buildings in which they are located. From
the Second Set of Independent Tests, Plaintiffs would possibly introduce evidence
only with regard to the test results regarding MHS Room 205, a French language
classroom in which Defendants did not conduct verification testing or remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
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in which the District had verified TSCA violations, and did not rely at all on the
independent testing. Dkt. 14 at p. 18.
With regard to Room 205, Plaintiffs have produced the laboratory reports,
and a “key” supplying additional information on the location of samples.
Defendants have supplied no valid reason that they need more than this, or how the
request for communications between PEER and America Unites about the Second
Set of Independent Tests is reasonably calculated to lead to the discovery of
admissible evidence. Defendants’ claim that they need more information on the
exact location of the sampling to prepare their defense of mootness because that
area had been remediated is not applicable here because Defendants have not
claimed to have remediated this room.
As for using these communications to attempt to identify the samplers, this is
an effort to harass those individuals, as explained above and below. If Defendants
wish to challenge the reliability of the independent tests for the one room in the
Second Set of Independent Tests which it did not verify with its own testing, it may
rely on the chain of custody and other information in the laboratory report and on
the information it receives from its subpoenas to the laboratories. Since the issue in
the case is not actually whether the independent tests are accurate, but whether or
not there are TSCA violations in the room, Defendants could determine this fact, as
they did with regard to the other independent tests, by analyzing their own
verification samples. Thus, any information which could lead to admissible
evidence about whether or not there are TSCA violations in this room can be
obtained without revealing the persons who took the independent samples and
subjecting them to possible harassment and attempts at criminal prosecution.
Vagueness, Ambiguity, and Overbreadth
This request is vague, ambiguous and overbroad because it pertains to all
communications “by and between” PEER and America Unites regarding the Second
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Set of Independent Tests. There is no limitation as to subject matter of
communications other than the topic of the independent tests, or of who is involved
in the communications. In addition, it is not clear what is meant by “by and
between PEER and America Unites,” i.e. whether the requests encompass all
communications by either PEER or America Unites to anyone about these tests.
Defendants claim that “Plaintiff need only look for communications and documents
that identify samplers or others in the chain of custody for those tests.” However,
by its terms, the request is far broader, vaguer and more ambiguous than that.
Attorney-Client, Attorney Work Product and Common Interest
Communication Privileges
Defendants state that they are not asking for communications between
Plaintiffs and their counsel. However, all communications between America Unites
and PEER regarding the independent tests would involve PEER counsel, as no one
else at PEER communicated with America Unites about these matters. PEER and
America Unites are jointly pursuing this case, and therefore communications with
either PEER or America Unites counsel (America Unites counsel is also PEER
counsel) would be privileged pursuant to the attorney-client privilege and common
interest doctrine. Therefore, all the communications sought in this request would be
privileged.
If this request is seeking communications by PEER to anyone regarding the
Second Set of Independent Tests, PEER considers that all persons who contact
PEER are seeking legal advice or assistance, and therefore their communications are
attorney-client privileged. (See PEER webpage, Ex. 1 to Dinerstein Declaration).
PEER has already provided all non-privileged communications responsive to this
request in its possession in its discovery production – i.e. communications with the
general public, the media, and government officials.
First Amendment Privilege
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PEER is a whistleblower organization which promises confidentiality to all
those who contact it concerning environmental issues and government wrongdoing.
Confidentiality is promised with regard to the content of the communication and not
only the identity of the person. (See PEER webpage, Ex. 1 to Dinerstein
Declaration). This promise of confidentiality applies to all of those who have
contacted PEER about the PCBs in the Malibu Schools, whether or not they are
associated with America Unites. If PEER were to disclose communications with
those persons in discovery, it would greatly inhibit PEER’s ability to function as an
organization where people may raise issues in confidence.8
In a case involving another whistleblower organization, the Government
Accountability Project (GAP), in which a subpoena seeking information about its
informants was quashed, the court stated:
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the right to association.”
United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987).

8 Defendants claim that PEER is “publicly vocal about its activities and its
membership, listing members of its Board and DC Staff on its website.” Although
PEER may be publicly vocal about its activities, and does list the members of its
Board and staff on its website, revealing the identity of PEER’s employees and
Board is an entirely different matter from revealing the identities of or the content
of communications with those who contact PEER in confidence. PEER does not
reveal its membership list to anyone. While certain members may choose to
reveal their membership in PEER or their communications with PEER, PEER has
promised them confidentiality and would never reveal their identities or the
contents of their communications without their permission. No such permission
has been given here.
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The same would hold for PEER, which has thus made a “prima facie showing
of arguable first amendment infringement.” Perry v. Schwarzenegger, 591 F.3d
1126, 1140 (9th Cir. 2010) (quoting United States v. Trader’s State Bank, 695 F.2d
1132, 1133 (9th Cir. 1983) (per curiam)). Disclosure of communications between
members of the public and PEER is likely to result in discouraging such
communications because PEER is unable to protect their confidentiality, thereby
severely hampering PEER’s organizational mission. It could also result in
harassment of individuals who are parties to these communications. Defendants
have already filed a false criminal complaint against the President of America
Unites, Ms. DeNicola, and her husband, seeking to subject them to felony charges
punishable by fines and imprisonment, for allegedly taking caulk samples. It is
difficult to imagine a more “chilling” action against those who advocate for PCB
testing and remediation at the Malibu Schools.
It is more than understandable that persons who communicate with PEER on
this subject would not want their communications disclosed. In fact, given the
marginal, if any, relevance to this litigation of the communications sought here, one
cannot help but suspect that this discovery is being sought for the purpose of
harassing people who have communicated with PEER about PCBs at the Malibu
Schools. It should also be noted that teachers and other staff who are employees of
Defendants, on whose behalf PEER advocates, are even more vulnerable to
harassment and retaliation than parents at the school such as Mr. and Ms. DeNicola,
since they depend on the Defendants for their employment and all of the conditions
of that employment.
Defendants suggest that “names and email addresses of those members who
would like their membership in PEER to remain private could be redacted …”.
However, while persons who communicate with PEER certainly have First
Amendment protection against revealing the fact of their membership in PEER and
their personal contact information, NAACP v. State of Alabama, 357 U.S. 449
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(1958), the First Amendment also protects the confidentiality of the fact that they
have communicated with PEER, whether or not they are members, and the
confidentiality of the content of their communications. The Ninth Circuit in Perry
ordered protection for communications, not the identities of members, emphasizing
that:
“The First Amendment privilege, however, has never been limited to
the disclosure of identities of rank-and-file members. … The existence
of a prima facie case turns not on the type of information sought, but
on whether disclosure of the information will have a deterrent effect on
the exercise of protected activities.”
591 F.3d at 1162 (citations omitted).
In addition, given the relatively small size of the community at the Malibu
Schools, it is likely that the identity of those communicating could be deduced from
the content of the communication even if names are redacted.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government . . . [to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest . . . [and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the information sought
is highly relevant to the claims or defenses in the litigation — a more demanding
standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The
request must also be carefully tailored to avoid unnecessary interference with
protected activities, and the information must be otherwise unavailable.” Perry, 591
F.3d at 1161.
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Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. Moreover, there are other means of
acquiring the desired information – whether or not there are TSCA violations in the
locations of the Second Set of Independent Tests – namely, by examining the
laboratory reports and the information provided in accordance with Defendants’
subpoenas to the laboratories, or by doing verification testing, without requiring
PEER to disclose its communications with its members, supporters and others who
have contacted PEER concerning PCBs at the Malibu Schools.
Again, PEER has already provided all non-privileged communications
responsive to this request in its possession in its discovery production – i.e.
communications with the general public, the media, and government officials.
5. REQUEST FOR PRODUCTION NO. 24.
a. REQUEST FOR PRODUCTION NO. 24
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the piece of caulk referred to at paragraph 104 of the FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 24.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
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c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 24.
i. Relevancy Is Not a Valid Objection to RFP No. 24.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
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[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
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with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 24.
Plaintiff’s objection that Requests for Production No. 24 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested documents identifying those
individuals who obtained or collected samples in the “Independent Tests” referred
to in Plaintiffs’ very own FAC. Plaintiff need only look for documents that identify
samplers or others in the chain of custody for these tests. Without further
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explanation, Plaintiff’s objection is without merit, and Plaintiff should produce
documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 24.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
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have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
documents identifying those who obtained or collected samples in Plaintiffs’
independent testing bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request information sought, because
the data from the “Independent Tests” will surely be used against Defendants in this
litigation, and Defendants must be afforded the opportunity to confront the validity
and reliability of the data. This necessarily entails a complete knowledge of the
chain of custody, which can only be discovered through documents identifying
those involved in the testing process. Plaintiffs have not met the burden of
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demonstrating the applicability of the work product doctrine, so their objection on
this basis is not appropriate. Accordingly, Plaintiffs may not refuse to produce
documents in response to Defendants’ Requests on the basis of attorney-client
privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
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responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
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Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Exs. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 24.
This request for production seeks documents that identify the individuals who
obtained or collected the piece of caulk referred to in paragraph 104 of the FAC.
Defendants have not shown that the requested information is relevant. As discussed
below, the information is not necessary for resolution of any of the issues in this
case. Moreover, the burden of providing it outweighs any possible relevance.
Defendants contend that the identities of the individuals who obtained or
collected the piece of caulk which fell out of a trash bag on the MHS campus is
relevant because Plaintiffs are purportedly relying on the “Independent Tests” of
caulk samples in 13 rooms that Plaintiff AU conducted prior to the filing of this
action. However, the piece of caulk in question was not tied to any particular room
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and Plaintiffs are not relying on the testing of it. There is no possible reason why
Defendants would need to know the identities of the persons who took samples for
tests on which Plaintiffs are not relying.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
As discussed above, Defendants have already filed a malicious criminal complaint
for trespassing and vandalism against individuals who allegedly took samples.
Although the District Attorney declined to file any charges, Plaintiffs are
legitimately concerned that Defendants will use the requested information to initiate
similar charges against the samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiffs’ ability to fulfill their mission of advocating for remediation of
environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987). Plaintiffs have made a “prima facie showing of arguable first
amendment infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir.
2010) (quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir.
1983) (per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiffs’ ability to gather evidence of environmental violations because
Plaintiffs would be unable to protect the samplers’ confidentiality, and thus lose the
confidence of their informants, thereby severely hampering Plaintiffs’
organizational missions. It could also result in harassment of individuals who took
the samples. Defendants have already filed a false criminal complaint against the
President of America Unites, Ms. DeNicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
Once a prima facie case of First Amendment infringement is made, “the
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evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose the information about the identity of the samplers.
Finally, documents concerning the identities of samplers which constitute
attorney-client communications or attorney work product are privileged. To the
extent that any such documents are relevant, Plaintiffs will list them on a privilege
log.
6. REQUEST FOR PRODUCTION NO. 26.
a. REQUEST FOR PRODUCTION NO. 26.
All DOCUMENTS that IDENTIFY the PERSON or PERSONS who obtained
or collected the “Third Set of Independent Tests,” referred to at paragraph 109 of
the FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 26.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
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it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 26.
i. Relevancy Is Not a Valid Objection to RFP No. 26.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
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testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiff’s claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
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Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, in addition to the independent testing which forms the basis of
Plaintiffs’ TSCA Notices and pleadings on file with this Court, Defendants know
that additional sampling has been taken by AU or PEER or those acting in concert
with Plaintiffs. Defendants have served subpoenas on every lab (known to it) which
has processed Plaintiffs’ samples. In responding to these subpoenas, these labs have
produced to Defendants additional sampling data which has not been the basis of
any judicial filing in this case. Defendants are entitled to the identities of these
individuals so it can determine the locations and extent of these additional samples.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 26.
Plaintiff’s objection that Requests for Production No. 26 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
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ambiguous, or overbroad. Defendants have requested documents identifying those
individuals who obtained or collected samples in the “Independent Tests” referred
to in Plaintiffs’ very own FAC. Plaintiff need only look for documents that identify
samplers or others in the chain of custody for these tests. Without further
explanation, Plaintiff’s objection is without merit, and Plaintiff should produce
documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 26.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents identifying those involved in Plaintiffs’ “Independent Tests” are
not protected by the attorney-client privilege to the extent that they include
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correspondences and records from the environmental testing entities engaged in the
testing process. The entities involved in the testing process were not engaged in this
process for the purpose of aiding Plaintiffs or their counsel in litigation; rather, the
sole role of these entities was to provide testing services. Furthermore, Plaintiffs
have failed to indicate in their responses which communications they believe to be
protected by the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011).
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
documents identifying those who obtained or collected samples in Plaintiffs’
independent testing bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request information sought, because
the data from the “Independent Tests” will surely be used against Defendants in this
litigation, and Defendants must be afforded the opportunity to confront the validity
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and reliability of the data. This necessarily entails a complete knowledge of the
chain of custody, which can only be discovered through documents identifying
those involved in the testing process. Plaintiffs have not met the burden of
demonstrating the applicability of the work product doctrine, so their objection on
this basis is not appropriate. Accordingly, Plaintiffs may not refuse to produce
documents in response to Defendants’ Requests on the basis of attorney-client
privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. 687, 692.
For this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
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Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the documents
requested would lead to “harassment, membership withdrawal, or discouragement
of new members,” or that it would result in other consequences that could “chill”
members’ associational rights. The Request for documents identifying those who
obtained or collected the “Independent Tests” calls for chain of custody documents
and documents prepared for Plaintiffs by environmental testing companies. The
Request propounded by Defendants is not seeking personal information, does
nothing to harass members of Plaintiff organizations, and would not have a deterrent
effect on membership. Moreover, the documents requested by Defendants are
necessary so that Defendants can defend themselves in this litigation and fairness
justifies their production. Defendants will not be afforded a fair discovery if they
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are precluded from accessing information regarding the independent testing data
acquired by Plaintiffs, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Exs. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 26.
This request for production seeks documents identifying the individuals who
obtained or collected the Third Set of Independent Tests. Defendants have not
shown that the requested information is relevant. As discussed below, the
information is not necessary for resolution of any of the issues in this case.
Moreover, the burden of providing it outweighs any possible relevance.
Information regarding the “Third Set of Independent Tests” is not relevant to
the matters at issue in this lawsuit because Defendants have verified through their
own testing that four out of the five rooms in the “Third Set of Independent Tests”
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were in violation of TSCA, the matter which Plaintiffs are seeking to prove in this
lawsuit. Although Defendants argue that Plaintiffs relied on this independent
testing in their Amended Complaint, in fact Plaintiffs’ Amended Complaint
included information about the independent testing primarily for informational
purposes and to describe the chronology of events at the Malibu School. Plaintiffs
also recited that Defendants had verified the independent test results and found
TSCA violations in every single one of 24 verification samples they took in ten
rooms, FAC ¶¶ 127-129, confirming the appropriateness of the methodology and
accuracy of the analysis of the independent testing generally, and making it
unnecessary to rely on the independent testing to prove Plaintiffs’ case at the least
with regard to the verified rooms and the buildings in which they are located. There
is no possible reason why Defendants would need to know the identities of the
persons who took samples for tests on which Plaintiffs are not relying. From the
Third Set of Independent Tests, Plaintiffs would possibly introduce evidence only
with regard to the test results regarding a JCES office next to the teacher’s lounge,
which includes the principal’s office, in which Defendants did not conduct
verification testing or remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. See, e.g., Plaintiffs’ Memorandum of Points and Authorities in
Support of their Motion for a Preliminary Injunction, Dkt. 14, at p. 2 (“Plaintiffs
now move for a preliminary injunction requiring Defendants to immediately cease
use of the other 10 rooms that Defendants’ own testing has shown to have illegal
levels of PCBs in caulk ….”) (emphasis added).
Defendants also contend that they need “to confirm the specific locations
from which the samples were obtained,” so they can prepare their defenses that
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those areas from which the samples were taken have been remediated.” This
contention is equally without merit. Plaintiffs are not relying on the Independent
Tests for any purpose with respect to any of the 10 rooms that Defendants claim to
have remediated. Thus, there is nothing for Defendants to confirm.
Even with respect to the one room for which Plaintiffs continue to rely on the
Third Set of Independent Tests, Defendants do not need to know the identities of the
person who took the samples. With regard to the JCES Office, Plaintiffs have
produced the laboratory reports. Although Defendants conclusorily contend they
need the identity of the samplers to assess the reliability of the testing data, they do
not explain why that is the case. Defendants’ reports of its own testing do not state
the name of the individuals who took the samples. The test data is a product of a lab
analysis of the samples. There is nothing that the sampler can do to affect the
reliability of the data derived from a sample.
In any case, there should be no question that the Independent Testing data is
reliable. Defendants’ own verification testing has proven the accuracy of the
independent testing. Defendants do not state why the Independent Testing data
from the three rooms not verified by Defendants should be any less reliable than the
other 10 rooms where Defendants’ verification testing has confirmed the accuracy
of the independent data.
Moreover, the issue in the case is not actually whether the independent tests
are accurate, but whether or not there are TSCA violations in the rooms in question.
Defendants could determine this fact, by analyzing their own verification samples,
as they did with regard to the other Independent Tests. Thus, information which
could lead to admissible evidence about whether or not there are TSCA violations in
this room can be obtained without revealing the persons who took the independent
samples.
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Defendants also assert that, in addition to the three sets of Independent Tests,
they know from subpoenas served on laboratories that Plaintiffs have done
additional sampling and testing “which has not been the basis of any judicial filing
in this case.” Defendants contend that the identities of the persons who took the
samples so that they can “determine the locations and extent of these additional
samples.”
However, this document request only relates to the Third Set of Independent
Tests and therefore the identity of the samplers for different tests would not be
responsive. In addition, at this point Plaintiffs have not even attempted to use any
such additional testing in the case. Moreover, Defendants do not explain why they
need to know the “extent” of the sample. The “extent” of the sample is not relevant
to determine a TSCA violation. Moreover, Defendants do not need to know the
identities of the persons taking the samples to determine the “locations” of the
samples. The location of the sampling is shown on the lab reports which
Defendants already have. The “exact” location of the sampling is irrelevant.
Defendants’ obligation to remediate is not limited to the exact square inch where a
sample was taken.
Furthermore, the potential for harm to Plaintiffs or the samplers by disclosure
of the requested information greatly outweighs any possible benefit of disclosure.
Defendants have already filed a malicious criminal complaint for trespassing and
vandalism against individuals who allegedly took samples. Although the District
Attorney declined to file any charges, Plaintiffs are legitimately concerned that
Defendants will use the requested information to initiate similar charges against the
samplers or otherwise retaliate against them.
Forced disclosure of the identities of those who took samples would greatly
inhibit Plaintiff’s ability to fulfill their mission of advocating for remediation of
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environmental hazards. See, e.g., United States v. Garde, 673 F.Supp. 604, 607
(D.D.C. 1987)
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the [First Amendment] right to association.”
Plaintiff has made a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwazanegger, 591 F.3d 1126, 1140 (9th Cir. 2010)
(quoting United States v. Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983)
(per curiam)). Disclosure of the identities of the samplers would severely
discourage Plaintiff’s ability to gather evidence of environmental violations because
Plaintiff would be unable to protect the samplers’ confidentiality, thereby severely
hampering Plaintiff’s organizational mission. It could also result in harassment of
individuals who took the samples. Defendants have already filed a false criminal
complaint against the President of America Unites, Ms. DeNicola, and her husband,
seeking to subject them to felony charges punishable by fines and imprisonment, for
allegedly taking caulk samples. It is difficult to imagine a more “chilling” action
against those who advocate for PCB testing and remediation at the Malibu Schools.
See Declarations of Paula Dinerstein and Jennifer DeNicola appended hereto.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government…[to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest…[and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 960 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
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Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation—a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.”
Perry, 591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. As discussed above, there are other
means of acquiring the desired information, namely, by examining the laboratory
reports and the information provided in accordance with Defendants’ subpoenas to
the laboratories, or by conducting verification testing, without requiring Plaintiff to
disclose its communications with its members, supporters and others who have
contacted Plaintiffs concerning PCBs at the Malibu Schools or other information
which may reveal who took the samples.
7. REQUEST FOR PRODUCTION NO. 27.
a. REQUEST FOR PRODUCTION NO. 27
All COMMUNICATIONS by and between PEER and AMERICA UNITES
regarding the “Third Set of Independent Tests,” referred to at paragraph 109 of the
FAC.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 27.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous and overbroad. Plaintiff further objects to this Request to the extent that
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it seeks privileged attorney-client communications, work product, common-interest
communications or other privileged information. Plaintiff further objects to this
Request on the ground that it violates the First Amendment rights of association of
Plaintiff and its members and supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 27.
i. Relevancy Is Not a Valid Objection to RFP No. 27.
Prior to initiation of this suit, Plaintiffs served Defendants with two Notices
of Intent to File Suit under TSCA (“Notices”), the first dated August 19, 2014, and
the second dated January 12, 2015. Decl. Plant, Exs. D, ¶ 32; H-I. Such Notices
were sent because, under TSCA’s citizen suit provision, a citizen plaintiff must give
the alleged violator and EPA specific notice of the alleged violations of TSCA. 15
U.S.C.S. § 2619(b)(1). TSCA’s 60-day notice period is mandatory to the
establishment of jurisdiction and cannot be waived. Id. Both of these Notices relied
upon independent sampling conducted by AU and PEER. See Decl. Plant, Ex. H;
Ex. I.
Relying on this independent sampling, on March 23, 2015, Plaintiffs filed the
instant action. On April 1, 2015, Plaintiffs amended their Complaint, again relying
on such testing. References to “Independent Tests” and independent testing are
specifically relied upon by Plaintiffs in the FAC at least twenty (20) times. Decl.
Plant, Ex. D; ¶¶ 70, 80, 82-83, 96, 101-104, 106-07, 109-110, 112, 119, 122, 125-
26, 128, 132.
Further, on April 1, 2015, Plaintiffs filed a motion for a preliminary
injunction, again relying on the results of such independent testing, for its request
that Defendants be enjoined from using such rooms where the testing was
conducted.
Now, in response to discovery requests for information regarding this
sampling, including the identities of persons who conducted such independent
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testing, Plaintiffs have taken the specious position that the identities of the
individuals who conducted the testing are not relevant. Relevancy is not a valid
objection to this Interrogatory. Under Rule 26(b)(1), parties may obtain discovery
regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
The identities of those individuals who have taken samples at the Malibu
Schools is of great importance, is clearly relevant to Plaintiffs’ claims, and is further
relevant to Defendants’ defenses. One of Defendants’ defenses is that those areas
from which samples were taken have been remediated, and accordingly, Plaintiffs’
TSCA claim is moot. Defendants are entitled to take discovery, including
depositions, of the individuals involved in Plaintiffs’ independent testing to confirm
the specific locations from which the samples were obtained and prepare this
defense. Further, Defendants are entitled to this information so that they can
examine the chain of custody for the samples, and assess the reliability of the
sampling data on which Plaintiffs’ TSCA claim is founded. Plaintiffs cannot file an
action based on this information and then shield it from discovery under the
specious objection that it is not relevant.
Additionally, the issues at stake are significant, because Plaintiffs’ claim is
premised on the data it has collected through its own independent sampling, and
Defendant could be held liable for millions of dollars of unnecessary remediation
and renovation based on analysis of invalid or unreliable data. Furthermore,
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Plaintiffs are the sole source of this information and there is no burden on Plaintiffs
in producing the requested information.
Finally, non-privileged communications between Plaintiffs related to the
“Independent Testing” are relevant and should be produced. Communications
regarding the independent sampling will provide additional information regarding
the location from which sampling was taken, will identity witnesses, and will
provide additional information relevant to Defendants defenses in this
matter. Further, Plaintiffs have provided no valid grounds on which these
communications should withheld. Any communications which Plaintiffs deem to be
privileged can be withheld or redacted as appropriate.
For all of the foregoing reasons, Plaintiffs should be required to identify those
individuals who conducted sampling in connection to Plaintiffs’ “Independent
Tests.”
ii. Vagueness, Ambiguity, and Overbreadth Are Not Valid Objections to RFP
No. 27.
Plaintiff’s objection that Requests for Production No. 27 is vague, ambiguous
and overbroad is unfounded. “The party who resists discovery has the burden to
show discovery should not be allowed, and has the burden of clarifying, explaining,
and supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D.
Cal. 2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975)
and Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
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ambiguous, or overbroad. Defendants have requested communications identifying
those individuals who obtained or collected samples in the “Independent Tests”
referred to in Plaintiffs’ very own FAC. Plaintiff need only look for
communications that identify samplers or others in the chain of custody for these
tests. Without further explanation, Plaintiff’s objection is without merit, and
Plaintiff should produce documents in response to this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 27.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Communications regarding Plaintiffs’ “Independent Tests” are not protected
by the attorney-client privilege to the extent that they include communications
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regarding the data, methodology, or chain of custody of these tests and
correspondences including information from the environmental testing entities
engaged in the testing process. Defendants’ request is not asking for
communications between Plaintiffs and their counsel. Plaintiffs have failed to
indicate in their responses which communications they believe to be protected by
the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly,
Plaintiffs may not refuse to produce documents in response to Defendants’ Requests
on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or documents sought
in Defendants’ Requests. For example, Plaintiffs have not demonstrated how
correspondences between the Plaintiffs regarding the “Independent Tests” referred
to in the FAC bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request the information sought,
because the data from the “Independent Tests” will surely be used against
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Defendants in this litigation, and Defendants must be afforded the opportunity to
confront the validity and reliability of the data. This necessarily entails a complete
knowledge of the chain of custody, which can only be discovered through
documents identifying those involved in the testing process. Plaintiffs have not met
the burden of demonstrating the applicability of the work product doctrine, so their
objection on this basis is not appropriate. Accordingly, Plaintiffs may not refuse to
produce documents in response to Defendants’ Requests on the basis of attorney-
client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
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with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the
communications requested would lead to “harassment, membership withdrawal, or
discouragement of new members,” or that it would result in other consequences that
could “chill” members’ associational rights. The Request for communications
regarding the “Independent Tests” calls for communications regarding the chain of
custody documents and documents prepared for Plaintiffs by environmental testing
companies. The Request propounded by Defendants is not seeking personal
information, does nothing to harass members of Plaintiff organizations, and would
not have a deterrent effect on membership. Moreover, the materials requested by
Defendants are necessary so that Defendants can defend themselves in this
litigation, and fairness justifies their production. Defendants will not be afforded a
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fair discovery if they are precluded from accessing information regarding the
independent testing data acquired by Plaintiffs, which will surely be used against
Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, Exs. N,O. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to those individuals who
obtained or collected data for the “Independent Tests” that form the basis for this
lawsuit, and to communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data from the “Independent Tests” referenced in Plaintiffs’ FAC, and it
is imperative that Defendants are granted full access to information and
communications regarding these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 27.
Relevance
Information regarding the “Third Set of Independent Tests” is not relevant to
the matters at issue in this lawsuit because Defendants have verified through their
own testing that four out of the five rooms in the “Third Set of Independent Tests”
were in violation of TSCA, the matter which Plaintiffs are seeking to prove in this
lawsuit. Although Defendants argue that Plaintiffs relied on this independent
testing in their Amended Complaint, in fact Plaintiffs’ Amended Complaint
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included information about the independent testing primarily for informational
purposes and to describe the chronology of events at the Malibu School. Plaintiffs
also recited that Defendants had verified the independent test results and found
TSCA violations in every single one of 24 verification samples they took in ten
rooms, FAC ¶¶ 127-129, confirming the appropriateness of the methodology and
accuracy of the analysis of the independent testing generally, and making it
unnecessary to rely on the independent testing to prove Plaintiffs’ case at the least
with regard to the verified rooms and the buildings in which they are located. From
the Third Set of Independent Tests, Plaintiffs would possibly introduce evidence
only with regard to the test results regarding the JCES office next to the teacher’s
lounge, which includes the principal’s office, in which Defendants did not conduct
verification testing or remediation.
Defendants also claim that Plaintiffs relied on the independent testing in their
Preliminary Injunction motion. However, that Motion only addressed the ten rooms
in which the District had verified TSCA violations, and did not rely at all on the
independent testing. Dkt. 14 at p. 18.
With regard to the JCES office, Plaintiffs have produced the laboratory report
for the testing of that room, and Defendants have supplied no valid reason that they
need more than this, or how the request for communications between PEER and
America Unites about the Third Set of Independent Tests is reasonably calculated to
lead to the discovery of admissible evidence. Defendants’ claim that they need more
information on the exact location of the sampling to prepare their defense of
mootness because that area had been remediated is not applicable here because
Defendants have not claimed to have remediated this room.
As for using these communications to attempt to identify the samplers, this is
an effort to harass those individuals, as explained above and below. If Defendants
wish to challenge the reliability of the independent tests for the one room in the
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Third Set of Independent Tests which it did not verify with its own testing, it may
rely on the chain of custody and other information in the laboratory report and on
the information it receives from its subpoenas to the laboratories. Since the issue in
the case is not actually whether the independent tests are accurate, but whether or
not there are TSCA violations in the room, Defendants could determine this fact, as
they did with regard to the other independent tests, by analyzing their own
verification samples. Thus, any information which could lead to admissible
evidence about whether or not there are TSCA violations in this room can be
obtained without revealing the persons who took the independent samples and
subjecting them to possible harassment and attempts at criminal prosecution.
Vagueness, Ambiguity, and Overbreadth
This request is vague, ambiguous and overbroad because it pertains to all
communications “by and between” PEER and America Unites regarding the Second
Set of Independent Tests. There is no limitation as to subject matter of
communications other than the topic of the independent tests, or of who is involved
in the communications. In addition, it is not clear what is meant by “by and
between PEER and America Unites,” i.e. whether the requests encompass all
communications by either PEER or America Unites to anyone about these tests.
Defendants claim that “Plaintiff need only look for communications and documents
that identify samplers or others in the chain of custody for those tests.” However,
by its terms, the request is far broader, vaguer and more ambiguous than that.
Attorney-Client, Attorney Work Product and Common Interest
Communication Privileges
Defendants state that they are not asking for communications between
Plaintiffs and their counsel. However, all communications between America Unites
and PEER regarding the independent tests would involve PEER counsel, as no one
else at PEER communicated with America Unites about these matters. PEER and
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America Unites are jointly pursuing this case, and therefore communications with
either PEER or America Unites counsel (America Unites counsel is also PEER
counsel) would be privileged pursuant to the attorney-client privilege and common
interest doctrine. Therefore, all the communications sought in this request would be
privileged.
If this request is seeking communications by PEER to anyone regarding the
Second Set of Independent Tests, PEER considers that all persons who contact
PEER are seeking legal advice or assistance, and therefore their communications are
attorney-client privileged. (See PEER webpage, Ex. 1 to Dinerstein Declaration)
PEER has already provided all non-privileged communications responsive to this
request in its possession in its discovery production – i.e. communications with the
general public, the media, and government officials.
First Amendment Privilege
PEER is a whistleblower organization which promises confidentiality to all
those who contact it concerning environmental issues and government wrongdoing.
Confidentiality is promised with regard to the content of the communication and not
only the identity of the person. (See PEER webpage, Ex. 1 to Dinerstein
Declaration) This promise of confidentiality applies to all of those who have
contacted PEER about the PCBs in the Malibu Schools, whether or not they are
associated with America Unites. If PEER were to disclose communications with
those persons in discovery, it would greatly inhibit PEER’s ability to function as an
organization where people may raise issues in confidence.9

9 Defendants claim that PEER is “publicly vocal about its activities and its
membership, listing members of its Board and DC Staff on its website.” Although
PEER may be publicly vocal about its activities, and does list the members of its
Board and staff on its website, revealing the identity of PEER’s employees and
Board is an entirely different matter from revealing the identities of or the content
of communications with those who contact PEER in confidence. PEER does not
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In a case involving another whistleblower organization, the Government
Accountability Project (GAP), in which a subpoena seeking information about its
informants was quashed, the court stated:
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the right to association.”
United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987).
The same would hold for PEER, which has thus made a “prima facie showing
of arguable first amendment infringement.” Perry v. Schwarzenegger, 591 F.3d
1126, 1140 (9th Cir. 2010) (quoting United States v. Trader’s State Bank, 695 F.2d
1132, 1133 (9th Cir. 1983) (per curiam)). Disclosure of communications between
members of the public and PEER is likely to result in discouraging such
communications because PEER is unable to protect their confidentiality, thereby
severely hampering PEER’s organizational mission. It could also result in
harassment of individuals who are parties to these communications. Defendants
have already filed a false criminal complaint against the President of America
Unites, Ms. DeNicola, and her husband, seeking to subject them to felony charges
punishable by fines and imprisonment, for allegedly taking caulk samples. It is
difficult to imagine a more “chilling” action against those who advocate for PCB
testing and remediation at the Malibu Schools.

reveal its membership list to anyone. While certain members may choose to
reveal their membership in PEER or their communications with PEER, PEER has
promised them confidentiality and would never reveal their identities or the
contents of their communications without their permission. No such permission
has been given here.
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It is more than understandable that persons who communicate with PEER on
this subject would not want their communications disclosed. In fact, given the
marginal, if any, relevance to this litigation of the communications sought here, one
cannot help but suspect that this discovery is being sought for the purpose of
harassing people who have communicated with PEER about PCBs at the Malibu
Schools. It should also be noted that teachers and other staff who are employees of
Defendants, on whose behalf PEER advocates, are even more vulnerable to
harassment and retaliation than parents at the school such as Mr. and Ms. DeNicola,
since they depend on the Defendants for their employment and all of the conditions
of that employment.
Defendants suggest that “names and email addresses of those members who
would like their membership in PEER to remain private could be redacted …”.
However, while persons who communicate with PEER certainly have First
Amendment protection against revealing the fact of their membership in PEER and
their personal contact information, NAACP v. State of Alabama, 357 U.S. 449
(1958), the First Amendment also protects the confidentiality of the fact that they
have communicated with PEER, whether or not they are members, and the
confidentiality of the content of their communications. The Ninth Circuit in Perry
ordered protection for communications, not the identities of members, emphasizing
that:
“The First Amendment privilege, however, has never been limited to
the disclosure of identities of rank-and-file members. … The existence
of a prima facie case turns not on the type of information sought, but
on whether disclosure of the information will have a deterrent effect on
the exercise of protected activities.”
591 F.3d at 1162 (citations omitted).
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In addition, given the relatively small size of the community at the Malibu
Schools, it is likely that the identity of those communicating could be deduced from
the content of the communication even if names are redacted.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government . . . [to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest . . . [and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the information sought
is highly relevant to the claims or defenses in the litigation — a more demanding
standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The
request must also be carefully tailored to avoid unnecessary interference with
protected activities, and the information must be otherwise unavailable.” Perry, 591
F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated. Moreover, there are other means of
acquiring the desired information – whether or not there are TSCA violations in the
locations of the Third Set of Independent Tests – namely, by examining the
laboratory reports and the information provided in accordance with Defendants’
subpoenas to the laboratories, or by doing verification testing, without requiring
PEER to disclose its communications with its members, supporters and others who
have contacted PEER concerning PCBs at the Malibu Schools.
Again, PEER has already provided all non-privileged communications
responsive to this request in its possession in its discovery production – i.e.
communications with the general public, the media, and government officials.
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IV. DISCOVERY TO PLAINTIFFS REGARDING PCBS AT OTHER
SCHOOLS IN THE UNITED STATES
RFP No. 11 to AU and RFP No. 17 to PEER request communications
regarding PCBs at any school in the United States. Defendants move to compel on
RFPs No. 11 to AU and 17 to PEER.
A. REQUEST FOR PRODUCTION TO AU REGARDING PCBS AT
OTHER SCHOOLS
1. REQUEST FOR PRODUCTION NO. 11.
a. REQUEST FOR PRODUCTION NO. 11.
All COMMUNICATIONS by and between AMERICA UNITES, its
MEMBERS and any third parties regarding PCBs at any school in the United States.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 11.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action. Plaintiff further objects to this Request on the ground that it is vague and
ambiguous, overbroad and unduly burdensome and oppressive. Plaintiff further
objects to this Request to the extent that it seeks privileged attorney-client
communications, work product, common-interest communications or other
privileged information. Plaintiff further objects to this Request on the ground that it
violates the First Amendment rights of association of Plaintiff and its members and
supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 11.
i. Relevancy Is Not a Valid Objection to RFP No. 11.
In response to discovery requests for information regarding PCBs in schools
in the United States, Plaintiffs have taken the tenuous position that this information
is not relevant. However, Plaintiffs have referenced information regarding PCBs at
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other schools in the United States and will likely use such information to support
their claim.
Relevancy is not a valid objection to this Interrogatory. Under Rule 26(b)(1),
parties may obtain discovery regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.

Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).
Defendants have remediated all known exceedances of the regulatory
threshold for PCBs, including those resulting from surreptitious sampling by
Plaintiffs. Now, it is important that Defendants have access to other foundational
information or data regarding PCBs that Plaintiffs may rely on to support their claim
of a TSCA violation so that Defendants can adequately defend themselves in this
litigation. Plaintiffs referenced PCBs in New York schools twice in their FAC.
Decl. Plant, Ex. D; ¶¶ 62, 95. Plaintiffs regularly post information regarding PCB
cases and remediation activities at schools around the United States, so as to draw
comparisons between these schools and the Malibu Schools. See Decl. Plant, Ex. E;
Ex. F; Ex. G. Even though they will rely on this information and data, Plaintiffs
have taken the specious position that information regarding PCBs at schools in the
United States not relevant. The information requested is highly relevant, because it
will serve as a foundation from which Plaintiffs will attempt to prove their claim.
Additionally, the issues at stake are significant. If deprived of relevant,
foundational information that is necessary for preparation of a defense, Defendants
could be held liable for millions of dollars of unnecessary remediation and
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renovation. Furthermore, Plaintiffs are the sole source of this information and the
burden of its production to Plaintiffs is non-existent.
For all of the foregoing reasons, Plaintiffs should be required to produce
communications regarding PCBs at any school in the United States.
ii. Vagueness, Ambiguity, Overbreadth, and Undue Burden and Oppression Are
Not Valid Objections to RFP No. 11.
Plaintiff’s objection that Requests for Production No. 11 is vague, ambiguous,
overbroad, and unduly burdensome and oppressive is unfounded. “The party who
resists discovery has the burden to show discovery should not be allowed, and has
the burden of clarifying, explaining, and supporting its objections.” Bible v. Rio
Props., Inc., 246 F. R. D. 614 (C.D. Cal. 2007) (citing Blankenship v. Hearst Corp.,
519 F. 2d 418, 429 (9th Cir. 1975) and Keith H. v. Long Beach Unified Sch. Dist.,
228 F.R.D. 652, 655-56 (C.D. Cal. 2005)). There is no merit to “general or
boilerplate objections such as ‘overly broad’ [or] ‘vague and ambiguous.’” Bible,
246 F. R. D. at 619; A. Farber & Partners, Inc. v. Garber, 234 F. R. D. 186, 188
(C.D. Cal. 2006).
AU has not met its burden of demonstrating that discovery of the information
sought in this Request should not be allowed, because it has not supported or
explained its objections on the basis of the requests being vague, ambiguous,
overbroad, or unduly burdensome or oppressive. Defendants have requested
communications by or between America Unites, its members and any third parties
regarding PCBs at any school in the United States. Plaintiff need only look for
correspondences that reference PCBs at schools in the United States. Without
further explanation, Plaintiff’s objection is without merit, and Plaintiff should
produce documents in response to this Request.
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iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 11.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Communications regarding PCBs at any school in the United States are not
protected by the attorney-client privilege to the extent that they include
communications regarding publically available information regarding PCBs and
information and data communicated to third parties other than Plaintiffs and their
counsel. Defendants’ request is not asking for communications between Plaintiffs
and their counsel. Plaintiffs have failed to indicate in their responses which
communications they believe to be protected by the attorney-client privilege.
Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly, Plaintiffs may not refuse to
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produce documents in response to Defendants’ Requests on the basis of attorney-
client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or communications
sought in Defendants’ Requests. For example, Plaintiffs have not demonstrated
how communications regarding PCBs at schools in the United States other than the
Malibu Schools bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request the information sought,
because the information and data pertaining to PCBs at other schools will surely be
used against Defendants in this litigation, and Defendants must be afforded the
opportunity to confront the validity and reliability of this information. This
necessarily entails access to this information through the discovery process.
Plaintiffs have not met the burden of demonstrating the applicability of the work
product doctrine, so their objection on this basis is not appropriate. Accordingly,
Plaintiffs may not refuse to produce documents in response to Defendants’ Requests
on the basis of attorney-client privilege.
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(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff further objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
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the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the
communications requested would lead to “harassment, membership withdrawal, or
discouragement of new members,” or that it would result in other consequences that
could “chill” members’ associational rights. The Request for communications
regarding PCBs at any school in the United States calls for communications
regarding the underlying information and data pertaining to PCBs that will be used
by Plaintiffs at trial. The Request propounded by Defendants is not seeking
personal information, does nothing to harass members of Plaintiff organizations,
and would not have a deterrent effect on membership. Moreover, the materials
requested by Defendants are necessary so that Defendants can defend themselves in
this litigation and fairness justifies their production. Defendants will not be
afforded a fair discovery if they are precluded from accessing information regarding
PCBs at other schools, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because AU is publicly vocal about its
activities and its membership, listing members of its Advisory Board and
Leadership Team on its website. See Decl. Plant, Exs. L, M. In particular, Plaintiff
frequently publicizes its activities with regard to the subject matter of this very case
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on its website. The information sought in the above Request relates only to
communications regarding PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in AU to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data and information regarding PCBs, and it is imperative that
Defendants are granted full access to information and communications regarding
these tests and their chains of custody.
d. AU’S CONTENTIONS REGARDING RFP NO. 11
Defendants are seeking communications “by and between AU, its members
and third parties concerning PCBs at other schools.” The request is objectionable
for a number of reasons.
First, the requested documents are not relevant. The issue here is whether the
Malibu Schools, not other schools, violate TSCA. Communications by Plaintiffs, its
members and third parties about PCBs at other schools is simply not relevant to that
issue.
Defendants contend that the requested documents are relevant because
Plaintiffs referenced PCBs in New York schools twice in their FAC, citing ¶¶ 62
and 95 of the FAC. (Plant Decl. Ex. D, ¶¶62 and 95) Paragraph 62 alleges that
EPA’s January 27, 2014 screening levels for PCBs in the air at the Malibu Schools
was based on calculations for schools in New York. However, this fact is
undisputed; it is what the EPA told Defendant Lyon in a January 27, 2014 letter.
(Avrith Decl. Ex. 3) To the extent that they have not already done so, Plaintiffs will
produce all non-privileged documents which support this allegation.
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Paragraph 95 of the FAC alleges that based on testing in other schools, it has
been shown that air and dust levels of PCBs are highly variable over time.
Defendants have requested, and Plaintiffs have agreed to produce, all non-privileged
documents that support or refer to this allegation. (Avrith Decl. Ex. 4, at Request
No. 10) Neither of these limited references to PCBs in other schools in the FAC
makes other communications by Plaintiffs or its supporters or third parties about
PCBs in other schools relevant.
Defendants also contend that “Plaintiffs regularly post information regarding
PCB cases and remediation activities at schools around the United States, so as to
draw comparisons between these schools and the Malibu Schools.” Obviously, the
fact that AU “posts” information about remediation of PCBs at other schools, does
not make all communications regarding PCBs at other schools relevant in this
lawsuit.
It should be noted that Plaintiffs are not contending that information about
PCBs at other schools is always irrelevant. What happened with PCBs at other
schools may very well be relevant in this case. Indeed, Plaintiffs have already
produced documents concerning PCBs at other schools and to the extent not already
done, and will produce whatever publicly-available documents they have in their
possession, custody or control concerning PCBs at other schools.
However, there is a difference between documents that evidence what
happened with PCBs at other schools, and the documents that Defendants are
requesting. Defendants are requesting “communications” by Plaintiffs, their
members and third parties concerning PCBs at other schools. Although what
happened with PCBs at other schools may be relevant here, Defendants are unable
to explain why what Plaintiffs, their members or third parties may have said about
PCBs at other schools is relevant to any issue in this case.
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Second, the request is vague, ambiguous and overbroad. It pertains to all
communications “by and between [AU], its members and any third parties.” It is
not clear what is meant by “by and between.” Is the request limited to
communications to which AU or its members are parties, or does it encompass all
communications by a third party whether or not AU or its members are parties to the
communication?
Third, the request seeks privileged information. All communications between
America Unites and PEER regarding PCBs at other schools would involve PEER
counsel, as no one else at PEER communicated with America Unites about these
matters. (See accompanying Declaration of Paula Dinerstein (“Dinerstein Decl.),
¶3) PEER and America Unites are jointly pursuing this case, and therefore
communications with either PEER or America Unites counsel (America Unites
counsel is also PEER counsel) would be privileged pursuant to the attorney-client
privilege and common interest doctrine. See In re Teliglobe Communications
Corp., 493 F.3d 345, 363-64 (3d. Cir. 2007) Therefore, all such communications
sought in this request would be privileged.
Furthermore, requests for communications between AU and its members or
members of the public violate AU’s First Amendment Right of Association.
“If the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her,
especially the identity of those she represents, GAP will lose the
confidence of some of its whistleblower informants and its efforts to
gather and present safety allegations will suffer. This is the harm that
GAP claims, and it is cognizable under the [First Amendment] right to
association.”
United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987).
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The same would hold for AU, which has thus made a “prima facie showing of
arguable first amendment infringement.” Perry v. Schwazenegger, 591 F.3d 1126,
1140 (9th Cir. 2010) (quoting United States v. Trader’s State Bank, 695 F.2d 1132,
1133 (9th Cir. 1983) (per curiam)). Disclosure of communications between Plaintiff
and its members or members of the public is likely to result in discouraging such
communications because Plaintiff is unable to protect their confidentiality, thereby
severely hampering their organizational mission. It could also result in harassment
of individuals who are parties to these communications. Defendants have already
filed a false criminal complaint against the President of America Unites, Ms.
DeNicola, and her husband, seeking to subject them to felony charges punishable by
fines and imprisonment, for allegedly taking caulk samples. It is difficult to
imagine a more “chilling” action against those who advocate for PCB testing and
remediation at the Malibu Schools.
It is more than understandable that persons who communicate with Plaintiffs
on this subject would not want their communications disclosed.10 In fact, given the
marginal, if any, relevance to this litigation of the communications sought here, one
cannot help but suspect that this discovery is being sought for the purpose of
harassing people who have communicated with Plaintiffs about PCBs at other
schools.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government . . . [to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest . . . [and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l

10 Defendants contend that Plaintiff AU is “publicly vocal” about its activities.
However, Plaintiff is not publicly vocal about the information being sought.
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Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation — a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated.
B. REQUEST FOR PRODUCTION TO PEER REGARDING PCBS AT
OTHER SCHOOLS
1. REQUEST FOR PRODUCTION NO. 17.
a. REQUEST FOR PRODUCTION NO. 17.
All COMMUNICATIONS between PEER and AMERICA UNITES
regarding PCBs at any school in the United States.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 17.
Plaintiff objects to this Request on the ground that it seeks information that is
not relevant to the parties’ claims or defenses or the subject matter of the instant
action and is overbroad and oppressive. Plaintiff further objects to this Request on
the ground that it is vague and ambiguous, given that Defendants’ response to
Plaintiffs’ discovery requests define PCBs as ‘PCBs in caulk or other building
material at the Malibu School known to Defendants to contain PCBs at
concentrations of 50 parts per million (‘ppm’) or greater.’ Plaintiff further objects
to this Request to the extent that it calls for the production of privileged attorney-
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client communications, work product, common-interest communications or other
privileged information. Plaintiff further objects to this Request on the ground that it
violates the First Amendment rights of association of Plaintiff and its members and
supporters.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 17.
i. Relevancy Is Not a Valid Objection to RFP No. 17.
In response to discovery requests for information regarding PCBs in schools
in the United States, Plaintiffs have taken the tenuous position that this information
is not relevant. However, Plaintiffs have referenced information regarding PCBs at
other schools in the United States and will likely use such information to support
their claim.
Relevancy is not a valid objection to this Interrogatory. Under Rule 26(b)(1),
parties may obtain discovery regarding:
[A]ny nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.
Information within the scope of discovery does not need to be admissible in
evidence. Fed. R. Civ. P. 26(b)(1).11
Defendants have remediated all known exceedances of the regulatory
threshold for PCBs, including those resulting from surreptitious sampling by
Plaintiffs. Now, it is important that Defendants have access to other foundational
information or data regarding PCBs that Plaintiffs may rely on to support their claim
of a TSCA violation so that Defendants can adequately defend themselves in this
litigation. Plaintiffs referenced PCBs in New York schools twice in their FAC.

11 The Rule quoted here is the amended version of Rule 26(b)(1), which became
effective December 1, 2015.
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Decl. Plant, Ex. D; ¶¶ 62, 95. Plaintiffs regularly post information regarding PCB
cases and remediation activities at schools around the United States, so as to draw
comparisons between these schools and the Malibu Schools. See Decl. Plant, Ex. E;
Ex. F; Ex. G. Even though they will rely on this information and data, Plaintiffs
have taken the specious position that information regarding PCBs at schools in the
United States not relevant. The information requested is highly relevant, because it
will serve as a foundation from which Plaintiffs will attempt to prove their claim.
Additionally, the issues at stake are significant. If deprived of relevant,
foundational information that is necessary for preparation of a defense, Defendants
could be held liable for millions of dollars of unnecessary remediation and
renovation. Furthermore, Plaintiffs are the sole source of this information and the
burden of its production to Plaintiffs is non-existent.
For all of the foregoing reasons, Plaintiffs should be required to produce
communications regarding PCBs at any school in the United States.
ii. Vagueness, Ambiguity, Overbreadth, and Undue Burden and Oppression Are
Not Valid Objections to RFP No. 17.
Plaintiff’s objection that Requests for Production No. 17 is vague, ambiguous,
overbroad, and unduly burdensome and oppressive is unfounded. “The party who
resists discovery has the burden to show discovery should not be allowed, and has
the burden of clarifying, explaining, and supporting its objections.” Bible v. Rio
Props., Inc., 246 F. R. D. 614 (C.D. Cal. 2007) (citing Blankenship v. Hearst Corp.,
519 F. 2d 418, 429 (9th Cir. 1975) and Keith H. v. Long Beach Unified Sch. Dist.,
228 F.R.D. 652, 655-56 (C.D. Cal. 2005)). There is no merit to “general or
boilerplate objections such as ‘overly broad’ [or] ‘vague and ambiguous.’” Bible,
246 F. R. D. at 619; A. Farber & Partners, Inc. v. Garber, 234 F. R. D. 186, 188
(C.D. Cal. 2006).
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Plaintiff PEER has not met its burden of demonstrating that discovery of the
information sought in this Request should not be allowed, because it has not
supported or explained its objections on the basis of the requests being vague,
ambiguous, or overbroad. Defendants have requested communications between
PEER and America Unites regarding PCBs at schools in the United States. Plaintiff
need only look for correspondences between itself and America Unites that related
to PCBs at schools in the United States. Without further explanation, Plaintiff’s
objection is without merit, and Plaintiff should produce documents in response to
this Request.
iii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 17.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
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attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Communications regarding PCBs at any school in the United States are not
protected by the attorney-client privilege to the extent that they include
communications regarding publically available information regarding PCBs and
information and data communicated to third parties other than Plaintiffs and their
counsel. Defendants’ request is not asking for communications between Plaintiffs
and their counsel. Plaintiffs have failed to indicate in their responses which
communications they believe to be protected by the attorney-client privilege.
Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly, Plaintiffs may not refuse to
produce documents in response to Defendants’ Requests on the basis of attorney-
client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the information or communications
sought in Defendants’ Requests. For example, Plaintiffs have not demonstrated
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how communications regarding PCBs at schools in the United States other than the
Malibu Schools bears any relation to Plaintiffs’ efforts in preparation for trial.
Furthermore, Defendants have good cause to request the information sought,
because the information and data pertaining to PCBs at other schools will surely be
used against Defendants in this litigation, and Defendants must be afforded the
opportunity to confront the validity and reliability of this information. This
necessarily entails access to this information through the discovery process.
Plaintiffs have not met the burden of demonstrating the applicability of the work
product doctrine, so their objection on this basis is not appropriate. Accordingly,
Plaintiffs may not refuse to produce documents in response to Defendants’ Requests
on the basis of attorney-client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
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communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
iv. First Amendment Privilege Is Not a Valid Objection.
Plaintiff further objects to this Request on the ground that it violates the First
Amendment rights of association of Plaintiff and its members. A party objecting on
the basis of a First Amendment privilege must satisfy a two-part test. The objecting
party must first make a “prima facie showing of arguable first amendment
infringement.” Perry v. Schwarzenegger, 591 F. 3d 1126, 1140 (9th Cir. 2010)
(quoting Brock v. Local 375, Plumbers Int’l Union of Am., 860 F. 2d 346, 349-50
(9th Cir. 1988)). Plaintiffs are required to show that, if the discovery request is
enforced, there will be “(1) harassment, membership withdrawal, or discouragement
of new members, or (2) other consequences which objectively suggest an impact on,
or ‘chilling’ of, the members’ associational rights.” Brock, 860 F. 2d at 350.
Here, Plaintiff has made no such showing that disclosure of the
communications requested would lead to “harassment, membership withdrawal, or
discouragement of new members,” or that it would result in other consequences that
could “chill” members’ associational rights. The Request for communications
regarding PCBs at any school in the United States calls for communications
regarding the underlying information and data pertaining to PCBs that will be used
by Plaintiffs at trial. The Request propounded by Defendants is not seeking
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personal information, does nothing to harass members of Plaintiff organizations,
and would not have a deterrent effect on membership. Moreover, the materials
requested by Defendants are necessary so that Defendants can defend themselves in
this litigation, and fairness justifies their production. Defendants will not be
afforded a fair discovery if they are precluded from accessing information regarding
PCBs at other schools, which will surely be used against Defendants in trial.
Additionally, there would be no “chilling” effect if Plaintiffs responded to
Defendants’ requests for this information, because PEER is publicly vocal about its
activities and its membership, listing members of its Board and DC Staff on its
website. See Decl. Plant, M. In particular, Plaintiff frequently publicizes its
activities with regard to the subject matter of this very case on its website. The
information sought in the above Request relates only to communications regarding
PCBs, the subject matter of this lawsuit.
The documents and information requested are necessary and relevant to
Defendants’ preparation for trial, and the names and email addresses of those
members who would like their membership in PEER to remain private could be
redacted so as to balance any associational issues with the Court’s strong interest in
ensuring Defendants’ ability to fairly defend their case. Plaintiffs’ entire case is
premised on data and information regarding PCBs, and it is imperative that
Defendants are granted full access to information and communications regarding
these tests and their chains of custody.
d. PEER’S CONTENTIONS REGARDING RFP NO. 17.
Defendants are seeking communications “by and between PEER and any
third parties concerning PCBs at any school in the United States.” The request is
objectionable for a number of reasons.
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First, the requested documents are not relevant. The issue here is whether the
Malibu Schools, not other schools, violate TSCA. Communications by Plaintiff and
third parties about PCBs at other schools is simply not relevant to that issue.
Defendants contend that the requested documents are relevant because
Plaintiffs referenced PCBs in New York schools twice in their FAC, citing ¶¶ 62
and 95 of the FAC. Paragraph 62 alleges that EPA’s January 27, 2014 screening
levels for PCBs in the air at the Malibu Schools was based on calculations for
schools in New York. However, this fact is undisputed; it is what the EPA told
Defendant Lyon in a January 27, 2014 letter. To the extent that they have not
already done so, Plaintiffs will produce all non-privileged documents which support
this allegation.
Paragraph 95 of the FAC alleges that based on testing in other schools, it has
been shown that air and dust levels of PCBs are highly variable over time.
Defendants have requested, and Plaintiffs have agreed to produce, all non-privileged
documents that support this allegation. Neither of these limited references to PCBs
in other schools in the FAC makes other communications by PEER and third parties
about PCBs in other schools relevant.
Defendants also contend that “Plaintiffs regularly post information regarding
PCB cases and remediation activities at schools around the United States, so as to
draw comparisons between these schools and the Malibu Schools.” Obviously, the
fact that PEER “posts” information about remediation of PCBs at other schools,
does not make all communications regarding PCBs at other schools relevant in this
lawsuit.
It should be noted that Plaintiffs are not contending that information about
PCBs at other schools is always irrelevant. What happened with PCBs at other
schools may very well be relevant in this case. Indeed, Plaintiffs have already
produced documents concerning PCBs at other schools and to the extent not already
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done, and will produce whatever publicly-available documents they have in their
possession, custody or control concerning PCBs at other schools.
However, there is a difference between documents that evidence what
happened with PCBs at other schools, and the documents that Defendants are
requesting. Defendants are requesting “communications” by PEER with third
parties concerning PCBs at other schools. Although what happened with PCBs at
other schools may be relevant here, Defendants are unable to explain why what
PEER may have said about PCBs at other schools to third parties is relevant to any
issue in this case.
Second, the request is vague, ambiguous and overbroad. It pertains to all
communications “by and between PEER and any third parties.” It is not clear what
is meant by “by and between.” Is the request limited to communications to which
PEER is a party, or does it encompass all communications by a third party whether
or not PEER is a party to the communication?
Third, the request seeks privileged information. All communications between
PEER and third parties regarding PCBs at other schools would involve PEER
counsel, as no one else at PEER communicated with anyone concerning PCBs in
schools in the United States. Therefore, all such communications sought in this
request would be privileged.
Furthermore, requests for communications between PEER and third parties
violate PEER’s First Amendment Right of Association.
“If the government is successful in compelling [the
organization’s lawyer] to reveal the information given to her,
especially the identity of those she represents, GAP will lose the
confidence of some of its whistleblower informants and its efforts to
gather and present safety allegations will suffer. This is the harm that
GAP claims, and it is cognizable under the right to association.”
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United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987).
The same would hold for PEER, which has thus made a “prima facie showing
of arguable first amendment infringement.” Perry v. Schwarzenegger, 591 F.3d
1126, 1140 (9th Cir. 2010) (quoting United States v. Trader’s State Bank, 695 F.2d
1132, 1133 (9th Cir. 1983) (per curiam)). Disclosure of communications between
Plaintiff and third parties, including members of the public is likely to result in
discouraging such communications because PEER is unable to protect their
confidentiality, thereby severely hampering PEER’s organizational mission. It
could also result in harassment of individuals who are parties to these
communications. Defendants have already filed a false criminal complaint against
the President of America Unites, Ms. DeNicola, and her husband, seeking to subject
them to felony charges punishable by fines and imprisonment, for allegedly taking
caulk samples. It is difficult to imagine a more “chilling” action against those who
advocate for PCB testing and remediation at the Malibu Schools.
It is more than understandable that persons who communicate with PEER on
this subject would not want their communications disclosed. In fact, given the
marginal, if any, relevance to this litigation of the communications sought here, one
cannot help but suspect that this discovery is being sought for the purpose of
harassing people who have communicated with Plaintiffs about PCBs at other
schools.
Defendants suggest that names and email addresses of those members who
would like their membership in PEER to remain private could be redacted.
However, while persons who communicate with PEER certainly have First
Amendment protection against revealing the fact of their membership and their
personal contact information, NAACP v. State of Alabama, 357 U.S. 449 (1958), the
First Amendment also protects the confidentiality of the fact that they have
communicated with PEER, whether or not they are members of PEER, and protects
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the content of their communications. The Ninth Circuit in Perry ordered protection
of communications, not the identities of members, emphasizing that:
“The First Amendment privilege, however, has never been
limited to the disclosure of identities of rank-and-file members. … The
existence of a prima facie case turns not on the type of information
sought, but on whether disclosure of the information will have a
deterrent effect on the exercise of protected activities.”
591 F.3d at 1162 (citations omitted).
In addition, given the relatively small size of the community at the Malibu
Schools, it is likely that the identity of those communicating could be deduced from
the content of the communication even if names are redacted.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government . . . [to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest . . . [and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
“Importantly, the party seeking the discovery must show that the
information sought is highly relevant to the claims or defenses in the
litigation — a more demanding standard of relevance than that under
Federal Rule of Civil Procedure 26(b)(1). The request must also be
carefully tailored to avoid unnecessary interference with protected
activities, and the information must be otherwise unavailable.” Perry,
591 F.3d at 1161.
Here, Defendants cannot even show that this discovery meets the relevance
requirements of Rule 26, much less the more demanding standard of relevance when
First Amendment interests are implicated.
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V. DISCOVERY Requests to PEER Regarding Standing
Defendants move to compel further responses and production of documents
to Interrogatory No. 8 and RFPs No. 40 and 42, which relate to PEER’s standing in
this lawsuit.
A. INTERROGATORY TO PEER REGARDING STANDING
1. INTERROGATORY NO. 8.
a. INTERROGATORY NO. 8
IDENTIFY the PERSON or PERSONS that PEER intends to rely on as
STANDING WITNESSES at trial.
b. RESPONSE TO INTERROGATORY NO. 8.
Plaintiff objects to this interrogatory on the ground that it seeks information
that is protected by the attorney work product privilege.
c. DEFENDANTS’ CONTENTIONS REGARDING INTERROGATORY NO.
8.
In this Interrogatory Defendants seek discovery regarding the identity of that
individual or individuals which PEER intends to rely upon to establish PEER’s
standing in this case. In response, PEER erroneously contends that the identity of
these witnesses is protected by the attorney work product privilege.
i. Defendants are Entitled to Discovery Regarding PEER’s Standing.
PEER’s lack of standing is a complete defense to this lawsuit, and Defendants
are entitled to take discovery regarding PEER’s standing so that they may challenge
its ability to maintain this suit.
To demonstrate standing, a plaintiff must show (1) it has suffered an “injury
in fact” that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action
of the defendant; and (3) it is likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504
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U. S. 555, 560-61 (1992) (citing Hunt v. Washington Apple Advertising
Commission, 432 U.S. 333, 342 (1977)). An association only has standing to bring
suit on behalf of its members where: (a) its members would otherwise have standing
to sue in their own right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit. Id. An
association’s standing is subject to challenge in every phase of litigation and the
burden of proving standing rests on Plaintiff. Id. Defendants should be permitted to
interview those individuals who PEER alleges have suffered such an injury and to
take further discovery to determine if PEER can satisfy these elements.
ii. The Identities of Witnesses Are Not Protected Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989)); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Defendants’ Interrogatory merely requests the identities of any witnesses
known by PEER—not any witness statements made in anticipation of litigation or
other attorney work product. Plaintiff have made no showing that the attorney
work product applies to the names or identities of these witnesses—it has simply
asserted this doctrine as a boilerplate objection to Defendants’ request for a
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disclosure already compelled under Fed. R. Civ. P. 26(a)(1)(A) and discoverable
under Rule 26(b)(1). Additionally, it is clear from the fact that the Federal Rules of
Civil Procedure compel disclosure of witnesses’ identities that this information is
not protected as attorney work product.
iii. Disclosure of Witnesses Is Compelled By Rule 26.
Under Rule 26, Plaintiffs must disclose all witnesses with discoverable
information. Rule 26(b)(1) states that “any nonprivileged matter that is relevant to
any party’s claim or defense” is discoverable, including “the identity and location of
persons who know of any discoverable matter.” Rule 26(a)(1)(A) states that “a
party must, without awaiting a discovery request, provide to the other parties: (i) the
name and, if known, the address and telephone number of each individual likely to
have discoverable information—along with the subjects of that information—that
the disclosing party may use to support its claims or defenses. . . .” See Green v.
Baca, 226 F.R.D. 624, 655 (C.D. Cal. 2005).
The required disclosures under the Federal Rules of Civil Procedure clearly
contemplate the timely exchange of witness identities among the parties, and do not
protect such information from discovery. Further, if a party later attempts to use a
witness it has failed to disclose, it will not be permitted to do so where such a failure
is not substantially justified or is harmless. Fed. R. Civ. Proc. 37(c)(1).
Accordingly, PEER should be required to identify those individuals it will rely upon
as standing witnesses at trial.
d. PEER’S CONTENTIONS REGARDING INTERROGATORY NO. 8.
There is no requirement that PEER produce the names of any of its witnesses
until the exchange of information required at least 40 days before the pre-trial
conference, LR 16-2.4, to be filed with the court no later than 21 days before the
final pre-trial conference. LR 16-5. See also Fed. R. Civ. P. 26(a)(3)(A)(i) and (B)
(requiring disclosure of the name, address and telephone number of witnesses at
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least 30 days before trial). The fact that Plaintiffs were required to disclose “the
identity and location of persons who know of any discoverable matter” in their
initial disclosures under Rule 26(b)(1) does not mean that Plaintiffs must disclose
the names of witnesses before the times provided for such disclosure in the Federal
and Local Rules. See D’Onofrio v. Sfx Sports Group, Inc., 247 F.R.D. 43, 53-54
(D.D.C. 2008). PEER has complied with the requirements for initial disclosures
under Rule 26(a)(1)(A) and need not make any disclosures concerning witnesses at
this point.
In addition, as a practical matter, compelling a response to this interrogatory
would serve no purpose since PEER has not determined at this point who it might
rely on as a standing witness at trial.
B. REQUESTS FOR PRODUCTION TO PEER REGARDING
STANDING
1. REQUEST FOR PRODUCTION NO. 41.
a. REQUEST FOR PRODUCTION NO. 41
All DOCUMENTS that SUPPORT, REFER, or RELATE TO PEER’S
standing in this lawsuit.
b. RESPONSE TO REQUEST FOR PRODUCTION NO. 41.
Plaintiff objects to this Request on the ground that it is vague and ambiguous.
Plaintiff further objects to this Request to the extent that it seeks privileged attorney-
client communications, work product, common-interest communications or other
privileged information.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 41.
i. Vagueness and Ambiguity Are Not Valid Objections to RFP No. 41.
Plaintiff’s objection that Requests for Production No. 41 is vague and
ambiguous is unfounded. “The party who resists discovery has the burden to show
discovery should not be allowed, and has the burden of clarifying, explaining, and
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supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D. Cal.
2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975) and
Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff has offered no explanation as to why Defendants Request is so
“vague” or “ambiguous” that Plaintiff cannot produce any responsive documents.
Accordingly, Defendants request that Plaintiff produce documents in response to
this Request.
ii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 41.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
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attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents that support, refer, or relate to PEER’s standing in this lawsuit are
not protected by the attorney-client privilege to the extent that these materials are
not communications between Plaintiff and its counsel in anticipation of this
litigation. Plaintiffs have failed to indicate in their responses which
communications they believe to be protected by the attorney-client privilege.
Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly, Plaintiffs may not refuse to
produce documents in response to Defendants’ Requests on the basis of attorney-
client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court, 881 F. 2d 1486, 1494 (9th
Cir. 1989). “The party claiming work product immunity has the burden of proving
the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at 192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the documents sought in Defendants’
Requests. Furthermore, Defendants have good cause to request information sought,
because Defendants are entitled to challenge PEER’s legal standing to bring this
action. Plaintiffs have not met the burden of demonstrating the applicability of the
work product doctrine, so their objection on this basis is not appropriate.
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Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
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d. PEER’S CONTENTIONS REGARDING RFP NO. 41.
PEER has already produced its communications with government agencies
and officials and the public at large on behalf of teachers and staff at the Malibu
Schools which are relevant to PEER’s standing in this lawsuit. PEER’s
communications with individual members of the public which may be relevant to
PEER’s standing are being withheld under the attorney-client privilege and under
the protection of the First Amendment.
Attorney- Client Privilege
PEER considers that all persons who contact PEER are seeking legal advice
or assistance, and therefore their communications are attorney-client privileged.
(See PEER Webpage, Ex. 1 to Dinerstein Declaration)
First Amendment Privilege
PEER is a whistleblower organization which promises confidentiality to all
those who contact it concerning environmental issues and government wrongdoing.
Confidentiality is promised with regard to the content of the communication and not
only the identity of the person. (See PEER web page, Ex. 1 to Dinerstein
Declaration) This promise of confidentiality applies to all of those who have
contacted PEER about the PCBs in the Malibu Schools. If PEER were to disclose
communications with those persons in discovery, it would greatly inhibit PEER’s
ability to function as an organization where people may raise issues in confidence.12

12 Defendants claim that PEER is “publicly vocal about its activities and its
membership, listing members of its Board and DC Staff on its website.” Although
PEER may be publicly vocal about its activities, and does list the members of its
Board and staff on its website, revealing the identity of PEER’s employees and
Board is an entirely different matter from revealing the identities of or the content
of communications with those who contact PEER in confidence. PEER does not
reveal its membership list to anyone. While certain members may choose to
reveal their membership in PEER or their communications with PEER, PEER has
promised them confidentiality and would never reveal their identities or the
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In a case involving another whistleblower organization, the Government
Accountability Project (GAP), in which a subpoena seeking information about its
informants was quashed, the court stated:
“if the government is successful in compelling [the organization’s
lawyer] to reveal the information given to her, especially the identity of
those she represents, GAP will lose the confidence of some of its
whistleblower informants and its efforts to gather and present safety
allegations will suffer. This is the harm that GAP claims, and it is
cognizable under the right to association.”
United States v. Garde, 673 F. Supp. 604, 607 (D.D.C. 1987).
The same would hold for PEER, which has thus made a “prima facie showing
of arguable first amendment infringement.” Perry v. Schwarzenegger, 591 F.3d
1126, 1140 (9th Cir. 2010) (quoting United States v. Trader’s State Bank, 695 F.2d
1132, 1133 (9th Cir. 1983) (per curiam)). Disclosure of communications between
members of the public and PEER is likely to result in discouraging such
communications because PEER is unable to protect their confidentiality, thereby
severely hampering PEER’s organizational mission. It could also result in
harassment of individuals who are parties to these communications. Defendants
have already filed a false criminal complaint against the President of America
Unites, Ms. DeNicola, and her husband, seeking to subject them to felony charges
punishable by fines and imprisonment, for allegedly taking caulk samples. It is
difficult to imagine a more “chilling” action against those who advocate for PCB
testing and remediation at the Malibu Schools.
It is more than understandable that persons who communicate with PEER on
this subject would not want their communications disclosed. It should also be noted
that teachers and other staff who are employees of Defendants, on whose behalf

contents of their communications without their permission. No such permission
has been given here.
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PEER advocates, are even more vulnerable to harassment and retaliation than
parents at the school such as Mr. and Ms. DeNicola, since they depend on the
Defendants for their employment and all of the conditions of that employment.
Defendants suggest that “names and email addresses of those members who
would like their membership in PEER to remain private could be redacted …”.
However, while persons who communicate with PEER certainly have First
Amendment protection against revealing the fact of their membership and their
personal contact information, NAACP v. State of Alabama, 357 U.S. 449 (1958), the
First Amendment also protects the confidentiality of the fact that they have
communicated with PEER, whether or not they are members of PEER, and protects
the content of their communications. The Ninth Circuit in Perry ordered protection
of communications, not the identities of members, emphasizing that:
“The First Amendment privilege, however, has never been limited to
the disclosure of identities of rank-and-file members. … The existence
of a prima facie case turns not on the type of information sought, but
on whether disclosure of the information will have a deterrent effect on
the exercise of protected activities.”
591 F.3d at 1162 (citations omitted).
In addition, given the relatively small size of the community at the Malibu
Schools, it is likely that the identity of those communicating could be deduced from
the content of the communication even if names are redacted.
Once a prima facie case of First Amendment infringement is made, “the
evidentiary burden will then shift to the government . . . [to] demonstrate that the
information sought through the [discovery] is rationally related to a compelling
governmental interest . . . [and] the ‘least restrictive means’ of obtaining the desired
information.” Perry, 591 F.3d at 1161 (quoting Brock v. Local 375, Plumbers Int’l
Union of Am., 860 F.2d 346, 349-50 (9th Cir. 1988) (quoting United States v.
Trader’s State Bank, 695 F.2d 1132, 1133 (9th Cir. 1983) (per curiam)).
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“Importantly, the party seeking the discovery must show that the information sought
is highly relevant to the claims or defenses in the litigation — a more demanding
standard of relevance than that under Federal Rule of Civil Procedure 26(b)(1). The
request must also be carefully tailored to avoid unnecessary interference with
protected activities, and the information must be otherwise unavailable.” Perry, 591
F.3d at 1161.
Here, Plaintiffs have produced the primary documents which are relevant to
its standing in terms of its public communications on behalf of Malibu School
teachers and staff. Defendants cannot even show that additional discovery on this
subject meets the relevance requirements of Rule 26, much less the more demanding
standard of relevance when First Amendment interests are implicated.
2. REQUEST FOR PRODUCTION NO. 42.
a. REQUEST FOR PRODUCTION NO. 42
All DOCUMENTS that SUPPORT, REFER, or RELATE to the standing of
the PERSON or PERSONS that PEER intends to call as STANDING WITNESSES
at trial.
b. RESPONSE TO REQUEST FOR PRODUCTION NO 42.
Plaintiff objects to this Request on the ground that it is vague and ambiguous.
Plaintiff further objects to this Request to the extent that it seeks privileged attorney-
client communications, work product, common-interest communications or other
privileged information.
c. DEFENDANTS’ CONTENTIONS REGARDING RFP NO. 42.
i. Vagueness and Ambiguity Are Not Valid Objections to RFP No. 42.
Plaintiff’s objection that Requests for Production No. 42 is vague and
ambiguous is unfounded. “The party who resists discovery has the burden to show
discovery should not be allowed, and has the burden of clarifying, explaining, and
supporting its objections.” Bible v. Rio Props., Inc., 246 F. R. D. 614 (C.D. Cal.
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2007) (citing Blankenship v. Hearst Corp., 519 F. 2d 418, 429 (9th Cir. 1975) and
Keith H. v. Long Beach Unified Sch. Dist., 228 F.R.D. 652, 655-56 (C.D. Cal.
2005)). There is no merit to “general or boilerplate objections such as ‘overly
broad’ [or] ‘vague and ambiguous.’” Bible, 246 F. R. D. at 619; A. Farber &
Partners, Inc. v. Garber, 234 F. R. D. 186, 188 (C.D. Cal. 2006).
Plaintiff has offered no explanation as to why Defendants Request is so
“vague” or “ambiguous” that Plaintiff cannot produce any responsive documents.
Accordingly, Defendants request that Plaintiff produce documents in response to
this Request.
ii. Attorney-Client, Attorney Work Product, and Common-Interest
Communication Privileges Are Not Valid Objections to RFP No. 42.
(a) Attorney-Client Privilege.
“The attorney-client privilege protects confidential communications between
attorneys and clients, which are made for the purpose of giving legal advice.”
United States v. Richey, 632 F. 3d 559, 566 (9th Cir. 2011). The party asserting this
privilege bears the burden of showing that there is an attorney-client relationship
and the privileged nature of the communication. Id.; United States v. Bauer, 132 F.
3d 504, 507 (9th Cir. 1997). There is an attorney-client privilege where: “(1) [ ]
legal advice of any kind is sought (2) from a professional legal advisor in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal advisor, (8) unless the protection be waved.”
Id. (quoting United States v. Graf, 610 F. 3d 1148, 1156 (9th Cir. 2010)). The
privilege is waived when privileged communications are disclosed. Weil v.
Inv./Indicators, Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). While
the privilege may extend to those communications with third parties assisting the
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attorney in legal advice, it does not extend where the advice sought is not legal
advice. Id.
Documents that support, refer, or relate to the standing of the person or
persons that PEER intends to call as standing witnesses at trial are not protected by
the attorney-client privilege to the extent that these communications are not between
Plaintiff and its counsel in anticipation of this litigation. Plaintiffs have failed to
indicate in their responses which communications they believe to be protected by
the attorney-client privilege. Richey, 632 F. 3d at 567 (9th Cir. 2011). Accordingly,
Plaintiffs may not refuse to produce documents in response to Defendants’ Requests
on the basis of attorney-client privilege.
(b) Attorney Work Product.
The work product doctrine prohibits discovery of documents and other
materials “prepared by a party or his representative in anticipation of litigation.”
United States v. Richey 632 F. 3d 559, 567 (9th Cir. 2011) (quoting Admiral Ins. Co.
v. U.S. Dist. Ct., 881 F. 2d 1486, 1494 (9th Cir. 1989); Fed. R. Civ. P. 26(b)(3).
The work product doctrine is a qualified immunity rather than a privilege, and a
showing of good cause for the information desired is sufficient to overcome the
qualified immunity. A. Farbers & Ptnrs., Inc. v. Garber, 234 F.R.D. 186, 192 (C.D.
Cal. 2006); Admiral Ins. Co. v. United States Dist. Court., 881 F. 2d 1486, 1494
(9th Cir. 1989). “The party claiming work product immunity has the burden of
proving the applicability of the doctrine.” A. Farbers & Ptnrs., Inc., 234 F.R.D. at
192.
Plaintiffs cannot claim work product immunity because they have made no
showing that this protection applies to any of the documents sought in Defendants’
Requests. Under Rule 26, Plaintiffs must disclose all witnesses with discoverable
information. Rule 26(b)(1) states that “any nonprivileged matter that is relevant to
any party’s claim or defense” is discoverable, including “the identity and location of
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persons who know of any discoverable matter.” Rule 26(a)(1)(A) states that “a
party must, without awaiting a discovery request, provide to the other parties: (i) the
name and, if known, the address and telephone number of each individual likely to
have discoverable information—along with the subjects of that information—that
the disclosing party may use to support its claims or defenses. . . .” See Green v.
Baca, 226 F.R.D. 624, 655 (C.D. Cal. 2005).
The required disclosures under the Federal Rules of Civil Procedure clearly
contemplate the timely exchange of witness identities among the parties, and do not
protect such information from discovery. Further, if a party later attempts to use a
witness it has failed to disclose, it will not be permitted to do so where such a failure
is not substantially justified or is harmless. Fed. R. Civ. Proc. 37(c)(1).
Request No. 42 is merely requesting any witnesses’ identities known by
PEER—not any witness statements or attorney work product.
Furthermore, Defendants have good cause to request information sought,
because Defendants are entitled to challenge PEER’s legal standing to bring this
action. Plaintiffs have not met the burden of demonstrating the applicability of the
work product doctrine, so their objection on this basis is not appropriate.
Accordingly, Plaintiffs may not refuse to produce documents in response to
Defendants’ Requests on the basis of attorney-client privilege.
(c) Common Interest Doctrine.
In general, the attorney-client privilege is waived when communications
between an attorney and client are disclosed to a third party. Weil v. Inv/ Indicators,
Research & Mgmt., Inc., 647 F. 2d 18, 24 (9th Cir. 1981). There is a rare exception
to this waiver rule where individuals with a common interest in a legal matter may
“communicate among themselves and with the separate attorneys on matters of
common legal interest, for the purpose of preparing a joint strategy, and the
attorney-client privilege will protect these communications to the same extent as it
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would communications between each client and his own attorney.” Nidec Corp. v.
Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007) (quoting 1 PAUL R. RICE,
ATTORNEY-CLIENT PRIVILEGE IN THE UNITED STATES § 4:35, at 192 (1999 ed.);
United States v. Gonzales, 669 F. 3d 974, 978 (9th Cir. 2012). This common
interest doctrine is not a privilege, but an exception to the rule on waiver where
communications are disclosed to third parties. See Griffith, 161 F.R.D. at 692. For
this reason, the common interest doctrine comes into play only if the
communication at issue is privileged in the first place. Nidec Corp, 249 F.R.D. at
578.
As the common interest doctrine applies only to those materials protected by
the attorney-client privilege with regard to America Unites and PEER, the parties
with a common legal interest in this case, not all communications between America
Unites and PEER are protected. Defendants request that Plaintiff produce
documents in response to this request to the extent that Plaintiff possesses
responsive materials that are not protected as either Plaintiffs’ attorney-client
communications.
d. PEER’S CONTENTIONS REGARDING RFP NO. 42.
PEER cannot respond to this document request because it need not identify
the standing witness(es) it intends to call at this juncture of the litigation (see
response to Interrogatory No. 8) and because PEER has not yet determined who it
might call as a standing witness in this case.
Respectfully submitted,
Dated: December 21, 2015 PILLSBURY WINTHROP SHAW
PITTMAN LLP

By: /s/ Caroline L. Plant
Caroline L. Plant
Attorneys for Defendants Sandra Lyon,
Jan Maez, Laurie Lieberman, Dr. Jose
Escarce, Craig Foster, Maria Leon-
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Vazquez, Richard Tahvildaran-
Jesswein, Oscar De La Torre, and
Ralph Mechur

Dated: December 21, 2015 NAGLER & ASSOCIATES

By: /s/ Charles Avrith
Charles Avrith
Attorneys for Plaintiffs America Unites
for Kids and Public Employees for
Environmental Responsibility

Dated: December 21, 2015 PAULA DINERSTEIN

By: /s/ Paula Dinerstein
Paula Dinerstein
Attorneys for Plaintiff Public
Employees for Environmental
Responsibility
Case 2:15-cv-02124-PA-AJW Document 73 Filed 12/21/15 Page 267 of 267 Page ID
#:2715

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