United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MITCHELL ENGINEERING,

Plaintiff,

 v.

CITY AND COUNTY OF SAN FRANCISCO, 

et al.,

Defendants. /

No. C 08-04022 SI

ORDER DENYING PLAINTIFF’S

REQUEST FOR A PROTECTIVE

ORDER

Plaintiff Mitchell Engineering has filed a request for a protective order against the City’s

subpoena to Moss Adams, LLP, plaintiff’s accountant. The City seeks discovery of documents related

to plaintiff’s financial condition, including: (1) all files maintained by Moss Adams for “work [it has]

performed involving Mitchell Engineering and partnerships and/or joint ventures involving Mitchell

Engineering”; (2) annual financial statements and reports for the years 1999 to present; (3) quarterly

financial statements and reports for the years 2003 to present; and (4) letters of engagements provided

to Mitchell “for services [Moss Adams] proposed to perform for both Mitchell Engineering and any and

all partnerships and/or joint ventures involving Mitchell Engineering for the period 1999 to the present.”

See Ex. A to Schultz Decl.

Plaintiff seeks a protective order on the ground the City’s request seeks production of documents

that are subject to privacy protections. Plaintiff asserts that when privacy concerns are implicated, the

party seeking discovery must demonstrate that the evidence sought is directly relevant and that there

is a compelling need for the evidence, i.e., the evidence cannot be obtained through less intrusive means.

Plaintiff asserts that the City has not made either of these showings, but has simply contended in general

Case 3:08-cv-04022-SI Document 97 Filed 03/25/10 Page 1 of 3
United States District Court

For the Northern District of California

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 In addition, with respect to the burden on Moss Adams, the City informs the Court that it “has

clarified to Moss Adams that it does not need to produce any documents already produced to the City

in any of the State cases between Mitchell and the City.”

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terms that it is entitled to discovery of all documents related to plaintiff’s financial condition.

The City does not contest that the documents it seeks are ordinarily subject to privacy protections

and that it must show a compelling need in order to justify discovery. The City contends that it is

entitled to receipt of the documents it seeks because: (1) plaintiff has waived any claim that its financial

information is protected by putting its financial condition at issue in this suit; (2) the information is

already protected pursuant to a stipulated protected order from disclosure outside this case; and (3) the

City has shown a compelling need for the information which outweighs any privacy interest. 

The Court agrees with the City that plaintiff has placed its financial condition in issue by

specifically claiming that the City’s actions have caused it damages in the range of $41 million to $70

million, and by offering its own method of calculating such damages. The City is entitled to discovery

of documents reflecting plaintiff’s financial condition during the relevant period for the purpose of

conducting its own damages calculations. In addition, the City is correct that any information disclosed

is already subject to a protective order preventing its use outside this litigation.

Plaintiff asserts that the City cannot demonstrate a compelling need for the information sought

because it has already received production of many of the documents it seeks. Plaintiff’s contention

undermines its prior assertion of privacy concerns; if plaintiff previously produced “audited financial

reports prepared by Moss Adams, as well as any internal annual or quarterly financial statements in

[plaintiff’s] possession, custody, or control,” it is difficult to understand how plaintiff can now assert

that privacy concerns preclude the City from obtaining discovery of the last few documents it has not

yet received.1

Both parties specifically mention the request for documents related to plaintiff’s partner,

Obayashi Corporation, and their joint venture Mitchell Engineering Obayashi Corporation (“MEOC”).

MEOC was the contractor for the Fourth Street Bridge Project. Plaintiff contends that documents

related to the MEOC venture are “not relevant” to the present litigation. Plaintiff’s contention is simply

untenable. The Fourth Street Bridge Project is specifically identified in plaintiff’s complaint as an

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United States District Court

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impetus for the public comments which gave rise to the City’s allegedly retaliatory actions, and is

therefore directly relevant to plaintiff’s claims. In addition, the City informs the Court that plaintiff

rejected the City’s offer to stipulate that plaintiff’s financial condition in connection with the Fourth

Street Bridge Project was not relevant to this suit. See Ex. D to City’s Oppo. The Court agrees with

the City that plaintiff cannot seek to preserve its ability to introduce information concerning the MEOC

venture while simultaneously denying the City discovery of information related thereto.

Plaintiff’s motion for a protective order preventing Moss Adams from producing the requested

documents is therefore DENIED. 

IT IS SO ORDERED.

Dated: March 25, 2010 

SUSAN ILLSTON

United States District Judge

Case 3:08-cv-04022-SI Document 97 Filed 03/25/10 Page 3 of 3