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.,

Defendant. /

No. C 08-04022 SI

ORDER RE: DEFENDANTS’ MOTION TO

COMPEL

(Docket No. 174)

The City has filed a motion to compel Mitchell to produce to produce (1) financial documents

identified during the deposition of Rene Lazure, Mitchell’s CEO, and (2) emails about Mitchell projects.

I. Financial Documents

The City first moves to compel the production of “numerous financial documents” identified by

Mr. Lazure during his deposition, including quarterly financial reports, backup data, project-specific

reports, and profit and loss reports. The City acknowledges that after Mr. Lazure’s deposition, Mitchell

produced “monthly closing binders” for the time period at issue, but states that these binders “do not

appear” to contain some of the documents identified by Mr. Lazure, including financial reports stored

electronically rather than in hard copy.

Mitchell has explained in its letter brief, however, that it has already produced all documents in

its possession that were referenced during Mr. Lazure’s deposition. Mitchell has produced, in total, 106

boxes of paper documents, as well as its entire “Timberline” database in which it electronically stores

accounting data. Mr. Lazure testified during his deposition that the Timberline database essentially

Case 3:08-cv-04022-SI Document 179 Filed 07/27/10 Page 1 of 3
United States District Court

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contains all of Mitchell’s financial information. Mitchell’s production is therefore sufficient to meet

the request, and the motion to compel the production of additional financial documents is DENIED.

II. Email Production

The City also moves to compel production of emails pertaining to Mitchell’s performance on

non-City construction projects. The Court has previously dealt with this dispute, and has found that

emails relating to the non-City projects are relevant to the issue of Mitchell’s financial condition. See

April 13, 2010 and May 4, 2010 Orders (Docket Nos. 107, 122). In the prior orders, the Court informed

the parties that it was unable to determine whether each of the proposed search terms was designed to

uncover relevant information, and directed the parties to meet and confer to arrive at a reasonable list

of terms. The City proposed a new set of 188 search terms on July 9, 2010. Mitchell then proposed that

in lieu of conducting an email search for each of the 25 custodians encompassed by the request, it would

provide hard copies of “job files” for the non-City projects. The City objects to that proposal on the

grounds that paper files are less searchable than electronic files and likely will not contain all relevant

emails, and moves to compel production of emails using its proposed list of search terms.

The Court recognizes the City’s desire to obtain the information it seeks in the most convenient

format. However, after waiting more than two months since this dispute was last raised to pursue

production of emails, it is unreasonable for the City to refuse to accept production of documents that

will substantially provide it with the information it seeks. The Court has already issued a summary

judgment order in this case, and trial is presently set to begin on August 30, 2010. At this late juncture,

the Court is not inclined to order Mitchell to run 188 search terms – whose relevance the Court cannot

determine – through its email databases when Mitchell has proposed a less burdensome alternative that

will enable it to make immediate production. The motion to compel is DENIED as to email production

and the parties are directed to proceed with Mitchell’s proposed production of job files.

III. Additional Depositions

The City also states that in the event Mitchell plans to pursue its request to take an eleventh

deposition, the City wishes to re-depose Curtis Mitchell and Michael Silva. As Mitchell has stated that

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it is not seeking any additional depositions, the Court need not address the City’s request.

IT IS SO ORDERED.

Dated: July 27, 2010 

SUSAN ILLSTON

United States District Judge

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