CITY COUNTY OF SAN FRANCISCO v. TUTOR-SALIBA CORP

EDWARD CHEN, Magistrate Judge

Having considered the parties submissions' in response to this Court's Order dated September 3, 2003, and good cause appearing therefor, it is hereby ordered that:

1. Defendants shall within fifteen (15) days of the date of this Order produce all documents which Defendants have already agreed to produce. Those documents are contained in 65 boxes listed on Exhibit C to Plaintiff's' Proposed Order Regarding Plaintiff's' First Request for Inspection and Production of Documents ("Plaintiff's' Proposed Order").

2. Defendants shall within forty-five (45) days of this Order produce the following documents from the boxes listed on Exhibits D E to Plaintiff's' Proposed Order:

a. Documents which relate or refer to subcontractors who have worked on specific change orders explicitly mentioned in the Second Amended Complaint ("SAC").

b. Documents which refer or relate to work billed in either Change Order 230 and Change Order 3000 regardless of whether particular subcontractors are identified in the SAC in connection with those change orders.

3. Defendants shall produce within forty-five (45) days of this Order all bid documents that pertain to the New International Terminal ("New IT") Project.

4. Defendants shall produce within forty-five (45) days of this Order all job cost records consisting of all weekly, monthly, and annual job cost records for the New IT Project, created or dated after December 1, 1998.

5. Any document withheld or redacted on grounds of privilege shall be designated and described on a privilege log submitted at the time the documents are due. Documents contained in boxes shall be bates labeled to identify the box from which they were produced.

6. The parties shall agree on a stipulated protective order within fifteen (15) days of this Order.

The Court emphasizes that this Order is entered merely to initiate the first phase of discovery. The Court's Order of September 3, 2003 and this Order are not intended to delineated the bounds of discovery that will occur over the course of this case. The Order of September 3, 2003 was intended to define the first phase of discovery only. The Court is of the view that under Rule 26, discovery will not be limited to those subcontractors or change orders specifically described in the SAC. The allegations are broader and the specific references in the SAC are generally illustrative and not limiting. As previously stated, the Court concludes that Plaintiff's' document request is not filed merely to conduct a "fishing expedition," and Plaintiff's are not precluded from seeking discovery of evidence that would substantiate their general claims. Nor are Plaintiff's required to allege in detail each wrongful act and the identity of each participant as a precondition to discovery. However, given the breadth of the SAC and the potential burden upon the Defendants in responding to Plaintiff's' discovery request, the Court has sought to focus the first phase of immediate discovery on those documents which most directly related to the explicit allegations of the SAC.

Given the parties' inability to reach agreement on this first phase, this Order implements the September 3, 2003 with that purpose in mind. Although the scope of the documents ordered produced herein might be perceived as slightly broader than that directed in the September 3 order, all the documents herein are clearly relevant and discoverable under the broad standards of Rule 26. The only question with respect to the documents ordered produced is one of timing, not substance. With this in mind, the Court has afforded Defendants ample time herein to produce the documents, especially in view of the fact that three weeks have transpired since the parties submissions to the Court on this matter. In addition to these three weeks, the Court is affording Defendants' forty-five additional days to produce the disputed documents.

The parties are reminded they must meet and confer and come up with a discovery plan to cover the remaining phases of discovery. In view of the impending hearing on Defendants' motion to dismiss, the deadline for submission of the discovery plan shall be October 24, 2003.

Because of the issuance of this Order and in anticipation of the development of a discovery plan, the Court DENIES without prejudice Plaintiff's' Motion for Order Compelling Defendants to Produce Documents (Docket No. 113), and the October 15, 2003 hearing thereon is VACATED.

Any failure to comply with this Court's order (including taking unilateral action without seeking further order of this Court) will subject the breaching party to sanctions.

IT IS SO ORDERED.