Tyler et al v. San Diego, City of et al, No. 3:2014cv01179 - Document 59 (S.D. Cal. 2015)
Court Description: ORDER Granting In Part and Denying In Part 46 Plaintiff's Motion for Reconsideration of Protective Orders. Signed by Magistrate Judge Jill L. Burkhardt on 2/2/2015. (srm)
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Tyler et al v. San Diego, City of et al Doc. 59 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 Michelle Tyler, et al., Civil No. 11 Plaintiffs, 12 v. 13 14 City of San Diego, et al., 15 Defendants. 16 14cv1179-GPC (JLB) ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR RECONSIDERATION OF PROTECTIVE ORDERS [ECF No. 46] Before the Court is Plaintiffs’ Motion for Reconsideration of the Court’s 17 18 Order granting in part and denying in part Defendant City of San Diego’s Motion 19 for Protective Orders (ECF No. 46). Having considered Plaintiffs’ Motion (ECF 20 No. 46) and supporting declaration (ECF No. 46-1), Defendant City of San Diego’s 21 Opposition (ECF No. 49), and Plaintiffs’ Reply (ECF No. 50) and supporting 22 declaration (ECF No. 50-1), the Court issues this order modifying its December 17, 23 2014 Order pursuant to its inherent power to reconsider its own orders. See City of 24 Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 886-87 (9th 25 Cir. 2001).1 Accordingly, Plaintiffs’ motion (ECF No. 46) is GRANTED IN PART 26 AND DENIED IN PART as follows. 27 28 1 Because the Court is relying on its inherent power, the Court need not address Defendant’s arguments that reconsideration is not authorized under the Federal Rules. 1 14cv1179 Dockets.Justia.com 1 1. Limitation of Discovery Production Based Upon Gender of Victim 2 Plaintiffs correctly point out that men as well as women can be victims of 3 sexual harassment and sexual battery. Although the Plaintiffs have neither made 4 allegations nor put forward evidence that Mr. Filner sexually harassed or sexually 5 battered men, if the City has evidence of such, it could be relevant in this case. As 6 such, the Court finds it to be appropriate and within the interest of justice to strike 7 the limitation as to the gender of alleged victims from the December 17, 2014 8 Order. 9 2. Limitation to Complaints Against Filner and Limitations to Time 10 Plaintiffs urge that discovery should not be limited to the period prior to the 11 alleged incident (June 11, 2013) but should continue forward in time because, 12 Plaintiffs assert, the incident with Mr. Filner continued to impact Plaintiffs’ ability 13 and willingness to seek city services after June 11, 2013. In light of this 14 explanation and finding no undue burden, the Court concludes that it is in the 15 interests of justice to expand the period of discovery for the Federal Rule of Civil 16 Procedure topics through the remainder of Mr. Filner’s tenure with the City, that is, 17 through August 2013.2 18 Plaintiffs also assert in their Motion for Reconsideration that they should be 19 able to depose the City as to all allegations of sex discrimination against “city 20 supervisory employees, including elected and appointed officials.” Yet, Plaintiffs 21 fail to provide an explanation, argument or relevant authority for this assertion. The 22 Court finds no merit to this assertion. 23 First of all, with the exception of Topics 20 and 21, all of the relevant topics 24 in Plaintiffs’ Rule 30(b)(6) notice (Topics 1-18) were limited by the Plaintiffs to 25 allegations about Mr. Filner. Only Topics 20 and 21 address allegations not limited 26 27 28 2 The Court modifies its previous order on this basis, in spite of the fact that the pre-June 11, 2013 limitation came from Plaintiffs’ own 30(b)(6) notice, and nearly all of the topics in Plaintiffs’ notice (Topics 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 18) contained that time limitation. 2 14cv1179 1 to Mr. Filner, and both are clearly overbroad in this respect. Topic 20 compels the 2 30(b)(6) witness to address, among other things, any allegations (or even 3 “suggestions”) of the City or any of its employees or agents engaging in sexual 4 harassment or sex discrimination while disbursing or administering federal funds, 5 without limit as to time. (Emphasis added.) Topic 21 compels the 30(b)(6) witness 6 to address all allegations (or even “suggestions”) of sex harassment and sex 7 discrimination “against the CITY” in the past ten years. (Emphasis added.) It also 8 compels the witness to be prepared to address all documents that relate to any 9 allegation (or even “suggestion”) of sex harassment and or sex discrimination 10 “made by any CITY employee, independent contractor, representative, volunteer, 11 constituent or agent” without limit as to time.3 (Emphasis added.) Second, the undue burden that would be placed on the City and the limited 12 13 nature of the allegations in Plaintiffs’ complaint weigh against the discovery 14 sought. Plaintiffs are not employees of the City, but rather are constituents who 15 allege that Ms. Tyler was sexually harassed by then-Mayor Filner, an elected 16 official. The Complaint asserts liability of the City for sexual harassment (in the 17 Second Cause of Action) and sexual discrimination (in the Fifth Cause of Action) 18 due the City’s alleged failure to train, supervise and discipline Mr. Filner and its 19 alleged failure to warn and protect the Plaintiffs. The Complaint does not allege 20 broader failures on the part of the City. This is an atypical sexual harassment/sex discrimination case in a number of 21 22 ways, but in particular because Mr. Filner was, at the relevant times, an elected 23 official. Plaintiffs have not alleged, for example, that other City employees, 24 including supervisory employees, engaged in sexual harassment or sex 25 discrimination. The Court concludes that, under these circumstances, the burden of 26 27 28 3 Although Plaintiffs’ motion for reconsideration asserts that the Court should permit discovery of harassment by “city supervisory employees, including elected and appointed officials,” Topics 1-18 do not request that, and Topics 20 and 21 as drafted by Plaintiffs are far broader than that. 3 14cv1179 1 the proposed discovery outweighs its likely benefit, considering the needs of the 2 case. Plaintiffs’ deposition topics are overbroad and unduly burdensome to the 3 extent they seek discovery s into allegations of sex discrimination and sex 4 harassment leveled against employees of the City other than Mr. Filner. 5 3. The DFEH Agreement 6 Plaintiffs explain, in their Motion for Reconsideration, that the DFEH 7 agreement referenced in the Rule 30(b)(6) notice is a settlement agreement entered 8 into by the City resolving allegations by DFEH that the City failed to train Mr. 9 Filner and other supervisory employees. Based upon this explanation, the Court 10 concludes that it is appropriate and in the interests of justice to modify its prior 11 Order to include this as a proper 30(b)(6) topic. 12 4. 13 14 15 16 17 18 19 20 21 22 The Court had determined that some language within Plaintiffs’ Topic 20 was argumentative and harassing, not intended to lead to the discovery of admissible evidence, and not appropriate for a 30(b)(6) topic. Plaintiffs included language such as: “whether the City knew in 2013 knew it could not sexually harass”; whether Bob Filner “had any meetings with any male veterans” and whether male veterans “were required to go on dates with Filner, be seen in public with Filner or go to dinner with Filner.” The Court continues to find these portions of Plaintiffs’ topics improper. Other parts of Topic 20 were unduly burdensome such as “whether the CITY provided any veteran services or assistance to any males in 2013 and, if so, the full identity of those males and what occurred and when.” 23 24 Section 1983 Discovery, Discrimination While Disbursing Federal Funds, and Other Veterans The Court, in its previous order, found that the City should prepare a witness to testify as to: 25 information known or reasonably available to the City regarding its 2012 to August 2013 veterans services and assistance, including funding, financial assistance, and contracts. 26 27 28 /// 4 14cv1179 1 Thus, Plaintiffs are not precluded from obtaining appropriate discovery necessary to 2 support their § 1983 claim. The Court declines to revisit its prior Order in this 3 regard. 4 For the reasons stated above, IT IS HEREBY ORDERED THAT paragraph 5 4 of the Court’s December 17, 2014 order (ECF No. 42) addressing the appropriate 6 topics of the Fed. R. Civ. P. 30(b)(6) deposition of Defendant City of San Diego is 7 MODIFIED as follows: 8 9 4. Defendant’s request for an order precluding or limiting the scope of the noticed Fed. R. Civ. P. 30(b)(6) deposition of Defendant City of 10 San Diego is GRANTED IN PART AND DENIED IN PART. Plaintiffs 11 served a deposition notice pursuant to Fed. R. Civ. P. 30(b)(6) that seeks 12 Defendant City of San Diego’s testimony on 21 listed topics. The Court 13 concludes that each of the 21 topics is overbroad and unduly burdensome as 14 written. However, the topics are relevant to Plaintiffs’ equal protection 15 claim against the City of San Diego. Thus, the Court ORDERS that the Fed. 16 R. Civ. P. 30(b)(6) deposition may go forward on the noticed topics as 17 narrowed by the Court below: 18 a. Topics 1-17 (Knowledge of misconduct): These topics 19 are limited to the City of San Diego’s knowledge through August 20 2013, concerning Defendant Filner’s actual or alleged sexual 21 harassment, requests for sexual favors, or his written, verbal, or 22 physical conduct of a sexual nature, and any response of the City 23 thereto. 24 b. Topic 18 (Documents maintained; Dates and identity of 25 victims’ complaints and recipients of complaints about Filner; 26 Investigation into Plaintiffs’ complaints): In addition to being 27 overbroad and unduly burdensome, this topic is compound. The 28 City should prepare its designee on documents maintained and information known or reasonably available to the City regarding 5 14cv1179 1 2012 to August 2013 complaints about Defendant Filner’s actual or 2 alleged sexual harassment, requests for sexual favors, or his written, 3 verbal, or physical conduct of a sexual nature. As with any topic, 4 the deponent may produce and/or utilize documents to assist with 5 testimony on this topic. The City should also prepare its designee 6 on the City’s investigation into complaints made by plaintiffs 7 (without waiving or revealing privileged communications or 8 attorney work product). 9 c. Topic 19 (Sex harassment and sex discrimination 10 policy(s) for past 10 years; Training of employees; Persons 11 responsible for training; City’s 12/2013 agreement with FEHA): In 12 addition to being overbroad and unduly burdensome, this topic is 13 compound. Further, this topic seeks irrelevant information about the 14 FEHA agreement. The City should prepare a designee on 15 information known or reasonably available to the City regarding 16 2012 to August 2013 (i) sex harassment and sex discrimination 17 policy(s), (ii) sex harassment and sex discrimination prevention 18 training policy(s), (iii) training or materials provided to Filner or 19 other supervisory employees regarding sex harassment and sex 20 discrimination, and (iv) persons responsible for sex harassment and 21 sex discrimination prevention training and compliance. The City 22 should further prepare a designee on the City’s 2013 agreement with 23 FEHA and any non-privileged communications related to that 24 agreement. 25 d. Topic 20 (City veteran assistance or services for 2011- 26 2013; Funding and financial assistance and federal contracts for 27 veterans services and assistance; Whether City knew it could not 28 sexually harass; Whether Filner met with male veterans and required dates in exchange for veterans services): In addition to being 6 14cv1179 1 overbroad and unduly burdensome, this topic is compound and 2 argumentative (as to having a witness testify as to whether the City 3 knew it could not harass). The City should prepare its designee on 4 information known or reasonably available to the City regarding its 5 2012 to August 2013 veterans services and assistance, including 6 funding, financial assistance, and contracts. e. 7 Topic 21 (All complaints of sex harassment and 8 discrimination): In addition to being overbroad and unduly 9 burdensome, this topic is duplicative of the areas of inquiry set forth 10 in Topics 1-19. The City is not required to prepare a witness on this 11 topic. 12 IT IS SO ORDERED. 13 14 15 16 DATED: February 2, 2015 _________________________ JILL L. BURKHARDT United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 7 14cv1179
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