Medina v. County of San Diego et al, No. 3:2008cv01252 - Document 130 (S.D. Cal. 2014)

Court Description: ORDER granting in part and denying in part Plaintiff Jennifer Medina's 99 Motion to Compel Discovery of Country/Sheriff Department and California Highway Patrol Documents. Signed by Magistrate Judge Ruben B. Brooks on 9/25/2014. (jah)

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Medina v. County of San Diego et al Doc. 130 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 21 Civil No. 08cv1252 BAS(RBB) JENNIFER MEDINA, an individual, ) ) ORDER GRANTING IN PART AND ) Plaintiff, DENYING IN PART PLAINTIFF ) JENNIFER MEDINA’S MOTION TO ) v. COMPEL DISCOVERY OF ) COUNTY/SHERIFF DEPARTMENT AND ) COUNTY OF SAN DIEGO; et al., CALIFORNIA HIGHWAY PATROL ) DOCUMENTS [ECF NO. 99] ) Defendants. ) ARLENE SUSAN MEDINA, an ) individual; ROBERT LEO MEDINA, ) an individual, ) ) ) Plaintiffs, ) ) v. ) ) COUNTY OF SAN DIEGO; et al., ) ) Defendants. ) On May 2, 2014, Plaintiff Jennifer Medina filed a combined 22 Motion to Compel Discovery of County/Sheriff Department and 23 California Highway Patrol Documents [ECF No. 99]. 24 opposition briefs were filed on May 19, 2014 [ECF Nos. 105, 108]. 25 Plaintiff did not file a reply. 26 for July 7, 2014. 27 for resolution without oral argument, submitted the motion on the 28 parties’ papers pursuant to the Local Civil Rule 7.1(d), and 11 12 13 14 15 16 17 18 19 20 Defendants’ The hearing on the motion was set The Court determined the matter to be suitable 1 08cv1252 BAS(RBB) Dockets.Justia.com 1 vacated the motion hearing. 2 For the following reasons, the Court GRANTS in part and DENIES in 3 part Plaintiff’s Motion to Compel. 4 I. 5 (Mins., July 1, 2014, ECF No. 115.) BACKGROUND This civil rights case arises out of a vehicle pursuit and 6 subsequent shooting death of Robert J. Medina on November 16, 2006. 7 (Consolidated Compl. 5, ECF No. 57.) 8 Jennifer Medina, and parents, Robert and Arlene Medina. 9 3.) Plaintiffs are his widow, (Id. at Robert Medina was a 22-year-old active duty Marine who had 10 recently returned from a tour of duty in Iraq and suffered from 11 post-traumatic stress syndrome. 12 a.m. on November 16, 2006, Medina left his home after arguing with 13 his wife. 14 on Highway I-5 near the City of Oceanside and weaving in his lane. 15 California Highway Patrol (“CHP”) officers attempted to pull him 16 over on suspicion of driving under the influence. 17 When Medina failed to stop, dispatch was notified and a slow speed 18 pursuit followed. 19 (Id.) (Id. at 5.) At approximately 1:00 He was observed driving at a slow rate of speed (Id. at 5-6.) (Id. at 6-7.) Eventually, at least five patrol cars joined the pursuit. 20 (Id. at 7.) The pursuit escalated at the intersection of Leucadia 21 Boulevard and Highway 101 in Encinitas. 22 County Deputy Sheriff Mark Ritchie intervened in the pursuit and 23 deployed a spike strip, allegedly without properly coordinating his 24 actions with the pursuing officers. 25 Ritchie’s direction to avoid the spike strip, CHP Officer Timothy 26 Fenton radioed in the situation as an assault with a deadly weapon. 27 (Id. at 7-8.) 28 heightened threat alert to other law enforcement officers. (Id.) (Id.) By then, San Diego When Medina swerved in Plaintiffs allege that this created a false and 2 (Id. at 08cv1252 BAS(RBB) 1 8.) 2 radio communication with the CHP officers. 3 officer reported an “assault with a deadly weapon” after Medina 4 swerved again to avoid another spike strip. 5 Ritchie’s tactics, two CHP patrol vehicles became disabled; 6 nonetheless, the pursuit continued. 7 Ritchie allegedly continued to pursue Medina without proper (Id.) Another pursuing As a result of (Id.) (Id.) Plaintiffs allege Fenton engaged in a Pursuit Immobilization 8 Technique (“PIT”) maneuver that added further elements of danger to 9 an otherwise nonthreatening slow-speed pursuit. (Id. at 8-9.) As 10 Medina drove past the patrol car, Fenton allegedly told his partner 11 Martin, “Let’s end this. 12 the PIT maneuver by Fenton, Medina’s truck was forced off the road 13 and up against a chainlink fence in Solana Beach. 14 then rammed the front end of the truck with his patrol car to pin 15 it against the fence. 16 truck with their vehicle against the right-side passenger side of 17 the truck. 18 abutted a concrete lamp post “which prohibited the truck’s movement 19 to the right and protected officers taking up positions on the 20 passenger side of the truck.” 21 standing by his patrol car with his gun drawn and giving commands. 22 (Id. at 12.) 23 (Id.) Let’s end this.” (Id. at 9.) As a result of (Id.) (Id.) Ritchie Fenton and Martin blocked the Plaintiffs also claim that Medina’s truck (Id.) Defendant Fenton was seen Plaintiffs allege that the truck was pinned by the two patrol 24 cars and not moving when the officers began firing. 25 The officers allegedly could see Medina’s hands and observed him 26 unarmed prior to firing their weapons. 27 Ritchie allegedly fired eleven rounds while he was in front of 28 Medina’s truck, and fired more rounds after he moved behind his 3 (Id. at 13.) (Id. at 14.) Defendant 08cv1252 BAS(RBB) 1 patrol car. (Id. at 14.) Plaintiffs argue that Ritchie was not in 2 danger of being run over by Medina but still fired directly at him 3 in an attempt to kill Medina. 4 Defendants Fenton, CHP Officer Leo Nava, and Deputy Sheriff Karla 5 Taft also fired shots at Medina’s truck. 6 officers fired thirty-seven rounds. 7 when he was pulled from his truck but died shortly after the 8 paramedics arrived at the scene. (Id. at 15.) Plaintiffs allege that (Id.) (Id. at 16.) In total, the Medina was alive (Id.) 9 On the basis of these allegations, Plaintiffs claim that 10 Defendants CHP Officers Leo Nava and Tim Fenton and San Diego 11 Sheriff’s Department Deputies Mark Ritchie and Karla Taft used 12 excessive force and engaged in unlawful policies, customs, or 13 habits, in violation of Plaintiffs’ and Medina’s constitutional 14 rights. 15 “unnecessary, unjustified excessive force” when they shot and 16 killed Medina in violation of his constitutional rights. 17 17.) 18 unlawful seizure in violation of the Fourth Amendment. 19 Specifically, Plaintiffs allege Defendants used (Id. at This, according to the consolidated complaint, constituted an (Id.) The following claims presently remain in the case: (1) 20 Jennifer Medina’s claim for excessive force in violation of 21 Medina’s rights under the Fourth Amendment against Taft, Ritchie, 22 Nava, and Fenton; (2) Jennifer Medina’s claim for loss of 23 companionship in violation of her rights under the Fourteenth 24 Amendment as against Ritchie, Nava, and Fenton; (3) Jennifer 25 Medina’s claim pursuant to Monell v. Dep't of Soc. Servs. of New 26 York, 436 U.S. 658 (1978), for unlawful policies, customs, or 27 habits against the County of San Diego; and (4) Medina’s parents’ 28 claim for excessive force in violation of the right of association 4 08cv1252 BAS(RBB) 1 under the Fourteenth Amendment as against Ritchie, Nava, and 2 Fenton. 3 II. DISCUSSION 4 Plaintiff Jennifer Medina moves to compel Defendant County of 5 San Diego and Defendants Nava and Fenton to produce six categories 6 of documents1 relating to each of the individual Defendants: 7 performance evaluations and training records; (2) “fitness for 8 duty” evaluations and “return to work” reports; (3) internal 9 affairs reports and investigations of other incidents or (1) 10 complaints; (4) discipline, reprimand or remedial training records; 11 (5) Civil Service Commission records; and (6) Critical Incident 12 Review Board and CHP investigative records and reports. 13 Mot. Compel Attach. #1 Mem. P. & A. 2-3, ECF No. 99.) 14 (Pl.’s The documents pertaining to Deputies Ritchie and Taft were 15 requested in document requests addressed to Defendant County of San 16 Diego. 17 Nava, the requested items are described in requests for production 18 served on these two Defendants. 19 responding Defendants opposed disclosure, claiming the documents 20 are shielded by the official information privilege, are subject to 21 privacy rights, or seek irrelevant information. 22 Cnty.’s Opp’n 2, 4, ECF No. 108; Joint Opp’n Defs. Nava & Fenton 5, 23 ECF No. 105.) 24 // 25 // 26 // (Id. Attach. #2 Decl. Acosta 2.) (Id.) For Defendants Fenton and In their oppositions, the (Def. San Diego 27 28 1 Plaintiff’s motion involves thirty-six document requests. 5 08cv1252 BAS(RBB) 1 A. Legal Standards 2 3 1. Relevance The scope of discovery under the Federal Rules of Civil 4 Procedure is broad. 5 F.R.D. 653, 668 (N.D. Cal. 1987). 6 26 states: 7 8 9 10 11 12 See, e.g., Kelly v. City of San Jose, 114 Federal Rule of Civil Procedure Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-–including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). 13 14 Fed. R. Civ. P. 26(b)(1). "The party who resists discovery has the 15 burden to show that discovery should not be allowed, and has the 16 burden of clarifying, explaining, and supporting its objections." 17 Oakes v. Halvorsen Marine Ltd., 179 F.R.D. 281, 283 (C.D. Cal. 18 1998). 19 "[I]n the context of civil rights excessive force cases 20 against police departments, plaintiffs may suffer great 21 difficulties if courts impose demanding relevancy standards on 22 them." 23 1995) (citing Kelly, 114 F.R.D. at 667-68). 24 ‘sufficient for a plaintiff to show how information of the kind 25 that is likely to be in the files could lead to admissible 26 evidence.'" 27 relevant to excessive force claims. 28 San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993). Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. Id. Thus, "it should be Courts have found performance evaluations 6 Id. at 615; Hampton v. City of Also, performance 08cv1252 BAS(RBB) 1 evaluation records proving the police department had notice or 2 ratified the officers' actions may be relevant to show unlawful 3 policies, customs, or habits as part of Plaintiffs' Monell claim. 4 See Hampton, 147 F.R.D. at 229. 5 6 2. Official information privilege “Federal common law recognizes a qualified privilege for 7 official information.” 8 1027, 1033 (9th Cir. 1990) (citing Kerr v. United States Dist. Ct. 9 for the N. Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975)). Sanchez v. City of Santa Ana, 936 F.2d The 10 discoverability of official documents should be determined under 11 the "balancing approach that is moderately pre-weighted in favor of 12 disclosure." 13 privilege must properly invoke the privilege by making a 14 "substantial threshold showing." 15 Kelly, 114 F.R.D. at 661. The party asserting the Id. at 669. The party must file an objection and submit a declaration or 16 affidavit from a responsible official with personal knowledge of 17 the matters attested to by the official. 18 declaration must include (1) an affirmation that the agency has 19 generated or collected the requested material and that it has 20 maintained its confidentiality, (2) a statement that the material 21 has been personally reviewed by the official, (3) a description of 22 the governmental or privacy interests that would be threatened by 23 disclosure of the material to the plaintiff or plaintiff’s 24 attorney, (4) a description of how disclosure under a protective 25 order would create a substantial risk of harm to those interests, 26 and (5) a projection of the harm to the threatened interest or 27 interests if disclosure were made. 28 defendant to make a “substantial threshold showing” allows the 7 Id. Id. at 670. The affidavit or Requiring the 08cv1252 BAS(RBB) 1 plaintiff to assess the defendant's privilege assertions and decide 2 whether they should be challenged. 3 Id. If a plaintiff challenges defendant’s invocation of the 4 official information privilege, the court “must weigh the potential 5 benefits of disclosure against the potential disadvantages” to 6 determine whether the privilege applies. 7 1033–34. 8 interests of the parties in the context of an official information 9 privilege claim: 10 11 12 Sanchez, 936 F.2d at Courts consider the following factors when balancing the (1) The extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information. (2) The impact upon persons who have given information of having their identities disclosed. 13 14 (3) The degree to which government self-evaluation and consequent program improvement will be chilled by disclosure. 15 16 17 18 (4) Whether the information sought is factual data or evaluative summary. (5) Whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question. 19 20 21 22 23 (6) Whether the police investigation has been completed. (7) Whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation. (8) Whether the plaintiff's suit is non-frivolous and brought in good faith. 24 25 (9) Whether the information sought is available through other discovery or from other sources. 26 (10) The importance of the information sought to the plaintiff's case. 27 28 8 08cv1252 BAS(RBB) 1 Kelly, 114 F.R.D. at 663 (citing Frankenhauser v. Rizzo, 59 F.R.D. 2 339 (E.D. Pa. 1973)). 3 review [of the affidavit and both parties' submissions], that 4 defendants' submissions are not sufficient to meet its threshold 5 burdens, the court will order disclosure of the material." 6 671; see also Hampton, 147 F.R.D. at 231. 7 submissions are sufficient to meet the threshold burden, the court 8 may order supplemental briefing and conduct an in camera review of 9 the withheld documents to decide whether they should be produced. 10 "If the court concludes, based on this Id. at But if the defendants' See Kelly, 114 F.R.D. at 671. 3. 11 Privacy 12 With respect to privacy rights, federal courts recognize a 13 constitutionally-based right of privacy that may be asserted in 14 response to discovery requests. 15 resolution of a party’s privacy objection involves balancing the 16 need for the information sought against the privacy right asserted. 17 Id. (citing Perry v. State Farm Fire & Cas. Co., 734 F.2d 1441, 18 1447 (11th Cir. 1984)). 19 police files, courts have recognized that privacy rights are not 20 inconsequential." 21 generally should give some weight to privacy rights that are 22 protected by state constitutions or state statutes." 23 F.R.D. at 656. 24 against the great weight afforded to federal law in civil rights 25 cases against police departments." 26 // 27 // 28 // Soto, 162 F.R.D. at 616. The "In the context of the disclosure of Soto, 162 F.R.D. at 616. "[F]ederal courts Kelly, 114 "However, these privacy interests must be balanced 9 Soto, 162 F.R.D. at 616. 08cv1252 BAS(RBB) 1 2 B. Document Requests to Defendant San Diego County 1. Performance evaluations and training records (document requests 10, 11, 12, & 13) 3 4 In her request for production of documents served on Defendant 5 County of San Diego, Plaintiff seeks performance evaluations for 6 Defendants Ritchie (request number ten) and Taft (request number 7 eleven) for the years 1996 through 2006. 8 Attach. #2 Decl. Acosta Ex. 2, at 4, ECF No. 99.) 9 requests “[a]ll records relating to training received . . . and (Pl.’s Mot. Compel Plaintiff also 10 courses attended . . . for the years 1996 through 2006, including 11 but not limited to current P.O.S.T. certificate, status of 12 mandatory P.O.S.T. training, firearms and qualification dates, 13 scores and remediation” for the years 1996 through 2006 for Ritchie 14 (request number twelve) and Taft (request number thirteen). (Id.) 15 In response to these requests, Defendant County stated: 16 Responding Party objects on the grounds that personnel materials are protected from disclosure because they contain information pertaining to remedial measures and disciplinary recommendations; they are protected from disclosure by the deliberative process, self-critical analysis, required reports, and official information privileges. Disclosure of personnel, medical, and similar files is an unwarranted invasion of privacy under Penal Code section 832.8(f), CA Constitution, Article 1, Section 1; 5 U.S.C. 552a, and the Freedom of Information Act. They are protected from disclosure under the Federal Privacy Act. They are records complied [sic] for law enforcement purposes which are exempt from disclosure. They are privileged materials subject to disclosure only under CA Penal Code § 832.7 and Evidence Code § 1043. The material is irrelevant to the subject matter of this action and is not reasonably calculated to lead to the discovery of admissible evidence. Responsive documents will only be released pursuant to a court order. Subject to and without waiving said objection, Responding Party responds as follows: See privilege log and declarations concerning the privilege log produced herewith. 17 18 19 20 21 22 23 24 25 26 27 28 10 08cv1252 BAS(RBB) 1 (Id. Ex. 3, at 9-12.2) 2 County identified the following files: (1) a personnel file, (2) 3 internal affairs file, (3) internal affairs file no. 2012-150.1, 4 (4) internal affairs file no. 2007-008.2, (5) personnel file - post 5 certificate(s), (6) personnel file - CIRB, and (7) personnel file - 6 worker’s comp. 7 County identified four files: (1) a personnel file, (2) internal 8 affairs file, (3) personnel file - post certificate(s), and (4) 9 personnel file - CIRB. For Deputy Ritchie, Defendant San Diego (Id. Ex. 4, at 1-7, 12-13.) (Id. at 8-13.) For Deputy Taft, the Each listed file also 10 includes a brief description of the documents contained in the file 11 and identifies the parties asserting claims of privilege. 12 1-13.) 13 (Id. at A motion to compel may be brought where responses to Rule 34 14 requests for production are insufficient. 15 37(a)(3)(B)(iv). 16 face, “‘[t]he party resisting discovery bears the burden of 17 establishing lack of relevance by demonstrating that the requested 18 discovery either does not come within the broad scope of relevance 19 or is of such marginal relevance that the potential harm occasioned 20 by discovery would outweigh the ordinary presumption in favor of 21 broad disclosure.’” 22 168 F.R.D. 295, 309 (D. Kan. 1996) (citation omitted). 23 See Fed. R. Civ. P. When the discovery sought appears relevant on its Pulsecard, Inc. v. Discover Card Servs., Inc., Plaintiff argues in her Motion to Compel that performance 24 evaluations and training records should be produced because they 25 are relevant and typically ordered disclosed in civil rights cases 26 27 2 28 Defendant County gave the same response to all four requests. 11 08cv1252 BAS(RBB) 1 alleging excessive force, especially where plaintiffs also bring a 2 Monell claim. 3 No. 99.) 4 requested information is protected by the official information 5 privilege and is not relevant to the litigation. 6 Cnty.’s Opp’n 2, 4, ECF No. 108.) 7 police personnel records are “relevant and discoverable” in § 1983 8 cases. 9 (citations omitted); Soto, 162 F.R.D. at 614-15. (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 8, ECF Defendant opposes the Motion, contending that the (Def. San Diego It is well established that Green v. Baca, 226 F.R.D. 624, 644 (C.D. Cal. 2005) This includes any See Unger v. 10 performance evaluations of Defendants by superiors. 11 Cohen, 125 F.R.D. 67, 70 (S.D.N.Y. 1989) (finding such information 12 to be “clearly relevant” in a § 1983 action arising out of alleged 13 on-duty conduct). 14 Defendant County submitted declarations from Lieutenant 15 Christine Harvel, commanding officer of the internal affairs 16 division, and Captain Anthony Ray, commander of the personnel 17 division of the San Diego County Sheriff’s Department. 18 Diego Cnty.’s Opp’n Attach. #1 Decl. Harvel, ECF No. 108; id. 19 Attach. #2 Decl. Ray.) 20 records of internal investigations are “sought, disclosed and used 21 for other purposes, the ability of [Internal Affairs] to conduct a 22 fair and thorough administrative investigations is undermined and 23 impaired . . . .” 24 Harvel 2, ECF No. 108.) 25 “[i]ndiscriminate disclosure and uncontrolled dissemination of 26 confidential records” can potentially discourage individuals from 27 providing information; disrupt the daily operations of the 28 department; affect employee morale; consume inordinate time, (Def. San Lieutenant Harvel believes that if the (Def. San Diego Cnty.’s Opp’n Attach. #1 Decl. Harvel also cautioned that 12 08cv1252 BAS(RBB) 1 expense, and resources; and “frustrate the legitimate specific 2 purposes of compiling and maintaining such records.” 3 Captain Ray’s declaration is a verbatim restatement of the same 4 concerns. 5 (Id. at 3.) (Id. Attach. #2 Decl. Ray 3.) “Questions of evidentiary privilege that arise in the course 6 of adjudicating federal rights are governed by principles of 7 federal common law.” 8 claim that disclosure would frustrate internal investigations lacks 9 support and has been rejected by other courts. Green, 226 F.R.D. at 643. The Defendant’s See Soto, 162 10 F.R.D. at 612 (noting that Kelly “debunks the theory that officers 11 will be less truthful or forthright in expressing their opinions if 12 there is a risk of future disclosure[]” and concurring with Kelly's 13 reasoning) (quoting Kelly, 114 F.R.D. at 665–66); see also Watson 14 v. Albin, No. C-06-07767 RMW, 2008 WL 1925257, at *2 (N.D. Cal. 15 Apr. 30, 2008) (“[Defendant's] arguments that disclosure would 16 discourage exhaustive internal investigations are unpersuasive. 17 Courts in this district have previously rejected such claims, and 18 there is no reason to depart from that reasoning here.”) (citing 19 Kelly, 114 F.R.D. at 672). 20 The Defendant County failed to explain how disclosure of the 21 relevant documents to Plaintiffs and their attorneys pursuant to a 22 protective order would harm a significant government or privacy 23 interest. 24 The declarations of Lieutenant Harvel and Captain Ray do not 25 establish that a protective order would be insufficient to protect 26 significant interests; they fail to project how much harm would be 27 done to the threatened interests if disclosure under a protective 28 order were made. See Soto, 162 F.R.D. at 613; Kelly, 114 F.R.D. at 670. Soto, 162 F.R.D. at 613. 13 Yet, both declarants 08cv1252 BAS(RBB) 1 request that in the event disclosure is ordered, the Court “fashion 2 a protective order to preclude any disclosure or dissemination of 3 any records, documents or information ordered disclosed for any 4 purpose other than the express and specific purpose for which the 5 Court has ordered such disclosure.” 6 Attach. #1 Decl. Harvel 4, ECF No. 108; id. Attach. #2, Decl. Ray 7 4.) (Def. San Diego Cnty.’s Opp’n 8 The ten factors identified in Kelly to determine whether a 9 claim of privilege for official information bars discovery, see 10 Kelly, 114 F.R.D. at 663, all weigh in favor of disclosure. 11 Plaintiff's need for the information sought is great. 12 information is unlikely to be available from any source other than 13 the Defendants' records. 14 uncovering civil rights violations of the type at issue in this 15 case. 16 privacy interests asserted with respect to these documents are 17 outweighed by Plaintiff's need for the information. 18 order and the redaction of any highly personal information for 19 which Plaintiff has not shown a need will amply protect privacy 20 interests. 21 carefully drafted protective order could minimize the impact of . . 22 . disclosure”). 23 for invoking the official information privilege. 24 This There is a strong public interest in Soto, 162 F.R.D. at 617; Kelly, 114 F.R.D. at 667. The A protective See, e.g., Soto, 162 F.R.D. at 616 (stating that “[a] Defendant County has not met the threshold burden To the extent the Defendant relies on the privilege set forth 25 in California Penal Code section 832.7, federal courts do not 26 recognize section 832.7 as relevant to evaluating discovery 27 disputes in 42 U.S.C. § 1983 cases. 28 F.R.D. at 643-44; see also Miller v. Pancucci, 141 F.R.D. 292, 14 See, e.g., Green, 226 08cv1252 BAS(RBB) 1 299 (C.D. Cal. 1992) (finding California rules for discovery 2 and privileges, including California Evidence Code section 1043, 3 referenced in sections of California Penal Code, to be 4 “fundamentally inconsistent” with federal law and the liberal 5 federal policy on discovery). 6 The Court also rejects Defendant’s objections on the ground of 7 the self-critical analysis privilege, the deliberative process 8 privilege, and the required reports privilege. 9 does not recognize the self-critical analysis privilege. The Ninth Circuit Union 10 Pac. R.R. Co. v. Mower, 219 F.3d 1069, 1076 n.7 (9th Cir. 2000) 11 (citing Dowling v. Am. Hawaii Cruises, Inc., 971 F.2d 423, 425–26 12 (9th Cir.1992)); accord Branch v. Umphenour, No. 1:08-CV-01655-AWI- 13 GSA-PC, 2014 WL 3891813, at *7 (E.D. Cal. Aug. 7, 2014); Soto, 162 14 F.R.D. at 611. 15 is inappropriately invoked by Defendants to shield internal 16 investigatory documents and witness statements from discovery.” 17 Soto, 162 F.R.D. at 612. 18 deliberative process privilege is not appropriate in civil rights 19 cases against police departments. 20 invoked only in the context of communications designed to directly 21 contribute to the formulation of important public policy.” 22 does not shield from disclosure “‘most of the kinds of information 23 police departments routinely generate.’” 24 F.R.D. at 659). 25 as the records of witness/police officer statements are of the type 26 that would be routinely generated by Defendants.” Furthermore, “the self-critical analysis privilege Likewise, the application of the Id. This privilege “should be Id. It Id. (quoting Kelly, 114 “Both the internal affairs investigations as well Id. at 612-13. 27 Defendant also asserts the required reports privilege, which 28 applies if (1) the subject report is mandated and (2) federal law 15 08cv1252 BAS(RBB) 1 provides for the privilege. 2 Supp. 124, 128 (N.D. Cal. 1994). 3 qualified and can be outweighed by a showing of substantial need. 4 Pittman v. Cnty. of San Diego, Civil No. 09–CV–1952–WQH(WVG), 2010 5 U.S. Dist. LEXIS 97569, at *8 (S.D. Cal. Sept. 17, 2010). 6 event, the Defendant has not established the second prong for the 7 privilege, and the objection fails. 8 Court GRANTS Plaintiff’s Motion to Compel Defendant County to 9 produce Deputy Ritchie and Taft’s performance evaluations and 10 See Wiener v. NEC Elecs., Inc., 848 F. Additionally, the privilege is In any For all these reasons, the training records for the time period of 1996 through 2006. 11 2. Fitness for duty evaluations and return to work reports (document requests 14, 15, 16, & 17) 12 13 Plaintiff sought all fitness for duty evaluations for the 14 years 1996 to the present for Defendants Ritchie (request number 15 fourteen) and Taft (request number fifteen). 16 Attach. #2 Decl. Acosta Ex. 2, at 4, ECF No. 99.) 17 objected, claiming the phrase “fitness for duty” was vague and 18 ambiguous. 19 deliberative process, self-critical analysis, required reports, and 20 official information privileges. 21 disclosure of medical records is an invasion of privacy, and that 22 these records are not relevant to the action. 23 (Id. Ex. 3, at 12-13.) (Pl.’s Mot. Compel The County It also invoked the same The Defendant claimed that (Id.) Medina also requested all “Workers’ Compensation permanent and 24 stationary return to work reports” as related to Defendants’ 25 employment as San Diego Sheriff Deputies from 1996 to present for 26 Ritchie (request number sixteen) and Taft (request number 27 seventeen). (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 28 16 08cv1252 BAS(RBB) 1 5, ECF No. 99.) 2 grounds of privilege and relevance. 3 Defendant County opposed these requests on the (Id. Ex. 3, at 13-15.) Plaintiff moves to compel, arguing that the fitness for duty 4 evaluations and return to work reports are relevant to Plaintiffs’ 5 claims and necessary for Plaintiffs to prove their case. 6 Mot. Compel Attach. #1 Mem. P. & A. 9, ECF No. 99.) 7 that Plaintiffs are entitled to know whether any evaluator was 8 aware of the Defendants’ reckless propensities. 9 argues that the records are discoverable to the extent Defendants (Pl.’s Medina argues Plaintiff also 10 might rely on them to prove that they were fit for duty and 11 justified in the shooting. 12 the records are neither privileged nor confidential under Jaffee v. 13 Redmond, 518 U.S. 1 (1996). 14 (Id.) Finally, Medina contends that (Id. at 9-10.) San Diego County opposes the motion, arguing that fitness for 15 duty and return to work records are protected from disclosure as 16 private medical records. 17 108.) 18 and fails to address Jaffee. 19 (Def. San Diego Cnty.’s Opp’n 5, ECF No. It does not cite any authority to support this assertion, When ruling on a motion to compel, a court “generally 20 considers only those objections that have been timely asserted in 21 the initial response to the discovery request and that are 22 subsequently reasserted and relied upon in response to the motion 23 to compel.” 24 508, 516 n.4 (D. Idaho 2013) (citation omitted). 25 Defendant’s brief does not further address the deliberative 26 process, self-critical analysis, required reports, and official 27 information privileges raised in the objections, those objections 28 are overruled, and the Court will focus on the principal objection, Calderon v. Experian Info. Solutions, Inc., 290 F.R.D. 17 Because 08cv1252 BAS(RBB) 1 the privacy of medical records. 2 for protection under the psychiatrist-patient privilege, it fails. 3 Disclosure is still required if the Court engages in a balancing of 4 privacy interests. 5 If this objection is a euphemism In Jaffee v. Redmond, the Supreme Court held “that 6 confidential communications between a licensed psychotherapist and 7 her patients in the course of diagnosis or treatment are protected 8 from compelled disclosure under Rule 501 of the Federal Rules of 9 Evidence.” 518 U.S. 1, 15 (1996). This privilege generally 10 applies only when the results of the evaluations were not disclosed 11 to third parties. 12 (S.D. Ohio 2000) (holding that the psychotherapist-patient 13 privilege did not protect information learned by a psychologist 14 where she evaluated the officer at the behest of his municipal 15 employer and disclosed the information to the employer); Kamper v. 16 Gray, 182 F.R.D. 597, 599 (E.D. Mo. 1998) (psychotherapist-patient 17 privilege did not apply to communications, reports, notes, 18 documents, and test scores resulting from county police officers' 19 counseling sessions with mental health professionals where county 20 had required officers to undergo psychological evaluations on two 21 occasions as part of their employment, and evaluation results were 22 subsequently submitted to employer); Barrett v. Vojtas, 182 F.R.D. 23 177, 179 (W.D. Pa. 1998) (holding psychotherapist-patient privilege 24 did not apply to conversations and notes taken during counseling 25 sessions with psychiatrist and psychologist where officer was 26 ordered to undergo examinations by them, and both doctors 27 subsequently submitted reports to borough officials). See Phelps v. Coy, 194 F.R.D. 606, 608 & n.2 28 18 08cv1252 BAS(RBB) 1 In this case, any documents responsive to this request were 2 created in the course of the deputies’ employment with the County, 3 and were made part of their personnel files. 4 were shared with a third party, their employer, the deputies had no 5 expectation that their conversations were confidential. 6 182 F.R.D. at 179 (“There would be no reasonable expectation of 7 confidentiality, and therefore no confidential intent, if a party 8 to a conversation was aware that the other party may report on the 9 conversation to a third party.”). 10 11 Because the records Barrett, Defendant’s privacy objections are overruled. The Defendant asserts additional objections. It claims, 12 “fitness for duty and return to work information is protected from 13 disclosure under the provisions of the Federal Privacy Act (5 14 U.S.C. § 5529), and state privacy rights . . . .” 15 Cnty.’s Opp’n 5, ECF No. 108.) 16 is “impermissible under the Freedom of Information Act (5 U.S.C. 17 [§] 552(b)(6)(7)).” (Def. San Diego It also maintains that disclosure (Id.) 18 “The [Federal] Privacy Act applies only to ‘agencies’ as 19 defined by 5 U.S.C. § 551(1) and 5 U.S.C. § 552(f)(1), and does not 20 encompass state agencies or bodies.” 21 Sys., Case No. 09cv2679 BTM(NLS), 2011 U.S. Dist. LEXIS 19844, at 22 *29 (S.D. Cal. Feb. 28, 2011). 23 applies to federal agencies. 24 No. 11-cv-1564 JLS (NLS), 2012 U.S. Dist. LEXIS 157740, at *15 25 (S.D. Cal. Nov. 2, 2012). 26 Penal, Civil, and Government Code sections, dictates whether a 27 particular privilege applies in a § 1983 case. 28 Giurbino, 288 F.R.D. 469, 484 (S.D. Cal. 2012). Womack v. Metro. Transit The Freedom of Information Act only Hammerlord v. City of San Diego, Case Finally, federal law, not California 19 See Rogers v. Privacy concerns 08cv1252 BAS(RBB) 1 will be protected by directing the County to produce responsive 2 documents pursuant to a protective order. 3 GRANTS Plaintiff’s Motion to Compel production of Defendants 4 Ritchie and Taft’s fitness for duty evaluations and return to work 5 reports for the years 1996 to the present. 6 3. Accordingly, the Court Documents related to the underlying incident (document request 18) 7 8 9 In document request number eighteen, Plaintiff asked Defendant County to produce all reports, interviews, witness statements, 10 diagrams, photographs, investigative summaries, or any audio or 11 visual recording made as a result of any investigation by the San 12 Diego Sheriff’s Department into the shooting death of Robert J. 13 Medina. 14 ECF No. 99.) 15 repeated its previously rejected objections that information is 16 protected by deliberative process, self-critical analysis, required 17 reports, and official information privileges. 18 Defendant also referred to its response to Plaintiff's request for 19 production number one, the privilege log, and the declarations 20 concerning the privilege log. 21 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 5, County objected to this request for production and (Id. Ex. 3, at 15.) (Id. at 16.) Plaintiff's document request number one appears to be 22 substantially similar to request number eighteen. 23 number one, Plaintiff asked for all documents and things comprising 24 the Homicide Investigation" in possession of the County or San 25 Diego Sheriff's Department "which relate to the INCIDENT and its 26 investigation." 27 at 2, ECF No. 99.) 28 previously produced Homicide Report will be produced again at In request (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, In response, Defendant stated that the 20 08cv1252 BAS(RBB) 1 Plaintiff's expense. 2 produce photographs, recordings, and audio interviews. 3 Plaintiff is not moving to compel production pursuant to document 4 request number one. 5 do not provide sufficient information to allow the Court to 6 determine how Medina's request number eighteen differs from her 7 request number one. 8 9 (Id. Ex. 3, at 2.) Defendant agreed to (Id. at 3.) The Motion to Compel and supporting documents Nonetheless, the records created in the course of the investigation into the shooting death of Robert Medina are clearly See Kelly, 114 F.R.D. at 10 relevant to this civil rights action. 11 665-66. 12 Department, and it is not otherwise available to Plaintiff. 13 the reasons stated above, the Court overrules Defendant’s 14 objections on the basis of deliberative process, self-critical 15 analysis, and required reports privileges. 16 611-13; Wiener, 848 F. Supp. at 128. The information was generated by the San Diego Sheriff's For See Soto, 162 F.R.D. at 17 The official information privilege likewise does not apply 18 because Defendant has not met the threshold burden under Kelly. 19 discussed earlier, the declaration of Lieutenant Harvel, commanding 20 officer of the San Diego Sheriffs Internal Affairs Department, 21 fails to explain why a protective order would not suffice to 22 safeguard significant governmental or privacy interests, or to 23 project how much harm would be done to the threatened interests if 24 disclosure were made. 25 at 670. 26 identified in request number eighteen to Defendant County is 27 GRANTED. As Soto, 162 F.R.D. at 613; Kelly, 114 F.R.D. Plaintiff's Motion to Compel production of documents 28 21 08cv1252 BAS(RBB) 1 4. Internal Affairs reports and investigations of other incidents or complaints (document requests 19 & 20) 2 3 In document requests nineteen and twenty, Plaintiff seeks 4 citizen complaints relating to false arrest, unlawful detention, 5 unlawful search or seizure, excessive force, improper use of 6 firearm, improper use of lethal force, false reports, false 7 statements, untruthful or other improper procedures by Defendants 8 Ritchie and Taft for the years 1996 to the present. 9 document request number nineteen listed the following items: 10 11 12 13 14 15 16 Specifically, All reports of complaints made or internal affairs investigations conducted alleging or relating to false arrest, unlawful detention, unlawful search or seizure, excessive force, improper use of firearm, improper use of lethal force, false reports, false statements, untruthfulness or other improper procedures by Defendant MARK RITCHIE for the years 1996 to the present, and the investigation of said complaints, including, but not limited to: a) the full investigation of each complaint or investigation, including all statements (written, audio or video recordings) of all participants and witnesses; 17 18 19 20 21 22 23 24 25 b) the names, addresses and telephone numbers of the persons who filed the complaints or generated the investigation and any statements (written, audio or video recordings) they provided; c) the names, address and telephone numbers of all persons, whether law enforcement officers or private persons, who were percipient witnesses to the events which gave rise to the filing of the complaints or generation of the investigation, and any statement (written, audio or video recordings) each such person provided; d) the written reports of the investigation of these complaints or investigations, including complaints which may have been determined to be unsustained; and 26 27 28 e) verbatim copies of all other records, reports, notes, photographs and audio or video recordings made as a result of the law enforcement agency’s investigation of the complaints. 22 08cv1252 BAS(RBB) 1 As to all items requested, Plaintiffs request the information be furnished regardless of the outcome, disposition or result of the complaint, report or investigation. 2 3 4 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 5-6, ECF No. 5 99.) 6 in document request number twenty. 7 Medina sought the same records pertaining to Defendant Taft (Id. at 6-7.) Defendant objected to the requests, again invoking the 8 deliberative process, self-critical analysis, required reports, and 9 official information privileges. (Id. Ex. 3, at 17-18.) The 10 County also claimed the information is irrelevant and protected 11 from disclosure under privacy laws. 12 motion, Defendant argues that “similar act information” cannot be 13 used to prove any misconduct in this case. 14 “unfinished investigation documentation should not be disclosed 15 because they are [sic] inherently incomplete and have not been 16 finally approved for dissemination within the agency.” 17 Diego Cnty.’s Opp’n 3, ECF No. 108.) 18 (Id.) In opposing Medina’s It also claims that (Def. San Internal affairs investigations into citizen complaints 19 against defendants are “presumptively discoverable” where relevant. 20 Kelly, 11 F.R.D. at 665-66. 21 law enforcement involving excessive force are relevant in civil 22 rights cases. 23 “crucial to proving [a] [d]efendant’s history or pattern of such 24 behavior.” 25 relevant on the issues of credibility, notice to the employer, 26 ratification by the employer and motive of the officers.” 27 147 F.R.D. at 229. 28 course of conduct reflecting malicious intent.” Records of citizen complaints against Soto, 162 F.R.D. at 620. Id. These records may be “Information contained in these files may be Hampton, It may also show “evidence of a continuing 23 Id. 08cv1252 BAS(RBB) 1 To the extent Defendant suggests that incomplete investigation 2 documentation should not be produced, it does not cite any 3 authority for the proposition that relevant information contained 4 in citizen complaints is not discoverable until or unless the 5 agency completes its investigation of the complaint.3 6 argues that any post-incident events must be disclosed because they 7 are relevant to her claim against the County for maintaining an 8 unlawful policy of deliberate indifference to the lives and liberty 9 of the public. Plaintiff (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 13, ECF 10 No. 99.) 11 to adequately train deputies on the constitutionally permissible 12 use of force, and that deliberate indifference is evidenced by the 13 failure to change its policy. 14 57.) Plaintiff alleged that Defendant San Diego County failed (Consolidated Compl. 18-19, ECF No. 15 “[P]ost-event evidence is not only admissible for purposes of 16 proving the existence of a municipal defendant's policy or custom, 17 but may be highly probative with respect to that inquiry.” 18 v. Cnty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997), as amended, 19 137 F.3d 1372 (9th Cir. 1998). 20 blind eye to severe violations of . . . constitutional rights -– 21 despite having received notice of such violations -– a rational 22 fact finder may properly infer the existence of a previous policy 23 or custom of deliberate indifference.” 24 25 Henry “When a county continues to turn a Id. Defendant’s submissions are not enough to satisfy the threshold burden of showing that privilege applies. “The official 26 27 3 28 Neither the opposition brief nor the privilege log specifies which investigations have not been completed. 24 08cv1252 BAS(RBB) 1 information privilege serves an important purpose, but it does not 2 automatically apply to all evaluative portions of internal affairs 3 reports.” 4 669227, at *4 (S.D. Cal. Feb. 15, 2011). 5 affidavits submitted by Defendant County fail to establish that a 6 protective order would be insufficient to protect significant 7 governmental or privacy interests. 8 Court is not required to conduct an in camera review of documents 9 where Defendants have not made a sufficient threshold showing that Carter v. Carlsbad, No. 10cv1072–IEG (BLM), 2011 WL As noted before, the Soto, 162 F.R.D. at 613. The Kelly, 114 F.R.D. at 671; see also 10 the records are privileged. 11 Ramirez v. Cnty. of Los Angeles, 231 F.R.D. 407, 410 (C.D. Cal. 12 2005) (“[T]he court does not believe that it is necessary to 13 conduct an in camera review of the subject documents because 14 defendants did not comply with requirements to invoke the official 15 information privilege.”). 16 Plaintiff asserts that the privilege log for documents 17 pertaining to Defendant Ritchie is incomplete; she compares the 18 privilege log here with the privilege log in another federal civil 19 rights case involving Defendant Ritchie. 20 Compel Attach. #1 Mem. P. & A. 4, ECF No. 99, with id. Attach. #2 21 Decl. Acosta Ex. 2, at 4-7, and id. Ex. 5, at 5-8.) 22 not address this discrepancy. 23 information responsive to Plaintiff’s document request nineteen was 24 omitted from the privilege log, the privilege log should be 25 amended. 26 or correct discovery responses that are incomplete or inaccurate. 27 See Fed. R. Civ. P. 26(e). (Compare Pl.’s Mot. Defendant does To the extent any descriptive All Defendants are reminded of their duty to supplement 28 25 08cv1252 BAS(RBB) 1 The Defendant’s threshold showing is insufficient. 2 Furthermore, privacy and governmental interests can be adequately 3 safeguarded by a protective order. 4 GRANTS Plaintiff’s Motion to Compel the production of items 5 identified in document requests nineteen and twenty. 6 5. For these reasons, the Court Discipline, reprimand, or remedial training records (document requests 21 & 22) 7 8 Document request number twenty-one seeks the following: 9 [A]ny records of discipline, reprimand or remedial training imposed upon defendant MARK RITCHIE as a result of the INCIDENT or any other act of false arrest, unlawful detention, unlawful search and seizure, use of excessive force, improper use of firearm, improper use of lethal force, false statement, false report or other improper action. 10 11 12 13 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 7, ECF No. 14 99.) 15 regarding Defendant Taft. 16 objections are asserted: 17 analysis, required reports, and official information privileges. 18 (Id. Ex. 3, at 19-20.) 19 irrelevant and protected from disclosure under privacy laws. 20 Document request number twenty-two seeks the same information (Id. at 8.) The same unsubstantiated the deliberative process, self-critical Defendant also claimed the information is (Id.) The information Plaintiff seeks in these two requests is 21 relevant for the same reasons outlined above with respect to the 22 internal investigations and citizen complaints (requests nineteen 23 and twenty). 24 614-15. 25 are relevant and discoverable. 26 allegations of false arrest, unlawful detention, unlawful search 27 and seizure, use of excessive force, improper use of firearm, 28 improper use of lethal force, false statement, and false reporting See Hampton, 147 F.R.D. at 229; Soto, 162 F.R.D. at Defendants’ discipline records relating to this incident Discipline records that involve 26 08cv1252 BAS(RBB) 1 are relevant and should be produced. 2 crucial to proving [a] [d]efendant’s history or pattern of such 3 behavior.” 4 be relevant to issues of “credibility, notice to the employer, 5 ratification by the employer and motive of the officers.” 6 147 F.R.D. at 229 (finding information regarding other instances of 7 misconduct relevant to the punitive damages claim because it “may 8 lead to evidence of a continuing course of conduct reflecting 9 malicious intent”). 10 11 Soto, 162 F.R.D. at 620. The information “may be Records of this type may also Hampton, Plaintiff’s Motion to Compel the production of documents sought in requests twenty-one and twenty-two is GRANTED. 6. Civil Service Commission records (document requests 24 & 25) 12 13 In document request twenty-four, Plaintiff seeks “[a]ll 14 documents and files relating in any way to Civil Service Commission 15 proceedings relating in any way to Defendant MARK RITCHIE.” 16 Mot. Compel Attach. #2 Decl. Acosta Ex. 2, at 8, ECF No. 99.) 17 same request with regard to Defendant Taft is contained in document 18 request twenty-five. 19 requests, invoking the deliberative process, self-critical 20 analysis, required reports, and official information privileges. 21 (Id. Ex. 3, at 21-22.) 22 is irrelevant and protected from disclosure under privacy laws, and 23 asserts that "[a]fter a reasonable inquiry and diligent search, 24 there are no documents responsive to this request." 25 opposing Plaintiff’s Motion to Compel, Defendant states that it has 26 “no control or possession of records of the Civil Service 27 Commission which is an independent adjudicatory body from 28 Defendants.” (Id.) (Pl.’s The Defendant again objected to the It continues to claim that the information (Id.) In (Def. San Diego Cnty.’s Opp’n 1 n.1, ECF No. 108.) 27 08cv1252 BAS(RBB) 1 Federal Rule of Civil Procedure 34 provides that “[a] party 2 may serve on any other party a request . . . to produce . . . the 3 following items in the responding party’s possession, custody, or 4 control: 5 information . . . .” 6 as the legal right to obtain documents upon demand.” 7 v. Int'l Union of Petrol. & Indus. Workers, AFL–CIO, 870 F.2d 1450, 8 1452 (9th Cir. 1989). 9 production request . . . ‘is under an affirmative duty to seek that any designated documents or electronically stored Fed. R. Civ. P. 34(a). “Control is defined United States Thus, “[a] party responding to a Rule 34 10 information reasonably available to [it] from [its] employees, 11 agents, or others subject to [its] control.’” 12 148 F.R.D. 220, 223 (N.D. Ind. 1992) (citation omitted); see A. 13 Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 14 2006) (same). 15 a document that is not in its possession if the responding party 16 has a “legal right to obtain the document.” 17 285 F.R.D. 596, 603 (S.D. Cal. 2012) (citation omitted). 18 burden of proving that a document is in the possession, custody or 19 control of a responding party rests on the requesting party. 20 Clinton v. California Dept. of Corr., 264 F.R.D. 635, 645 (E.D. 21 Cal. 2010). 22 Gray v. Faulkner, Thus, a responding party may be required to produce Bryant v. Armstrong, The See Defendant San Diego County's objections to document requests 23 twenty-four and twenty-five did not state that it lacks control 24 over the records because the Civil Service Commission is a separate 25 entity. 26 provide any response or objection to interrogatories or document 27 requests, courts deem all objections waived and grant a motion to 28 compel. That objection has been waived. When a party fails to See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 28 08cv1252 BAS(RBB) 1 1468, 1473 (9th Cir. 1992) (finding that a party who failed to 2 timely object to interrogatories and document production requests 3 waived any objections); 7 James Wm. Moore et al., Moore's Federal 4 Practice, § 33.174[2], at 33–106, § 34.13[2][a], at 34–56 to 5 34–56.1 (3d ed. 2012). 6 object to discovery requests within the time required constitutes a 7 waiver of objection.” 8 the extent Defendant's claim in opposition to the Motion to Compel 9 presents a new argument, the objection comes too late. “It is well established that a failure to Richmark, 959 F.2d at 1473. Similarly, to The reason 10 for requiring timely objections to discovery requests is to give 11 the propounding party an opportunity to file a motion to compel to 12 address inadequate objections. 13 In this case, even if timely asserted, the objection that the 14 County lacks control over the documents is not well taken. 15 Court takes judicial notice, see Fed. R. Evid. 201(b)(2), that San 16 Diego County Civil Service Commission is the administrative appeals 17 body for the San Diego County in personnel matters. 18 Diego Civil Service Rules, Rule I-Civil Service Commission, 19 available at www.sdcounty.ca.gov/civilservice/pdf/csrFull.pdf. 20 Civil Service Commission is also included in the list of 21 departments on the County of San Diego’s public website: 22 http://sdpublic.sdcounty.ca.gov/your-county-government/county-depar 23 tments/. 24 that it does not have the legal right to obtain the documents from 25 the Civil Service Commission. 26 Motion to Compel further responses is therefore GRANTED as to 27 requests for production numbers twenty-four and twenty-five. 28 Defendant is ordered to produce the documents or provide a further The County of San The Given this, the Defendant has not convincingly asserted See Soto, 162 F.R.D. at 619. 29 The 08cv1252 BAS(RBB) 1 response under oath explaining what efforts were made to obtain the 2 requested documents. 3 7. Critical Incident Review Board records and reports (document request 26) 4 5 In request for production number twenty-six, Medina sought all 6 “Critical Review Reports or similar reports and materials related 7 to the INCIDENT.” 8 2, at 8, ECF No. 99.) 9 the same deliberative process, self-critical analysis, required (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. Defendant objected to the request, invoking (Id. Ex. 3, at 23.) 10 reports, and official information privileges. 11 It also claimed the information is protected from disclosure under 12 privacy laws, and that responsive documents will only be released 13 pursuant to a Court order. 14 connection with the discovery responses, Defendant also indicated 15 the information is protected by the attorney-client communication 16 privilege and attorney work product doctrine. 17 13.) (Id.) In the privilege log provided in (Id. Ex. 4, at 12- 18 The privilege log identifies three items; two are letters from 19 R. Faigin to S. Amos described as “CIRB report re: officer involved 20 shooting re: Robert Medina.” 21 dated August 3, 2009, and the second October 14, 2008. 22 document is described as a “sign-in sheet for Encinitas Pre-CIRB 23 conference” regarding the same incident, and is dated October 14, 24 2008. 25 all listed as parties claiming the privileges. 26 opposition to Plaintiff’s motion, Defendant San Diego County 27 asserts only that the Critical Incident Review Board (“CIRB”) (Id.) (Id. at 13.) The first letter is The third Defendants County of San Diego, Taft, and Ritchie are (Id.) In the 28 30 08cv1252 BAS(RBB) 1 records are protected by the attorney-client communication 2 privilege. (Def. San Diego Cnty.’s Opp’n 2, 6, ECF No. 108.) 3 The purpose of the attorney-client privilege is “to encourage 4 full and frank communication between attorneys and their clients.” 5 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). 6 asserting an evidentiary privilege has the burden to demonstrate 7 that the privilege applies to the information in question.’” 8 Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995) (quoting 9 Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988)). “‘The party 10 “‘Because it impedes full and free disclosure of the truth, the 11 attorney-client privilege is strictly construed.’” 12 v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (quoting Weil v. 13 Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 14 1981)). 15 to obtain informed legal advice which might not have been made 16 absent the privilege.” 17 (1976). 18 purpose of encouraging complete disclosure by the client.’” 19 Griffith, 161 F.R.D. at 694 (quoting Tornay, 840 F.2d at 1428). 20 21 22 23 24 25 26 United States The privilege “protects only those disclosures necessary Fisher v. United States, 425 U.S. 391, 403 It applies “‘only when necessary to effectuate its limited The attorney-client communication privilege consists of eight elements: (1) Where legal advice of any kind is sought (2) from a professional legal adviser 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 adviser, (8) unless the protection be waived. 27 Matter of Fischel, 557 F.2d 209, 211 (9th Cir. 1977). 28 failed to establish that the two letters and the sign-in sheet 31 Defendant 08cv1252 BAS(RBB) 1 satisfy the attorney-client communication test. First, Defendant 2 has not submitted any evidence that an attorney-client relationship 3 existed between San Diego County, Taft, or Ritchie, and either “R. 4 Faigin” or “S. Amos.” 5 communications were made in confidence and for the purpose of 6 seeking legal advice. Nor has the Defendant shown that the 7 The privilege typically does not apply to internal police 8 investigations, such as the critical incident review proceedings at 9 issue. See Griffith, 161 F.R.D. at 694–97 (stating that statements 10 made during investigation were not subject to attorney-client 11 privilege because the officer believed the interview was required 12 and done, in part, to determine whether police misconduct had 13 occurred, and thus the interviews were not conducted primarily to 14 obtain legal advice and were not confidential); accord Gonzalez v. 15 Municipal Ct., 67 Cal. App. 3d 111, 119-20, 136 Cal. Rptr. 475, 16 479-80 (Ct. App. 1977) (concluding that statements made to police 17 internal affairs investigators were not protected by the attorney- 18 client privilege because the officer knew they could be the basis 19 for disciplinary action against him and thus were not 20 confidential). 21 The burden is on the party asserting the attorney-client 22 privilege to establish that the privilege applies to the requested 23 documents. 24 Dist. LEXIS 109970, at *25 (S.D. Cal. Aug. 8, 2014) (citing Tornay 25 v. United States, 840 F.2d at 1426). 26 burden. 27 protected by the attorney-client privilege. Conforto v. Mabus, Case No. 12cv1316-W(BLM), 2014 U.S. The County did not carry its Accordingly, the Court finds that the documents are not 28 32 08cv1252 BAS(RBB) 1 Defendant’s privilege log also claimed that the CIRB records 2 are protected by the attorney work product doctrine. (Pl.’s Mot. 3 Compel Attach. #2 Decl. Acosta Ex. 4, at 13, ECF No. 99.) 4 opposition brief, however, does not discuss the attorney work 5 product doctrine as a ground for objecting to discovery. 6 San Diego Cnty.’s Opp’n 6, ECF No. 108.) The (See Def. 7 When ruling on a motion to compel, a court “‘generally 8 considers only those objections that have been timely asserted in 9 the initial response to the discovery request and that are 10 subsequently reasserted and relied upon in response to the motion 11 to compel . . . .’” 12 omitted). 13 opposition to a motion to compel, courts deem the objection waived. 14 See id. 15 Calderon, 290 F.R.D. at 516 n.4 (citation If a party fails to continue to assert an objection in Because Defendant did not assert the attorney work product 16 doctrine in the opposition brief, that objection is waived. 17 also fails on the merits. 18 states that “[o]rdinarily, a party may not discover documents and 19 tangible things that are prepared in anticipation of litigation or 20 for trial by or for another party or its representative (including 21 the other party's attorney, consultant, surety, indemnitor, 22 insurer, or agent).” 23 those materials may be discovered if “(i) they are otherwise 24 discoverable under Rule 26(b)(1); and (ii) the party shows that it 25 has substantial need for the materials to prepare its case and 26 cannot, without undue hardship, obtain their substantial equivalent 27 by other means.” 28 product has been shown, the Court must still “protect against Id. It Federal Rule of Civil Procedure 26(b)(3) Fed. R. Civ. P. 26(b)(3)(A). Nevertheless, But even when substantial need for work 33 08cv1252 BAS(RBB) 1 disclosure of the mental impressions, conclusions, opinions, or 2 legal theories of a party's attorney or other representative 3 concerning the litigation.” 4 Fed. R. Civ. P. 26(b)(3)(B). The burden is on the party claiming the privilege to establish 5 that the withheld documents are protected from discovery by the 6 attorney work product doctrine. 7 Moore's Federal Practice, § 26.70[5][a], at 26–454 (3d ed. 2014) 8 (footnote omitted). 9 must establish that the material is a document or tangible thing See 6 James Wm. Moore et al., “The party seeking work product protection Id. at 26- 10 prepared in anticipation of litigation for that party.” 11 454-55 (footnote omitted). 12 product rule applies is insufficient to invoke its protection.” 13 Id. at 26-455 (footnote omitted). “A mere allegation that the work 14 As discussed above, Defendant failed to submit any evidence 15 showing the existence of an attorney-client relationship between 16 San Diego County or Deputies Ritchie and Taft, and S. Amos or R. 17 Fagin. 18 written by S. Amos in connection with the CIRB were “prepared in 19 anticipation of litigation” as required by Rule 26(b)(3)(A). 20 Finally, Defendant waived this objection by raising it in the 21 privilege log but abandoning it in the opposition to Plaintiff’s 22 motion. 23 the work product doctrine. 24 Also, the Defendant does not show that the two reports For these reasons, the CIRB documents are not protected by The records relate to the investigation of the underlying 25 shooting incident and are clearly relevant to this case. 26 reasons discussed earlier, the deliberative process, self-critical 27 analysis, required reports, and official information privileges do 28 not apply to these documents. For the Accordingly, the Court GRANTS 34 08cv1252 BAS(RBB) 1 Plaintiff’s Motion to Compel production of documents identified in 2 request twenty-six. 3 C. California Highway Patrol Defendants 4 Plaintiff moved to compel multiple discovery responses from 5 Defendants Nava and Fenton, California Highway Patrol officers. 6 (Pl.’s Mot. Compel Attach. #1 Mem. P. & A. 2, ECF No. 99.) 7 their opposition, Defendants allege that Medina failed to meet and 8 confer prior to bringing this Motion. 9 Opp’n 4, ECF No. 105.) 10 In (Defs. Nava & Fenton’s Joint According to the Civil Local Rules for the Southern District 11 of California, “The court will entertain no motion pursuant to 12 Rules 26 through 37, Fed. R. Civ. P., unless counsel shall have 13 previously met and conferred concerning all disputed issues.” S.D. 14 Cal. Civ. R. 26.1(a). 15 because of a party's failure to meet and confer prior to filing the 16 motion. 17 Dist. LEXIS 136529, at *3–4 (N.D. Cal. Dec. 15, 2010); see Shaw v. 18 Cnty. of San Diego, No. 06–CV–2680–IEG (POR), 2008 U.S. Dist. LEXIS 19 80508, at *3–4 (S.D. Cal. Oct. 9, 2008) (denying plaintiff's motion 20 to compel for failing to meet and confer). 21 still decide a motion on the merits despite a failure to meet and 22 confer. 23 10cv846–BTM (KSC), 2012 U.S. Dist. LEXIS 49064, at *6–7 (S.D. Cal. 24 Apr. 6, 2012) (explaining that a failure to meet and confer is 25 grounds for denying a motion, but still addressing the merits). 26 A court can deny a motion to compel solely Scheinuck v. Sepulveda, No. C 09–0727 WHA (PR), 2010 U.S. Nonetheless, courts may See Marine Grp., LLC v. Marine Travelift, Inc., No. Medina’s Motion to Compel states that the parties have “met 27 and conferred including in person several times and reached an 28 impasse as to the production of . . . records . . . .” 35 (Pl.’s Mot. 08cv1252 BAS(RBB) 1 Compel Attach. #1 Mem. P. & A. 2, ECF No. 99.) 2 emerged while they were engaged in discovery and were conducting 3 depositions. 4 are confirmed in the declaration of Defendant Fenton's counsel of 5 record, Michael Cayaban, submitted in support of Defendant’s 6 opposition: 7 8 9 10 11 12 13 14 15 A disagreement The parties’ efforts to resolve the discovery issues Subsequent to service of plaintiff’s document demands and prior to responses being provided, the parties did discuss that defendants would be asserting various objections and would not be producing all of the documents sought. As such, the parties attempted to come to some potential agreement on an efficient way to proceed and resolve the expected discovery dispute. The parties did agree to production of CHP policies pursuant to a protective order but came to no agreement regarding the production of other documents that defendants indicated would not be produced. The parties did discuss submitting a joint motion to the Court along with the documents that defendants were intending to withhold. However, it is my understanding from conversations with plaintiff’s counsel that this Court would not allow the parties to proceed in this matter and would only resolve a discovery dispute pursuant to a regular noticed motion. 16 (Defs. Nava & Fenton’s Joint Opp’n Attach. #2 Cayaban Decl. 2, ECF 17 No. 105.) 18 Defendant Nava’s attorney Lee Roistacher. 19 Roistacher Decl. 2.) 20 Plaintiff’s assertions. 21 The same statement appears in the declaration of (Id. Attach. #1 These representations are consistent with Defendants Nava and Fenton argue that Plaintiff failed to meet 22 and confer after receiving Defendants’ objections. The parties met 23 several times and were able to resolve several of the disputed 24 issues and agree on a protective order [ECF No. 103]. 25 this discovery motion followed. 26 have been prudent for Plaintiff to engage in another meet and 27 confer session before bringing the Motion to Compel. 28 facts, however, the Court is satisfied that Plaintiff fulfilled her Ultimately, The Court agrees that it might 36 Given these 08cv1252 BAS(RBB) 1 requirement to meet and confer. 2 motion on the merits. 3 1. The Court will decide Plaintiff’s Document requests ten, twelve, thirteen, and sixteen to Defendant Nava 4 5 In document request number ten to Defendant Nava, Plaintiff 6 asked for Nava’s California Highway Patrol performance evaluations 7 for the years 1996 through 2006. 8 Decl. Acosta Ex. 8, at 3, ECF No. 99.) 9 request, stating that the documents are subject to privacy rights, (Pl.’s Mot. Compel Attach. #2 Nava objected to this (Id. Ex. 10 the official information privilege, and are irrelevant. 11 9, at 7.) 12 prior to his hire date in November 2000, and that all performance 13 evaluations for the 2000-2006 period were destroyed pursuant to 14 CHP’s document retention policy. 15 Defendant also stated that no responsive documents exist (Id.) Plaintiff also sought Nava’s fitness for duty evaluations 16 (request twelve) and workers compensation permanent and stationary 17 return to work reports (request thirteen) from 1996 to present. 18 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 8, at 4, ECF No. 19 99.) 20 are irrelevant and are protected by privacy rights. 21 8.) 22 ever existed.” 23 Plaintiff sought records of discipline, reprimand or remedial 24 training imposed on Nava as a result of the underlying incident “or 25 any other act of false arrest, unlawful detention, unlawful search 26 and seizure, use of excessive force, improper use of firearm, 27 improper use of lethal force, false statement, false report or 28 other improper action.” Nava objected to both requests, stating that the documents (Id. Ex. 9, at He also stated that no responsive documents “exist or have (Id.) Finally, in document request sixteen, (Pl.’s Mot. Compel Attach. #2 Decl. Acosta 37 08cv1252 BAS(RBB) 1 Ex. 8, at 6, ECF No. 99.) 2 overbroad, compound, and irrelevant as to documents after 2006. 3 (Id. Ex. 9, at 11.) 4 responsive documents “exist or have ever existed.” 5 Nava objected to the request as Nevertheless, Defendant also stated that no (Id.) In the joint opposition to Plaintiff’s Motion, Defendants Nava 6 and Fenton reiterate that no responsive documents exist in 7 connection with Plaintiff’s document requests number ten, twelve, 8 thirteen, and sixteen. 9 No. 105.) 10 11 (Defs. Nava & Fenton’s Joint Opp’n 4, ECF Defendants therefore argue that they cannot be compelled to produce any documents in response to these requests. (Id.) When responding to a request for production of documents under 12 Rule 34 of the Federal Rules of Civil Procedure, a party is to 13 produce all relevant documents in his “possession, custody, or 14 control.” 15 production of documents that do not exist.” 16 No. 3:CV–10–1480, 2013 U.S. Dist. LEXIS 99905, at *6 (M.D. Pa. July 17 17, 2013); accord Myhre v. Seventh-Day Adventist Church Reform 18 Movement Am. Union Int’l Missionary Soc’y, 298 F.R.D. 633, 645 19 (S.D. Cal. 2014). 20 is not a production or an objection, but an answer, the party must 21 answer under oath.” 22 Practice, § 34.13[2][a], at 34–57 (footnote omitted). 23 if a responding party contends that documents are not in its 24 custody or control, the court may require more than a simple 25 assertion to that effect. 26 (footnote omitted); see also Schwartz v. Mktg. Publ'g Co., 153 27 F.R.D. 16, 21 (D. Conn. 1994) (citing cases establishing that the Fed. R. Civ. P. 34(a)(1). “This Court cannot compel the Banks v. Beard, Civil “[W]hen a response to a production of documents 7 James Wm. Moore et al., Moore's Federal Similarly, See id. § 34.14[2][a], at 34–72 to 34-73 28 38 08cv1252 BAS(RBB) 1 absence of possession, custody, or control of documents that have 2 been requested must be sworn to by the responding party). 3 Defendant Nava’s response to the requests for production was 4 not provided under oath. The declaration from Lieutenant Mentink, 5 the custodian of records for the California Highway Patrol’s San 6 Diego area office, discusses the CHP’s file retention policy but 7 does not explicitly state that the requested documents do not 8 exist. 9 Decl. 2, ECF No. 105.) (Defs. Nava & Fenton’s Joint Opp’n Attach. #3, Mentink The Defendant failed to comply with the 10 requirement that he state under oath that he lacks possession, 11 custody, and control of documents requested under Rule 34. 12 Accordingly, the Court GRANTS Plaintiff’s Motion to Compel further 13 responses to document requests number ten, twelve, thirteen, and 14 sixteen to Defendant Nava.4 15 responsive documents or, in a properly executed response, attest 16 that the documents do not exist and cannot be retrieved. 2. 17 He is ordered to produce the Document requests ten, twelve, thirteen, and sixteen to Defendant Fenton 18 19 Plaintiff’s request number ten to Defendant Fenton contained a 20 typographical error, seeking performance evaluations of Leo Nava 21 instead of Fenton. 22 6, at 3-4, ECF No. 99.) 23 that requested documents are protected by the right to privacy and 24 official information privilege, and stated that the documents no (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. Defendant Fenton objected on the ground 25 26 27 28 4 Whether Defendants had a duty to suspend a document retention policy and implement a litigation hold is not before the Court at this time. See Apple Inc. v. Samsung Elecs. Co., Ltd., 881 F. Supp. 2d 1132, 1136-37 (N.D. Cal. 2012) (discussing duty to preserve evidence). 39 08cv1252 BAS(RBB) 1 longer exist pursuant to CHP’s file retention procedures. 2 also responded that he “does not have possession, custody or 3 control over Defendant Nava’s training records.” 4 8.) 5 Fenton (Id. Ex. 7, at Plaintiff also sought Fenton’s fitness for duty evaluations 6 (request twelve), workers compensation permanent and stationary 7 return to work reports (request thirteen), and discipline records 8 (request sixteen). 9 6, at 4, 6, ECF No. 99.) (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. In response, Defendant stated that no (Id. Ex. 7 at 9, 10, 13.) Defendant 10 responsive documents exist. 11 Fenton’s responses suffer from the same defect as Defendant Nava’s. 12 Defendant did not properly attest to the fact that the responsive 13 documents do not exist because they were purged. 14 declaration from Lieutenant Recatto, the custodian of records for 15 the Oceanside area office, discusses the CHP’s file retention 16 policy but does not explicitly state that the requested documents 17 do not exist and cannot be retrieved. 18 Opp’n Attach. #4, Recatto Decl. 2, ECF No. 105.) 19 not state under oath that he lacks possession, custody, and control 20 of documents requested. 21 further responses to document requests number ten, twelve, 22 thirteen, and sixteen to Defendant Fenton is GRANTED. 23 produce the documents or, in an answer under oath, state that the 24 documents do not exist and cannot be retrieved. 25 3. Similarly, the (Defs. Nava & Fenton’s Joint The Defendant did Accordingly, Plaintiff’s Motion to Compel He is to Document request eleven to Defendant Nava 26 In document request eleven to Nava, Plaintiff sought “[a]ll 27 records relating to training received . . . and courses attended 28 . . . for the years 1996 through 2006, including but not limited to 40 08cv1252 BAS(RBB) 1 current P.O.S.T. certificate, status of mandatory P.O.S.T. 2 training, firearms and qualification dates, scores and 3 remediation.” 4 4, ECF No. 99.) 5 November 2000, his hire date, and that existing records are 6 irrelevant, subject to privacy rights, and shielded by the official 7 information privilege. 8 a privilege log listing three documents that had been withheld: 9 (1) electronic training system print out; (2) training records from 10 California Highway Patrol Employee’s Training System Records System 11 (AGO 615-628); and (3) Employment History (AGO 047-048). 12 7-8.) 13 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 8, at Nava responded that no documents exist prior to (Id. Ex. 9, at 7.) Defendant also provided (Id. at In the joint opposition to Plaintiff’s Motion, Defendants 14 argue that Plaintiff Medina failed to establish that all training 15 records are relevant to this case. 16 Opp’n 8, ECF No. 105.) 17 allege a Monell cause of action against the CHP, and the request 18 for all training records goes beyond the scope of Plaintiff’s 19 claims in this lawsuit. 20 (Defs. Nava & Fenton’s Joint Defendants point out that Medina does not (Id.) Defendant Nava, as the party opposing disclosure, has the 21 burden to show that discovery should not be allowed. 22 F.R.D. at 283. 23 supporting his objections to the disclosure of his training 24 records. 25 records, invoking his right to privacy, official information 26 privilege, and relevance. 27 Fenton in their joint opposition, nevertheless, ordered the 28 production of training records relevant to the asserted claims. Oakes, 179 He has not carried his burden of explaining and See id. Defendant failed to produce any training Cases relied on by Defendants Nava and 41 08cv1252 BAS(RBB) 1 See Robinson v. Adams, No. 1:08–cv–01380–AWI–SMS PC, 2011 WL 2 2118753, at *15 (E.D. Cal. May 27, 2011) (“Plaintiff has stated 3 that his intention is to show that there is a habit and pattern of 4 excessive force and therefore documents relating to training in use 5 of force may be relevant.”); Megargee v. Wittman, No. CV F 06 0684 6 LJO WMW P, 2007 WL 2462097, at *2-3 (E.D. Cal. Aug. 27, 2007) 7 (“Plaintiffs are entitled to the relevant portions of the personnel 8 files and training records, subject to a protective order.”). 9 Defendant does not argue which portions of his training records are 10 irrelevant, or that producing all of Nava’s training records is 11 unduly burdensome. 12 Plaintiff’s request for training records is not overbroad 13 given the factual background of the case. 14 Defendant Nava include the use of excessive force, intent to 15 inflict harm, and failure to intervene. 16 records are relevant, and may lead to the discovery of additional 17 information relevant to his on-duty conduct. 18 70. 19 identified in document request number eleven to Defendant Nava is 20 GRANTED. Defendant’s training Unger, 125 F.R.D. at Plaintiff’s Motion to Compel the production of documents 21 22 The allegations against 4. Document request eleven to Defendant Fenton Plaintiff’s request number eleven to Defendant Fenton 23 apparently contained a typographical error, seeking training 24 records of Leo Nava instead of Fenton. 25 #2 Decl. Acosta Ex. 6, at 3-4, ECF No. 99.) 26 objected to the request, invoking privacy and official information 27 privilege. 28 comply with the request because he does not have “possession, (Id. Ex. 7, at 8.) (Pl.’s Mot. Compel Attach. Defendant Fenton Fenton also stated that he cannot 42 08cv1252 BAS(RBB) 1 2 custody or control over Defendant Nava’s training records.” (Id.) Plaintiff’s typographical mistake in the document request 3 served on Defendant Fenton does not excuse him from responding. 4 JouJou Designs, Inc. v. JOJO Ligne Internationale, Inc., 821 F. 5 Supp. 1347, 1350 (N.D. Cal. 1992) (“Although plaintiff could have 6 taken greater care in preparing its papers, the issue is whether 7 the defendant had ‘actual notice’ of the discovery request that 8 could be imputed to him as a party despite the wrong name.”) 9 (citing Schiavone v. Fortune, 477 U.S. 21 (1986)). 10 Here, Plaintiff served almost identical sets of document 11 requests on both Nava and Fenton. 12 Decl. Acosta Ex. 6, ECF No. 99; id. Ex. 8.) 13 and eleven in each set named Defendant Leo Nava. 14 served on all counsel in this case. 15 motion to compel, Defendants acknowledge that “[d]emand number 11 16 propounded to both Nava and Fenton asked for Nava’s training 17 records between 1996 and 2006.” 18 4, ECF No. 105.) 19 seek both Nava’s and Fenton’s records in discovery. 20 extending professional courtesy to Plaintiff’s counsel and 21 clarifying the requests, Defendant Fenton responded to request 22 eleven as if Plaintiff intended to request Nava’s records from 23 Fenton. 24 this concern during the attorneys’ discovery conferences. 25 (Pl.’s Mot. Compel Attach. #2 Request numbers ten Both sets were Moreover, in opposing the (Defs. Nava & Fenton’s Joint Opp’n There is little doubt that Plaintiff intended to Instead of Furthermore, Fenton’s counsel apparently did not raise In their joint opposition to Plaintiff’s Motion to Compel, 26 Defendants do not raise the privacy or official information 27 privilege arguments; Fenton merely contends that he does not have 28 custody or control over Nava’s training records. 43 When ruling on a 08cv1252 BAS(RBB) 1 motion to compel, a court “generally considers only those 2 objections that have been timely asserted in the initial response 3 to the discovery request and that are subsequently reasserted and 4 relied upon in response to the motion to compel.” 5 Experian Info. Solutions, Inc., 290 F.R.D. at 516 n.4 (citation 6 omitted). 7 but not relied upon in response to the motion to compel, the court 8 will deem the objection or privilege waived.” 9 J.D., et al., Federal Procedure, Lawyers Edition § 26:778 (2013) 10 (citing Sonnino v. Univ. Kansas Hosp. Auth., 220 F.R.D. 633, 642 11 (D. Kan. 2004)). 12 Calderon v. “[W]hen an objection or privilege is initially raised 10A John Kimpflen, Plaintiffs have alleged that Defendant Fenton’s actions were 13 in the course of his duties as a CHP officer. (Consolidated Compl. 14 4, ECF No. 57.) 15 duty was unlawful. 16 during the vehicle pursuit, Fenton falsely reported an assault with 17 a deadly weapon with the intent to harass, harm, or retaliate 18 against Robert Medina for his failure to stop. 19 also point to Defendant Fenton’s statement -- “Let’s end this. 20 Let’s end this.” -– as further proof of a retaliatory motive. 21 at 8-9.) 22 unjustified because the physical evidence refutes his account of 23 the events. 24 Fenton’s training records are relevant and should be produced for 25 the same reasons as those outlined earlier in connection with 26 Defendant Nava. 27 production of documents requested in document request number eleven 28 to Defendant Fenton. They claim that each Defendant’s conduct while on (Id.) Specifically, Plaintiffs contend that (Id. at 8.) They (Id. Plaintiffs argue that Fenton’s use of deadly force was (Id. at 14.) Given these allegations, Defendant The Court GRANTS Plaintiff’s Motion to Compel 44 08cv1252 BAS(RBB) 1 2 5. Document requests fourteen to Nava and Fenton In separate document requests, Defendants Nava and Fenton are 3 asked to produce “[a]ll reports, interviews, witness statements, 4 diagrams, photographs, investigative summaries or any other 5 document or audio or visual recording made as a result of any 6 investigation (internal affairs or otherwise) by the State of 7 California and/or California Highway Patrol into the INCIDENT 8 . . . .” 9 ECF No. 99; id. Ex. 8 at 4.) (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 6, at 4, In response, each Defendant stated 10 that although the CHP was not the “lead investigatory agency 11 involved in the November 16, 2016 incident,” it conducted an 12 administrative review of the incident and generated an “Officer 13 Involved Shooting Reconstruction Report.” 14 id. Ex. 9, at 8-9.) 15 several documents in the Report, invoking the official information 16 privilege, right to privacy, attorney-client privilege, and 17 attorney work product. 18 (Id. Ex. 7, at 10-11; Nava and Fenton objected to the production of (Id. Ex. 7, at 3; id. Ex. 9, at 9-10.) In opposing Plaintiff Jennifer Medina's Motion to Compel, 19 Defendants allege that they produced over 1200 pages of non- 20 privileged material generated in the administrative review of the 21 incident. 22 They claim they withheld the following documents: 23 2008 Memorandum Of Findings - Policy And Procedure Review of 24 Officer Involved Shooting (Nava), numbered AGO 1-7, 642-49; (2) May 25 14, 2008 Memorandum Of Findings - Policy And Procedure Review of 26 Officer Involved Shooting (Fenton), numbered AGO 8-10, 629-41; (3) 27 April 11, 2008 Memo to Office Of General Counsel, unnumbered; (4) 28 Vehicle Accident Report, numbered AGO 394-98, undated; (5) (Defs. Nava & Fenton’s Joint Opp’n 8, ECF No. 105.) 45 (1) June 27, 08cv1252 BAS(RBB) 1 Employment Histories, numbered AGO 432-47, undated; (6) November 2 15, 2006 Daily Incident Logs, numbered AGO 592-94, (7) Training 3 Records from California Highway Patrol Employees Training Records 4 System, numbered AGO 600-11 (Fenton), 615-628 (Nava)); and (8) 5 Officer Safety Certification, numbered AGO 597-99 (Fenton), 613-14 6 (Nava)). 7 9-10.) 8 9 (Id.; Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 9, at Nava and Fenton argue that Plaintiff would “gain nothing through the disclosure of such personnel documents,” because 10 “Defendants have already produced over 1200 pages of documents 11 relating specifically to this incident, including the San Diego 12 County Sheriff’s Office Homicide Investigation and all but 50 pages 13 of the CHP’s Officer Involved Shooting Administrative review.” 14 (Defs. Nava & Fenton’s Joint Opp’n 10, ECF No. 105.) 15 time, Defendants allege that the disclosure of withheld documents 16 would have a “chilling effect on the open-exchange of information 17 and would discourage frank and open discussions regarding CHP’s 18 internal policies, and would lead to an environment that is less 19 safe for officers and the public.” 20 that the Plaintiff fails to show the relevance of the withheld 21 items. 22 documents was “already disclosed through written discovery or 23 depositions.” 24 (Id. at 8.) (Id.) At the same Nava and Fenton argue They also claim that the information in the (Id. at 10.) In support of their asserted privileges, Defendants submitted 25 declarations from CHP Lieutenant Karyn Mentink, custodian of 26 records for the San Diego Area, and CHP Lieutenant Peter Recatto, 27 custodian of records for the Oceanside Area. 28 Fenton’s Joint Opp’n Attach. #3 Mentink Decl., ECF No. 105; id. 46 (Defs. Nava & 08cv1252 BAS(RBB) 1 Attach. #4 Recatto Decl.) 2 of material subject to a protective order will not suffice.” 3 (Defs. Nava & Fenton’s Joint Opp’n Attach. #3 Mentink Decl. 4, ECF 4 No. 105; id. Attach. #4 Recatto Decl. 4.) 5 6 7 8 9 Both declarants state that “[d]isclosure It will be abundantly clear, for example, to witnesses that the statements made by them, allegedly in confidence to CHP, were not truly confidential. In addition, the privacy interests of those persons discussed in the work product, for example, peace officers with personnel records, will not be adequately protected; their interest is harmed when the information is disclosed. Finally, the ability of CHP to engage in objective self-critical analysis will have been highly compromised. 10 (Defs. Nava & Fenton’s Joint Opp’n Attach. #3 Mentink Decl. 4, ECF 11 No. 105; id. Attach. #4 Recatto Decl. 4.) 12 In order to properly invoke the official information 13 privilege, the affidavit or declaration must be submitted by “a 14 responsive official within the agency who has personal knowledge of 15 the principal matters to be attested to in the affidavit or 16 declaration.” 17 F.R.D. at 669). 18 specify the governmental or privacy interests that would be 19 threatened by disclosure. 20 21 22 23 Hampton, 147 F.R.D. at 230 (quoting Kelly, 114 Among other things, the agency official must Id. [T]he affiant must have personal knowledge of the principal matters covered by the affidavit. The requirement of personal knowledge . . . is important because the most reliable information will come from people with direct knowledge about what interests are threatened by a particular disclosure and how much harm to those interests is likely. 24 Kelly, 114 F.R.D. at 669-70. 25 and procedures is insufficient. 26 for the affidavit to be provided by the head of the internal 27 affairs unit, or by a person with some relevant supervisorial or 28 policy making role.” Mere familiarity with CHP policies “It would suffice, for example, Id. at 669. 47 Defendants failed to meet the 08cv1252 BAS(RBB) 1 threshold burden because the declarations do not establish that the 2 two custodians of records have personal knowledge of the 3 governmental or privacy interests that may be implicated by 4 disclosure of the requested documents or that the declarants’ 5 responsibilities make them qualified to describe how disclosure 6 subject to a protective order would create a substantial risk of 7 harm to those interests or to project how much harm would result. 8 See Hampton, 147 F.R.D. at 230-31. 9 Defendants argue that witness statements to CHP must remain 10 “truly confidential.” 11 department's internal investigatory system would be harmed by 12 disclosure of the documents is insufficient’ to meet the threshold 13 test for invoking the official information privilege.” 14 F.R.D. at 614 (quoting Chism, 159 F.R.D. at 534-35). But “‘a general assertion that a police Soto, 162 15 Nava and Fenton maintain that the agency’s self-critical 16 analysis will suffer from disclosure of the records, but the Ninth 17 Circuit does not recognize this privilege. 18 2014 WL 3891813, at *7; Soto, 162 F.R.D. at 611. 19 claims regarding the chilling effect disclosure of these documents 20 would have are likewise unpersuasive. 21 22 23 24 25 Branch v. Umphenour, Defendants’ [T]here is no empirical support for the contention that the possibility of disclosure would reduce the candor of officers who contribute to internal affairs investigations, and since there are solid reasons to believe that that possibility might have the opposite effect (improving accuracy and honesty), there is no justification for offering near absolute protection to the statements that go into such reports or to the opinions and recommendations that conclude them. 26 Kelly, 114 F.R.D. at 665-66 (stating that internal affairs 27 investigations are “presumptively discoverable”); see also Price v. 28 Cnty. of San Diego, 165 F.R.D. 614, 620 (S.D. Cal. 1996) (“[T]he 48 08cv1252 BAS(RBB) 1 Court is convinced that the infringement upon the frank and 2 independent discussions regarding contemplated policies and 3 decisions of the County . . . , caused by disclosure of these 4 documents, can be alleviated through the use of a strict protective 5 order against use or dissemination of the materials outside of this 6 lawsuit.”). 7 Defendants asserted the attorney-client privilege to avoid 8 disclosing two documents that appear to be part of an “Officer 9 Involved Shooting Reconstruction Report”; however, for Nava and See In re Excel 10 Fenton, the privilege has not been established. 11 Innovations, Inc., 502 F.3d 1086, 1099 (9th Cir. 2007) 12 (“Ordinarily, the party asserting attorney-client privilege has the 13 burden of establishing all of the elements of the privilege.”); In 14 re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed. Cir. 15 2000) ("[T]he central inquiry is whether the communication is one 16 that was made by a client to an attorney for the purpose of 17 obtaining legal advice or services."). 18 Defendants claimed that attorney-client privilege protects (1) 19 a memo to the office of general counsel dated April 11, 2008, and 20 (2) an undated vehicle accident report. 21 #2 Decl. Acosta Ex. 9, at 9-10, ECF No. 99.) 22 to identify the author(s) of each document; the recipients; the 23 reason(s) each document was created; and whether each individual 24 has an attorney-client relationship with any author, recipient, or 25 other interested party. 26 of an attorney-client relationship, that the documents at issue are 27 communications made to seek legal advice, or that they were 28 intended to be confidential. (Pl.’s Mot. Compel Attach. Nava and Fenton fail Nothing in the record shows the existence See Martin, 278 F.3d at 1000. 49 To the 08cv1252 BAS(RBB) 1 extent Defendants argue that the vehicle accident report is also 2 protected as attorney work product, they have failed to show that 3 the report “would not have been generated but for the pendency or 4 imminence of litigation.” 5 F.R.D. 503, 507 (S.D. Cal. 2003) (discussing fact work product). 6 Kintera, Inc. v. Convio, Inc., 219 In sum, the Court rejects Defendants’ objections on the basis 7 of official information privilege, attorney work product, and 8 attorney-client privilege. 9 administrative review of the shooting is clearly relevant. The information included in the 10 Plaintiff’s need for the information contained in the Officer 11 Involved Shooting Reconstruction Report outweighs Defendants’ 12 privacy rights, and is unlikely to be available from any other 13 source. 14 statements that comparable information can be obtained through 15 interrogatories or depositions). 16 production of documents sought in document requests fourteen to 17 Defendants Nava and Fenton is GRANTED. Soto, 162 F.R.D. at 617 & n.8 (rejecting defense counsel's Plaintiff’s Motion to Compel 18 6. 19 Document request number fifteen to Defendant Fenton asks that 20 21 22 23 24 Document request fifteen to Defendants Nava and Fenton he produce the following items: All reports of complaints or internal affairs investigations conducted alleging or relating to false arrest, unlawful detention, unlawful search or seizure, excessive force, improper use of firearm, improper use of lethal force, false reports, false statements, untruthful or other improper procedures by Defendant TIMOTHY FENTON for the years 1996 to the present, and the investigation of said complaints, including, but not limited to: 25 26 27 a) the full investigation of each complaint or investigation, including all statements (written, audio or video recordings) of all participants and witnesses; 28 50 08cv1252 BAS(RBB) 1 b) the names, addresses and telephone numbers of the persons who filed the complaints or generated the investigation and any statements (written, audio or video recordings) they provided; 2 3 c) the names, address and telephone numbers of all persons, whether law enforcement officers or private persons, who were percipient witnesses to the events which gave rise to the filing of the complaints or generation of the investigation, and any statement (written, audio or video recordings) each such person provided; 4 5 6 7 d) the written reports of the investigation of these complaints or investigations, including complaints which may have been determined to be unsustained; and 8 9 e) verbatim copies of all other records, reports, notes, photographs and audio or video recordings made as a result of the law enforcement agency’s investigation of the complaints. 10 11 12 14 As to all items requested, Plaintiffs request the information be furnished regardless of the outcome, disposition or result of the complaint, report or investigation. 15 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 6, at 4-5, ECF No. 16 99.) 17 8, at 4-5.) 13 18 Medina sought the same records from Defendant Nava. (Id. Ex. Defendant Fenton objected to the request as overbroad, vague, 19 and irrelevant. 20 privacy, state law privileges, and the official information 21 privilege. 22 retention policy, all documents related to citizen complaints are 23 destroyed after five years, and all memoranda of findings or 24 investigations that do not result in employee discipline are 25 destroyed after three years. 26 (Id. Ex. 7, at 12.) (Id.) He also invoked right to Fenton stated that pursuant to CHP’s file (Id.) Fenton’s response also indicated that two documents were 27 withheld: 28 occurred on October 18, 2013, involving the validity of a stop and (1) a citizen’s complaint about an incident that 51 08cv1252 BAS(RBB) 1 the driving of a patrol vehicle; and (2) a citizen’s complaint 2 about a November 18, 2012 incident involving discourtesy. 3 Medina sought complaints “relating to false arrest, unlawful 4 detention, unlawful search or seizure, excessive force, improper 5 use of firearm, improper use of lethal force, false reports, false 6 statements, untruthful or other improper procedures.” 7 Compel Attach. #2 Decl. Acosta Ex. 6, at 4, ECF No. 99.) 8 these two withheld items relate to the type of misconduct alleged 9 in this case, they are not relevant to the claims or defenses and (Id.) (Pl.’s Mot. Unless See Fed. 10 are unlikely to lead to discovery of admissible evidence. 11 R. Civ. P. 26(b)(1). 12 events that are the subject of this suit by more than six years. 13 Finally, the Plaintiffs are not asserting a Monell claim against 14 the California Highway Patrol. 15 documents are not responsive to document request fifteen. 16 Accordingly, the Court DENIES Plaintiff’s Motion to Compel with 17 regard to these two documents. 18 Furthermore, the incidents post-date the For all these reasons, the withheld It is not clear from Fenton’s statements, however, whether 19 responsive documents for the time period prior to 2012 ever existed 20 or if they were destroyed pursuant to CHP’s policies. 21 Fenton did not provide an answer under oath that no documents exist 22 prior to 2012. 23 production of documents is not a production or an objection, but an 24 answer, the party must answer under oath.” 25 al., Moore's Federal Practice, § 34.13[2][a], at 34–57 (footnote 26 omitted); see also Schwartz, 153 F.R.D. at 21. 27 part Plaintiff’s Motion to Compel a further response under oath to Regardless, As discussed earlier, “when a response to a 7 James Wm. Moore et The Court GRANTS in 28 52 08cv1252 BAS(RBB) 1 document request number fifteen to Defendant Fenton to address the 2 existence of documents for the time period from 1996 to 2012. 3 Defendant Nava objected to Plaintiff’s request for production 4 number fifteen as overbroad and irrelevant, and invoked the right 5 to privacy and official information privilege. 6 He also stated that no responsive documents exist, or have ever 7 existed, for the time period between 2000-2006. 8 response was likewise not given under oath. 9 Lieutenant Mentink, the custodian of records for the San Diego (Id. Ex. 9, at 11.) (Id.) Nava’s The declaration from 10 area, discusses the CHP’s file retention policy but does not 11 explicitly state that the requested documents do not exist. 12 Nava & Fenton’s Joint Opp’n Attach. #3, Mentink Decl. 2, ECF No. 13 105.) 14 possess, control, or have custody of the documents requested. 15 Accordingly, the Court GRANTS in part Plaintiff’s Motion to Compel 16 a further response to document request number fifteen to Defendant 17 Nava to address the existence of documents for the time period from 18 2000 to 2006. 19 (Defs. The Defendant failed to state under oath that he does not Defendant Nava also stated that he withheld one document –- a 20 citizen’s complaint regarding a traffic citation dated September 21 2010. 22 No. 99.) 23 issues in this case and post-dates the events in this suit. 24 Therefore, the document need not be produced. 25 is DENIED as to this document. 26 (Pl.’s Mot. Compel Attach. #2 Decl. Acosta Ex. 9, at 11, ECF The traffic citation appears to have no bearing on the The Motion to Compel Because the Court GRANTS Plaintiff’s Motion to Compel further 27 responses to document requests number fifteen, Defendants Fenton 28 and Nava are ordered to provide Plaintiff a properly executed 53 08cv1252 BAS(RBB) 1 response, attesting under oath that the documents do not exist for 2 the stated time period. 3 be produced. 4 5 Alternatively, responsive documents should III. CONCLUSION For the reasons above, the Court GRANTS in part and DENIES in 6 part Plaintiff’s Motion to Compel [ECF No. 99]. All documents 7 ordered produced are to be provided to Plaintiff by October 10, 8 2014, and all further responses that are to be made under oath are 9 also due by October 10, 2014. Documents are to be produced 10 pursuant to a protective order limiting use and dissemination of 11 the items. 12 case [ECF No. 103] may serve as a model for a further stipulated 13 order. 14 15 16 The limited protective order already on file in the As to Defendant San Diego County, the Court GRANTS Plaintiff's Motion to Compel as follows: (1) Defendants Ritchie and Taft’s performance evaluations and 17 training records for the time period of 1996 through 2006 (document 18 requests 10, 11, 12, & 13) are to be produced; 19 (2) Defendants Ritchie and Taft’s fitness for duty evaluations 20 and return to work reports for the years 1996 to the present 21 (document requests 14, 15, 16, & 17) are to be produced; 22 (3) The records related to the investigation of the shooting 23 death of Robert J. Medina (document request 18) are to be produced; 24 (4) Internal affairs reports and investigations of other 25 incidents or complaints pertaining to Ritchie and Taft for the 26 period 1996 to present (document requests 19 & 20) are to be 27 produced; 28 54 08cv1252 BAS(RBB) 1 (5) Defendants Ritchie and Taft’s discipline and reprimand 2 records relating to the shooting incident (document requests 21 & 3 22) are to be produced; 4 (6) Records of Civil Service Commission proceedings (document 5 requests 24 & 25) are to be produced, or Defendant San Diego County 6 must provide responses under oath explaining what efforts it 7 undertook to obtain responsive documents; and 8 9 10 11 12 (7) Critical Review Reports related to the shooting incident (document request 26) are to be produced. As to Defendants Leo Nava and Timothy Fenton, the Court GRANTS in part and DENIES in part Plaintiff's Motion to Compel: (1) Defendant Nava and Fenton's performance evaluations, 13 fitness for duty evaluations, workers compensation return to work 14 reports, and discipline records (document requests 10, 12, 13, & 15 16) are to be produced. 16 responsive documents do not exist, the Defendant must provide 17 responses under oath explaining what efforts he undertook to obtain 18 responsive documents; 19 20 21 Alternatively, for each answer that (2) Nava and Fenton’s training records (document requests 11) are to be produced; (3) Defendants Nava and Fenton are to produce all reports and 22 records pertaining to the shooting incident (document requests 14); 23 (4) For document requests fifteen, Defendant Nava is not 24 required to produce withheld documents relating to a citizen's 25 complaint concerning a 2010 traffic citation. 26 not required to produce withheld documents relating to two 27 citizens' complaints – one in 2012 and the other in 2013. 28 other documents that are or may be responsive to document request 55 Defendant Fenton is For 08cv1252 BAS(RBB) 1 fifteen, Defendant Fenton is to produce the documents from 1996 to 2 the present or, for any documents that no longer exist, provide 3 responses under oath explaining what efforts he undertook to obtain 4 the responsive documents. 5 responsive documents from 2000 to the present or provide responses 6 under oath explaining, for any documents that no longer exist, what 7 efforts he undertook to obtain the responsive documents. 8 Likewise, Defendant Nava is to produce Finally, there are personnel records that Plaintiff has not 9 addressed in her motion, e.g. sheriff identification cards, photos, 10 personal identifying information (home address, badge receipts, and 11 other personal data). 12 not moved to compel their production, and they are not the subject 13 of this Order. As to these withheld items, Plaintiff has 14 15 Dated: September 25, 2014 RUBEN B. BROOKS United States Magistrate Judge 16 17 18 cc: All Parties of Record 19 20 21 22 23 24 25 26 27 28 56 I:\Chambers Brooks\CASES\1983\MEDINA1252\Order re Mot Compel 4.wpd 08cv1252 BAS(RBB)

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