Del Socorro Quintero Perez et al v. United States of America et al, No. 3:2013cv01417 - Document 133 (S.D. Cal. 2016)
Court Description: ORDER Granting In Part And Denying In Part Plaintiffs' Second Motion To Compel Production Of Documents (Re Dkt # 114 ). Signed by Magistrate Judge Bernard G. Skomal on 2/23/2016. (mdc)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Maria Del Socorro Quintero Perez, CY, a Minor, and BY, a Minor, 15 16 17 18 19 20 21 22 23 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ SECOND MOTION TO COMPEL PRODUCTION OF DOCUMENTS Plaintiffs, 13 14 Case No.: 13cv1417-WQH-BGS v. UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, UNITED STATES CUSTOMS AND BORDER PROTECTION OFFICE OF BORDER PATROL, JANET NAPOLITANO, THOMAS S. WINKOWSKI, DAVID AGUILAR, ALAN BERSIN, KEVIN K. McALLEENAN, MICHAEL J. FISHER, PAUL A. BEESON, RICHARD BARLOW, RODNEY S. SCOTT, CHAD MICHAEL NELSON, AND DORIAN DIAZ, AND DOES 1 - 50,, Defendants. 24 25 26 27 28 I. BACKGROUND On December 7, 2015 and December 8, 2015, counsel for Plaintiffs, Mr. McBride, and counsel for Defendants, Ms. Schweiner, jointly called the Court regarding a 1 13cv1417-WQH-BGS 1 discovery dispute in compliance with the Court’s Chambers’ Rules. (ECF No. 110 at 1- 2 2.) This dispute centers around the sufficiency of Defendant Fisher’s responses to 3 Plaintiffs’ Requests for Production of Documents (Set Two), which were propounded on 4 October 9, 2015. (ECF No. 114 at 2.) Defendant Fisher responded to these requests on 5 November 12, 2015, wherein he “object[ed] to the request[s] because, although 6 Defendant is sued individually, and not in his official capacity, the request[s] seek[] 7 documents not within his personal possession, custody or control.”1 (ECF No. 114-3 at 8 3.) Defendant Fisher also objected to the requests as “overbroad, burdensome and 9 oppressive.” (Id.) 10 On December 15, 2015, based on discussions with the parties, the Court instructed 11 Plaintiffs to file a motion to compel regarding the extent to which the requested 12 documents are in Defendant Fisher’s possession, custody or control. (ECF No. 110 at 2.) 13 Because Defendants maintained their objections to the relevance and scope of the 14 requested documents, the Court also instructed them, in their opposition, to identify “any 15 objections they maintain to each request for production, including but not limited to 16 relevance, scope and undue burden.” (Id. at 3.) 17 Plaintiffs filed their motion to compel on December 18, 2015. (ECF No. 114.) On 18 December 23, 2015, Plaintiffs filed a declaration by third party witness James Tomsheck, 19 in support of their motion to compel.2 (ECF No. 116.) Defendants filed their opposition 20 21 22 23 24 25 26 27 28 1 In response to RFP No. 8, Defendant Fisher only objects to the request on the basis that it is unintelligible. (ECF No. 114-3 at 7.) Defendant Fisher states that he will not produce any documents in response to this request. (Id.) This response to RFP No. 8 is not disputed by Plaintiffs in their motion to compel, and, therefore, will not be addressed in this order. 2 Plaintiffs filed a declaration by James Tomsheck five days after they filed their motion to compel. (ECF No. 116.) This declaration is untimely. Plaintiffs provided no explanation for the delay—only that “Plaintiffs are providing this now because it was signed and obtained today, on December 23, 2015, and is directly relevant to the issues on which the Court directed briefing.” (Id. at 2.) Mr. Tomsheck’s declaration reviews Plaintiffs’ requests for documents and provides his opinion on what types of government documents would be responsive to each request. Per Local Rule 7.1(e)(7), the Court is not obligated to consider untimely motions or responses. Therefore, the Court will not consider the contents of Mr. Tomsheck’s declaration in deciding this motion to compel. Notwithstanding, the Court finds that 2 13cv1417-WQH-BGS 1 on December 24, 2015. (ECF No. 118.) On December 29, 2015, Defendants filed a 2 supplemental brief in support of their opposition to Plaintiffs’ motion to compel.3 (ECF 3 No. 119.) Plaintiffs filed their reply on December 29, 2015. (ECF No. 121.) 4 II. ANALYSIS OF DEFENDANT FISHER’S POSSESSION, CUSTODY OR 5 CONTROL OVER THE REQUESTED DOCUMENTS 6 Plaintiffs move to compel the production of documents responsive to Requests for 7 Production of Documents (Set Two) propounded on Defendant Michael Fisher. (ECF 8 No. 114 at 2.) Defendant Fisher’s responses to these requests included an objection that, 9 “because, although Defendant is sued individually, and not in his official capacity, the 10 request seeks documents not within his personal possession, custody or control.” (See, 11 e.g., ECF No. 114-3 at 3.) 12 a. Parties’ Arguments 13 Plaintiffs and Defendants disagree about whether Defendant Fisher has 14 “possession, custody or control,” over the requested documents under Fed. R. Civ. P. 15 (“Federal Rule”) 34(a)(1). Defendants argue that Defendant Fisher does not have 16 possession, custody or control over the requested documents because he has retired from 17 his position as Chief of U.S. Customs and Border Protection (“CBP”). (ECF No. 118 at 18 2.) Moreover, according to Defendants, prior to Defendant Fisher’s retirement, he did 19 not have control over the requested documents because Department of Homeland 20 Security (“DHS”) regulation 6 C.F.R. § 5.44(b) requires current and former employees to 21 22 23 24 25 26 27 28 Mr. Tomsheck’s opinion regarding the existence and relevance of the requested documents is not required to resolve this discovery dispute. 3 Defendants’ supplemental brief was filed four days after its opposition to Plaintiffs’ motion to compel, and was therefore untimely. In this supplemental brief, Defendants bring to the Court’s attention a second statute which they argue supports their contention that Defendant Fisher does not have possession, custody or control over the requested documents. (ECF No. 119 at 2.) As Defendants acknowledge in their supplemental brief, “it makes no difference” which statute governs the analysis of whether Defendant Fisher has possession, custody or control over the requested documents. (Id.) The Court agrees. Per Local Rule 7.1(e)(7), the Court is not obligated to consider untimely motions or responses. Because Defendants’ supplemental motion is untimely, and the additional information provided “makes no difference” to the ultimate resolution of the issue, the Court will not consider the contents of Defendants’ supplemental motion in deciding this motion to compel. 3 13cv1417-WQH-BGS 1 obtain authorization from the Office of General Counsel prior to producing government 2 documents. (ECF No. 118 at 4.) Defendants argue that Defendant Fisher did not have 3 possession, custody or control over the requested documents because he did not have a 4 “unilateral right to produce” them. (Id.) 5 According to Plaintiffs, “even though Fisher is sued in his personal capacity, he 6 does not lose possession, custody, or control over documents he otherwise can obtain by 7 virtue of being head of Border Patrol.” (ECF No. 114 at 3.) Moreover, Plaintiffs argue 8 that retirement does not strip Defendant Fisher of his possession, custody or control under 9 Federal Rule 34 because he was Chief of Border Patrol when they propounded the 10 discovery in dispute. (Id. at 2.) Additionally, Plaintiffs contend that DHS regulation 6 11 C.F.R. § 5.44(b) has “no effect on Fisher’s possession, custody and control” because it 12 “do[es] not affect (sic) Fisher’s legal right to obtain documents.” (ECF No. 121 at 3-4.) 13 b. Relevant Law 14 Under Federal Rule 34, any party may serve on any other party a request to 15 produce documents which are in the “possession, custody or control” of the party upon 16 whom the request is served. Fed. R. Civ. P. 34(a)(1). “The phrase ‘possession, custody 17 or control’ is in the disjunctive and only one of the numerated requirements need be met.” 18 Soto v. City of Concord, 162 F.R.D. 603, 619 (S.D. Cal. July 17, 1995) citing Cumis Ins. 19 Society, Inc. v. South-Coast Bank, 610 F.Supp.193, 196 (N.D. Ind. 1985). Because 20 control is defined as the legal right to obtain documents upon demand (United States v. 21 Int’l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 22 1989) citing Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984)), actual possession 23 of the requested document is not required. 24 A party responding to a document request has an “affirmative duty to seek that 25 information reasonably available to him from his employees, agents, or others subject to 26 his control.” Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012) citing Meeks v. 27 Parsons, 2009 WL 3003718 *4 (E.D. Cal. Sept. 18, 2009). A party may be ordered to 28 produce a document in the possession of a non-party entity if that party has a legal right 4 13cv1417-WQH-BGS 1 to obtain the document or has control over the entity who is in possession of the 2 document. Soto, 162 F.R.D. at 619 citing Buckley v. Vidal, 50 F.R.D. 271, 274 (S.D.N.Y. 3 1970). The party seeking production of documents has the burden of proving the 4 opposing party has control under the meaning of Federal Rule 34. Int’l Union of 5 Petroleum & Indus. Workers, AFL-CIO, 870 F.2d at 1452 citing Norman v. Young, 422 6 F.2d 470, 472-73 (10th Cir. 1970). 7 c. Analysis i. Effect of Defendant Fisher’s Retirement 8 Defendants argue that because Defendant Fisher is retired from CBP, “he has no 9 10 legal right to obtain any documents and cannot be compelled to produce additional 11 documents.” (ECF No. 118 at 6.) Plaintiffs counter that Defendant Fisher’s retirement is 12 irrelevant because he held the position of Chief of Border Patrol at the time they served 13 him with these requests for production of documents. (ECF No. 114 at 2.) 14 Plaintiffs have the burden of proving that Defendant Fisher has control of the 15 requested documents under Federal Rule 34. Int’l Union of Petroleum & Indus. Workers, 16 AFL-CIO, 870 F.2d at 1452 citing Norman, 422 F.2d at 472-73 (10th Cir. 1970). In 17 support of their argument, Plaintiffs assert that Defendant Fisher held the position of 18 Chief of Border Patrol not only when he received the discovery requests on October 9, 19 2015, but up to thirty days after.4 Neither party establishes the employment status of 20 Defendant Fisher on November 12, 2015, when he responded to Plaintiffs’ discovery 21 requests.5 In that the date of Defendant Fisher’s retirement is not in the record, the Court 22 will analyze whether Defendant Fisher maintained possession, custody or control over the 23 24 25 26 27 28 4 Defendant Fisher signed a verification in his responses to interrogatories in which he acknowledges that he was the Chief of Border Patrol as of November 9, 2015. (ECF No. 114-4 at 10.) 5 If Defendant Fisher retired after he responded to Plaintiffs’ discovery requests, he could not have raised his retirement as a basis for his objection, because it had not yet happened. A failure to object to discovery requests within the time required constitutes a waiver of any objection. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.), cert. dismissed, 506 U.S. 948, 113 S.Ct. 454, 121 L.Ed.2d 325 (1992). To the extent Defendant Fisher retired after he responded to Plaintiffs’ discovery requests, any objection on the basis of his retirement has been waived. 5 13cv1417-WQH-BGS 1 requested documents if he had retired before he responded to Plaintiffs’ discovery on 2 November 12, 2015. 3 Defendants cite two cases for the proposition that a party does not have possession, 4 custody or control over documents from his or her former employer once he or she has 5 retired. (See ECF No. 118 at 4-5 citing Pupo-Leyvas v. Bezy, 2009 WL 1810337, at *1 6 (S.D. Ind. June 24, 2009) and Wayson v. Rundell, 2008 WL 819014, D. Alaska Mar. 24, 7 2008).) However, these cases are not applicable to the current analysis because in both 8 cases the parties were retired at the time they received the discovery requests. In this 9 case, it is undisputed that Defendant Fisher had not retired from his position as Chief of 10 Border Patrol when he received Plaintiffs’ discovery requests on October 9, 2015. 11 Defendants would have this Court measure possession, custody or control under 12 Federal Rule 34 from the date on which a party responds to discovery. Yet, Defendants 13 provide no authority for their position. Such a reading of Federal Rule 34 would allow a 14 party to evade his obligations in discovery as long as he retired before the deadline to 15 respond. This Court does not endorse an interpretation of possession, custody or control 16 that creates opportunities for a party to manipulate the discovery process. Accordingly, 17 the Court finds that possession, custody and control under Federal Rule 34 is measured at 18 the time the party receives a discovery request, not at the time the party decides to 19 respond. Because Defendant Fisher had not retired until after Plaintiffs propounded the 20 discovery requests, his objection regarding possession, custody or control is 21 OVERRULED. 22 ii. Effect of 6 C.F.R. § 5.44(b) 1. Parties’ Arguments 23 24 Defendants also argue that Defendant Fisher lacks possession, custody or control 25 of the requested documents because of regulations promulgated under 5 U.S.C. § 301,6 26 27 28 The head of an executive department may prescribe regulations governing “the custody, use, and preservation of its records, papers, and property.” 5 U.S.C.A. § 301. These regulations are referred to as Touhy regulations. See U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1951). 6 6 13cv1417-WQH-BGS 1 which provide that current or former employees of DHS may not produce government 2 documents in litigation unless given permission by the Office of General Counsel.7 3 Defendants assert that under this regulation, Defendant Fisher does not have a “unilateral 4 right to produce Border Patrol and CBP documents[,]” and thus, cannot be deemed to 5 have possession, custody or control of any CBP documents. (ECF No. 118 at 4.) 6 Plaintiffs contend that DHS regulation 6 C.F.R. § 5.44(b) has “no effect on Fisher’s 7 possession, custody and control” because it “do[es] not affect (sic) Fisher’s legal right to 8 obtain documents.” (ECF No. 121 at 3-4.) 9 2. Discussion 10 In support of their argument, Defendants cite Johnson v. Santini for the proposition 11 that a Bivens defendant such as Fisher cannot be compelled to produce agency documents 12 over which regulations deprive them of control. 2015 WL 1806328 at *6 (D. Colo. April 13 17, 2015). In Johnson, the defendants represented that, pursuant to 28 C.F.R. § 16.22,8 14 they could not disclose information “relating to or based upon material contained in the 15 files of the [Federal Bureau of Prisons],” without prior authorization. Johnson, 2015 WL 16 1806328, at *5. The Johnson Court concluded that, because neither the Federal Bureau 17 of Prisons, nor the United States were parties to the litigation, defendants could not be 18 required to release information without authorization from their superiors. Id. at *6. The 19 holding in Johnson is not helpful to the current analysis because it does not address 20 whether a federal employee has a duty to ask for permission to produce government 21 22 7 23 24 25 26 27 28 6 C.F.R. § 5.44(b) reads: No employee, or former employee, shall, in response to a demand or request, including in connection with any litigation, produce any document or any material acquired as part of the performance of that employee’s duties or by virtue of that employee’s official status, unless authorized to do so by the Office of the General Counsel or the delegates thereof, as appropriate. 8 28 C.F.R. § 16.22 states in pertinent part: “In any federal or state case or matter in which the United States is not a party, no employee or former employee of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person’s official duties or because of that person’s official status without prior approval of the proper Department official in accordance with §§ 16.24 and 16.25 of this part. 28 C.F.R. § 16.22(a) 7 13cv1417-WQH-BGS 1 documents, before he can be said to lack possession, custody or control. 2 When faced with comparable facts, however, courts in this circuit have interpreted 3 possession, custody and control under Federal Rule 34 broadly. Mitchell v. Adams, 2009 4 WL 674348 (E.D. Cal. Mar. 6, 2009) (“While the defendant warden in his personal or 5 individual capacity may not have custody of the documents at issue, because ‘control’ is 6 determined by authority, he has constructive possession, custody or control.”); Cooper v. 7 Sely, 2013 WL 146428 (E.D. Cal. Jan. 14, 2013)(citing Mitchell, 2009 WL 674348 for 8 proposition that, because the defendant can obtain the requested document from non- 9 party California Department of Corrections and Rehabilitation, he has constructive 10 control and the documents must be produced.); Ochotorena v. Adams, 2010 WL 1035774 11 (E.D. Cal. Mar. 19, 2010)(Because the defendants were employed by non-party 12 California Department of Corrections and Rehabilitation, and represented by the Attorney 13 General, they have constructive control and the documents must be produced.) 14 Defendants argument that 6 C.F.R. § 5.44(b) automatically strips Defendant Fisher 15 of possession, custody or control over the requested documents is unsupported. While 16 the Court acknowledges that the DHS regulation creates a procedure by which 17 government documents must be requested before they are produced in litigation, the 18 regulation does not prevent Defendant Fisher from making such a request. Accordingly, 19 the Court finds that Defendant Fisher had a duty to make a request of the Office of 20 General Counsel pursuant to DHS regulation 6 C.F.R. § 5.44(b) before stating that he 21 lacked possession, custody or control over the requested documents. See Herbst v. Able, 22 63 F.R.D. 135, 138 (S.D.N.Y. 1972) (requiring company to contact former employee to 23 obtain SEC testimony in response to discovery request in litigation where company is a 24 party); Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., 233 F.R.D. 338, 341-42 25 (S.D.N.Y. 2005)(finding that company must exhaust all practical means at its disposal to 26 obtain a personal journal entry from a former employee in response to request for 27 production of documents to which the journal was responsive, including contacting that 28 former employee and asking for cooperation). 8 13cv1417-WQH-BGS Defendant Fisher has not offered evidence that he made a request of CBP’s Office 1 2 of General Counsel to produce responsive documents, or that CBP’s Office of General 3 Counsel refused his request. Notably, Defendant Fisher has produced documents in this 4 litigation (see e.g., ECF No. 99-3 and ECF No. 114-3 at 9), with the consent of CBP. 5 (ECF No. 118 at 5.) Defendant Fisher states that his objections to Plaintiffs’ requests are 6 his attempt to “balance his discovery obligations with the DHS regulations.” (Id.) Any 7 such balancing is the responsibility of the court, not Defendant Fisher. 8 9 The Court finds that 6 C.F.R. § 5.44(b) does not automatically preclude Defendant Fisher from having possession, custody or control over requested documents. Instead, 10 Defendant Fisher was required to request permission from the Office of General Counsel 11 before he could determine whether or not he had possession, custody or control. 12 Notwithstanding, requiring Defendant Fisher to seek permission from the Office of 13 General Counsel to produce the requested documents at this juncture would only create 14 more delay.9 Therefore, in the interest of efficiency, the Court will allow Plaintiffs to 15 subpoena the relevant government agencies, subject to this Court’s additional rulings 16 explained below.10 (See Fed. R. Civ. P. 1 (stating that the Federal Rules should be 17 construed to “secure the just, speedy, and inexpensive determination” of the action.)) 18 III. ANALYSIS OF DEFENDANTS’ ADDITIONAL OBJECTIONS a. Parties’ Arguments 19 20 Defendants argue that, even if Defendant Fisher had possession, custody or control 21 over the documents requested by Plaintiffs, the requests are still objectionable on the 22 basis that they are overbroad, burdensome and oppressive. (ECF No. 118 at 6.) 23 24 25 26 27 28 9 The Office of General Counsel applies the same factors in considering whether or not to comply with a subpoena under Federal Rule 45, or a request for documents under Federal Rule 34. (See 5 C.F.R. § 5.48(a).) 10 The Court finds that Plaintiffs’ Request for Production of Documents (Set Two) seeks materials relevant to the claims and defenses in this lawsuit. Given the relevance, the Court will extend the fact discovery deadline to allow Plaintiffs to serve a subpoena duces tecum on the appropriate government agencies. 9 13cv1417-WQH-BGS 1 According to Defendants, any information regarding an alleged rocking policy is only 2 relevant to Plaintiffs’ claims if it shows what Defendants Nelson and Diaz knew of 3 Border Patrol’s use of force policy in response to rock throwing. (Id.) Plaintiffs respond that their requests are relevant to establishing “(1) a consistent 4 5 pattern of border patrol agents’ using deadly force whenever a rock was thrown, despite 6 agents being able to take cover or resort to other non-deadly means and/or (2) Fisher’s 7 knowledge, support, and/or approval of Border Patrol practices, procedures, and policies 8 that encouraged Border Patrol agents to use lethal force in response to rock throwing.” 9 (ECF No. 114 at 5.) The Court will address Defendants’ objections to each request in 10 turn.11 11 b. Relevant Law 12 i. Scope of Discovery 13 The recently revised Federal Rules provide: “Parties may obtain discovery regarding any nonprivileged matter that is 14 15 relevant to any party’s claim or defense and proportional to the needs of the case, 16 considering the importance of the issues at stake in the action, the amount in 17 controversy, the parties’ relative access to relevant information, the parties’ 18 resources, the importance of the discovery in resolving the issues, and whether the 19 burden or expense of the proposed discovery outweighs its likely benefit.” 20 21 (Fed. R. Civ. P. 26(b)(1).) The party seeking to compel discovery has the burden of 22 establishing that its request satisfies the relevancy requirements of Federal Rule 26(b)(1). 23 Soto, 162 F.R.D. at 610. In turn, the party opposing discovery has the burden to show 24 that discovery should not be allowed, and has the burden of clarifying, explaining, and 25 supporting its objections. DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) 26 27 28 Defendants’ response to RFP No. 8 is not disputed in Plaintiffs’ motion to compel, and therefore, will not be addressed by the Court. 11 10 13cv1417-WQH-BGS 1 citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.1975). The opposing 2 party may satisfy their burden by demonstrating how the discovery request is irrelevant, 3 overly broad, burdensome, or oppressive. Khalilpour v. CELLCO P’ship, 2010 WL 4 1267749, at *3 (N.D. Cal. Apr.1, 2010); see also Oppenheimer Fund, Inc. v. Sanders, 437 5 U.S. 340, 353 fn. 17, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). 6 Federal Rule 26(b)(2)(C) also requires the court, on motion or on its own, to limit 7 the frequency or extent of discovery otherwise allowed by the rules if it determines that 8 (1) “the discovery sought is unreasonably cumulative or duplicative, or can be obtained 9 from some other source that is more convenient, less burdensome, or less expensive;” (2) 10 the party seeking discovery has had ample opportunity to obtain the information by 11 discovery in the action;” or (3) “the proposed discovery is outside the scope permitted by 12 Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C)(i)-26(b)(2)(C)(iii). The Court must also limit 13 discovery when “the burden or expense of the proposed discovery outweighs its likely 14 benefit.” Fed. R. Civ. P. 26(b)(1). 15 16 ii. Supervisory Liability An analysis of the relevancy of Plaintiffs’ requests first requires an understanding 17 of the claims against Defendant Fisher which revolve around his conduct as a supervisor. 18 In the Ninth Circuit, a supervisor faces liability under the Fourth Amendment only where 19 “it would be clear to a reasonable [supervisor] that his conduct was unlawful in the 20 situation he confronted.” Chavez v. United States, 683 F.3d 1102, 1110 (9th Cir. 2012) 21 citing Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), 22 overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 23 172 L.Ed.2d 565 (2009). To meet this standard, a plaintiff must allege, at a minimum, a 24 “factual basis for imputing . . . knowledge” of an unconstitutional practice undertaken by 25 subordinates, coupled with culpable action or inaction. Chavez, 683 F.3d at 1111. 26 Moreover, Defendant Fisher can be held liable if it is shown that he was “on actual or 27 constructive notice that a particular omission in [CBP’s] training program cause[d] 28 [subordinates] to violate citizens’ constitutional rights.” Connick v. Thompson, 131 S. Ct. 11 13cv1417-WQH-BGS 1 1350, 1359 (2011).12 With this in mind, the Court will now analyze Defendants’ 2 objections to Plaintiffs’ requests for production. 3 c. Analysis 4 In their opposition to Plaintiffs’ motion to compel, Defendants limit their 5 objections to Plaintiffs’ requests as overbroad, burdensome and oppressive. (ECF No. 6 118 at 6.) The Court will likewise limit its analysis to those three objections. Each 7 disputed request for production is addressed in turn. 8 9 RFP No. 1: All BP Daily Briefs, IA Daily Briefs, and Daily Brief Notes for the seven 10 days following each of the 43 rocking cases you [Defendant Fisher] identified in your 11 Directive13 that involved an agent using deadly force. 12 Court’s Response: Plaintiffs’ posit that an alleged rocking policy in existence at 13 the time of the June 21, 2011 incident led to the alleged constitutional violations by 14 Defendants. The Court finds that the requested documents are relevant to the 15 claims against Defendant Fisher and proportional to the needs of the case because 16 the contents of the requested documents could support the existence of a de facto 17 rocking policy. Accordingly, the Court OVERRULES Defendants’ objections to 18 this request as overbroad, unduly burdensome and oppressive. 19 RFP No. 2: All documents, including but not limited to, video recordings, minutes, 20 transcripts, notes, and presentations, referring or relating to any Leadership 21 22 23 24 25 26 27 28 12 Although Connick analyzed a claim against a governmental official in his official capacity, Connick is equally applicable to claims against government supervisors in their individual capacity. See Flores v. Cnty. of L.A., 758 F.3d 1154, 1158-59 (9th Cir. 2014) (“As to an official in his individual capacity, the same standard applies—[a plaintiff] must show that [a supervisor defendant] was deliberately indifferent to the need to train subordinates, and the lack of training actually caused the constitutional harm or deprivation of rights.”). 13 Plaintiffs’ instructions for this document request define “Directive” as the March 2014 Memorandum authored by [Defendant Fisher] to all personnel, as also described in Plaintiffs’ Complaint.” (ECF No. 114-2 at 2.) 12 13cv1417-WQH-BGS 1 Conference.14 2 Court’s Response: Although the requested information regarding the June 2010, 3 January 2011, and June 2011 conferences could show whether or not a rocking 4 policy existed and the extent to which Defendant Fisher had knowledge of this 5 alleged policy, the Court finds that this request is not proportional to the issues in 6 this case. The Request is not limited to issues of alleged rockings, or the use of 7 force in response to the throwing of rocks along the U.S./Mexico border. 8 Accordingly, Defendants’ objection that this request is overbroad, unduly 9 burdensome and oppressive is SUSTAINED. Plaintiffs can request: All 10 documents, including but not limited to, video recordings, minutes, transcripts, 11 notes, and presentations, referring or relating to any discussions or presentations 12 that took place at a Leadership Conference regarding the use of force in response 13 to the throwing of rocks along the U.S./Mexico border. 14 RFP No. 3: All documents referring or relating to any meetings that you [Defendant 15 Fisher] attended in 2013 relating to PERF or the PERF Report. 16 Court’s Response: The PERF report was the result of research and analysis of the 17 use of force employed by the Border Patrol and resulted in a series of 18 recommended revisions to the use of force policy in place at the time of the 2011 19 incident. The Court finds that the requested documents are relevant because they 20 could show what information was discussed in response to the PERF report. 21 However, the request is not proportional to the needs of the case. Accordingly, 22 Defendants’ objection that this request is overbroad, unduly burdensome and 23 oppressive is SUSTAINED. Plaintiffs can request: Any documents referring or 24 relating to any discussions of the use of force policy or practice in response to rock 25 26 Plaintiffs’ instructions for this document request define “Leadership Conference” as “any of the three conferences attended by [Defendant Fisher] that occurred on or around (1) June 2010 at or near Washington Dulles International Airport; (2) January 13-14, 2011 at or near Crown Plaza National Airport Crystal City, VA; and (3) June 13-16, 2011 in Gettysburg, PA.” (ECF No. 114-2 at 3.) 14 27 28 13 13cv1417-WQH-BGS 1 throwing along the U.S./Mexico border that took place during any meetings 2 attended in 2013 discussing the PERF report. 3 RFP No. 4: All documents, including but not limited to, video recordings, minutes, 4 transcripts, notes, and presentations, referring or relating to the Harper’s Ferry Meeting.15 5 Court’s Response: Plaintiffs’ state in their motion to compel that Request No. 4 6 “relates to specific meetings and/or reports regarding a review or implementation 7 of border patrol use of force tactics and techniques in response to rock throwing.” 8 This request seeks all documents from the Harper’s Ferry Meeting, regardless of 9 whether the documents relate the throwing of rocks at agents or the use of force by 10 border patrol agents in response to rock throwing. Accordingly, the Court 11 SUSTAINS Defendants’ objections to this request as overbroad, unduly 12 burdensome and oppressive. Plaintiffs can request: All documents, including but 13 not limited to, video recordings, minutes, transcripts, notes, and presentations, 14 referring or relating to any discussions of the use of force policy or practice in 15 response to rock throwing along the U.S./Mexico border that took place at the 16 Harper’s Ferry Meeting. 17 RFP No. 5: The original and all updated versions through present day of the document 18 entitled “Review of CBP Use of Deadly Force.” 19 Court’s Response: Defendants state in their response that they were unable to 20 identify any document called “Review of CBP Use of Deadly Force.” (ECF No. 21 114-3 at 5.) Instead, Defendants believe that Plaintiffs intended to identify the Use 22 of Force Review Report, which was listed in their privilege log. (Id.) The Court 23 has already ordered the production of that document, subject to a protective order. 24 (See ECF No. 130.) The Court has no reason to believe that any updated versions 25 of this document exist, because no such revisions were listed in Defendants’ 26 27 28 Plaintiffs’ instructions for this document request define Harper’s Ferry Meeting as “the meeting [Defendant Fisher] attended in late 2012 at or near CBP’s Advanced Training Center near or in Harpers Ferry, West Virginia.” (ECF No. 114-2 at 2.) 15 14 13cv1417-WQH-BGS 1 privilege log. However, to the extent that updated versions exist or become 2 available, the Court reminds Defendants of their duty to supplement discovery 3 responses. See Fed. R. Civ. P. 26 (a party “must supplement or correct its 4 disclosure or response . . . in a timely manner if the party learns that in some 5 material respect the disclosure or response is incomplete or incorrect, and if the 6 additional or corrective information has not otherwise been made known to the 7 other parties during the discovery process or in writing.”) Accordingly, the Court 8 OVERRULES Defendants’ objection that the request is overbroad, unduly 9 burdensome and oppressive. 10 RFP No. 6: All documents relating to James F. Tomsheck’s16 filings with CBP’s Office 11 of Special Counsel in either November 2011 or June 2014. 12 Court’s Response: This request seeks relevant information to the extent Mr. 13 Tomsheck’s filings with CBP’s Office of Special Counsel related to the use of 14 force in response to the throwing of rocks along the U.S./Mexico border. 15 However, as currently written, this request is not proportional to the issues in this 16 case. Responsive documents could include filings with CBP’s Office of Special 17 Counsel regarding any grievances or issues within CBP, beyond the alleged 18 rocking policy. Accordingly, the Court SUSTAINS Defendants’ objection to this 19 request as overbroad, unduly burdensome and oppressive. Plaintiffs can request: 20 All documents relating to James F. Tomsheck’s November 2011 or June 2014 21 filings with CBP’s Office of Special Counsel regarding the use of force by border 22 patrol agents in response to the throwing of rocks along the U.S./Mexico border. 23 RFP No. 7: All documents referring or relating to any statements made by you 24 [Defendant Fisher] concerning the alleged throwing of rocks at border patrol agents. Court’s Response: Plaintiffs’ posit that a policy existed at the time of the 2011 25 26 27 28 According to Plaintiffs’ complaint, James Tomsheck is the former Assistant Commissioner for Internal Affairs at CBP and recently acknowledged the existence and unlawfulness of the rocking policy. (ECF No. 61 at 37 citing a news article published on revealnews.org.) 16 15 13cv1417-WQH-BGS 1 incident at issue in this case which led to the alleged constitutional violations by 2 Defendants. However, this request is not proportional to the issues in this case 3 because it does not limit the responsive documents to those involving the use of 4 force by Border Patrol agents in response to the throwing of rocks. Accordingly, 5 the Court SUSTAINS Defendants’ objection to this request as overbroad, unduly 6 burdensome and oppressive. Plaintiffs can request: All documents referring or 7 relating to any statements made by you [Defendant Fisher] concerning the response 8 of Border Patrol agents to the alleged throwing of rocks by individuals along the 9 U.S./Mexico border. 10 RFP No. 9: All of the files that PERF reviewed in connection with the issuance of the 11 PERF Report. 12 Court’s Response: Defendant Fisher’s supervisory liability hinges on his 13 knowledge of, and responsibility for, a de facto “rocking policy” by which agents 14 respond with deadly force to the throwing of rocks by Mexican nationals, 15 regardless of whether other, non-lethal means are available to avert any such risk. 16 (See ECF No. 61 at 1-2.) Plaintiffs’ claims require more than a showing that a 17 rocking policy existed—Plaintiffs must show Defendant Fisher’s knowledge of, or 18 perpetuation of, a rocking policy. Therefore, the Court SUSTAINS Defendants’ 19 objection to this request as overbroad, unduly burdensome and oppressive. 20 Plaintiffs can request: All files that Defendant Fisher created or received and that 21 were also reviewed by PERF in connection with the issuance of the PERF Report 22 and involve the use of force in response to the throwing of rocks along the 23 U.S./Mexico border. 24 RFP No. 10: All documents referring or relating to IA’s suggested revisions to the 25 CBP’s Use of Force Policy. 26 Court’s Response: Defendant Fisher’s supervisory liability hinges on his 27 knowledge of, and responsibility for, a de facto “rocking policy” by which agents 28 respond with deadly force to the throwing of rocks by Mexican nationals, 16 13cv1417-WQH-BGS 1 regardless of whether other, non-lethal means are available to avert any such risk. 2 (See ECF No. 61 at 1-2; see also Chavez, 683 F.3d at 1110 overruled in part on 3 other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 4 565 (2009).) Plaintiffs’ must show more than the mere existence of a rocking 5 policy. Therefore, the Court SUSTAINS Defendants’ objection to this request as 6 overbroad, unduly burdensome and oppressive. Plaintiffs can request: All 7 documents referring or relating to IA’s suggested revisions to the CBP’s Use of 8 Force Policy regarding the use of force in response to the throwing of rocks along 9 the U.S./Mexico border, that Defendant Fisher created, received or reviewed. 10 IV. 11 CONCLUSION 1. The Court OVERRULES Defendants’ objection on the basis of Defendant 12 Fisher’s retirement. The Court further finds that Defendant Fisher had a duty to 13 request permission to produce the requested documents from the Office of General 14 Counsel. However, in the interest of efficiency, the Court declines to order him to 15 make such a request at this time. Instead, Plaintiffs are granted an extension of the 16 fact discovery deadline for the limited purpose of serving a subpoena duces tecum 17 on the appropriate government agency, subject to the Court’s additional rulings 18 summarized below. Plaintiffs must serve the subpoena within one week of this 19 order. 20 21 22 2. Defendants’ objections to RFP No. 1 as overbroad, unduly burdensome and oppressive are OVERRULED. 3. Defendants’ objections to RFP No. 2 as overbroad, unduly burdensome and 23 oppressive are SUSTAINED. Instead, Plaintiffs can request: All documents, 24 including but not limited to, video recordings, minutes, transcripts, notes, and 25 presentations, referring or relating to any discussions or presentations that took 26 place at a Leadership Conference regarding the use of force in response to the 27 throwing of rocks along the U.S./Mexico border. 28 4. Defendants’ objections to RFP No. 3 as overbroad, unduly burdensome and 17 13cv1417-WQH-BGS 1 oppressive are SUSTAINED. Instead, Plaintiffs can request: Any documents 2 referring or relating to any discussions of the use of force policy or practice in 3 response to rock throwing along the U.S./Mexico border that took place during any 4 meetings attended in 2013 discussing the PERF report. 5 5. Defendants’ objections to RFP No. 4 as overbroad, unduly burdensome and 6 oppressive are SUSTAINED. Instead, Plaintiffs can request: All documents, 7 including but not limited to, video recordings, minutes, transcripts, notes, and 8 presentations, referring or relating to any discussions of use of force policy or 9 practice in response to rock throwing along the U.S./Mexico border that took place 10 11 12 13 at the Harper’s Ferry Meeting. 6. Defendants’ objections to RFP No. 5 as overbroad, unduly burdensome and oppressive are OVERRULED. 7. Defendants’ objections RFP No. 6 as overbroad, unduly burdensome and 14 oppressive are SUSTAINED. Instead, Plaintiffs can request: All documents 15 relating to James F. Tomsheck’s November 2011 or June 2014 filings with CBP’s 16 Office of Special Counsel regarding the use of force by border patrol agents in 17 response to the throwing of rocks along the U.S./Mexico border. 18 8. Defendants’ objections to RFP No. 7 as overbroad, unduly burdensome and 19 oppressive are SUSTAINED. Instead, Plaintiffs can request: All documents 20 referring or relating to any statements made by you [Defendant Fisher] concerning 21 the response of Border Patrol agents to the alleged throwing of rocks by 22 individuals along the U.S./Mexico border. 23 9. Defendants’ objections to RFP No. 9 as overbroad, unduly burdensome and 24 oppressive are SUSTAINED. Instead, Plaintiffs can request: All files that 25 Defendant Fisher created or received and that were also reviewed by PERF in 26 connection with the issuance of the PERF Report and involve the use of force in 27 response to the throwing of rocks along the U.S./Mexico border. 28 10.Defendants’ objections to RFP No. 10 as overbroad, unduly burdensome and 18 13cv1417-WQH-BGS 1 oppressive are SUSTAINED. Instead, Plaintiffs can request: All documents 2 referring or relating to IA’s suggested revisions to the CBP’s Use of Force Policy 3 regarding the use of force in response to the throwing of rocks along the 4 U.S./Mexico border, that Defendant Fisher created, received or reviewed. 5 6 7 IT IS SO ORDERED. Dated: February 23, 2016 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 13cv1417-WQH-BGS
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