Myles v. County of San Diego et al, No. 3:2015cv01985 - Document 35 (S.D. Cal. 2016)
Court Description: ORDER Denying Plaintiff's 31 Motion to Take Discovery After the Cutoff and to Compel Depositions of San Diego County Sheriff William Gore and San Diego County Sheriff's Department Chief Legal Advisor Robert Faigin and Production of Additional Documents. Signed by Magistrate Judge Barbara Lynn Major on 8/15/2016. (knb)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICKAIL MYLES, 12 Case No.: 15cv1985-BEN (BLM) Plaintiff, 16 ORDER DENYING PLAINTIFF’S MOTION TO TAKE DISCOVERY AFTER THE CUTOFF AND TO COMPEL DEPOSITIONS OF SAN DIEGO COUNTY SHERIFF WILLIAM GORE AND SAN DIEGO COUNTY SHERIFF’S DEPARTMENT CHIEF LEGAL ADVISOR ROBERT FAIGIN AND PRODUCTION OF ADDITIONAL DOCUMENTS 17 [ECF No. 31] 13 v. 14 COUNTY OF SAN DIEGO, et al., 15 Defendants. 18 19 Currently before the Court is Plaintiff’s July 19, 2016 “Motion to Take Discovery After the 20 Cutoff and to Compel Depositions of San Diego County Sheriff William Gore and San Diego 21 County Sheriff’s Department Chief Legal Advisor Robert Faigin and Production of Additional 22 Documents” [ECF No. 31 (“MTC”)], Defendants’ August 2, 2016 opposition to the motion [ECF 1 15cv1985-BEN (BLM) 1 No. 33 (“Oppo.”)], and Plaintiff’s August 5, 2016 reply [ECF No. 34 (“Reply”)]. 2 considered the briefing submitted by the parties and having reviewed all of the supporting 3 exhibits, the Court DENIES Plaintiff’s motion for the reasons set forth below. 4 Having FACTUAL AND PROCEDURAL BACKGROUND 5 On September 4, 2015, Plaintiff Mickail Myles filed a complaint against the County of San 6 Diego and Deputy Jeremy Banks, employed by the San Diego County Sheriff’s Department, 7 alleging assault, battery, false arrest, false imprisonment, negligence, intentional infliction of 8 emotional distress, violation of California Civil Code §§ 51.7 & 52.1, and violation of civil rights 9 pursuant to 42 U.S.C. §§ 1983, 1985(2)-(3), 1986. ECF No. 1. Plaintiff alleges that he was 10 “unlawfully profiled, stopped, detained, hand-cuffed, assaulted, battered, beaten, bitten, 11 berated, defamed, falsely arrested, falsely imprisoned, cited and threatened to be charged with 12 crimes he did not commit, by armed, uniformed, on-duty law enforcement officers, solely 13 because he was a black man driving his own car to his family home in a predominately white 14 neighborhood in Fallbrook, California.” 15 September 5, 2014, he was driving his younger brother home from a local indoor roller-rink and, 16 about a block from his home, noticed a police car with activated emergency lights behind his 17 car. Id. at 8-9. Plaintiff claims that he pulled his car over to the curb, waited for an officer to 18 approach his driver’s side window with instructions, and when no officer approached, rolled 19 down his driver’s side window. Id. at 9. Plaintiff states that he then heard a “cacophony of 20 voices coming from the area behind his vehicle screaming at him and making numerous 21 confusing and inconsistent demands,” as well as “barking, growling and snarling” from a police 22 dog. Id. Plaintiff maintains that he attempted to comply with the officers’ commands by opening Id. at 2. Specifically, Plaintiff alleges that on 2 15cv1985-BEN (BLM) 1 his driver’s side door, exiting the car, raising his hands above his head, facing away, and walking 2 backward toward the officers, before he was hand-cuffed. Id. Plaintiff asserts that although he 3 was “hand-cuffed, unarmed, passive and completely non-threatening toward the officers,” the 4 officers “beat[] him about the head with a club” and commanded their dog to attack him. Id. 5 Plaintiff asserts, inter alia, that Defendants were negligent in their hiring and screening practices, 6 failed to supervise, investigate or discipline for wrongdoing, engaged in “cover-up” of police 7 misconduct, and adhered to a “code of silence.” Id. at 4-8. Plaintiff further claims that prior to 8 the incident at issue, Defendants had “engaged in the same or similar conduct [as alleged in 9 Plaintiff’s complaint] with respect to other minority members of the general public.” Id. at 12. 10 On May 4, 2016, the Court granted in part and denied in part Plaintiff’s motion to compel 11 the production of police records held by Defendant County of San Diego. ECF No. 24. The 12 Court ordered the production of various categories of documents concerning Defendant Deputy 13 Banks and four non-party deputies who were present at the scene during Plaintiff’s incident. 14 See id. Following Defendants’ production of responsive documents, Plaintiff brought the instant 15 motion seeking to expand the scope of discovery and to extend the discovery cutoff, as well as 16 to depose Sheriff Gore and Sheriff Department’s Chief Legal Advisor Faigin. See MTC. 17 18 19 20 21 22 LEGAL STANDARDS The scope of discovery under the Federal Rules of Civil Procedure is defined as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 3 15cv1985-BEN (BLM) 1 Fed. R. Civ. P. 26(b)(1). 2 District courts have broad discretion to determine relevancy for discovery purposes. See 3 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). District courts also have broad discretion 4 to limit discovery to prevent its abuse. See Fed. R. Civ. P. 26(b)(2) (instructing that courts must 5 limit discovery where the party seeking the discovery “has had ample opportunity to obtain the 6 information by discovery in the action” or where the proposed discovery is “unreasonably 7 cumulative or duplicative,” “obtain[able] from some other source that is more convenient, less 8 burdensome, or less expensive,” or where it “is outside the scope permitted by Rule 26(b)(1)”). 9 A party may request the production of any document within the scope of Rule 26(b). 10 Fed. R. Civ. P. 34(a). “For each item or category, the response must either state that inspection 11 and related activities will be permitted as requested or state with specificity the grounds for 12 objecting to the request, including the reasons.” Id. at 34(b)(2)(B). The responding party is 13 responsible for all items in “the responding party’s possession, custody, or control.” Id. at 14 34(a)(1). Actual possession, custody or control is not required. Rather, “[a] party may be 15 ordered to produce a document in the possession of a non-party entity if that party has a legal 16 right to obtain the document or has control over the entity who is in possession of the 17 document.” Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995). 18 Pursuant to Federal Rule of Civil Procedure 37, “a party may move for an order compelling 19 disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). The party seeking to compel discovery has 20 the burden of establishing that its request satisfies the relevance requirement of Rule 26. Soto, 21 162 F.R.D. at 610. Thereafter, the party opposing discovery has the burden of showing that the 22 discovery should be prohibited, and the burden of “clarifying, explaining, and supporting its 4 15cv1985-BEN (BLM) 1 objections.” DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Blankenship 2 v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). 3 DISCUSSION 4 I. Plaintiff’s Motion to Compel the Deposition of Sheriff Gore 5 Plaintiff seeks to depose Sheriff Gore and claims that “Sheriff Gore’s public appearance 6 in the media condoning [D]eputy Banks’ conduct in the severe use of force against a juvenile, 7 without the benefit of any internal affairs [“IA”] investigation, is consistent with the policy, 8 custom and practice in the Sheriff’s Department of covering-up, hiding, excusing, ratifying and, 9 in fact, commending and encouraging the systematic use of excessive force and other abusive 10 police tactics . . . .” MTC, Declaration of Joseph G. Dicks (“Dicks Decl.”) at 5-6; MTC at 18-19. 11 Plaintiff argues that Sheriff Gore’s deposition is relevant because it will substantiate his Monell 12 claim1 against the San Diego County Sheriff’s Department and his pending motion to amend to 13 add Sheriff Gore as a defendant. Dicks Decl. at 6; MTC at 19-20 (citing Chew v. City of Los 14 Angeles, 27 F.3d 1432 (9th Cir. 1994)). 15 Defendants oppose Plaintiff’s motion arguing that Plaintiff’s request to depose Sheriff 16 Gore is premature because Sheriff Gore is not a party in this action, and Plaintiff’s motion to add 17 Sheriff Gore as a defendant has not yet been adjudicated. Oppo. at 14-15. Defendants further 18 claim that Plaintiff already has deposed “persons most qualified in the areas of Internal Affairs 19 20 A municipality can be sued for constitutional violations under 42 U.S.C. § 1983 if the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). 1 21 22 5 15cv1985-BEN (BLM) 1 investigations/policies, claims/command investigations and policies, use of force policies, use of 2 K-9s (policies and training) and personnel files,” “all officers on scene in the subject incident, 3 including Deputy Banks,” and has obtained all “IA investigations involving the five on-scene 4 officers and Deputy Banks’ personnel file.” Id. at 14. Defendants also argue that the June 13, 5 2015 incident regarding which Sheriff Gore held a press conference is unrelated because it 6 occurred nine months after the incident at issue in this case and involved different 7 circumstances.2 Id. at 15. 8 Plaintiff replies that after he obtained “the evidence that Gore was ratifying, encouraging, 9 condoning and commending his deputies’ conduct without the benefit of a single internal affairs 10 investigation,” he had proof that Sheriff Gore was a “moving force behind the policies, 11 procedures and practices,” thereby justifying the deposition. Reply at 7 (emphasis omitted). 12 Plaintiff objects to any restrictions on the scope of the requested deposition arguing that they 13 would prevent questioning about Sheriff Gore’s understanding and implementation of policies 14 and procedures at issue in this case. Id. at 8. Plaintiff asserts that in light of his Monell claim 15 and his “potential” claim against Sheriff Gore individually, he is entitled to discover evidence of 16 a supervisor’s participation that “may involve the setting in motion of acts which cause others 17 to inflict constitutional injury.” Id. (citation omitted). 18 “Courts have often observed that discovery seeking the deposition of high-level 19 executives (so-called ‘apex’ depositions) creates ‘a tremendous potential for abuse or 20 21 Defendants explain that during the June 13, 2015 incident Deputy Banks was bitten by a juvenile resisting detention, whereas in this case, Plaintiff was bitten by Deputy Banks’ K-9. Id. at 15. 2 22 6 15cv1985-BEN (BLM) 1 harassment’ that may require the court’s intervention for the witness’s protection under 2 Rule 26(c).” K.C.R. v. Cty. of Los Angeles, 2014 WL 3434257, at *3 (C.D. Cal. July 11, 2014) 3 (quoting Apple, Inc. v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012)). In 4 order to avoid an apex deposition, the individual must first show that he or she is sufficiently 5 high-ranking to merit protection. If the witness is able to do so, the party seeking to depose 6 the official must “show (1) the official’s testimony is necessary to obtain relevant information 7 that is not available from another source; (2) the official has first-hand information that cannot 8 reasonably be obtained from other sources; (3) the testimony is essential to the case at hand; 9 (4) the deposition would not significantly interfere with the ability of the official to perform his 10 government duties; and (5) the evidence sought is not available through less burdensome means 11 or alternative sources.” Thomas v. Cate, 2010 WL 1343789, at *1 (E.D. Cal. Apr. 5, 2010). The 12 apex doctrine does not protect high-ranking officials from all depositions. K.C.R., 2014 WL 13 3434257, at *3. 14 (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue 15 in the case and (2) whether the party seeking the deposition has exhausted other less intrusive 16 discovery methods.” Id. (citing Apple Inc., 282 F.R.D. at 263). If, however, the official is 17 “removed from the daily subjects of the litigation, [and] has no unique personal knowledge of 18 the facts at issue, a deposition of the official is improper.” Id. at *4 (quoting Celerity, Inc. v. 19 Ultra Clean Holding, Inc., 2007 WL 205067, at *3 (N.D. Cal. Jan. 25, 2007)). Courts also 20 generally do not permit depositions of high ranking officials to occur before the depositions of 21 lower ranking employees with more direct knowledge of the case have been taken. Id. “In determining whether to allow an apex deposition, courts consider 22 7 15cv1985-BEN (BLM) 1 Plaintiff acknowledges that Sheriff Gore is the San Diego Sheriff’s Department’s chief 2 policy maker and highest ranking government officer. See MTC at 19. As such, the Court finds 3 that Sheriff Gore is a high-ranking government official. See Jarbo v. County of Orange, 2010 4 WL 3584440, at *2 (C.D. Cal. Aug. 30, 2010) (finding that the Sheriff of Orange County was a 5 high-ranking government official not subject to deposition absent extraordinary circumstances); 6 Holguin v. County of Los Angeles, 2011 WL 7128640, at *3-4 (C.D. Cal. Oct. 12, 2011) (finding 7 that the Sheriff of Los Angeles County was a high-ranking official not subject to deposition 8 absent extraordinary circumstances). 9 official, the burden switches to Plaintiff to demonstrate the need for Mr. Gore’s testimony. 10 Because Sheriff Gore is a high-ranking government Thomas, 2010 WL 1343789, at *1. Plaintiff does not carry his burden. 11 Initially, the Court notes that Sheriff Gore is not a named defendant and the fact that 12 Plaintiff is seeking leave to amend his complaint to add Sheriff Gore as a named defendant does 13 not justify the deposition.3 14 participated in the conduct underlying the conduct in this case. Plaintiff also does not identify 15 the specific information that can only be obtained from Sheriff Gore. Rather, Plaintiff relies on 16 an expert opinion to argue that he should be able to depose Sheriff Gore because he is the chief Plaintiff does not assert that Sheriff Gore was present for or 17 18 Plaintiff relies on Chew, 27 F.3d 1432, to argue that it is not unusual to depose a department head. MTC at 20. In Chew, Plaintiff brought a § 1983 action against the City of Los Angeles, Police Chief Gates, police officers who trained the canine unit, and the supervisors of the canine unit, alleging that the release of the police dog that assaulted plaintiff violated his constitutional rights. Chew, 27 F.3d at 1435-36. In Chew, Chief Gates was named as a defendant, whereas in this case, Sheriff Gore has not been named as a defendant. Id. at 1435. As such, at this stage of the proceedings, Plaintiff’s reliance on Chew to support his motion to compel Sheriff Gore’s deposition is unavailing. 3 19 20 21 22 8 15cv1985-BEN (BLM) 1 policy maker and Plaintiff seeks to depose Sheriff Gore regarding the San Diego County Sheriff’s 2 Department’s practices concerning the training, supervision, review, investigation and discipline 3 for “violations of policy and law relating to use of force, including racially discriminatory use of 4 force against ethnic minorities.” See MTC at 18-20; id., Expert Report of Jeffrey J. Noble (“Noble 5 Rpt.”) at 6-8. However, Plaintiff has not provided any evidence establishing that Sheriff Gore 6 has “unique first-hand, non-repetitive knowledge” of the San Diego County Sheriff’s 7 Department’s policies and practices. See K.C.R., 2014 WL 3434257, at *3. Plaintiff already has 8 deposed the “persons most qualified in the areas of Internal Affairs investigations/policies, 9 claims/command investigations and policies, use of force policies, use of K-9s (policies and 10 training), and personnel files.” See Oppo. at 14. Plaintiff also has deposed Deputy Banks and 11 all officers on the scene during Plaintiff’s incident, and has obtained all “IA investigations 12 involving the five on-scene officers and Deputy Banks’ personnel files.” 13 according to Plaintiff’s own assertions, the evidence he already has obtained during the course 14 of discovery “establishes the County’s liability for its willful failure to property investigate 15 allegations of officer misconduct,” and Sheriff Gore’s deposition will only “buttress and support 16 the highly revealing discovery obtained to date.” MTC at 19. Id. Additionally, 17 The only specific action taken by Sheriff Gore identified by Plaintiff as justifying the 18 requested deposition is the press conference held by Sheriff Gore many months after Plaintiff’s 19 incident. See id. at 15; Oppo. at 14. On June 13, 2015, Deputy Banks was on patrol and 20 encountered a minor who was reported as a “runaway.” MTC at 15. According to Plaintiff, 21 during the encounter, Defendant Banks struck, pushed, pulled, and tased the minor, and 22 attempted to apply a “carotid sleeper.” Id. Within two days of the incident, Sheriff Gore held a 9 15cv1985-BEN (BLM) 1 press conference during which he discussed Banks’ actions, responded to questions about the 2 incident, and displayed photos of the injuries Banks suffered during the incident. See id.; Oppo. 3 at 11; see also MTC, Exh. J. Defendants argue that this incident is different because Deputy 4 Banks was bitten by the juvenile who was resisting arrest and the fact that Sheriff Gore spoke 5 about the incident at a press conference does not justify his deposition in this case. Oppo. at 6 15. The Court agrees with Defendants. The fact that Sheriff Gore spoke at a press conference 7 addressing a different incident that occurred many months after the incident in this case, even 8 considering the fact that Deputy Banks was involved in both incidents, does not justify deposing 9 Sheriff Gore in this case. 10 The Court finds that at this stage of the proceedings, Plaintiff has not established that 11 Sheriff Gore’s testimony “is necessary to obtain relevant information that is not available from 12 another source” and is “essential to the case at hand,” or that Sheriff Gore “has first-hand 13 information that cannot reasonably be obtained from other sources.” See Thomas, 2010 WL 14 1343789, at *1. Because Sheriff Gore is a high-ranking official who is not a named defendant 15 in this action and to whom the apex doctrine applies, and because Plaintiff has not established 16 the requisite need for Sheriff Gore’s testimony, the Court DENIES WITHOUT PREJUDICE 17 Plaintiff’s motion to compel Sheriff Gore’s deposition. See Holguin, 2011 WL 7128640, at *3-4 18 (barring plaintiff from deposing the Sheriff of Los Angeles County, where plaintiff’s complaint 19 alleged a Monell claim against the County for the Sheriff’s Department’s use of force, its internal 20 procedures for investigating use of force incidents, and its lack of discipline of officers). 21 /// 22 /// 10 15cv1985-BEN (BLM) 1 II. 2 Plaintiff seeks to depose Robert Faigin, the Sheriff Department’s Chief Legal Advisor. MTC 3 at 20-21. In support, Plaintiff alleges that Defendants’ discovery responses were misleading and 4 the document production was incomplete, and that Mr. Faigin verified all of the discovery 5 responses under the penalty of perjury. Id. Plaintiff argues that he is entitled to depose Mr. 6 Faigin as the person responsible for assuring the accuracy and completeness of the discovery 7 responses, privilege log and produced documents. Id. at 20-21. Plaintiff also argues that 8 Defendants may not assert any privilege based on Mr. Faigin’s title or position, because Mr. 9 Faigin waived any alleged privilege as the “verifier of the truth” of the Sheriff Department’s 10 Plaintiff’s Motion to Compel the Deposition of Robert Faigin discovery responses. Id. at 21. 11 Defendants oppose Plaintiff’s motion arguing that Fed. R. Civ. P. 34 does not require a 12 verification and that Plaintiff is thus mistaken that Mr. Faigin “verified document requests.” 13 Oppo. at 15-16. Defendants further assert that Plaintiff has not alleged what specific discovery 14 responses were misleading, and claim that Plaintiff’s request is meant to harass and discover 15 confidential attorney-client communications. Id. at 16. Defendants also contend that Mr. Faigin 16 explains in his declaration what he does when asked to verify interrogatories, and thereby 17 provides sufficient detailed information to negate any need for a deposition. Id. 18 In his reply, Plaintiff admits that the responses to requests for documents were not 19 verified and were not required to be verified, but argues that Mr. Faigin verified interrogatories 20 and stated under the penalty of perjury that the relevant and responsive documents were 21 identified in the privilege log served with Defendants’ discovery responses. Reply at 9. Plaintiff 22 asserts that Mr. Faigin attested to the accuracy and completeness of the privilege log, which 11 15cv1985-BEN (BLM) 1 Plaintiff contends is “a critical misrepresentation, whether intentional or not.” Id. (emphasis 2 omitted). Plaintiff thus claims that he is entitled to question Mr. Faigin regarding the search for 3 and the production of relevant responsive documents. Id. at 9-10. 4 An attorney’s signature on a disclosure document constitutes a certification that to the 5 best of the attorney’s knowledge and belief formed after a reasonable inquiry the disclosures 6 are correct and complete as of the date signed. See Fed. R. Civ. P. 26(g)(1)(A) (“[b]y signing, 7 an attorney or party certifies that to the best of the person’s knowledge, information, and belief 8 formed after a reasonable inquiry . . . with respect to a disclosure, it is complete and correct as 9 of the time it is made.”). The production of documents under Fed. R. Civ. P. 34 “does not 10 require verification in the same manner that interrogatory responses do” because documents 11 “produced under Rule 34 are subject only to the general signature requirement in Rule 26(g).” 12 Kas v. Mercedes-Benz USA, LLC, 2012 WL 473931, at *3 (C.D. Cal. Feb. 1, 2012). A party has 13 a continuing duty to supplement or correct its disclosure or response upon learning that “in 14 some material respect the disclosure or response is incomplete or incorrect, and if the additional 15 or corrective information has not otherwise been made known to the other parties during the 16 discovery process or in writing.” See Fed. R. Civ. P. 26(e)(1)(A); see also Rodriguez v. IBP, Inc., 17 243 F.3d 1221, 1229 (10th Cir. 2001) (a party is under a continuing duty to supplement 18 incomplete information disclosed in interrogatories). 19 Here, after the Court issued its May 4, 2016 order granting in part and denying in part 20 Plaintiff’s motion to compel [ECF No. 24], Defendants produced additional documents responsive 21 to the Court’s Order. See Dicks Decl. at 4-5. Plaintiff does not set forth any evidence indicating 22 that Defendants intentionally withheld relevant documents after the Court determined the scope 12 15cv1985-BEN (BLM) 1 of permissible discovery in this case or that Defendants’ initial responses were intentionally 2 misleading. Defendants, on the other hand, have provided a declaration indicating that they did 3 not deliberately withhold the requested documents. See Oppo., Declaration of George Brewster 4 (“Brewster Decl.”) at 2-3 (stating that “[t]here was no deliberate or intentional withholding of 5 the [requested] documents,” and that Defendants supplemented document production after 6 discovering that there were additional responsive documents that had not been produced). In 7 addition, Mr. Faigin submitted a declaration in support of Defendants’ opposition to Plaintiff’s 8 motion detailing the procedure he follows in responding to discovery requests. See Oppo., 9 Declaration of Robert Faigin (“Faigin Decl.”). 10 Mr. Faigin declares that he is a Special Assistant to San Diego County Sheriff Gore, serves 11 as the Chief Legal Advisor for the San Diego County Sheriff’s Department, and oversees the 12 Department’s Legal Affairs Unit that serves as the Department’s liaison with the Office of County 13 Counsel. Id. at 1-2. The Legal Affairs Unit receives requests for admissions, interrogatories, 14 and requests for production of documents from the Office of County Counsel and forwards the 15 requests to a particular bureau, unit or person to “conduct a reasonable investigation for 16 responsive documents and answers.” 17 responsible for providing correct documents and answers to the Legal Affairs Unit, which are 18 then copied and forwarded to the Office of County Counsel. Id. at 3. The County Counsel drafts 19 pleadings and responses based on the discovery provided by department staff and forwards 20 them to the Legal Affairs Unit for review. Id. Mr. Faigin reviews the responsive pleadings “in 21 conjunction with the information provided by Department staff, to ensure that they contain the 22 information provided to the Office of County Counsel, and that they are accurate based on the Id. at 2. Each individual bureau, unit, or person is 13 15cv1985-BEN (BLM) 1 information that [he] ha[s] been previously provided.” Id. Once Mr. Faigin “ha[s] reviewed the 2 draft response and [is] satisfied as to the accuracy of the answers, [he] attest[s] to the truth of 3 the interrogatory responses on behalf of the Department by completing a verification under 4 penalty of perjury.” 5 description of his role in the San Diego Sheriff’s Department and the process within the 6 Department of formulating discovery responses, including the process of verifying interrogatory 7 responses. Id. As such, Mr. Faigin’s declaration provides specific and detailed 8 Despite Plaintiff’s allegations, the evidence establishes that Defendants are complying 9 with the federal rules by providing written responses and responsive documents, including 10 privilege logs, and supplementing those items when additional information is discovered or 11 required to be produced by the Court. Additionally, as noted above, Plaintiff has conducted 12 numerous depositions of the individuals who have first-hand knowledge of the pertinent facts in 13 this case. In light of the above, the Court DENIES Plaintiff’s request to compel the deposition 14 of Mr. Faigin. See Miller v. United States, 203 F. App’x 577, 579 n.2 (5th Cir. 2006) (finding that 15 the district court did not abuse its discretion when it denied plaintiff’s request to depose an Air 16 Force attorney who signed answers to interrogatories, reasoning that the “attorney was not a 17 fact witness; he was an Air Force attorney charged with the duty of collecting information 18 regarding this lawsuit because it was more efficient for one person to perform this task,” and 19 that the plaintiff “had ample opportunity to discover facts from other available witnesses who 20 had knowledge of the pertinent circumstances.”). 21 /// 22 /// 14 15cv1985-BEN (BLM) 1 III. Motion to Compel Production of Additional Documents 2 Months after the close of fact discovery [see ECF No. 10], Plaintiff asks the Court to 3 extend the fact discovery cutoff and to expand the scope of discovery “into the nature and 4 extent of the Sheriff Department’s failure and refusal to properly investigate and review claims 5 of misconduct by its sworn officers.” MTC at 21-23. Specifically, Plaintiff seeks the following 6 categories of documents from September 5, 2009 through the present: (1) “[a]ll Use of Force 7 reports,” (2) “[a]ll Internal Affairs investigations,” (3) “[a]ll disciplinary actions within the 8 department,” and (4) “[a]ll allegations of dishonesty, all investigations into allegations of 9 dishonesty, all disciplinary actions relating to deputy dishonesty, and all Brady lists identifying 10 dishonest deputies.” Id. at 22-23. In support, Plaintiff alleges that he learned from Defendants’ 11 recent document production, as well as through his own investigation, about five instances 12 where Deputy Banks used excessive force and where the Sheriff’s Department did not conduct 13 any IA reviews and investigations. Id. at 21-22. Plaintiff claims that the incidents point to the 14 Sheriff’s Department’s “pattern and practice” of hiding, concealing and enforcing the “code of 15 silence” that protects officers from scrutiny or discipline. Id. at 22. 16 Defendants respond that Plaintiff’s requests for the information concerning every deputy 17 in the San Diego Sheriff’s Department for a seven-year period are not proportional to the case 18 and seek irrelevant information. 19 (“Duckworth Decl.”) at 3. In support, Defendants maintain that responding to Plaintiff’s requests 20 will require at least 2,700 hours at a cost exceeding $325,000. Oppo. at 8; see also Brewster 21 Decl. at 3-5. Defendants also assert that the requests seek numerous irrelevant documents, 22 such as, for example, IA investigations, which concluded that there was no misconduct, and Oppo. at 6-14, 19; id., Declaration of Jeffrey Duckworth 15 15cv1985-BEN (BLM) 1 documents concerning the conduct of deputies under different circumstances.4 Id. at 10 (citing 2 id., Exh. 2, Deposition of Jeffrey Duckworth at 11-12). With respect to the use of force reports, 3 Defendants claim that there are many types of force employed by officers, such as “hands on 4 control, intermediate weapons, chemical agents or the pointing of a firearm.” Id. at 11 (citing 5 Duckworth Decl. at 2-3). Defendants also maintain that Plaintiff’s requests for disciplinary 6 records will include records about deputies who were reviewed for possible discipline for 7 unrelated actions, such as handling neighbor disputes, overseeing vehicle tows, and chasing 8 feeing felons. Id. at 13. Defendants further allege that the Sheriff’s Department does not 9 maintain a “Brady List” identifying dishonest deputies. Id. at 12; Faigin Decl. at 3. Defendants 10 thus argue that that the burden and cost of producing the requested records far outweigh any 11 potential benefit to Plaintiff’s case. Id. at 13-14. 12 Plaintiff replies that this case is centered on the allegations that the Sheriff’s Department 13 is operating under policies, procedures, customs and practices which encourage, cause, approve 14 and ratify constitutional violations against Plaintiff and others similarly situated. Reply at 10. 15 Plaintiff asserts that in light of his claims and interests of “making real structural, systemic and 16 lasting changes” to the Sheriff’s Department, Defendants’ assertion of “burden” and “expense” 17 carry little weight. Id. at 11. Plaintiff thus claims that he must be allowed access to the 18 requested records. Id. at 13. 19 20 21 Defendants explain that such circumstances include “varying locations, types of crime investigated, times of day or night, officer safety issues, public safety issues, known suspects, fleeing felons, among many other factors an officer faces in each investigation.” Id. at 10. 4 22 16 15cv1985-BEN (BLM) 1 Defendants already have produced a broad range of documents including the use of force 2 reports for Plaintiff’s incident and other incidents involving Deputy Banks, all IA investigations 3 conducted within three-and-a-half years of the incident at issue involving Deputy Banks and the 4 four non-party deputies on the scene during Plaintiff’s incident involving allegations of excessive 5 force, racial discrimination, false arrest and false imprisonment, and the personnel files for all 6 five deputies, including information regarding fitness for duty, knowledge of or compliance with 7 policies and procedures, false arrest and use of force issues, racial discrimination and profiling 8 issues, and performance evaluations. See Brewster Decl. at 2; Oppo. at 8-9, 12. Defendants 9 also have produced the Sheriff’s Department’s written procedures, and deposed Lt. Duckworth, 10 whom Defendants identified as the most qualified person to discuss IA Investigations. Oppo. at 11 8-9; id., Exh. 2, Deposition of Jeffrey Duckworth. 12 Plaintiff now seeks “[a]ll Use of Force reports,” “[a]ll Internal Affairs investigations,” “[a]ll 13 disciplinary actions within the department,” and “[a]ll allegations of dishonesty, all investigations 14 into allegations of dishonesty, all disciplinary actions relating to deputy dishonesty, and all Brady 15 lists identifying dishonest deputies” from September 5, 2009 through the present. MTC at 22- 16 23. Plaintiff’s requests are extremely overbroad, seek irrelevant information, and are not 17 proportional to the needs of the case. The San Diego Sheriff’s Department employs 2,528 sworn 18 personnel, including 1,320 law enforcement sworn personnel. Duckworth Decl. at 2. The 19 records for such personnel for a seven-year period will undoubtedly contain a vast amount of 20 irrelevant information and will cost in excess of $325,000 to compile. See Oppo. at 8; Duckworth 21 22 17 15cv1985-BEN (BLM) 1 Decl.; Brewster Decl. Plaintiff makes no effort to tailor his requests to the needs of the case 5, 2 and this Court will not “fashion new discovery requests” where Plaintiff’s requests are extremely 3 overbroad and seek irrelevant information. See Bartolome v. City & Cty. of Honolulu, 2008 WL 4 2736016, at *1, 14 (D. Haw. July 14, 2008) (declining to “invent a duty for a judge to fashion 5 new discovery requests when the ones presented are overbroad,” where plaintiff sued two police 6 officers and the City and County of Honolulu alleging, inter alia, that the City failed to train 7 officers on the appropriate use of force and maintained a custom or policy that endorsed the 8 use of excessive force by failing to investigate and discipline officers). The Court therefore 9 DENIES Plaintiff’s motion to expand the scope of discovery. See Fed. R. Civ. P. 26(b)(1) 10 (limiting the scope of discovery to “any nonprivileged matter that is relevant to any party’s claim 11 or defense and proportional to the needs of the case”). Because the Court denies Plaintiff’s 12 motion to expand the scope of discovery, the Court does not find good cause to extend the 13 discovery cutoff and DENIES the motion. 14 SUMMARY AND CONCLUSION 15 For the foregoing reasons, the Court: 16 1) DENIES WITHOUT PREJUDICE Plaintiff’s motion to compel Sheriff Gore’s deposition; 17 2) DENIES Plaintiff’s request to compel the deposition of Mr. Faigin; and 18 /// 19 /// 20 21 22 The Court finds Plaintiff’s failure to tailor his requests particularly vexing since he did not address in his Reply the numerous facts and concerns raised by Defendants and did not include the types of limitations imposed by the Court in its last discovery order. See ECF No. 24 at 2633. 5 18 15cv1985-BEN (BLM) 1 2 3 3) DENIES Plaintiff’s motion to expand the scope of discovery and to extend the discovery cutoff. IT IS SO ORDERED. 4 5 Dated: 8/15/2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 19 15cv1985-BEN (BLM)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
