Beitch v. Magnus et al

Filing 59

ORDER denying 46 Motion to Defendants Answers to Production, Admission, and Interrogatories Request and Joint Settlement Conference; denying 54 Motion to Produce. Signed by Magistrate Judge Bruce G Macdonald on 4/3/2019. (See attached Order for complete information) (DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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9 Aaron Harvey Beitch,
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Plaintiff,

No. CV-18-0067-TUC-BGM
ORDER

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12 Chris Magnus, et al.,
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Defendants.

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Currently pending before the Court are Plaintiff’s Motion to Defendants [sic]

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Answers to Production, Admission, and Interrogatories Request and Joint Settlement

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Conference (“Motion to Compel”) (Doc. 46) and Motion for Court Ordered Production of

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Documents (Doc. 54). Defendants have responded to both motions. (Docs. 49 & 57).

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I.

MOTION RE: DEFENDANTS’ DISCOVERY RESPONSES

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Plaintiff alleges that Defendants have “refused to numerous [sic] production

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requests on documents written by Tucson Police Sergeant David Hill and Officer Paulina

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Reed.” Pl.’s Mot. to Compel (Doc. 46) at 2.1 Plaintiff further asserts that Defendants have

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refused to produce the identity of an unidentified “suspect” standing on the porch and

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“being confronted by Tucson Police Department.” Id. Plaintiff seeks a court order for

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production of this information. Id. Defendants assert that they “provided all reports related

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Page numbers refer to the Case Management/Electronic Case Filing (CM/ECF)
pagination.

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to Tucson Police Department’s (“TPD”) interaction with Plaintiff and the call to which

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officers were responding when they encountered Plaintiff.” Def.’s Response re Mot. to

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Compel (Doc. 49) at 1 & City Defendants’ Responses to Mandatory Initial Discovery (Exh.

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“1”) (Doc. 49-1) at 8. Defendants state that Sergeant Hill did not author a supplemental

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report, and the supplemental report authored by Officer Reed was produced. Def.’s

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Response re Mot. to Compel (Doc. 49) at 2. Furthermore, Defendants do not know the

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identity of the non-party referenced on the body camera, noting that “TPD officers did not

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make any notes or reports regarding the non-party’s identity.” Id.

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A party is only required to produce those documents which are in “the responding

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party’s possession, custody, or control[.]” Fed. R. Civ. P. 34(a). “The party seeking

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production of the documents . . . bears the burden of proving that the opposing party has

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such [possession, custody, or] control.” United States v. Int’l Union of Petroleum and

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Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). A court cannot order a

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party to produce documents or information that do not exist. See Unilin Beheer B.V. v.
NSL Trading Corp., 2015 WL 12698284, at *6 (C.D. Cal. Sept. 17, 2015) (recognizing the
impossibility of compelling the production of non-existent documents, and finding
sanctions based solely on speculation improper). Defendants have declared that Sergeant
Hill did not write a supplemental report and that the City Defendants do not know the
identity of the non-party seen on the body camera. As such, there is no information for the
Court to compel.

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II.

MOTION FOR PRODUCTION
Plaintiff’s Motion for Court Ordered Production of Documents (“Motion for

Production”) (Doc. 54) is essentially a duplicate of his motion to compel (Doc. 46). “Once
a motion is filed, filing a duplicate motion will not speed up the court’s review of a
movant’s request since motions are generally addressed in the order which they were filed.”
Tagle v. Nevada, 2016 WL 6440423 at *2 (D. Nev. October 27, 2016). In fact, “filing
duplicate motions increases the court’s workload and generally delays decision while a
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new round of responses and reply deadlines run.” Id. Plaintiff is warned that filing

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duplicative motions may result in sanctions, including dismissal of his case. Plaintiff’s

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Motion for Production will be denied for the reasons stated is Section I, supra.

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III.

CONCLUSION
Based on the foregoing, the Plaintiff has not met his burden to show that Defendants

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have possession of the information that he seeks.

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ORDERED that:

Accordingly, IT IS HEREBY

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1) Plaintiff’s Motion to Defendants [sic] Answers to Production, Admission, and

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Interrogatories Request and Joint Settlement Conference (Doc. 46) is DENIED;

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and

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2) Plaintiff’s Motion for Court Ordered Production of Documents (Doc. 54) is
DENIED.
Dated this 3rd day of April, 2019.

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