Estate of Donald Maliik Levingston et al v. County of Kern et al

Filing 43

ORDER GRANTING #36 Defendants' Motion for a Protective Order, signed by Magistrate Judge Jennifer L. Thurston on 6/22/2017. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF DONALD MALIK LEVINGSTON, et al., 12 Plaintiffs, 13 v. 14 COUNTY OF KERN, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-0188 - DAD - JLT ORDER GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER (Doc. 36) 17 18 Plaintiffs contend the defendants are liable for the wrongful death of Donald Levingston, who 19 while in the custody of the Kern County Sheriff’s Department. Plaintiffs contend the County has long 20 been on notice that deputies “repeatedly violate[] the Constitutional rights of citizens by subjecting 21 them to searches and arrests without probable cause, causing citizens to be subjected to excessive force, 22 fabricating information in reports,” and more. (Doc. 31 at 7, ¶ 7) Plaintiffs assert Sheriff Donny 23 Youngblood is liable for the wrongful death of Mr. Levingston, and seek to impose “supervisory 24 liability” under 42 U.S.C. § 1983. (See id. at 8, 15, 20) 25 Defendants seek a protective order to prevent the deposition of Sheriff Youngblood. (Doc. 36) 26 Plaintiffs oppose the entry of a protective order, arguing Defendants fail to carry the burden to 27 demonstrate a protective order is proper. (Doc. 37) For the reasons set forth below, Defendants motion 28 for a protective order is GRANTED. 1 1 2 I. Background Plaintiffs are the surviving wife of Decedent Donald Levingston, his minor children and the 3 estate of Mr. Levingston. (See Doc. 31 at 2) Plaintiffs assert that on February 26, 2015, deputy David 4 Manriquez with the Kern County Sheriff’s Department “initiated a traffic stop of the decedent… for 5 allegedly failing to stop at a posted stop sign at about 6:14 p.m.” (Id. at 5, ¶ 18) Plaintiffs assert that 6 Levingston, an African-American male, “had numerous prior contacts” with Manriquez prior to the 7 traffic stop, and “had been harassed… on an on-going basis based upon his race” by sheriff’s deputies. 8 (Id.) According to Plaintiffs, during the stop, Manriquez “opined that [Levingston] was under the 9 influence of a central nervous system stimulant and advised him that he was under arrest.” (Id. at 6, ¶ 10 20) Plaintiffs assert that Manriquez “believed ….[he] had swallowed a lethal dose of narcotics.” (Id.) 11 Manriquez handcuffed and searched Levingston, and no substances were found. 12 Plaintiffs allege that while Manriquez was “transporting Levingston to the Central Receiving 13 Facility, became apparent to Manriquez that Levingston was experiencing a severe medical 14 emergency.’ (Doc. 31 at 6, ¶ 21, emphasis omitted) However, Plaintiffs contend that “[i]n lieu of 15 obtaining immediate emergency medical care,” the deputy “stopped first at a Walgreen’s parking lot,” 16 where he notified dispatch that Levingston “was being uncooperative.” (Id., ¶ 22) Plaintiffs allege 17 Manriquez then drove a fire station “to wait for assistance from additional officers to assist” in the 18 arrest. (Id.) In addition, Hall Ambulance was called to perform an evaluation of Levingston, and 19 paramedic Brenda Robinson went to the fire station. (Id., ¶ 23) 20 According to Plaintiffs, Levingston was not given “thorough and complete medical evaluation.” 21 (Doc. 31 at 6, ¶ 24) In addition, Plaintiffs allege that “[d]espite clear indications that [Levingston] was 22 in need of immediate medical care,” he was transported to the Kern County Central Receiving facility 23 in Downtown Bakersfield. (Id.) Plaintiffs assert Levingston exhibited “symptoms of an extreme and 24 serious medical emergency” while being booked. (Id. at ¶ 25) 25 Plaintiffs assert that “almost four hours after the initial stop,” Manriquez transported Levingston 26 to Kern Medical Center. (Doc. 31 at 7, ¶ 26) They contend that Levingston “was foaming at the mouth 27 and incoherent” by the time he arrived at Kern Medical Center. (Id.) He was pronounced dead at 12:13 28 a.m. on February 27, 2016. (Id., ¶ 27) 2 1 According to Plaintiffs, the County has “long been on actual notice that… Deputies have 2 repeatedly violated the Constitutional rights of citizens by subjecting them to searches and arrests 3 without probable cause, causing citizens to be subjected to excessive force, fabricating information in 4 reports, providing false and/or intentionally misleading information in Internal Affairs investigations 5 and have otherwise caused citizens to be subjected to the violation of their Constitutional rights.” (Doc. 6 31 at 7, ¶ 28) Plaintiffs contend these “customs, policies, patterns and/or practices are the product of a 7 culture of tolerance… in which the end result, i.e., arrest and/or prosecution, takes precedent over 8 following the rules and policies dictated by the Constitutions of the United States of America and the 9 State of California.” (Id., ¶ 29) Further, Plaintiffs assert that there is “policy rooted in deliberate 10 indifference to the constitutional rights of African Americans,” such as Levingston, demonstrated by 11 “the hiring, retention, and promotion of … deputies who routinely engage in civil rights violations 12 and/or who have encouraged, authorized and/or condoned said practices.” (Id. at 7-8, ¶ 30) 13 Plaintiffs allege Sheriff Youngblood “is responsible for the supervising [of] all… deputies d/or 14 agents responsible for providing care to persons in the custody” of the sheriff. (Doc. 31 at 20-21, ¶ 87) 15 They contend the acts of Manriquez—including being deliberately indifferent to the serious medical 16 need of Levingston and discriminating against Levingston on the basis of race— “were the direct and 17 proximate result of customs, practices, and policies of Defendant Donny Youngblood.” (Id. at 15, 21, 18 ¶¶ 64, 88) Plaintiffs assert: 19 20 21 22 23 24 25 26 27 28 Such policies, customs and/or practices include but are not limited to an ongoing pattern of deliberate indifference, including the following: the failure to establish a protocol for deputies to recognize and identify the general indicators of mental illness and or severe narcotics intoxication so that appropriate actions can be taken; the failure to establish a protocol for taking into custody civilians suspected of being under the influence of a central nervous system stimulant, including but not limited to methamphetamine; the failure to implement a protocol or procedure to take persons who are experiencing a serious medical emergency, including but not limited to persons exhibiting severe signs of narcotics intoxication and/or mental health disorders be transported to a local emergency room or a mental health facility for evaluation rather than arrest said persons for purposes of incarceration; the failure to establish protocols or policies to safely take into custody, those persons showing signs of severe narcotics intoxication and/or mental health disorders; the failure to act upon clearly lifethreatening symptoms and reports; the failure to provide appropriate training to deputies to ensure adequate evaluation and treatment for seriously ill persons taken into custody; and the failure to implement a policy to ensure that deputies would contact and summon appropriate medical treatment in a timely manner. (Id. at 15-16, ¶ 65) Plaintiffs also contend there was an ongoing pattern and policy of Youngblood to 3 1 engage in “racial profiling whereby probable cause is fabricated to effectuate the arrests of African- 2 American civilians.” (Id. at 21, ¶88-89). Plaintiffs allege that County policy-makers, such as Sheriff 3 Youngblood, “tacitly encouraged, ratified and/or approved of the acts and/or omissions alleged herein, 4 and knew that such conduct was unjustified and would result in violations of constitutional rights.” (Id. 5 at 16-17, 21, ¶¶ 68 and 92) 6 Based upon the foregoing facts, Plaintiffs identify the following causes of action in their First 7 Amended Complaint: (1) wrongful death; (2) deliberate indifference to serious medical needs, health, 8 and safety in violation of the Fourteenth Amendment; (3) municipal liability for violations of Plaintiffs’ 9 rights of health and safety; (4) supervisory liability for violations of Plaintiffs’ rights of health and 10 safety; (5) discrimination on the basis of race in violation in the Fourteenth Amendment; (6) municipal 11 liability for violations of the right to be free from discrimination; (7) supervisory liability for the 12 violations of the right to be free from discrimination; and (8) intentional infliction of emotional distress. 13 (See generally Doc. 31 at 8-24) Sheriff Youngblood is identified as a defendant to the first, fourth, and 14 seventh causes of action. 15 Defendants now seek a protective order to preclude the taking of Sheriff Youngblood’s 16 deposition. (Doc. 36) According to Defendants, the deposition would qualify as an “apex” deposition 17 given the sheriff’s status as “a high ranking elected government official.” (Id. at 5) Plaintiffs filed 18 their opposition to the motion on June 7, 2017 (Doc. 37), to which Defendants filed a reply on June 19 14, 2017. (Doc. 38) 20 II. 21 22 23 24 25 26 Scope of Discovery and Depositions The scope and limitations of discovery are set forth by the Federal Rules of Civil Procedure. In relevant part, Rule 26(b) states: Unless otherwise limited by court order, parties may obtain discovery regarding any nonprivileged manner 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 . . . For good cause, the court may order discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. 27 Fed. R. Civ. P. 26(b). Relevant evidence is defined as “evidence having any tendency to make the 28 existence of any fact that is of consequence to the determination of the action more probable or less 4 1 probable than it would be without the evidence.” Fed. R. Evid. 401. Relevancy is interpreted “broadly 2 to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on 3 any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). A party may take the deposition of “any person, including a party” pursuant to the procedures 4 5 outlined in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 30(a)(1)-(2). “Only a party to 6 litigation may be compelled to give testimony pursuant to a notice of deposition.” U.S. v. Afram Lines 7 (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994). 8 III. 9 10 11 12 13 14 15 16 17 18 Entry of Protective Orders The Court may issue a protective order to shield any party from undue burdens arising from discovery. Fed. R. Civ. P. 26(c). Specifically, Rule 26 provides: The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. 19 Fed. R. Civ. P. 26(c). The Ninth Circuit determined this Rule provides the Court with “extensive 20 control” over the discovery process, and “authoriz[es] courts to make any order which justice requires” 21 to protect the parties. United States v. CBS, Inc., 666 F.2d 364, 369 (9th Cir. 1982) (internal quotation 22 marks omitted). 23 In general, it is rare for a court to disallow the taking of a deposition. See Blankenship v. Hearst 24 Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“strong showing is required before a party will be denied 25 entirely the right to take a deposition”); see also Apple Inc. v. Samsung Electronics Co., 282 F.R.D. 26 259, 263 (N.D. Cal. 2012) (“it is very unusual for a court to prohibit the taking of a deposition 27 altogether absent extraordinary circumstances”). In general, under Rule 26 “the party seeking 28 protection bears the burden of showing specific prejudice or harm will result if no protective order is 5 1 granted.” Phillips v. GMC, 307 F.3d 1206, 1210-1211 (9th Cir. 2002). However, when an apex 2 deposition is at issue, courts are inconsistent as to whether the party resisting the discovery or the party 3 seeking to depose the high-ranking official bears the burden related to whether the deposition should go 4 forward. See In re Transpacific Passenger Air Transportation Antitrust Litig., 2014 WL 939287, at *2 5 (N.D. Cal. Mar. 6, 2014). 6 IV. 7 “Apex” Depositions The deposition of a high-level official or executive, often referred to as an “apex” deposition, 8 may be precluded by the Court under Rule 26(c) where the discovery sought “can be obtained from 9 some other source that is more convenient, less burdensome, or less expensive.” Apple Inc. v. Samsung 10 Electronics Co., Ltd, 282 F.R.D. 259, 263 (N.D.Cal. 2012). Heads of government agencies, in 11 particular, “are not normally subject to deposition,” “absent extraordinary circumstances.” Green v. 12 Baca, 226 F.R.D. 624, 648 (C.D. Cal. 2005) (quoting Kyle Eng. Co. v. Kleppe, 600 F.2d 226, 231-32 13 (9th Cir. 1979)). 14 As an initial matter, an individual objecting to a deposition must first demonstrate he “is 15 sufficiently ‘high-ranking’ to invoke the deposition privilege.” Thomas v. Cate, 715 F. Supp. 2d 1012, 16 1049 (E.D. Cal. 2010) (citing United States v. Sensient Colors, Inc., 649 F.Supp.2d 309, 320 (D. N.J. 17 2009). Upon this showing, the Court then should consider: “(1) whether the deponent has unique first- 18 hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the 19 deposition has exhausted other less intrusive discovery methods.” Apple, Inc., 282 F.R.D. at 263; see 20 also Coleman v. Schwarzenegger, 2008 WL 4300437 at *2 (E.D. Cal. Sept. 15, 2008) (“The 21 extraordinary circumstances test may be met where high-ranking officials ‘have direct personal factual 22 information pertaining to material issues in an action,’ and ‘the information to be gained is not 23 available through any other sources.’” [citations omitted]). 24 The Plaintiffs dispute that they are obligated to show that there are other, lesser intrusive means 25 to discover the information and cite to several cases. For example, they cite Hunt v. Cont'l Cas. Co., 26 2015 WL 1518067, at *2 (N.D. Cal. Apr. 3, 2015). However, Hunt quoted Apple Inc. v. Samsung 27 Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012) which held, “When a party seeks the deposition 28 of a high-level executive (a so-called “apex” deposition), courts have “observed that such discovery 6 1 creates a tremendous potential for abuse or harassment.” [Footnote] The court therefore has discretion 2 to limit discovery where the discovery sought “can be obtained from some other source that is more 3 convenient, less burdensome, or less expensive.”[Footnote].” Hunt further quoted Apple when it stated, 4 “In determining whether to allow an apex deposition, courts consider (1) whether the deponent has 5 unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party 6 seeking the deposition has exhausted other less intrusive discovery methods.” Apple, 282 F.R.D. at 263 7 quoting In re Google Litig., 2011 WL 4985279, at *2 (N.D.Cal. Oct. 19, 2011). Though Hunt at 13 8 observes, “Nor has formal “exhaustion” been viewed as an absolute requirement; instead, exhaustion of 9 other discovery methods is an important, but not dispositive, consideration for a court to take into 10 account in deciding how to exercise its discretion,” this is far from a determination that a party is not 11 obligated to pursue lesser burdensome means. Plaintiffs also cite In re Transpacific Passenger Air Transportation Antitrust Litig., 2014 WL 12 13 939287, at *5 (N.D. Cal. Mar. 6, 2014), which holds similarly. Indeed, Transpacific observes,” The 14 history of the propounding party’s efforts to obtain the information through other discovery, or lack of 15 such efforts, can shed considerable light on whether the party is seeking the apex deposition for 16 appropriate purposes. Therefore, to safeguard against abuse, harassment, and undue burden, the court 17 should consider whether and how the party seeking the deposition has attempted to use other less 18 intrusive discovery methods, in addition to whether the deponent possesses unique, firsthand 19 knowledge.” Id. On the other hand, both Hunt and Transpacific hold that the plaintiff must show that 20 the apex official “may have unique first-hand knowledge regarding the facts at issue in this case” (Hunt 21 at 2). 22 At the hearing, Plaintiffs cited Smith v. City of Stockton, Case No.: 2:15-cv-00363 KJM AC. In 23 Smith, the police chief resisted the deposition while relying upon the apex doctrine. However, in doing 24 so, the chief failed to present any evidence that he did not have firsthand knowledge of the facts that 25 were pertinent to the case. Id. at 4. Rather, the plaintiff demonstrated that despite knowledge of 26 unconstitutional prior conduct by the department, the chief was the “author” of the “officer-involved 27 shooting policy” and implemented it just after the incident involving the plaintiff. Smith v. City of 28 Stockton, Case No.: 2:15-cv-00363 KJM AC, Doc. 62 at 4 [“A protective order might therefore be 7 1 warranted if plaintiff wanted the deposition solely to obtain evidence that Jones does not have, or that is 2 easily obtainable from others.”]) 3 V. 4 Discussion and Analysis Defendants contend that Sheriff Youngblood “is a high-ranking government official subject to 5 the ‘apex’ deposition privilege.” (Doc. 36 at 5) In addition, Defendants contend that no “extraordinary 6 circumstances” exist to justify the deposition because Sheriff Youngblood does not have personal 7 knowledge of the events giving rise to the complaint. (Id.) Further, Defendants assert the information 8 sought could be obtained through less intrusive means, “including through written discovery or the 9 depositions of the KCSO’s Persons Most Qualified.” (Id.) On the other hand, Plaintiffs contend 10 Defendants fail to meet the burden to demonstrate good cause for preventing the deposition, and that 11 Sheriff Youngblood “has personal knowledge of matters relevant to this case.” (Doc. 37 at 6-7) 12 A. Status as a High-Ranking Official 13 As a threshold matter, Youngblood must establish that he is a high-ranking official to invoke the 14 apex deposition privilege. See Thomas, 715 F. Supp. 2d at 1049. As Defendants observe, Youngblood 15 is “the highest ranking peace officer agency government official in Kern County.” (Doc. 36 at 5) 16 Plaintiffs do not dispute this status. (See generally Doc. 37) 17 Notably, courts throughout the Ninth Circuit have determined that the position of sheriff is a 18 high-ranking official to whom the apex doctrine may apply. See Anderson v. County of Contra Costa, 19 2017 WL 930315 (N.D. Cal. Mar. 9, 2017) (finding the sheriff was “an apex employee or high-ranking 20 official, to whom the apex doctrine applies”); Myles v. County of San Diego, 2016 WL 4366543, at *4 21 (finding the sheriff subject to the apex doctrine where plaintiff acknowledged he was the department’s 22 “chief policy maker and highest ranking government officer)”; K.C.R. v. Cty. of L.A., 2014 WL 23 3434257, at *6 (C.D. Cal. July 11, 2014) (collecting cases and concluding that “ample authority … 24 supports the proposition that a sheriff is a high-ranking government official entitled to protection”). 25 Given the lack of dispute regarding Youngblood’s status as the highest-ranking peace officer, the Court 26 finds he is an apex official to whom the doctrine may apply. 27 B. Good Cause 28 Youngblood takes the position that because he lacks firsthand knowledge of relevant facts, his 8 1 position as the Sheriff of the County of Kern should preclude his deposition. He does not claim 2 prejudice or harm would result from having to submit to a deposition. However, a purpose to harass or 3 annoy may be inferred where there is no showing the high-ranking official has relevant and personal 4 knowledge about the facts at issue. Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL 5 2578277, at *3 n.3 (N.D.Cal. Sept. 6, 2006); Smith v. City of Stockton, Case No.: 2:15-cv-00363 KJM 6 AC, Doc. 62 at 4. 7 C. 8 In general, “when a witness has personal knowledge of facts relevant to the lawsuit, even a 9 Youngblood’s Knowledge corporate president or CEO is subject to deposition.” See e.g. WebSideStory, Inc. v. NetRatings, 2007 10 WK 1129567 at *2 (S.D. Cal. Apr. 6, 2007). Conversely, “when a high-ranking official is removed 11 from the daily subjects of the litigation, [and] has no unique personal knowledge of the facts at issue, a 12 deposition of the official is improper.” K.C.R, 2014 WL 3434257, at *4. 13 Defendants contend that Youngblood possesses “no first hand or direct knowledge of the 14 incident, investigation, autopsy, training issues, policy issues and/or on mental health/disabled 15 persons.” (Doc. 36 at 5) Rather, Defendants assert that all of the sheriff’s “information on the 16 Levingston incident is second hand, primarily from legal counsel, command staff and department 17 supervisors.” (Id.; see also Doc. 36-1 at 2, Youngblood Decl. ¶ 4) Youngblood reports he “did not 18 become aware of the Levingston incident until after the California Tort Claims Act was filed with the 19 Kern County Clerk of the Board.” (Id., see also Youngblood Decl. ¶ 5) 20 Further, Defendants contend that while the sheriff “approved the overall training regime for 21 KCSO, he is not the person most knowledgeable regarding individual deputies’ training or the training 22 practices in effect in February 2015.” (Doc. 36 at 4) Likewise, Defendants assert he is not the person 23 most knowledgeable regarding the research, preparation and/or implementation of the policies and 24 procedures, the training practices which implement the policies and procedures and/or the version of 25 the various policies and procedures which were in effect in February 2015.” (Id.) Finally, Youngblood 26 did not “personally provide any training to any deputy, command staff member, Coroner’s staff 27 member or contract pathologist involved in the incident, investigation, or autopsy.” (Id. at 4; see also 28 Doc. 36-1, Youngblood Decl. ¶ 16) 9 1 Despite this, Plaintiffs assert Youngblood has “first-hand, non-repetitive information relating to 2 his own liability in this case,” as he “is sued in both his official and individual capacities.” (Doc. 37 at 3 5) Plaintiffs contend that not only does Youngblood approve the overall training regime, but he also 4 “issued a statement for the record regarding “Law Enforcement Responses to Disabled Americans: 5 Promising Approaches for Protecting Public Safety.”1 (Id.) According to Plaintiffs, Youngblood’s 6 “personal knowledge of these approaches and whether or not they have in fact been implemented are 7 directly relevant to the constitutional violations sustained by the Decedent in this case.” (Id.) Further, 8 Plaintiffs argue Youngblood has “unique personal knowledge regarding his actions or inactions in 9 response to prior constitutional violations committed at the hands of Kern County Sheriff Deputies 10 under his watch, such as acting or failing to act to impose discipline or adopt new policies for 11 preventing future uses of excessive force, and his supporting reasons.” (Id. at 6) 12 Toward this end, Plaintiffs cite to several cases which they claim demonstrate that the 13 Youngblood knows that the policies and/or actions of his deputies have given rise to unconstitutional 14 conduct. (Doc. 37-1 at 2-3) They claim these cases demonstrate that Youngblood has failed to take 15 action to correct the policies and has affirmatively ratified the unlawful actions of his deputies. Id. 16 However, Plaintiffs fail to show that any demonstrate unconstitutional conduct. For example, contrary to the sworn statement of Plaintiff’s counsel (Doc. 37-1 at 2 ¶ 5), the 17 18 Lucero case determined that the officers acted negligently but the jury was not asked to make a finding 19 related to any unconstitutional conduct and did not do so. (Doc. 38-2) Despite Plaintiff’s 20 characterization of the Garlick (Silva) matter, this case resolved without any determination of liability 21 and, prior to that, the Court granted judgment in favor of the County of Kern on the Monell claims. 22 (Doc. 38-1 at 3) In granting summary judgment to the County, the Court found there was no evidence 23 the County of Kern ratified the deputies’ conduct related to the death of Mr. Silva. (Garlick v. County 24 of Kern, Case No.: 1:13-cv-01051 LJO JLT, Doc. 157 at 76) Similarly, neither the McDaniel nor the 25 26 27 28 1 The Court has found no allegation in the complaint that the Plaintiffs assert that the decedent was under the influence of any substances or that he suffered from a mental illness at the time of the events giving rise to the complaint. (Doc. 1-2) At the hearing, Plaintiffs’ counsel asserted that the toxicology report associated with his autopsy indicated that he was under the influence of methamphetamine and that their expert would opine that this caused the decedent’s conduct related to his arrest. Exactly how this equates to a mental illness is not clear to the Court and it remains unclear how policies related to mental illness are at issue in light of the fact that discovery is confined to the issues raised in the pleadings. 10 1 Mahood case2 has been tried and the Court has not been asked to determine any constitutional 2 questions. (Id. at 3-4.) Moreover, counsel for the defendants attests that at least as long as he has been 3 employed with the County of Kern—2005—neither the County of Kern nor any employee of the 4 County has been found by any court to have violated the constitutional rights of another. 3 (Doc. 38-1 5 at 2) 6 Notably, though Deputy Manriquez was asked at his deposition whether he suffered discipline 7 as a result of the incident with the decedent and he denied that he did, Youngblood’s declaration makes 8 clear that he was not aware of the incident until Plaintiffs’ submitted a tort claim. In addition, defense 9 counsel reported that there was not a personnel action so Youngblood was never confronted with the 10 issue of whether Deputy Manriquez’s conduct was within or without department policy and Plaintiffs’ 11 counsel agreed there was no evidence of ratification. Likewise, it was apparent to the Court that 12 Plaintiff had no evidence of ratification of the conduct of the officers involved in the other cases cited 13 in counsel’s declaration. 14 When asked exactly what information Plaintiffs seek from Youngblood, counsel reported that 15 she wanted testimony about the relevant policies but admitted she had not yet made any effort to gain 16 this evidence from other sources. Nevertheless, Youngblood has attested that, though he approves the 17 ultimate policies, he asserts that he is not the person most knowledgeable about the “research, 18 preparation and/or implementation of the policies and procedures, the training practices which 19 implement the policies and procedures and/or the versions of various policies and procedures which 20 were in effect in February 2015.” (Doc. 36-5 at 4 ¶ 18) When asked why she believed Youngblood to 21 be a better source for this information than those who develop and implement these policies, she 22 23 24 25 26 27 28 2 The Court takes judicial notice of the dockets in the cases of Garlick v. County of Kern, Case No.: 1:13-cv01051 LJO JLT, The Estate of Christopher McDaniel v. County of Kern, Case No.: 1:15-cv-01320 JAM JLT and M.M. v. County of Kern, Case No.: 1:16-cv-00376 DAD JLT. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of this Court’s docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). 3 The Court recognizes, as do the Plaintiffs, that this does not mean that no such unconstitutional conduct has occurred within this time period. However, it directly contradicts the statements of Plaintiff’s counsel that such court determinations have been made (Doc. 37-1 at 2). 11 1 reported only that she did not believe that Youngblood didn’t have more knowledge than the employees 2 who develop, administer and train on these policies. 3 The Court may refuse to allow the deposition of the apex employee before the party makes 4 effort to take the deposition of lower level employees who are more closely tied to the issues to be 5 addressed. See Salter v. Upjohn, 593 F.2d 649, 651 (5th Cir.1979). Thus, the Court will GRANT the 6 protective order. In the event that plaintiffs take the depositions of, or propound other discovery to, 7 those actually involved in the development and implementation of the relevant policies and plaintiffs 8 make a showing that they made reasonable efforts to obtain the needed evidence but cannot do so 9 except via a deposition of Youngblood, the Court will consider lifting the protective order at that time. 10 11 12 VI. Conclusion and Order Based upon the foregoing, the Court ORDERS: Defendants’ motion for a protective order is GRANTED. 13 14 15 16 IT IS SO ORDERED. Dated: June 22, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12

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