Knickerbocker v. United States Department of Interior, Death Valley National Park, National Park Service

Filing 81

ORDER AFTER INFORMAL CONFERENCE RE: DISCOVERY DISPUTE, signed by Magistrate Judge Jennifer L. Thurston on 5/9/2019. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISSAM ELIE KNICKERBOCKER,

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Plaintiff,
v.

Case No.: 1:16-cv-01811 - DAD - JLT
ORDER AFTER INFORMAL CONFERENCE
RE: DISCOVERY DISPUTE
(Doc. 76)

UNITED STATES DEPARTMENT OF
INTERIOR, et al.,

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Defendants.
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The Court held an informal telephone conference regarding responses to a production
request served in December 2017.

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As to requests number 7 and 8, despite that the defense noted in its responses that a

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privilege log would be provided, defense attorney, Mr. Frueh, reported that no privilege is asserted,

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and no documents were withheld on this basis.

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As to request number 10, Mr. Frueh acknowledged that the defendants’ expert’s report

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reads as though the expert’s opinion will rely upon the experience, training and past employment

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of the officers, that is not the case and he will not offer any opinion in this regard. Rather, the

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expert will opine only as to how a reasonably well-trained officer would respond. Despite that the

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expert’s report was the sole basis for the plaintiff’s claim for the evidence, at the hearing, his

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counsel, Mr. Knickerbocker, then stated he needed the information to prove the negligence claim

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or the Bivens claim. The Court pointed out that compliance with or failure to comply with a policy
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does not determine liability of the officers or exonerate them from liability, but this also did not

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resolve the matter. Likewise, the Court was at a loss how this evidence bears on the questions

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presented in this case and it received no satisfactory explanation.

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As to requests 10, 11 and 12, the Court agreed with the defense that the requests are quite

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broad and seem not be tied to the facts of this case. For example, though request number 11

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requests information about the polices for officers when detaining a person with disabilities, the

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plaintiff here did not have a disability. Rather, he claims he suffered an injury during the contact

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with the officers. The plaintiff’s attorney asserted that the officers should have restrained him

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differently due to the obvious injury and he wishes to discover the policies and procedures that

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govern restraint of injured detainees. However, the Court is permitted to enforce only the

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discovery requests actually propounded; not those a party wish he had propounded.

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In any event, counsel were unable to reach a compromise as the requests. Thus, as to

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requests 10, 11 and 12 only, the plaintiff may file a motion to compel as set forth in Local Rule

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251, no later than May 21, 2019. If he chooses to proceed with the motion, the plaintiff SHALL

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address the timeliness of the motion, given his delay in seeking relief for more than a year, and

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should address specifically the objections raised by the defense.

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IT IS SO ORDERED.
Dated:

May 9, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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