Kaur et al v. City of Lodi et al
Filing
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ORDER denying Plaintiffs' 12 Motion for Expedited Discovery, signed by Magistrate Judge Allison Claire on 5/21/14. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SUKHWINDER KAUR, ET AL.,
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Plaintiffs,
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No. 2:14-cv-0828 GEB AC
v.
ORDER
CITY OF LODI, ET AL.,
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Defendants.
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On May 21, 2014, the court held a hearing on plaintiffs’ motion for expedited discovery.
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Paul Masuhara appeared for plaintiffs. Bruce Kilday appeared for City of Lodi, the City of Lodi
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Police Department, and Mark Helms. Mark Berry appeared for Scott Bratton and Adam Lockie.
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On review of the parties’ Joint Statement re Discovery Disagreement and upon hearing the
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arguments of counsel, THE COURT FINDS AS FOLLOWS:
RELEVANT BACKGROUND
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A.
Factual Allegations
The decedent, Parminder Singh Shergill, was an honorably discharged, disabled Gulf War
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veteran who suffered from post-traumatic stress disorder and depression. On the morning of
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January 25, 2014, decedent became anxious, and his family wanted him to visit the Veteran’s
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Affairs Clinic (“VAC”) in French Camp, California for treatment. As they had done in the past,
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they contacted the City of Lodi Police Department to request assistance for the transportation of
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the decedent to the VAC. City of Lodi police officers Scott Bratton and Adam Lockie responded
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to the call at decedent’s residence, but were informed that he had gone for a walk, a morning
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routine for him. The officers left the residence after informing the decedent’s family that they
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would talk to the decedent if they saw him.
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Bratton and Lockie located the decedent in a park two blocks away. They confronted
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decedent, attempting to stop him for questioning, and proceeded to follow him when he did not
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answer their questions as he walked toward home. When the decedent reached the street on
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which he lived, Bratton and Lockie drew their firearms and confronted the decedent by yelling at
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him. When the decedent turned around to face the officers, the officers opened fire multiple
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times and killed the decedent. The decedent was unarmed and did not threaten the officers,
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although the officers allege that the decedent charged at them with a knife.
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B.
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Procedural Background
This action was filed on April 3, 2014 against the City of Lodi; the City of Lodi Police
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Department; Mark Helms, in his individual capacity as the Chief of Police for the City of Lodi;
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and City of Lodi police officers Scott Bratton and Adam Lockie. Plaintiffs bring suit pursuant to
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42 U.S.C. § 1983, Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
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seq.; negligence, wrongful death, negligent infliction of emotional distress, and interference with
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civil rights. A pretrial scheduling conference is set for July 7, 2014.
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Set for hearing on July 14, 2014 before the Honorable Garland E. Burrell, Jr., are two
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motions to dismiss filed by the defendants. ECF Nos. 13-14.
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LEGAL STANDARDS
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Generally, a party may not conduct discovery before the parties have met and conferred
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pursuant to Federal Rule of Civil Procedure 26(f). In re Countrywide Fin. Corp. Derivative
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Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008). However, a court may authorize early
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discovery “for the parties’ and witnesses’ convenience and in the interests of justice.” Fed. R.
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Civ. P. 26(d)(2). The moving party must show good cause for the early discovery. See Semitool,
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Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). “Good cause may be
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found where the need for expedited discovery, in consideration of the administration of justice,
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outweighs the prejudice to the responding party.” Id. To make this determination, courts often
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consider factors such as (1) whether a preliminary injunction is pending; (2) the purpose of the
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discovery request; (3) the breadth of the discovery request; and (4) the burden on the non-moving
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parties. See American LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063, 1067 (C.D. Cal. 2009).
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DISCUSSION
A.
Dispute Background
In mid-April 2014, plaintiffs contacted defendants to obtain a stipulation to permit a
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limited number of depositions to be taken of eyewitnesses to events leading up to and including
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the fatal shooting of decedent, prior to the parties’ Rule 26(f) conference. Defendants have
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declined to stipulate to early discovery and argue that early discovery will prejudice them.
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1.
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Plaintiffs seek this discovery on the ground that the City of Lodi Police Department has
Plaintiffs’ Position
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thus far refused to release statements from neighbors and other individuals who witnessed the
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incident and who were interviewed by the defendants on the day of the shooting. Unable to obtain
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the witness statements from defendants, plaintiffs retained a private investigation firm to
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interview witnesses. Through their investigator, plaintiffs obtained 18 statements, but they claim
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that some witnesses were either reluctant to speak to or refused to speak entirely to the private
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investigators.
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Plaintiffs seek to depose ten eyewitnesses who already gave statements to plaintiffs’
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investigator. They argue that these depositions are necessary to preserve the accuracy of the
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deponents’ testimony since memories fade over time, that the burden or prejudice that defendants
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will experience is minimal or nonexistent, and that the request comes only two months before the
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Rule 26(f) conference.
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2.
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Defendants oppose plaintiffs’ motion on several grounds. They argue first that the
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investigation of the incident is ongoing by the San Joaquin County District Attorney’s Office and,
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when complete, will include witness statements, forensic results, medical reports, Coroner reports
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and the final findings of the District Attorney. They also argue that (1) plaintiffs’ “memory fades
Defendants’ Position
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with time” argument is unsupported by law, (2) there are no pending preliminary injunctions to
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prepare for, (3) the request is overbroad, (4) there is no real urgency since the incident occurred
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only four months ago and the typical discovery process will open in only two months, and (5)
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they will be prejudiced if they are forced to prepare for the critical depositions of witnesses
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without having exchanged information pursuant to Federal Rule of Civil Procedure 26, without
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having the pleadings settled, and without having the full reports from the District Attorney.
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Lastly, they assert that they will file a motion for protective order because plaintiffs have released
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witness statements to the media, thereby potentially spoiling the witnesses’ memories.
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B.
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Analysis
On review of the parties’ positions and in considering the timeline of the events at issue in
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this case, the court finds that plaintiffs have not demonstrated good cause to conduct expedited
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discovery. Unlike those cases in which expedited discovery was authorized in anticipation of a
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preliminary injunction hearing, e.g., Quia Corp. v. Mattel, 2010 WL 2179149 (N. D. Cal. 2010),
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or for the plaintiff to ascertain the identify of Doe defendants, e.g., Wride v. Fresno County, 1:05-
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cv-0486 AWI SKO, 2011 WL 4954159, at *1 (E.D. Cal. 2011), the depositions sought in this
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case are not intended to serve any purpose other than those traditionally anticipated during the
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normal course of litigation. See also Advisory Committee Notes to the 1993 amendments to Rule
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26(d) (noting that discovery before the Rule 26(f) conference “will be appropriate in some cases,
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such as those involving requests for a preliminary injunction or motions challenging personal
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jurisdiction.”).
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While there is no doubt that the discovery sought is relevant to the merits of plaintiffs’
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claims, plaintiffs have not established any urgency to the requested discovery, and there is no
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citation to any authority holding that the potential fading of witness memories justifies expedited
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discovery. Moreover, the court notes that the incident occurred only four months ago, discovery
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is set to commence in less than two months, and plaintiffs have already had an opportunity to
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interview these witnesses. In sum, “’the broad discovery that [plaintiff] seeks should be pursued
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more properly within the structure and supervision afforded by a court-approved scheduling order
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under Fed. R. Civ. P. 16(b).’” American LegalNet, Inc., 673 F. Supp. 2d at 1071 (quoting Qwest
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Commc’ns Int’l, Inc. v. Worldquest Networks, Inc., 213 F.R.D. 418, 421 (D. Col. 2003)).
Accordingly, IT IS HEREBY ORDERED that plaintiffs’ April. 18, 2014 motion for
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expedited discovery (ECF No. 12) is denied.
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DATED: May 21, 2014
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