Kaur et al v. City of Lodi et al

Filing 19

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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