Blight v. Manteca et al

Filing 90

ORDER signed by Magistrate Judge Allison Claire on 6/21/2017: GRANTING in PART, SUBMITTED in PART 81 86 Motion to Compel insofar as defendants are ordered to arrange for the voluntary appearance of the CI at a deposition, or provide plaintiff wit h the information necessary to issue a subpoena, no later than 6/23/2017. The matter of sanctions remains under submission. Plaintiff shall submit a supplemental declaration regarding sanctions, no later than 21 days from entry of this order; defenda nts may reply no later than 7 days thereafter. DENYING 84 Motion for Protective Order. The scheduling order at 83 is AMENDED as follows: Paragraph 1 ( 83 at 3:12-4:6) is VACATED with the exception of the first sentence, which provides That the c urrent discovery cutoff of 6/6/2017 be extended until 6/23/2017. In light of the 6/30/2017, dispositive motions deadline, all further requests for modification of the scheduling order are to be brought directly before the District Judge. (Washington, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOANNE BLIGHT, 12 13 14 No. 2:15-cv-2513 WBS AC Plaintiff, v. ORDER CITY OF MANTECA, et al., 15 16 Defendants. 17 18 This matter came on for hearing before the undersigned on plaintiff’s Motion to Compel 19 Compliance with This Court’s Orders, ECF Nos. 81 & 86. Sanjay S. Schmidt appeared 20 telephonically on behalf of plaintiff, and Kevin P. Allen appeared telephonically on behalf of 21 defendant. With the consent of the parties, the court also heard argument on defendants’ pending 22 Motion for Protective Order, ECF No. 84, which involves the same dispute but had been noticed 23 for hearing on a later date. Upon consideration of all arguments and papers, the court GRANTS 24 in PART plaintiff’s motion to compel, reserving the issue of sanctions for resolution by separate 25 order following supplemental briefing. Defendants’ motion for a protective order is DENIED. 26 27 28 I. Relevant Procedural And Factual Background This lawsuit was filed on December 2, 2015. ECF No. 1. The case involves the allegedly illegal search of a private residence, pursuant to a search warrant authorizing search of another 1 1 residence with a different house number on the same property. The search warrant was issued 2 after a state court judge reviewed an affidavit containing information provided by a confidential 3 informant (“CI”). Defendants contend that the affidavit supported probable cause to search both 4 residences. Plaintiff alleges that the judge was misled. 5 On September 20, 2016, plaintiff moved to compel discovery of the affidavit. ECF No. 6 13. Defendant argued in opposition that disclosure was precluded by the “informer’s privilege.” 7 After hearing and upon a balancing of the relevant factors, the undersigned overruled that 8 objection and granted the motion to compel in relevant part, finding that plaintiff’s need for the 9 information outweighed the law enforcement and CI’s interests in confidentiality. ECF No. 26. 10 The affidavit and related discovery were ordered produced pursuant to an Attorney’s Eyes Only 11 Protective Order. Id. That order prohibits plaintiff’s counsel from sharing the affidavit, including 12 any information that might identify the CI, with their client or specified other individuals. ECF 13 No. 36 (stipulated “Attorney’s Eyes Only Protective Order”) at 3, 4; ECF No. 37 (order adopting 14 same). 15 On January 18, 2017, plaintiff moved to compel discovery necessary for a deposition of 16 the CI. Plaintiffs sought an order requiring defendants to provide the full name, telephone 17 number, and address of the CI or, in the alternative, to produce the CI for a deposition at a 18 mutually agreed upon time and place. Id. Following consideration of the parties’ briefing and a 19 full hearing on the motion, the undersigned issued an order granting the motion to compel. ECF 20 No. 55. This order addressed the scope of the informer’s privilege at length. Id. at 2-5. The 21 order explained what was required of the defendants in no uncertain terms, stating as follows: 22 For the reasons set forth above, IT IS HEREBY ORDERED that: 23 24 1. Plaintiff’s Motion To Compel (ECF No. 41), is GRANTED; 25 2. Defendants shall either (1) produce the CI for deposition by plaintiff’s counsel, or (2) produce to plaintiff’s counsel the CI’s identifying information sufficient for CI to be subpoenaed to appear for a deposition; and 26 27 28 //// 2 1 3. Under either option, all parties shall act under the constraints of the Attorneys’ Eyes’ Only protective order, and the deposition shall be conducted pursuant to that order. See ECF No. 36. 2 3 Id. 4 Defendants requested reconsideration of the Magistrate Judge’s order by the District 5 Judge. ECF No. 71. The District Judge denied defendants’ request for reconsideration. ECF No. 6 77 at 5. 7 The parties, representing to the court that they had met and conferred in good faith and 8 were seeking to arrange a plan to depose the CI before the expiration of the discovery deadline, 9 sought and the court approved a brief extension of the discovery deadline to June 23, 2017 and 10 the dispositive motion deadline to June 30, 2017. ECF No. 83 at 3-4. This stipulation contained 11 language providing that the discovery deadline and dispositive motion deadline would be tolled, 12 solely concerning the deposition of the CI, if there was a pending discovery motion as of June 23, 13 2017. Id. The trial date, which was not impacted by the stipulation, is set for October 17, 2017. 14 ECF No. 59. 15 The deposition of the CI has not yet taken place. On May 25, 2017, plaintiff filed this 16 motion to compel defendants’ compliance with the court’s orders authorizing the deposition and 17 requiring defendants to either (1) produce the witness for a deposition, or (2) provide the 18 information necessary to issue a subpoena. ECF No. 81; ECF No. 86 at 12. Defendants assert 19 that the CI has agreed to voluntarily appear but only if he/she can appear behind a privacy screen. 20 Id. at 19. Defendants’ motion for a protective order seeks a court order for such a screen. ECF 21 No. 84. Plaintiff does not agree to the privacy screen. ECF No. 86 at 17. Further, plaintiff 22 argues that the CI’s privacy concerns have been resolved by this court’s prior order by subjecting 23 any deposition of the CI to the Attorneys Eyes Only protective order. Id. at 18. 24 II. Analysis 25 A. Plaintiff’s Motion To Compel Is Granted 26 Defendants’ conduct in is in flagrant violation of this court’s prior orders. The court was 27 very clear: defendants were to either produce the CI for a deposition voluntarily, or provide 28 3 1 plaintiff with the necessary information so that the CI could be subpoenaed. ECF No. 55 at 6. 2 This order fully accounted for the privacy concerns of the CI by subjecting any deposition to the 3 terms of the Attorneys Eyes Only protective order. Id. Indeed, the undersigned has twice 4 previously weighed the CI’s privacy and security needs against the plaintiff’s needs for discovery, 5 and concluded that limiting information about the CI to plaintiff’s counsel appropriately balances 6 the competing interests and protects the CI. That issue is not open for relitigation.1 7 Defendants’ unwarranted insistence on a privacy screen has unnecessarily delayed the 8 taking of the deposition, and now casts the entire litigation schedule in doubt. At oral argument, 9 defendants contended that they do not have control over the CI, who is a third party deponent and 10 is placing his/her own restrictions on his/her appearance at deposition. This argument is 11 disingenuous; defendants had, at all times, the option to provide plaintiff with the information 12 necessary to subpoena the CI. ECF No. 55 at 6. Indeed, if it was apparent that the CI would not 13 appear voluntarily under the terms of the orders already in effect, defendants were obligated to do 14 so. Id. To the extent defendants assert that this was not an option because of safety concerns for 15 the CI, their argument is baseless. This issue was explicitly litigated, and the court ruled that the 16 protections embedded in the Attorney’s Eyes Only protective order address the safety concerns. 17 Id. No further protections are necessary, and no further delay will be tolerated. 18 B. Plaintiff’s Request For Sanctions Requires Supplemental Briefing 19 Plaintiff requests sanctions for defendants’ misconduct but does not submit evidence to 20 establish the reasonable attorney’s fees associated with bringing the motion to compel. ECF No. 21 88 at 17. Accordingly, the matter of sanctions will be decided after supplemental briefing. 22 Plaintiff shall, within 21 days from entry of this order, submit supporting documentation for 23 reasonable attorney’s fees, and raise any issues related to sanctions. Defendants shall have 7 days 24 thereafter to respond. 25 //// 26 27 28 1 As plaintiff points out, any challenge to the adequacy of the Attorney’s Eyes Only provisions should have been raised on defendants’ motion for reconsiderations of the order regarding deposition of the CI. 4 1 C. Defendants’ Motion For A Protective Order Is Denied 2 Defendants’ motion for a protective order, which seeks a court order for a privacy screen 3 at the CI’s deposition, is improperly brought for the reasons already explained. To the extent 4 defense counsel claims to be acting pursuant to the CI’s wishes, he is reminded that the CI is not 5 his client. Rather than brining a motion on behalf of a third party witness, defendants should have 6 complied with the court’s previous order to provide plaintiff’s counsel with the information 7 needed for to subpoena the witness. 8 Moreover, the court notes that this motion was filed approximately two weeks after 9 plaintiff’s motion to compel, although it addresses the same issue of the CI’s deposition and could 10 have been addressed in the joint statement related to plaintiff’s motion, and/or separately filed in 11 time to be noticed for the same date as plaintiff’s motion. Further, defendants’ motion was 12 noticed for hearing on a date after the discovery deadline of June 23, 2017. When questioned at 13 oral argument, counsel for defendants relied on language in the most recent stipulation and order 14 extending discovery deadlines, which purports to toll or automatically extend both discovery and 15 dispositive motion deadlines upon the filing of any discovery motion prior to the June 23 16 deadline. This history suggests that defendants deliberately filed a motion that could not be heard 17 prior to June 23, in order to further their delay compliance with previous orders and require re- 18 setting of other dates. 19 20 For these reasons, and because a privacy screen is not needed to protect the CI’s safety and privacy in light of the protective order that is already in place, defendants’ motion is denied. 21 D. Tolling Language Is Vacated 22 As discussed at oral argument, any further extensions of time which may be necessary to 23 comply with existing discovery orders will necessarily impact the trial date in this matter. This is 24 a problem largely, though not entirely, of the parties’ own making.2 Accordingly, any further 25 requests to alter the schedule must be directed to U.S. District Judge Shubb. 26 27 28 2 The motion for reconsideration of the order authorizing the CI deposition was not resolved until three and a half months after issuance of the disputed order. That delay was unavoidable, and cannot be attributed to the parties. 5 1 As previously noted, the parties’ most recent stipulation extending the discovery deadline 2 provided that any motion regarding the CI deposition, filed on or before the new deadline of June 3 23, would have the effect of “stopping the clock” on the cutoff for the deposition and dispositive 4 motions deadlines pending resolution of the disputes. ECF No. 83 at 3:12-4:6. That provision 5 was improvidently approved and will be vacated. The court’s resolution of the currently pending 6 matters means that there are no outstanding discovery disputes which could be asserted to have 7 any “tolling” effect. Should the parties require additional time to complete the CI deposition, 8 which appears likely, they must seek an amended scheduling order from Judge Shubb that 9 addresses dispositive motions deadlines as well as pretrial and trial dates. 10 11 12 III. Conclusion For the reasons explained above, IT IS HEREBY ORDERED as follows: (1) Plaintiff’s Motion to Compel, ECF Nos. 81 & 86, is GRANTED insofar as defendants are 13 ordered to arrange for the voluntary appearance of the CI at a deposition, or provide 14 plaintiff with the information necessary to issue a subpoena, no later than June 23, 2017; 15 (2) The matter of sanctions remains under submission. Plaintiff shall submit a supplemental 16 declaration regarding sanctions, no later than 21 days from entry of this order; defendants 17 may reply no later than 7 days thereafter; 18 (3) Defendants’ Motion for a Protective Order, ECF No. 84, is DENIED; and 19 (4) The scheduling order at ECF No. 83 is AMENDED as follows: 20 a. Paragraph 1 (ECF No. 83 at 3:12-4:6) is VACATED with the exception of the first 21 sentence, which provides “That the current discovery cutoff of June 6, 2017 be 22 extended until June 23, 2017.”; 23 b. In light of the June 30, 2017, dispositive motions deadline, all further requests for 24 modification of the scheduling order are to be brought directly before the District 25 Judge. 26 DATED: June 21, 2017 27 28 6

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