Frary et al v. County of Marin et al

Filing 87

Discovery Order Re: Dkt. Nos. 69, 70, 72. Signed by Judge Maria-Elena James on 5/20/2014. (cdnS, COURT STAFF) (Filed on 5/20/2014)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LYNNETTE FRARY, et al., Case No. 12-cv-03928-MEJ Plaintiffs, 8 DISCOVERY ORDER v. Re: Dkt. Nos. 69, 70, 72 9 10 COUNTY OF MARIN, et al., Defendants. United States District Court Northern District of California 11 12 INTRODUCTION Plaintiffs Lynette Frary, Jamie Ball, and Heather Howard (“Plaintiffs”) bring this case 13 14 under 42 U.S.C. § 1983 and related state law claims arising out of the death of Anthony Brandon, 15 who died after secretly ingesting lethal quantities of drugs while being transported to the Marin 16 County Jail (“MCJ”). Compl. ¶¶ 4-10. Plaintiffs allege that one of the arresting officers knew 17 Brandon had ingested the drugs, but failed to convey this vital information to medical staff. Jt. 18 Ltr. at 2, Dkt. No. 69. Currently pending before the Court are the parties’ joint letter briefs regarding Plaintiffs’ 19 20 motions to: (1) compel Defendants to produce for deposition the person(s) most knowledgeable 21 (“PMK”) on certain deposition topics (Dkt. No. 69); (2) compel Defendant County of Marin 22 (“County”) to produce additional PMK witnesses (Dkt. No. 70); and (3) compel the County to 23 allow physical inspection and testing of portions of the jail facility where Brandon was held. DISCUSSION 24 25 A. Whether the Deposition Should Proceed 26 As a preliminary matter, Plaintiffs request the Court extend the discovery cutoff in order to 27 allow them to reschedule Defendants’ PMK depositions. Jt. Ltr. at 2, Dkt. No. 70. Fact discovery 28 in this case ended on January 17, 2014. Id. Since Plaintiffs have moved for an extension after the 1 time has expired for completing discovery, Plaintiffs must demonstrate good cause for an 2 extension of discovery as well as excusable neglect for failing to complete discovery by the cutoff 3 date. Fed. R. Civ. P. 60(b). This “good cause” standard primarily considers the diligence of the 4 party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 5 1992). Additionally, Civil Local Rule 37–3 provides, “Discovery requests that call for responses 6 or depositions after the applicable discovery cut-off are not enforceable, except by order of the 7 Court for good cause shown.” Civ. L.R. 37–3. 8 Plaintiffs assert that good cause exists to extend fact discovery to take the PMK depositions. In support of their argument, Plaintiffs assert that they first served the PMK notice on 10 October 24, 2013, at which point a dispute developed as to the scope of the topics. Dkt. No. 70 at 11 United States District Court Northern District of California 9 2. On November 6, 2013, the parties met and conferred regarding the scope of the topics 12 presented in the notice, but a number of topics remained unresolved. Id. Plaintiffs’ counsel states 13 that he intended to first resolve these remaining issues before re-noticing the PMK depositions, but 14 delayed based on Defendants’ suggestion that no depositions be set until after the December 5, 15 2013 mediation. Id. Then, on December 9, 2013, counsel’s two year-old became seriously ill 16 with an intestinal virus and had to go to the emergency room. Id. Next, counsel’s entire family 17 became ill, and counsel was incapacitated for a week. Id. Counsel states that he did not schedule 18 the depositions thereafter because he understood Defendants’ Notice of Unavailability of Counsel 19 to mean the entire office was unavailable from December 20, 2013 - January 6, 2014. Id. Other 20 matters and holiday obligations further lead to the delay. Id. When Plaintiffs attempted to 21 schedule the PMK depositions on January 10, 2014, the only unscheduled days left before the 22 discovery cutoff date were January 15th and 16th. Id. at 3. 23 Defendants oppose reopening discovery, arguing that Plaintiffs’ belated attempt to 24 schedule the PMK depositions is improper and unreasonable, given counsel’s awareness of the 25 looming January 17, 2014 deadline in mid-November. Id. Defendants also argue that Plaintiffs 26 failed to give reasonable notice as required by Federal Rule of Civil Procedure (“Rule”) 30(b)(1), 27 as the notices gave only three business days’ notice, which is insufficient and improper given that 28 only two days were available before the discovery cutoff, with an intervening deposition in South 2 1 Carolina. Id. Upon review of the parties’ arguments, the Court finds Plaintiffs’ reasons for the delay are 2 lean, given the importance of the PMK depositions to this case and the narrow timeline in which 4 to schedule them. However, the Court finds that Plaintiffs have made a sufficient showing of 5 good cause to extend fact discovery for the limited purpose completing the PMK depositions. 6 Although not handled in an ideal manner, Plaintiffs have established that their efforts to timely 7 schedule the depositions were hampered by a reasonable misunderstanding and intervening illness. 8 When Plaintiffs became aware of their mistake, they diligently tried to schedule the deposition 9 prior to the discovery cut off, and then promptly moved for relief when they were unable to do so. 10 Accordingly, the Court GRANTS Plaintiffs’ motion to extend the discovery cutoff for the purpose 11 United States District Court Northern District of California 3 of taking the PMK depositions. 12 B. 13 Rule 30(b)(6) Deposition Topics The parties dispute the inclusion of seven topics in Plaintiffs’ Rule 30(b)(6) deposition 14 notice. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 15 party’s claim or defense.... Relevant information need not be admissible at the trial if the 16 discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. 17 Civ. P. 26(b)(1). On a discovery motion, the court must limit the frequency or extent of discovery 18 otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; 19 20 (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or 21 22 (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. 23 24 25 Fed. R. Civ. P. 26(b)(2)(c). 26 1. 27 Topic No. 2 seeks to compel production of a PMK witness regarding “policies and 28 Topic Nos. 2 and 25 procedures relating to the identification of controlled substances found among the belongings of 3 1 prisoners during booking searches.” Jt. Ltr. at 2, Dkt. No. 69. Plaintiffs contend that this topic is 2 designed to elicit whether there were unwritten policies and procedures at the MCJ which varied 3 from the written policies and procedures produced by the County, such as whether deputies 4 conveyed information regarding drugs identified on an arrestee to the nursing staff. Id. 5 Defendants object to this topic on the grounds that it would not lead to the discovery of relevant 6 evidence because these policies and procedures concern the identification of substances for the 7 sole purpose of developing charging information. Id. 8 Topic No. 25 seeks to compel production of a PMK witness regarding “the identification by deputies of the pills found in the possession of decedent on July 29, 2011.” Id. at 5. Plaintiffs 10 argue that they are entitled to this information, and all details of the investigation, because they are 11 United States District Court Northern District of California 9 “entitled to know the details concerning their investigation, including the sources they used and 12 the information they discovered.” Id. Defendants argue that this information is irrelevant because 13 any investigation was for the purpose of evaluating criminal charges, not for triggering medical 14 monitoring. Id. 15 Upon review of the parties’ arguments, the Court finds that neither of these topics pertains 16 to procedures for medical care or monitoring of arrestees or inmates. Accordingly, Plaintiffs’ 17 motion to compel testimony regarding Topic Nos. 2 and 25 is DENIED. 18 2. Topic No. 13 19 Topic No. 13 seeks to compel production of a PMK witness to testify regarding “policies 20 and procedures for tracking the time during which a prisoner in the Administrative Segregation 21 section has remained unconscious.” Id. at 3. Plaintiffs argue that this information is relevant 22 because Brandon was not seen to be conscious or responsive after the 10:30 p.m. visit from 23 Officer Commisto on the evening of July 29, 2011, and they are entitled to discover whether MCJ 24 had a policy to monitor such inmates. Id. Defendants contend that the term “unconscious” is too 25 vague. Id. Defendants maintain that Brandon appeared to be sleeping normally, and there is no 26 policy for tracking sleeping inmates. Id. 27 28 The Court finds that PMK testimony on this topic is relevant to Plaintiffs’ claims, as the crux of the parties’ dispute is whether Brandon was properly monitored during his stay in the 4 1 segregation cell at the MCJ. Accordingly, the motion to compel production of a PMK witness to 2 testify regarding MCJ’s policy is GRANTED. 3 3. Topic Nos. 19-21 4 Topic Nos. 19 and 20 concern database entries made by Deputy Sheriff 1573. Topic No. 5 19 seeks a deponent to testify regarding “the purpose and intent behind the database entry by the 6 Deputy Sheriff with badge number 1573 at 17:43 on July 29, 2013, conveying what that deputy 7 was told by Nurse ‘Shannon Fenley.’ [sic].” Id. at 3. Topic No. 20 seeks a deponent to testify 8 regarding “the purpose and intent of the entry into the Tiburon database reflected in the document 9 that was Bates-numbered 01088 COM.” Id. at 4. Topic No. 21 seeks a deponent to testify regarding “the identity of the deputy whose badge number was 1573.” Id. Plaintiffs argue that 11 United States District Court Northern District of California 10 they are entitled to depose a PMK to clarify whether the Deputy Sheriff’s entries pertained to 12 monitoring Brandon during the hours he was held in booking for observation by nursing staff, or 13 to when he was placed alone in an administrative segregation cell. Id. at 3-4. Plaintiffs declined 14 to notice the Deputy Sheriff’s deposition prior to the close of fact discovery. Id. at 4. 15 The Court DENIES Plaintiffs’ motion to compel deposition witnesses on these topics. 16 Nurse Fetterly is the author of the comment to the deputy requesting that he or she “please monitor 17 inmate,” and is thus the person most knowledgeable about the “purpose and intent” of her 18 comment. Id. at 3-4. Plaintiffs have already deposed Nurse Fetterly, and they may not use a 19 30(b)(6) deposition to depose a percipient witness they omitted to notice prior to the close of fact 20 discovery. Fed. R. Civ. P. 26(b)(1)(ii). 21 4. Topic No. 30 22 Topic No. 30 seeks a deponent to testify to whether “any changes of or to the furnishings 23 within cell 1 of the Administrative Segregation section of the Marin County Jail” have been made 24 since Brandon’s incarceration. Jt. Ltr. at 3-4. Defendants object to providing a deponent to testify 25 to this issue, but are willing to formally state that there has been no change. Id. at 5. Accordingly, 26 the Court finds no reason to order a deposition for the purpose of making a formal record of the 27 County’s response, and thus DENIES Plaintiffs’ motion to compel deposition witnesses on this 28 topic. However, as Defendants state that no changes have been made, they shall provide a 5 1 declaration stating that “no changes of or to the furnishings within cell 1 of the Administrative 2 Segregation section of the Marin County Jail” have been made since Brandon’s incarceration. The 3 declaration must be served by May 27, 2014. 4 5 C. Plaintiffs’ Motion to Compel Physical Inspection of MCJ Plaintiffs seek an order compelling the County to permit them to inspect, photograph, and 6 test portions of the MCJ, including the Administrative Segregation tower; Cell No. 1, where 7 Brandon was housed; the intercom system used to communicate between the tower and the cells; 8 the booking area; and sobering, safety and/or observation cells. Jt. Ltr. at 2, Dkt. No. 72. 9 Plaintiffs argue that the inspection is relevant to whether the jail guards were able to conduct direct visual observation of Brandon, as required by state prison regulations. Id. Plaintiffs argue they 11 United States District Court Northern District of California 10 are entitled to determine what portions of Cell No. 1 can actually be seen from the tower. Id. at 3. 12 Plaintiffs also argue they are entitled to discover whether the intercom system actually allows 13 guards to detect the sound of an individual inmate’s breathing while at rest. Id. Plaintiffs contend 14 information gathered from the inspection is relevant to show whether any regular safety checks 15 were conducted by guards from the Administrative Segregation pod tower. Id. Plaintiffs 16 additionally argue that no privacy or safety concerns will be implicated by the inspection, which 17 will take approximately 45 minutes. Id. at 4. 18 Defendants object on the grounds of relevance. Id. Specifically, Defendants assert that 19 there is no need for any special monitoring of inmates who report opiate withdrawal because jail 20 policy is to use such information to alert medical staff for treatment purposes alone. Id. 21 Defendants also contend that the need for the inspection would fail to lead to the discovery of any 22 relevant evidence because Brandon was observed to be breathing normally at both 5:30 a.m. and 23 8:40 a.m. on the day of his death. Id. at 5. Defendants additionally contend that the inspection 24 would violate the inmates’ privacy, as the cells are open to view. Id. Last, security risks from 25 allowing outsiders to observe the jail layout and staffing, coupled with internal safety concerns 26 stemming from the relocation of inmates during the inspection also militate against allowing the 27 inspection. Id. 28 Upon review of the parties’ arguments, the Court finds that an inspection is reasonable in 6 1 light of Plaintiffs’ claims and the circumstances surrounding Brandon’s death. Accordingly, the 2 Court GRANTS the motion to compel the physical inspection of the Marin County Jail. The 3 Court is also mindful of the safety and privacy concerns implicated by the inspection, and 4 therefore ORDERS the parties to meet and confer to develop a proposal that allows the County to 5 protect the safety and privacy of the jail, while allowing Plaintiffs reasonable access to the 6 facilities. CONCLUSION 7 8 Based on the analysis above, the Court ORDERS as follows: 9 1) The Court GRANTS Plaintiffs’ motion to extend the discovery cutoff for the purpose of taking a PMK deposition with respect to Topic No. 13 only. Said 11 United States District Court Northern District of California 10 depositions shall be completed by June 23, 2014. The Court reserves the right to: 12 (a) apportion costs until all of the issues surrounding the PMK deposition are 13 resolved; and (b) limit the number of deponents in accordance with this Order; 14 2) The Court GRANTS Plaintiffs’ motion to compel a physical inspection of the 15 Marin County Jail. The parties are ORDERED to meet and confer to develop a 16 proposal for the inspection by June 9, 2014; and 17 18 19 3) Defendants shall serve the declaration regarding changes to Administrative Segregation Cell 1 by May 27, 2014. IT IS SO ORDERED. 20 21 22 23 Dated: May 20, 2014 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 24 25 26 27 28 7

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