Tindle et al v. City of Daly City et al

Filing 155

ORDER re Deposition of Plaintiff Sahleem Tindle 150 ; Plaintiff Banks-Reed's Unilateral Discovery Letter re Discovery Materials Designated "Attorney's Eyes Only" 151 by Magistrate Judge Donna M. Ryu. (dmrlc3, COURT STAFF) (Filed on 6/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAHLEEM TINDLE, et al.,

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Case No. 13-cv-02449-HSG (DMR)

Plaintiffs,
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ORDER RE DEPOSITION OF
PLAINTIFF SAHLEEM TINDLE;
PLAINTIFF BANKS-REED’S
UNILATERAL DISCOVERY LETTER
RE DISCOVERY MATERIALS
DESIGNATED “ATTORNEY’S EYES
ONLY”

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Re: Dkt. Nos. 150, 151, 153

v.
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CITY OF DALY CITY, et al.,

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United States District Court
Northern District of California

Defendants.

Before the court are two unilateral discovery letters. The first contains Defendants’ motion

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to compel Plaintiff Sahleem Tindle to appear for his deposition, which most recently was noticed

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for May 24, 2016. Defendants’ May 19, 2016 Unilateral Discovery Letter [Docket No. 150]. In

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the second letter, Plaintiff Banks-Reed challenges the designation of certain discovery as

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“Attorney’s Eyes Only,” and seeks production of all such designated discovery directly to

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Plaintiffs, who now are proceeding pro se.1 Banks-Reed also seek sanctions against Defendants

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for an alleged failure to meet and confer. Plaintiff Banks-Reed’s May 19, 2016 Unilateral

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Discovery Letter [Docket No. 151]. The presiding judge, the Hon. Haywood S. Gilliam, Jr., has

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referred all discovery disputes in this case to the undersigned. [Docket No. 99.]

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I.

Plaintiffs Sahleem Tindle, Yolanda Banks-Reed, Ciara Turner, minor R.R., minor I.T., and

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FACTUAL BACKGROUND

Kevin Reed filed the present action in May 2013 against Defendants the City of Daly City (“the

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Plaintiffs were initially represented by the Law Offices of John L. Burris. [Docket No. 1.] That
firm moved to withdraw as counsel, and the court granted the motion in June 2014. [Docket Nos.
33 and 43.] The court subsequently referred plaintiffs to the Federal Pro Bono Project and
Stephen Akerley of the law firm of Dechert LLP was appointed as pro bono counsel for Plaintiffs
in December 2014. [Docket Nos. 67 and 73.] In January 2016, Plaintiffs’ counsel made a motion
to withdraw, which the court granted in February 2016. [Docket Nos. 127 and 136].

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City”), and Daly City Police Officers Shane Hart and Mario Busalacchi. The lawsuit challenges

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conduct arising out of a traffic stop on April 18, 2012 in Daly City, California. Complaint

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[Docket No. 1] ¶¶ 1, 15, 16. In the course of the traffic stop, a physical altercation ensued

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between Tindle and the Defendant officers. Id. at ¶¶ 21-22. One of the Defendant officers

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deployed his taser on Tindle. Id. at ¶ 22.
Tindle brings claims for violation of 42 U.S.C. §1983, assault and battery, false arrest and

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imprisonment, intentional infliction of emotional distress, violation of California Civil Code §§

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51.7 and 52.1, and negligence against Hart and Busalacchi. Plaintiffs Banks-Reed, Reed, minor

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R.R., and Ciara Turner bring a claim for negligent infliction of emotional distress against the City,
Hart and Busalacchi.2 See Compl.

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United States District Court
Northern District of California

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II.

PLAINTIFF TINDLE’S DEPOSITION

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On June 17, 2015, Defendants first noticed Tindle’s deposition to take place on July 27,

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2015. Joint Statement of Discovery History, Nov. 20, 2015 Joint Discovery Letter [Docket No.

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112] at 2. After lengthy meet and confer efforts, Defendants served Plaintiffs with deposition

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notices for depositions beginning on October 19, 2015. Id. at 2-3. Plaintiffs subsequently

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informed Defendants that they were no longer available the week of October 19, 2015, but offered

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the week of October 26, 2015. Id. at 3. After more communication, Plaintiffs’ counsel agreed to

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make Tindle available for deposition on Monday, October 26, 2015, with the remaining Plaintiffs

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to follow. Id. On the afternoon of Friday, October 23, 2015, Plaintiffs’ counsel informed

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Defendants that Tindle would not be appearing for his deposition on October 26, 2015. On

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November 5, 2015, Plaintiffs informed Defendants for the first time that it was unclear whether

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Tindle would be able to provide deposition testimony in the case due to mental health issues. Id.

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at 3-4.
On November 20, 2015, the parties filed a joint discovery letter in which Defendants

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sought to compel Tindle to appear for his deposition, or to stay the case if Tindle was not able to

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give accurate deposition testimony. Id. Plaintiffs conceded that Defendants had a right to depose

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The parties stipulated to the dismissal with prejudice of minor I.T.’s claims. [Docket No. 102.]
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Tindle, but argued that Defendants did not have a right to depose Tindle before the other Plaintiffs.

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Id. at 6. Defendants argued that Tindle was the “main witness, protagonist and only individual

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who has brought civil rights clams against Defendants” and that his testimony was essential to

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Defendants’ ability to defend against the case. [Docket No. 112 at 5.]

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The undersigned held a hearing on the dispute on November 30, 2015. At the hearing,

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Plaintiffs’ pro bono counsel represented to the court that Tindle was unable to sit for his

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deposition due to the fact that he was suffering from Post-Traumatic Stress Disorder, which

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rendered him unable to recount the basic facts of the case. Counsel stated that Tindle had started

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seeing a therapist in the last two weeks and that counsel had requested a release from Tindle and
an assessment from the therapist, but had not been able to obtain them. The court instructed

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United States District Court
Northern District of California

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Plaintiffs’ counsel to make best efforts to submit an assessment from Tindle’s therapist within a

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week. Plaintiffs did not submit the assessment. Instead, on December 11, 2015, Plaintiffs filed a

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letter stating that Tindle would appear for his deposition. Dec. 11, 2015 Letter from Plaintiffs’

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counsel [Docket No. 120]. In light of this change in position, the court instructed the parties to

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submit a stipulated proposed deposition schedule. [Docket Nos. 121-123.] The parties’ proposed

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schedule set Tindle’s deposition on January 14, 2016, prior to the depositions of the other

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Plaintiffs or the Defendant officers. December 17, 2015 Letter with Joint Proposed Deposition

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Schedule [Docket No. 122]. The undersigned approved the schedule and directed the parties to

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submit a proposal for an extension for the fact discovery cut-off to Judge Gilliam. Order re

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Parties’ Joint Proposed Deposition Schedule [Docket No. 123].

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Prior to the date of Tindle’s deposition, Plaintiffs’ pro bono counsel filed a motion to

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withdraw as counsel of record. Motion to Withdraw [Docket No. 127]. Judge Gilliam granted the

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motion on February 19, 2016. Order Granting Motion to Withdraw [Docket No. 136]. Tindle’s

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deposition did not go forward.

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On March 22, 2016, Judge Gilliam held a case management conference (“CMC”) with

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Plaintiffs Banks-Reed and Reed and Defendants’ counsel in attendance. March 22, 2016 CMC

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Minute Order [Docket No. 137.] At the conference, Plaintiff Banks-Reed agreed to accept service

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on behalf of all of the Plaintiffs. March 22, 2016 CMC H’rg Tr. [Docket No. 149] at 8:4-25.
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Judge Gilliam told the parties that the depositions of the Plaintiffs and the Defendant officers had

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to move forward promptly, and instructed the parties to meet and confer to update the previously

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agreed-upon deposition schedule. Id. at 4:15-22, 9:12-21, 11:21-12:7. Judge Gilliam issued a

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scheduling order extending the fact discovery cutoff to August 5, 2016. Scheduling Order

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[Docket No. 138].

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On May 10, 2016, Defendants served a notice for Tindle’s deposition for May 24, 2016,

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which Defendants state was the only date that Plaintiffs had provided for Tindle’s deposition.

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Defendants’ May 19, 2016 Unilateral Discovery Letter [Docket No. 150 at 3]; Deposition Notice

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[Docket No. 150, Ex. 3]. The depositions for Banks-Reed, minor R.R., Ciara Turner, minor I.T.,

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United States District Court
Northern District of California

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and Reed were noticed for May 25 and 26, 2016. Deposition Notice [Docket No. 150, Ex. 3.]
On May 19, 2016, Defendants filed a unilateral discovery letter asking the court to compel

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Tindle to appear for his deposition on May 24, 2016. [Docket No. 150.] According to

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Defendants, Tindle had not objected to the notice of deposition, nor did he confirm his intent to

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appear at the May 24, 2016 deposition. Id. On May 31, 2016, the court issued a clerk’s notice

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requesting that Defendants indicate whether Tindle had appeared for his deposition. [Docket No.

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152.] Defendants filed a letter stating that Tindle’s deposition did not go forward on May 24,

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2016 because Banks-Reed informed Defendants on May 20, 2016 that she could not confirm

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whether or not Tindle would attend his deposition. Defendants’ June 1, 2016 Letter [Docket No.

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153.] Defendants stated that they took the depositions off calendar to avoid the expense of the

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videographer and court reporter. Id.

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In light of this history, it is clear that Tindle’s deposition should go forward without further

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delay. The undersigned orders that by Monday, June 6, 2015, Tindle must file a letter that

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provides at least five available weekday dates for deposition during the weeks of June 6, 2016 and

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June 13, 2016. Defendants shall promptly re-notice Tindle’s deposition for one of his available

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dates. Tindle’s failure to attend his deposition may result in sanctions. The parties shall also

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immediately meet and confer to schedule depositions for the remaining Plaintiffs and the

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Defendant Officers. Those depositions shall take place after Tindle’s deposition.

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III.

PLAINTIFFS’ ACCESS TO “ATTORNEY’S EYES ONLY” MATERIAL
On May 19, 2016, Plaintiff Banks-Reed filed a unilateral discovery letter seeking access to

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all material designated as “Attorney’s Eyes Only” (“AEO”) material directly to pro se Plaintiffs.

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[Docket No. 151]. Defendants have not filed a response or otherwise informed the court of their
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position on the issues set forth in the letter.
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By June 10, 2016, Defendants are hereby ordered to file a two-page response to Plaintiff’s

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discovery letter. Defendants shall inform the court of the volume and types of materials that they
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have designated as AEO in this case. Defendants shall also attach a log, similar to a privilege log,
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identifying the materials designated as AEO, the basis for withholding the materials from the
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Plaintiffs, and whether Defendants’ concerns about Plaintiffs’ access to the discovery materials

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can be addressed through redactions.

United States District Court
Northern District of California

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IT IS SO ORDERED.
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Dated: June 3, 2016
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______________________________________
Donna M. Ryu
United States Magistrate Judge

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