Bell v. Lee et al

Filing 99

ORDER RE: DISCOVERY DISPUTES (Illston, Susan) (Filed on 4/10/2017)

1
2

UNITED STATES DISTRICT COURT

3

NORTHERN DISTRICT OF CALIFORNIA

4
5

VINCENT KEITH BELL,

Case No. 13-cv-05820-SI

Plaintiff,

6

ORDER RE DISCOVERY DISPUTES

7

v.

8

KEN LEE, et al.,

Re: Dkt. No. 88
Defendants.

9
10

United States District Court
Northern District of California

11

Plaintiff Vincent Keith Bell brings this civil rights action against several defendants under

12

42 U.S.C. § 1983. The Court previously granted summary judgment for defendants on two of

13

Bell’s claims. Dkt. No. 48. His excessive force claim remains. Id. At the March 2, 2017 case

14

management conference, the Court ordered the parties’ counsel to meet and confer on several

15

topics. Civil Minutes (Dkt. No. 77). The parties filed a joint statement indicating that some

16

disagreements could not be resolved at the meet and confer session, and subsequently filed the

17

instant statement of discovery disputes pursuant to the Court’s standing order.

18

Statement (Dkt. No. 82); Joint Statement Regarding Discovery Disputes (Dkt. No. 88). The Court

19

addresses each dispute separately.

Joint Status

20
21

I.

Plaintiff’s Requests for Production

22

A.

Prior Incidents Involving Defendants (RFPs 17 and 18)

23

Bell requests documents related to any accusations of use of force by defendants against

24

other detainees. Dkt. No. 88, Ex. 1, RFPs 17, 18.1 Among other assertions, defendants objected

25
1

26
27
28

Amended RFP 17: “If you have ever been accused of using force against any detainee
other than Mr. Bell, all non-privileged documents and communications relating that alleged used
use or those alleged uses of force.” Dkt. No. 88, Ex. 1.
Amended RFP 18: “All documents and communications relating to any administrative
complaint made against you, any internal investigation of you, any SF County Jail grievance

1

that RFPs 17 and 18 call for confidential and privileged information under California Penal Code

2

§ 832.7, “the official information privilege, the investigation privilege, and the deliberative

3

process privilege.” Id. However, they now state that they are reviewing and producing excessive

4

force complaints against them for the past five years. Dkt. No. 88 at 2-3. Defendants seek a

5

limiting instruction to produce only those records or, alternatively, request that the Court review in

6

camera relevant materials older than five years to determine whether they must be produced. Id.

7

at 3.

8

approximately four years ago and that earlier uses of force by defendants are just as relevant as

9

incidents occurring afterward. Id. at 1.

Bell argues that the alleged excessive force incident underlying his claim occurred

In accordance with their agreement, defendants are ordered to produce the excessive force

11
United States District Court
Northern District of California

10

complaints against them for the past five years (April, 2012 - April, 2017) forthwith. In addition,

12

the Court ORDERS that all excessive force complaints against defendants predating April, 2012

13

be provided to the Court for in camera review no later than April 21, 2017.

14
15

B.

16

RFP 15 requests “[a]ny visual or audio recordings of any interview conducted by internal

17

affairs with inmates regarding the incident.” Dkt. No. 88, Ex. 2 at 10. Defendants state that they

18

“will not produce the names of any inmate witnesses or any recording of their interviews, for fear

19

of retaliation by [Bell] or other prisoners, unless ordered to by the Court.” Dkt. No. 88 at 2. Bell

20

argues that he is unable to effectively litigate his case without knowing the identity of the inmates

21

who witnessed the underlying incident, especially because “all jail staff who have testified so far

22

have claimed to have no recollection at all of the incident.” Id. at 1. He also contends that this

23

objection is speculative because defendants have not identified any specific threat. Id. at 2. Bell

24

offered to designate the information as “attorneys’-eyes-only.” Id.

Identification of Witnesses (RFP 15)

25

Although defendants may have legitimate security concerns, they have not proffered any

26

reason why an “attorneys’ eyes only” designation would not be sufficient to quell these concerns.

27
28

against you, or any disciplinary action taken against you related to any use of force, or threatened
use of force, on an inmate.” Id.
2

1

Therefore, defendants are ORDERED to produce materials responsive to RFP 15 and to designate

2

such materials as “attorneys’ eyes only.” Bell’s counsel shall not share with Bell the information

3

contained in the responsive materials, including the identity of the inmate witnesses, without leave

4

of Court.

5
C.

7

Bell asserts that defendants produced videos of the incident from three cameras, but “in a

8

recent inspection” Bell’s counsel found at least three more cameras in places where the incident

9

occurred. Dkt. No. 88 at 2. Bell now seeks production related to the location of recording devices

10

in place at the time of the incident and defendants’ retention policy for recordings. See RFPs 12,

11
United States District Court
Northern District of California

6

16.2 Defendants claim that they are still trying to locate documents responsive to RFP 12 and that

12

producing such documents could jeopardize jail security. Dkt. No. 88 at 2. They also claim that

13

there are no documents responsive to RFP 16. Id. Bell responds that defendants’ safety concerns

14

are addressed by the protective order. He also asserts that, based on defendants’ counsel’s prior

15

statements, it is unlikely that there are no materials responsive to RFP 16. Bell argues that

16

defendants should perform a search for materials related to RFP 16 and detail what they did.

Camera Locations & Recording Retention Policy (RFPs 12 and 16)

17

Defendants are ORDERED to produce all materials responsive to RFPs 12 and 16. To the

18

extent that there is a security risk from the disclosure of the location of recording devices four

19

years ago, it is addressed by the parties’ protective order. If there are no materials responsive to

20

one or the other of these RFPs, defendants provide a sworn declaration from a person with

21

knowledge of the matter, so stating.

22
23
24
25
26
27
28

2

RFP 12 seeks “[d]ocuments sufficient to show the location at the time of the incident
every visual or audio recording device (e.g., cameras, microphones) in any area within San
Francisco County Jail #5 in which any part of the incident took place, including unit 3B, the
medical unit, the safety cell, and any hallway between unit 3B and the medical unit, and, if the
location of any such devices has changed since the incidents, documents sufficient to show such
changes.” Dkt. No. 88, Ex. 2.
RFP 16 requests “[d]ocuments sufficient to show any applicable document retention
policy, including for visual or audio recordings.” Id.
3

1

II.

Bell seeks a 30 minute continuation of the deposition of Mary Jane Cabuag, a nurse who

2
3
4
5
6
7
8
9

treated Bell. At the original deposition, Bell’s counsel showed Cabuag a photograph that counsel
represented was of “Bell being transported into the safety cell” before Cabuag examined him.
Dkt. No. 88, Ex. 3 at 61. Bell’s counsel asked, “In your opinion, as a nurse, could the manner in
which Mr. Bell is being carried in this picture injure his shoulder?” Id. Defendants’ counsel
objected that the question called for speculation and expert testimony, and instructed Cabuag not
to answer. Id. at 62. Bell’s counsel asked variations of the same question and defendants’ counsel
continued to object and instruct Cabuag not to answer. Cabuag followed that instruction.
Bell argues that the instruction not to answer was improper under Federal Rule of Civil

10

United States District Court
Northern District of California

11
12
13
14

Procedure 30(c)(2). Dkt. No. 88 at 3. Defendants, on the other hand, assert that it is improper to
ask Cabuag about any potential medical implications because she is not an expert witness. Id. at
4. They seek a limiting instruction to prevent “questions designed to elicit expert testimony from
either percipient witnesses or persons who did not witness the incident.” Id.
The Court agrees with Bell that the instruction not to answer was improper. Defendants

15
16
17
18

Cabuag Deposition

can state their objections on the record during the deposition, but cannot instruct the witness not to
answer. Whether any testimony resulting from the above line of questioning is admissible at trial
is not decided in this order.
His request for a 30 minute continuation of the deposition is GRANTED.

19
20
21
22
23
24
25
26
27
28

III.

Requests for Admissions
In RFAs 6 through 10, Bell asks each defendant to admit that he “purposely and knowingly

used force” against Bell during the incident. Dkt. No. 88, Ex. 4. Each defendant responded by
admitting “that he used reasonable force, with ‘force’ being defined as any touching of Plaintiff
during the incident, and ‘incident’ being defined as the time between when Plaintiff refused to reenter his cell and the time the door to the safety cell was closed.” Id. Bell argues that whether
defendants “purposely and knowingly used force” is a basic element of excessive force claims,
and that whether the force used was reasonable is a separate element.
4

Dkt. No. 88 at 4.

1

Defendants assert that they should not be required to subjectively analyze their conduct because

2

the relevant standard for determining whether the alleged use of force was done “purposely and

3

knowingly” is objective. Id.

4

In support of their arguments, both parties cite to Kingsley v. Hendrickson, which held

5

“that a pretrial detainee must show only that the force purposely or knowingly used against him

6

was objectively unreasonable.” 135 S. Ct. 2466, 2473 (2015). The Court also noted that for an

7

excessive force claim to proceed, “the defendant must possess a purposeful, a knowing, or

8

possibly a reckless state of mind . . . because . . . ‘liability for negligently inflicted harm is

9

categorically beneath the threshold of constitutional due process.’”

Id. at 2472 (original

emphasis). Kingsley held only that an objective standard must be applied to whether the force

11
United States District Court
Northern District of California

10

used was excessive. It did not state that an objective standard should also be used to determine

12

whether a defendant used force “purposely or knowingly.” Thus, defendants must answer the

13

RFAs directly.

14
15

IV.

Defendants’ Proposed Stay

16

Defendants request that this case be stayed until the end of the pending criminal

17

proceedings against Bell. This request is not properly brought in a discovery dispute. (Indeed, the

18

stay request is at issue in two recently filed motions set to be heard on May 5, 2017. See Dkt. Nos.

19

91, 94.) Therefore, the Court declines to address defendants’ request for a stay at this time.

20
21
22
23
24

IT IS SO ORDERED.
Dated: April 10, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

25
26
27
28
5