Burns et al v. City of Concord et al

Filing 169

Discovery Order. The attached order reflects the rulings at today's case-management conference including discovery about informant information, the Rule 30(b)(6) deposition, the extension of fact discovery to allow these events and the deposi tions of the two additional fact witnesses, the referral for a settlement conference with Chief Magistrate Judge Joseph C. Spero, the possible extension regarding expert discovery, the early summary-judgment motion regarding Mr. Bell and the defendan ts involved in Mr. Lawrence's detention, and a correction of the last hearing date for dispositive motions, which is Thursday, August 3, 2017, and not Monday, July 31, 2017 (the date on the parties' earlier stipulation). (Beeler, Laurel) (Filed on 2/16/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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JOHN BURNS, et al.,

Case No. 14-cv-00535-LB

Plaintiffs,

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DISCOVERY ORDER

v.

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GUY SWANGER, et al.,

Re: ECF No. 161

Defendants.

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The parties filed a discovery letter brief with two issues: (1) disclosure of information about

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informants, and (2) the appropriateness and scope of a Rule 30(b)(6) deposition on Monell issues.1

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The parties also raised other issues in their case-management statement. The court held a hearing

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on February 16, 2017, and ordered the following.

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1. Discovery About Informants
The parties dispute whether the plaintiffs are entitled to discovery about what informants said

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about the decedent Charles Burns, and the identity and reliability of the informants. The court

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Discovery Letter Brief — ECF No. 161. Record citations refer to material in the Electronic Case File
(“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

ORDER — No. 14-cv-00535-LB 

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ordered discovery about what the informants said about Mr. Burns and the informants’ reliability.

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The court denied the request for disclosure of the informants’ identities.

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Preserving an informant’s anonymity protects the public interest in effective law enforcement,

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but the privilege is not absolute. It is qualified and gives way when the informant’s identity or

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knowledge — as in the case of a percipient witness — is relevant and helpful to the defense or is

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essential to a fair determination of a case. Roviaro v. United States, 353 U.S. 53, 60–61, 63 (1957).

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The court cannot discern at this point how the informants’ identities are relevant and helpful to

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the defense or is essential to a fair trial. Id. at 60–61. The issue is not whether the information

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from informants actually was accurate and reliable and instead is whether the affiant (and

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United States District Court
Northern District of California

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potentially others) reasonably relied on the information.
By contrast, discovery about informant information and reliability is relevant. The informants

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are not percipient witnesses, but information from them was the basis for the search warrant and

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the acts that caused Mr. Burns’s death. The reasonableness of the law-enforcement actions that

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day turns on what the officers knew and what they reasonably relied on. And at least for the lead

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investigative officer, he knew more about the informants than he put in the search-warrant

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affidavit. The court draws this conclusion because the affidavit is slim on details about the

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informants, including their incentives to cooperate and their reliability. Information about the

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informants’ reliability — such as criminal history, pending charges, payments and other incentives

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to cooperate, or previous provision of reliable information — is relevant to the assessment of

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whether reliance on informant information was reasonable and thus whether the affiant’s (and

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possibly others’) subsequent actions to execute the warrant and detain Mr. Burns were reasonable.

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Moreover, information that the informants gave about Mr. Burns is relevant.

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Nothing in the Rule 26(b) analysis changes the conclusion that discovery is appropriate about
the reliability of the informants or the information that they gave about Mr. Burns:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties’
relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
ORDER — No. 14-cv-00535-LB

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Fed. R. Civ. P. Rule 26(b)(1).
The information is relevant, the defendants have sole access to it, the issues are important, and

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the court defined the scope of discovery to limit burden. The scope is as follows. If the informants

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provided more information about Mr. Burns than is in the search-warrant affidavit, then the

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defendants must disclose it. They also must disclose information relevant to reliability (such as

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incentives, pending charges, prior work with law enforcement tending to establish reliability, or no

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prior work with law enforcement). This is standard stuff in federal affidavits and should be in the

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informant files. (The court described examples more particularly at the hearing.) The information

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can be produced pursuant to a protective order. The court also described how information can be

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more general to protect against identifying an informant (e.g., “pending narcotics charges” versus

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United States District Court
Northern District of California

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“a narcotics case charged on May 3, 2013 in Alameda County”). The court is not expecting

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production of anything other than what the officers actually knew (or did not know). The point is

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to allow a fair assessment of the reasonableness of the officers’ reliance on the informants.

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Given this ruling, the court extended the time period to respond to the requests for production

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to March 2, 2017. The deadline to file a discovery brief regarding the sufficiency of the production

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is March 9, 2017, absent stipulation of the parties or further order of the court. The court will

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review any material in camera if necessary but expects that production pursuant to a protective

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order will satisfy the defendants’ concerns.

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2. Rule 30(b)(6) Deposition

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The court will allow the deposition but directs the parties to confer to identify the scope more

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precisely. Generally, this will be directed at the Monell claim and be targeted to policies, training,

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and the context for this litigation. The deposition will take place after the informant disclosures.

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Thus, the close of fact discovery on March 6 will not prevent this deposition.

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3. Depositions of Two Witnesses
The County officer defendants want to depose two fact witnesses: Kelly Glaze (Mr. Burns’s
significant other) and Mr. Quintanilla (Mr. Burns’s roommate). Neither is a percipient witness,
ORDER — No. 14-cv-00535-LB

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