Shaun Anderson v. County of Contra Costa et al

Filing 63

Discovery Order re 62 Letter. Signed by Judge Maria-Elena James on 3/9/2017. (mejlc2S, COURT STAFF) (Filed on 3/9/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHAUN A. ANDERSON,

Case No. 15-cv-01673-RS (MEJ)

Plaintiff,
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DISCOVERY ORDER

v.

Re: Dkt. No. 62

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COUNTY OF CONTRA COSTA, et al.,
Defendants.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Shaun Anderson (“Plaintiff”) and Defendants the County of Contra Costa, Contra

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Costa Health Services (“CCHS”), Contra Costa County Sheriff David O. Livingston

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(“Livingston”), Dennis McBride, and Adam Buck (collectively, “Defendants”) filed a joint

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discovery letter concerning Livingston‟s deposition. Letter, Dkt. No. 62. Having considered the

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parties‟ positions, the relevant legal authority, and the record in this case, the Court issues the

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following order.

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BACKGROUND

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In February 2014, Plaintiff‟s father, Robert Anderson, was booked into the Martinez

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Detention Facility (the “Jail”). Compl. ¶ 14. On February 27, 2014, Mr. Anderson was taken to

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the CCHS-operated Contra Costa County Regional Medical Center (the “Medical Center”), where

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he “reported chest pain, a painful cough, shortness of breath, yellow sputum with streaks of blood,

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nausea and a history of serious health problems, including [chronic obstructive pulmonary disease

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(„COPD‟)] and asthma.” Id. (internal quotation marks and edits omitted). Mr. Anderson remained

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at the Medical Center for seven days and “was diagnosed with community-acquired pneumonia

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complicated by COPD, chronic kidney disease, Hepatitis C infection, asthma and coronary artery

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disease, among other diagnoses.” Id. On March 6, 2014, the Medical Center discharged Mr.

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Anderson back to the Jail under the care of the Contra Costa County Sheriff‟s Office. Id. The

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Medical Center provided “significant discharge medication and medical care instructions

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(including the provision of Symbicort, an inhaler used for the treatment of COPD).” Id.

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Plaintiff alleges the Jail failed to provide Mr. Anderson with Symbicort per the Medical

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Center‟s instructions. Id. ¶ 15. Mr. Anderson returned to the Medical Center on March 17, 2014,

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where he reported chest pain and significant pain when he breathed deeply. Id. The Medical

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Center discharged Mr. Anderson the same day, noted “he was not likely to get his Symbicort[,]”

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and instructed Mr. Anderson to follow up with the Jail‟s physician. Id. (internal quotation marks

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United States District Court
Northern District of California

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omitted).
Plaintiff alleges the Jail‟s medical personnel still did not provide Mr. Anderson with the

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necessary medication and did not monitor his condition. On March 23, 2014, Mr. Anderson was

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taken to the Medical Center after he fainted in his cell. Id. ¶ 16. Medical personnel determined

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that he fainted due to hypotension and that COPD exacerbation caused his chest pain. Id. Lab

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results indicated an elevated white blood cell count. Id. Medical Center personnel did not

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determine whether Mr. Anderson continued to suffer from a staph infection and/or pneumonia, but

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discharged Mr. Anderson to the Jail on March 24, 2014. Id.

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Mr. Anderson was rushed to the Medical Center on March 30, 2014, suffering from

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hypotension and complaining of chest pain. Id. ¶ 19. Mr. Anderson reported the chest pain started

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a few days before, while he was at the Jail. Id. Mr. Anderson was diagnosed with septic shock

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due to severe pneumonia. Id. He died at the Medical Center on March 31, 2014. Id.

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Plaintiff initiated this action on April 13, 2015. See id. He asserts three claims: (1) 42

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U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments; (2) negligence/wrongful

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death; and (3) California Government Code section 845.6. Id. ¶¶ 26-57. Plaintiff sues Livingston

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in his individual capacity under a theory of supervisory liability and his official capacity under a

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theory of municipal liability. Id. ¶ 7; Letter at 3.

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On March 8, 2016, Plaintiff requested dates for several depositions, including
Livingston‟s. Letter at 2. On September 19, 2016, Defendants objected to producing Livingston
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on the ground that Livingston is an “apex” employee or a high-ranking official. Id. Defendants

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offered to allow Plaintiff to depose a Rule 30(b)(6) witness in lieu of Livingston. Id. at 3. Two

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days later, Plaintiff noticed Livingston‟s deposition for October 19, 2016. Id. at 2. Defendants

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maintained their objection. Id. at 3.

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Plaintiff filed a Motion to Compel Livingston‟s deposition on November 16, 2016. See

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Mot., Dkt. No. 53. The presiding judge in this matter, the Honorable Richard Seeborg, referred

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the Motion and all discovery-related matters to the undersigned on December 2, 2016. Dkt. No.

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55. On December 5, 2016, the undersigned denied the Motion without prejudice pending the

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filing of a joint letter. Dkt. No. 56. The parties filed this Letter on March 6, 2017.1
LEGAL STANDARD

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Federal Rule of Civil Procedure 26 provides that a party may obtain discovery “regarding

United States District Court
Northern District of California

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any nonprivileged matter that is relevant to any party‟s claim or defense and proportional to the

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needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the

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issues at stake in the action, the amount in controversy, the parties‟ relative access to relevant

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information, the parties‟ resources, the importance of the discovery in resolving the issues, and

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whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

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Discovery need not be admissible in evidence to be discoverable. Id. However, “[t]he parties and

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the court have a collective responsibility to consider the proportionality of all discovery and

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consider it in resolving discovery disputes.” Fed. R. Civ. P. 26 advisory committee notes (2015

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amendments). Thus, there is “a shared responsibility on all the parties to consider the factors

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bearing on proportionality before propounding discovery requests, issuing responses and

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objections, or raising discovery disputes before the courts.” Salazar v. McDonald’s Corp., 2016

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WL 736213, at *2 (N.D. Cal. Feb. 25, 2016); Goes Int’l, AB v. Dodur Ltd., 2016 WL 427369, at

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*4 (N.D. Cal. Feb. 4, 2016) (citing advisory committee notes for proposition that parties share a

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“collective responsibility” to consider proportionality and requiring that “[b]oth parties . . . tailor

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Defendants urge the Court to consider their Opposition to Plaintiff‟s Motion to Compel in
addition to the arguments they set forth in the Letter. Letter at 2; see Opp‟n at Dkt. No. 54. The
Court declines to consider materials outside of this Letter, which the parties submitted pursuant to
the Court‟s Discovery Standing Order.
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their efforts to the needs of th[e] case”).
Rule 26(c) “confers broad discretion on the trial court to decide when a protective order is

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appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S.

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20, 36 (1984). “The court may, for good cause, issue an order to protect a party or person from

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annoyance, embarrassment, oppression, or undue burden or expense,” including by (1) prohibiting

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disclosure or discovery; (2) conditioning disclosure or discovery on specified terms; (3)

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preventing inquiry into certain matters; or (4) limiting the scope of disclosure or discovery to

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certain matters. Fed. R. Civ. P. 26(c)(1).
DISCUSSION

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“„When a party seeks the deposition of a high-level executive (a so-called „apex‟

United States District Court
Northern District of California

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deposition), the court may exercise its discretion under the federal rules to limit discovery.‟”

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Somers v. Dig. Realty Tr. Inc., 2016 WL 7157505, at *1 (N.D. Cal. Dec. 8, 2016) (quoting Affinity

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Labs of Tex. v. Apple, Inc., 2011 WL 1753982, at *15 (N.D. Cal. May 9, 2011)). Discretion is

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necessary because apex depositions “create[] a tremendous potential for abuse or harassment.”

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Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012) (internal quotation

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marks omitted).

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Courts may limit discovery after considering “(1) whether the deponent has unique first-

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hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking

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the deposition has exhausted other less intrusive discovery methods.” Id. (quoting In re Google

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Litig., 2011 WL 4985279, at *2 (N.D. Cal. Oct. 19, 2011)). Limitations are appropriate “where

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the information sought can be obtained through less intrusive discovery methods, such as by

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interrogatory or depositions of lower-level employees with more direct knowledge of the facts at

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issue.” Somers, 2016 WL 7157505, at *1. Courts generally require extraordinary circumstances

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before prohibiting a deposition in its entirety. Apple Inc., 282 F.R.D. at 263; Groupion, LLC v.

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Groupon, Inc., 2012 WL 359699, at *2 (N.D. Cal. Feb. 2, 2012). “The apex doctrine does not

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protect high-ranking officials from all depositions.” Myles v. Cty. of San Diego, 2016 WL

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4366543, at *3 (S.D. Cal. Aug. 15, 2016), reconsideration denied, 2016 WL 6070328 (S.D. Cal.

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Oct. 17, 2016). “When a witness has personal knowledge of facts relevant to the lawsuit, even a
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corporate president or CEO is subject to deposition.” Powertech Tech., Inc. v. Tessera, Inc., 2013

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WL 3884254, at *1 (N.D. Cal. July 26, 2013) (internal quotation marks omitted).

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A.

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Application to the Case at Bar
Plaintiff does not allege Livingston has unique knowledge of any facts relating to Mr.

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Anderson‟s death; he instead seeks to depose Livingston about the Jail‟s health care policies and

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practices and his state of mind concerning risks of harm to inmates like Mr. Anderson. Letter at 4.

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Defendants argue “Plaintiff has failed to . . . carry his Apex doctrine burden.” Id. at 5; see id. at 6.

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Some courts have required the party seeking the deposition to prove that the deponent has

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unique personal knowledge and that it has exhausted all less intrusive discovery methods. See In
re TFT-LCD (Flat Panel) Antitrust Litig., 2011 WL 10967617, at *1 (N.D. Cal. Aug. 1, 2011)

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United States District Court
Northern District of California

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(“[C]ourts have required that the party seeking to depose an apex executive demonstrate that he

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possesses some „unique personal knowledge‟ about the case.”); Celerity, Inc. v. Ultra Clean

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Holding, Inc., 2007 WL 205067, at *4 (N.D. Cal. Jan. 25, 2007) (declining to order depositions of

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apex employees where party seeking deposition failed to show deponents possessed unique

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personal knowledge). Several courts, however, have rejected this approach. See Finisar Corp. v.

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Nistica, Inc., 2015 WL 3988132, at *2 (N.D. Cal. June 30, 2015) (“Even when the apex doctrine is

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at issue, however, the burden remains on the party seeking to avoid the deposition.” (internal

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quotation marks omitted)); In re Transpacific Passenger Air Transp. Antitrust Litig., 2014 WL

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939287, at *2 (N.D. Cal. Mar. 6, 2014) (“[C]ourts have rejected burden-shifting for . . . „apex‟

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depositions, holding that the burden under the apex principle is supplied by the general rule

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applicable to a party that seeks to avoid discovery in general. [ ] In other words, the party opposing

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discovery . . . bears the burden of showing that the deposition should not be allowed.” (internal

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citation, edits, and quotation marks omitted)); Powertech Tech., Inc., 2013 WL 3884254, at *1

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(“[U]nder Rule 26, . . . the person seeking to avoid discovery[] bears the burden of showing that

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good cause exists to prevent the deposition. The burden under the apex principle is supplied by

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the general rule applicable to a party that seeks to avoid discovery in general.” (internal quotation

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marks omitted)); Apple Inc., 282 F.R.D. at 263 (“[A] party seeking to prevent a deposition carries

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a heavy burden to show why discovery should be denied.” (internal quotation marks omitted)).
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Livingston is an apex employee or high-ranking official, to whom the apex doctrine

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applies. See Myles, 2016 WL 4366543, at *4 (finding sheriff subject to the apex doctrine where

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plaintiff acknowledged sheriff was the sheriff‟s department‟s chief policy maker and highest

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ranking government officer); K.C.R. v. Cty. of L.A., 2014 WL 3434257, at *6 (C.D. Cal. July 11,

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2014) (“[A]mple authority since [2005] supports the proposition that a sheriff is a high-ranking

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government official entitled to protection.” (collecting cases)). Livingston‟s state of mind is

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relevant to Plaintiff‟s claims, but he is not an appropriate witness for general information

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regarding the Jail‟s policies and practices. See OSU Student All. v. Ray, 699 F.3d 1053, 1071 (9th

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Cir. 2012) (“Iqbal makes crystal clear that constitutional tort claims against supervisory
defendants turn on the requirements of the particular claim—and, more specifically, on the state of

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United States District Court
Northern District of California

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mind required by the particular claim—not on a generally applicable concept of supervisory

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liability.”). Plaintiff cannot depose Livingston on such topics of general application. There is no

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evidence that Plaintiff has conducted discovery on what health care policies and practices were or

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were not followed by Jail personnel. The Court accordingly DENIES Plaintiff‟s request to depose

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Livingston without prejudice. Plaintiff shall first depose a Rule 30(b)(6) witness regarding the

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Jail‟s policies and practices, and any other relevant topics, then meet and confer with Defendants

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about the necessity and scope of Livingston‟s deposition. If the parties are unable to reach

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agreement, they may file a joint letter outlining the scope of their disagreement.

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B.

Protective Order

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Defendants also request a protective order barring Plaintiff from deposing Sheriff

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Livingston. Letter at 7. Defendants fail to show good cause for their request: they do not explain

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how specific prejudice or harm will result absent a protective order. See In re Transpacific, 2014

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WL 939287, at *3. In light of the Court‟s decision to deny Plaintiff‟s request to depose Livingston

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without prejudice, the Court also DENIES Defendants‟ request for a protective order.

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IT IS SO ORDERED.
Dated: March 9, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge
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