Torres v. Saba et al

Filing 118

DISCOVERY ORDER denying 113 Motion to Compel. (Illston, Susan) (Filed on 11/25/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIO TORRES,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-06607-SI
DISCOVERY ORDER

v.

Re: Dkt. Nos. 113, 116
MIKE HANSEN, et al.,
Defendants.

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This is a pro se prisoner’s civil rights action in which plaintiff alleges claims arising out of

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his July 4, 2012 arrest by two Concord police officers, Daniel Smith and Mike Hansen, who

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responded to a 911 call reporting a fight or a domestic disturbance at plaintiff’s apartment. The only

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remaining claims are (1) a Fourth Amendment claim against officers Hansen and Smith for an

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unreasonable search based on the warrantless entry of the residence, and (2) a Fourth Amendment

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claim against officers Hansen and Smith for excessive force based on three uses of force (i.e.,

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allegedly beating Torres upon entry into the residence, after he was handcuffed, and when he was

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at the police station). Docket No. 103. Summary judgment was granted against plaintiff on his false

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arrest, false imprisonment, and Monell claims. Id.

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Plaintiff has filed a motion to compel defendants to produce documents. Docket No. 113.

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The request for production of documents consists of a December 17, 2018, email from plaintiff to

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defense counsel containing a lengthy list of categories of documents he wanted. Docket No. 113-1

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at 4. Defense counsel responded to plaintiff in an email that stated: “As I previously explained to

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you on the phone call we just had, discovery requests made via email are not proper under the federal

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rules, and we have not agreed to accept discovery requests via email.” Id. at 5 (December 17, 2018

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email from attorney Rothman to Torres). Torres never sent discovery requests via regular mail or

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hand-delivery, and defense counsel never agreed to accept email discovery requests.
Defense counsel was correct that service by email was improper because defense counsel

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had never agreed to accept email service of discovery requests. “The party to whom the request [for

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production of documents] is directed must respond in writing within 30 days after being served.”

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Fed. R. Civ. P. 34(b)(2)(A) (emphasis added). Federal Rule of Civil Procedure 5(b) and (c) govern

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service of papers during the course of an action. “A paper is served under this rule by . . . sending

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it to a registered user by filing it with the court’s electronic-filing system or send sending it by other

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electronic means that the person consented to in writing,” or by “delivering it by any other means

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that the person consented to in writing.” Fed. R. Civ. P. 5(b)(2)(E) & (F).1 There is no evidence in

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the record that the discovery request properly was served. Defendants had no duty to respond to the

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United States District Court
Northern District of California

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request that was not properly served. Therefore, the motion to compel is DENIED. Docket No.

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113.

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Any new request for production of documents must be served properly, such as by sending

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it via first class mail to defense counsel. Any new request for production of documents also must

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comply with the requirements of Federal Rules of Civil Procedure 34. Plaintiff is specifically

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directed to Rule 34(b)(1), which states:

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particularity each item or category of items to be inspected; (B) must specify a reasonable time,

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place, and manner for the inspection and for performing the related acts; and (C) may specify the

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form or forms in which electronically stored information is to be produced.”

“The request: (A) must describe with reasonable

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In light of the denial of the motion to compel due to improper service of the discovery

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request, the court does not discuss the individual items requested. The court will, however, address

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one substantial area that is beyond the proper scope of discovery in this case, i.e., plaintiff’s other

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criminal cases and arrests. In general, parties may obtain discovery regarding any matter, not

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The provision for sending a document via e-filing does not apply because plaintiff is not an e-filer.
Plaintiff states that he wanted to do e-filing to avoid the financial burden of postage and faults the
court for denying his request. Docket No. 113 at 1-2. But plaintiff fails to acknowledge that the
denial of his request was “without prejudice to plaintiff filing a new request if and when he
determines that he meets the technical requirements to be an e-filer.” Docket No. 84 at 1. Plaintiff
never bothered to file a new request. He thus remains a paper filer rather than a e-filer.
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privileged, that is “relevant to any party's claim or defense and proportional to the needs of the case.”

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Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the

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action, the amount in controversy, the parties' relative access to relevant information, the parties'

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resources, the importance of the discovery in resolving the issues, and whether the burden or expense

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of the proposed discovery outweighs its likely benefit.” Id. Plaintiff wants to delve into his other

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encounters with the criminal justice system, but that is unwarranted in this case that is so plainly

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limited to the events on July 4, 2012. Plaintiff was arrested on several occasions, had several court

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cases against him, and suffered several convictions leading to imprisonment. At many points in this

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litigation, plaintiff has tried to inject issues about arrests other than the July 4, 2012 arrest and cases

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other than the criminal case that arose from the July 4, 2012, arrest. Those other arrests and cases

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United States District Court
Northern District of California

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are not relevant to the claims in this case and the discovery about them would not be proportional

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to the needs of this case. See Fed. R. Civ. P. 26(b)(1). Accordingly, plaintiff must confine any

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future discovery requests to the events on July 4, 2012, and (if relevant) the one criminal case filed

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against him as a result of his arrest on July 4, 2012. Defendants do not need to provide any discovery

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in response to requests that are not so confined.

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Plaintiff has filed a “request for telephonic conference for purpose of enforcing court’s meet

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and confer requirement.” Docket No. 116. Although he cites the standing order of Magistrate Judge

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Illman, that standing order is inapplicable because the discovery dispute has not been referred to

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Magistrate Judge Illman, who is only handling settlement proceedings. The undersigned is handling

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the discovery matters in this action. There is no need to meet and confer at this point because, as

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explained above, plaintiff did not properly serve his request for production of documents. For this

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reason, the request for a telephonic conference is DENIED. Docket No. 116. (The telephonic

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conference scheduled by Magistrate Judge Illman regarding settlement proceedings will go forward,

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but will not address discovery issues.)

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IT IS SO ORDERED.

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Dated: November 25, 2019
______________________________________
SUSAN ILLSTON
United States District Judge
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