Khan et al v. Rogers et al

Filing 130

ORDER by Judge Laurel Beeler denying 128 Motion to Compel. As set forth in the attached order, the court denies the plaintiffs' motion to compel non-parties to respond to the plaintiffs' interrogatories and to compel the defendants to produce unspecified documents. (lblc1S, COURT STAFF) (Filed on 1/28/2019)

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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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DAVID KHAN, et al.,
Plaintiffs,

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Case No. 17-cv-05548-RS (LB)
ORDER DENYING PLAINTIFFS’
MOTION TO COMPEL

v.
JUSTIN ROGERS, et al.,

Re: ECF No. 128

Defendants.

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INTRODUCTION

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The court assumes the reader’s familiarity with the subject matter and procedural history of

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this case and the parties’ various disputes. The plaintiffs have filed another motion to compel, this

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one to compel non-parties Zachary Blume and John Corcoran to respond to their interrogatories

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and to compel the defendants to produce documents. The court can decide the motion without a

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hearing. N.D. Cal. Civ. L.R. 7-1(b). The court denies the motion.

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ANALYSIS

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First, the court repeatedly ordered the parties that they must meet and confer before raising

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discovery disputes and, if they cannot resolve their disputes, may submit a joint letter brief with

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ORDER – No. 17-cv-05548-RS (LB)

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information about any unresolved disputes.1 Under the court’s orders, a party may submit an

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individual discovery letter or motion only if that party declares that he, she, or it has made

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reasonable, good-faith efforts to secure the opposing parties’ portion of a joint letter and was

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unable to do so.2 The court warned that discovery letters and motions that do not comply with this

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requirement may be summarily denied.3 Notwithstanding the court’s orders, the plaintiffs

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unilaterally filed an individual motion to compel. The plaintiffs did not submit a declaration that

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they made reasonable, good-faith efforts to secure the defendants’ portion of a joint letter and were

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unable to do so.4 The plaintiffs’ failure to comply with the court’s orders is, on its own, grounds

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for summarily denying their motion.
Second, the plaintiffs’ motion fails on the merits as well. As the court previously explained on

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United States District Court
Northern District of California

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multiple occasions, the plaintiffs may serve interrogatories only on parties to the litigation.5

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Zachary Blume and John Corcoran are not parties to the litigation. The court previously addressed

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this issue in the context of a motion by the plaintiffs to compel another non-party, Linda Segundo,

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to respond to interrogatories.6 There, the court allowed for the possibility that the plaintiffs, who

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are pro se, had intended to serve interrogatories on the City of Pinole (which is a party) but

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Order – ECF No. 122 (emphasis in original); Order – ECF No. 125 at 5. Citations refer to material in
the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top
of documents.
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Order – ECF No. 122; Order – ECF No. 125 at 5.

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Order – ECF No. 122; Order – ECF No. 125 at 5.

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The plaintiffs claim that “the defendants never contacted us with respect and ignored our existent
[sic] in many ways.” Pls. Mot. to Compel – ECF No. 125 at 1. That is not a declaration that the
plaintiffs made reasonable, good-faith efforts to secure the defendants’ portion of a joint letter and
were unable to do so. For example, the plaintiffs do not say that they sent to the defendants their
portion of a joint letter brief and asked for the defendants’ response before they unilaterally filed their
individual motion to compel. Cf. Synopsys, Inc. v. Ubiquiti Networks, Inc., No. 17-cv-00561-WHO
(LB), 2018 WL 2294281, at *1 (N.D. Cal. May 21, 2018) (“[O]ne of the central purposes of the jointletter-brief process [is] so that the parties can see each other’s positions and arguments, can respond to
them, can re-respond to the responses, etc., and thereby (1) try to find areas of compromise and work
out their disputes amongst themselves and (2) narrow, sharpen, and focus the issues they cannot
resolve before they present those issues to the court.”).
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Order – ECF No. 118 at 1 (citing Fed. R. Civ. P. 33(a)(1)); Order – ECF No. 125 at 3 & n.13.

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Order – ECF No. 125.

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ORDER – No. 17-cv-05548-RS (LB)

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mistakenly served them on Ms. Segundo instead.7 The court suggested that the defendants might

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construe the interrogatories served on Ms. Segundo as interrogatories to the City.8 The court noted

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that the interrogatories might be objectionable for other reasons, however, including if the

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plaintiffs were trying to exceed the 25-interrogatory limit set forth in Federal Rule of Civil

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Procedure 33 by issuing separate sets of interrogatories to different non-party individuals instead

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of limiting their interrogatories to the parties.9 The plaintiffs’ latest submission makes clear that is

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exactly what the plaintiffs have been doing: they have issued 21 to 25 separate interrogatories to

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each of Mr. Blume, Mr. Corcoran, and Ms. Segundo.10 The plaintiffs may not issue interrogatories

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to non-parties (which are improper in the first instance) and use them to compel the parties to

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respond to more interrogatories than the limit set forth in Rule 33.
The plaintiffs also ask the court to compel the defendants to produce documents.11 The

United States District Court
Northern District of California

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plaintiffs repeat their accusations that the defendants have fabricated documents.12 As has been the

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case each of the previous times that the plaintiffs have made these accusations, the plaintiffs do

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not support their accusations with any evidence.13

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CONCLUSION

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The court denies the plaintiffs’ motion to compel.

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Id. at 3–4.

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Id. at 3.

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Id. at 4 n.14.

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Pls. Mot. to Compel Exs. – ECF Nos. 128-1, 128-2, 128-3.

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Pls. Mot. to Compel – ECF No. 128 at 5 (¶ 20).

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Id. at 3–4 (¶¶ 9–11).

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See id. at 5 (¶ 17) (the plaintiffs claiming that they can only present their supposed evidence of
fabrication at trial and not in the discovery process); cf. Order – ECF No. 2–3 & n.9 (noting that “[t]he
plaintiffs claim that ‘[t]he defendants and their counsel produced heavily edited and modified footages,
rewritten reports with inconsistency’” but “have not identified any specific document or video footage
that they claim was edited or modified or presented any evidence to support their claim of editing or
modification”).

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ORDER – No. 17-cv-05548-RS (LB)

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The court also corrects an apparent misunderstanding of the plaintiffs. The plaintiffs claim that

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the defendants have the burden of proof in this case.14 That is incorrect. This is not a criminal case

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brought by the government against the plaintiffs, in which the government would have the burden

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of proof. This is a civil case brought by the plaintiffs against the City of Pinole and Officer Justin

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Rogers. The plaintiffs, and not the defendants, bear the burden of proof in this civil case.

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IT IS SO ORDERED.

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Dated: January 28, 2019
______________________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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Pls. Mot. to Compel – ECF No. 128 at 4 (¶ 10).

ORDER – No. 17-cv-05548-RS (LB)

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