Doe et al v. Gill et al

Filing 55

ORDER regarding two of the three disputes described in 52 the parties' April 10, 2012 joint discovery letter. The court will address the third dispute at a later date. Signed by Judge Laurel Beeler on 4/26/2012. (lblc2, COURT STAFF) (Filed on 4/26/2012)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco JANE DOE, et al., 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 11-04759 LB Plaintiffs, v. 13 RYAN GILL, et al., ORDER REGARDING TWO OF THE THREE DISPUTES DESCRIBED IN THE PARTIES’ APRIL 10, 2012 JOINT DISCOVERY LETTER 14 15 Defendants. _____________________________________/ 16 17 [Re: ECF No. 52] I. INTRODUCTION AND BACKGROUND Plaintiffs Jane Doe, Judy Brown, Imaree Cross, and Ericka Whitmeyer (collectively, 18 “Plaintiffs”1) brought claims under 42 U.S.C. § 1983, alleging that San Leandro Police Officers 19 Ryan Gill and Anthony Morgan used excessive force on Gwendolyn Killings during an incident that 20 took place in Oakland, California on December 29, 2010 and which resulted in Ms. Killings’s death. 21 22 1 23 24 25 26 27 28 Ms. Doe, proceeding under a pseudonym because she is a minor, brought this lawsuit in her capacity as Gwendolyn Killings’s heir and as personal representative of Ms. Killings’s estate. First Amended Complaint (Doe), ECF No. 12 at 2, ¶ 2. After Ms. Doe filed her lawsuit, Ms. Brown, Ms. Cross, and Ms. Whitmeyer, who also are representatives of Ms. Killings’s estate, brought lawsuits of their own which featured identical allegations and claims. See Brown v. Gill, No. C11-05009 CW (N.D. Cal. Oct. 11, 2011); Whitmeyer v. Gill, No. C11-05083 CW (N.D. Cal. Oct. 17, 2011). Judge Spero, who previously presided over Ms. Doe’s case, related the two newer cases to Ms. Doe’s case. Related Case Order, ECF No. 20. Upon reassignment, Judge Wilken consolidated all three cases and made Ms. Doe’s case the lead one. See Minute Order, ECF No. 35; ECF Entry on January 20, 2012. C 11-04759 ORDER RE: 4/10/2012 JOINT LETTER 1 See First Amended Complaint (“FAC”) (Doe), ECF No. 12; Complaint (Brown and Cross), ECF No. 2 1, No. C11-05009 (Oct. 11, 2011); Complaint (Whitmeyer), ECF No. 1, No. C11-05083.2 Plaintiffs 3 also brought a claim against the City of San Leandro (the “City”) under Monell v. City of New York 4 Department of Social Services, 436 U.S. 658 (1978), for failing to take necessary, proper, or 5 adequate measures to prevent its officers’ alleged violations. FAC (Doe), ECF No. 12 at 6-8, ¶¶ 34- 6 43.3 Plaintiffs also brought claims for wrongful death and survival under California state law. Id. at 7 9-10, ¶¶ 44-59. 8 9 Currently before the court is the parties’ April 10, 2012 joint letter that describes three discrete discovery disputes. Joint Letter, ECF No. 52. At a high level, the parties disagree about: (1) City Attorney’s Office regarding Officer Gill, subject to a protective order; (2) whether Plaintiffs 12 For the Northern District of California whether Plaintiffs should receive certain records of the Oakland Police Department and the Oakland 11 UNITED STATES DISTRICT COURT 10 should be required to provide Ms. Doe’s true name to Defendants, subject to a protective order; and 13 (3) whether Ms. Brown’s and Ms. Doe’s responses to some of Defendants’ interrogatories are 14 sufficient. The court will address the first two disputes in the instant order and will address the third 15 dispute at a later date.3 16 17 II. LEGAL STANDARD Subject to the limitations imposed by subsection (b)(2)(C), under Rule 26, “[p]arties may obtain 18 discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . . .” 19 Fed. R. Civ. P. 26(b)(1). “Relevant information need not be admissible at the trial if the discovery 20 appears reasonably calculated to lead to the discovery of admissible evidence.” Id. However, “[o]n 21 motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by 22 23 24 25 26 2 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page number at the top of the document, not the pages at the bottom. 3 Because the allegations in Ms. Brown and Ms. Cross’s and Ms. Whitmeyer’s complaints are identical to those in Ms. Doe’s First Amended Complaint, the court will only cite to Ms. Doe’s First Amended Complaint in this order. 27 3 28 Pursuant to Civil Local Rule 7-1(b), the court finds these matters to be suitable for determination without oral argument. C 11-04759 ORDER RE: 4/10/2012 JOINT LETTER 2 1 these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative 2 or duplicative, or can be obtained from some other source that is more convenient, less burdensome, 3 or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the 4 information by discovery in the action; or (iii) the burden or expense of the proposed discovery 5 outweighs its likely benefit, considering the needs of the case, the amount in controversy, the 6 parties’ resources, the importance of the issues at stake in the action, and the importance of the 7 discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C). 8 9 10 III. DISCUSSION A. Records Concerning Officer Gill On March 27, 2012, the court ordered Defendants to produce to Plaintiffs any documents from Officer Gill’s and Officer Morgan’s personnel files that are maintained by the City that relate to any 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 complaints of excessive force or “misconduct” – defined to include the “fabrication of evidence, 13 theft of property by police officers, falsification of official documents, prejudice and/or 14 discrimination” – from December 29, 2005 to present. 3/27/2012 Order, ECF No. 49. 15 The next day, Plaintiffs served subpoenas on the Oakland Police Department – where Officer 16 Gill worked prior to moving to the San Leandro Police Department – and the Oakland City 17 Attorney’s Office, neither of which are parties to this litigation, that seek “[r]ecords of former 18 Oakland Police Officer, Ryan Gill, including, but not limited to[,] audio, written, or otherwise 19 recorded statements relating to Ryan Gill’s propensity to be dishonest, use excessive force, and/or 20 engage in racist, bigoted or other discriminatory conduct during his entire employment with the 21 Oakland Police that ended about 2005.” Joint Letter, ECF No. 52 at 1-2. 22 Defendants object to producing the requested records on numerous grounds. First, Defendants 23 object that the request is overbroad because it seeks records, in all forms, from Officer’s Gill’s entire 24 (unspecified) tenure as an Oakland police officer. Id. at 2. As for the forms that the records might 25 take, the court does not believe this is a problem. Defendants do not argue or suggest that it is 26 burdensome for them to search any of the possible forms (e.g., audio records), nor do they argue or 27 suggest that it would be impossible or highly unlikely for any of the possible forms to contain 28 responsive records. See id. Defendants’ overbreadth argument, rather, focuses more on the time C 11-04759 ORDER RE: 4/10/2012 JOINT LETTER 3 1 period covered by Plaintiffs’ request. See id. Defendants note that the court determined, in its 2 3/27/2012 Order, that only documents from December 29, 2005 to present from Officer Gill’s and 3 Officer Morgan’s personnel files needed to be produced by the City, and Defendants argue that that 4 same time limitation should apply here as well. Id. 5 The court did, in its prior order, limit the documents to be produced to those from December 29, 6 2005 to present, but it did so because it was unaware of any reason to allow for a longer period of 7 time. The court stated: 8 [T]he court does find the time periods covered by Plaintiffs document requests to be overbroad. Plaintiffs seek documents going back ten years from December 29, 2010, but they offer no justification for such a length of time. Instead, the court finds it reasonable to limit Plaintiffs’ document requests to documents going back five years from December 29, 2010, or from December 29, 2005. 9 10 3/27/2012 Order, ECF No. 49 at 4 (emphasis added). Here, though, Plaintiffs do provide a 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 justification. They argue that such a time limitation is not appropriate because Officer Gill, at least 13 according to Plaintiffs, had a “very violent and turbulent career in the City of Oakland,” and this 14 career took place prior to December 29, 2005. Given Plaintiffs’ characterization of Officer Gill’s 15 history with the Oakland Police Department – and Defendants’ failure to challenge it at all – the 16 court believes that records prior to December 29, 2005 are relevant and may lead to the discovery of 17 admissible evidence. Defendants’ overbreadth objection fails for this reason. 18 Defendants also object to the request because the records are protected from disclosure by the 19 qualified privilege for official information that exists under federal common law. See Kerr v. U.S. 20 Dist. Ct. for the Northern Dist. of Cal., 511 F.2d 192, 198 (9th Cir. 1975); see also Soto v. City of 21 Concord, 162 F.R.D. 603, 613 (N.D. Cal. 1995); Kelly v. City of San Jose, 114 F.R.D. 653, 660 22 (N.D. Cal. 1987). The court addressed and rejected this objection in its prior order. 3/27/2012, ECF 23 No. 49 at 4-7. The court views the records requested here as substantially similar to the personnel 24 records addressed in the prior order, and Defendants do not argue otherwise. See Joint Letter, ECF 25 No. 52 at 2. The court stands by its earlier reasoning. Defendants’ qualified privilege objection 26 fails. 27 28 Defendants also object to the request because any responsive records “will be far more prejudicial than probative,” and, thus, excludable from evidence under Federal Rule of Evidence C 11-04759 ORDER RE: 4/10/2012 JOINT LETTER 4 1 403. Defendants conflate the standard for admissibility with the standard for discoverability. 2 Federal Rule of Civil Procedure 26(b)(1) makes clear that “[r]elevant information need not be 3 admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of 4 admissible evidence.” The records sought by Plaintiffs are relevant, so they are discoverable. 5 Defendants’ challenges to the admissibility of evidence are premature. 6 Accordingly, the court rejects all of Defendants’ objections to Plaintiffs’ subpoenas.4. The 7 Oakland Police Department and the Oakland City Attorney’s Office shall produce responsive 8 documents – to the extent they exist – to Plaintiffs once a protective order is submitted and approved 9 by this court. 10 B. Ms. Doe’s True Name Because Ms. Doe is a minor, she instituted this action, and is proceeding, under a pseudonym. 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Defendants served Ms. Doe with an interrogatory that asked her to state her true name. Joint Letter, 13 ECF No. 52 at 3. Defendants would like to know her true name to affirm her identity and conduct 14 discovery about her potential damages. Id. Defendants are unsure whether it can use discovery that 15 Ms. Doe’s counsel has “unofficially” provided to them, and without Ms. Doe’s true name, they are 16 not able to obtain medical, psychotherapy, or other records that might bear upon the damages that 17 Ms. Doe attributes to Ms. Killings’s death. Id. 18 Plaintiffs reply that Defendants are on a “fishing expedition” and have not identified any 19 documents that they might need but are prevented from getting because of Ms. Doe’s pseudonym. 20 Id. at 2-3. It appears to the court, though, that Defendants did identify documents that it is has been 21 prevented from obtaining (e.g., medical, psychotherapy, or other records) and that those documents 22 are relevant to Ms. Doe’s claims. Defendants, then, need to know Ms. Doe’s true name to proceed 23 with discovery. Any privacy concerns that Ms. Doe might raise can be easily allayed through a 24 25 26 27 28 4 Defendants also object to the request by arguing that the records are not relevant because of “their age.” Joint Letter, ECF No. 52 at 2. To the extent Defendants are recasting their overbreadth argument in different language, the court rejects it. And to the extent that Defendants suggest that documents more than six years old necessarily are irrelevant, they offer no authority is support of such a proposition. In addition, Defendants suggest that Plaintiffs’ request has been made solely to harass and intimidate Officer Gill, but they offer no evidence in that regard. See id. C 11-04759 ORDER RE: 4/10/2012 JOINT LETTER 5 1 protective order. 2 /// 3 4 5 IV. CONCLUSION Based on the foregoing, the court ORDERS as follows: 1. The parties shall, within 14 days from the date of this order, meet and confer regarding a 6 stipulated protective order to govern the production of confidential information in this case.5 7 2. Once a protective order is submitted by the parties and is approved by the court, the Oakland to Plaintiffs’ March 28, 2012 subpoenas. Once a protective order is submitted by the parties and 10 is approved by the court, Ms. Doe shall respond without objection to Defendants’ interrogatory 11 asking her to state her true name. Defendants shall continue not to use Ms. Doe’s true name in 12 For the Northern District of California Police Department and the Oakland City Attorney’s Office shall produce documents responsive 9 UNITED STATES DISTRICT COURT 8 any publicly-filed documents. 13 IT IS SO ORDERED. 14 Dated: April 26, 2012 _______________________________ LAUREL BEELER United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The court notes that it directed the parties to meet and confer for this reason in its prior order, but also notes that the parties have yet to submit a stipulated protective order. See 3/27/2012 Order, ECF No. 49 at 7 n.7. C 11-04759 ORDER RE: 4/10/2012 JOINT LETTER 6

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