Bresaz et al v. County of Santa Clara et al
Filing
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ORDER by Magistrate Judge Howard R. Lloyd re 17 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 1/16/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
SAN JOSE DIVISION
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LAUREL BRESAZ, an individual and
Successor in Interest to BRANDON
MARSHALL, deceased; DONNA HAYES, an
individual; and DR. STEVEN MARSHALL,
an individual,
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ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1
[Re: Dkt. 17]
Plaintiffs,
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Case No. 14-cv-03868-LHK-HRL
v.
COUNTY OF SANTA CLARA; DEPUTY
ALDO GROBA, in his individual capacity;
DEPUTY KRISTIN ANDERSON, in her
individual capacity; and DOES 1–50,
Defendants.
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In this civil rights suit, Plaintiffs Laurel Bresaz, Donna Hayes, and Dr. Steven Marshall
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(collectively, Plaintiffs) seek an order compelling Defendants County of Santa Clara, Deputy Aldo
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Groba, and Deputy Kristin Anderson (collectively, Defendants) to: (1) return to Plaintiffs several
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personal electronic devices seized by the Santa Clara County Sheriff; and (2) produce Santa Clara
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County Sheriff’s Incident Report #13-344-0148S as expedited discovery. See Dkt. No. 17, at 3–7.
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Defendants respond that: (1) Plaintiffs have no authority to support their demand for the return of
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the decedent’s electronic devices before the pending criminal investigation is complete; and (2)
ORDER RE DISCOVERY DISPUTE
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Plaintiffs have not established good cause for expedited discovery. Id. at 8–11. Defendants ask the
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court for a short stay of discovery for the period of time necessary for the Sheriff’s Office to
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complete its investigation and the District Attorney’s Office to decide whether to file charges
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against the Sheriff deputies. Id. at 9–10. The parties met and conferred on November 6, 2014 to
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attempt to resolve their discovery dispute, the failure of which resulted in this Discovery Dispute
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Joint Report (DDJR) No. 1.
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Plaintiffs filed this suit on August 26, 2014, asserting several federal and state civil rights
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violations and a number of torts arising out of the shooting death of Brandon Marshall by Defendant
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Aldo Groba, a deputy of the Santa Clara County Sheriff’s Office, on December 10, 2013. See Dkt.
United States District Court
For the Northern District of California
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No. 1. Three days after the shooting, Plaintiffs’ counsel requested that the Sheriff’s Office: (1)
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return Brandon Marshall’s personal electronic devices and other personal property seized at the
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scene of the shooting; and (2) produce the Sheriff Office’s incident report concerning the shooting.
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Dkt No. 17, at 1. Defendants respond that Plaintiffs provide no authority to support their demand
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that Brandon Marshall’s electronic devices should be returned before the pending criminal
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investigation is complete, and that Plaintiffs have failed to make the necessary showing of good
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cause for expedited discovery. Id. at 8–11. The matter is deemed suitable for determination without
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oral argument. Civ. L.R. 7-1(b). Upon consideration of the parties’ respective arguments, the court
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finds as follows.
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First, Plaintiffs seek the return of electronic devices seized and held by the Santa Clara
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County Sheriff’s Office. Defendants state that the property will be returned upon the completion of
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the criminal investigation, but Plaintiffs move pursuant to Fed. R. Civ. P. 41(g) for the immediate
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return of the devices. However, “Rule 41(g) can be used to force the federal government to return
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items seized by state officials [only] when the United States actually possesses the property or
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constructively possesses the property by: (1) using the property as evidence in the federal
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prosecution; or (2) where the federal government directed state officials to seize the property in the
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first place.” United States v. Copeman, 458 F.3d 1070, 1072 (10th Cir. 2006). (citation and internal
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quotation marks omitted). “[P]roperty seized and held by state law-enforcement officers is not in the
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constructive possession of the United States for Rule 41(g) purposes unless it is being held for
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potential use as evidence in a federal prosecution.” Id. Here, there appears to be no suggestion of
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federal involvement in this case. Accordingly, the Plaintiffs’ request for return of the personal
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electronic devices prior to the completion of the pending criminal investigation is denied.
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Second, Plaintiffs request the court order expedited discovery of the Santa Clara County
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Sherriff’s incident report relating to this case. Dkt. No. 17, at 5. Under Federal Rule of Civil
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Procedure 26(d), parties “may not seek discovery from any source before the parties have conferred
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as required by Rule 26(f),” unless a court orders otherwise. Fed. R. Civ. P. 26(d). In the Northern
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District, courts “apply a good cause standard in determining whether expedited discovery [under
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Rule 26(d)] is warranted.” Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 274 (N.D.
United States District Court
For the Northern District of California
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Cal. 2002). “Good cause may be found where the need for expedited discovery, in consideration of
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the administration of justice, outweighs the prejudice to the responding party.” Id. at 276. Courts
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“commonly consider factors including: (1) whether a preliminary injunction is pending; (2) the
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breadth of the discovery requests; (3) the purpose for requesting the expedited discovery; (4) the
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burden on the defendants to comply with the requests; and (5) how far in advance of the typical
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discovery process the request was made.” Apple Inc. v. Samsung Electronics Co., Ltd., 768
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F.Supp.2d 1040, 1044 (N.D. Cal. 2011) (internal quotation marks and citation omitted). The party
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seeking expedited discovery bears the burden of showing good cause. Am. LegalNet, Inc. v. Davis,
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673 F.Supp.2d 1063, 1067 (C.D. Cal. 2009).
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Plaintiffs offer three arguments to support their showing of good cause for expedited
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discovery: (1) the requested incident report is relevant and would expedite possible amendment of
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the complaint; (2) Defendants would not suffer any prejudice as their reasons for delaying
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production are baseless; and (3) it would be prejudicial to Plaintiffs for Defendants to further delay
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production of the report. Dkt. No. 17, at 5–7. Defendants contend that the report is incomplete and
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the criminal investigation is ongoing, in part because they await information from a third party
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(Apple) regarding the contents of the electronic devices seized by the Santa Clara County Sheriff’s
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Office. Id. at 8–10. Defendants do not dispute the relevance of the report, but note that relevance is
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not the standard for a finding of good cause. Defendants argue that Plaintiffs have offered no
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explanation for the need for expedited discovery or how that need would outweigh the prejudice to
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Defendants from having to produce an incomplete draft report.
The court must make its good cause determination in light of “the entirety of the record . . .
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and the reasonableness of the request in light of all the surrounding circumstances.” Semitool, Inc.,
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208 F.R.D. at 275 (citation & quotation marks omitted). Here, only the fact that the discovery
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request is not overly broad supports a finding of good cause. Weighing against such a finding are
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the facts that: (1) no preliminary injunction is pending; (2) the asserted purpose for expediting
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discovery—to “expedite possible amendment of the complaint”—is not overly compelling; and (3)
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the Defendants assert that producing an incomplete draft report would be burdensome, an assertion
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United States District Court
For the Northern District of California
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which Plaintiffs do little to rebut. As the initial case management conference in this case is set for
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February 4, 2015, the deadline for holding a Rule 26(f) conference is in mid-January. See Dkt. No.
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12. Plaintiffs request for early production of the incident report therefore came approximately two
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months before the start of discovery. This is sufficiently far in advance of the normal discovery
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schedule to weigh against granting expedited discovery of the report. In sum, the court finds that
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Plaintiffs have failed to establish good cause for ordering expedited discovery of the incident report
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in this case, and Plaintiffs’ request is denied.
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Lastly, Defendants request a stay of discovery in this case while the Sheriff’s Office
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completes its investigation and the District Attorney’s Office decides whether to file charges against
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the deputies. Dkt. No. 17, at 9–10. As Defendants note, a court may stay of discovery in a civil
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proceeding pending the outcome of criminal proceedings, but is not required to do so. Keating v.
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Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995). “In the absence of substantial
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prejudice to the rights of the parties involved, simultaneous parallel civil and criminal proceedings
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are unobjectionable under our jurisprudence. Id. (citation and alterations omitted). Although
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Defendants assert that “Defendants’ Fifth Amendment rights are implicated in that there has been no
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decision by the District Attorney’s Office about whether to file charges against the deputies,” Dkt.
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No. 17, at 10, “a stay is not warranted where a defendant’s Fifth Amendment rights can be protected
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through less drastic means, such as asserting the privilege on a question-by-question basis.” ESG
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Capital Partners, 22 F.Supp.3d at 1045–1046 (citation and internal quotation marks omitted).
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Defendants provide no argument as to why less drastic means would be insufficient in this case. In
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any event, no criminal proceedings have been instituted against any of the Defendants, and the court
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finds Defendants’ request premature. See, e.g., ESG Capital Partners LP v. Stratos, 22 F.Supp.3d
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1042, 1045 (C.D. Cal. 2014) (“Courts have recognized that there is a strong case in favor of a stay
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after a grand jury returns a criminal indictment and where there is a large degree of overlap between
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the facts involved in both cases.”). Accordingly, Defendants’ request for a stay of discovery is
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denied.
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Dated: January 16, 2015
_________________________________
HOWARD R. LLOYD
United States Magistrate Judge
United States District Court
For the Northern District of California
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ORDER RE DISCOVERY DISPUTE
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5:14-cv-03868-LHK Notice has been electronically mailed to:
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Christine Peek cpeek@mcmanislaw.com, cmcclelen@mcmanislaw.com,
eschneider@mcmanislaw.com, sshakoori@mcmanislaw.com, svannorman@mcmanislaw.com
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James McManis jmcmanis@mcmanislaw.com, clarsen@mcmanislaw.com,
eschneider@mcmanislaw.com
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Jennifer Murakami
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Melissa R. Kiniyalocts
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Stephen H. Schmid
jmurakami@mcmanislaw.com
melissa.kiniyalocts@cco.co.scl.ca.us, marylou.gonzales@cco.sccgov.org
stephen.schmid@cco.co.santa-clara.ca.us, marylou.gonzales@cco.sccgov.org
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United States District Court
For the Northern District of California
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ORDER RE DISCOVERY DISPUTE
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